As I was sitting in federal court yesterday observing testimony of a key witness, I found myself distrusting the witness. And the attorney. The exchange caused me to ponder on the importance of trust: the trust a witness must have for his attorney, and the trust a juror must feel towards the courtroom advocates.
I kept thinking of a scene from The Jungle Book movie. Yes, that’s right. The Jungle Book. Some of you may know the scene: Kaa (the snake) tries to hypnotize Mowgli into trusting him, even though Kaa fully intends to eat him for dinner. There’s a catchy little song involved (“Trust In Me”), and the scene ends with Shere Khan (the tiger) saving the day. Kaa begins selling his hypnotic pitch to Shere Khan, but the tiger says something to the effect of, “I can’t be bothered with that; I have no time for that sort of nonsense” as he smushes Kaa with his huge paw.
The issue of trust is critical in a jury trial. Why? Because in order for jurors to view you, your witnesses or your story as credible they need to perceive you as trustworthy. Trust and credibility are entwined and have a huge impact on your ability to persuade, influence and advocate effectively on behalf of your client. Just like Shere Khan, if jurors fail to trust you, they could view your arguments as “nonsense.”
It’s no surprise that many jurors walk into the courtroom with a general distrust of lawyers and the legal process. Trust must be earned. So how do you earn the trust of jurors who are inclined to view you with great skepticism from the get-go? Here are a few tried-and-true suggestions.
- Be Yourself. Don’t try to be someone you’re not. Jurors are very wise and astute judges of character and they typically see right through any attempts to adopt a role or persona that isn’t truly yours to begin with. Yes, adjustments are sometimes necessary depending on the venue, but making a major change or adopting a trait that does not come naturally will seem disingenuous.
- Talk Like A Friend, Not An Attorney. I cannot begin to count how many surrogate and actual jurors have voiced feeling utterly disconnected from presenting attorneys. If a juror does not feel accepted, respected and — in many ways equal — to the presenting attorney, establishing a sense of trust (and rapport) will be a monumental challenge. One easy way to build a bridge of trust between you and the panel is to leave the legalese at home. Yes, everyone knows you’re an attorney. The panel knows you’re smart, but using six-syllable words or terms that are not in the jury’s everyday-talk-around-the-water-cooler vocabulary will create a distance, rather than a bridge, between you and the panel. You never, ever, ever want to risk coming across as condescending, but the more conversational you can be, the better.
- Be Fallible. People make mistakes every day, and jurors will trust you more if they view you as fallible. Human. Like them. If you make a mistake or a misstatement, if you forgot to address something, or if you just need a few seconds to get organized or collect your thoughts… admit it. Out loud. It needs to be done with the utmost respect for the court, but if done so with a professional dose of self-deprecation and humility, it can actually help make you more trustworthy in the eyes of your jury panel.
- Embrace the Bad. This is a strategic decision that will need to be made on a case by case basis, but if there are bad or weak facts embedded into your case — and let’s be real, there always will be — it’s far better to admit those shortcomings before opposing counsel can put a negative spin on them. Is your witness a recovering drug addict? Does your corporate client have a negative reputation in the community? Did your key witness author some troubling memos? Admit the most troubling bad facts up front. Address your dangerous weaknesses. Alert the jury to the fact that you are not running away from these things and that you accept them as part of the story. By putting your cards out on the table — good, bad and ugly — jurors will be more willing to accept you as honest and upfront. And with that? Comes a belief that you’re someone who can be trusted.
- Be Prepared. Being ill-prepared is an avoidable detriment. Some believe that successful outcomes are related to out-preparing the other side; I tend to ascribe to this school of thought. And who’s more trustworthy? The advocate who fumbles through a stack of paper or has no clear direction in Q&A, or the advocate who has a plan, sticks to it and delivers with clarity and precision?