Conviction vs Slash-and-Burn

It is often tempting to rip into opposing counsel, or disparage his/her client in emotionally charged vitriolic words, yet such an approach rarely wins over jurors. Sure, you have the shock value of a momentary deer-in-the-headlights stunned witness or a knee-jerk angry riposte from opposing counsel, but in the long run, that’s not what convinces jurors.

Jury studies systematically show that jurors tend to be highly critical and disapproving of such tactics. One time during trial, no problem. More than that, jurors will turn on the offending attorney. Over-aggressiveness has repeatedly been pointed out in jury debriefings as an advocate’s most common flaw.

This is not to say you must turn into Mr./Ms. Meek, not at all. It simply means that you persuade jurors more with positive arguments, such as appealing to devotion to an ideal, or the well-being of the community at large, or the importance of justice. These can be expressed with great vigor and emotional commitment, as long as you are sincere in your delivery.

Conviction in the name of a righteous cause is what wins jurors over, not slash-and-burn verbal onslaughts.

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Read my latest article, "Managing the Angry Client 101" in the September issue of Plaintiff magazine. Click here.

Trust Must Be Earned

Even though your new clients have sufficient faith in your abilities to put their matter in your hands, trust--the bedrock of a working relationship with any client--must still be earned. When a new client walks in your door, your inclination may be to see another problem to be solved, another fee to garner and to forget the human being behind the case. Your client, whether a Fortune 500 CEO or a grieving widow, is a vulnerable individual who has come to you for help.

Two easy techniques can help establish trust from the get-go:

1. Establish eye contact.

People believe you are trustworthy when they can see your eyes. When we say of someone “He/she has shifty eyes,” we don’t believe they are honest or forthright. Thus, when your client speaks to you, make sure you are engaging good eye focus, even if you are taking notes. Make a point of looking up at your client for several seconds, nod your acknowledgement of their point, and only then look down briefly to take a note. Get your eyes back up to your client again as soon as possible.

2. Listen attentively.

Don’t let your mind wander as you listen to your new client’s tale of woes. If an unrelated thought crosses your mind, jot a word or two to remind yourself about it later, and immediately redirect your full attention to the client in front of you. People feel when you’re not really present, and they interpret this as lack of respect.

Use Analogies to Facilitate Juror Identification

Dictionary.com defines an analogy as “a comparison between two things, typically for the purpose of explanation or clarification,” which is the very thing that makes analogies so powerful in persuading jurors. Your jurors come from a variety of life experiences, and may not have a clear understanding or ability to relate emotionally to a given issue of key importance to your case. An analogy is an efficient and effective way to accomplish that. For example, the critical importance of cooperation on a surgical team may be compared to that on a baseball team. However, analogies only persuade under certain conditions.

1. Make sure your analogy suits your jury. If your jury is young, analogies from the Depression or WWII will not only fail to have the desired impact, they may bore your jurors. Not good. If your jury is primarily female, sports-oriented analogies should be used sparingly. Respect the life-experience of your jurors (most often revealed through juror occupations), and tailor your analogies accordingly.

2. Make sure your analogy is accurate. If it isn’t 100% accurate, opposing counsel will be quick to turn your analogy against you.

3. Avoid overstatement. An analogy is persuasive only if it is backed up by your facts. When you seek emotional connection with the jurors without paying sufficient attention to the logic underpinning your analogy, you lose credibility.