TRIAL TACTICS: Confidence

Vol. 38 No. 1

By

The author is with Jackson Walker LLP, Houston.

There’s a saying that great trial lawyers have a massive ego hanging by a thread over a sea of insecurity. There’s some truth to this. You must have some confidence in your abilities to convince clients to entrust their financial well-being, their reputations, and, in some instances, their lives to your counsel. And not everyone is cut out to perform before judges and jurors when the stakes are high. So trial lawyers must have healthy egos.

But the great ones are always doubting themselves and looking for validation in the courthouse. Some of that comes with experience, of course, but, in every case, you face an inscrutable group of jurors who don’t laugh at your jokes and invariably fail to give you a bump or a high five when you score a major point.

Oprah commented about this on her show after her trial with the Texas Cattlemen. She was used to talking to a studio audience who gave her feedback on everything that she did. But the courtroom was different. No matter what she said or how cleverly she said it, there was no reaction from the jury. It unnerved her, she said.

Lawyers face the added problem of having no idea what people on the jury are thinking or how they are reacting to the evidence or the lawyers’ performance. How, then, do you maintain your confidence in the face of the impenetrable jury? One way is through shadow jurors. They are people recruited prior to trial who match the demographics of the real jury, sit in the courtroom only when the jury is in session, and, at night, provide feedback about how you are doing and how your evidence, themes, and presentation are coming through. This is where you have to check your ego at the door. If a shadow juror doesn’t like your watch, get a new one. If a shadow juror says you are smirking, then stop. A seasoned trial lawyer once told me that he had stopped using shadow juries because he couldn’t take the beating he got every night from their feedback. Plus, he said, it made him look bad in front of the client.

But my advice is that you push through that. I recently tried a case in which the jury really did not like my client, and I got some bad reports from the shadow jury. I think distaste for the party often rubs off on the lawyer. At least that’s what I told myself. I did try to moderate my behavior in light of the reports, and it kind of worked. The judge granted a directed verdict. At least he liked me. Of course, it can work the other way. When jurors really like the client, they tend to have good feelings about the lawyer.

Another way to get feedback is through the press. I tried a case that lasted eight weeks and got daily press coverage. After the case ended, I learned from post-verdict interviews of the jurors that the media spin on our case—how the media interpreted the evidence—was similar to how the jury viewed it. Then there is social media. The Casey Anthony criminal case has been dubbed the first social media trial, and it has been reported that the lawyers in that case followed the Twitter and Facebook accounts of the trial and allowed what they read to inform, in part, their strategy. The mainstream media and especially the social media are much closer to the perceptions of real jurors than any lawyer.

In the end, however, the good trial lawyer has to rely on himself or herself and on his or her own instincts and project an air of confidence. That requires meticulous preparation and a forcefulness of presence. As a senior partner told me right before my first jury trial, “Be confident and so smooooooth.” Didn’t work. I was anxious and nervous, and I lost. But I got over it. Now I just have to keep away from that ocean of insecurity.

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