How do you prepare a witness when a tough cross looms on the horizon?
As we have been discussing, it is often possible to teach a witness to do more than present a strong defense on cross. Sometimes your witness can also present a strong offense. In a situation when you expect a particularly difficult cross for a witness, it can be useful to teach them to present themselves with a stance we call “Radical Unflappability.”
Radical Unflappability is a stance a witness can take throughout the cross in which it appears to the jury that no matter what the cross examiner sprays at the witness, it rolls off the witness like water off a duck’s back. Rather than responding combatively to the examiner’s questions, the witness answers quietly and matter-of-factly whether or not the examiner scores points on the content. This can not only work defensively to blunt the effects of the cross examiner’s attack, but can also be part of a positive offensive move to present the narrative theme that the witness is likeable, open, transparent and has no need to hide anything from the jury.
Appearance To The Jury
The theory underlying this technique is that generally the significance of a great deal of the content of cross examinations is lost on jurors even when both of the trial teams think major damage has taken place. Jurors use the social interaction and emotional tone of the cross examination as a guide to understanding the content. When a witness is clearly upset or otherwise more emotional, jurors take note. When the interaction between the examiner and witness is cooler, juror attention can wane.
Given this, one can teach a witness to make the cross examination appear less newsworthy and more mundane by teaching the witness to maintain an unflappable demeanor while conceding difficult points that the trial team believes will inevitably be conceded. In other words, one teaches a witness to not signal to the jury that something significant is happening. This is done by the witness behaving unmoved and unperturbed by the questioning.
Teaching The Technique
The Radically Unflappable stance can be taught as a pervasive underlying stance throughout a cross examination or as a stance to be used for the portions of the cross in which the witness is lying in the weeds waiting for an opening to insert thematically positive messages into the answers. Mostly this depends on how much the witness can reasonably rebut the examiner on the content alone.
The technique can be taught by doing run-throughs of potential cross-examination question and answers. The trial team can teach the witness which areas should and should not be conceded, meaning which areas to be more or less combative or agreeable. For many witnesses, the emphasis will be on more agreeableness and thus more apparent unflappability.
This technique is particularly useful for witnesses who have revealed themselves in depositions or in run-throughs to be more combative, more generally angry or more anxious about testifying. Witnesses should be taught and reassured that a lot of the content issues that arise in the cross will be clarified and cleaned up on re-direct.
If all goes well, the opposing counsel will believe that the case is being won while the jury thinks: half-gallon of 2%, can of coffee, yogurt…