If you’ve never seen a hippopotamus up close before, you’re missing a memorable experience. In cartoons, they’re portrayed as peaceful, docile creatures that wouldn’t harm a fly. In the Hungry Hungry Hippos game, they’re colorful, cute, and cuddly. But that’s not quite true. They’re huge, temperamental creatures, capable of biting a man in two. And here I was, less than ten feet away from not one, not two, but three of them!
But I wasn’t scared.
Why? Because I had a guide that I trusted. My guide’s name was Tim. Tim looked the part of an adventurer. He was clad in khaki clothing, with a pith helmet on his head and a pistol by his side. He didn’t just dress the part – he carried himself with the confidence of someone who had been down
this river hundreds of times before. When he spoke, it was obvious that he
was well trained and knew these waters like the back of his hand.
I wasn’t scared.
With Tim as our guide, I, and everyone else on the boat, felt safe.
Just as he’d done before when we’d encountered elephants, giant snakes, and other dangers, Tim guided us past the hippos, safely returning us to our initial port of call. We thanked him with a round of applause and stepped ashore, relieved that we had chosen the right guide.
Your role in trial is similar to Tim’s role on that jungle river cruise.
You must be the guide the jurors can trust. Trials are foreign territory for most jurors. They want a guide to lead them past pitfalls, show them the landmarks, and get them safely to their destination. In trial, that destination is a just verdict. From the moment they walk into the courtroom, they’re looking for that guide. Here are six steps you can take to become the guide they trust.
1. Be sincere. There’s no magic formula or 12 Step Program you can follow here. You either are, or you aren’t. If you can’t do this, none of my other advice can help you. When you’re sincere, you’re telling the jurors a story that you believe. When you don’t believe the story you’re telling, the jurors sense that, and you can’t be effective. Re-examine your evidence and the law until you find a different story… One that fits the facts and the law, one that you do believe.
2. Don’t ask them to believe the impossible. Each lawyer starts the trial with a credibility account. You make small deposits over time, building up your credibility with the jurors. When you ask jurors to believe the impossible or to doubt their common sense, you make a huge withdrawal from your account. You’re asking them to believe you, rather than a lifetime of experience. Who do you think they’ll believe?
Lawyers thrive on examining the nuances and the minutiae. Admit it – you’ve read the back of a ticket to a sporting event or a parking garage, right? Most people won’t delve into a matter that deeply. That’s why you need to ask someone who’s not a lawyer to evaluate your arguments. If they feel you’re asking them to ignore their common sense, you need to re-work your argument. The closer you align your arguments with common sense, fairness, and general expectations, the better your chances of becoming the guide they can trust.
3. Don’t be an obstructionist. Jurors want to hear the evidence and decide the case. If you act as an obstructionist throughout the trial, the jurors won’t think you’re the guide they can trust. Yes, the judge will tell the jury that you’re supposed to object. Yes, the judge will instruct the jurors that the lawyers are not on trial. But those instructions won’t help you if the jury decides that you’re trying to prevent them from learning the truth.
Do you need to object? Sure, sometimes you need to object. But most of the time, you don’t. If you’ve done an effective job as an advocate, you addressed the important evidentiary issues before the trial started, outside of the jury’s presence.
In trial, strategically evaluate whether or not you need to object. For example, if you’ve seen witness Jones out in the hall, and you know Jones is definitely going to testify, you don’t gain much by shouting “Objection! Hearsay!” when Smith says, “I heard Jones say…”
Yes, you’re technically correct. It’s a proper evidentiary objection. It’s hearsay.
But trials aren’t like law school exams. You don’t get points for pointing out every evidentiary issue. If the evidence is going to be admitted, don’t bother digging into your credibility account and unnecessarily objecting. The jury doesn’t think, “Wow, this guy is a master of the evidence code! Let’s give him bonus points for knowing all of the proper objections!” Instead, they think, “Whatever Jones said must hurt his case. Why else wouldn’t he want us to hear it?”
Later, when Jones testifies, they’ll hear exactly what he said. A double-whammy for you – they not only hear it, they think you tried to prevent them from hearing it.
4. Don’t misquote the evidence. Don’t put a sharp spin on it, either. Collectively, they have a better recollection of the evidence than you do. They’ll know if you’re misquoting the evidence or putting a questionable spin on it. If they can’t trust you to accurately discuss the evidence, they can’t trust your arguments, either. Then you’re no longer the guide they can trust – you’re more like a used car salesman, trying to sell them something they don’t want.
5. Admit weaknesses. Admit your weaknesses before your opponent trumpets them, and you’ll take the wind out of his sails. The jury thinks, “Yeah, we already knew that. The other attorney already told us the strengths and the weaknesses of his case. He’s the guide we can trust to lead us through the evidence.”
When you expose your weaknesses, you show them why you win, despite the weaknesses in your case. If you don’t mention the weaknesses in your case, your opponent gets to say, “And [BAD FACT] is so damaging to Mr. Wilcox’s case, he didn’t even mention it to you. Why? Because there’s nothing he can say to make it go away!”
6. Avoid sidebars. When you ask to approach the bench, it’s because you’re trying to keep the jury from hearing what you’re saying. You’re trying to keep a secret from them. How do you react when someone tries to keep a secret from you? Aren’t you resentful? Isn’t it your natural inclination to be curious about what they’re trying to keep secret?
It’s no different with your jurors. When you ask to approach the bench, they want to know what you’re keeping from them. Some of the jurors will lean forward in their seats, trying to eavesdrop on your conversation with the judge. You can’t blame them, can you? Don’t arouse their resentment – avoid sidebars unless absolutely necessary.
A good guide is essential to a safe journey. Just like Tim guided our boat to safety, you’ll guide the jurors to a safe destination. When you become the guide the jurors can trust, they will look to you to guide them through the evidence. When the evidence leads to a fork in the road, they will trust you to guide them to safety. They will trust you to guide them to a just verdict. Follow these simple guidelines and you’ll become the guide your jurors follow. You’ll lead them through the evidence, and lead them to safety.
[Oh, and if you ever find yourself at Disney World, waiting in line to ride the Jungle Cruise, please do me a favor, and say “Hi!” to Tim!]