Dr. Noelle Nelson

Acting Confident When Bombshells Hit Soothes Jurors:
Lawyers who maintain aplomb in court despite setbacks keep credibility with the jury
(originally published in The Daily Journal, Verdicts & Settlements)

One cornerstone of courtroom success is preparation. Even with zealous preparation, the unexpected mishap is inevitable at trial. Without an appropriate response, that “unexpected” calamity can quickly go from mishap to disaster. The following guidelines are designed to help trial lawyers not only stay out of the realm of disaster, but also transform misfortune into an opportunity to shine in front of jurors.

1) Never let them see you sweat

Jurors look to trial attorneys for signs of how the case is progressing. A confident, well-prepared, well-organized attorney has immediate credibility with jurors. Jurors will assume that such attorneys would not take on a case that didn't have merit. As long as attorneys maintain credibility, regardless of the circumstances, they will find favor with jurors.

For example, the judge repeatedly overrules an attorney's objections, not once, not twice, but several times. The attorney is crumbling inside; feeling that surely the jurors know the case is being demolished. More often than not, the lawyer's voice and body language reflects this diminished self-confidence. Instead of letting body and voice show defeat, the more the judge overrules objections, the more important it is for attorneys to keep their posture erect, and head straight ahead, not slumped or bowed. Lawyer should maintain an open, appreciative look on their face, as if to see “Ah, yes, all is well, this is fine.”

When it is appropriate to give thanks, the lawyer should thank the judge for negative rulings with the same vocal aplomb as would be used when thanking the judge for a favorable decision. Even after being rebuffed by a judge or witness, litigators should behave as if they won the point by maintaining good posture and an attentive look. At no time should the lawyer allow body language to express dismay, disappointment, frustration or disapproval.

Jurors watch lawyers attentively to see how they react to a judge's negative ruling. If they determine that the lawyer was not flummoxed, they will assume that the objection was not critical to the lawyer's case and thus the lawyer's case remains valid. This perception is critical if the lawyer is to prevail.

2) Don't bury yourself deeper

The unthinkable happens. A key witness just dropped an unexpected bombshell and the attorney is in shock. Surprise is written all over the attorney's face. Trying to recoup quickly, the lawyer, instead, stutters and stammers before asking the next question. Of course the witness continues to answer in a way that further damages the case. Jurors are by now thoroughly awake, interested, and aware that something has gone terribly wrong. The attorney's credibility and along with it, the validity of the case, has just hit a new low.

No matter what happens, no matter what is said, lawyers who are examining witnesses on direct or listening when their witnesses are being cross-examined, should not show surprise. Jurors respond poorly to surprise. They take it to mean that the lawyer is not well versed in the case. Lawyers can certainly show surprise when opposing counsel 's witnesses say or do something unexpected; surprise can even be used consciously as a guiding mechanism for jurors. However, when examining or responding to the examination of one's own witnesses, surprise is not juror-sympathetic. Instead, when that bombshell is dropped, attorneys should simply tilt their head forward, and to the side just a little, averting their eyes as well, nodding perhaps, as if in deep thought (remember, jurors respect thought).

Attorneys must allow themselves to stay in that thoughtful position for a moment or two while they recover from their internal state of complete panic, and summon up the best phrase or question with which to proceed. When they are ready to speak, they must do so in a clear, confident voice, while using good eye focus so that they re-establish their credibility with the jurors. Through their stance and voice, jurors are reassured that, indeed, all is well with the case.

With rare exceptions, jurors don't know what is a bombshell and what is not. It is how attorneys respond to what their witness said that tells jurors whether the attorney is in trouble. Attorneys must not bury themselves further by indicating non-verbally to the jurors that the bombshell was devastating.

Instead of going into a lengthy series of questions and answers to try to prompt a witness to turn a bombshell into something less onerous, it is best for the attorney to recalibrate, adjust, and move forward.

3) Recalibrate, adjust and move forward

Let's say a witness dropped a bombshell and the attorney responded credibly and to the point. The lawyer must then repair the damage. The best possible way to approach any mishap is to think of it as an opportunity to present the evidence in a more effective manner. Never think of it as “Dang, there goes my case.” Attorneys should consider themselves as generals overseeing a battle. Whenever a skirmish is lost, the general must back off and recalibrate strategy to win regardless of the setback.

The attorney thought process should be, “OK, which of my witnesses can explain or present this bombshell in a way that advances my case?” The lawyer must go beyond pure damage control and think creatively. Look hard enough and there is a silver lining to just about every grey cloud. The renewed confidence the lawyer brings to the case by virtue of thinking in this manner will translate itself to the jurors. They will be even more convinced by a lawyer who can “roll with the punches.”

This is a skill best acquired with practice. Lawyers should take every opportunity, whether reviewing other attorneys' cases or their own, to ask, “How could I present or explain this in a way that would make the case even stronger?” Trial lawyers should always be looking for more and better ways to explain and present what on the surface appears to be unexpected damaging testimony.

Nothing replaces thorough preparation for trial. The most successful lawyers run a litany of “what-ifs” for every case. They argue cases from opposing counsel's point of view so as to better prepare for their own. Although this preparation will not eliminate every trial mishap, it will greatly decrease their number. Part of an attorney's trial preparation is to learn to react to the unexpected bombshell. Reacting calmly and effectively when the unthinkable occurs will enable an attorney to remain persuasive in front of jurors regardless of the circumstances.

© 2006 The Daily Journal Corporation. All rights reserved.

© 2016 Noelle Nelson All Rights Reserved