Here is a real email excerpt from a dad who was watching his son’s school mock trial:
At a 4th Grade Mock Trial and when the kid prosecutor finished her passionate opening statement the kid defendant [my son] was so moved he stood up and applauded. This could be a quick verdict.
Universally true? Absolutely, from 4th grade through your next trial.
Lesson? A significant part of preparing your client for trial is teaching them how important their demeanor is in and around the courtroom, especially since every juror notices every little thing your client does.
In post-trial interviews with jurors we hear what jurors actually focused on:
- He talked about his marriage, but I noticed he wasn’t wearing a wedding ring.
- He is defending Ford, but I saw him get out of his Saab in the courthouse parking lot.
- Why did the witness hesitate briefly before getting up on the demonstration ladder [in a product defect case]?
- She kept scribbling notes to her lawyer when the witness was talking.
- He kept squirming in his seat or leaning back the whole time.
- Why wasn’t he here on time?
- He was joking in the security line this morning like this was no big deal.
- . . . and on and on . . .
It is easy to focus on content when you are working with your witnesses / clients. What they say is certainly important, but HOW they say it and what they do all the rest of the time counts, too. Maybe even more. For all the scientific controversy about what body language means, how unreliable it is to “read” body language, and how we can create errors in our own thinking by relying on it as meaningful, people still believe THEY are experts at knowing what the body language of others means. The danger for attorneys, then, is that jurors will read your client’s movements, attach their own interpretation / meaning to them, then use that as a data point in their final decision.
It becomes a piece of the trial, a piece of evidence, you cannot control, so . . .
- Teach your client decorum.
- The best decorum is so neutral it hurts:
- No facial twitches
- No scribbling notes madly
- No huffing
- No eye rolls
- No jaywalking across the street to get to the courtroom
- No high-fives
- Diplomatic politeness from the time they leave their abode to the time they return to their abode matters. They are being watched at all times [i.e., seeing them at a restaurant 2 hours after the trial day ends] and it is better to be too careful than to let their guard down.
- Practice! When your client is meeting with you, let them know that you expect “trial decorum” during all of these prep meetings. “You will play the way you practice” is a good sports analogy for clients to remember. Practicing decorum in your meetings gives you the opportunity to give them feedback about their actual behavior. It is less effective to just tell a client “I want you to act polite and respectful” then it is to point out, “See? You are focused here, not fidgeting, staying calm—all the things we need you to do in court tomorrow.”
- If jurors are going to ascribe personality characteristics to you and your client anyway, then give them a clean, neutral slate. Neutrality will not breed negative attributions. Anything else might because you gave them a seed.
Finally, keep an eye out for this 4th grade prosecutor—she sounds like the up-and-comer your firm might need at some point in the future!
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