Trial Lawyers – Know Your Audience!

One of the first and most important rules of effective advocacy is this: “Know Your Audience.”  Before you walk into any advocacy situation, you should be able to answer three important questions:

1. Who are you speaking to?

2. Who are you trying to persuade?

3. Why?

Often, there are several audiences (not all of whom are physically in the courtroom): The judge, the jury, opposing counsel, your client, the opposing party, the appellate record, the press, yourself, the local bar, the general public, family or friends, your law partners, courtroom observers, etc.

But which audience will you be addressing?  Which audience do you need to persuade?  Many lawyers make the mistake of not understanding which audience they’re supposed to be addressing.  Here are a few guidelines to help you evaluate your audience and ensure that you do your best to persuade them.

Learn as much as you can (ethically) about your audience. Google them.  MySpace.  Facebook.  Talk to colleagues.  Read the judge’s previous opinions.  Know the appellate court’s composition and the direction they’ve been heading.

Look directly at the person you’re trying to persuade. Don’t make the mistake of talking to your notes or talking to your flipchart.  Make direct eye-contact with whoever you need to persuade.  If the eyes are the “window to the soul,” you don’t want to shut the blinds.

Remember why you’re there. Don’t make the mistake of arguing to impress your client, so that it looks like you’ve put on a “good show.”  You’re there to win.  If that means you need to be understated, be understated.  If that means you shouldn’t cross-examine a witness, say “No questions.”  If that means you need to let your partner handle a witness, sit silently and let him conduct the cross.  At the end of the day, your client doesn’t want a show — they want to win.

Don’t argue to the press. When the cameras enter the courtroom, your ego can push aside your common sense. There’s nothing wrong with wanting your moment in the spotlight, but don’t let it happen at the detriment of your client’s wellbeing.  If you need to argue to the judge or the jury, that’s who you need to address.  Don’t fall into the trap of talking to the cameras or acting larger than life so that it will play well on the evening news.  Keep your eyes and argument focused on the decision-maker in the case. (“Mr. Wilcox, can you speak up?  The TV cameras can’t capture what you’re saying?”  “With all due respect, your Honor, I don’t care — I’m not talking to them.  I’m talking to these folks in the jury box, and they can hear me just fine.”)

Use language that includes everyone in your argument. For example, I like football analogies…  but not everyone I’m trying to persuade enjoys (or understands) them.  That doesn’t mean I completely exclude them from my argument, it just means that I don’t exclusively depend upon them.  I find other arguments to include, so that there’s something for everyone to use.

Don’t make an ASS out of U and ME. We don’t all rely upon the same assumptions, so make sure you understand which assumptions your audience will depend upon when making their decisions.  It’s dangerous to assume that your audience relies upon the same assumptions that you do.  Are you assuming that the judge knows all the details and procedural history of the case?  Are you assuming that the jurors know what an “element” is?  Are you assuming they know who the “plaintiff” is?  Don’t assume they do.

Envision the conversations they’ll have when the case is over. What groups do your audience members belong to?  How strong an influence do those groups play upon the person’s decision making?  Will they face social ostracism if they decide the case a particular way?  After the trial is over, the jurors will talk to their friends and family about what happened.  They’ll have to explain their decision.  Envision that discussion, and then imagine what arguments you can you give them  so they can defend their decision.

Know their reasons for deciding. What needs does your audience have?  A judge wants to reach a fair decision; to be upheld on appeal; to follow the law.  The jurors want to do their duty, to reach the right verdict, and to protect their preconceived thoughts and beliefs.  The audience will change their opinion fortheir reasons, never for your reasons.  They need to act consistently with their beliefs and attitudes.  They don’t want to appear incongruent or intellectually dishonest.  Give them a reason to decide in your client’s favor that also upholds their personal belief system, and they’ll be more likely to vote for you than if they have to jump through loops of logic to justify their decision.

What Impression Does Your Table Make?

Your courtroom presentation includes your desktop!

Courtroom tableCourthouses vary from county to county, and courtrooms vary from courthouse to courthouse.  But for the most part, the tables inside those courtrooms are pretty consistent.  Sometimes they have modesty panels, sometimes they don’t, sometimes they have electrical or internet access ports, sometimes they don’t, but regardless of where you try cases, you and your opponent will usually end up sitting behind identical 96″ x 30″ x 30″ tables.

The question you need to ask yourself is, “What impression does my table make on the jury?”

Before the trial begins, both tables will look exactly the same.  But once trial commences, your table and your opponent’s table will start looking dramatically different.  In my courtroom career, I’ve witnessed thousands of different table scenarios.  Some of the tables have been clean and neat, while others have been a complete disaster.  Typically, the table represented the personality of the attorneys sitting behind it, and was also a pretty fair representation of how neat and organized their cases were.  For example, the table with dozens of documents, books, and loose leaf papers strewn about:

Desk with lots of books and papers scattered

They had 4 different theories of the case and were asking the judge to believe all 4 of them.  Compare that to the table with a single legal pad in the middle:

Desk with single legal pad

They had a streamlined view of their case, stipulated to everything that didn’t matter, and focused on their primary issue.

Keeping in mind Albert Einstein’s thoughts (“If a cluttered desk signs a cluttered mind, of what, then, is an empty desk a sign?”), here are a few guidelines for you to consider when organizing your counsel table:

1. Don’t remind the jurors of something they can’t have. Coffee?  Water?  Soda?  if your jurors aren’t allowed to have those items with them in the jury box, don’t have it at your table.  When you have a nice tall, cool glass of refreshing water at your table, but your jurors don’t, every time you reach for a glass they’ll be thinking about how thirsty they are.  And if they’re thinking about that, they’re not thinking about your case.

2. Don’t let them see exhibits that haven’t been admitted into evidence. It’s direct examination, and your opponent’s witness is testifying about the dimensions of the accident scene.  You’ve got a photo of the accident scene which contradicts the witness’s testimony, but it hasn’t been admitted into evidence.  During your opponent’s direct examination, you might be tempted to place the photo on your desk to remind you about questions you want to ask during cross-examination, but make sure you don’t get careless and leave the document on the desk within view of your jurors.  You may think the jurors aren’t peeking at the items on your table, but they are.  Until your exhibits have been admitted into evidence, take extra precautions to ensure those items are kept from the jury’s view.

3. Don’t let anything block your view of the jurors. Some attorneys bring printers with them to court.  Laptops and LCD screens are routinely a part of the landscape.  Sometimes we’re even tempted to place our briefcases or casefiles on the table for easy access during trial.  But the trouble with these items it that they can block your view of the jurors (and block your jury’s view of you).  Before trial begins, take a walking tour of the courtroom and sit in the jury box to ensure that you can see over the items on your desk, then take a clue from the 18 wheel truck drivers: If you can’t see them, they can’t see you!  Move the items out of view to ensure an unobstructed view of the jury, so you can keep an eye on the jury and calibrate your case to their needs.

How to Ask for Help During Jury Trials

Every day, in courtrooms across the country, young attorneys are conducting brilliant examinations.

During direct examination, they’re asking questions that grab the factfinder’s attention, paint a vivid picture of the scene, and elicit facts that persuade judges and jurors to believe the witness’s version of events. During cross-examination, they’re pinning witnesses down on inconsistencies, impeaching witnesses’ credibility, and showing jurors why the witnesses’ stories can’t be believed.

Yet, all of these direct and cross-examinations suffer from a tragic flaw.

What’s the tragic flaw in all of their examinations? Regardless of whether it’s the cross-examination of an inconsequential witness, or the direct examination of their star witness, all of their examinations are concluding on a weak note, rather than building to a powerful and persuasive crescendo.

That’s because they all finish in exactly the same way: Just as the direct or cross-examination reaches a crescendo, the lawyers stop and say, “Your Honor, may I have a moment to confer with co-counsel?” Then they walk back to counsel table, speak in hushed tones, announce, “No further questions, your Honor,” and tender the witness to opposing counsel.

Why do these otherwise smart and skilled attorneys ruin their examinations this way?

The reason is because they’re afraid they might miss an important issue or case-winning impeachment point, so they turn to their “spare brain” and ask for help. Even though these conversations almost always sound the same (“Did I miss anything?” “No, good job”) it’s still important to have them, because if you do ever miss an important point, you’ll be able to correct the problem before concluding your examination.

But despite their importance, you don’t want these conversations to be the last thing your jurors remember about your examination. Instead, you want to finish on a high note, so that you can take advantage of the theory of recency during your examination. (Here’s the theory of primacy and recency in a nutshell: In communication, what you hear first and last you’ll tend to remember better than the stuff you hear in the middle.)

Pete Townshend smashing guitarTo take advantage of recency during your next examination, don’t wait until the very end of your examination to ask for help. Instead, keep a handful of questions on a major topic in reserve before asking to confer with co-counsel. Once you’ve concluded your off-the-record conversation, return to the lectern and hit the witness with your final series of questions. Much like the encore at a concert, this series of questions will be more memorable, because it stands out from the rest of your examination. All that’s left to do is smash a guitar against the witness stand, so that when you walk offstage your jurors will be left with the impression that your examination was a “smashing” success!