What Your Jury or Judge is Saying Without Uttering a Word
As a lawsuit winds its way through the labyrinth that is our judicial system, after the years of legal writing, taking depositions, obtaining and pouring through discovery, sitting through hearings, arguing motions and failed negotiation attempts, the fate of both Plaintiff and Defendant comes to rest with judges, jurors or arbiters. Being able to understand their body language and having the flexibility to react accordingly is of benefit to any litigator, especially when dealing with jurors, who are restricted in speech.
Jurors: Voir Dire
Depending on jurisdiction, attorneys and judges are expected to glean enough to expose potential biases or impartiality and select twelve jurors plus alternates. The average jury voir dire lasts less than an hour, and in that time most talking is done by officers of the court rather than those we entrust with rendering a fair and impartial decision.Cases can be won or lost in jury selection, and how this process is conducted is a hotly debated topic among trial attorneys and jury consultants. Warehouses full of books, articles, and other periodicals have been written on the jury selection process, its many faults, and the benefits of the in-depth examination of prospective jurors that our system affords. Often the only occasions for substantive dialog with members of the jury are during the voir dire process and after the conclusion of juror service. Judges and lawyers are afforded their first and only opportunity to question potential jurors during jury selection, which they do in an effort to determine if there is a reason to exclude them from service by gauging juror personalities, relevant experiences, biases, and opinions on presumption of innocence.
To say selecting a jury is a difficult task would be an understatement. Although jury questionnaires and content of (and answers to) examination questions are extremely helpful in the selection process, identifying personality can be accomplished and corroborated through other means. Concepts gaining traction in the legal industry, such as thin slicing, facial profiling and zero acquaintance, have proven to be strong tools for selecting members of a jury. These concepts focus on making quick assumptions based on all physical aspects of a potential juror’s behavior in order to ascertain personality attributes. Factors such as attire, hygiene, posture, physical presence, facial features, expressions, gestures, the subject’s interaction with those around them, and even hairstyles and manicures are taken into consideration when developing a profile.
While new concepts to the legal world, thin slicing and zero acquaintance theory are widely studied topics in psychology. They are only now gaining traction in the legal field as the validity of such concepts are proven through accuracy of results.
Jurors: During Trial
In a previous white paper, The Applicability of Learning Theory in Litigation, I advocated for the benefits of judge/lawyer-moderated but jury submitted questioning of witnesses. Often such jury questions assist in ferreting out or clarifying information for the jury. Unfortunately not all jurisdictions allow such liberties. Litigators in jury trials often perform the dual role of “advocate for their client” and “teacher to a passive and muted audience.” The key to effective communication in court is doing both well.
So, how does one effectively teach a passive and muted audience? An audience that is unable to give feedback, ask questions, or even let you know they understand your argument?
The good news is that, whether jury questions are allowed or not, it is still possible to glean how arguments register with members of the jury. By monitoring the body language and facial expressions of jury members for subtle cues – such as the nod or turn of the head, crossing of the legs and arms, furrowing of the brows, leaning back in their chair, or touching their forehead – one can tell if a person is confused, agrees, or is put off.
Every litigator cultivates his or her own style over time – how they approach and deliver facts and arguments to a panel of jurors. Watching juror reactions and tailoring how information is presented is extremely important. The best way to illustrate this point is through real world examples.
A Tale of Two Cases: When Information Bites Back
We were hired by the defendants to provide trial consulting services on a personal injury case in Philadelphia at federal court. At trial, a witness deposition transcript was read into the record. This particular witness, a co-worker of the plaintiff, was not especially complimentary towards said plaintiff and had, in fact, insulted his intelligence during the deposition. Of course, defense lead counsel wanted to capitalize on this particular piece of testimony as much as possible.
After the transcript was read in, defending counsel read the insult aloud from the transcript when asking the next live witness if said witness concurred with his co-worker’s assessment of the plaintiff. It was during this particular line of questioning that I noticed squirming in the jury box. Half of the jurors, who had up until then been listening intently with little to no cues either way, began shifting around in their seats when this question was asked. They looked uncomfortable, and the middle-aged woman in the front row momentarily flashed the look of disgust on her face. She had leaned back in her chair, crossed her arms tightly, crossed her legs away from the questioner, and a look of irritation (a raised upper lip and downturned corners of her mouth, facial contractions around the nose, and a furrowing between the eyebrows) crossed her face. I quickly and discretely nodded side to side and made a cutting gesture with my hand to my attorney who had only briefly glanced at me.
For the remainder of the trial, no one on the defense team mentioned the insult, nor did they ask another question regarding the plaintiff’s intelligence or general competence. The plaintiff’s attorney, however, could not let the insult go and chose to pick up this line of questioning where defense counsel had left off. While I can only assume plaintiff counsel was hoping to garner sympathy for his client, as I expected, this line of inquiry (no matter who was actually doing the questioning) did the questioner no favors.
Result: 50-50% shared fault, $0 judgment
A Tale of Two Cases: When Information Bites Back
Often attorneys are focused on facts, issues, arguments, and weaving them all together in a neat story for the jury to consume, but sometimes it isn’t the facts that turn off a jury. How an attorney presents his or her case can overshadow facts and the attorney’s ability to persuade members of the jury.
We were hired by the plaintiff’s counsel to provide trial consulting services on a breach of contract matter in Philadelphia at federal court. The material was complex but the attorneys representing the plaintiff were seasoned, top-notch litigators. Adverse counsel, while capable, was not nearly as seasoned in front of a jury.
The problem became immediately and abundantly apparent to me upon completion of jury selection. My client, who is a well-spoken, perfectly pitched, clear communicator of ordinary height and build, had taken his seat after delivering a compelling opening statement. Defense counsel, who was of imposing stature, walked to the podium, laid several pages on its top before gripping both sides of the lectern and leaning forward in preparation to speak. It was an overtly aggressive posture.
“YOUR HONOR, MEMBERS OF THE JURY…” Opposing counsel’s voice boomed through the court audio system, taking everyone aback with the volume. The jury literally leaned back in their chairs. He wasn’t shouting at the jury, but it certainly sounded like it. After the opening arguments and the first plaintiff witness had been crossed examined by this same attorney I noticed a hysterical pattern with jury body language. I leaned over and whispered the attorney closest to me, “Watch the jury body language the next time that guy gets up to cross.”
Half way through the proceedings, the attorney finally dumped the microphone attached to the speaker system and even apologized for his naturally thunderous voice. It had become apparent, even to him, that his presentation style was impeding on his ability to persuade the jury. Alas, even sans the audio assistance this attorney’s voice carried and he was at a loss on to how to correct the problem; so was everyone else on his team.
Result: Judgment entered in favor of Plaintiff
Obviously, no one can catch everything, especially the body language and facial expressions of multiple jury members, while also focusing on evidence, witnesses, the judge or panel, adverse counsel, and winning your case. Having an experienced and dedicated observer at trial is an asset.
This article is based on the KT Designs’ white paper “Body Language, Technology and their Application in the Legal Industry.”To access the whitepaper in its entirety for free, please visit the whitepaper section of our website: http://www.kt-designs.org/white-papers/
KT Designs is a privately owned company that operates on the ideals of honesty, integrity and transparency. We are experienced in working on cases and projects of all sizes and in most jurisdictions, including internationally. We are devoted to the personal and intellectual growth of our employees and clients, and to facilitating continued learning in our audiences on the most complicated of topics. We consider our clients’ satisfaction and confidentiality above all else.