By Dr. Ken Broda-Bahm:
During a recent mock trial, there was one juror seated in the front, gamely struggling to keep her attention on the case. Before too long, however, we saw drooping eyelids, followed by some pretty loud snoring. Admittedly, counsel was needing to get through some technical information on a complex case, but this particular juror lost her battle only about an hour into the day. Thankfully, she was nudged back to consciousness by a friendly elbow from a fellow juror. But this is a somewhat common problem in real cases as well. Generally, I believe we tend to underestimate just how hard it can be to attend to just one thing for an extended period of time. Technologically, we are now attuned to multi-tasking, and, when all else fails, to respond to boredom by grabbing our phone. We are used to looking something up ourselves rather than simply listening. Even for those who are not asleep, the mind still wanders, and looking into the jury box, you may wonder how many are making shopping lists in their heads or simply letting the words flow past without trying to grasp their meaning or importance.
The struggle to stay attentive applies to all phases of trial but it can be more acute during testimony, which often lacks the narrative and the punch of an opening statement. It can certainly drag, particularly when the examining attorney is in the mindset of just checking off a list of things that need to be established through testimony, and not more accurately treating it as a moment-to-moment battle to gain and hold the jury’s attention and comprehension. There are, however, a few techniques that attorneys can employ to wake the jurors up and reengage them with the testimony. In this post, I’ll share nine quick ideas for raising the attention level during a witness examination.
1. Repeat and Connect
It is a small thing, but it is a technique that can really make a difference if you use it often. I will sometimes call it a “loop back,” because it involves the step of returning to a point just made in order to ensure that the jurors got it: Let me just circle back on what you just said….
2. Trace the Path to the Goal
Don’t take for granted that jurors understand the importance of the testimony. For every nugget that you are able to get from a witness, the point is that this gets you to another reason why you win. So instead of assuming jurors understand the impact, lay out the steps between that conclusion and the ultimate decision. Walk the witness through the steps explicitly so the last step is something close to, “And that’s why we win.”
3. Tell a Story
While the law might tell you that the essential testimony boils down to a list of elements, from a human perspective, what the witness is offering is a version of what happened. The narrative mode will generally be easier for jurors to attend to and follow. To set that up, ask something like, “Could you take a few moments and walk us through how you got to that point?”
4. Use a Picture
It is hard to attend to words alone for very long, and our research shows that jurors find a presentation to be more engaging and more comprehensible if you are using both the verbal and the visual channels. While many expert witnesses will use charts or diagrams to illustrate their testimony, it is worth remembering that any witness can potentially use a demonstrative to illustrate something complex or to just break things up.
5. Give the Witness the Screen and a Clicker
It is commonplace to accompany openings and closings with slides, but the same advantages (structure, visual engagement, illustration) can apply to complex testimony. The witness can be asked, “I understand you worked with a designer to illustrate this part of your testimony. Would it help you to put that on the screen?“
6. Use a Flip-chart and Marker
Graphics don’t have to be high tech. I have noticed over the years that jurors really pay attention when the the examining attorney picks up a marker and starts diagraming or building a list based on what the witness is saying. It’s a direct way of showing the jury what is important in the testimony, reinforcing the language of the testimony, and reminding them that it is coming from the witness and not from the attorney.
7. Get Up and Out of the Box
A courtroom can be pretty static, and a witness confined to a box doesn’t have a lot of dynamism. In part, that is by design, since the emphasis is on the language of the testimony. But on occasion, counsel and a witness will have a good reason for a witness to step out of the box: To show something physically, or to indicate something on a model or another physical exhibit. If you have a good excuse, take it.
8. Demonstrate
One reason for getting out of the witness box is to demonstrate something, but the witness can also demonstrate with a verbal explanation or example. Anything that proceeds from the phrase, “Let me show you what I’m talking about…” has a good chance of getting the jury to be more attentive and engaged.
9. Ask What’s on Juror’s Minds
A final way to make the examination more interesting is to engage in a bit of mind-reading. What would an attentive juror be wondering about now? What would they ask the witness if they had a chance? Work that into your question, “At this point, jurors might be asking themselves why you would do that. Can you answer that for them?”
These are just a handful of strategies. In the context of the unique issues of your own case and the capabilities of your witness, you might think of more ways to answer what should be a constant question, “How can we keep them focused on the important parts of this?”
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Other Posts on Attention:
- Adapt to Evolving Attention
- Help Your Virtual Jurors Pay Attention
- Account for a Vanishing Attention Span
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