Five Ways to Connect with a Jury
Last week I finished an intense trial that I’m proud to report ended in a Not Guilty verdict. As I often do after big cases or big events, I took stock and debriefed on what worked and what I could do better.
One of the concepts I’m continuing to develop is connecting with the jury. As you’ll see, this is an important aspect of a trial. And while not every one of my actions or words was intended to build rapport with the jury, I focused on it throughout the trial. Today’s post looks at five techniques that I use to connect with a jury.
Why connect at all?
The jury is far and away the most important part of a trial. As I wrote in my last post on the judiciary, the judge decides what evidence goes to the jury and how that evidence is framed, among other things. Regardless, it’s still the jury who decides the final outcome. In that sense each attorney is a supplicant, asking these six or twelve citizens to give you what you want.
Because you are ultimately asking for their vote, you need to create reasons they should find in your client’s favor. One way is representing the most “just” position. Jurors, just like all of us, want to work for justice. Representing the side that is the “just” side makes it more likely for a jury to find in your client’s favor. Even if a defendant is actually guilty, a jury could still determine justice is best served by not relying on a prosecution’s potentially flimsy rationale. In that way, defense attorneys represent justice by both making sure innocent people aren’t found guilty, and that every person, guilty or innocent, is afforded a fair trial.
But part and parcel to the concept is that of a fair or just advocate. To put it more simply, juries also want to find in favor of someone they like more. And they might decide they don’t like your client because they don’t like you. A client speaks maybe 1% of what the attorney speaks in a trial, if that. Because the attorney is the advocate and is the one representing the client, the client and attorney are intertwined. If the jury really hates one or the other, the whole case is in peril.
Besides likeability, a jury needs to know it can trust the attorney. Juries know attorneys represent their clients and that the prosecution and defense disagree about which side should win (why would there be a trial if there wasn’t?). But despite that, juries can listen to both attorneys with an open mind, and think about the issues objectively. I say “can” because if a jury is particularly skeptical about an attorney, that attorney has to work doubly hard to overcome that skepticism. That means appearing credible is paramount to getting that open-mindedness. A jury may or may not agree with you, but if they think you’re trying to pull a fast one, it’s almost impossible to be taken seriously period.
Ultimately, connecting with a jury will help an attorney seem both likeable and credible. You’re not trying to hypnotize anyone, you’re just trying to seem like a regular person advocating for a cause you, and they, should believe in. An attorney that connects with a jury still needs to have the law and facts on their side. An attorney that alienates a jury needs overwhelming facts and law to get out of the hole they’ve dug for themselves. Connecting with the jury makes success that much more likely.
With all that in mind, let’s look at where the jury starts. They know a defendant is accused of a crime. They probably think he’s guilty because he was charged, but they’ve also been told how important it is to maintain an open mind. They’ve seen TVs and movies about courtrooms and crime, and they’re wondering how much of the media portrayal is true (not much). A jury wants to be engaged, so they can feel like someone got a fair shake and they ultimately want to do the right thing.
So what can a defense attorney do to let the jury know 1) he cares about the jury experience, and 2) he’s fair and credible? Here are five techniques for engaging with the jury.
1) Eye contact and body language
Yes, the first technique is arguably the simplest. Make eye contact with the jury when you’re talking to them. You don’t actually get to talk directly to the jury that often in a trial, so it’s vitally important when you do that you make it count. Not making eye contact makes you seem dishonest or insecure about your argument. If each juror feels like you’re talking directly to them, even if only for a moment, it will make an impression.
Even when you’re not talking to them, juries are still scrutinizing you and your client. I give all my clients a quick pep talk on body language during a trial: Don’t react to anything. Appear calm and collected. Don’t cross your arms. Look focused. I’ll talk more about client behavior in an upcoming post.
And the same rules apply to me. I’ve seen attorneys roll their eyes at the judge after losing objections, audibly scoff at opposing counsel, or just slouch in their chairs when important stuff is happening. I like to think juries will give attorneys the benefit of the doubt if a lawyer talks with a monotone or doesn’t gesticulate or otherwise speaks passively. But if you’re actively looking petulant, bored, or disrespectful, that benefit will evaporate quickly. Which relates to the second technique:
2) Show respect for the process
Jury duty, as much as some people dislike, is still an incredibly important, incredibly fundamental part of our justice system. Jury duty empowers ordinary citizens to decide another citizen’s fate, and that’s a powerful ability indeed.
Besides that, the whole trial process has a lot of pomp and formality associated with it. People are in suits, , a person sits on high in black robes, etc.
If people come to the jury pool believing it’s a high calling, and I believe it is, underscore those beliefs by showing respect and decorum whenever possible. Part of this is described above: staying professional even in the face of adversity. But there are other things.
As much as possible I try to stand when addressing the courts, including making objections. Some judges are more relaxed on this point than others, but no judge is ever unhappy with more respect. And juries appreciate it too.
At the last trial I began by acknowledging the judge by name and starting with “Judge [whomever] and may it please the court….” I’ve never started an opening statement this way, because it’s completely unnecessary. “May it please the court” is the beginning line when doing a high-level appeal, like for the Washington or United States Supreme Courts. It doesn’t apply with jury trials, because you’re talking to the jury, not “the court.”
Nevertheless it’s a line a lot of people have seen in the media, and in any event juries seem to really like it when attorneys acknowledge the judge. I have no idea if did anything positive whatsoever for my client, but as I said, it’s hard to get in trouble with showing more respect.
3) A gentler cross-examination
Cross-examination is a big subject, and a subject of another blog post entirely. But point here is despite tactical considerations about what questions you ask, what order you ask them in, and what evidence you introduce through which witnesses (and there’s plenty more issues besides those), another big issue is how you conduct your cross-exam.
I wrote above regarding media juries seem to like it if you act in a manner they expect, or hope, attorneys will act.. A big exception to this is the cross-examination. Cross-examination has unbalanced power dynamics; the attorney can ask whatever they want and the witness is required to answer. Of course this difference of power is the precise point of cross-examination. The disproportion in power is how the truth comes out. But seeing an attorney attack someone mercilessly during a cross-examination is going to make it hard for the jury to like that attorney.
What all this means is that the attorney, to seem more rational and likeable to the jury, can do a cross-exam in a softer manner. This means two things: trying not to destroy or humiliate a witness, and not getting upset when you don’t get the answers you’re looking for.
On the first point, an attorney rarely if ever needs come out with guns blazing regarding a witness. If you have points to make, you ask the right questions to make them. Getting a witness to cry or swear at you is not a coup, it just makes the attorney look like a dick. If it appears you’re being kind and trying to get to the truth of a situation, you come across as infinitely more credible. And less like a dick.
The second point is to not get emotional yourself if you can’t get an answer you’re looking for. If a witness gives a rambling non-answer or injects their own commentary, don’t snap and don’t ask the judge to make them answer. Just ask the question again, maybe apologizing for being obtuse the first time. Keep asking what you need to ask to make your points, but stay even-keeled. At some point the jury is sympathetic to you for having to have a conversation with someone so clearly biased and who so clearly doesn’t respect the process. If you can pull that off you’ve made huge points on behalf of your case.
One final trick during cross-examination is to forgo it for a witness entirely. Admittedly, this doesn’t come up very often. But if cross-examining someone truly doesn’t advance your case, just stand up and tell the court you have no questions for the witness. The jury will love you for it because they want to see things move along efficiently, as we’ll see in the next technique.
4) Don’t waste the jury’s time
What movies and TV don’t tell you about trials is that they’re full of dead time, especially for a jury. Juries can get shuffled out of courtrooms at a moment’s notice if the attorneys need to talk about a piece of evidence. Besides that, there are plenty of mandatory-but-boring instructions the judge needs to tell the jury and mandatory-but-boring questions and answers witnesses and attorneys need to discuss.
What does it all mean? If you can minimize the time the jury needs to be on jury duty and their struggles to stay focused, if you can direct them to what’s really important and what’s not, they’ll appreciate it. And I like appreciative juries.
An example in my last trial was in opening statement. Right near the beginning I conceded a bunch of issues that I knew were not really in dispute, and that we could never win anyway. I outlined exactly what we were disputing, and told the jury that the rest was essentially agreed upon.
“The prosecution can’t even prove a dead body! And even if Ms. Jones is dead, there’s no evidence it was homicide! And if Ms. Jones did die of unnatural causes, there’s not a lick of proof my client was at the scene, and even if he was there there’s nothing tying him to the murder, and even if there was blood on his hands when the police arrived it was his cousin who committed the deed!!!”
“Unfortunately Ms. Jones did die that night; she was murdered. And it’s absolutely true that my client was at the scene on that night, and that the police arrested him with the blood of Ms. Jones on his hands. But where the police erred was blaming my client. We will prove that my client’s cousin was the murderer, and that my client is innocent of this charge.”
Which attorney sounds more credible? More likeable?
When I conceded some issues in my trial, I accomplished three very good things. The first was the jury knew and appreciated that I wasn’t wasting their time and wasn’t someone who would fight an obvious unwinnable battle. This led to the second good thing, which was directing the jury’s focus to what was important, so that when I was making my pitch on that key point, I knew I had their full attention. And third, it possibly created some resentment to the other side, who still presented their case as if every single fact was being disputed. In any event, looking like an attorney who is reasonable and not a time-waster is a great way to connect with a jury (pro-tip: judges like this too).
5) You play for the same team
The last technique is arguably the most difficult, but most effective. I said in the beginning that jurists can have preconceived notions about a client’s guilt, and that they think your job might be to trick them. It doesn’t really matter what their preconceived notions are as long as they set them aside and follow the law, but there’s still a better way.
A defense attorney can try to play up the important, constitutional role of both the juror and the defense attorney (both positions are named in the Constitution). The defense attorney can present themselves as working alongside the jury to be a check against unchecked tyranny of the State vis-à-vis preventing an innocent person from going to jail.
This can be a tough sell depending how “Law and Order” an individual juror feels. Nonetheless it is a powerful way to create a connection. The defense attorney argues about the high burden of proof, and the jury uses that high burden to hold the prosecution accountable.
With all that being said I’ll turn it over to the readers. For those that have served on juries, what are techniques attorneys did, for either side, which really resonated with you? Was there anything a lawyer did that put you off? I’ll talk about those comments in a follow-up post.