Episode #284 – Why Jurors Don’t Like Witnesses Who Pivot

Bill Kanasky, Jr. Ph.D. shares a comparison between two different performances by witnesses at a recent mock trial and how their deposition performance impacted jurors’ perceptions of the credibility of the witnesses and jurors’ views of the case. One of the witnesses gave several pivoting responses, using phrases like “Yeah, but….” many times, which the jurors found evasive and did not like.

Bill talks about how to handle situations where witnesses are asked questions related to bad facts or potentially problematic information and describes a much better approach than pivoting or arguing with the questioning attorney. Bill emphasizes the importance of owning your conduct and why that’s the best way to diffuse this line of questioning from opposing counsel. Lastly, Bill addresses how to help witnesses address accusatory questions without pivoting. 

Full Episode Transcript

[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. This is Dr. Bill Kanasky coming at you from my hotel room. So, if you’re on the YouTube channel, you’ll see this hotel room backdrop and it’s going to be very bright, but let’s see if you want to see the sunrise here in the Pacific Northwest. It’s about as much as I’m going to share with you.

Out here working on a mock trial. So, it’s a pre-trial mock trial. And this is a long event. This is going to go four and a half days. Now, this is very unusual. But the stakes here are very, very high. Very, very high. Number one. Number two, which is not particularly unusual, this is business litigation, okay? These are contracts, disputes, okay, things like that, where there’s a tremendous amount of money on the line.

We are actually, have actually been retained by the plaintiff and the plaintiff—So everybody chill out because I’ve told you this a million times. We do plaintiff work when it’s commercial litigation because the plaintiff’s a company. They’re suing another company. Okay. And so on day one, we had opening statements. The attorneys did a really, really good job. And then we have several days here of playing deposition video. And we anticipate this is going to happen at trial.

So, it’s a unique position to be on the plaintiff’s side and to be able to assess the defense witnesses because, you know, usually I’m on the other side and I wanted to kind of share some of the things from some of the key defense witnesses, particularly the corporate rep. So, and I have all the juror data that’s been coming in, you know, throughout the project and after each witness, and a lot of written comments and ratings after each witness.

So, again, what I try to preach to you all on the defense is that a defensive and evasive witness is a bad witness. Okay. And so there are two key witnesses that the defense put up. One did relatively well. The other one, who was the corporate rep, not so much.

[03:05] Bill And the reason why the first witness, who is in a pretty high-level managerial role, let me kind of describe to you his deposition performance and how jurors felt about it. Number one, he had really, really good body language and facial expression throughout the whole dep. He came across as very, he had a very professional tone. He came across as very polished. He was a very good communicator. Was very respectful at all times. Had a really kind of professional, positive tone about him regardless of what he was being asked.

And the jurors liked that. There are a couple points throughout the dep where he showed the appropriate level of, let’s just say, compassion and sensitivity to a couple of issues that had come up with some fatalities. And that went over very well with the jurors. Many of the jurors commented that they appreciated that he acknowledged that there had been fatalities and that the way he acknowledged it was authentic. So that worked out really well.

He got some really, really tough questions and I could see a little bit of frustration. But it was really like difficult. Like, I had to like take a deep dive to really detect it. He really held his composure well. And rather than getting really outwardly frustrated and changing, he had a couple changes in his facial expression at times. You can tell he was frustrated. Um, but he reeled it in really well and he was able to kind of stick to his answers and not, you know, not flip out, not get annoyed, not get frustrated.

And when the data came back, it came back pretty positive for this witness. And on some of the other data we collected on, you know, how like based on what you’ve heard up to this point, you know, how do you feel? You leaning plaintiff, you leaning defense, and if so, you know, how much? And he was able to get a couple people to actually flip sides over to defense because of that performance. And even the ones that remained with the plaintiff, several of those, they didn’t flip, but they kind of got closer to the neutral line. So, that was an effective witness. He did not come across as defensive. He had very high ratings on being knowledgeable, being believable, you know, things like that. And so that witness for the defense was by far their best witness. And if you’re a defendant, I think that’s what you want to see.

[06:26] Bill And then right after him, the defendant corporate rep testified. This did not go well. Now there were some positives, but I think the negatives outweighed the positives. So, the first thing that was very, very clear between these two witnesses, it was body language and facial expression. The corporate rep, I don’t know why, I don’t know how, just looked miserable, like he didn’t want to be there. His facial expression was very negative. He was, you know, hands touching the face the whole time, kind of leaning on his hand. He just looked very, very uncomfortable, like he didn’t want to be there.

On the other hand, he was extraordinarily knowledgeable. So, his knowledge ratings were very, very high. However, his defensiveness and evasiveness ratings were very, very high. And here’s why. And we’ve talked about this several times. It’s probably the most controversial thing that we talk about is pivoting. He was being asked questions that were right from documents. Okay. So, based on this, now isn’t it true this document says X? And the attorney would read the sentence and he, a couple of times, he did the right thing. He said yes, that’s what the document says, which is the right thing to do, but he could not sustain that.

That turned into, “Yeah, but, yeah, but, yeah, but, yeah, but, yeah, but,” and he’d go like on these minute-long defensive evasive explanations. Now, you know as well as I do, the attorney taking the dep really doesn’t care about those explanations and they came across very defensive and very evasive. And I looked at the data after we played this is like an hour and 15 minutes of deposition and jurors were typing into their open-ended responses, multiple jurors, that, you know, he’s evasive, he’s defensive, he looks angry, he looks annoyed.

So, it was a really, really big turnoff. And, you know, we’ve talked about this many, many times. He didn’t like some of the things in their emails and their corporate documents. And so, you know, he went fight or flight. Well, he went fight and you could tell became very annoyed. And then so what the attorney did, which is a really smart thing if you’re a cross-examiner, you know, after these pivoting responses, which seem very clever—”Yeah, but, yeah, but, yeah, but, let me explain”—and then they go into their yeah, yeah. These witnesses never have the capacity to do that effectively over the court. Like sometimes they’ll nail it, right? And they think they’re sticking it to the attorney, but then a really good cross-examiner essentially just backs up and says, “Okay, well, you know, thank you for that lengthy explanation. Yeah, that’s really not my question. Let’s go back to the original question. Isn’t it true this is what the document says, right? And it sounds like you’re saying yes.”

And then he starts fighting again. Well, you go through five rounds of that. And then the attorney’s like, “Okay, so back to the original question. This is what the document says, right?” And the frustrated, annoyed witness, this is what he did, was like, “Yeah, that’s what the document says.” Right? And so, you have this 10-minute interaction of defensiveness, evasiveness, and you see what—he’s been told to pivot.

[10:36] Bill But a good attorney is never going to let a witness get away from that. And the defense attorneys, what they have told me is, “Well, I don’t want to give them that sound bite. I don’t want to give them that sound bite.” They’re getting it. It’s a fact. It’s right there in the document. So, the better way to handle this, like the first witness, is you lean into it. Okay? Because remember, it’s all perception. It’s all juror perception. The jurors really don’t know the true meaning behind these documents. They develop their meaning based on how the witness is performing.

And so the right way to handle it, like the first witness, is to say, “Yes, yes, that’s what the document says,” and stop. You own it because perceptually you’re good. Okay? And then so there’s the example with the first witness that did really well and they show him an email. “Yeah. Isn’t it true you wrote this email?” He looks at the email, takes his time, looks up, shoulders back, head up and says, “Yes, I wrote the email.” Okay, next question. “And isn’t it true, sir? Right?” And this is where the attitude comes in. This is the big chess match. “Isn’t it true this is what you wrote? In fact, first paragraph, second sentence, you wrote blah blah blah. You wrote that, didn’t you?” He takes his time. He looks down and he goes, “Yes, that’s what I wrote in the email.”

And so that first witness was completely able to neutralize what our attorney, plaintiff’s attorney, was trying to do and came across really well. Got really, really high ratings. So then at some point the plaintiff attorney has to say, “All right,” because he’s not taking the bait. He’s coming across really well. Well then, they have to say, “Okay, well why did you write that?” He’s like, “I’m happy to explain,” and gives maybe like a solid two sentences on what he meant in the email. Head high, shoulders back, positive attitude, positive tone, very professional.

And it diffuses the whole bomb. It diffuses the whole bomb. Now, the corporate rep would fight and fight and fight and fight and fight about his emails and then his ratings come back terrible because he never leaned into it. You tell he’s getting really annoyed and emotional the whole time. So that’s why I said, you know, hey, I have to go down here for day three of this mock trial and I’m on Pacific time. So, I’ve been up since very, very early this morning to kind of share that with you because that’s the core of our witness training program is to not get into that fight-or-flight defensiveness or evasiveness. Jurors hate it. We have data on this. Jurors cannot stand it because you’re very clearly bobbing and weaving, right?

[13:48] Bill And the jurors are going to make you pay. They’re going to make you pay for that. And so yeah, the corporate rep’s data did not come back in a positive way. Here’s the thing. It’s 100% preventable. Okay? He was probably told by his defense counsel like, you know, don’t get pushed around and when this email comes up, you need to fight back with this. The problem is that doesn’t work with good cross-examiners because they know it’s coming. They’re ready and they’re not going to let the witness get away with that. And then they create 10 minutes of a big kind of back-and-forth mess. And then your witness comes out of it looking very defensive and evasive.

And here’s the worst part. At the end of this defensive hamster wheel interaction, the witness ends up saying yes. Okay. The first witness, that manager, never took the bait on that. And so anytime a document would come up, an email, any type of correspondence, he would lean into it, and he would own it and keep his head high. Had a really good attitude and he was like bulletproof, absolutely bulletproof against any of the tactics that the cross-examiner was using.

And so, you know, now this is an issue we have talked about on this podcast for five years, multiple times a year, and it’s a big point of contention. There are still some out there that think our witnesses should fight. The problem is that that tends to backfire and blow up in your face. There’s a much better way to handle it. Own your conduct. Own what you wrote. Own what you said. Keep your head high. Stay professional. And shut up and wait. Play chess, not checkers.

And then inevitably that why, why not, how come, that’s going to come. And that’s where you go right to your key defense theme. And again, with a professional tone and being positive and confident and jurors love that. But man, this corporate rep really—if you just hit the mute button and just watched it, you would cringe. Really uncomfortable, annoyed, didn’t want to be there. And I think that’s really going to hurt the defense in this case. And that video, certain clips of it, we’re going to play at trial and it’s not going to come across really, really well at all.

So again, short podcast today. I just wanted to share this experience in the middle of this mock trial on the juror feedback from these witnesses to just kind of prove a point to you. There’s a better way to do this and I’ve never seen a defensive, ever seen, a defensive evasive witness get perceived in positive light by a jury. The jurors start to get annoyed with the witness and they see what’s going on. So, when you’re prepping your witnesses, defense attorneys, on factual things, own it. Own it. Lean into it. Okay? Own it and lean into it.

Now, on the other half of this, when those questions switch and they become accusatory questions, right, we’re out of the factual world here, we’re into, you know, blame questions, accusatory questions, negligence, causation, fraud, whatever it is. That’s where the witness puts up the wall. But again, the best wall to put up is really a solid confident disagreement and then stop.

[18:13] Bill So, back to this mock, that first witness, that manager, when the blame questions started coming up that were accusatory, he’d say, “Oh, no, no, no. I disagree with that.” And would stop. And that forces the questioner to say, “Oh, really? Well, why do you disagree?” And now, right, he has more time to think, goes right to his defense theme, and again, neutralizes the interaction, diffuses the bomb.

Now, the corporate rep starts getting blame questions and he flips out, starts arguing, starts defending. No comma. No comma. No because. No because. No because. No because. Gets all emotional. His body language suffers. His tone becomes very negative. And now it’s a big mess that we’re drawing attention to.

Okay. So, your witnesses on defense, they start getting blamed for things or the company’s getting blamed for things. The very, very best answer is to deliver a very solid confident disagreement followed by a period with head high, shoulders back. Okay, that why, why not, how come, that’s coming. Wait for it. And then you can give your explanation. That’s perceived very positively by a jury.

What the jury doesn’t like is when the witness—who again, is mind-blowing, they’re told to do this by their attorneys or their consultants—is to insert the explanation in with the, “No, I disagree.” And the perception of that is one of defensiveness, is one of evasiveness. That’s the issue, that’s the juror issue, is the perception of it. If you just flip that around, here’s the accusatory question. And the witness goes, “Oh, no, I disagree.” And then the follow-up question, “Well, why do you disagree?” “Oh, happy to explain.” And then they do their—the very same explanation comes across far more credible.

The witness that goes, “Yeah, but, yeah, but, yeah, but, no because, no because, no because,” and they start getting defensive and evasive, their credibility suffers and it suffers mightily. Completely avoidable. So, I’ve got data on this. I’ve shared data with you on this both on this podcast, on LinkedIn, to prove this point. Nobody listens. Nobody listens.

But I think that’s something to think about going forward when you’re preparing your witnesses either for deposition or for trial testimony is what philosophy should we be taking? Are we going to play chess or are we going to play checkers? And I would argue that you really need to play chess because I do think it’s a chess game.

So, all right, I got a very, very long day ahead of me here in the Pacific Northwest. Weather is beautiful. Weather is beautiful. And having a lot of fun. Having a lot of fun. But I can’t wait to get back home. Being 3,000 miles away from home for a whole week is tough and the time change is killing me, but I’m going to hang in there. So, again, love you guys, love the audience. Love doing this podcast for you. Thank you for all the positive feedback.

And young attorneys, let me end with this. And I’ve said this before and I mean this. I get random emails and phone calls from podcast listeners and they’re generally younger attorneys that have questions and I love—there’s two people I love talking to. I love talking to older people because they have a wisdom that I do not have. I love talking to older people. They have a wisdom I do not have. But in second place comes I love talking to younger people, maybe 10 or 15 years younger than me, well any younger people but particularly attorneys especially that, you know, they want to grow, they want to get better, they want to be a great attorney. And when they reach out, I always reply, oftentimes set up a call, and they’ll bounce some things off me and I’ll give them my honest opinions and feedback. And that’s really fun.

So, anyone, anybody listening right now, feel free to reach out, shoot me an email. I get a lot of DMs on LinkedIn if you have questions. I am happy to set up a call with you and talk about life, talk about juries, talk about witnesses, talk about opening statements. That’s a big one. That’s a big one. Doing much, much more on that. All the new disruptive voir dire stuff. A lot of weaponry out there and a lot of new stuff. That’s really exciting. Really, really exciting stuff. So, all right everybody, have a great day and we’ll see you on the next edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. I’m out.