By Dr. Ken Broda Bahm:
Once the cases are both in, the witnesses are all examined and, the evidence is before the jury, it is time to close, and for many attorneys, that means ramping up the emotion in order to commit jurors to your position. The exact tone you’re going for is going to depend on the case, naturally, but I’ve worked with many attorneys who believe that closing argument is usually the right time to tap into some legitimate anger about the case in hopes that this rubs off on the jury and motivates them toward the verdict you favor.
But does that work? Is an angry attorney more influential in closing argument? According to a recent study by psychology researchers at the University of Wyoming, Laramie (Choi, Nuñez & Wilkowski, 2022), the answer is yes, as long as that anger is perceived as real. The research team used recordings of a prosecutor’s closing argument in a murder case under three conditions: showing authentic anger, inauthentic anger, or no anger. They note, “We found that the prosecutor’s authentic displays of anger provoked anger in the participants, which, subsequently, increased the odds of a guilty verdict and guilty verdict confidence.” That latter measure of confidence in a verdict can be a critical factor in ensuring that jurors stick to their guns during deliberations. The jurors in this study also saw the attorney expressing authentic anger as more competent, which also increased odds of a favorable verdict. In this post, I will share the practical implications of this finding for attorneys wanting to close strongly.
Don’t Be Inauthentic
In this study, the mock jurors were informed whether the attorney’s anger was real or was faked — and the research reasons for that had more to do with the theories they were testing than with the practical needs of litigations. Of course, actual attorneys can’t simply tell the jurors that their emotions are real. Instead, you have to show them. But the research does show that when that authenticity is perceived, then it works. When it is instead seen as inauthentic, or an act, then interestingly the researchers saw no strong rebound effect (which might explain why jurors don’t hate your overly dramatic opposing counsel as much as you do), but importantly, the fake anger did not help either.
But Do Show Some Emotion
This is a case where the research supports our intuitions: If jurors feel that you care, then they will care as well. And the best way to get there is to actually care. If it is acting, then it is like method acting — you need to tap into actual emotion instead of just trying to simulate a feeling. Think about what is at stake in this case – not just the money, but the principles, the process, and the moral lessons. While the researchers tested the benefits of anger for a prosecutor, and that would seem to also logically apply to a plaintiff, I believe it is a mistake to see emotions as just the province of the side that has the burden. Anyone can frame themselves as fighting for what is right, and the other side’s efforts to block that righteous result should elicit some legitimate anger.
This is also an area of research and practice where there could be differences by gender. Back in the early nineties, my own doctoral dissertation explored the finding that female attorneys have less latitude for effectively using assertive language in closing. There has been a cultural expectation for males to show anger and to gain power through that does not fully apply to females. But interestedly, in this study, the gender of the attorney did not matter: Both male and female prosecutors gained from authentic anger. Perhaps times are changing. In any case, the practical advice is to take advantage of that. As the authors conclude, “The current evidence bolsters the claim of trial advocacy books – that attorneys can gain an edge by expressing certain emotion (e.g., anger) in court.”
Other Posts on Emotions in Advocacy:
- When Assessing Emotions, Listen, Don’t Look
- Know Your Jurors’ Anger Buttons
- Remember that Feelings Trump Facts
Choi, S., Nuñez, N., & Wilkowski, B. M. (2022). The influence of attorney anger on juror decision making. Psychiatry, Psychology and Law, 1-28.