By Dr. Ken Broda Bahm:
The Minnesota State Senate, I learned from a recent NPR story, prohibits eye contact. Incredibly, the legislative body has a rule stating that all comments must be addressed to the Senate President, and that rule is interpreted to mean that senators cannot look their fellow senators in the eye while speaking. The reason for this bit of absurdity is, apparently, that the lawmakers believe direct eye contact leads to hostility and a loss of decorum. According to former majority leader, Senator Tom Bakk, “Going through the president forces people to listen rather than watch facial expressions and look at each other, which sometimes I think kind of inflames some of the rhetoric going back and forth.”
The problem with that reasoning is that it assumes there is a simple and deterministic meaning to eye contact, but there isn’t. Direct eye contact can convey hostility and disrespect, but it can also convey the opposite. The difference lies in what the rest of the face is doing, and also in the situational context. The NPR story quotes a dog behavior expert, Clive Wynne of Arizona State University: “A dog that’s wagging its tail happily while it looks another dog in the eye is maybe communicating something friendly,” Wynne explains, “whereas a dog that growls and has its hackles raised in a very tense body posture — the eye contact may just intensify that threat.” Among humans, an ability to give eye contact doesn’t necessarily increase persuasion, but it all depends on the context. In the complicated context of American litigation, eye contact plays a number of very important roles: It connects, communicates, and builds credibility. So what Wynne says to the Minnesota Senate applies as well in court: “Encourage positive, friendly eye contact, and discourage more aggressive, intimidating forms of eye contact.” In this post, I’ll look at a few different roles for attorney and witness eye contact.
For All Eye Contact
In determining whether eye contact is friendly or aggressive, the key question is: “What is the rest of your face doing?” Here is an exercise you can do privately, and you don’t have to be an actor to do it. Set your eyes on a focal point, and now shift your expression to one of “concern,” now try “happiness,” now transition to “anger.” As you vary the nonverbal message, notice the small and subtle changes in the muscles around your face. The differences might be slight, but if you feel it, then you show it. Remembering that there is no such thing as a “neutral” expression, what you want to convey through your eye contact in most legal settings is interest, attention, and connection: not a blank stare, but an honest and open engagement.
For Attorneys
Attorneys need to show respect to the judge and make a connection with the jury, and eye contact matters to both. But I want to focus on the attorneys’ two key moments in testimony.
In Direct Examination
When questioning your own witness, your focus should be where everyone else’s focus should be: the witness. The point of direct examination is to put your witness in the spotlight. While the witness should focus on the jury (see below), the questioning attorney should join the jury in keeping the focus on the witness. At this point, the witness is the star of the show and all eyes should be on the stand.
In Cross-Examination
Cross-examination is different in the sense that questioners will want the jury’s focus to shift a bit toward themselves. Instead of allowing the witnesses to be the star, the attorney steps into that role, to at least some extent, in order to make a point to the jury about the witness’s unreliability, inconsistency, or general weakness. In that setting, some of the attorney’s eye contact should shift to the jury. Looking at the jury as you ask some of the questions, for example, can make it clear that you are asking on their behalf, and voicing the jury’s own skepticism.
For Witnesses
As the source of the facts, or the source of a key opinion, the witness should pay attention to eye contact.
On the Stand
Look at the attorney when she is asking you questions, then look at the jury to deliver any answer that goes beyond a few words (and that should be most answers, if you don’t want to just “yes” your way through testimony). You should do the same whether it is direct or cross-examination, since you don’t want the jury to see you acting any differently depending on who’s asking the questions. In both cases, receive the question attentively from the questioner, and then deliver the answer directly to the jury.
In Deposition
The ultimate audience for a deposition is the jury that might see it, but at the deposition itself, they’re not there. That makes the question of eye contact a little difficult. Some consultants advise witnesses to look directly into the camera lens, treating that as the jury. I don’t recommend that for two reasons: One, it can look artificial, suggesting to future viewers that the witness is playing to the camera, which seems insincere; and two, it can feel artificial to witnesses, continually reminding them of the presence of the camera, which increases awkwardness and constrains natural communication. The best advice for the deposition witness is to first make sure the camera is positioned near the questioning attorney, and then to simply look at the person who is asking you questions. If the questioner is trying to intimidate, the witness can respond by looking at opposing counsel’s forehead, or at a spot on the table just in front of the questioner.
While there are other factors, like culture, that play a role in most settings in American litigation, positive eye contact with a key audience creates better communication and conveys increased confidence. But it needs to be the right kind of eye contact. So, what dogs apparently understand, and what the Minnesota Senate needs to learn, is what witnesses and litigators should apply every day in court.
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Other Posts on Eye Contact:
- Negotiate, Mediate (and Testify) Eye to Eye
- Don’t Worry About the Jury’s Eye Contact (Worry About Your Own)
- Remember in Court, If You’re in View, Then You’re on Stage
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Image credit: 123rf.com, used under license.