Bob Clifford, an attorney with Clifford Law Offices in Chicago and past chair of the ABA Section of Litigation, says there are three factors to keep in mind to win a case: courtroom credibility, courtroom demeanor and the importance of an apology.
Speaking on the Section of Litigation’s Sound Advice podcast, “Courtroom Credibility, Courtroom Demeanor, and the Importance of an Apology,” he says these topics are just as important for trial lawyers as they are for clients.
“Nothing has really changed about how successful litigators should prepare their cases from the cases I litigated 40 years ago,” Clifford says.
“In a courtroom, whether with the judge, other lawyers or jury, the most important thing you have is your credibility. This includes your voice inflection and facial expressions, your body language, your demeanor in the examination of a witness and your entire self-presentation. All of it must exude credibility or you are in a lot of trouble,” he says.
In 2012, Clifford tried a case in southern Illinois in the federal court and worked with a team to obtain a $180 million verdict for three men who were badly burned in a grain explosion near the Mississippi River. He says courtroom credibility went a long way in successfully winning that case.
“As trial lawyers, you must communicate the message that you are sincere, earnest and forthright in what you are doing, or you will not prevail,” Clifford says. “It is critical for you to keep this thought in the back of your mind for every moment you are in the courtroom.”
Courtroom demeanor is also an important component when preparing your clients for trial.
“Clients haven’t had the experience of being in the courtroom. They don’t have the same experience or skillset that you have in navigating the courtroom process,” Clifford explains. “They are nervous. They don’t know how to act, they don’t know how to dress. They don’t know how to speak. They don’t know how to look at a jury. They don’t know what to do when they are on the witness stand.”
As part of your preparation, Clifford suggests taking your client into an empty courtroom and familiarizing them with the environment. He says he had done this in every single case he has tried.
“Place them in the witness stand, in the jury box, in the judge’s chair to get them comfortable with their surroundings…. It works,” he declares. “This process builds a comfort level that is very valuable and important because their credibility is on the line.”
This better prepares the client for the unexpected. “Make no mistake about it. All the eyes of the jury and the jury alternates will be on you and your client,” he says.
“Even if the law is against you and the evidence is against you, if your opponent has lost his or her credibility, you can still win the case.”
The most senior lawyers can make a mistake, Clifford says. And when this happens, “It’s good to have a good old-fashioned, humble apology in your box to use when needed,” he says. “It has always gotten me a fair amount of mileage and it will do the same for you if you ever find yourself in that situation.”
For example, once when trying a medical malpractice case in Chicago, Clifford had to cross-examine a nurse on the witness stand. Although he knew her testimony was wrong, he continued to decimate her responses during questioning. He said he realized he had gone too far in his treatment of her to prove a point to the jury, and he was concerned about how the jury would respond to the case.
During the closing argument, Clifford says he apologized to the jury for his courtroom demeanor, and he believes his apology helped the jury switch to the merit of the case and to move past the negative feelings they might have had about how he had treated the witness.
To this day, he says, “I know that my behavior during that trial was not an excuse for me lacking in civility and in losing appropriate courtroom demeanor.”