Paul Luvera, The Daily Record Newswire
In an election year, everyone and their brother have a viewpoint on who did best during a given political debate. As trial lawyers, we should also view debates as learning opportunities for lessons about courtroom communication.
To television viewers, appearances and impression trump logic at a subconscious level in the absence of strong values or opinions. Juries are no different.
• Asking for help — Take the prospect of a presidential candidate embroiled in a heated exchange asking the moderator to step in. Have you ever noticed that it looks decidedly unpresidential? The same principle applies to the attorney who asks the judge to instruct a witness to answer his question or instruct his opponent to refrain from doing this or that. If you have made that somewhat common mistake, you know that nine out of 10 times the judge won’t do it, because he wants to show that he, not you, is running the court and/or he wants to avoid showing favoritism. You not only lose, you look silly in the process. Worse, the jury could see you as weak — not able to deal with problems on your own, having to ask the “teacher” for help.
• Interruptions — What happens during an argument before the judge when you interrupt for attention? Almost every time you are reprimanded by the judge to wait and not interrupt. Worse, you look like a child in the school yard arguing with another child. Interruptions, except to object, are annoying to listeners and a bad practice. Yet candidates do it, and when they do they look like school children arguing with one another.
• Respect — If your mother hadn’t already taught you good manners, a trial will educate you in short order to treat everyone involved in the courtroom with respect. Chief on that list, of course, is the judge — particularly if you are a man and the judge is a woman. A male alpha lawyer easily can, if unknowingly, offend every woman on the jury and everyone else involved in the trial by not treating someone, often a female opponent, with respect. We saw this even in a 2012 U.S. presidential debate, when too often both candidates mistreated a female moderator by talking over her, ignoring her request to stop, and turning their backs on her. Think about what message you’re sending when you choose to engage in an argument. While your intent may be to display dominance, the effect on the jury quickly can disintegrate into unseemliness.
• Self-control — Every great trial lawyer I know or know about has at least one characteristic: self-control. They don’t get excited or show anger. In every situation they exhibit calm poise that exudes power. Think Bill Clinton.
• Demeanor — The importance of body language, expression and appearance cannot be overstated. Among the first to learn this in the mass-media broadcast era was Richard Nixon, who radio listeners thought prevailed in debates against John F. Kennedy. Viewers obviously thought otherwise. Remember that open gestures are inviting, as opposed to closed hands or crossed arms. A confident smile is different than an insincere smirk. The jury will never know exactly what you feel inside, nor should they know. But a confident appearance conveys that you have less to hide.
• Focus — Good debaters manage to answer a variety of questions while remaining focused on their core message, no matter where the conversation takes them. It’s a tricky balance: If you avoid a question to stay on topic, you could end up frustrating jurors who want an answer. But stray too much on a tangent and jurors could be distracted from your core argument. So keep your answers direct, simple and short. Debates have clocks; you need to set your internal alarm. Sound bites and metaphors work for that reason. As tempting as it may be to offer a thoughtful, abstract rumination on a given subject, save it for your book. Stay on track in direct, cross and arguments, no matter where the examination goes.
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Paul N. Luvera is the founder of Luvera Law Firm in Seattle. He was elected to the American Trial Lawyers Association Hall of Fame in 2010.
