Be the Guide They Can Trust

During opening statement and throughout the entire trial, you must be the guide that jurors can trust to keep them safe during trial
Be the Guide Jurors Can Trust

The Hippo is One of the Most Dangerous Animals on Earth

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!]

Your jurors might not have a clue!

Improve your jury selection with better questioning

If you want to improve your jury selection skills, consider following the example set by the best doctors in your town.

Years ago, when I was looking for a new doctor, my Dad gave me some great advice: “Whatever you do, don’t take health advice from a fat doctor, or from a doctor who smokes.”

Pretty sound advice, right?

But in addition to looking for health care professionals who are actually healthy, here’s another important tip: Find a doctor who knows how to ask questions.

The humorist Will Rogers once said, “The best doctor in the world is the veterinarian.  He can’t ask his patients what is the matter – he’s got to just know.”  Since you probably don’t want to share the waiting room with a cocker spaniel, you’ll want to choose someone who asks a few more questions.    The reason it’s important is because the quality of your doctor’s questions determines the level of care you’ll receive.

For example, let’s say that you injure yourself while training for a beer pong tournament (No, really, it’s a sport!  They even wrote about it in Time magazine!).  Your elbow is killing you, so you visit the doctor who asks, “How does your elbow feel?”

Unless you’re incredibly articulate or well-versed in medical terminology, you probably won’t do a very good job of describing what’s wrong.  If your doctor isn’t psychic, there’s a good chance that he’ll incorrectly diagnose the problem.  But a good doctor doesn’t settle for vague, general answers.  Instead, he asks follow-up questions to pin down the problem: “Is the pain on the inside or the outside of the elbow?  Do you have pain when lifting objects?  Does the pain radiate down your forearm?  Are you able to straighten or flex your arm?”

By asking you specific questions, he makes it easier for you to answer and provide him with the details he needs to correctly diagnose the problem (“I’m afraid you’ve got Tennis Elbow”) and prescribe the appropriate treatment (“The only way you’ll be able to represent your firm in next week’s beer pong tournament is if you ice it and take a series of Cortisone injections.”)

To improve your jury selection, you need to apply the same technique to your questioning.

You know that your goal for jury selection is to get the jurors talking, because the more you get them to open up and talk about the issues that matter to your case, the more you’ll learn about them and the more intelligently you’ll exercise your peremptory strikes.  You also know that one of the best techniques for getting jurors to talk is by asking open-ended questions, which prevent the jurors from giving simple “Yes” or “No” responses.  Unfortunately, when most attorneys learn about this technique, they try asking completely open-ended questions, with terrible results like this:

Attorney: “What do you think about the presumption of innocence?”Juror: “Um…  It’s good?”

You can elicit better responses than this from your jurors during jury selection if you avoid asking questions that are too broad.  Instead, give them some guidance about how to answer.  Remember, jury selection is a new experience for most of your jurors.  Most of them aren’t comfortable speaking in public, let alone answering questions from inquisitive trial lawyers.  To learn what they’re thinking, it’s your responsibility to make it easy for them to answer your questions.  They need your help, and they need you to guide them to the answer.

Rather than asking completely open ended questions (“How do you feel about the phrase, ‘innocent until proven guilty’?”), ask for more specific information that drills down to the details you’re looking for.  Remember to frame your questions in an open-ended format, so that most of your questions begin with “Who,” “What,” “Where,” “How,” “When,” “Why,” “Explain,” or “Tell us…” The most important point is to ensure that you don’t ask for completely narrative answers, but instead, give the juror a little guidance so he has some idea of what he’s expected to say.

Remember, the easier you make it for the jurors to talk to you, the more information they’ll share with you.  The more they share, the more you’ll learn about them, and the better your diagnosis will be when it comes time to decide whether or not to exercise a peremptory strike against them.

Editor’s note: By the way, this technique doesn’t just work in jury selection, it will also improve your direct examination.  By being more specific, you’ll help your witnesses improve their testimony.  It’s much easier for your witness to answer, “Who was the first person to notice a problem with the fetal heart monitor” than “Tell us, what happened next?”

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?


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