Jurors Live By “What You See Is What You Believe.” Ignore It At Your Peril!

  

“What you see is what you believe” – is true not just of how jurors gauge the veracity of a witness or party’s testimony, but also of how jurors assess you when you sit at counsel table.

Jurors evaluate your demeanor according to stereotypical interpretations; they have no personal knowledge of you that would allow them to determine otherwise.

For example, are you sitting hunched forward, leaning heavily on your forearms or elbows? Jurors may conclude that you are worried, defeated by that last response a witness made. Are you sitting straight, with your arms crossed in front of you? Jurors may take that as meaning you are angry with a witness, or upset by whatever just transpired. Are you fidgeting with your pen? Your glasses? Jurors can readily interpret such mannerisms as indications of your anxiety.

The nonverbal messages you express – consciously or otherwise – are as important to juror impression as are the words you speak.

You must exude self-confidence (not arrogance!) in body as well as voice, for the jurors to be willing to be led to the conclusions you want them to make. They will be reluctant to be led by an attorney who appears anxious, worried, or defeated.

“Grace under pressure” is not a cute aphorism. It is a truth that successful attorneys embody in every aspect of their demeanor.

 

Focus Groups Save the Day–on Broadway!

 

History sometimes provides us with useful lessons for present-day concerns – even if seemingly unrelated to trial techniques. One of my personal favorites is the story of how a potential Broadway flop, Spider-Man: Turn Off the Dark, went from the media comparing the show to the Titanic, i.e., a massive failure, to a $160 million Broadway blockbuster in a few short months. This is due to the producers’ willingness to take drastic measures to turn their incipient flop into a fabulous success.

Among those measures were—you guessed it—focus groups. The producers realized that audience members were leaving the preview performances confused, so they conducted focus groups investigating specific aspects of the show. Production stopped--a radical move--to implement changes based on focus group feedback.

It worked.

Your cases deserve no less. A focus group is a relatively low-cost pre-trial strategy to give you the winning edge. There is nothing that can replace vigorous discussion of your case’s strengths and weaknesses among a group of people rigorously selected to match your jury pool.

Unlike Broadway, you can also receive (if the focus group is conducted with this purpose in mind) juror profiles as to “best” and “worst” likely jurors, assessed from the responses of the focus group members.

Yes, it takes effort and the courage to withstand open criticism from a group of strangers. Yet, given that these strangers are willing to give you the feedback that can put your case in an advantageous posture, it’s well worth it, even when you don’t think your case resembles the Titanic. 

Who Wants A Perceived Liar On The Stand? Not You!

 

People aren’t very good at detecting liars. Studies show that people’s hit rate for detecting lies (54%) is slightly above pure chance (50%), which is good news for the liars, but bad news for you in the courtroom.

Why? Because people tend to pay attention to certain cues to determine if someone is lying, but these cues may mean something entirely different.

Take the “vocal immediacy” cue, for example. Vocal immediacy is the directness with which someone responds to a question. The more roundabout or vague the response, the more likely jurors will figure your witness is lying. However, your witness may simply be thinking out loud, which sounds roundabout. Or your witness may not know what to say, and rather than answer truthfully “I don’t know,” or “I don’t understand the question,” may resort to a vague mulling over what to respond, which again, looks like lying.

Another cue is “uncooperativeness.” People often assume that a person being uncooperative is hiding something, being dishonest. Yet often an uncooperative witness is one who argues with opposing counsel rather than answer the question asked, or attempts to force their view of the facts into every response, rather than let their own attorney do the litigating.

Your best witness—among other things—responds directly to the question asked, and leaves the lawyering up to the lawyer.

The best tool I know to help your witnesses get up to jury-worthy credibility is to use role-play in preparing them to testify. You can’t afford to let your witnesses get away with behaviors that could be mistaken by the jurors as those of a liar.