In the world of law, where every word matters, attorneys are often so focused on crafting the perfect question, or squeezing the best facts into a 30-minute Opening Statement, that they forget about one critical element that can determine their success or failure with jurors: delivery.
It’s no secret that the majority of communication is nonverbal. Many a juror has told me that they like one attorney or witness better than another, not because of the actual facts presented, but because of their communication style.
My anecdotal experience was validated recently by a study by U.S. District Judge Amy J. St. Eve and Gretchen Scavo, her former law clerk who now oversees attorney training at Winston & Strawn’s Litigation Department. Scavo and Judge St. Eve wanted to know what actual jurors liked – and more importantly, didn’t like – about trial attorneys. So, between 2011 and 2017, they gathered unfiltered written feedback from more than 500 jurors in the Eastern Division of the Northern District of Illinois (Chicago), primarily from cases in Judge St. Eve’s court.
After trials wrapped up, jurors were asked to complete a voluntary, anonymous survey, the results of which were analyzed and recently published by the Cornell University Law School Law Review in a report titled “What Juries Really Think: Practical Guidance for Trial Lawyers.”
In my last blog post, I covered what jurors thought about lawyers’ organization, preparation, and efficiency. This time, I’m discussing delivery.
Jurors Want a Conversation, Not a Show
According to the study, jurors consider three things when determining whether the delivery of the attorneys they observed was up to par:
- Whether counsel included the jury in the “conversation”;
- The attorneys’ body language, pace, tone, volume, and diction; and
- The overall degree of professionalism and restraint while presenting.
No surprise: jurors like to be treated with respect and made a part of the conversation, one-sided though it may be. And, although they didn’t like it when lawyers were too stern or aloof, nor did they like it when the lawyers’ eye contact was too intense. As with most things in life, it’s all about moderation.
Here are some samplings of actual jurors’ quotes – taken straight from the study – about delivery:
- Jurors wanted the attorneys to “speak to the jury like [they] are speaking face to face” with one person.
- Counsel was “staring, raising eyebrows with arms crossed, not trying to make a connection with the jury (no smiles).”
- Jurors wished the attorneys had been “a little more personable.”
- While some jurors “like[d] the direct eye contact”, others did not like feeling “stare[d] down.”
- Jurors expressed difficulty “hear[ing] one of the plaintiff’s attorneys most of the time.”
- Jurors wanted counsel to “calm down and not let emotions get in the way.”
- Attorneys should not “put on a show” or be “overly dramatic.”
None of this should be a surprise, of course. Think back to your college days and your least favorite professors: did they make a concerted effort to include you in the lecture? Probably not. But what about your favorite professors? They most likely made you feel like a valuable part of the teaching and learning process. Their lectures left you inspired and, not coincidentally, informed.
Jurors are no different than students: they want to participate in the conversation.
But how do you have a conversation with people who can’t talk back?
Tip #1: Let the Jury Talk (During Voir Dire).
When conducting voir dire, if jurors are talking less than you are, you are talking too much. Engaging jurors in your “conversation” begins the moment you stand up in voir dire. And the better you are at having an energetic, yet meaningful and effective, discussion with potential jurors, the more receptive they will be to your story.
Tip #2: Speak (and Listen) with Your Eyes.
I can’t tell you how many Opening Statements I’ve seen where counsel spent the bulk of his time looking at his PowerPoint slides on the screen behind him. What did jurors see? His back. Talk about a disconnect. [Technology hack: Have your trial tech place a small, flat-screen monitor on the floor in front of the jury box so you can see your slides without having to take your eyes off the panel. Problem solved.]
Making eye contact with jurors is a simple and effective way of “speaking” to them, and if done appropriately, it’s a great way to foster a sense of inclusion and draw the jury into your story. And even though jurors are not allowed to use words to talk with you, they can provide subtle nonverbal cues as to their level of understanding or interest (e.g., the dreaded eye roll, raised eyebrows, squinting, or sleepy eyelids).
But, as with most powerful things, a little bit of eye contact goes a long way. There is a huge difference between having appropriate, conversational eye contact with jurors and “staring them down.” Nothing creeps out a juror more than a complete stranger locking eyes for too long. If you look at a juror and his eyes immediately look elsewhere, it’s a sign that he’s not comfortable with that level of eye contact (or he flat out doesn’t like you, but that’s another post for another day). Brief moments of eye contact are best; anything more than a second or so borders on intrusive.
Tip #3: Project and Enunciate.
Your voice not only impacts your persuasive power, but it also impacts the credibility of your message. I’ve written about vocal variety before, but it’s so important I’m addressing it again. Audiences want to engage and learn, but if they have to strain to hear you, or feel like they’re listening to Charlie Brown’s teacher, they’re going to shift their attention to something more satisfying, like counting the ceiling tiles.
If jurors can’t hear you or understand what you’re saying, they’re not likely to believe you. And nobody delivers a favorable verdict to someone they don’t believe.
Tip #4: Be Mindful of Body Language.
The importance of body language isn’t limited to the lawyer who’s doing the questioning. Jurors often pay just as much attention to those who aren’t speaking: your client, other members of your team, and everybody on the opposing side.
While you’re busy taking notes during opposing counsel’s direct, you can bet some jurors are watching you. And they don’t quickly forget smirks, grins, audible sighs, furtive brows, or seemingly frantic note-taking and passing.
You may even have a nonverbal “tell” that you’re completely unaware of. In fact, you should probably ask your brutally honest spouse/peer/friend if you have any odd nonverbal quirks, or a “tell” of some sort, when you’re irritated, angry, bored, etc. You cannot completely eliminate the “tell,” but you can’t mitigate it if you don’t know it’s happening.
Clearly, what you say is important. But, as the Cornell juror study shows, how you say it matters just as much – if not more.
Next time, I’ll excavate the “Evidence Presentation” section of the study.