At Courtroom Sciences, Inc. more than a dozen Ph.D.’s have
been studying witness performance in over 20,000 cases since the 1980’s. Together through a creative synthesis of
impressions and research-based analyses we have developed what we call the
Cognitive Map that jurors use to problem-solve cases. Over a period of almost forty years, the
Cognitive Map is still holding up, and doing so very well indeed.
It works like this:
Jurors start out a case with a primary, initial question: Who are these guys? We are not talking about the judge, or the
lawyers – we are talking about the litigants, the plaintiff(s) and
defendant(s). The question, Who are
these guys?, is not answered by determining the litigants’ reputations,
credentials, work or education histories, performance or accomplishments – it
is determined by a much more primitive and subjective assessment of character,
persona, and demeanor – that is, nonverbal behavior.
Jurors evaluate witnesses not with logical but rather
with psychological criteria such as likeability, trustworthiness,
attractiveness and integrity. While some
of these psychological assessments do utilize rationally-based evaluation standards
– for example, trustworthiness may, in part, be inferred by perceived levels of
consistency – they are, for the most part, determined instead by murky nonverbal
foundational elements including facial expressions, eye contact, mannerisms,
vocal intonation, and the like. In some
ways, the most useful way to think about it is that jurors sniff the witnesses
The second question in the Cognitive Map is: What are
their duties and responsibilities?
What is it that the litigants failed to do that they should have done?
Or What is it that they did that they should not have done? Watch almost any trial and it becomes
apparent that in cross-examination the interrogating attorney is attempting to
foist more and more duties and responsibilities onto the adverse witness. Duties and responsibilities are the liability
tripwires of the case.
The answers jurors generate in response to these first two
questions tilt the playing field for the entire trial. Very few, if any, of the judgments of subsequent
case issues, evidence, themes, and arguments escape coloration from these two
initial dispositions about the key players in the case. Once the answers become set in jurors’ minds,
they become entrenched as though guarded by a drawbridge on a medieval castle
-- once the drawbridge goes up, it is virtually impossible to get inside.
By now the alert reader will have ascertained that in
litigation, a race is set in motion to establish a strategical position in a
subjective, foggy battleground covering the hearts and minds of jurors, where
the key players are not the lawyers, but the litigants. (The term “litigation” is used instead of
“the courtroom” as these same witness dynamics can and do affect the outcome of
settlements, mediations and the like, often through deposition performance. In fact, the outcomes of pivotal depositions
can fluctuate in response to the same dynamics and profoundly alter the market
value of the case, especially when videotaped.). But rather than a “nervous hoping” that a witness
will perform as anticipated once he/she is released into the battleground,
there are far better options for tactical measures in your case.
As we have just stated, the very first assessments by jurors
regulating the perceptions of the case rest on nonverbal behavior, and while
attorneys have some basic understanding of these psychological forces, an
experienced psychologist is far better equipped to diagnose their effects,
ameliorate those which are harmful, and potentiate the ones that connect favorably
with the jury. As early as the 60’s and
70’s, psychologists have identified the magnitude of the impact regulated by
nonverbal behavior as comprising 70-90% of the effectively communicated
message. In other words, the adage “It’s
not what you say but how you say it” can often be an understatement in the
Lastly, a psychologist is in a better position to assess the
psychological make-up of a potential witness and fine-tune the training approach
into a procedure that is optimally formulated to have a lasting
beneficial influence. Witnesses may have
their own emotional baggage and may literally need some form of psychotherapy
themselves. Here it is vital to keep in
mind a fundamental aspect of jury psychology that implicates the witness when
there is visible distress: Jurors do not
say, for example, “Boy, if I were up there on the witness stand I would be
nervous too!” Instead they say, “He is
nervous – what is he hiding?” It’s
frustrating but true – jittery behavior inures to the detriment of the witness,
almost entirely regardless of extenuating circumstances.
The amount of reliable research linking perceived relaxation
in a communicator to inferences of authority, power, credibility, and even
likeability is sufficiently enormous as to relegate its status to the realm of
common sense. But how do you get your
witness to that point? Witnesses can
carry all sorts of emotional complications into the case, sometimes even in the
form of distrust of the legal team itself.
Think of the nurse accused of medical malpractice, the engineer accused
of stealing trade secrets, the heavy equipment operator who ran over a
co-worker – the dimensions of the emotional underpinnings in a case can be
staggering. There are often hidden land mines in a case that can make hiring a psychologist
advantageous to the entire trial team, not to mention the benefits
to the client’s case.