It wasn’t that the cross-examination was actually going badly. But the client clearly thought it was, and her audible sighs and snorts were pulling attention away from the testimony. The furious scribbling on the notepad; the emphatic pointing at her last note passed to counsel; the facial grimace; each communicating the client’s displeasure not only to her lawyer, but to the entire courtroom. It became disruptive enough that the court excused the jury and instructed the client on the record to desist. From the heated discussion that followed, it turned out that the client had been trying to steer her lawyer into an improper inquiry regarding an inadmissible collateral matter. The lawyer dejectedly requested a limiting instruction that the jury disregard her own client’s outbursts. But by then, the damage had been done.
Of all the challenges attendant to trial practice, maintaining effective client control can sometimes be the hardest. After all, it’s the client’s case. By the time of trial, they may have felt aggrieved about the underlying dispute for years. They’re paying for the lawyer’s services and may feel that their purchase entitles them to override counsel. And clients do have the final word regarding at least some aspects of litigation. It should be no surprise, then, that some clients feel justified, or even obligated, to impose themselves on all aspects of the trial itself. But it’s a mistake.
The lawyer alone possesses the experience and training to make the dozens of tactical and evidentiary decisions required in every trial. The lawyer alone is familiar with the sometimes arcane rules of procedure and evidence. And the lawyer alone is tasked with the responsibility of communicating a clear, uniform message to the jury about the issues in dispute and the evidence at hand. At best, the disruptive client muddles that clear, uniform messaging, undercutting their counsel in the process. At worst, the client risks sanction by the judge or disfavor by the jury for disrupting the orderly proceedings. Which is to say, the disruptive client risks either an unfavorable verdict, or in the worst cases, a mistrial.
Fortunately, these risks can be warded off through careful pretrial preparation and communication. By the time a case gets to trial, the lawyer should have a good understanding of the client’s volatility and temperament. By having a frank discussion about the stresses and expectations of a trial, the lawyer can neutralize the strong-willed or impulsive client’s instinct to take charge or unduly react in counterproductive ways.
Lawyers already prepare their clients to testify by reviewing the substance of their examination, as well as by practicing the mechanics of being a witness—the speed and cadence of their presentation, the clarity of their enunciation, where to look, how to dress. But those same lawyers may be giving short-shrift to preparing their clients for how to sit at the counsel table for days or weeks on end, how to react to adverse testimony and evidentiary rulings, or how to comport themselves in the hallways when on break. As a practical matter, an intemperate scowl or inappropriate outburst in any of those environments may undo all the hours invested in developing a clear and consistent message on direct exam.
From the moment the client enters the courthouse, they should assume that they are within the sight and scrutiny of the jury. When walking to the courthouse, over lunch at the nearby diner, or when parking the car, they should assume there’s a juror watching. Restroom breaks, or stepping outside for a smoke, they should be forewarned and on their guard.
And as hard as it is for some clients to watch what they say, it can be even harder to regulate and mitigate what they do. Psychologists have long “estimated that 60 to 65 percent of interpersonal communication is conveyed via nonverbal behaviors.” Such so-called “body language” can reveal internally held attitudes, cognition, and emotional states, and are often interpreted (or misinterpreted) by the viewer as a proxy for candor, good faith, and a capacity for truth-telling.
For example, in one leading study, psychologists determined that the single greatest variable for developing relative rapport among stranger test subjects was visual encoding of nonverbal information. More than the textual meaning of words communicated by transcript, more than audio communication of spoken language, the nonverbal cues of posture, facial expressions, eye contact, and hand gestures were the greatest factors in determining whether the test subjects felt deeper or lesser senses of rapport with strangers.
As another study explained, these dynamics squarely impact decision-making in the courtroom:
[T]he design and arrangement of courts and courtrooms, as well as the appearance features and the nonverbal cues and behaviors of [those in the courtroom], all affect the course of court proceedings. Their facial expressions, gaze patterns, postures, and body movements convey interpersonal and social information, such as their appraisals, concerns, and dispositions about a situation. In addition, these nonverbal cues and behaviors signal their behavioral intentions, and create impressions among those present in courtrooms and in public observing them, without a single word being uttered.
With every sigh or grimace, by furrowed brow or slouching insouciance, your client is communicating something to the jury. Why are they clenching their jaw? Do they realize how much they fidget with that pen when bored? By talking frankly about the danger of these nonverbal cues, and by rehearsing comportment in front of a video camera, you can help your client understand how their body mechanics affect juror perception, perhaps helping them control themselves in the process.
Sometimes, however, the most serious client control problems arise away from the courtroom and beyond the juror’s gaze. For some clients, whether through a need to “tell their side of the story,” or because social media and blogging are such fixtures in their lives, they find themselves sharing hot takes before a keyboard or over the phone to local media as the trial progresses. Generally speaking, it’s a terrible idea.
To begin with, any public statement they make becomes fodder for cross-examination in the trial itself. Whatever inconsistencies emerge, deviating from the clear, uniform messaging proffered by counsel, at best muddy the waters. Moreover, to the extent the client unthinkingly divulges communications with counsel, they risk waiving the attorney-client privilege—or even conceivably, making the lawyer an indispensable witness to a now-contested communication or admission.
But perhaps the gravest danger of uncontrolled client statements outside of the courthouse is that they likely fall outside the litigation privilege guarding against defamation. As one California court explained,
[t]he litigation privilege exists so that persons who have been harmed or have other grievances calling for redress through the judicial processes can and will use the courts, rather than self-help, to obtain relief. The privilege thus affords its extraordinary protection to the uninhibited airing, discussion and resolution of disputes in, and only in, judicial or quasi-judicial arenas. Public mudslinging, while a less physically destructive form of self-help than a public brawl, is nevertheless one of the kinds of unregulated and harmful feuding that courts and their processes exist to prevent.
In sum, the extrajudicial statements of the uncontrolled client can not only harm the case that they’re already in but can also lay the foundation for the next one to follow.
