A Winning Case
How to Use Persuasive Communication Techniques for Successful Trial Work (Prentice Hall)

EXCERPTS FROM CHAPTER 1

HOW TO GET JURORS ON YOUR SIDE RIGHT FROM THE START: CREATE A WINNING FIRST IMPRESSION

Within the first few moments that the jurors see you, they decide whether you are to be believed or not. Your initial physical presentation of yourself determines how the jurors view you, what they think of you and your client, and how they assess everything that is to follow: it is the background against which your every deed and word is evaluated. Your first impression with the jurors is the key to your credibility.

HOW TO ESTABLISH YOUR CREDIBILITY WITH A JURY

What is credibility? Credibility is your believability factor in front of a jury. Credibility is the jury's willingness to believe something is true because you say it is true.

Credibility is what inspires confidence and influences decisions. Most attorneys take the notion of credibility very seriously - but only as pertains to the content of their case, to their witnesses, to the believability of their client. All too often, they ignore the most fundamental credibility of all - their own. Yet credibility is the very foundation of your success as a persuasive advocate, and because it is so important, it must be carefully established.

District Attorney Robert Morgenthau sums up the informed opinion of many outstanding trial lawyers when he states, "A lot of jurors make their decision not only on the evidence but on whether the lawyer is believable." (1)The worthiness of your client's cause is intimately related to your perceived worthiness. If the jury believes you are credible, it is willing to extend that credibility to your client and to your case. You are every bit as much on trial as is your client.

How to Recognize and Use the Two Basic Elements of Credibility

Credibility is composed of two basic elements:

1. expertness, the attorney's ability to make valid statements; and
2. trustworthiness, how fair and sincere is the attorney in making these statements.

Expertness
Expertness relates to how well you have prepared your case, how thorough you have been, how "professional". "Professional" is defined by jurors as "careful presentation of the evidence": the prototypical lawyer is one who is "meticulous and incisive". (2)

Trustworthiness
Trustworthiness includes "authoritative presentation" and the juror's perception of the attorney's "demonstrated allegiance and zeal for his client's cause". (3)
In assessing your credibility, the jurors look specifically at the following:

1. How well prepared are you?
2. How carefully do you present the evidence?
3. How sincere and fair are you?
4. Do you truly believe in your client's cause?

HOW THE JURORS FORM THEIR CRITICAL FIRST IMPRESSION OF YOU AND HOW TO TAKE ADVANTAGE OF IT

In their initial assessment of who you are, jurors rely on the most basic of decision making processes: gathering information, then assessing it. Scrutinizing the attorney, client, and witnesses for outward signs of worthiness and sincerity are significant parts of the information-gathering process; right from the start of trial, jurors often keep extensive notes of what attorneys do, including their personal grooming, habits, and gestures. Whether we like it or not, appearances do matter. They directly influence what the jurors think of you and therefore how they respond to you.

Since the jurors cannot ask questions, they must use what is going on in front of them as the sole source of the information that will go into their decision-making. Consequently many behaviors which would in the course of daily life go unnoticed, and certainly unjudged, suddenly assume new and critical proportions.

CASE IN POINT

Situation #1:
An attorney gropes in his briefcase for a document
Jurors' Reaction:
Jury takes this observed behavior as evidence that the attorney is unprepared and therefore probably incompetent.

Situation #2:
A businessman gropes in his briefcase for a file
Associates' Reaction:
The businessman is looking for something.

Situation #3:
An attorney twists his wedding ring back and forth
Jurors' Reaction:
Jurors interpret this as nervousness and judge the attorney to be incompetent: if the attorney is nervous, he must be worried, so he must not be doing well, and he must be losing his case.

Situation #4:
A man is seen twisting his wedding band while waiting for a bus
Onlookers' Reaction:
The ring-twisting goes unnoticed or is deemed a meaningless personal habit.

In sum, your perfectly innocuous personal habits and mannerisms are read as meaningful clues to your credibility, and take on a life of their own.

The Lasting Value of a First Impression
Not only is a first impression created almost instantaneously, but it is very difficult to alter once it has been created. Research demonstrates that people hold tenaciously to their first opinion, and will attempt to deny or devalue information which appears to contradict that first opinion.

CASE IN POINT

In rape cases in which the defendant is good-looking or handsome, women often ignore the facts pointing towards the guilt of the defendant, claiming that anyone who is that attractive has no need to rape in order to be sexually satisfied. The women prefer to trust their first opinion, based on the initial impression, "attractive, therefore not a rapist", to the facts of the case. A sobering thought.

Although it is very important that you maintain a favorable opinion of yourself with the jurors throughout the trial, the construction of their first opinion is the most important of all, because it is the most difficult to undo.

How Jurors Assess your First Impression

The great trial lawyers truly believe in their client or their client's cause, and this belief shines through and informs their every word and action. It is this belief which convinces the jurors of their credibility. Now, you may have the same belief in your client and/or his cause, but if you do not express that belief both verbally and non-verbally in a way which the jurors perceive as sincere, that is to say credible, you will not be believed.

Jurors assess what they see by a process called "stereotyping", which then becomes the basis of their initial impression of you. Knowing how stereotyping works allows you to use it to your advantage in creating a credible first impression.

Stereotyping is the process which allows us to conduct our daily affairs with the speed and efficiency dictated by modern life. Stereotyping helps people figure out what to do with complex information by organizing and simplifying it; it enables us to categorize information virtually instantaneously so that we may react or respond appropriately.

CASE IN POINT

Situation #1:
A worried looking middle-aged woman, wearing a plain but clean housedress, carrying a crying child in her arms asks you for help.
Stereotyped Interpretation:
Your instant stereotyped interpretation of the situation is: "Here is a concerned mother, the child is crying, he's probably sick."
Appropriate Response based on Stereotyped Interpretation:
You respond to her plea with compassion, and try to help her.

Situation #2:
A young man, long greasy looking hair flapping in the wind, dressed in torn leather with metal studs, tattoos adorning his naked chest, roars up on a motorcycle and asks you for help.
Stereotyped Interpretation:
Your instant stereotyped interpretation of the situation is: "This man looks like a Hell's Angel, his plea for help is undoubtedly just a way of getting me close enough to him so he can steal my wallet or knife me."
Appropriate Response based on Stereotyped Interpretation:
You pretend you never heard the man's plea, and duck into the nearest shop to avoid him.

Stereotyping helps us interpret and evaluate new information on the basis of what we already know, and thus helps us to make potentially meaningless situations, meaningful. Once an individual has made sense of a situation, he can anticipate future behavior or events based on the stereotype, and so is free to go on to deal with other matters.

CASE IN POINT

An attorney fidgets and keeps chewing on his mustache during opposing counsel's cross examination of his witness. The fidgeting and chewing are stereotyped as evidence of worry and anxiety. The jurors' assessment of such worry and anxiety is that the attorney must be ill-prepared and therefore unprofessional. With this frame of reference in mind, the jurors now know how to interpret anything the attorney does, and so are free to attend to other events occurring in the Courtroom.

You create an impression of yourself whether you do it on purpose or not. It doesn't make a bit of difference if you spend hours of thought, creativity and effort to create a given impression or don't spend a moment on it, the result is the same: people will respond to you on the basis of their perception of who you are.

Let me repeat that last statement because it is critical: you will be responded to in function of how the jurors perceive you, not in terms of who you really are. This is an important distinction. The worried woman in the example cited earlier could have been a kidnapper, the motorcycle rider could have been honestly in need of help. Most certainly, attractive looking men have been known to rape. These are realities. But all these people are responded to in function of how they are perceived, not in function of who they really are.

CASE IN POINT

In a study by Kraut & Poe (4), observers tried to determine, during the course of a Customs interview, which airline travelers were smuggling contraband goods and which were not. Observers shared such a clear consensus about the stereotype of how a smuggler behaves, that they agreed to a striking degree as to which travelers were smugglers and which were not, yet in reality, the observers were almost always wrong in their perceptions. Regardless of the fact that the stereotype did not conform to the real behavior of smugglers, it was maintained as the guiding principle in "how to discern a smuggler".

The problem then is not, are you credible, but rather, is that what comes across? If you don't express yourself in ways which are stereotypically recognizable to the jurors as credible, you will not be perceived as such. Many attorneys are indeed trustworthy and highly professional, yet do not realize that their overt presentation of themselves goes directly against this inner reality. How then do you present yourself so that your inner trustworthiness and professionalism comes across as such?

Leave your habitual ways of expressing your persona at the door of the Courtroom, and attend to how you want to be perceived when you are in the Courtroom. What matters to your case is not who you know you are, but whom others perceive you to be. Hopefully, they will end up being one and the same. The inner sense you have of your own honesty, sincerity and worth will be translated into observable behaviors reflecting those qualities.

CAUTION

Sincerity cannot truly be faked. It can be imitated perhaps for awhile, but it cannot be pretended for any length of time. Therefore, it goes without saying, that if you are not sincere in the representation of your client and his cause, no amount of communication skills training will somehow "give" you that sincerity. It is your first consideration, as an advocate, to be both trustworthy and expert, to be thoroughly grounded in the law and well prepared, to pursue your client's cause with "passion and zeal".

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