During a jury trial, the last thing that you want to do is to offend your jurors or give them a reason to ignore your witness. Yet that’s exactly what many lawyers do
One of the best ways you can quickly improve your trial advocacy skills is to watch yourself on video. When you watch yourself presenting an opening statement or conducting a direct examination, you’ll see yourself the same way the jury sees you. (That may be wonderful, or it may be horrifying). But even better than watching the video by yourself is to watch it with a more experienced attorney who can critique your performance and point out what you’re doing well or identify areas for improvement.
This past weekend, I got the opportunity to sit down with nearly two dozen different trial lawyers and evaluate their trial advocacy videos. After watching several hours of video, I observed that many of them were making the same mistake in their examinations: They were ignoring their witnesses.
“Surely you can’t be serious,” you say. “These were experienced attorneys. I can’t believe they would purposely ignore their witnesses. ”
Yes, I’m serious… and don’t call me Shirley.
Here’s what I saw on most of the videos: The attorney would look directly at the witness and ask a question. But as soon as the witness started to answer the question, the lawyer would break eye contact and start looking someplace else.
Why would they do that? Why would they ignore their witness’s answers? The truth is, they really weren’t ignoring their witnesses answers. They’d invested a lot of time preparing their cases, so they already knew what the witness was going to say. Rather than fully focusing on the witness, they just listened to the witness, breaking eye contact to look down at their legal pads and start forming their next question. Yes, they were paying attention to the witness, but the problem was it didn’t look like they were paying attention to the witness.
What type of message do you think that sends to the jury? Some of the jurors probably think to themselves, “If the attorney doesn’t think the witness’s answers are important and isn’t paying attention, why should I?”
You may think that’s not fair, but just like “The customer is always right,” your jurors are always right, too. If they don’t like what you’re doing, then they can discount or even ignore your evidence. In the end, they’ll make the final decision about your client’s fate, so they’re always right. (Even when they’re wrong, they’re still right.)
You can’t afford to let the jurors think you’re ignoring your witnesses. You must pay attention to your witness’s answers, even though you already know what they’re going to say. The easiest way to do that is follow this guideline: Whenever the witness is speaking, your eyes should be focused on 1) your witness 2) your jury, or 3) the exhibit your witness is talking about. If you look anywhere else, the jurors may think you’re ignoring the witness.
The next time you participate in a mock trial or do a dry-run of your direct examination, make sure you videotape yourself. Don’t just focus the camera on the witness — make sure that you’re in the frame, too. Pay particular attention to where your eyes are focused. Where are you looking when your witness is talking? Is your gaze focused on the witness, or are you buried in your notes? Force yourself to avoid looking at your notes until the witness has finished answering your questions, and your direct examinations will dramatically improve.