LOS ANGELES, CALIF.--Defense attorneys face the unique challenge of trying to prevent their clients from sounding combative or defensive on the witness stand. A combative defendant is a juror turnoff and casts the client in an unfavorable light, says Dr. Noelle Nelson, a trial consultant for more than 20 years for both plaintiff and defense. Instead, she says defendants need to win over jurors by sharing their experiences, perspectives and knowledge.
"Not sounding defensive while on the stand can be challenging for defendants who generally believe they are unjustly accused," says Nelson. "Defendants who argue with opposing counsel, whose testimony is a litany of 'yes, buts' and who attempt to evade plaintiff counsel’s most basic questions will not find favor with jurors."
Nelson suggests that defense counsel advise clients and witnesses that during cross, at best, only answer with a qualified "yes” or “no” (i.e., "at that time, yes" or "in that situation, no"). "At all costs, a defendant must not argue with opposing counsel," warns Nelson. "Prepare your clients and witnesses by role-playing a likely cross-examination scenario so they are comfortable using qualifiers that may reduce the impact of a harsh cross examination. Waiting to repair a disastrous cross during direct won't cut it. The damage will have already been done. Jurors will have seen a back-pedaling, self-protective defendant."
Nelson recommends that the defendant take on a “can do” attitude on direct to help sway jurors. "Direct is the appropriate time to educate jurors to a client's role, experience and circumstances,"
For more trial techniques, go to Nelson's blog, "A Winning Tip," http://awinningtip.blogspot.com, or for her articles and books, http://www.noellenelson.com/
