YourABA: October 2012
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Want to win? Establish credibility

When it comes to trying a case, some things never change, says Bob Clifford, principal partner at Clifford Law Offices, in Chicago. Clifford, a personal-injury lawyer, was speaking about the importance of courtroom credibility, demeanor and apologies in a recent Sound Advice podcast from the ABA Section of Litigation.

Whether you’re interacting with the judge, the other lawyers or the jury, “the most important thing you have is your credibility,” Clifford says. Credibility is established through facial expressions, vocal inflections, body language and the manner in which you examine a witness. “It’s your entire self.”

Every person has his or her own way of expressing sincerity, Clifford says. As a trial lawyer, “if you do not communicate the message that you are sincere, earnest and forthright in what you are doing, you will not prevail,” he says. “Every single moment you are in the courtroom, keep that thought in the back of your mind.”

Credibility and demeanor are of critical importance to winning.

When juries are in doubt, Clifford adds, they tend to “let the feather fall on the side that [is] most credible.”

Establishing credibility is not just important for lawyers but also for clients, who will need “credibility training,” Clifford says. “Clients haven’t had the experience of being in the courtroom like you,” he says. “They do not have the skill set that you have. They’re nervous. They don’t know how to act. They don’t know how to dress. They don’t know how to speak. They don’t know how to look at a jury. They don’t know what to do when they’re on the witness stand.”

As part of their preparation, find time to take clients into the courtroom to familiarize them with the environment, Clifford says. “I’ve done it in every single case I’ve ever tried,” he says. He finds an empty courtroom, and “I put them on the witness stand. I put them at the counsel’s table … I let them sit at the judge’s bench. I put them in the jury box. That builds a comfort level that’s very valuable. And it’s important because their credibility is on the line. The jury is going to be looking at them.

“It’s important to communicate to your clients that they need to exude that sincerity, that credibility they have to be there as the aggrieved party, whether it’s as a plaintiff or a defendant,” he adds.

Credibility and demeanor are of critical importance to winning, Clifford says. “You can talk about the law,” he says. “You can talk about the evidence. You can talk about all of those things, but I’m telling you, if the law is against me, the evidence is against me, but my opponent has lost his or her credibility, I know I will win.”

Still, winning also takes knowing when to say I’m sorry, Clifford says. “One of the most important things I’ve learned over the years is that even the most seasoned trial lawyer can make a mistake in the handling of a witness or in the handling of your colloquy with the other counsel or any exchange with the court,” he says, “and therefore a good old-fashioned, humble apology is a very important tool in your box.”

Clifford says he first learned this lesson when he was trying a medical malpractice case years ago and mistreated a witness. “What I thought would be a 10- or 15-minute examination turned into being a one-hour blood bath on cross examination,” he recalls. “And I decimated her. Boy, she didn’t have anything left when I was done with her. The minute I sat down, I said, What a fool you are. What a big mistake you’ve made.”

Fast-forward to the closing argument, when Clifford says he apologized to the jury for his treatment of the witness. He says he stood by the substance of the witness’s testimony, “but that was no excuse for me losing my own sense of courtroom demeanor. I should have taken a higher plane and accomplished the same thing.”

After a successful plaintiff’s verdict, Clifford says in the jury debriefing the first question he asked was about the treatment of the witness. Clifford recalls that the jurors said, “You know, Mr. Clifford, we were really mad at you for what you did. You went too far, and we know you knew it. But then you apologized for it, and that helped us all switch to the merit of what the testimony was and away from our negative feelings about you for what you did.”

Clifford acknowledges that an apology gets him a fair amount of mileage, “and it will do the same for you if you ever find yourself in that situation.”          

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