By Dr. Ken Broda-Bahm:
A couple of weeks ago, I was in court to help pick a jury in a high-value case. During that early phase of jury selection, the gallery was full to capacity with potential jurors, the counsel and parties were present, the clerks bustling, but not much else was happening. As we all waited on the process and the judge, and as the venire members sat in their pews at times openly wondering how long this would all take, there was a stark difference in the non-verbal communication from the respective trial teams. The Plaintiff’s team had all taken positions facing the citizens who were called in for jury duty, politely but not intensely observing the panel. The Defense team, in contrast, had formed a tight circle on their own side of the courtroom, absorbed in private discussion with nearly all having their backs to the gallery. The message a neutral observer might have taken from the body language is that the Plaintiff’s team was saying to the group, “We are here for you – you are our focus,” while the Defense team’s message was more like, “We have our own issues to worry about… we will get to you later.”
When it came time to start reviewing questionnaires, the Plaintiff’s team made the point of moving to the opposite side of the table so they could sit facing the gallery as they flipped through the pages, while the Defense team in contrast sat facing the bench with their collective backs toward the jurors. The question of whether you’re facing and focused on the potential jurors might seem like a small thing, but this in-court moment struck me as one of the many situations where the motivations for a civil plaintiff can sometimes lead to better communication practices. Certainly, you can take it too far, and it is important be focus on the jury without coming across as a gawker or a stalker. Instead, simply be attentive to the jury, first and foremost. In this post, I’ll share a few thoughts on what that means.
Focus on the Jury
This is common advice given to a witness: Look at the jury when you answer, because it is more credible for you and easier for them to pay attention when they are being spoken to directly. That’s good advice, but it is also not just for the witness. Certainly, when presenting, the jury should be your focus – not just in terms of where your eyes are directed, but also cognitively as well in terms of keeping them at the center of your awareness and adaptation. And remember, even when you are not at the lectern, you are still on stage and should be communicating a respectful focus on and appreciation for jurors and potential jurors.
Radiate Sincere Appreciation
Of course, that appreciation shouldn’t be a performance, it should be sincere. Hopefully, even advocates who have spent decades in the courtroom can remember how unfamiliar, how intimidating, and frankly, how inconvenient it can be for jurors to do their day (or days) of service in court. And the fact that it is technically a legal duty shouldn’t make it any less remarkable that jurors show to do it. Any advocate who cannot hold on to a sincere appreciation for that should find a new line of work. The true message should be this: You’re glad that they are here. You understand the difficulty and the stress, and you appreciate their sacrifice. You’re eager to get on with the process and eager for them to hear what you’ve carefully prepared.
But Keep It Polite and Non-Threatening
There is a distinction between focusing on the jury and studying the jury. Of course, I, and many others, actually are studying the jury. I mean, I’ll literally run studies on what they’re likely to do in a case. But when I’m in a courtroom, I definitely don’t want to project an air of scrutiny. To keep the focus on comfortable and polite attentiveness, here are some things to avoid:
- No staring. Sustained eye contact when you’re not addressing a jury (e.g., at all times other than voir dire, opening, testimony, or closing) is uncomfortable and could be viewed as manipulative.
- No critical expressions. You might be worried or mentally busy about some issue in the case, but wearing a negative expression – a frown or furrowed brows – when gazing at the panel could invite the interpretation that they’re the cause of your stress.
- No writing or typing while looking at the group. Be discrete in your notetaking. You might be writing notes on something else, of course, but don’t take notes while looking at the panel. No one likes the feeling of being judged, and certainly the jury doesn’t want to feel like livestock at the county fair.
In complex litigation, there is a lot else to be focused on: the motions, the other side, the judge. But a jury trial is a unique situation where the detailed machinations of the legal system come into contact with a group of people, i.e., the potential jurors, who are unfamiliar visitors to that world. The visit can be extraordinarily positive, for them and for you, but advocates should try to remember the challenges of that interface and keep the people in your focus.
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Other Posts on In-Court Communication:
- Show (a Little) Facial Expression in Court
- Keep Your Cool in the Courtroom
- Reconsider the ‘Rambo Style’ in the Courtroom
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