“Complainant received immediate lacerations of the credibility.”—Jimmy Breslin
Whether in negotiations or litigation, credibility is one of the most important tools a lawyer has to work with. More important than the truth or the actual facts of the case is the manner in which the lawyer presents the client’s side of the story to the judge, the jury, the arbitrator, the mediator, the other side, and the public.
The credibility of the lawyer is something that each individual lawyer has to cultivate every day. It flows from the lawyer’s reputation among other lawyers in the community and the public at large. The never-ending list of lawyer jokes attest to the fact that attorneys as a profession suffer from a credibility deficit to begin with. Lawyers are stereotyped as arrogant, nasty, dishonest liars willing to eat their own to gain an advantage. The lawyer who exacerbates the problem by playing to type serves not only to strengthen the stereotype but also decreases the lawyer’s individual effectiveness as an advocate by eroding his or her credibility. The lawyer will be regarded by colleagues and the court as untrustworthy and undeserving of referrals or the benefit of any doubt.
Many lawyers advocate with the “shotgun” approach, advancing every possible argument on behalf of the clients without regard for the actual facts, existing law to the contrary, or the likelihood of success. The theory is that the other side will quail in the face of vigorous opposition. Although the strategy is occasionally effective, more often than not a patient and well-informed opponent will take the time to pick apart the individual points and demonstrate the fallacies. The obvious result is that resolution of the dispute takes substantially longer and costs more. The less obvious result is that the opposite side will consciously or unconsciously evaluate the credibility of the attorney who wastes valuable time with frivolous arguments and remember that assessment in the future. In trial, a judge or a jury will likely do the same.
There are thousands of sources and references extolling the virtues of being honest, forthright, and trustworthy in one’s dealings with others. It should be unnecessary to have to say so again, but the regard people have for lawyers suggests that the message is not always getting through. There is a record of everything a lawyer does. Everything a lawyer says, every letter he or she writes, every pleading he or she signs will permanently reflect on his or her professionalism, competence, and credibility. When a lawyer promises to do something—or even leads another to believe he or she is promising—and then does not follow through, the affected party will trust that lawyer less. It can take years to develop a good reputation in the legal community; it can be lost with one temper tantrum.
Equally important, but often overlooked, is the credibility of clients and witnesses. It goes without saying that there is no case without the client. Lawyers frequently do not address how credible the client appears to others. The client’s cause may be just, but the client’s attitude or method of expressing himself or herself may be lacking.
Remember: One of the lawyer’s functions during trial is to control the flow of information to the trier of fact. The lawyer introduces the facts through the testimony of the witnesses. The lawyer wants the judge or the jury to consider the facts in the light most favorable to the client. This is generally easier if the trier of fact understands, sympathizes, and trusts the testifying party.
In preparing for trial, it is critical to evaluate potential witnesses’ credibility. This does not have as much to do with the facts they will relate as the manner in which they will relate them. Obviously, the ability of the witness to communicate clearly is important. But recognizing the impression the witness makes on the audience is equally so.
Every witness will be unique. However, certain common traits can be categorized into the following incomplete list:
The Wiseguy. There are people so convinced they are the most intelligent in the room that they cannot help but attempt to prove it. Such witnesses generally make the impression of being arrogant and condescending. This does not help the witness’s credibility and generally annoys the listener.
When preparing for the testimony of a Wiseguy, consider what he or she is testifying about. The Wiseguy may not be used to being challenged and may be made to look foolish if one pokes holes in that veneer of self-assuredness. I observed once that opposing party’s expert witness would not refer to dates without referencing “his” Julian calendar. At trial, the following interchange took place:
Counsel: When did you first observe the defect?
Witness: That was on March 3 according to my Julian calendar.
Counsel: You have referenced the Julian calendar. We’ve been using the Gregorian calendar since the 1700s. Can you tell me what date you observed the defect using the calendar the rest of the world uses?
Witness: I’m not sure.
Counsel: So you’re not sure when you observed the defect?
The answer to the question was no longer relevant (and I wasn’t listening, so I don’t know what he said). The witness lost credibility by representing he knew something he did not—in this case, the meaning of the words he used. The value of his testimony was substantially diminished.
The Nervous Ned/Nellie. These are witnesses who are so uncomfortable with giving testimony, their discomfort becomes more interesting than anything they have to say. They won’t make eye contact with the lawyer, the judge or the jury. They stammer, mumble, or whisper their testimony. They shift and fidget in their seats. The extremely nervous witness
discredits his or her own testimony.
If you’re preparing a Nervous Ned to give testimony, the keys are familiarity and repetition. Practice direct testimony several times. Go over the points that opposing counsel is likely to cover during cross-examination. Stress the importance of speaking clearly and to the trier of fact. The witness may still have stage fright, but at least he or she will be intelligible and trustworthy. Witnesses who are confident in the message they are trying to get across will be more effective.
The Chatterbox. Some people don’t know when to stop talking. Sometimes this results in other people not listening and sometimes it results in saying more than intended. There are times in court when the witness loses control of his or her mouth and ends up saying something monumentally damaging while the lawyer is suppressing the desire to yell “Nooooooooo!”
There are two types of Chatterbox. The first is the Chatterbox who is nervous and keeps talking; he or she can kill a case by saying too much or by irritating the members of the jury to the point the testimony cannot be discerned from the buzzing of a fly. If the Chatterbox loses it during cross-examination, it can be deadly. The best preparation is to stress to the witness the importance of keeping answers to questions as succinct as possible. As I have explained to my clients on several occasions: “If you have to take a breath during your answer, you have spoken for too long. You are voluntarily giving away information that cannot help your case. I cannot signal you or stop you from talking. The best I can do is attempt to rehabilitate you as witness later.”
The second type of Chatterbox believes that testimony will be more credible if he or she uses as many words as possible.
Counsel: Can you tell me what color the light was?
Witness: Indeed I can most assuredly do so. On the day the events took place, the electric traffic signal apparatus was working properly and displaying its topmost crimson beacon in a clear, bright, and unambiguous manner.
This sort of answer does not help the witness’s credibility. The trier of fact who actually listens to and understands all of the response is not impressed with the verbosity of the witness and wonders why the lawyer cannot get a simple answer out of the witness.
Sometimes all one can do to counter the effects of the Chatterbox is to resort to leading:
Counsel: So, the light was red?
Opposing Counsel: Objection! Leading.
Counsel: Sorry, Your Honor, I was only attempting to make sure that I understood the witness’s answer that the light was red.
Court: Don’t testify for the witness, Counsel. We all heard the answer.
Hopefully the witness will have gotten the message and pare down the length of subsequent answers. It can result in an unsatisfying day if the witness persists in taking as long as possible to answer the shortest questions.
The Angry Guy/Gal. Witnesses who make it clear they don’t want to be there, or who are generally nasty, condescending, or just plain rude, make for interesting and occasionally lively verbal sparring during examinations, but they do little to help their case. When a witness loses his or her cool, he or she becomes a spectacle and not a reliable source of information. It no longer matters much what the witness is talking about and can make the trier of fact forget what the witness previously testified about. This is used to great advantage by trial attorneys to discredit the testimony of an otherwise excellent witness.
The Scuzzball. There are some people who have the ability to generate an aura of untrustworthiness. Whether because of their attitude, manner of speaking, or the nature of their testimony, they have the credibility of a snake oil salesman. Whenever possible, avoid using such witnesses. Sometimes using them is unavoidable, in which case it is best to artfully phrase questions so that you limit the Scuzzball’s testimony to answers that involve the single words “yes” and “no.”
Unlike marines, credible lawyers are made, not born. Credibility is something lawyers have to work on every day of their careers. Good lawyers take this seriously. As for witnesses and clients, they can be made to appear consistently credible with proper nurturing and attention from well-prepared lawyers. Recognizing the importance of credibility and addressing it is essential for all lawyers’ practices.