I end this series on a somber note. On television and in movies juries pay attention to every little nuance. In reality, most are bored out of their minds and merely looking for ways to finish serving what they may consider as their punishment for registering to vote, getting a driver’s license, or (in state court) having electricity. A jury trial can be as much about putting on a show as it is evidence and, in some regards, it turns trial lawyers into entertainers responsible for putting on a better show than the opposing party.
Great shows do not just magically occur; they require production. For lawyers, production is discovery. What information do you need to gather via discovery to help produce a compelling show?
In the case these posts have been discussing, I was brought in to try the case for one of the defendants. Wife had gone AWOL after the suicide. We knew from Mistress’ own testimony that there had been communications between them before the suicide. So we hunted Wife down, discussed the situation with her, and got her reluctant agreement to give a deposition about the pre-suicide communications. Wife was far outside the jurisdiction and I could not subpoena her for trial. The result was a video recorded deposition that may have been the only chance to get Wife’s testimony.
The entire process of even contacting Wife was miserable, as it was understandable why she went AWOL. The deposition itself was the single most emotionally exhausting one I’ve taken to date. Wife was understandably emotional but also admirably determined to give her side of the story. She cried frequently. In most depositions I’ve attended, the deposing attorney typically goes off the record when the witness becomes as emotional as Wife was at various points. This is a courtesy to the witness, so they can recompose. I didn’t do that for this deposition. Although the videographer kept looking at me for the cue, we stayed on the record for every second of it. Why? Going off the record would remove the raw emotion from her testimony. I did not know if Wife would be at trial and presenting a sanitized version of her would not carry the same weight. I wanted the jury to see, hear, and feel her testimony.
In the end, the deposition was as much about showmanship as evidence. At trial it is not just what the witness says, it’s how she says it. Her pain and tears were not literal testimony, but were definitely part of her testimony. A jury seeing her video recorded testimony would hear the words she was saying, satisfying the technical evidentiary requirements. But it was how she gave that testimony that gave those words meaning and weight. Keeping the jury engaged and attentive doesn’t start when they walk in the door. It starts long, long before the show even starts.
 Contacting her given what had happened was just awful. We could understand why she would want to be left alone, but we had to find her given the case and her side of the story about what happened.