People are naturally contrarian

People are, I believe, naturally contrarian:  They will look for reasons to disagree with you.

The question is how to use this phenomenon to maximum advantage at trial.

For one thing, I try not to overstate my case.  If I claim that there is absolutely no proof whatsoever as to my client’s guilt, many people will look for reasons to disagree with me.   

Argument is fine. But I try to focus on the facts that will lead the jury to the right conclusion.  After all, people will accord more weight to conclusions they themselves arrived at.

I also consider the natural inclination toward contrariness when cross-examining the prosecution’s witnesses.

There are some witnesses who will try to disagree with you no matter what you say.  It is not only that they are being contrary.  It is also that they consider you – as counsel for the defense – as the enemy.  

I like to begin my cross-examinations with a few innocuous questions.  It allows me a moment to get into a flow.  I like to demonstrate to the witness that it is okay to agree with me.  And a witness who disagrees on things the jury knows are true will quickly lose credibility.  

Finally, I like to use people’s natural contrariness to change things up a little bit, to throw the government’s witness a curveball.  

I had a bench trial recently in which my client was charged with, among other things, “leaving after colliding” (the D.C. equivalent of hit and run).  

Because my client was not stopped at the scene of the accident, the government anticipated that I might try to use mistaken ID as a defense.  It therefore spent a good deal of time during its case-in-chief establishing that the civilian who witnessed the accident – an older gentleman — got a good look at the driver of the car.  It established that the lighting conditions were favorable.  It also elicited testimony in which the witness described my client in great detail.  She was young and slender, for example.  She had dreadlocks, etc.  

But I conceded on identity.  In addition to the older man, there were many other people who had seen my client driving the car – who had in fact surrounded her car and pulled her from the driver’s seat at a stop light. 

I sought instead to use the witness’ testimony to make a different point:  How a young woman traveling alone at night in a bad part of town with two children in her car might not feel safe pulling over when confronted by three angry bystanders at the scene of the accident.  

After all, if the man got a good look at her, it is safe to assume that she also got a look at him.  And she would have seen how angry he was.  

Thus his confusion at my opening question:  You really got a good look at her, didn’t you?

Thus his backing away from everything he had just testified to:  Well, it was after 7:00 pm in November so it was actually kind of dark.  He had been turned to the side, and he was looking down.  He was focused on his friend who had to jump out of the way.  As for whether she was young and slim, he really wasn’t sure about that.  He got a better look at her later when asked to ID her.  

And so on.  

And it did not help for him to claim that he had not been angry.  It is one of those no-lose questions.  So you were happy that the SUV nearly hit your friend and sideswiped his car?  

Not happy?  I see. Indifferent then?