I never attend trial without issuing some specific behavioral guidelines to my team. And this includes counsel. The rules for courtroom conduct are, to me, nothing short of Courtroom Commandments. They are:
- Watch your Ps and Qs from the moment you leave your house/hotel room.
- Keep your note-passing to a minimum.
- Whisper only when necessary.
- Keep your work space clean.
- Be organized.
- Don’t stare at the jury.
- Do not react.
- Never lose your cool.
In other words, always, always, always exude the utmost degree of professionalism.
One Chance to Make a First Impression
I realize these rules are little more than common sense, and it feels slightly demeaning to discuss them, but I do. With each and every client. To each and every trial team. At each and every trial. In each and every venue. Every. Single. Time. The size of the trial doesn’t matter. The potential damages don’t matter. The number of gray hairs on counsel’s head doesn’t matter. Nor do the decades of expertise held by my team, or the series of letters after an expert’s name.
One of the most important parts of my job is to help the legal team capitalize on those precious first impressions, and to maintain a positive juror perception from voir dire to verdict. Stupid mistakes can tank counsel’s credibility, and when facts are complex (or just plain bad), receiving conduct demerits gets my ire. We can’t control the facts; but we can certainly control our conduct. And behavioral faux pas are preventable. If I get any pushback on my rules, I’m able to produce plenty of juror feedback to support my reasoning.
Follow the Courtroom Commandments and ye shall be rewarded. Ignore them and prepare ye self for consequences.
A Case Study of What Not to Do
One glaring example of “What Not to Do” took place a few years ago. I remember it clearly because it was, quick frankly, so appalling. Fortunately, the violators were the opposing counsel. (Don’t worry, I’ve removed any identifying information to protect the guilty.)
The trial occurred in a rural area, in a venue considered to be plaintiff-friendly. We were in a federal courthouse the size of a shoebox—so small that plaintiff counsel could literally hold hands with a juror in the jury box.
The plaintiffs’ team was comprised of well-known A-listers within the legal community, and they a reputation for winning big verdicts and demonstrating rock-star trial skills. Collectively, they were an extremely formidable opponent. But their conduct got in the way.
Unfortunately for the plaintiffs, although the trial skills of their legal team were impressive, their courtroom demeanor was not. I observed a disorganized, loud, fractured team that seemed to struggle with the basic rules of proper courtroom behavior.
And, apparently, the jury agreed. So much so that, a few days into trial, the jury submitted a note to the judge essentially asking the plaintiffs’ legal team to behave. #thisisnotanexaggeration
Jurors were frustrated with the paper-shuffling. The loud “whispers.” The digging through boxes during testimony. The noise and distraction caused by counsel (and their clients) leaving the courtroom during witness testimony. And, most annoyingly, the “suggestions” by counsel sitting along the bar to the questioning attorney about what to ask next.
Fortunately, my trial team was the epitome of professionalism throughout the entire trial. They followed the rules of conduct and met – dare I say, exceeded – juror expectations. In fact, a couple of jurors went out of their way to contact our lead attorney after the trial ended to extend their personal thanks for being organized and respectful, and for not wasting the jury’s time.
Even better, the jury returned its verdict in less time than it took my team to eat our lunch. My client received a zero-liability, take-nothing verdict (on a potential $15 million claim).
Did counsels’ conduct play any role in the jury’s decision? Maybe. Maybe not.
But it never hurts to always take the high road.