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The Advantage Blog

  • Tsongas Litigation Consulting


I recently attended a CLE given by a veteran judge about what, in his experience, works and what doesn’t work at court. He spoke about what judges want from lawyers and what he thinks jurors want from lawyers, the latter of which rang true to me and echoed what we often hear in post-trial juror interviews and shadow juries. All of his tips and conclusions were useful, but a few stood out in particular: Don’t Reinforce the Stereotype The judge said that jurors come to court with a deep faith in the justice system, but an inherent suspicion of lawyers. Jurors are expecting slick salespeople and you, as a lawyer, should try to avoid reinforcing that impression. One example he gave was when lawyers try to sell their case too hard in jury selection. As we often preach, jury selection is not the time to sell your case – not only is it ineffective, but as the judge pointed out, it could be damaging your reputation with the jurors. Another tip he provided is to refer to your client by their name, rather than by calling them “my client.” This is a pet peeve of his and, again, it seems to reinforce the stereotype that you are a salesperson completing a transaction rather than trying to achieve justice. However, don’t confuse slick with graphics and technology. Jurors have come to expect and appreciate demonstratives (furthermore, they aid in learning and memory retention) and we often hear jurors express frustration when a trial team struggles with the technology in the courtroom. Which speaks to the next point… Respect the Court’s and the Jurors’ Time Jurors, the judge, and the court staff are all busy and the lawyer who shows them respect and appears to be efficient and focused will have a significant advantage. It’s important to show jurors that you respect their time and effort, rather than just tell them. The judge gave a recent example that we have seen all too often. An attorney in his court spent the first 8 minutes of his voir dire thanking the jury for their service and giving a civics lesson about the Magna Carta (which apparently has an anniversary this week), before asking a single question of the panel. By the end of this attorney’s preamble, the judge said the jury seemed frustrated and, even worse, disinterested in anything this attorney had to say next. The judge gave a counterexample of an effective attorney showing the court and the jury proper respect. An incredibly successful plaintiff attorney in Seattle often begins his direct examinations of experts by saying “I know your time is valuable, and so is the jury’s, so let’s start with your conclusions.” Not only is efficiency like this good in demonstrating your respect for the jurors’ time, but it also enhances your own credibility and command of the courtroom. Be Courteous to the Court Staff, Opposing Counsel, and Witnesses Attorneys are constantly being evaluated during trial. As we’ve written about before, jurors are always watching. Your credibility is being judged and the way you interact with others is a big part of that judgement. The judge mentioned that even small acts, like the way in which you hand documents to opposing counsel, can matter. He noted that the most successful attorneys he’s seen are courteous and helpful in the courtroom and do little things that make a big impact, such as when they help opposing counsel put a board on the easel, or genuinely thank the court staff for something they’ve done. Civility like this is not seen as a sign of weakness. Rather, it shows that you have confidence in your case and your abilities and that you don’t have to be underhanded or play games with opposing attorney. Keep in Mind that Judges and Jurors Want the Same Thing The judge said that judges and jurors both ultimately want the same thing: they want to feel good about what they achieved. They want to feel like justice was done. We’ve written before about confirmation bias and motivated reasoning in jurors, but the judge admitted that he and other judges also make decisions this way. He said you should focus on getting your judge inclined to your point of view, and “once inclined to rule your way, your judge will muster the logic to support that inclination.” Always be sure to tailor your briefs and oral arguments with this in mind. With jurors, we advocate the use of process graphics to assist in guiding them to what you would suggest is a just verdict.


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