Last week, I had the opportunity to talk with members of the Forensic Expert Witness Association about what jurors expect from expert witnesses. As I was preparing my speech, I was reminded that what happens inside the courtroom is not unlike what happens in the theatre: There are lead actors, supporting actors, protagonists, antagonists, conflict, setting, and even special effects.
And just as audience members revel in the ambiance of the theatre, jurors watch everything inside the courtroom and consider much more than simply the spoken word when evaluating who they like and, more importantly, who they don’t.
As we wrap up our series based on the Cornell University School of Law Review article authored by Judge Amy St. Eve and former-law-clerk-now-law-firm-partner Gretchen Scavo, I want to finish with a discussion on attorney conduct, professionalism, and good old-fashioned manners.
This is not the first time I’ve written about the importance of attorney conduct in the courtroom, and the Cornell Study supports what we’ve learned in our own pretrial and post-trial jury research: Conduct matters. Jurors do not take kindly to anything less than proper behavior in the courtroom
Tip #1 | Be Kind to Opposing Counsel
Jurors frequently comment on their perceptions of how attorneys treat each other. Before you dismiss some of the quotes below as outliers, bear in mind that the courtroom dynamic is all about perception. If a juror perceives you as acting poorly, it will impact how they feel about you and your client. It doesn’t matter what you think; it matters what the jurors think. Here are some examples of jury feedback from the Cornell study:
- The attorneys’ negative “attitudes toward each other, while entertaining, took away from the case.”
- Jurors did not like that opposing counsel “kept giving the [other] lawyer dirty looks while he was making points.”
- “Collegiality between the defense and plaintiff was evident – that was positive.”
- Jurors liked that the attorneys “respected each other and were willing to help each other out (example, computer charger).”
- Jurors wished the attorneys would avoid “roll[ing] their eyes when the others are talking – it makes them look bad.”
Tip #2 | Treat Every Witness Courteously
While the exchanges between attorneys and witnesses on Boston Legal, Law & Order or Ally McBeal are entertaining, it’s important to remember that they are, in fact, designed to be entertainment. Such shenanigans do not play well inside the courtroom setting.
When preparing witnesses for deposition or trial testimony, we always stress the importance of remaining calm and cool, no matter how angry or defensive they may be feeling during cross-examination. If an attorney is belittling a witness who conveys the utmost degree of professionalism and candor, more often than not, the “point” goes to the witness.
- The attorney “got personal; [we] just need the facts.”
- The attorney was “too aggressive with a female witness, asking [whether] having a child at home would impair her ability to do her job.”
- The attorney used “a tone of voice and an approach [meant] to intimidate witnesses.”
- The attorney “picked on witnesses that were not pivotal and then took it too far.”
- He “spoke disrespectfully to a witness … as if he was of low intelligence.”
Tip #3 | Respect the Jury
Showing respect to the jury means more than just being technically polite. One of the biggest challenges in complex litigation is to meet jurors where they are and to capitalize on teaching moments from voir dire through closing. But there’s a very fine line between being perceived as an effective communicator and a condescending know-it-all. While you may feel that certain phrases make you more relatable, not all jurors feel the same.
- Jurors did not like it when attorneys “talk[ed] down to [them]” or said things like “I know you’re not lawyers….” They wished counsel had treated them “like [they had] a brain.”
- Jurors “didn’t like the lawyer who sat in the front row and kept staring at the jury.”
- The attorney “smirked and would shake his head after certain remarks or questions from the defendant.”
- The lawyer looked “too relaxed” because he was “leaning back with [his] arm up on [the] chair.”
Tip #4 | Keep Your Team on Point
It’s important to remember that jurors are carefully observing more than just counsel and witnesses. In fact, when jurors get bored (it happens) or overwhelmed with TMI (this really happens), they often begin to look around the courtroom and observe the conduct of everyone at or near counsel table. This includes the party representatives, legal assistants, trial technicians, and folks in the gallery who may have peripheral roles. When it comes to courtroom behavior, jurors may hold your client responsible for the behavior of every member of your legal team. So, make sure everyone is briefed on the importance of minding their Ps and Qs.
- Jurors disliked the “frustration [attorneys had] with their own team when things did not go exactly as planned.”
- Jurors did not like “all the talking and laughing that the lawyer[s] did among themselves.” In fact, some noted the unprofessional nature of “excessive joking,” “banter,” and “laugh[ing] and snicker[ing] while other lawyers talked.”
- Counsel “appeared honest, sincere, concerned, [and had a] pleasant attitude [and an] occasional smile.”
Tip #5 | Respect Yourself
In the first post in this series, we discussed how something as simple as having a clean workspace and appearing organized and ready for “game time” demonstrated a respect not only for the courtroom process, but also for yourself. In addition, while we’d all like to think that looks don’t matter, make no mistake: they do. Jurors notice clothing choice, hair styles, and the overall appearance for men and women in the courtroom.
If you fail to meet the jury’s expectations, it will impact their perception of you.
- The attorney “did not seem as well put together [as the other side]. [His] shirts [were] wrinkled [and there was] a hole in the back of his jacket.”
- Some jurors found the attorneys’ ties to be distracting.
- Counsel “dressed nicely and looked professional.”
- Jurors did not like when attorneys had “hair in their face.”
- The attorney “needed a haircut and looked a little disheveled.”
- Her “bright green nail polish was not professional.”
Final Takeaway | Don’t Make a Difficult Case Harder Than It Needs to Be
If there’s one thing the Cornell study proved, it’s that jurors are concerned with far more than the law and the facts of the cases before them. And I would never advise a legal team to skimp on building a solid case that can survive an appeal.
I would, however, advise trial lawyers to build in to their trial prep more time devoted to developing the case from the jurors’ perspective. If you’ve got a great case, there’s no reason to risk losing points for style.
CourtroomLogic Consulting, LLC, specializes in developing targeted, persuasive strategies based on proven, workable methods. Our deep understanding of juror behavior and trial communications complements our clients’ knowledge of the law and trial advocacy. The result? Successful outcomes and trial teams to be reckoned with. Contact us for a consultation.