Nov 01, 2013 Let the courthouse walls disappear and the unblocked testimony begin
Repeatedly in my initial discussions with them, clients and witnesses recount the events leading to my client’s arrest not only with descriptive words but with conclusions, opinions, and the occasional (usually with younger witnesses, which seems to be a generational way of speaking) "so I was like, how could this be?". When that happens, I often ask my client or witness to just tell me what happened without editorializing, and to just tell me the events as if telling a blind or deaf person the play-by-play, as it happens. When that does not work well enough, I often ask my client or witness to first show me what happened without saying anything, with the word descriptions to follow. A picture is worth a thousand words, but for many people, wordless communication is a significant adjustment.
Memories play tricks on people, and setting the stage and getting into the moment of the incident can help not only jog memories, but to make the witness into a better and more accurate tourguide of the incident and journey that are the subject of his or her testimony. How to do that? A key can be to have the witness help to set the scene, by asking the witness — well before trial — to take the lawyer and any other trial workshop participants to the time and place of the event, describing, creating and choreographing the physical surroundings, including the size of the room or other area involved, the furniture, artwork, photos, trees or other surroundings; the weather; the smells; and the people around.
Just one smell can disarm us to re-live past memories, good or bad, in a very vivid way. As the witness takes the lawyer on the tour of the scene, let the witness describe all five senses, sight, sound, touch, taste and smell. Not only will this help the witness remember better, but it will also give the witness a more concrete and comfortable sense of time, place and space than merely facing abstract questions on the witness stand. Also, give the witness leeway as the tour guide during trial preparation, or else find an overly frozen witness with potential pearls that the lawyer does not enable to be revealed.
By the time the witness comes to court, after being prepared in-depth in the above-described fashion, hopefully the stark courtroom walls start disappearing for the witness, as the lawyer enables the witness to guide the jury in the moment through the incidents that are material to the trial. Let the courtroom walls disappear for the witness, jurors and lawyer in the same way that the AMC move ad’s walls disappear as the moviegoers become absorbed in each moment of the film. To keep the witness in the moment, the lawyer can ask such questions as "Where are we right now as you open the door" rather than speaking in the past about "Where were you once you got to the door?" Have the witness bring the jury along on the journey.
The present moment is a very powerful moment. Also, living in and focusing on the present moment is critical to grounding people and to making them more comfortable. Being in the moment, of course, is key to mindfulness and meditation, and wakeful meditation makes one not zoned out, but fully in the present, ready for anything, and focused rather than distracted. Therefore, having the witness transport not only the witness but also the jury to the moment in question helps everyone in the courtroom focus on and absorb that very moment in a way that is more riveting and, therefore, worthy of attention, than stark answers to stark questions that have little context. A key to persuasion is helping the listener absorb, process and remember information and ideas in a way that is favorable to the persuader. Clearly, bringing the lawyer’s witness and jurors to the present moment is a key part of that persuasion. Making the lawyer’s arguments, questioning, and witnesses’ testimony into part of interesting and compelling storytelling (see here, too, on storytelling) is also a key part f persuading the jury.
The lawyer, then, must also be grounded and in the moment — always human, dropping the legalese, and remembering what it is like to be human rather than a stereotypical humanoid attorney at law — and that will be helped if the lawyer engages in some kind of regular meditative or mindfulness behavior on a daily basis, even if that practice sometimes is limited merely to focusing on one’s breath as the lawyer walks to the elevator. We all are connected. A lawyer’s witness and the jury will feel more comfort and calm when the direct-examining lawyer is comfortable, calm and collected, but might feel completely ungrounded if the direct examining lawyer is a bundle of nerves.
How, then, does the witness stay grounded and comfortable with the cross-examining lawyer? When the direct examining lawyer has already fully prepared and direct-examined the witness in the above fashion, and when the witness is completely honest and is not engaging in gestalt/filling in the blanks, more of the seeming daggers thrown at the witness by the cross examining lawyer will appear as mere flies by the time they come the witness’s way. Also, the witness can focus on the power of zero. Stick with the facts, as my lawyer friend Anna Durbin marvelously details here. That is more easily said than done, but is persuasively powerful when applied nonetheless.
The lawyer ordinarily has much more experience with all litigation and courtroom matters than any of his or her witnesses. The concept of merely putting a lawyer’s client or witnesses on the witness stand without in-depth preparation, whether or not using the foregoing approach, is at the peril of the lawyer and his or her client.