Inside Employee Rights Litigation
July, 1997, Volume I No. 9
Tips from Jury Consultants on Preparing and Presenting the Plaintiff Witness

EXCERPTED

How do you tell if a person is a victim of employment discrimination? You ask her. If she believes it, then, at least in her own mind, it happened. It's a fact. The question that will determine whether she has a successful claim for employment discrimination is who else believes her. If the employer believes her, it will fix the problem, either in-house or by settling a claim. If the jury believes her, it will award her damages. If the appeals court believes her, it will uphold the jury's verdict.

"People get 20 percent of meaning from the words they've just heard and 80 percent from non-textual meaning, which includes energy, body language, inflection, and eye contact. Persuasion doesn't come from words; it comes through emotion," says Gillian Drake, a Baltimore-based consultant.

Unlike most jury consultants whose training is in psychology, Gillian Drake is trained as a actor and theater director. "I look at how the audience will perceive the performance. I work with the attorney and witness to organize their story textually and emotionally into what I call 'clumps,' which are like chapters in a book," Drake said. "We give each clump a title that has an active and an emotional component. Plaintiffs often have a lot of undifferentiated emotional response. You don't want tears in the first part. You donÕt want hardness when you need softness. When you have a hugely emotional scene in the theater, you rehearse around it, but you don't rehearse the most emotional part over and over because that deadens it. You set the scene, then you talk about the complications. You separate out the part that's most dramatic and you rehearse around that. All of the factual and legal issues can be included in one of the clumps."

On Pre-Trial Strategies

Drake suggests having the plaintiff write out answers to questions, "including the toughest questions. Suggest other ways of phrasing that relate to the theme of the trial. Let the client write the rephrased answer. The point is not for the client to memorize answers. That's dangerous. The act of developing answer s, writing them down, and owning them helps the client testify in a natural way. Most importantly, it helps the client hear and respond to the question no matter how it's phrased."

"It is often diffficult for the client to admit to being nervous and fearful," Drake said. "Denial is a form of tension that takes energy away from the truth. It gets in the way of your client being believed. And it takes energy away from what needs to be done -- relating your client's story to the jury."

The attorney "also has to work in making a connection with the audience through his or her own emotional reactions," Drake said. "That emotion doesn't have to be theatrical or big, but it has to be real and not fake. Juries are good at seeing what's fake. If the attorney seems unconnected emotionally, the jury can easily interpret that as the attorney not believing or not ycaring. If the plaintiff's own attorney doesn't seem to believe or care, then the jury is likely say,'Why should we?'"