We could create a long list of trial attorneys we have seen prepare as if the courtroom is a sterile laboratory for evidence, a place where pure logic prevails, but this is far from the truth. Instead, attorneys should think of it as a stage where meaning, memory, perception, and emotion compete for control. Each interaction between witness and lawyer is an opportunity to transform material that most people find boring into something meaningful and memorable. It is an opportunity for attorneys to give their audience shortcuts in the case, the kind that ultimately drive verdicts.
To imagine a witness’s words will simply be received and weighed by jurors as intended is not only optimistic, but it also fundamentally misunderstands the reality of juror decision-making. As jury economics makes plain in this column each month, jurors do not passively process data. They actively evaluate, question, and filter their perceptions of the case through the lens of their own lives, beliefs, and cognitive constraints. They bring a lot to the table, creating a variety of external influences on their views of the case.
Consequently, effective witness testimony, and thus witness preparation, cannot be reduced to accurately reciting facts or rehearsing chronology. We see that approach far too often, with the attorney and witness spending hours in a conference room going through the evidence. Instead, preparing your witnesses to deliver in a trial is an advanced exercise in audience-centric communication. The most influential testimony is not just accurate — it is accessible, memorable, impression-forming, and functionally relevant to the framework jurors bring with them. As we have observed in hundreds of trials, witness testimony must be credible, clear, and, most importantly, useful. Absent that alignment with how jurors receive it, even honest and expertly trained witnesses may be misunderstood, dismissed, or strategically reframed by opposing counsel.
If you’re a follower of this column, you already know jury economics teaches persuasive witness performance through four essential tenets for how jurors make decisions: egocentric, economical, symbolic, and social decision-making. Each tenet addresses a specific way jurors encounter, process, and use witness testimony, not only to make sense of what happened, but to justify their verdict. Witness preparation, and thus attorney preparation for each witness, is not ancillary. It is vital, but practice is the key since practice moves it beyond mere facts and into the realm of the jury experience.
This month’s column explores how attorneys and witnesses can leverage the tenets of jury economics to develop testimony that is compelling, memorable, and persuasive.
Egocentric. Jurors experience the trial as an extension of their own lived realities. Testimony that fails to connect with jurors’ everyday experience risks rejection of the testimony and sometimes the witness, regardless of accuracy. Consider a patent infringement case involving specialized technology. A witness might describe microelectronic circuitry in technical detail, losing jurors’ attention. But if the witness instead relates the innovation to something familiar, something jurors know or relate to in their own lives, the technical becomes familiar and the testimony becomes relatable and relevant: “Imagine the circuit works like the security system you use to protect your home. Before I explain the process, let me ask: How many of you lock your doors at night? This technology works fundamentally the same way. It keeps unwanted guests out.”
Economical. Jurors are overloaded with information and consistently opt for simple, memorable ways to reduce their uncertainty, make sense of complexity, and preserve their energy and brainpower. They want simple things to say in deliberations, not complex subjects to explain. Testimony should be structured to present the fewest steps necessary for jurors to reach a clear, actionable understanding of what each witness is teaching them. It should offer repeatable, persuasive headlines. Far too often, attorneys attempt to do too much with witnesses in trial, overestimating both the witness’s and the jurors’ ability to connect the dots. For example, during complex testimony in a personal injury trial, a witness should look for as many ways as possible to avoid elaborate procedural detail and concentrate on a single theme: “If the standard procedure had been followed, the injury would not have occurred,” or, “At its core, this case is not about every step taken, but about the one critical rule that was missed.” Your job is to test witness language against the likely experiences of jurors and identify what is most memorable. Replace your use of technical jargon with analogies and touchpoints from everyday life so witnesses and jurors can do the same.
Symbolic. Jurors seek symbols, not just facts. They construct meaning and justify verdicts around emotional and moral signals embedded in testimony. In a wrongful death suit against a corporation, a bland internal email can become symbolic evidence of corporate indifference. If a witness can credibly express the human impact, e.g., “This message was the moment I realized we could do more to keep safety first,” it not only conveys facts but also triggers juror focus on accountability and proactive thinking that helps them see a witness, and their employer, as acting appropriately. “I will never forget reading that email. It felt like a lightning strike pointing to the clear path to make this process even safer, and I knew how to implement it.” Attorneys and witnesses should use these symbolic moments judiciously, including the evidence that helps make them feel concrete: emails, photographs, and concrete examples that naturally cluster around the verdict theme. Attorneys should also elicit testimony that operationalizes the central theme in simple, relatable sentences. Identify the symbolic story’s endpoint: Does the testimony leave jurors with resolution, accountability, or lingering questions? And stop sooner than you think. Jurors love to feel the satisfaction of putting the pieces together in their own way, without you taking that moment away from them by stating the obvious let alone repeating it.
Social. Testimony must encourage a social connection between the witness and jurors and empower supporters in the deliberation room. Witness testimony is one of the best ways to use a persuasive technique known as social proof. This is the psychological reality that we often rely on the shortcut of observing how others think and feel about a situation to help signal how we might think and feel about it. Jurors look to witnesses they trust for signals for how they might view the facts and issues in dispute. Prepare your witnesses to help embody the struggles jurors may be having with the case and speak from that commonality. Address directly and indirectly the confidence, clarity, and social barriers jurors face when advocating for your position. It can be as simple as letting jurors in on the way a witness feels about the conflicting facts or the heart of the issue. Help witnesses let jurors in on their struggle so they can identify and understand. Use plain language to transform hesitant testimony into a rallying point for jurors during deliberations: “I was scared, but I did what anyone would do. I took all the information available to me, and I made the best decision I could. I am not an expert, but I was paying attention, saw what happened, and did my best. I told the truth, and I stand by it.” Prepare witnesses to express humility and authenticity so when they express certainty, it shines even brighter. In a perfect world you’ll land on concise, memorable statements that supporters can repeat: “I told the truth, and I stand by it.”
Thomas M. O’Toole, Ph.D., is president of Sound Jury Consulting in Seattle. Kevin R. Boully, Ph.D., is senior consultant at Perkins Coie in Denver.
