GPSolo | Feature

Juries Are Always Listening, Even When You Are Not Speaking

Cedric Ashley

May it please the court, counsel, members of the jury. The evidence will show that for more than two years, my client—Christine Competent—was the sole female employee of a seven-member sales team. During that time, she suffered through a vile, pervasive, and hostile work environment simply because she was a woman. Crude jokes, pornographic images, and regular groping were as common as morning coffee. Christine reported this conduct to her supervisor, who responded simply with “boys will be boys.” A point came when Christine’s mind, body, and spirit could no longer handle this abuse. She suffered a nervous breakdown and has not been able to work since that day. Tragically, she has been diagnosed with PTSD, and she is a shell of the person she used to be. That’s why we are here today—because her team’s horrific behavior violated the New Jersey Law Against Discrimination. I’ll talk in detail about that later, but first let me tell you a little bit more about my client, her career, and the company that is responsible for the abuse she suffered.

The jury is always taking in verbal and nonverbal communications from you.

The jury is always taking in verbal and nonverbal communications from you.

Well, I hope I have you at the edge of your seat waiting for more. There are many ways to conduct an opening statement, and you should not assume I am saying this is the best way. In fact, I offer this introduction merely to state that the opening statement is not the first time you are communicating with the jury, and the closing argument is not the next time you will communicate with the jury. In fact, because you communicate with the jury at so many microlevels and pivot points, you should be aware that you are on trial as much as the parties are. So, here are six brief pointers for you to keep in mind as you prepare for your next dance in the well of the courtroom.

1. You Are Always Communicating

Like it or not, the jury is always watching and listening to you. Yes, the case should be decided on the facts and the law, but how a juror perceives those facts is another issue. This perception can be filtered or influenced by the attorneys in the case. If the jury perceives you as being dismissive to your client, they too may believe less in your case. If the jury perceives you as being rude to your adversary, court staff, and the judge, yet maintaining the great clown smile toward them, they very well may become defenders of those persons in the jury room via the verdict (or damage amount) they reach. So even when you are not speaking or looking, the jury is listening and perceiving.

2. Communicating Through Assumed Authority

When you are addressing the court on legal, evidentiary, or procedural issues, you are also communicating to the jury. They are not the deciders of these issues, but they will make mental notes of who prevails on the mini-battles within the case. So, what does that mean? Although you need to protect the record for a potential appeal, go for the win! Be selective with your objections. Make sure that when you object, you are virtually certain the court will say: “sustained.” With these results you will suck up the oxygen in the courtroom, and the court and the jury will see you as the default expert to be relied on. Conversely, specious, minor, or loser objections can have a doubly negative impact: you lose credibility and the jury views you as wasting their time.

3. Communicating Through Presence

It is not just what you do and what you say—it is how you do it and how you say it. Trial work is both art and science. If you appear disorganized, uncertain, and apprehensive, you will communicate that nonverbally to the jury. However, you are in total control of this, so you can easily avoid this problem. You want to win? You want the close calls to go in your favor? Play the part! Give the nonverbal communication to the jury that you are in control and the jury can rely on you.

So, how do you do this? First, get your case organized prior to trial. Stop using the outdated twentieth-century file folder, expandable folder, and cardboard box. Switch over to a clean, smooth trial notebook. If you are really ready to take a leap forward into the tech age, consider adding a tablet to your trial presentation mode.

Be mindful that presence also means mastering adverse witnesses during cross-examination. Never, ever, ever take the weak, powerless approach of asking the court “to instruct the witness to answer the question.” It shows lack of presence and power. It’s like saying, “Your Honor, would you please help me do my job?” No, you politely take it head-on. But first make sure your question (or really your statement) was clear, concise, and direct. And then bring the pain:

You heard my question?

Yes.

You understood my question?

Yes.

As you sit here, you are mentally capable of answering my question?

Yes.

But you chose not to answer my question?

Well . . . um . . . I . . . yammer, yammer, drone on.

Let’s try my question again. Isn’t it true that Ms. Competent reported these incidents directly to you?

Yes. She did.

Thank you. And she did that on two separate occasions?

Yes.

Why seek the court’s assistance when you can take the witness down a notch or two? After a couple of these encounters, the witness will not want to relive this experience. The jury will catch on: The witness is dodging your question. And the jury will make the appropriate assessments about the witness’s credibility.

4. Communicating Through Performance

Building on the previous scenario, you also communicate through tone, cadence, emphasis, and other aural mechanisms. For example, in the question: “But you chose not to answer my question?” you can emphasize the word “chose” by speaking louder or slower. You can also demonstrate communicating through performance physically. You can point to the air, toward the witness, or toward the lectern when speaking the word “chose.” You can position yourself differently to emphasize the importance of this line of questioning. If you have asked most of your questions from a lectern near the jury box, you might want to shift to the center of the courtroom.

Similarly, you want to communicate through performance when you use physical evidence in your examinations—particularly as you are confronting adverse witnesses. For example:

Mr. Human Resources, you saw the images sent to Ms. Competent?

Yes.

And those images are P-1 thru P-5 in evidence?

Yes.

The images were of sexual intercourse, correct?

Yes.

You did not take any action against the manager who sent those images?

No, I didn’t.

The images just sat in a folder in your desk?

Yes.

That’s a great examination, but you can take it a step further by using the exhibits during the course of the questioning—besides the obvious of publishing them to the jury. For example:

You did not take any action against the manager who sent those images?

No, I didn’t.

The images just sat in a folder in your desk?

Yes.

Just as they are sitting in front of you now?

Blah, blah, blah. [TIP: I don’t care about the answer, I care about my statement and the images in front of the witness.]

I also might purposely choose to leave the images on the edge of the witness box throughout my examination of the witness, so they will always be in the line of sight of the jury.

Obviously, in this age of technology, the images should be displayed via some type of projector. But don’t forget that the overhead display image is not the actual image that will be admitted into evidence. There is still value to the tangible—the touch and feel of an item.

Physical evidence can also be a powerful performance tool or “prop” during the trial.

How so? Maybe the company has attempted to say that Ms. Competent’s performance was less than stellar. Yet, her performance evaluations prior to reporting the sexual harassment are excellent. Once again, after documents are admitted into evidence, have as much fun as you want with the overhead display. However, as you build up to that point, consider the following:

Mr. Supervisor, you provided performance evaluations for Ms. Competent? [TIP: You ask that as you hold the evaluations in your hand.]

Yes.

You provided those evaluations for five years?

Yes.

Q: Those years were 2011, 2012, 2013, 2014, and 2015? [TIP: Yes, this should be five separate questions. For now, the TIP is about physically using the item as you ask the question—for example, you may move them from one place or hand to another place or the other hand as you reference each year.]

Yes.

This is a way of communicating with the jury by drawing them into the action to come. You are also communicating to the witness. You are telling the witness to stay in line because you have the documents that will keep him there. The entire series of questions could be done with the evaluations in your hand as you pace about the courtroom, keeping the witness on edge. If he says something incorrect or strays too far from the truth you will be prepared to confront him with his own words contained in the evaluations.

5. Communicating Through Your Case

You will always communicate with the jury through your case. So, here are a few pointers. First, keep it simple. It really doesn’t matter if you have a complicated patent infringement case or antitrust case. You need to make it uncomplicated for an uncomplicated jury. Most jurors do not have the level of education of lawyers. Avoid legal-speak and industry-speak. Your case must be understandable to the jury as a whole and to each juror individually.

Second, people understand and learn from stories. From childhood education to movies we now watch, life and learning unfold in the form of stories. Why deviate? Tell a story.

Third, have a theme and a theory, otherwise your case won’t make much sense to the jury or to anyone else. The theme is the overall message. The theory is the legal basis of your claim or defense. Stated otherwise, your theme is akin to the lead guitar and keyboards, and your theory is the drum and bass. Stated another way, your theme is the wallpaper or paint coat of a house, and your theory is the frame of the house.

Lastly, as you structure your case, the order of witnesses, and the examination of each witness, consider the concepts of primacy, recency, and frequency. What are the key points of your case that you want to get out first (primacy)? What not-so-helpful facts or bad facts do you want to bury in the middle of your case? What strong points do you want to end on (recency)? What points do you want to repeat (frequency) throughout the entirety of the case or a particular witness examination?

6. Communicating with Humility, Not Hubris

Breaking news: Nobody gives a damn about you! Or your case—other than your client. Surely, jurors conscripted to service don’t give a hoot about you. Keep this in mind as you are trying your case. Here are some quick suggestions: Stand as the jury enters and leaves the courtroom. During jury selection, try to pronounce names correctly; don’t manipulate answers of jurors; ask personal or uncomfortable questions outside the presence of other prospective jurors; and thank jurors when you are exercising challenges to excuse them. Be mindful of the jury’s time. Try to streamline the case. Be as prepared as possible. Have witnesses lined up and ready to keep the case moving. Where practical, defer legal or evidentiary arguments to times when the jury is on scheduled breaks.

Finally, always try to maintain credibility, dignity, and professionalism. This extends to outside of the courtroom during trial. You never know when you might run into a juror in or near the courthouse. Whether you like it or not, the jury is always taking in verbal and nonverbal communications from you.

Cedric Ashley is a sole practitioner in Princeton, New Jersey, concentrating in business, employment, and criminal litigation. He is the Assistant Editor of GPSolo magazine and serves as a member of the GPSolo Division’s Council. He served as the Diversity Director of the Division for the 2017–2018 Bar Year. He has previously taught the Basic Trial Skills program for the National Institute for Trial Advocacy (NITA) and the Intensive Trial Advocacy Program (ITAP) for Rutgers Law School.

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