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September 01, 2016

How Do I Trust Thee? Let Me Count the Ways: Attorney Credibility in the Courtroom

How does a trial lawyer present a case without falling victim to jurors' negative preconceptions about lawyers?

Ann T. Greeley and Lindsay Eriksson

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Human beings begin any decision-making process, like a trial, with their own pre-existing biases and experiences. These shape how they judge people and the situation at hand. Jurors have told us that they start out with a relatively low expectation that attorneys are trustworthy. Many potential jurors express agreement with the widely held propositions that “plaintiff attorneys manufacture lawsuits to make money” and that “corporate attorneys just defend the bad behavior of big companies.” So how does a trial lawyer present a case without falling victim to these preconceptions? By winning a jury’s trust.

As experienced jury consultants, we’ve come to believe that the real key to being trusted in the courtroom is credibility, not likability. Credibility is a combination of trustworthiness, expertise, professional demeanor, and communication skills. Personality has little to do with these qualities. There is no silver bullet to establishing credibility. Nonetheless, some behavioral and thematic dos and don’ts lead jurors to find a higher level of credibility in lawyers.

To discover these dos and don’ts, we’ve developed a 58-question survey testing potential jurors’ perception of attorneys. Their reactions fall into four broad categories:

  1. Rapport: How friendly, warm, and courteous is the attorney?
  2. Competence: How organized and intelligent is the attorney?
  3. Public speaking skills: How clearly does the attorney explain complex matters?
  4. Annoying qualities: Is the attorney fidgety or nervous? Does the attorney exhibit distracting tics or mannerisms?

Our database contains ratings across a wide variety of criminal and civil cases from venues across the country. It was developed with attorneys playing roles, not in real trials. We combined this data with our work in real trials, and summarized what we’ve learned for this article.

A preface and a caveat are needed. First, the preface: to start with how jurors perceive lawyers in the first place. We’re hardwired to make fast judgments about each other in social situations: Whom do I trust? Who is my ally? Who is the leader? These impressions occur automatically and often subconsciously, and are often experienced as “gut reactions.” It takes only seconds to make up our minds about what we think of someone.

This snap judgment process takes on special significance in the courtroom. Jurors don’t have time to get to know the lawyers in a social setting, so everything a lawyer does is likely to affect their decision as to whether the lawyer is trustworthy or not.

Jurors’ observations of lawyers occur in a heightened state of anxiety or “arousal.” They find themselves in the awkward situation of being in the middle of a dispute or a fight. They didn’t see how this dispute started, and they have little or no independent expertise on its circumstances. Jurors therefore look to the smallest behavioral cues to help them figure out who and what to believe. They depend heavily on their life experiences. They compare the case to something (anything!) in their past that might relate.

Jurors’ tendencies to make snap judgments, their lack of relevant expertise, and their desire to relieve anxiety make them emphasize peripheral cues. They often initially rely on nonverbal behavior more than the logical processing of information. Superficial attributes weigh heavily, at least at first, in their analyses. Jurors evaluate you—the attorney—from the moment they see you. The impressions you make help determine their acceptance or rejection of your presentations of the facts and arguments. If you establish rapport with the jurors, they will find you trustworthy. If you appear arrogant and avoid eye contact, they will tend to reject what you say.

Now the caveat: Over time, the correlation between various attorney attributes and the eventual verdict decreases. The weight of the evidence or, more accurately, jurors’ reaction to the evidence, increases. When the evidence weighs relatively evenly on the scales of justice, credibility remains important.

Things to Do

With the preliminaries out of the way, what follows are tips derived from our research and experience. Keep in mind that trust is built or eroded in small increments, not through some grand gaffe. Think of trust as a piggy bank that every lawyer has with the jury and that starts out with a base level of cash. Here are some things you should do to ensure that deposits are made into your trust piggy bank.

Be professional. Jurors may have a negative stereotype of lawyers as aggressive, arrogant, and rude, based on what they have seen in the media and heard through popular culture. To negate this antipathy, behave professionally. In post-trial interviews with jurors, many have told us that they were favorably impressed when attorneys acted as skilled professionals during trial.

Show respect. In their heightened state of arousal, unsure of what “normal” looks like, jurors are hypersensitive to shifts in tone and manner. They notice it all. Attorneys who address the judge with deference but show disdain to opposing counsel or underlings lose trustworthiness. Jurors think an attorney’s treatment of colleagues and support personnel is more indicative of who the attorney really is as a person than how the attorney treats the judge. Respect does not preclude being a zealous advocate for the client’s cause. Respect for the judicial system, the rules of the game, and all the players translates to perceived trustworthiness, competence, and credibility.

Deliver on what you promise. If you say during voir dire or in opening statement that you are going to do something, do it. Your failure to deliver on the promise damages your credibility. For example, don’t promise to offer evidence you won’t be permitted to introduce. Know the applicable law on admissibility.

Be consistent. Consistency is perhaps the most critical hallmark of credibility. When an attorney contradicts the themes and theory of the case, his credibility suffers. When he claims, “One of our client’s former employees sold the defendant our technological secrets,” but then has no answer when the defense shows that his client’s company stole the technology from the defendant in the first place, his credibility takes a hit. Is the attorney eager to bolster her own witnesses but then rudely attacks the other side’s people? If the lawyer’s demeanor changes depending on who she’s talking to, she can expect a withdrawal from the credibility piggy bank.

Be transparent. At the start of a trial, jurors are suspicious of the parties. Why? Because it’s obvious each party is pulling for their votes. Like most people, jurors have a natural resistance to that kind of pitch. They recognize its potential for manipulation.

Much of jurors’ suspicion also stems from judicial restrictions placed on the introduction of evidence. They aren’t allowed to hear sidebars and some decisions from the bench. The judge instructs them to ignore evidence because one side has objected to what they have already heard. They are told by the judge not to search the Internet for anything they don’t understand. They are warned not to visit the site of the accident to see what happened for themselves. Is it any wonder they’re suspicious about what else may be out there that they’re also not permitted to know or that the lawyers are hiding from them?

How do you counteract their justifiable suspicion? You win their trust by giving them the whole picture. You demonstrate that you’re not trying to hide relevant facts. You don’t obfuscate, ignore, disguise, or put dubious “spins” on the evidence. You show the jurors the entire document. You give each of them a copy, if the court will allow it, and only then do you point to the highlighted portion you want them to focus on.

Don’t try to hurry a damaging email off the screen. One of the jurors will surely notice what it is you don’t want them to see. Don’t rush through your PowerPoint slides. Worse yet, don’t talk about something other than what is on the slide while it is being projected. One juror is bound to think that you are trying to distract them so they will not see something you do not want them to see. Let the jurors feel that the other side is using sleight-of-hand techniques, while you have nothing to hide and are being straightforward. You will be perceived as trustworthy and therefore credible.

Be prepared and organized. Trustworthiness is based on dependability. Dependability in the trial setting requires organization and preparation to ensure a smooth, efficient trial experience. The days of worrying that a visual presentation will come across to jurors as too slick are long gone. Jurors now expect your presentation to be augmented by technology, and they expect it to work seamlessly. Fumbling for exhibits, stumbling through a direct examination, or failing to deliver a succinct, incisive cross will lose jurors’ attention and frustrate their ability to learn. Worse, it will compromise retention of the information you’re trying to convey. Competence imparts trustworthiness and credibility.

Show conviction. It is important that the attorney be sincere, convinced of the justice of the case he advocates. Conviction is important to convince jurors that the company did the required testing on the drug or that the product was safe for the marketplace. If what the company did was flawed but the flaw didn’t cause the plaintiff’s injury, it becomes even more important for the attorney to show conviction. The higher the perceived conviction, the greater the trust and confidence in the argument.

Be direct in addressing claims. You must meet the opposing party where it stands and answer the claims made. Jurors will not find you trustworthy if you only play offense but ignore the holes poked by the other side. In opening statements, summations, and examinations of witnesses, the attorney needs to address the opposing party’s claims and facts, directly and clearly. Don’t chase down your idiosyncratic rabbit hole if you wish to be believed.

Use persuasive communication. Persuasive delivery is a prerequisite to jurors being open to the message. Jurors think they can spot a liar. But this is largely incorrect; in fact, we often draw the wrong inferences from what we observe. We believe, wrongly, that habits such as avoidance of eye contact, blinking, and hesitating when speaking are indicia of lying, when they aren’t. Good liars actually don’t do such things, but because jurors believe they do, you have to work on your delivery. Here are some techniques that are effective in persuasive communication.

  1. Act like you’ve been there before. The legendary University of Texas football coach Darrell Royal frowned on players celebrating in the end zone and supposedly told them, “When you get to the end zone, act like you’ve been there before.” Cedric Golden, Memorable Quotes from Darrell Royal During His Coaching Career, Austin Am. Statesman, Nov. 7, 2012. So too with lawyers—convey that you’ve been in the courtroom before. Be poised. Watch your posture. Don’t slouch when you sit or fail to stand straight and tall, and look relaxed when you’re on your feet. If there is a podium, use it, but sparingly. Then, if you step away, do it consciously and for a purpose. If possible, don’t use notes when you give an overview of the case. Talk directly to the jury. Make sure you’re ready to present exhibits and demonstrative evidence smoothly. Start your theme in the first paragraph. After you have set the scene, introduce your team and your client. In other words, act like you’ve been there before.
  2. Modulate your voice. The good lawyer is not just a good teacher but an effective “actor.” The timbre and quality of your voice is important in establishing a connection with the jury. Too high and you’ll lack credibility. Too soft or low and you’ll seem to lack confidence.

Use a limited range in your vocal quality. Changes in tone, speed, and emotion signal to jurors that the speaker is uncomfortable and is, in jurors’ minds, probably not telling the truth. A moderately low pitch is better than a high pitch in order to transmit credibility. Many women need to lower the pitch of their voice in order to get the right reaction from jurors. A high or squeaky voice is not compelling. It makes the jurors think you lack experience and confidence.

  1. Use a moderate speech rate. A moderately fast rate of 210 words per minute is perceived as more credible than speaking very fast or very slow. People speak more rapidly when they are expressing something urgent, when they are nervous, when they think they’re running out of time, or when they believe they are going to be interrupted. Yet, speaking fast causes jurors to feel they’re listening to the stereotypical sales person who can’t be trusted. Speaking too slowly also leads to low confidence in credibility, but if you think jurors are taking in your message, speaking more slowly can help them absorb what you are saying. Pauses are helpful to juror comprehension and perceptions of credibility, but too much hesitation can suggest a lack of confidence. Your speech rate should be at a Goldilocks tempo.
  2. Make eye contact. Jurors tell us that they don’t trust lawyers and witnesses who fail to make eye contact. But they want eye contact spread around the entire jury, not focused on one juror. They want eye contact to be direct, not over their heads. They want eye contact that lets them know that the speaker is genuine and not afraid to “look them in the eye.” But they don’t want the eye contact to be intimidating or off-putting. Don’t stare. Don’t be too intense. And don’t be taken in by juror nodding—it doesn’t necessarily mean they’re in your corner. Don’t be distracted by such behavior and avoid the temptation to focus only on those jurors you believe are with you. They may not be.
  3. Look comfortable. Jurors watch lawyers to see if they’re giving signals that might reveal discomfort with the facts. If you fidget or tap or play with your pen or coins in your pocket, jurors will sense your unease and may attribute it to a discomfort with your facts and the strength of your case. Jurors are particularly aware of attorneys and witnesses who cover their mouths when they speak, or even get close to this by putting their hands in a thinking pose, which can look like they are praying. Jurors are even put off when speakers touch their chins or put hands on their cheeks, though this sort of thing may be involuntary. These gestures are sometimes perceived as conveying a desire to hide something.

Things Not to Do

Now the don’ts—things you should avoid lest you unwittingly cause withdrawals from the trust piggy bank.

Don’t use inflammatory language. Benjamin Disraeli said, “Never tell unkind stories.” That statement can’t be applied to trying a case, but the sentiment behind it can. Inflammatory language, sarcasm, or the use of negative terms to talk about the other party, its claims, or its witnesses will often come across as unnecessarily aggressive. Jurors are left feeling uneasy.

Don’t throw personal mud. It is not helpful to make the case personal. In one medical malpractice case, a lawyer considered telling the jury that the plaintiff, the father of a child who had died while being treated at the defendant’s hospital, had an affair with a neighbor after the child’s death. This was irrelevant to any issue in dispute and would have been the proverbial throwing of mud to emotionally influence the jury against giving the claimant a large award. Jurors don’t like such mudslinging. The strategy wouldn’t have undermined the emotional pain experienced by the child’s father, but it would have made the attorney seem a petty gossip, even a bully. When lawyers act like bullies, it activates the jurors’ moral imperative to defend the victim.

Don’t attack your opponent’s bona fides. One of the worst violations of your own professionalism is to suggest that opposing counsel can’t be trusted because he’s behaving like a particular type of attorney. Members of the defense bar sometimes imply that the plaintiff’s lawyer took the case out of greed, suggesting the lawyer is really the one behind the lawsuit. Plaintiffs’ lawyers, in turn, sometimes imply that defense lawyers are tools of “Corporate America” and therefore can’t be trusted.

Jurors are never impressed by these kinds of personal attacks. It insults their intelligence. Jurors think that everyone in the courtroom is making more money than they are, with the possible exception of the judge and her staff. Every attorney has baggage. The plaintiff’s attorney may be getting a percentage of the award, which jurors correctly estimate to be from 30 percent to 50 percent of the damages. The defense attorney may be working for a big company, from which they conclude that he’s probably doing pretty well too and hardly looking out for the little guy. But attacking someone in the same profession belittles only the person who levels the accusation.

Don’t make arguments based on morality. Moral themes and arguments are an extremely effective, even necessary component of successfully arguing your case. But it is important for jurors to reach that conclusion for themselves and not have you tell them what to think, believe, or value. Jurors will recoil from any attempt to dictate their ethics.

This issue often arises in cases involving punitive damages. Attorneys frequently justify their demand for punitives by arguing that it is fair or right to punish a company to the tune of however many millions of dollars. It is far more effective to argue that the defendants’ actions were grossly reckless or affirmatively malicious. Leave the moral conclusions out of your argument, and let jurors reach their own conclusions. They will cling to those far more tenaciously than any you try to ram down their throats.

Don’t preach to jurors. The more lawyers preach, the more jurors distrust them. Lay out the facts clearly, and let them sort those facts out for themselves. Teach, don’t preach. When you preach to jurors, they feel condescended to, patronized.

For example, lawyers seem to love to exhort jurors to “just use your common sense.” Believe it or not, such an injunction makes jurors feel as though the lawyer doesn’t think they can handle the complexity of the facts or the law. Jurors experience it as a put-down. To them, the lawyer is saying they can’t understand the issues logically and therefore have only their “common sense” to rely on.

Don’t argue with too much conviction. As a caveat to our point that conviction leads to trustworthiness, note that there is a fine line between sincere conviction and hype. Acknowledge the downside of your case. Admit unsavory facts if you want jurors to trust you. Any attempt to sell them on anything but the facts and the truth will backfire.

Don’t offer too many personal stories. Jurors tell us that they don’t believe personal stories offered by lawyers. They see these as a condescending attempt to make a false personal connection with the jurors: “I too am just a common man, like you are.” Besides, what relevance does a personal story from the lawyer’s own life usually have to the case at hand? None whatsoever. In a case involving a small business, a defense attorney told the jurors that his grandfather had owned a small store, which he frequently visited as a child. Through his storytelling, he implied that because he came from humble origins, he could relate to the jurors and understood the entrepreneurial nature of the plaintiff’s business. Jurors didn’t swallow the bait. They thought he was stretching a point to show an irrelevant connection to the case. Because jurors almost never believe that high-powered lawyers are “like them,” these kinds of stories decrease credibility.

Don’t sugar-coat or implicitly threaten. Don’t focus on humanizing the company. This strategy has little persuasive value. Here is how one juror reacted to such a theme: “It’s not like they’re the Red Cross.” A large corporation is considered a business entity run by overpaid executives and distant boards. Jurors believe corporations are all about making money. Any attempt to sugar-coat that reality backfires.

Likewise, any attempt to make jurors think that a large award will result in the elimination of jobs or the departure of the company from the community will be seen for what it is: attempted blackmail. That said, it is important to personalize a company by providing a company representative to attend the trial and, if possible, testify.

Don’t rely on assumptions. Don’t depend on the assumption that the defendant is innocent until proven guilty, in either a criminal or civil context. Jurors often think the defendant must have done something wrong or else he or she wouldn’t be sitting there. They suspect there’s a “filtration” system at work. Jurors believe bad cases are settled or thrown out before trial. Recognize this dynamic. If you represent the defendant, discuss it with jurors in voir dire and in your opening statement. Tell them the merits of this case have yet to be decided by them, and that it can only be decided correctly if they are willing to listen to you with an open mind.

Don’t rely on a positive local company reputation. Let’s say you represent a utility company with a good record of providing emergency service after an ice storm or a hurricane. It can stand you in good stead and be alluded to and proved, if relevant. That is a far cry from a generalized “we’re good people” argument. The good reputation defense has limited usefulness and turns off some jurors.

Don’t rely on sympathy to drive the verdict. Portraying the plaintiff as a victim and worthy of sympathy can backfire. You will have more success if you attack the defendant’s failure to provide adequate and reasonable protection from harm than if you play the plaintiff as sad and deserving. Drawing too much attention to the characteristics of the plaintiff can lead to heightened scrutiny of contributory negligence. Some jurors will conclude that, if he’d acted properly, he could have avoided injury.

In one case, the plaintiff’s counsel painted a picture of the plaintiff as a grieving young widow. But instead of feeling more sympathy, jurors decided such an attractive young woman would have time to start her life over and did not deserve or need a large award. Jurors also sometimes experience “defensive denial.” They subconsciously act to protect themselves from believing the same thing could happen to them by denying the plaintiff’s pain. Appeals to sympathy should be carefully tested before being put in front of a jury.

Maintaining credibility is critical if you want the jury to believe your case. Credibility is far more important than likability and rapport with the jury. Jurors are making judgments about you from the moment you enter the room. They watch everything lawyers do and how they treat everyone in the courtroom. Trust is continually built up or destroyed in small doses based on the entirety of your behavior. There is no surefire way to guarantee a jury will find you trustworthy, but practicing the dos and don’ts of credibility will help.

Ann T. Greeley and Lindsay Eriksson

Ann T. Greeley, PhD, is a psychologist and trial consultant, and Lindsay Eriksson is an attorney and trial consultant at DecisionQuest.