What to Consider in Ordering Your Witnesses

Trial is approaching and you have a long list of witnesses to organize.  How do you know who goes first, second, third, and last?  Ordering witnesses can feel like solving a rubik’s cube – one witness falls into place and it knocks three others out of order.  Not to mention that trial is unpredictable so you need to leave room for some flexibility.  Because there are so many moving parts to a trial and witness schedules, every case is different, but here are some factors to consider in ordering your witnesses:

  1. Primacy and Recency. Primacy states that what is presented first is remembered best.  Recency states that whatever is presented last is remembered best.  The idea is to start and end strong.  These are general psychological principles that interacts with many other principles so it’s not always so simple, but they something to consider.  Start and end your trial with effective, powerful witnesses.  To a smaller extent, try to start each day with a strong witness or slip one in right before a weekend break so it will be the last thing jurors hear before the leave to contemplate the case.
  2. Content.  Your first witness should be able to set the stage for jurors and give them a big picture of what happened.  The trial is a story and you need to start off solid by having someone who can get jurors to understand the overall chronological progression of things.  The first witness should also be virtually infalliable.  You don’t want to start your trial on a weak note.
  3. Personality of Witness.  Jurors get bored.  Try to space out witnesses who will be talking in a similar tone.  If you put one monotone witness back to back with another, your jurors may be asleep.  Try to have witnesses who are more interactive and who will be standing up to demonstrate something break up the monotony.
  4. Time of Day.  Most jurors are more alert in the morning.  After lunch, blood sugar levels peak and then drop and they get mentally tired.  Even in focus groups, I always notice that my afternoon groups are much more dreary and slow moving than my afternoon groups.  Try not to have a strong witness go on right after lunch – in fact, it’s a good time to put on weak witnesses so they can be easily forgotten (or never heard in the first place).

Again, of course all of this can only be followed to a certain extent.  Professional witnesses have time constraints, out of town witnesses can only come on specific days, and the trial may move faster or slower than you anticipated, requiring you to move things around.  That said, keep these guidelines in mind.  The closer you can stick to them, the more effective you will be.

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