The more significant a witness is to your case, the more important it often is to let the jury know exactly who they are. Usually, your client is one of the most important witnesses the jury will hear from during the course of trial. When dealing with such witnesses, I will generally cover age, where they live, personal background such as where they grew up, their family, their education and work experience, and any special qualifications which might bear on their credibility or believability as a witness. Such matters are typical covered at the beginning of the witness’s testimony. It’s difficult for someone on the jury to trust the person’s testimony; they may feel like they don’t really know them.
Keep in mind how you relate to people you meet. You typically look for connections and things you have in common. Don’t forget who your audience is. Is there information in your witness’s background that might establish such a connection with one or all the jurors? What in your witness’s background enhances their credibility? What would you want to know about your witness if you were a juror? Is there something in your witness’s background that might create empathy or understanding for any weakness they may have in communicating? Try to approach each witness with a fresh set of eyes.
Everyone admires someone who overcomes adversity or is hard-working. If there are things in your witness’s background which you can weave into your examination, make the jury went to cheer or root for them, then find a way to present such testimony subtly. A bit goes a long way so don’t beat the jury over the head with it.
When it comes to persons being called for minor matters such as establishing the foundational prerequisites for the admission of documents or other tangible evidence, it may not be as important or necessary to cover matters outside of the witness’s education, training, experience and job duties relevant to their position as a custodian of the document or item of evidence.
Has your client or witness, assuming it is a more significant witness, had involvement in civic or charitable matters? Have they held public office or been an officer in an organization which is positively viewed by the public at large? These sorts of connections help a juror bond with a witness or client. They are part of who the witness is. Everyone admires those who give back. It helps to show that the witness or client is part of the solution, not the problem. As noted earlier a bit of such testimony goes a long way so don’t overdo it.
There is no set rule. I would recommend that you play it by ear. If you have a case that is clearly worth a good deal of money, give the jury guidance as to how you calculated damages by breaking down each separate category covered in the jury instruction on damages and assigning a number to it. When doing so, you may want to suggest ranges and provide the jury with a summary chart breaking down the value of each element of damages. I know of one occasion in a case against a national department store where an attorney drew a blank line followed by six zeros ($___,000,000) on the chalk board and pointed to the blank line told the jury this is the only number you need to worry about. His client received a million dollar verdict for a false arrest. Buddy Yosha is slightly less direct and will say in a matter-of-fact tone this is a seven figure case. All of these methods have been known to work.
What ever number or argument you present, you need to do so honestly and sincerely. Also, keep in mind your audience that makes up the jury. Watch them as you argue and you should know what you are comfortable arguing.
The great thing about our system of democracy is when they call you for jury duty, you have to come… It’s an honor and a privilege. I was called and I’ve got to be here. – – Antonio Villaraigosa
Pursuant to Indiana’s long-standing rule, a claim of error arising from the denial of a challenge for cause is waived unless that party used any remaining peremptory challenges to remove the challenged juror or jurors. In Robinson v. State, 453 N.E.2d 280, 282 (Ind.1983), the Indiana Supreme Court stated “[o]ur law on this issue is well settled. We have consistently held that to preserve any error the defendant bears the burden of demonstrating that at the time [he or she] challenged the jurors for cause,[he or she] had exhausted [their] peremptory challenges.” Eventual use of all peremptory challenges is therefore not enough to satisfy the exhaustion requirement. Merritt v. Evansville-Vanderburgh School Corp., 765 N.E.2d 1232, 1235 (Ind. 2002). The rationale for this approach is that “where a trial court may have erred in denying a party’s challenge for cause, and the party can cure such error by peremptorily removing the apparently biased venire person, the party should do so in order to ensure a fair trial and an efficient resolution of the case.” Id. To guide attorneys through the field of venire challenges, our supreme court devised a clear and predictable road map. You must use any available peremptories to correct erroneous denials of challenges for cause if they are available. If on appeal you then prove both the erroneous denial and that you were unable to strike another objectionable juror because you exhausted your peremptory challenges, you are entitled to a new trial. Id. at 1237.
Failure to correct the problem yourself, if possible through the use of a peremptory strike, waives any error caused by the trial court’s denial of your challenge for cause.
This site is for those who practice in our nation’s courtrooms and make our adversarial system an engine for justice. All are welcome to share their knowledge and experience about what works in communicating with judges and juries. Have a question that requires in-depth consultation for a case you are handling? Please feel free to contact me. I can provide consultation services and strategic analysis on a hourly basis or through flat fee arrangement with your firm. My office number is 317-334-9200. Thanks for visiting.