One of the things I learned early on about being a trial lawyer is that every time you are in front of the jury you should be advocating. By that I don’t mean you should be trying to improperly communicate with the jury or break any rules. Instead you should be doing everything you can within the rules to advance your position.
Different Ways To Advocate
There are many different ways to advocate. One is the one we are most familiar with which is oral advocacy. Oral advocacy is the art of trying to persuade with the spoken word. While oral advocacy is the most common, it is certainly not the only form of advocacy available to a trial lawyer. A trial lawyer can also advocate with body language. Where we stand, how we stand, where we sit, how we sit, what we do at the table, how we object, all of these things must be carefully considered by a trial lawyer. The jury is always watching the lawyers in the courtroom. It doesn’t make much sense to give up valuable advocacy opportunities.
Advocating With Objections
Often in court I see lawyers who clearly have never given any thought to how they appear to the jury when objecting. I see lawyers objecting while looking down at counsel table and avoiding eye contact with the judge. I see lawyers jumping up to object so fast that it looks like their opponent has done something so devastating that the lawyer’s case is about to crumble down. I see lawyers objecting in a way that makes them seem that they are unsure as to whether they should object to begin with. All of these scenarios put forth a terrible impression to the jury. Don’t get me wrong, you could still win cases while looking terrible. But if you’re like me, you’d like to maximize your winning potential.
You should be advocating with your body language and tone every time you object. Your tone during objections should be strong, but not over the top. A strong tone conveys to the jury that you are powerful. Your pace should be calm. A calm tone conveys that you are in control of the situation. You should always stand when you object even if your jurisdiction allows you to sit. Standing for the court lets the jury know that you are humble and respectful. The jury should be able to relate to you, and almost everyone likes humble and respectful. Once the objection has been ruled on you should simply sit down. Do not drop yourself on your chair if the ruling did not go your way. Do not throw a tantrum like a child. Simply sit down.
Your lack of reaction should convey to the jury that everything is under control.
Advocating By Sitting
The way you sit at counsel table and what you do while you are seated tells the jury a lot. If you are shifting and fidgeting at the table the jury knows you are nervous. If you are leaning all the way back in your chair the jury can gather that you don’t care about the case. If you are looking down at the table most of the time you seem unaware of your surroundings. None of these things is good.
By sitting at counsel table with your feet firmly planted in a calm manner you convey an air of confidence. Your hands should be placed on the table or holding a pen if you’re writing. You should not fidget. You should also sit up like you are paying attention. There is nothing worse than seeing a lawyer leaning back on a chair in the middle of trial. You should also keep in mind how you talk to your co-counsel at counsel table. The jury might not be able to hear what you are saying, but they can see you say it. Do not speak in a rush manner. Do not make frantic hand motions while talking to co-counsel. And equally important do not make faces while speaking to counsel. These are all signs that the jury can interpret as you losing the case.
Advocating With Body Language In The Well
When you are in the well all eyes are on you. It is important that you say the right things. But it is even more important that you look right saying those things. Keep a close eye on your body language as you navigate the well. You should stand straight up as you walk, head held high. You should make eye contact with the Judge and the Jury when speaking to them. You should walk at a comfortable pace. Not too fast, not too slow. Control your hand gestures. Wildly moving hands are not just distracting, they are also a sign of nervousness.
Advocating With Your Tone And Pace
The good trial lawyer says the right things. The great trial lawyers say the right things, the right way, at the right time. If you’ve tried a couple of cases you probably know the importance of saying the right things. Now I want you to think about how you say what you say. Concentrate on speaking firmly and clearly. Keep an eye on your speed. You are much more persuasive when speaking slowly. Think of all the people you find credible, I bet you most of them speak slowly.
Pace is also important. If speed is the time it takes you to say a word, pace is the time in between words. Pace can make the difference between a good presentation and a great presentation. Along with pace comes tone. Tone is not about speed, is about modulation of voice. Tone is the difference between convincing someone and moving someone. Many trial lawyers know about speed and pace, but very few have mastered tone. Which is good for you because if you master tone you will be on a whole other level of advocacy.
For example of good pace and tone see the first five minutes of this opening starting at 10:25 or so.
Now try saying that in a higher tone and pace and record yourself while doing it. The difference in persuasion is something you can hear for yourself.
Always advocate. Never miss an opportunity to let the jury know that you are a humble person who is prepared and deserves to get justice for his or her client. The jury this day and age has a terrible opinion of lawyers because most people have a terrible opinion of lawyers. The contrast that you bring to the courtroom will not be lost on them.