With a new year often comes new resolve to be better at who we are and what we do. There is always room for improvement, and that’s certainly true when it comes to arguing in front of a jury.
There are things that jurors like and dislike about the lawyers who speak to them, and incorporating that knowledge into your practice can help improve the impression you make in the courtroom.
After years of speaking with jurors both over the phone and in person, I’ve noticed that patterns have emerged about what they like, dislike and are willing to tolerate in those who try cases. Some attributes and behaviors are obvious, while others more subtle.
Jurors want a genuine person to stand in front of them and make his case (unless you are genuinely a jerk, of course). Attorneys are people, too, and by acting like one, you can better engage jurors.
For example, disclose something personal either during voir dire, if available, or early in the opening and introduction. It can be related to the case somehow, such as acknowledging that you have never personally applied for a patent. It can be mentioning that you yourself once served on a jury, so you understand what the jurors might be feeling. It can be anything that levels the playing field and minimizes the perceived gap between you and the jurors.
In many cases, jurors are already intimidated. Putting them at ease with some humanness, no matter how smart and expert you are, goes a long way toward earning their trust.
Treat opposing counsel (and everyone else in the courtroom) with respect
I have witnessed counsel be pleasant and deferential to jurors only to sneer and be short-tempered with opposing counsel and everyone else on their team. That is counterproductive, as jurors see through this obvious attempt to ingratiate them for the sole purpose of winning them over. Such a strategy quickly backfires, while counsel is left wondering why jurors don’t believe his story.
How can they believe his story when he himself is disingenuous? The most successful trial lawyers I know treat everyone with respect and kindness, no matter how intense the battle.
In post-trial interviews, the “good guys” consistently receive comments such as, “I would hire him if I ever needed a lawyer,” or “She really knows her stuff and we were all impressed with her professionalism and how she tried the case.”
Insecure trial lawyers yell and scream and carry on. You can, and indeed should, defend a case zealously without ever being obstreperous or petulant, regardless of the other side’s style.
Realize that jurors already know you are smart
The best trial lawyers make the complicated simple instead of the simple more complicated. It never pays to try and prove how much smarter and more clever you are than everyone else in the room.
Jurors, like everyone else, do not want to feel like they cannot understand what you’re talking about. Post-trial interviews reveal that attorneys who talk down to jurors are the least liked of the bunch. Be a good teacher, use simple concepts and language without dumbing it down, and do not worry about being the smartest one in the room. The pretentious and condescending attorney may get a good verdict every once in a while, but it is usually given begrudgingly, and often because the evidence was overwhelming — not necessarily because the lawyering was particularly good.
Tell a good story
Jurors are walking into a case cold. Unless the case involves something very familiar to them, such as an auto accident or wrongful termination, jurors start out woefully behind in knowledge of both subject matter and law (despite how expert they may think they are).
Jurors consistently tell me that a case lacked cohesion or they couldn’t follow the story surrounding the alleged wrongdoing; hence, they get lost as they try to navigate their way to a verdict. Most cases should start at a logical point, and that is not always at the beginning or on the date of the incident.
Telling a story helps make the case approachable and relevant. Like most people, jurors are linear thinkers and dislike jumping around. Everyone loves a good storyteller, too. It keeps jurors engaged.
Admit your mistakes
Too often counsel runs away from even the smallest of concessions for fear it will mar the rest of the case. Instead, sometimes it increases counsel’s credibility to say, in effect, that something was handled poorly but it did not have any effect on the lawsuit.
No one is perfect, and jurors look at those pretending to be with suspicion. It should go without saying that this is especially true when counsel is presented with evidence of an oversight or wrongdoing, but I have seen counsel try to dispute even such blatant evidence. Such a tactic casts a pall over the entire case, and jurors have reiterated that point in interviews, saying things such as, “It made me not believe other things he was saying.”
Consider your overall trial strategy and goals. Refusing to concede a small point may ultimately sacrifice a bigger one.
A routine complaint among jurors is that both sides repeat things too many times and take too long to make their points. I know of one case in which the plaintiff’s lawyer made a six-hour closing. Yes, six hours. (Why did that judge not intervene?)
In my experience, even in the most complicated cases, an opening can be whittled down to one hour, give or take a few minutes for any tutorials. An opening is a roadmap to the rest of the case, not the whole case. Witnesses can be questioned fairly quickly. Closings can sum up everything concisely.
Jurors do not want to hear anything ad nauseum, so tighten up your case — then tighten it up again. Case themes are critical as well, because you can say a lot with few words. Be prepared and organized so you don’t waste jurors’ time.
Jurors want to do the right thing. They want to do a good job, and they take their time in the jury box seriously. Make it a little easier for them by being a better presenter and making a better impression. If they like you, it’s easier for them to like your case and your client.
Julie Campanini is a senior consultant at Trial Insights. She can be contacted at firstname.lastname@example.org. A version of this column originally appeared in Massachusetts Lawyers Weekly, sister publication to The Daily Record.