The result? The case was lost because the witness was not credible. She projected a racist attitude to the jury.

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1 Non-Verbal Communication Enhances Witness Credibility by Howard Varinsky For the Defense May 1992 As every experienced defense counsel knows, even the best cases are sometimes lost when witnesses fail to communicate, or display negative personality traits that diminish their credibility. Most trial attorneys prepare their witnesses well on the facts, but do not pay enough attention to the witness-jury interaction. Attorneys must be concerned with how the witness will appear and relate to the jurors and how the jurors, in turn, will react to the witness. Frequently, attorneys may recognize that a particular witness is likely to have a negative impact on jurors, but do not have the knowledge or skills necessary to effect the desired changes in the witness's behavior on the stand. This article deals with the importance of the non-verbal and unconscious information and impressions that witnesses broadcast to jurors. In addition, it explains how to adequately prepare a witness to ensure that all dimensions of his communication¾ both verbal and non-verbal¾ support and reinforce his oral testimony. Take the case of Marjorie Hines, a 55-year-old manager of a large Northern California apartment complex, who was the key defense witness in a housing discrimination lawsuit filed against a property management firm on behalf of a group of African-Americans who claimed she had refused to rent to them. Before Ms. Hines testified, defense counsel carefully reviewed her deposition with her and discussed the key issues involved in her upcoming direct and cross-examination. What defense counsel failed to take into account, however, was how Ms. Hines would "project" to the jurors and how they would respond to her. On the witness stand, she found herself in an austere and unfamiliar environment, subject to rules, procedures and expectations about which she knew nothing. Moreover, she was the center of attention. In this uncomfortable setting, Ms. Hines became anxious and, to compensate, strident. The plaintiff's lawyer, a skilled cross-examiner, used every trick in the book to make Ms. Hines come across as a racist. He asked flurries of questions without waiting for answers and interrupted her in the middle of explanations. He made frequent sarcastic comments and successfully led her into traps. To make matters worse, Ms. Hines believed that she would benefit by trying to "sell" her case to the jury; she made such statements, "I always rent to 'them'," "I don't treat 'them' any differently than any others," and "I don't know what 'they' want." She did everything but state that some of her best friends were black! The result? The case was lost because the witness was not credible. She projected a racist attitude to the jury. The mistakes? Ms. Hines' lawyer was much too narrowly concerned with developing her factual testimony, and did not adequately anticipate or understand the impact her personality would have on the jury. He knew she had some credibility problems, but thought the best way to deal with them was to thoroughly prepare her on the facts. In other words, he helped her review and develop her testimony, but not the image she needed to project to the jury. The remedy? Work with the witness on the non-testimonial aspects of his or her court appearance. Recognize the witness s image and personality traits, and how they might need to be modified to project to the jury a positive image that will reinforce his verbal testimony. This approach involves aspects of communication theory, counseling skills, behavior modification, and video feedback techniques. It combines a skilled consultant and trial attorney working together to get the witness ready to face the jury with confidence, authority and credibility on all levels. The "Aura of Credibility" Since jurors are not experts or percipient witnesses, they base their opinions of witnesses entirely on their perception of them and the manner in which they testify. Trial lawyers should remember that the message

2 being conveyed to a jury is much more than simply what a witness says, but also everything the jurors see, hear, and perceive about him, or her, consciously and unconsciously. Everything¾ attitude, mannerisms, tone of voice, testimony, dress¾ comes together to form a juror's total picture, or "gestalt," of each witness. Why do jurors believe one witness rather than another? The author s conclusion, based on hundreds of post-verdict interviews, is that jurors make up their minds on who to believe based on what is called a witness's "aura of credibility." This aura of credibility can be broken down into six components: (1) relaxation; (2) self-confidence; (3) mastery of the material; (4) effective communication skills; (5) emblematic congruence, and (6) character trait projection. The first four components are self-explanatory. "Emblematic congruence" is the image¾ conscious or unconscious¾ that automatically comes to mind whenever we think of specific occupations or types of people. For instance, when we say airline pilot, similar or universal images come to people's minds. The same applies to the image of a construction worker, an academic, an engineer or an Army general. "Character trait projection" refers to the primary trait or personality characteristic a witness must project to complement, enhance and reinforce his oral testimony on the stand. For example, depending on the witness, you may want your witness to project the trait of being alert, trustworthy, savvy, or detail-oriented. A trained professional with speech communication and clinical skills should be able to diagnose which components of a witness's aura of credibility need improvement. Working with defense counsel, such a consultant can help the witness recognize and change the problematic behavior. The goal is to enhance, rather than diminishes, his credibility on the stand. In most cases, a few sessions can noticeably improve almost any witness's performance and, therefore, the chances of winning at trial. Preparing The Witness For Trial The preparation process begins once the witness has familiarized himself with his deposition testimony. Defense counsel, witness and consultant meet for a practice session. The attorney begins by asking questions, in the same manner he would use at trial; the witness answers. As the witness and attorney pursue this mock examination, the consultant watches and evaluates the six components of the witness's aura of credibility (listed above). Here are the sorts of questions the consultant will ask himself as he observes the witness: What is the witness projecting to the jury about himself? How will the jurors react to him? Is he credible? Would the jurors buy a used car from him? What are the impressions and personal characteristics he needs to convey to reinforce the thrust of this oral testimony? What is his personality type and style of communicating? Is he clear, confusing, defensive, weak or strong? Does he have the ability to maintain his presence of mind during cross-examination? Is the imagery of his analogies universal? What do his body language, posture, gestures, mannerisms and attitudes project to the jurors? Does he convey self-confidence and belief in himself and his testimony? Are the impressions and emblem he is projecting congruent with his testimony and his role in the trial?

3 The mock examinations are videotaped as a key part of the preparation process. The tapes are used to help the witness objectively observe himself as he answers practice direct and cross-examination questions. Video is a powerful tool in the learning process because it allows us to see ourselves as others do. Videotape feedback gives the witness a candid third-person perspective of how he will appear to the trial jurors. After working for ten or fifteen minutes without interrupting or correcting the witness, the consultant should stop action and play back the tape. As he does so, he will point out the problematic behavior and discuss why it is ineffective. He will then give specific advice for conduct modification. The mock examination by the attorney and the recording then resumes. This sort of practice continues until all three persons are satisfied. Finally, the witness will review the videotape of appropriate behavior so he can see and understand why it is more effective. The witness should practice the correct behavior until the attorney and the consultant are sure that the witness can maintain it under stressful and hostile cross-examination. Two or three practice sessions are usually needed to adequately prepare most witnesses. This repetition, although tedious, serves two purposes: it "grooves" the appropriate behavior and, therefore, fosters self-confidence on the witness stand. The point of all this preparation is to align the witness s characteristics and behaviors so that they will complement and support the factual content of his or her testimony. This naturally makes the testimony much stronger, since the non-verbal messages broadcast to the jurors reinforce and confirm the verbal testimony. At various times during the mock examination/taping process the witness should watch the videotape with the sound turned off. This practice technique does away with the necessity of having to pay attention to the flow of conversation and makes it easy to see the impressions we unconsciously broadcast to others. Attorneys commonly make the mistake of overloading and overwhelming a witness with a critique of everything he is doing wrong and how he should correct it. Instead, begin with an example of problematic behavior the witness can readily see and comprehend, since learning for all of us happens progressively. Also, explain the importance of the elements of credibility during the first practice session, so both teacher and student share a common vision of the desired outcome. Mock Trial A focus group or mock trial is an effective way to get typical juror reaction to your witness. It also gives the witness a chance to experience the anxiety of testifying in front of a live jury, so he will be much more relaxed later in front of the actual trial jury. Additionally, it provides an opportunity for the witness to experience and deal with the terrors of cross-examination. The attorney should ask one of his or her colleagues, who the witness does not know, to conduct the crossexamination during mock trial. Realistic cross-examination by a stranger, rather than the lawyer who he knows and trusts, will give a better idea of how he holds up under pressure. It also teaches the witness how to recognize and deal with cross-examination techniques that are intended to confuse and discredit; this should help to build his sense of self-confidence. If a focus group or mock jury is economically infeasible, assemble some co-workers in the conference room as an informal jury. If possible, record this session on videotape for later use as a teaching tool. In a recent acquaintance rape case, the defendant, who had too much to drink claimed that the plaintiff had consented to having sexual relations with him. There was insufficient evidence to file criminal charges, so the plaintiff chose to go the civil route, claiming battery and infliction of emotional distress. A focus group was conducted to identify and, if possible, provide remedies to specific problems with the defendant s personality, one of which was the negativism. After the defendant testified, the mock jury described him as "arrogant" and "sexist." They noted that he denied being an alcoholic and showed no remorse for having betrayed his wife.

4 Although the defendant had a strong case on its merits, the mock jurors confirmed the suspicion that the defendant s problematic personality traits negated the believability of his testimony and gave the opposite impression to the jury. After viewing the videotape and seeing how the mock jurors reacted to him, the defendant took their feedback to heart and came across more positively at trial. This feedback may have hurt his feelings and his ego, but on the other hand, it caused him to see himself more realistically. During his trial testimony, he was humble and displayed no signs of arrogance or male chauvinism. He admitted that he was an alcoholic and expressed sorrow for hurting his wife. Ultimately, the jury came in with a defense verdict. Improving the Aura of Credibility Character Trait Projections. A witness s personality type can lessen the positive impact of his testimony if it projects an incorrect and misleading image to the jury. One aspect of the consultant's job is to help witnesses learn how to project the personal characteristics that are congruent with and support the content of their testimony. Here is an example. In a bad faith case, the key witness, a claims adjuster, was by nature passive, laid back and soft-spoken. The issue was whether the adjuster should have inspected the electrical wiring located three floors below the floor of he office building where a small fire had occurred. The defense contended that the adjuster had no reason to inspect the wiring since the fire was confined to one office and had not travelled to the floors below. The key characteristics the claims adjuster needed to project to the jury were his alertness and his eye for detail. Unfortunately, his laid-back personality conveyed the opposite impression. This was pointed out to him in the practice sessons, using videotape critique. He understood that he needed to speak more forcefully and authoritatively. The adjuster learned his lessons well and was very effective on the stand. His strong, self-confident testimony caused the plaintiff to cave in and settle the claim for a much lower figure than he originally sought. Emblematic Congruence. Every witness has a particular "emblem," e.g., authority figure, engineer, housewife, academic, entrepreneur, skilled surgeon, etc. A witness may lose credibility if his appearance or behavior is not emblematically appropriate or congruent with the nature of his testimony and his part in the trial. A female professor sued her employer, a major university, claiming that their denial of her tenure was based more upon her age, seniority and high salary than on her "lack of academic achievement." The university s primary witness, her department head, arrived at his deposition wearing a three-piece, pinstriped, navy blue suit. He looked like a successful corporate executive. In the trial of this particular lawsuit, a bottom-line-oriented business executive was the last image the defense would want to project. His appearance was emblematically incongruent and reinforced the plaintiff's claim that he acted as a hard-nosed businessman, cutting costs by getting rid of older, highersalaried professors, in favor of lower-priced, entry-level instructors. The essential characteristic that the department head, as the defense s chief witness, needed to project was professorial. He was urged to exchange his three-piece navy blue suit for a tweed jacket, thus conveying the image of an academic rather than a businessman. This more appropriate image solved the potential problem that his appearance would diminish his credibility as a university department head. This tactic contributed to the ultimate defense verdict. Communication Skills. Frequently, witnesses need to learn how to communicate, to help the jury follow and understand the testimony. Great communicators are usually excellent persuaders: when speaking to a group, they have the unique ability to establish a personal connection with every person in their audience. Ronald Reagan is a master of this technique, which is why he was called the "great communicator." Fortunately, these skills can be taught.

5 The attorney and the consultant should explain to the witness the necessity of clear communication and the importance of a "feedback loop;" the latter is the signals¾ verbal and non-verbal¾ that the receiver of a message sends back to the communicator. For example, while speaking, the communicator watches the receiver's face to see if he is being understood, noticing whether the receiver is nodding in understanding or saying something like, "yes" or "uh huh." If the receiver looks confused, the communicator repeats the explanation¾ again watching to see if the message is being understood. Witnesses should be urged to follow the "feedback loop" technique. If they do, they are bound to make a more positive impact on jurors than those who do not. If this is inconvenient for the witness to do, the examining attorney should certainly be watching the jury s faces. Body language and non-verbal communication also have an impact on credibility. Fidgeting, for example, or folding arms in front of the body, communicate impressions that are incongruent with self-confidence and certainty. On the other hand, relaxed gestures¾ sitting up straight, leaning slightly forward, and making eye contact with the jurors¾ enhance credibility. Cross-Examination. From the witness's perspective, cross-examination is difficult, anxiety-producing and unfair. It pits a trained infighter against a novice. Witnesses should expect opposing counsel to use tactics to frustrate, confuse and entrap them. They must learn how to deal with hostile questions, interruptions, abrupt changes of subject, sarcasm, and derogatory comments. With a few hours of practice, education and role-playing, most witnesses¾ lay or expert¾ can learn how to stay in control, remain composed and deal successfully with cross-examination techniques. Conclusion It is important to keep in mind that jurors view trials as storytelling, as drama. All of the witnesses, including litigants, play certain roles and parts in the story and must be evaluated and prepared with these roles and parts in mind. In an ideal world, the good guys always prevail and truth needs no window dressing. Unfortunately, in the real world, image often replaces substance and is frequently more persuasive to jurors than integrity alone. Defense counsel have much to gain from paying closer attention to the unconscious and non-verbal communication their witnesses unwittingly broadcast to jurors. Helping witnesses develop these aspects of their communication will considerably enhance their credibility at trial.

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