The Advantage Blog
Maximus Your WitnessesMarch 30, 2019 | By Theodore O. Prosise Ph.D. | Trial Consulting, Witness Preparation
The first minutes of Ridley Scott’s 2000 epic Gladiator was an outstanding example of character development. You knew who Russell Crowe’s Maximus was from the start, and it would set up the struggle between right and wrong as seen through the lens of a man of justice and determination. In those first moments, Maximus does several key things to highlight who he is and what he stands for.
• Reflects on the upcoming battle (alone and quiet)
• Appreciates the simple things in life (a bird in the field before him)
• Expresses empathy and understanding for foes unwilling to surrender
• Demonstrates bravery and willingness to fight alongside his men as a part of a careful strategy
• Reveals a connection with the centurions of the line
• Inspires devotion from his war dog (which would eventually run into battle with him)
• Exhibits a sense of humor to lighten the tension in the upcoming battle (with his story of Alesiaeum)
• Expressed a preference for a simple, peaceful life, farming with his family (after the victory was to be won)
These seven quick events, anecdotes, and interactions shape his motivations, values, and nature. Of course, character development is not just for movies and books. It should be a central aspect of your witness examinations.
Too often direct examinations start out with background, minutiae of detail about education, job experience, etc. Boring. Direct examinations after adverse questions often proceed in a similar way. After your witness has just been beaten up and dragged through the leading questions (where the opposing counsel is doing, in essence, the testifying), the examination is a boring introduction to a witness’ bland background.
Rethink the direct examinations. Consider the following:
1. Take advantage of the anecdote. Jurors love the anecdote: a short story that reveals a point, a message, or an example, of action, character, personality, persona, and motivation. Develop two or three germane events of the testimony and start with those. The events should reveal the character traits you want jurors to associate with your witness. You will be able to elaborate and provide more context to these events later in the examination, returning to the events you previewed.
2. Take advantage of juror expectations. At the start of the examination is when jurors are perhaps at their most focused or interested in the witness. Why “waste” their time with the banal when you could grab their attention? Earn the right to keep jurors’ attention on your witnesses. Go straight at the primary points the other side has attempted to make with the jury. Address them, dispatch them, and forcefully confront them—not in a long-winded or detailed way, but in a direct manner. This is much less a detailed fencing exercise and much more of a Spartans at Thermopylae strategy—the messages can be as forceful and direct as iron spears. Don’t overthink it; deal with it directly. Nuance and context, once again, can come later.
3. Take advantage of simple communication organization. Remember to a) tell the audience what you are going to tell them; b) tell them; and c) tell them what you just told them. Preview the main points, then “back up” and explore their background, education, experience, and general role in the overall case events.
There are numerous examples on my mind, but I will spare you and just provide one. Our shadow jury revealed a real problem. The other side called him in their case. Our guy refused to answer questions about the financial reporting to a group of investigators when confronted. Our shadows were convinced he was hiding inappropriate/illegal action. This was a major problem for our shadow jurors. We needed to confront this head-on and quickly. There was another story to tell: his story, his POV as he entered that room. It was simple (and I will simplify):
Q: “Describe the room.”
A: “A conference room, no windows, bright lights.”
Q: “Who was there?”
A: “Three men in suits who I had never seen before, serious, stern, aggressive looking.”
Q: “Did they have anything with them?”
A: “Stacks and stacks of folders with papers and documents in them.”
Q: “Did you know what this was all about?”
A: “I had no idea, but I wasn’t going to answer their questions until I knew who they were, what this was about, and if they were going to treat whatever the issue was fairly.”
You know what the shadow jury said that night? Different versions of “I wouldn’t have answered any of their damn questions either.” Although our witness was not necessarily Maximus quality, he was relatable, understandable, human, and not a corporate executive. A simple anecdote with the right details, from the start, to help jurors relate to our guy.
At times this character development is about your witness in and of themselves. Other times the witness will be the embodiment of the corporate persona, the organizational and institutional character. Their stories can reveal the right character of the company. Companies and organizations can have cultures, values, and personas. You can help develop its character too, through the anecdotes you and your witness can tell a jury.
One of the most entertaining things about a movie is the opening scene. Sometimes it is not even connected to the primary plot points of the rest of the movie. But it is engaging, dramatic, flashy, powerful, and entertaining. Persuasion is about combining information and direction with entertainment, while inspiring motivation to act. Develop the witness’s character at the very start through anecdotes that establish their persona, their principal worthy and respectable traits. Grab the audience’s attention, earn the right to keep them engaged, and establish the Teflon around your witness for the cross or re-cross.
Enjoy the process of talking and listening to your witness about some of the key events in a case. Listen to them, then ask them why—what they were thinking, why they chose the action they took. One of the best things a witness has going for them is that they are the only one who can talk about what they really meant or thought when they were making a choice and doing what they were doing. The anecdotes they tell are the character armor you can dress them in.
Your witness need not rise to the level of Maximus, who stood up to a despotic emperor as a means to champion the republic. But your witness can start out to a jury as more than just a resume. They can be a relatable person, a person with values and principles; a person who can reveal who they are and what animates their choices, actions, and decisions.
Image credits: Screen Rant
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