Behavior, attitude, lack of professionalism and poor organizational skills can cost attorneys a good case by alienating the jury
(originally published in The Daily Journal, Verdicts & Settlements)
Good cases are often lost by lawyers who unwittingly alienate jurors. Jurors expect attorneys to be consummate professionals. Their assessment of professionalism goes beyond the attorney's ability to present the case with sufficient legal expertise. Jurors are regularly turned off by certain behaviors lawyers engage in, having nothing to do with the case, which color the perceptions of the jury and ultimately their decision-making process.
Here are five of the most common “juror turnoffs” and how to avoid them:
1) Appearing rushed, harried or unprepared
The attorney who rushes into the courtroom, slightly out of breath, and drops his or her files in a pile on counsel table, finds his or her professionalism immediately suspect in the jurors' eyes. The attorney has not yet found disfavor with the jurors, but they wonder, at this point, if the attorney “has what it takes.” If the attorney then rifles through files, has trouble locating documents, and has to hurriedly send someone out to get something, the jurors wonder just how good he or she really is. Later, when the attorney cannot readily find a document to present to a witness, the attorney's credibility drops further. If the attorney presents an exhibit out of order, or cannot point easily to the portion of the exhibit referred to, the attorney loses yet more favor with the jurors.
The truth of the matter may be that the lawyer is not ill-prepared, simply has a lot on his or her plate. The jurors don't know that and don't care. To them, this case is the most important event in their current lives, and they expect this case to be the most important event in the lawyer's life. Therefore, the lawyer must make every effort to appear unhurried, organized, and prepared to the nth degree. That is what the jurors expect of attorneys and that is what creates the most favorable assessment.
The lawyer should make every effort to arrive a little early to the courtroom. Before walking into the courtroom, take a breath, adjust your posture, and walk in with confidence and good energy, even when the case is going poorly. Make sure he has with him or can readily find everything needed for that day, including files, exhibits and documents. Have a well-trained assistant on immediate standby to field whatever surprises may occur.
2) Lack of clarity
Lawyers may have a stellar case, the facts lining up beautifully to support their interpretation of the facts, but if the lawyer fails to set these facts forth with sufficient clarity, the jurors will turn a deaf ear. Jurors are annoyed by lawyers who don't show how A leads to B resulting in C. Jurors lose interest in lawyers who confuse them by bringing up points they don't tie in to the themes of the case. Jurors also tune out lawyers who speak too quickly or use language unfamiliar to them. In short, jurors want to hear something they can understand.
To this end, it is critical that lawyers make sure they have solid case themes, and that points are lined up so they fit within that theme, that witness testimony and other evidence are tied to those specific points. It is helpful for the lawyer to think literally in terms of “Does my point A lead to point B and is the inescapable conclusion point C?” Focus groups are very helpful in showing the attorney where in the case that is or isn't happening. Charts or other visuals clearly demonstrating the lawyer's key points are among the best ways to illustrate and make evident the connection between points and/or testimony. Timelines in particular are enormously helpful to jurors.
In developing the opening statement and questions to ask of witnesses, the lawyer should ask repeatedly, “Are these words that a lay person with a high school education can easily understand?” When in doubt, the vocabulary used on TV news programs and popular series can be a good guide. The lawyer can also use the rate of speed at which seasoned TV anchorpersons speak as a guide to the verbal pace jurors are accustomed to listening to. Again, a focus group is useful in determining these aspects.
3) Hyperbole in opening statement
Few things are as upsetting to jurors as a lawyer declaring in opening statement “And the evidence will show” or “and you will hear” when the evidence is paltry and the witnesses less than credible. As important as it is to set forth the case strongly in opening statement, it is equally important not to mislead the jurors. They are very unforgiving on this point. If the lawyer is not 100% certain that evidence and witnesses will measure up, it is wiser to err a little on the side of caution, and then in closing argument, be able to say with conviction, “Not only did ABC happen as I told you it would in my opening statement, XYZ also was demonstrated.”
4) Disrespectful treatment of a witness
Disrespecting a lay witness is displeasing to jurors. Jurors relate more to lay witnesses than to anyone else in the Courtroom. They are the people most “like” the jurors. Even if the witness is dishonest, shifty, and generally the type of individual people don't want to meet in a dark alley, the lawyer should treat the witness with ordinary courtesy. The lawyer can be outraged by the witness's conduct and still treat the witness with humanity. Lawyers who do so are considered more professional by the jurors; their credibility is increased.
Other ways in which the attorney disrespects witnesses are more subtle, yet highly distasteful to jurors. Failing to listen closely to a witness's answers and thus ask questions which are repetitive or don't take the witness's response into account, turns jurors off. Failing to acknowledge the witness's answer in some way, finds disfavor with jurors.
Listening attentively to witness testimony and factoring the response into the lawyer's next question or line of questioning is just plain good lawyering, in addition to resonating well with jurors. Acknowledging a witness's answer with a head nod, for example, or “uh-huh” response signals to the jurors that someone like them (a lay person) is important enough to listen to fully, thereby upping the lawyer in the jurors' esteem.
5) Sudden changes in demeanor
To the jurors, a trial is serious business. Lives, reputations, money and more are at stake. The lawyer who turns to opposing counsel during a break and cracks a joke, or engages in anything more than perfunctory civilities with opposing counsel, is immediately suspect in the jurors' eyes. Jurors may figure out, intellectually, that lawyers know each other, that they may have a relationship other than the one ongoing in the courtroom, but emotionally, jurors have trouble with that. Jurors are most comfortable with the lawyers maintaining their position as “polite enemies” towards each other. Jurors expect lawyers to be civil towards each other, but not to engage in interaction other than that necessary for the smooth proceeding of the trial.
Similarly, the lawyer is who is serious, dedicated and determined in the courtroom, but who is heard laughing with colleagues in the corridor, or engaging in an animated discussion about golf scores on a cellphone, will find his or her credibility plummets. The lawyer who reads the paper inside the courtroom, or anything else that doesn't look like a trial brief, loses credibility. Yes, jurors are aware that lawyers have a life outside the confines of the courtroom, but they don't want to know about it. Their lives, during the time they are on the jury, are first and foremost about that trial. Jurors favor lawyers who appear to have the same dedication.
Jurors' impressions of lawyers during the trial are intimately tied to the verdict. That being said, good presentation skills do not compensate for inadequate lawyering skills. To win and win consistently, you must have both.
© 2006 The Daily Journal Corporation. All rights reserved.