A variety of psychological factors come into play when lawyers cross-examines a witness. It is often not what questions are asked, but how they are asked, and to what end they are given. A few important principles are:
- The Doctrine of Completion: As a general rule a listener (e.g. a jury) expects to hear certain things from a presenter (e.g. a witness). The jury expects a coherent story and fairness (ie; facts and pieces of the story are not hidden from them). They expect the attorney and witness will tell a full and complete story, without hiding anything. The purpose of cross-examination then becomes to let the jury know that they attorney is fulfilling the requirement to have a complete and whole story, that fairness and completeness is the goal. The attorney is held out as someone is interested in the Doctrine of Completeness.
- Self-Fulfilling Prophecies: An attorney can employ this tactic and become “prophetic” by providing the jury during Voir Dire and the opening statements facts and information that is then corroborated by the witnesses and documents they provide as evidence. The psychological advantage is gained when the information appears unknown or unexpected – as if the lawyer, and the lawyer alone – knew that it would be revealed. During closing arguments, it is critical to remind the jury that you predicted the information would come out, and that it actually was presented in court. The overall purpose of this tactic is to enhance the credibility of the attorney and to highlight and enforce certain key facts or elements of the case.
- The “Guide” Principle: When the lawyer focuses on the needs of the jury they become a “guide” instead of a lawyer, inviting the jury to see both sides of the case as the lawyer helps them through their difficult duties. The lawyer becomes a “mentor” helping them to understand what the facts really are. This invitation to trust the lawyer makes them seem well versed in the facts of the case, and possessing fair and reliable judgement. Critical elements of the presentation are pacing, tone, confidence, and energy. An example might be during an opening statement to ask the jury to help you solve a problem that will unlock the answers to the case. Seeking their help to solve a problem reinforces your role as “guide”.
- First Come The “Sign Post” and Conclusions: The human mind needs context and to understand where a story is going, to have guide posts along the way as anchors to the linear, logical telling of a story. Providing the conclusion to the story first enables the jury to understand, and “buy in” to where the story will go, knowing in advance there is a satisfactory conclusion. Sign posts along the way allow a more even, convincing flow to the story.
Understanding what a jury needs, and how the case story is most effectively told are key elements in a successful jury trial.