- If you don’t learn about your potential jurors, you’ll seat the wrong ones.
- Make your trial theme appealing, simple, and fitting the evidence.
Your communication with a jury starts before you speak. From the moment you are in the same room—in fact when you are walking down the hallway on your way to the courtroom—the jury pool is inspecting your every physical aspect: your clothing, hair, demeanor, face, attitude, gait, style—everything.
Before your trial starts, you are on display, and the jury’s perception of your competency puts you on trial from the moment you arrive at the courthouse, long before you stand up to begin your voir dire. Knowing that fact can make a difference before your trial even begins.
Your acceptance by and credibility with a jury starts with how you look and act. It solidifies with what you say and how you say it.
A trial attorney is both actor and director of the stage play that is the trial itself. The jury is the audience. Whether that audience’s verdict applauds you (you win) or throws tomatoes at you (you lose) will depend on how well you present both yourself and your play. The play that you present, of course, is your client’s version of the truth.
Ironically, opposing counsel presents his or her own interpretation of the same play (counsel’s truth), and the jury is watching both of them unfold in roughly the same time frame. Ultimately, they will applaud only one side’s presentation. The prevailing side’s version of the truth becomes, in the process, the jury’s accepted reality.
You have at least three chances to communicate directly with the jury: voir dire, opening statement, and closing argument. You may also get a rebuttal argument. Each presents a unique opportunity to communicate compared with the vast majority of trial communications. However, you cannot ignore the indirect communication that occurs throughout the trial.
Always show the jury and judge the utmost respect and courtesy. Jurors expect it; anything less will offend them, even if a judge may overlook missteps that occur in the heat of a trial.
You should also show a level of professional courtesy and respect to your opponent and all other persons in the courtroom. This is not of the same level that you give to the jurors and judge.
Jurors understand that the two sides do not agree and are battling each other. The jury expects to see a fight. A courteous and professional fight with words, yes—but a fight nonetheless.
At all times, be aware of your dress, technique, and mannerisms. A trial is about the evidence and witnesses presented for the jury’s consideration, not about the attorneys or their personal styles. Human beings can’t help but notice and, at times, be influenced by nonessential and extraneous information.
If the jury thinks you’re not genuine and sincere with others, then it may not accept your evidence as genuine and sincere—or truthful. The result is that you may have great difficulty communicating in an effective manner to the jury.
Use voir dire to make friends with the jury. Be genuinely interested in learning all you can about each juror. Ask open-ended questions that invite responses and promote conversation. Use humor lightly and tastefully.
Be human. Show compassion and attentiveness. Listen: if you don’t listen, you won’t learn about your jurors. If you don’t learn about them, you’ll seat the wrong jurors.
Know your case. Use juror comments as the opportunity to tie in case elements with juror’s experience. And if you excuse a juror in front of the panel, always look at and thank that juror in the same sentence that you exercise your peremptory.
Never go to trial in a case you think you’ll lose. The jury can smell a trial attorney’s lack of confidence. If you think you will lose, you will lose.
Never give a weak opening, and never promise more than your evidence will deliver. Keep strong eye contact. Address negative evidence before your opponent emphasizes it.
Use your opening statement to build your personal credibility and invite the acceptance of your truth as the reality of the case. Introduce your trial theme: make it appealing, simple, and fitting the evidence. Most of all, tell your client’s story.
If you’re plaintiff’s counsel, you begin to write your closing argument at the intake interview. Key facts never change. Now tell the jury how you proved them. Be passionate as you tell the story of why your client should win.
Repeat each side’s opening promises and contrast where you, not your opponent, met them. Where possible, use your opponent’s evidence that favors your case. Replaying video testimony can be powerful.
Work jury instructions into your argument. Explain the damages question in plain everyday language; tell the jurors what you want them to do.
If you get a rebuttal argument, remember that it’s really rebuttal plus another shot at a closing argument.
And at the end, always thank the jury.