In a trial, the credibility of your witnesses can make or break a case. As a lawyer, you might win all the legal arguments and pre-trial motions, but if your witnesses do not stand up to cross-examination, you may end up being disappointed with the ultimate result. When preparing your witness to testify, it is helpful to keep in mind the relevant jury instructions that will apply to evaluating the credibility of the witnesses, including the following.
- How well did the witness see, hear, or otherwise sense what the witness described in court? How well did the witness remember and describe what happened? Explain to your witnesses that it is important for them to be prepared, and make sure they can provide their best detailed account of the facts at issue. They need to be able to explain what they know and how they know it. Even if they cannot remember perfectly, they should be confident in explaining what they can remember and be direct and honest about it.
- How did the witness look, act, and speak while testifying? The jury will take great notice of the appearance of your witnesses and read their body language. Jurors will notice if the witnesses are confident about what they are saying. Conversely, jurors will notice if witnesses are nervous and seem jumpy. The jury will notice how witnesses are dressed. They will notice if your witnesses make eye contact and give clear and direct answers or whether they appear to be avoiding the question. Make sure your witnesses remember they are being watched at all times and need to be aware of how they are presenting themselves.
- Sometimes a witness may say something that is not consistent with something else the witness said. People often forget things or make mistakes in what they remember. You may consider these differences but do not decide that testimony is untrue just because it differs from other testimony. People are not computers. They do not always remember things perfectly. Two people experience and describe the same event differently. If you are faced with this circumstance, prepare your witnesses to explain why they have a different version of events or why they may not remember something with complete accuracy. The last thing you want is for your witnesses to come across as dissembling because they are trying to over-compensate for having an imperfect memory. Jurors can be forgiving of human imperfection but may not be so forgiving if they perceive a lack of transparency.
- What was the witness’s attitude toward this case or about giving testimony? If your witness seems engaged and ready to tell his or her story to the jurors, that is good. If your witness has a dismissive attitude or seems inconvenienced about having to be in court, that is not good. The jury is taking their time to be there and study the case; your witnesses should respect that and have a positive attitude about participating. Relatedly, if your witness is a party to the case, the jury is likely to notice if he or she is engaged in the matter in court as oppose to being missing in action.
When you are preparing your case, remember that most jurors have limited experience with lawsuits and will rely heavily on the court’s instructions, including on how to evaluate the witnesses. The same jury instructions also are commonly relied on by judges in bench trials. Do your best to prepare your witnesses so that when these instructions are applied a jury will view your witnesses as credible and in a favorable light, which will maximize your chances for a successful trial result.
Copyright © 2022, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).