By R. Rogge Dunn attorney with Robins, Kaplan, Miller & Ciresi, Dallas, Texas © 1991, R. Rogge Dunn.
Attorneys and their clients want experts to be more than qualified professionals who analyze losses and determine their causes. They need experts who can articulate opinions clearly and persuasively in the courtroom.
The brightest experts in the world will not benefit a client who retains him if he cannot convey his knowledge to the jury effectively. A polished presentation, not simply raw technical information – no matter now accurate – persuades a jury.
Most experts have had extensive training in their field of expertise. They are qualified to render opinions and have the tenacity to survive rigorous cross-examination by opposing counsel.
Many experts need improvement, however, in their courtroom presentation. This article explores proven communication technique and offers exercises to enhance the use of these methods.
Studies indicate that many times what a person says is not as important as how the person says it. This is particularly true in the courtroom.
More and more attorneys are making use of communication experts to prepare witnesses for trials. For example, three large firms in Houston recently hired a communication expert. They represent three defendants in a multi-million dollar lawsuit. The communication expert has met with and studied the witnesses and the lawyers. She is developing a strategy to pair specific attorneys with particular witnesses based on speaking styles and mannerisms. The attorneys believe that matching counsel with compatible witnesses will make their presentation of the witnesses more effective.
A speaker persuades by three methods: words spoken; body language; and voice. If you had to assign a percentage to each of these components, which do you think would be the most effective in persuading a juror? The voice? The words spoken? The body language?
One of the foremost studies on the subject found that the words spoken were the least important! Surveyors found the three components effective in the percentages: body language 55%; voice 38%; words spoken 7%.1
Even if you are skeptical of this study, the fact that body language was so important to the receivers of the message proves that everyone testifying in court must place extreme importance on their appearance, behavior, and communication techniques. As society continues to obtain more information from the visual mediums like television and less from reading, the importance of body language will increase.
Your appearance is crucial. As you approach the witness box, the jury will look at you. Before you open you mouth they will form an opinion about you. Whether you intend it or not, what you wear makes a statement. Therefore, it is important to dress for the statement you wish to make.
The cliché that you "never get a second chance to make a first impression" holds true in the courtroom. I observed this phenomenon in a business law course that I taught. For the first class I dressed up as the prototype nerd. I wore "high water" khaki pants, white socks, a short sleeve shirt with a white undershirt, a pen protector and old fashioned black rim glasses like Floyd the barber used to wear on the Andy Griffith T.V. show. I started my lecture in a squeaky voice and told the students that the law was like mathematics and students who had high marks in quantitative courses would do well in my course.
After several minutes, I confessed to the students that the law was not anything like mathematics and had much more to do with appearances. I also mentioned that I was not a nerd.
I assumed that once I said I was not a nerd that the students would realize that my dress had been a demonstration. Several semesters later I ran into one of the students who had been in that class. He told me that even though I denied being a nerd, he didn’t believe me even by the end of the lecture that first day. I found that surprising since I went back to my regular voice and had lectured that day for three hours. The student said it was not until the second lecture that he could conceive of me being a trial lawyer as opposed to a professional egghead.
As my experience indicates, appearance definitely shapes the credibility of what one says. If you make a good first impression, the jury will like you or respect you and give more credence to your testimony.
I always suggest that a witnesses’ dress for trial be nondescript and "middle-of-the road’. You may fancy yourself a natty dresser, but the courtroom is no place to make a fashion statement. One or two jurors may like a dapper dresser, but chances are too great that you will offend other members of the court.
National newscasters strive for a strong, clear voice without any noticeable accent. A non-descript accent enables them to communicate effectively with all people in their viewing audience. It also reduces the chance that one’s accent will arouse stereotypes or prejudices associated with an "outsider" from the South, North, east, or West.
Harry M. Reasoner has a strong, non-descript voice. It is a reassuring "middle America" voice that reflects America’s melting pot.
A good voice is more than simply a deep resonant voice. The best voice in the world will become monotonous if the speaker does not vary his tone, volume and rate. It is easy to fall in the habit; of talking like this; very matter of fact; like reporting the news. If you speak like this using the same cadence and rhythm, you will lull the jury to sleep. Raise the inflection of your voice at important points. Pause to emphasize an important fact. A short delay will garner attention.
If you have a opportunity, watch a professional story teller live or on videotape. They move through a story at different rates, stopping to emphasize points and raising their volume at other points. This variation makes the story interesting.
A few people are born with a good voice. Most of us, however, are not so lucky and must work at obtaining such a voice. If you practice, you can do so.
Early on, orators realized the power of the voice and worked hard to perfect their own. The Greek orator Demosthenes had a lisp. Legend has it that he put pebbles in his mouth, went to the beach and practiced to project clearly over the ocean’s roar.
The first aspect of a good voice is projection. Your voice should be able to fill the courtroom. You can do so by keeping your head up and speaking from your diaphragm or a least your deep chest rather than talking from your throat or worse yet, through your nose.
My elementary school teacher made us stand on the stage and speak in a whisper, but loud enough for her to hear us in the back of the auditorium. Try practicing that exercise by speaking softly, but with enough depth and resonance to reach the back of the room. Watch yourself in the mirror to ensure your posture is helping your voice.
If you talk through your nose, hold your nose and speak, again concentrating to speak from your diaphragm. To practice varying your tone, start a sentence in a high register and finish it in a low one.
Similarly, your clothing should be ordinary. Provocative clothing may offend some jurors. If your clothing indicates that you are wealthy, some jurors will probably resent you. Jurors in a recent wrongful death trial significantly reduced damages that they were planning to award after they saw the plaintiff’s attorney driving to the courthouse in an expensive Porsche. The plaintiff’s attorney asked for $25 million and the jury awarded $8 million.2 This result illustrates that jurors may decide issues on appearance and not on the facts of law.
Further, flashy dress is inconsistent with the reasoned and scientific message an expert is conveying. Some jurors may find this inconsistency troubling and question the experts veracity.
Proper dress can add credibility. I once talked with a female Australian Barrister who found that formal dress was invaluable in her criminal cases. Although Australian Barristers are required to wear a robe and wig when visiting criminal clients in jail to gain their attention. She has found that wearing the wig and robe in the courtroom reduces jury prejudice regarding the competence of female barristers. She believes the formal dress puts her on equal footing with male attorneys.
If you dress in formal business attire, you will mirror the public’s expectation of the courtroom and justice. As Murray Edelman has noted, courtroom rituals reassure the public that a rational or equitable basis exists for the court’s ruling "regardless of what is said in the course of the proceeding on particular occasions. Men may dislike…law, or a judge’s decision, yet be reassured by the forms [of the court proceeding]".3 Conservative clothing is consistent with the formal proceedings that the jury expects and appreciates.
Notes
1.A. Mehrabian and M. Wiener, Decoding of Inconsistent Communication, 6 Journal of Personality and Social Psychology, 109 (1967)
2. The jury stated that they thought that if they awarded more money to the plaintiff’s estate it would just enrich the lawyers. M. Hull, Jury Snipes at both Sides in Dallas Wrongful Death Suit. Texas Lawyer, pg 8, February 1991
3. M. Edelman, The Symbolic Uses of Politics, 12 (1964)
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