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What Makes an Expert?

Selecting experts for trial has always been a challenging task. The list of considerations—solid credentials, the ability to provide clear explanations and form strong connections with jurors, prior history of testifying, financial biases—is extensive. But once selected, their role as an expert was clear: to educate jurors about complicated subject matter and to convince jurors that they can adopt his/her opinions in the case, because the expert knows best.

Until recently, that approach worked. Experts were regarded as such and jurors would evaluate the experts and decide whom they believed. In post-trial interviews, jurors would explain why they preferred one expert over another, but few jurors, in our experience, would blithely dismiss an expert as lacking expertise. Because of this, you could find the most credible, likable, and persuasive expert possible and trust them to carry a great deal of your case.

Unfortunately, jurors’ notions on experts appear to be changing. Although the U.S. has a history of anti-intellectualism, that has previously meant that laypersons were suspicious of intellectuals, including scientists, but didn’t doubt that these experts were indeed experts. Over the past several years, however, we’ve noticed a trend for laypersons to treat experts as just another layperson with an opinion.

For example, in our research on vaccines, one layperson stated that the issue was complex, then commented: I’m not a scientist. I’m going to bet that most of you are not, either. I just prefer to procede [sic] on the side of caution and not blindly agree with the CDC, federal government, and medical industry. That is, she’s not a scientist, and she’s not going to agree with the scientists.

While this attitude is easy to recognize in issues such as vaccines or climate change, we have not found one science/medical area where laypersons don’t question or doubt the expertise of the experts. Sociologists believe this change probably has to do with the evolution of how society views and discusses science and technology. In addition to recent questions about the objectivity and “purity” of science, the ability to instantly access information on any topic allows laypersons to minimize the importance of another’s expertise and to push back against such expertise based on minimal information or education.

Because jurors’ evaluation and acceptance of experts is changing—our research indicates that jurors are less impressed by credentials than they were in the past and value other experiential factors instead—it is critical that you understand what criteria jurors are using currently to evaluate experts. Such up-to-date research is imperative both in choosing an expert for trial and in deciding how much of your case to entrust to them.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

 

Examining Brain Models Used in Trial

Given our line of work, we find that people frequently reference brain models in conversation with us. Having heard about right/left brain thinking, some attorneys want to choose predominately left- (or predominately right-) brained jurors. Or they want to ensure that their presentations appeal to the appropriate side of the brain. Others, responding to fears concerning the Reptile Brain approach, are looking for ways to draw jurors back into conscious and deliberate decision-making.  But is this focus well-placed? Do these brain models accurately describe how jurors make decisions?

The right/left brain theory relies on the understanding that the different sides of the brain control different functions (logical/mathematical vs. creative/emotional). The Reptile Brain approach claims to be using cues about safety and harm to trigger primal, instinctive decision-making. In truth, brain science has evolved from the left brain/right brain theory. And unless jurors are put into actual and immediate physical danger, they are not accessing their primal instincts or their “reptile brain” when making decisions – no matter how many safety cues they are given. So while fully adopting either of these approaches will cause you to miss the mark, the use of such strategies does raise legitimate concerns that must be considered and addressed.

Both of these approaches are actually designed to exploit the role of emotion in decision-making. What has typically been called a right-brained approach is really an emotional approach – one that tugs at the heartstrings of jurors and appeals to their sympathy. The Reptile Brain approach also appeals to emotions, but rather than relying on sympathy, it strives to evoke the stronger and more reactionary emotions of fear and anger. Although the theory may be scientifically incorrect – even baseless – an approach that evokes strong sympathy for the plaintiff, or even worse, fear of or anger at the defendant is likely to be effective.

So how should these approaches be countered?

-Recognize the fallacy in what they are claiming to do. They are not engaging a side of the mind that your presentation cannot reach, nor are they creating a path for jurors to make decisions on a primal, subconscious level. They are simply inciting inflammatory emotions. And inflammatory emotions can be quelled.

-Attack the veracity of their claims. Such emotion-evoking strategies tend to rely on hyperbole and exaggeration that when exposed, annoys jurors.

-Build your own persuasive and competing narrative rather than simply trying to shoot holes in their narrative.

-Illuminate their strategy. Such strategies are designed to blatantly manipulate the emotions of jurors and manipulation is much less effective if the subjects of that manipulation are alerted to it.

While these brain models appear as frequent topics of discussion at legal conferences, they are not accepted as current or legitimate in brain science or psychology. But those who utilize these strategies are skilled at tapping into strong emotions in a way that can be compelling. For this reason, we would recommend ignoring the questionable theory behind the strategy and focusing on what makes the strategy work. Once you understand that the sole strength of these strategies lies in on evoking and manipulating emotions, you can learn to counter them effectively.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

 

Are Your Denials Believable?

When someone says something false or misleading about us—You’re against broccoli—we’re very likely to deny it—No, I’m not! In court, where more than broccoli-hating is involved, attorneys are especially likely to respond with a strong denial, because there is a lot on the line and they don’t want the jury to conclude something is true, because “They never even denied it!” It’s human nature, it’s reasonable, and it’s good trial practice to deny falsehoods. But what makes a denial believable?

Research demonstrates that denials alone are not persuasive. So in trial—where denials are commonplace and persuasion is the primary goal—what gives a denial more traction? Replacing the falsehood with a truth—and specifically, a truth that bears some relation to the original statement. Such truth replacements provide counter-information for the listener to hold on to and provide a competing statement, rather than a conflicting one.

An example from the 2008 campaign trail is the allegation, Obama is a Muslim. While Obama is not a Muslim was an oft-repeated refrain, it was a less effective denial than Actually, Obama is a Christian. Because trials involve an intricate and complicated set of facts and occur in a context where the claims you make are regulated, finding a truthful replacement won’t always be as easy and crisp as saying, Actually, Obama is a Christian. But shifting from a straight denial strategy to a deny-and-replace strategy will allow you to debunk the opposing claims while promoting your themes instead of merely repeating theirs in the negative.

Finding the right denial requires you to retrain your thinking about trial preparation and to examine documents and depositions with this focus in mind. It also requires an additional investment of time and resources to test and discover the most believable alternative statements for each falsehood. For each falsehood you identify, you will need to develop a truth statement that is: 1) consistent with the evidence and 2) resonates with the listener. If your client is being accused of “being greedy,” the truth statement will need to be a concise counter-statement that reflects the facts of the case: Actually, that design was less profitable than other designs, but was developed in response to consumer requests.

Although this denial method is more difficult to employ than the traditional “did too/did not” method, the payoff—presenting the most persuasive case to the jury—is also much greater. In every trial, you will face inaccurate information about your client that you wish to deny and correct, so it is imperative that when you deny something, the jury believes you.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

 

What’s Your Story?

Trial consultants often emphasize the importance of a clear and persuasive narrative. Stories have long been told as a way to explain why things happened as they did (Homer’s Iliad, e.g.) and psychologists have long understood the role stories play in processing and understanding events. Trial lawyers frequently study the science of storytelling and typically recognize and embrace the value of strong narratives. Plaintiff attorneys, in particular, have honed their storytelling skills and become experts at fleshing out stories with villains, victims, motivations, and plot twists. But how narratives should be used by the defense has always been less clear.

Does the defense need to have a competing story? Previous research has been split on this issue. While some researchers have advocated for a competing story, others have suggested that the defense needn’t offer a competing story to prevail—it just had to shoot holes in the plaintiff’s story. This latter view is consistent with the way that logical and legal argumentation work—when Person A argues for X, and Person B simply has to prove that X is not correct. And likely due to its logical appeal, this is the approach most often adopted by defense attorneys at trial. However, because juror decision-making is not as clean or linear as a point-by-point tally, we would encourage attorneys to focus on a competing story approach instead.

A recent study of scientists using narratives in their research articles confirms the power of stories. Scientists are accustomed to the standards of objectivity and rationality, able to focus on the facts alone to construct their own causal relations. But this study demonstrated that scientists who used narrative elements in their articles were much more likely to be cited by other scientists. In the academic community, citation is a reflection of influence and acceptance—and even accounting for other factors known to influence citation, stories facilitated the uptake of information and influence.

Of particular interest to us was the description of the problem scientists faced as they wrote up research: the volume of scholarly publications is increasing at a tremendous rate, sometimes doubling within 5-6 years. This makes it difficult for the reader to make sense of so much information and for the writer to be heard amongst so many voices. Similarly, jurors are expected to organize and make sense of a huge volume of information and attorneys are working diligently to be heard in the midst of competing information. This research demonstrates the superiority of narrative presentations over expository presentations in such circumstances.

So rather than trying to pick apart the plaintiff’s story, we suggest that you have your own story—and not simply bullet point themes, but a well-considered narrative that explains the parties, the series of events leading to the lawsuit, and the motivations of all involved. Such narratives not only provide context and meaning for the evidence, but they increase juror recall and provide reasons for a juror to hold firm in deliberation. Jurors, like all of us, process information in the form of a narrative, and therefore, will describe the case to others as if it’s a story. When deliberations begin, be certain that you’ve given them a powerful and memorable story to tell.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

 

Keys to an Effective Voir Dire

As law students learn from their textbooks, “voir dire” comes from Old French and means “to speak the truth.” And as they learn from courses and colleagues, the point of voir dire is to find out if prospective jurors harbor a fixed bias against one’s client. Those notions are incredibly consistent with what we, as trial consultants, are trying to achieve. However, once in practice, attorneys are often taught that jury selection is a great time to begin “priming” jurors to their case. And fears about “poisoning the panel” creep in and make attorneys hesitant to actually allow jurors to speak the truth. Both of these practices—while common—tend to inhibit the usefulness of voir dire.

In our ideal jury selection, 1) attorneys focus less on argument and more on listening to the jurors and 2) jurors are encouraged to speak freely even—in fact, especially—if their opinions are counter to our case. To the first point, we understand the fear of waiting to argue your case—and agree that there is some vital information you should impart during voir dire. But the primary voir dire goal should always be collecting information rather than providing it. When faced with presenting potential jurors with the best parts of your case or getting reactions to the worst parts, the latter is much more valuable.

It is a difficult mental shift to incorporate a few case themes into voir dire questions while leaving the remaining arguments for openings. And it is even more difficult, we grant, to be comfortable with encouraging jurors to speak freely. Almost instinctively, attorneys want to stop—and correct—jurors who express negative opinions about their client or case. In fact, voir dire questions are often designed to force an agreement: “Don’t you think that…?” Or, when a juror begins to express a contrary opinion, they are interrupted and corrected: “But wouldn’t you agree that…?”

Some negative opinions do need to be handled privately, such as extreme, case-specific opinions (“My mom took that drug and has never been the same”). But it is vitally important to allow—and even encourage—jurors to express general, negative opinions about your case or client (“I don’t think drug companies care about people; I think they hide the dangers of drugs”). By expressing those opinions, jurors are not only identifying themselves as receptive to your opponent, but they are providing the opportunity to identify other jurors who share their views, but who would not have spoken up on their own (“Mrs. X believes that drug companies don’t care about safety—only money. Are there others who feel that way?”).

We recognize that allowing such public expressions of negative opinions about your case can be frightening. In fact, many attorneys have been taught that doing so is tantamount to endorsing the opposing themes or allowing jurors to “contaminate the panel.” But jurors’ opinions and belief systems are built on a lifetime of experiences and are therefore, deeply entrenched. They are extremely unlikely to be influenced or swayed by comments from other jurors during voir dire—or by a few weeks of argument during trial. This mental rigidity makes it imperative that opposing jurors feel comfortable enough during voir dire to identify themselves, so they can be removed.

There’s an oft-repeated adage that trials are won in jury selection. Although we believe that it takes a lot more than a great jury selection to be successful at trial, trials can definitely be lost during jury selection. Voir dire provides your one chance to listen to jurors before the verdict. And if they have negative opinions or beliefs about your client, it’s much better to hear those opinions during jury selection than when the verdict is read.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

Fighting The Battle in Front of You

Anyone with extensive trial experience understands the value of calling on that experience when entering into a new litigation or trying a new case. Good attorneys see patterns and commonalities across cases and recognize the benefits those patterns provide. Seeing patterns allows an attorney to quickly assess a new case, to figure out a good place to start researching, and to identify issues that are likely to be problematic. Because such experience eliminates the need to reinvent the wheel for each case that comes along, it’s not surprising that both attorneys and trial consultants often draw comparisons between the current litigation and past litigations. And while those comparisons are largely beneficial, they also contain pitfalls.

Unfortunately, such extensive experience can cause you to close your mind too early on a case. By assuming that this case will fit into the same pattern as previous, similar cases, you can miss vital differences—some of which can completely change the trajectory of the case. Overlooking those differences—the unique challenges present in this case—can leave you blindsided by how differently jurors react to it than they have to cases you have tried before. But how can attorneys and trial consultants keep their minds open? How can you manage to look at a case with fresh eyes when you can’t un-know what you know?

A method that we find useful is contemplating this story: A fire chief with decades of experience tells an interviewer: “The next fire I walk into, I won’t know anything.” Surprised, the interviewer pointed out his position as fire chief and his decades of experience. But the chief explains: “When I arrive on scene with that mind-set, I glean more new, specific information from others. By affirming uncertainty, I get more people to own what they see and to communicate it. Because while we have all seen a lot of fires, none of us has ever seen this fire.”

Adopting the mantra, “I’ve never seen this fire before” reminds us that each case—with all of it nuances and concrete details—strikes jurors differently. Cases may have commonalities but nonetheless, the themes and arguments that worked in the past will not necessarily work here. The jurors who responded so favorably to you before may not be the jurors you want now. Different hot button issues will be present and different emotions will be evoked. Being mindful of those things allows us to balance our previous experiences and successes with discovering what makes this case different. And those differences must be investigated in order to find the optimal strategy for this litigation.

So while it’s wise to remember the lessons you’ve learned from the past, it’s also important to remember that each new case/litigation is its own fire—with its own flashpoints, its own patterns, and its own dangers. And the best way to be successful in this case, is to make sure you aren’t still trying the last case.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

Know Your Opponent’s Strengths

During trial preparation, it is easy, and tempting, to hone in on the weaknesses in your opponent’s case and discount their strengths. Easy, because the weaknesses often highlight themselves and tempting, because developing arguments to expose such weaknesses comes quickly to experienced trial lawyers. While we would absolutely encourage you to capitalize on those weaknesses, we would also recommend 1) garnering feedback from multiple perspectives to develop a detailed understanding of the opposing cases’ strengths and 2) focusing the majority of your trial preparation on analyzing and responding to those strengths.

In spite of the intense satisfaction that comes with unequivocally proving an adversary wrong, dismantling their weak arguments may not be enough to discredit their strong arguments. Oftentimes, cases are assessed using a formulaic approach—which tends to conceive of trials as a set of building blocks that will collapse if you knock out some of the blocks. Unfortunately, juror decision-making isn’t that regimented or linear. Instead, we would recommend an approach similar to that of a football team scouting out their rival or a boxer preparing for a specific opponent. In both cases, exploiting their opponents’ weaknesses is only a part of the plan. They recognize that the key to victory is appreciating and preparing for their opponent’s strengths.

Because our belief systems and perspectives seem so right to us, it can make it difficult to appreciate that a rational person, upon hearing our explanation of the facts, could draw a different conclusion. And since we tend to surround ourselves with people who share our perspectives, it is not unusual for us to work with trial teams where almost every member shares a specific view on the case. In those circumstances, it is extremely common for different perspectives—whether that’s from a trial consultant, other members of trial team, or mock jurors—to be dismissed or attributed to a lack of a full understanding of the facts.

We would encourage you to intentionally resist that type of “groupthink.” Much in the same way that football teams have practice squads that mimic the strengths of the opposing team and boxers enlist sparring partners who are strong in the same areas as their opponent, we would suggest surrounding yourself with people who have different—and conflicting—perspectives as you prepare for trial. While this structure does force you to confront the hard truths associated with your case, it allows you to hear them from a team member prior to trial, rather than from a juror after the trial.

One of the most valuable things you can do during trial preparation is to create an environment where an appreciation for the opposing arguments is welcomed and encouraged—not dismissed or frowned upon. So seek out trial consultants who will point out strong aspects of the opposing case. Encourage that type of thinking in your trial team. And be receptive to it when you hear it from mock jurors. They aren’t simply playing devil’s advocate, not being a team player, or misunderstanding the facts. They’re giving you a scouting report—and in turn, you’ll be prepared for whatever is coming.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict d

What were those jurors thinking? Ask them.

Are there jurors you believe are always risky picks? Is there a strategy you used before, but now avoid? Attorneys often tell us about a type of juror they’ve been burned by or a strategy they used that jurors hated, but in most cases, those conclusions are based on the results of the trial—and on their feelings of uncertainty surrounding that juror or strategy. Rather than guessing about what went wrong or assuming you know which jurors were for/against you, we would recommend going straight to the source—the jurors. Although some judges balk at juror interviews, we would argue that their value makes it an issue that is well worth raising.

Making assumptions about jurors, strategies, and witnesses happens naturally and understandably. When you are trying a case, you view every aspect of that case—the jurors you want, how the case should be presented, how the evidence comes in—through the prism of your life and trial experiences. And when a verdict is reached, it is impossible to remove the filter borne of those experiences, including any doubts and uncertainties, when trying to decipher the verdict. So it’s easy to attribute a loss to that witness you were unsure about or a win to that juror you loved. But those attributions—while deeply held—may be completely inaccurate.

Unfortunately, such inaccurate attributions don’t simply color how you view cases in the past. They become integrated into your “trial filter” and begin to inform future trial decisions. As you try more cases, your speculative post-trial analyses start to have a cumulative effect: there is an ever-growing list of jurors you don’t trust, strategies you reject, and arguments you avoid. But there is no assurance that your trial choices are based on accurate information. Should all elementary school teachers really be avoided? Or was there something about that teacher’s life experience that made her resistant to your arguments? Did jurors really hate that witness you were so unsure about? Or did the case turn on a piece of evidence that you thought was insignificant?

Post-Trial Interviews answer those questions. They allow us to draw accurate conclusions about what went right/wrong and make sound adjustments to our strategy. And we have never done Post-Trial Interviews where we did not learn something unexpected and valuable. They provide insight into (1) what actually influenced the jury’s verdict, (2) how many/which jurors were receptive to your arguments, and (3) the tenor and dynamics of the deliberations. This is obviously helpful information if the trial team lost, but even with a win, you may find out that jurors responded to evidence you discounted and ignored evidence you were sure would sway them.

Post-Trial Interviews often inform your future trial techniques in more global ways as well. It is not uncommon to find out information about jurors that you would have loved to know during jury selection—which can lead to changes in how you phrase, order, and ask voir dire questions. And regularly, attorneys are surprised and irritated to learn that jurors seem to have no recollection or an improper recollection of the jury instructions that they were hanging their case on. Such juror revelations can lead to a better understanding of how jurors analyze and process information and what legal arguments they do/do not find meaningful.

It is natural to want to avoid things that have not worked for you in the past. But that inclination is only helpful if you are avoiding those things based on accurate information. So talk to that elementary school teacher before you decide that you find teachers risky as jurors. She may have been terrible for you…or she may have been the one person who kept damages in check.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

Be willing to lose the mock to win the trial.

Mock trials are often a key part of preparation for trial. Although mocks can never exactly replicate a trial, they do provide valuable information about themes, arguments, and key pieces of evidence and witness testimony. The goal of any mock trial should be to learn as much as possible – both about your case and about the opposing case. And the stronger the opposingcase presentation, the more you will learn.

Carpenter Trial Consulting: Expert Consultants, Expert Advice

Carpenter Trial Consulting: Expert Consultants, Expert Advice

But we’ve found that trial attorneys, accustomed to a “if you win, I lose” context, are better able to embrace this concept in theory than in practice. Over time, they become invested in their position and their arguments. And knowing their client is going to be watching and judging their performance produces, understandably, a desire to win. We’ve seen that desire manifest itself in many ways, both subtle and obvious.

Whether it’s assigning the opposing case to more junior, inexperienced attorneys, stacking the deck by excluding inflammatory evidence, or presenting evidence or arguments that would not be allowed at trial (or in some cases, aren’t even true), shifting the balance of the mock in their favor may boost an attorney’s confidence and performance in the mock trial, but it will reduce the amount of valuable information gleaned from participants. Even more concerning, it can give the client false expectations about the hurdles awaiting them at trial.

Ideally, the mock trial is approached like an experiment where we test the worst-case scenario, give the other side the strongest, best-case representation, and see how jurors evaluate the case. And the results will be gleaned not just from how jurors vote, but from what they say: What arguments did they adopt/reject? What arguments did they generate on their own? What arguments stirred emotions? Which points did jurors really dig in on? What were they confused by? This information is what guides changes to themes and strategies, and ultimately, influences trial outcomes.

When approached correctly, mock trials can add enormous value. But realizing that value requires the following:

-Attorneys must be able to adopt an experimental, not a performative, mindset. They have to be willing to face losing the mock.

-Attorneys must trust the trial consultant designing and assisting with the mock trial to educate and remind the client that a trial team that loses a balanced mock is providing more value than a trial team that stacks the deck and wins the mock.

In short, learning to fail in a mock always beats failing to learn in a mock.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

 

Let your witnesses guide your themes…not vice versa.

As trial teams prepare for court, theme development is usually an early focus while witness preparation comes much later. And while attorneys typically approach these tasks separately, witnesses are expected to support the developed themes at trial. But often witnesses aren’t comfortable with the themes, and don’t believe the themes tell their story. Indeed, it’s not uncommon for us to spend many hours in strategy meetings with attorneys regarding case themes, only to find out when we begin meeting with the witnesses that their stories are inconsistent with the themes the trial attorneys have already constructed.

Preparing for trial in that order—first themes, then witnesses—creates a witness/theme dynamic that can play out in one of three ways at trial, only one of them optimal:

-In really rare cases, the witnesses are completely attuned to the themes that have already been prepared and can wholeheartedly support them.

-In rare cases, the themes are presented as the attorney desires and the testimony as the witness desires. This uncoordinated approach confuses jurors and is not likely to be successful.

-More often, the attorney emphasizes his/her themes and only questions the witnesses about the portion of the story that is consistent with those themes. The witnesses are absolutely testifying truthfully—and have never been asked not to—but their discomfort with not being able to tell their full story shows. Because they feel boxed in to an incomplete story, they come across as less credible than they otherwise would, and are not as effective as they could be.

Our solution to this friction: Meet with your witnesses first and let the witnesses guide the themes.

In our experience, even good witnesses will not be effective if 1) they don’t feel heard by the company and the trial team, and 2) if they don’t feel completely comfortable with the themes they are endorsing. If your witness is expected to carry the case, the themes have to make sense to them and be consistent with their story. If they aren’t comfortable with the themes, then the witness won’t present well, even if they have the potential to be a great witness.

So, talk to your witnesses. Let them tell their story. And when you have a full understanding of what their story is, let your themes naturally develop from that. We acknowledge that preparing a case in this order requires more effort than the traditional way, but the result will be a higher level of comfort for the witness when testifying and an overall stronger case. Because a comfortable witness is a persuasive witness.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

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