Watch Those Jurors: Body Language Trumps the Spoken Word

The courtroom setting is unfamiliar to most prospective jurors, and sitting with a group of strangers is not necessarily within most people's comfort zone, much less being grilled by counsel during voir dire. In addition to which potential jurors may respond differently depending if they want to be off or on a particular jury. Therefore, their responses may not entirely reflect that person's "truth."

However, an individual's body language will virtually always be consistent with the person's "truth," despite what is spoken. To assess the veracity of any given prospective juror's verbal response, pay close attention to their body language, in particular body language that conflicts with oral responses.

Watch each prospective juror's body language as they respond to questions, whether the

questions come from you, opposing counsel or the judge. For example, if prospective jurors say, "Yes, I can be fair" but their head is going side to side, signaling "No," believe their body language. Similarly, if potential jurors say, "No, I would not be prejudiced against . . . " but their head is bobbing up and down, signaling "Yes," believe their body language which is clearly saying "Yes, I would be prejudiced."

If prospective jurors say they would give damages in a certain type of case, but their arms are crossed in front of their chest, either they won't give damages, or they would award very little.

If prospective jurors say, "Yes, I can keep an open mind" but they squirm in their seat, something about keeping an open mind is making them anxious. Continue to observe the behavior when asking the next questions. See if the squirming continues. If so, this may indicate  a need to visit the restroom or anxiety about being a juror. If, however, the squirming ceases, the person's anxiety was only relevant to that particular question and can be read in that context.

Body language always trumps the spoken word!

Help Your Witness Deliver Effective Testimony with Full Sentences

Rare is the witness who isn't anxious, worried, scared - even terrified - during deposition or cross-examination. Often this leads to a rapid pace of speech. Not only that, but witnesses tend to believe that if they just blurt out their response, they'll get this dreadful experience over with sooner.

Now, there's nothing wrong with speaking quickly, in and of itself, but speaking quickly often results in a failure to think things through. Failing to think through a response can often lead to flawed testimony, if not downright disastrous testimony. Unfortunately, simply telling a witness to "slow down, speak more slowly" may work for a response or two, but with the pressure of nerves, the witness's pace picks up rapidly thereafter.

One technique that works well, while preparing the witness for their testimony, is to encourage the witness to speak in full sentences, and to do so by basically repeating part of the question itself. This has two advantages. First of all, it forces the witness to listen better to the question asked. You can't very well repeat part of the question if you haven't carefully listened to it. Secondly, it slows the response down. The witness is forced to think through the whole of their response, to concentrate. And that assures better testimony.

For example, in response to "How soon after this meeting of May 22 '09 did you have occasion to visit the construction site?" "I had occasion to visit the construction site next on May 30 of '09" slows the response down, as opposed to a simple "May 30, '09." It also helps the witness stay on track with the subject at hand.

This is even more critical with a compound question, for example: "Do you know whether you ever saw water in the trench or ever examined that trench before May 30?" The quick response of "No”"could be inaccurate as to either seeing the water or examining the trench. A full sentence response, such as “I did examine the trench before May 30, and I did not see water in the trench before May 30" wordy as it may be, could be more accurate.

Full sentences work, both in terms of slowing the witness down so that his/her brain is engaged before the response is offered, and of producing a more accurate response.

Classic Juror Misunderstandings

The brilliant cartoonist, Wiley Miller ("Non Sequitur"), captured the misunderstandings between men and women as few others have. For example, the wife says: "Let's go shopping." The husband hears: "Let's go drain the life force from your body." The husband says: "Honey, are you almost ready yet?" The wife hears: "Life as we know it will cease to exist unless you can alter the space-time continuum."

My experience with jurors has led me to conclude that similar misunderstandings occur regularly in the Courtroom between attorney and juror. For example, the lawyer says: "Negligence." The juror hears: "Forgetfulness." The lawyer says "Proximate." The juror hears "Approximate." The lawyer says: "Standard of care." The juror hears: "Like OSHA." The lawyer says: "Preponderance." The juror hears: "Heavy thinking."

I could go on and on. Lawyers like to say a graphic will "depict" things. Jurors need to know what the graphic will "show." The lawyer says this event was "prior" to the current one. Jurors want to know what came "before" what. And "aforementioned" doesn't even compute.

You must speak a language the jurors understand if you are to persuade them. For example, explain legal terms such as negligence so there can be no confusion with the more common use of the term, forgetfulness. Use words you used before you became a lawyer; common words, easy to understand words, words that don't require more than a high school education.