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Your Trial Message

(formerly the Persuasive Litigator blog)

Reconsider the ‘Rambo Style’ in the Courtroom

By Dr. Ken Broda Bahm:

In the vast majority of my experiences with the legal system, attorneys and parties are painstakingly civil, as a rule. However, in my two most recent trials, there have been notable exceptions to this rule. In one case, opposing counsel, after making discovery a miserable process for both counsel and witnesses, could not resist directly insulting our attorney and calling our clients “liars” at every opportunity. In the other case, counsel was well-behaved, but the parties at the other side’s table could not resist making faces, muttering to each other, and in a couple of instances, storming out of the courtroom in apparent disgust. Happily, we won both cases, and part of the reason — I firmly believe — is that for jurors, incivility especially in the formal setting of the courtroom is a huge turn-off. That means that the lawyer who embraces the mythos of the aggressive and hostile “Rambo attorney” is usually doing so to the detriment of their own credibility and interests.

Recent research coming out of the law and social psychology program at the University of Nevada, Reno (Edwards, 2022) backs that up. The author, Charles P. Edwards, was looking at a larger question — specifically the persuasive effects of direct and indirect emotional manipulations in the courtroom — and in the process, he tested the effects of manipulations on civility, fear appeals, and stealing thunder while also considering the influence of gender and cognitive processing style. The results on incivility, however, caught my immediate notice. Recreating the “Rambo” style in the defense attorney’s cross examination of an opposing expert, the research found that use of that approach significantly reduced that attorney’s credibility, with jurors also listing that incivility as part of their reason for decision against that side. In this post, I will briefly review that research and share three recommendations for keeping it civil in the courtroom.

The Research: Incivility Carries a Cost 

Noting that potential incivility is an issue in adversarial settings such as litigation and trial, the author looked at its effects on emotional response and processing. Drawing upon a couple of different theoretical perspectives, he looked at ways that audience emotional response drives processing style, with emotional response leading decision makers to a quicker “heuristic” or “experiential” process, rather than a deliberative and rational process. Noting the prior research finding that emotional processing is associated with a tendency for jurors to punish or convict, he wanted to test whether incivility tapped into that response.

The short answer is that it does. Using a transcript including opening statements, direct and cross examination of an expert witness, and closing arguments in a case of a chemical company being sued for a potentially carcinogenic product, the researcher varied the presence or absence of attorney incivility by creating one version where the attorney constantly interrupts the witness, insults the witness, and refuses to use the title of “doctor” when referring to her.

While the research did not yield a direct effect on findings of liability, causation, or damages, it did lead to higher stress for the mock jurors, and it lowered the attorney’s credibility. When asked for a rationale for their finding against the defense, however, jurors in the incivility condition were likely to mention that as a factor. One noted that the interruptions “made me suspicious of why he would not want further explanations if there’s nothing to hide.” Another noted, “defendant’s rough handling of expert backfired.” Still another said, “the way the defendant during the cross examination kept cutting off the doctor, I thought they were trying to prevent the doctor from telling the whole truth.”

Across all of the manipulations on emotions (including fear appeals and stealing thunder), the study also found that increases in four specific emotions (anxiety, anger, disgust, and fear) resulted in increased liability and causation verdicts, and increased compensatory damages. In this study, those emotions came from the civil defendant, but it stands to reason that when either side is causing that stressed reaction in their audience, they are not helping their clients.

The Implications: Keep It Civil 

While attorneys are oath-bound to be zealous advocates for their clients, they are best served by staying on the “assertive” rather than the “aggressive” side of the line. Pound on the other side’s flaws, bring up the tough issues, and lay out the direct attacks. But do all of that with a style that demonstrates a respect for the process, for the courtroom, for the judge, and for the jury.

I have a few specific bits of advice on how to do that.

Don’t Turn on the Aggression Unless You’ve Won Implied Permission 

The subject of how far an attorney can go without risking a backlash frequently comes up. One decision-rule that I’ve sometimes shared with attorneys is that, if you want to take the gloves off, then the witness needs to have given you “permission” in effect, to do that. How does a witness give that permission? By being aggressive themselves. A witness who is hostile, arrogant, dismissive, or intentionally evasive can create the opportunity for a sensitive attorney to punch back a little. When those witness behaviors are obvious (and remember, it’s the jurors’ standard for what is obvious, not yours) then the jury will cheer on your own efforts to knock that witness down a peg or two. But they have to start it. I have given that advice to witnesses as well: be careful, because you often get what you give.

Understand That the Rules Aren’t Uniform 

The frustrating part of this is that there isn’t a single standard for all attorneys when it comes to civility. As the researcher notes, “display rules are not universal to all attorneys.” In other words, what is going to be seen as “aggressive” when coming from one attorney may be just fine when coming from another attorney. For example, I have written in the past that, despite the past generation of progress for female attorneys, it seems that an unequal playing field remains, and research shows males still have greater latitude in showing anger in the courtroom with less consequence. Beyond gender, it is also likely that there are a host of personal variables that can permit more intense communication for some individuals but not for others. So, just because you saw another attorney do something successfully in a courtroom, that does not mean you can do it yourself. The process of developing as an advocate involves getting to know your own spectrum for what works and feels comfortable and what doesn’t.

Get Some Feedback 

For many attorneys, it simply feels good to be a little aggressive in your communications. And, as all those personal injury attorney billboards testify, clients sometimes seek out a kind of “bulldog” persona in their counsel. But effective marketing isn’t the same as effective advocacy. Attorneys aren’t always the best barometer of how they’re coming across to a judge or a jury. You may feel that you’re just being passionate, incisive, and engaged, but what the decision makers see is someone being a jerk. So seize opportunities to get honest feedback: Hold a mock trial or a focus group, present to mock jurors, and ask them directly how you come across. When you get a chance to ask real jurors after a trial, ask them what they think of both sides.

Of course, there are also ethical and professional reasons for the “Don’t be a Jerk” principle, but it helps to know that attorney credibility and effectiveness rests on that principle as well. Know yourself, know the expectations, know the audience, and keep it civil.

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Other Posts on Delivery Style: 

Edwards, C. P. (2022). Effects of Direct and Indirect Emotional Manipulations on Mock Jurors’ Decision-Making (Doctoral dissertation).