The Secret Sauce for Courtroom Victory

The past few weeks of sports have delivered some incredible highs and lows.

Like millions of other fans, I stayed awake into the early morning hours, captivated by the cliffhanger ending of Game 7.

Harry Caray calls Game 7
https://www.youtube.com/watch?time_continue=119&v=nApTGkLd2hs

(I’m not crying… You’re crying!)

I guess I’ve been a Cubs fan since I was a little kid.

We lived near McHenry, Illinois and my dad loaded up the van with all of the neighborhood kids to take us to Wrigley Field.

I still remember walking into the stadium and experiencing everything for the first time.

The sights, the smells, the excitement leading up to the game… It was a great memory.

It was the first baseball stadium I’d ever been in, the first major sporting event I’d ever been to, and I loved it.

I fell in love with baseball.

My parents were even cool enough (and patient enough) to take me to a Dairy Queen near Chicago where we waited in line for HOURS so I could get Dave Kingman’s autograph. (Keep in mind, this was back around 1979, when he made the All-Star team and was the NL home run leader – he was a rock-star and a living legend!)

Yup, I loved baseball.

But then, something odd happened.

In 1994, they cancelled the World Series because the players went on strike.

They turned their back on me (and millions of other fans), so I turned my back on them.

Other than going with my family to see a game in Yankee Stadium before they moved into their new stadium (my dad and my brothers have been Yankees fans their entire lives, so it was a great experience), I doubt I’ve watched even a dozen games (including Wednesday’s World Series finale) in the past twenty years.

It makes me sad to write that, because I used to care so much about baseball.

But once trust is broken, it’s almost impossible to regain it.

Compare baseball’s level of trust to the level of trust created by the person in the next sporting story.

On the other end of the emotional spectrum, in September we heard the sad news that golfing legend Arnold Palmer had passed away.

Arnold Palmer was a legend.

My interest in golf started when I was in 3rd or 4th grade, after we moved to Florida. We lived near Palm Beach Gardens ("The Golf Capital of the World"), so I saved my allowance, bought a starter set (only 5 clubs: 9W, 7W, 5W, D, Putter!) and got the chance to join my dad on some of the best golf courses in the country.

The lucky thing about living near the PGA Championship Course is that I had the opportunity to see some of the best golfers in the world. I saw the 1983 Ryder Cup, and I got to walk the course following golf legends like Jack Nicklaus, Tom Watson, and Gary Player.

But Arnold Palmer was different.

When Palmer was playing, you could tell at an instant which hole was at, because there were more crowds following him than any of the other players.

They called it "Arnie’s Army."

It didn’t matter whether he was leading or trailing…

He always had a crowd.

That’s because people loved him.

In one chance encounter, I quickly found out why.

I was probably 11 years old, and watching the players warm up at the driving range. As they finished up and walked out the practice area, I would ask for autographs. This was before celebrity "selfies," and almost everyone was kind enough to sign my little autograph book.

As one of the players finished, I asked him for an autograph.

He brushed me off.

And it wasn’t just a brush offf… It was rude enough that other people took notice.

One of the people who noticed was a fellow player on the practice tee.

From behind me, I heard a kind voice say, "I wouldn’t mind signing your autograph book, if you’d like."

When I turned around, it was Arnold Palmer.

THE Arnold Palmer!

I was awestruck.

He was bigger than life, and when he signed my autograph book, he made me feel like the most important person on the planet.

That entire encounter probably took all of 15 seconds, but it’s been indelibly etched in my mind for these past 30+ years.

But there’s nothing unique about that experience. I bet he probably had encounters like that every day of his life, touching people in some small way, making them feel important and special.

That’s why he had "Arnie’s Army" and that why he was so celebrated.

That’s why the other golfer, despite his fame and his skill, never enjoyed the types of crowds or the legacy that Palmer did.

(There’s no need to mention the other golfer’s name, but don’t worry, it wasn’t any of the ones I’ve mentioned in this article.)

The Trial Lawyer Lesson

If you’re still reading, you’re probably going, "Those are nice stories, but so what? Where’s the tip that helps me become a better trial lawyer?"

Here it is:

THE TRIAL LAWYER LESSON
To win the jury, you must earn (and keep) their trust.

Your ability to persuade jurors never relies solely upon your courtroom skills.

You can practice your opening statements, examinations, and closing arguments until you’ve honed them to a fine edge.

You can work with your witnesses until they have the oratory skills of Cicero.

But if jurors don’t trust you, or if they don’t trust your witness, you won’t win.

(Remember Aristotle and the ol’ logos, pathos, and ethos trilogy?!?)

At the beginning, jurors don’t trust you…

Other lawyers don’t trust you…

Even your own client might not trust you.

Trust can be difficult to earn, but if you are the type of person who is trustworthy, if you’re the type of person who radiates character, then you can earn their trust.

You can’t fake it – you’re either trustworthy, or you’re not.

(Think about that for awhile… If you’re not happy with your answer, you might want to change a few things in your life).

But even if you’re trustworthy, and even if you earn the jurors’ trust, you will lose it in an instant with a misrepresentation or a stupid mistake, so be careful with what you say and mindful of how you say it.

Be honest, be trustworthy, and keep the jurors’s trust. That’s the secret sauce to persuasion.

What image are you projecting?

Trial Lawyer First Impressions

Image matters.

It’s not just what you do, it’s how you do it, and how you convey your image to the public.

For example, let’s talk about the hotel/motel industry. At its core, the industry is based upon a simple premise: you give us your money, we’ll give you a temporary place to stay.

But within that industry, there is a wide range of options available. For example, last week I popped into the Ritz-Carlton Grande-Lakes Orlando. This is the entrance to the hotel:

Nice, huh? When you look at the picture, it creates an expectation of what you’ll find inside… Valet parking, a spa, golf course, and, to ensure that it attracts the right type of clientele, they also have a Presidential Suite.

Of course, it also sets an expectation for what you’ll pay. If you want to check in tonight, you can get a room between $299 (small room, bad view) and $819 (lakefront, executive suite) per night. Unfortunately, the Presidential Suite isn’t available tonight, and seems to be booked for the next few months.

By contrast, check out the Jayhawk Motel, which I drove past while avoiding the interstate and taking a back road towards the Hillsborough County Courthouse:

In case you can’t read the sign, it says, “*ADULT MOVIES* AC & TV DAILY & WEEKLY”

My grandmother said that back in the 40’s they used to call these types of places ‘hot pillow’ motels. I’d never heard the phrase before, but it made me laugh, because it does a great job of describing what you’d expect to find inside.

Doesn’t the entrance to the Jayhawk Motel also create an immediate expectation of what you’ll find inside?

Unfortunately, they don’t have a website, so I don’t know what you’d pay to spend a night at the Jayhawk, but I bet you could spend a month at this hotel for the cost of a single night at the Ritz-Carlton. And as for the clientele, here is the only review available on Yelp: “Hang out by the bus stop in front if you want to see hookers in velour and crackheads shambling about.”

Two businesses, both in the exact same industry, but with a world of difference between them as far as the types of clients they attract and the types of rates they can justify charging.

The same is true in the legal profession. We’re all trial lawyers, but there’s a world of difference between some of us. Depending on the image you present, you may be able to attract top-tier clients and command premium fees, or you may be bottom-feeding and struggling to survive.

As a trial lawyer, your image matters, too.

For private attorneys, the quality of the image you convey can affect the types of clients who come through your door and the fees that you command.

For government and corporate attorneys, the quality of the image you convey can affect the types of cases you’re assigned and your promotions.

Image isn’t everything, but it does matter. And it’s not just true for what happens outside the courtroom, it also affects what happens inside the courtroom.

It’s true that you shouldn’t win on style alone, but without some style, the jury will probably ignore your client’s story. If they ignore your client’s story, it’s the same as having no substance at all.

Do You Look Dishonest?

How to avoid looking like a liar

Let’s start with a few assumptions about the witness in your next case.

First, let’s assume that your witness saw everything relevant to the case.

Second, let’s assume that your witness has a good memory and a good vocabulary, so she’ll be able to remember and describe everything that she experienced.

And finally, let’s assume that she’ll tell the truth.

With all of those assumptions, you probably think that your jurors will automatically believe her, right?

Wrong.

The sad reality of the situation is that, even if your witness is telling the truth, that’s not enough to guarantee that your jurors will believe her.  That’s because, even though she’s telling the truth, she can still look like she’s lying.  And if your jurors think she’s lying, then she is.

As the trial lawyer, it’s not enough for you to stick a witness in the witness stand and have them tell the truth.  You need to help your witness avoid looking dishonest.  Here are some of the behaviors that jurors will be looking for when deciding whether or not a witness is telling the truth:

  • Touching your face.
  • Stroking your hair
  • Playing with your jewelry or a watch
  • Wringing your hands
  • Rubbing your palms on your legs
  • Pursing your lips
  • Blocking your eyes (closing them tightly, covering your eyes with your hands)
  • Turning your body away from the questioner
  • Evading the question; not giving direct answers

Finally, eye contact is going to be one of the most important behaviors that jurors will evaluate when deciding whether or not to believe your witness.  Most of us have been raised on the adage, “Never trust someone who won’t look you in the eye.”  Of course, in some cultures, making eye contact is disrespectful, so lack of eye contact, on its own, isnt enough to determine whether or not someone is lying.  However, if your witness is maintaining eye contact during other parts of testimony, it’s probably going to seem like they’re lying if they suddenly stop making eye contact during the more damaging parts of their testimony.  But the converse is true, too.  Sometimes liars know that they’re not looking at you, so they’ll overcompensate and stare at you.  When you’re on the receiving end, it feels creepy.

While it’s impossible to completely re-vamp your witness’s body behaviors (since she’ll end up acting artificially, which means the jurors will assume she’s lying), at least you can help her to minimize some of the more obvious negative body language.

One of the best ways to help your witness understand how body language affects their credibility is to videotape them during a mock cross-examination or mock trial run, and then have them sit and watch the entire video from beginning to end.  Many witnesses have never seen themselves on video before, so they’ll be surprised at how distracting some of their behaviors appear.

Obviously the subject of how body language affects credibility is too large a topic to cover in a single article, so if you’re serious about helping your witnesses understand how body language affects their credibility, check out these books for some good pointers on how to identify dishonest body language:

Never Be Lied to Again, by David Lieberman

What Every Body is Saying, by Joe Navarro

Telling Lies, by Paul Ekman