Dec 21, 2012 If you say poe-tay-toe and the jurors say poe-tah-toe, how to not call the whole thing off
You like potato and I like potahto, You like tomato and I like tomahto; Potato, potahto, tomato, tomahto! Let’s call the whole thing off!
Visit England, and you will hear people calling tomatoes "toe-mah-toes". Instead of the bathroom, you will visit the loo, and in some countries the W.C. (water closet) and in rustic America the outhouse.
On a visit to Biddeford, Maine, high school, two students quibbled over whether the first one asked to close "ah window" or "owah window". A Bostonian economics teacher one day kept on talking about some economist named Rick-Kaa-Doe, and it was not until I read the subsequently-assigned reading assignment that I learned he was talking about Ricardo. A speaker of English from overseas kept testifying about what sounded like "July twentieth" only for his lawyer ultimately to clarify that he was saying "July twenty-eighth", which was a critical difference for what was being contested at trial.
Then add to the mix the people who speak or hear English as speakers of second languages and the risk of the speaker of English as a first language mishearing the speaker of English as a second language, and the risks of the non-native English speaker mis-hearing the native English speaker.
Misperceptions in the courtroom of course are not limited to differences in accents, first and second languages, education levels, socioeconomic backgrounds, and regional speech. Recently when I was arguing an evidentiary issue before a very intelligent and caring judge in a theft-related bench trial, the judge made mention that the witness on the stand had testified that when my client (let us call him "Joe") went to make a purchase at his store, he provided the name George to the sales clerk, perhaps to hide his true identity. Praised be the prosecutor for joining with me in agreement when I told the judge that no such testimony had been presented.
In the foregoing scenario, the factfinder revealed his misperception of the evidence in time for the parties to correct his misperception. The times are probably legion that factfinders, whether judges or jurors, misperceive the evidence and do not share their misperception in advance with the parties, let alone when jury verdicts arise from matters that the opposing lawyers had never considered or had thought to have been minuscule.
How can a lawyer minimize being adversely affected by factfinder misperception of the evidence? Among the things that can be done are the following:
– The lawyer should fully prepare his or her witnesses to speak clearly and concisely, and preferably to look at the person asking the questions and to look at the factfinder(s) when answering. The lawyer must also communicate clearly and concisely through everything s/he says and through all the evidence he presents, including the choice of what not to say or present.
– The lawyer needs to closely and actively listen and pay attention to all testimony and evidence, and to speak up when significant misstatements are made from the witness stand and opposing counsel, and to speak up about exhibits with misstatements.
– The lawyer can help overcome misstatements from the opposing side by including theories and themes that boil down his or her side of the case to its essence, from where the lawyer’s persuasive presentation and story will unfold.
– Different people place more emphasis on ideas, visuals, and sounds in processing information. Consequently, one or more simple slogans should also be considered (for instance "The scene erupted in chaos, with it being hard to remember who said what and who did what"); even a handful of visuals to show the jury — including blown-up or on-screen images (a picture is worth a thousand words) of incident scenes and PowerPoint slides — should be considered; and an onslaught of names, places, dates and evidence can be made more convenient to process by the factfinders by the lawyer’s focusing them on the most important evidence, and the meaning of that evidence throughout all stages of the trial.
Much of the above discussion is about being in the moment at all times, being fearless to speak up in advocating for one’s client, and doing one’s best to see matters from the perspective of the judges and jurors and to answer the questions that they likely have and to provide them the information that they likely wish to know.