By R. Rogge Dunn attorney with Robins, Miller & Ciresi, Dallas,Texas © 1991 R. Rogge Dunn
This excellent article continues with suggestions to experts to improve their presentation of testimony to a trier of fact.
Dark blue is the most powerful color to wear. It is the color of authority, which is an important message for an expert to convey. If you do not have a solid blue suit, wear one with a light pinstripe, preferable a gray pinstripe. A dark gray suit is also acceptable.
Red ties are the strongest. Avoid fancy ties or ties that are too bright or busy. Even though wild flower print and psychedelic ties are the current fashion rage, you will not offend anyone by wearing a conservative stripe or foulard tie. Indeed conservative dress underscores that you are a conservative expert who bases opinions on hard, scientific data, not wild guesses or suppositions.
Wear a white, plain-collar shirt that is starched. Conservative, dark burgundy or black shoes with a matching belt of the same color are also appropriate. Clothes and shoes should be cleaned, pressed and polished. Attention to the details of your clothing is indicative of an expert who pays attention to the minute details of his investigation.
If you work for a public employer, like a police department, fire department, OSHA, etc. then you should wear your official uniform. Adrift among a sea of similar suits, you will stand out and make an impression upon the jury. That impression will not be a negative one made by wild clothes, but a positive one that reinforces you as a person in a position of authority. Appearing in your uniform will highlight that the federal, state or local government had enough confidence in your abilities to hire you to protect the health, safety and well-being of the citizens in the community where the case is being tried.
Women have greater flexibility than men in the types and variety of clothing they may wear. A suit or conservative skirt and blouse is preferable. Dark colors for the suit, skirt or conservative dress and best.
One of the keys to successful dress for women is to find something that is authoritative without being schoolish, warm and friendly without being too homely, and bold enough without being provocative. When considering options, choose the more conservative.
Because of long-standing stereotypes, the jury may attach even grater significance to the appearance of a female expert. Ms Marie Lambert, Vice President of the New York association of Women Judges, has even stated that a women’s appearance has significant impact upon that lawyer’s credibility with her. The fact that a judge, who is supposed to decide motions based on the facts and law, is persuaded by the appearance of an attorney, underscores how appearances can affect jurors.
Commentators have recognized that demeanor must be tailored to the particular individual. Prentice-Hall has even published a book written by 17 female trial lawyers specifically for women trial lawyers.
Men’s Clothing Don’ts: No Rolexes, no tie bar, No kerchiefs, avoid mousse, No cuff links, No tab collar, No gold chains, No pinkie rings, No I.D. bracelets, No striped shirts, no alligator belts, avoid wild hair styles, No white or brown shoes, No double breasted suits, No rings – except wedding ring, No "Italian" or "Bally" type shoes, No Mont Blanc, Cross or fancy pens.
Women’s Clothing Don’ts: No hats, Avoid mousse, No flat shoes, No fancy purses, No big earrings, No short skirts, No split skirts, Minimal jewelry, No art deco pins, No fancy jewelry, No leather skirts, No expensive jewelry, Avoid wild hair styles, avoid excessive make-up, No high, high heel shoes, No low cut blouses or dresses, No big glasses with bright rims.
Men’s Clothing Do’s: Black shoes, Plain white shirt, Wear wedding ring, Dark burgundy shoes, Nondescript clothing, Straight collar shirt, Dark suit, blue or grey. Wear comfortable clothing.
Women’s Clothing Do’s: Simple earrings, Conservative dress, Skirt and simple blouse, Wear wedding rings/bands, Small strand of pearls OK, lain or pinstripe dark suit.
One cannot underestimate the importance of body language. The conscience and sub-conscience signals the witness sends are constantly received by jurors. These signals include facial expressions, posture, eye contact and hand movements. A good book that discusses the importance of body language is What Makes Juries Listen.
In almost all American courtrooms an expert will be seated in the "witness box". Usually, the jury is separated from the witness by 10 to 12 feet and a wooden barrier around the witness box so that the witness is visible from the waist or middle of the chest upwards. The expert’s hands may also not be visible.
This means that while in the witness box, much of the expert’s body language will not be visible to the jury. If there is no witness box or you are allowed to stand to make a demonstration or explain aspects of a trial exhibit, use body language to your advantage. General rules for body language include not putting one’s hands in pockets or behind the back. Jingling keys is a sign of nervousness as is wringing one’s hands or playing with a ring or other jewelry. When discussing an important fact, emphasize that information with your hands. When not emphasizing a point keep hands down at your side in a relaxed position. If you are seated behind the sitness box, clasp your hands together in front of you. This is a position of sincerity and trust. Of course, do not stay frozen in any one position forever. Be natural and vary your hand placement.
You can practice body language by speaking in front of a full length mirror. Another helpful exercise is to watch old movies without the sound. You will soon realize how much communication the actors are doing through their body language.
Although the typical witness box in America courtrooms negates much of the body language that an expert can use to his advantage, the witness box will not prevent you from making eye contact.
Eye contact is extremely important. You literally want to reach out with your eyes and touch the people on the jury. A Sociologist conducted a study using librarians. On one day when patrons checked out books, the librarians gently touched or clasped the patron’s hand when returning their library card. On day two the librarians returned the cards without any touching. The language used by the librarians was the same, the only difference was touching.
Surveyors asked the people leaving the library whether the library staff was helpful. By significant margin, more patrons surveyed on the first day stated that the librarians were helpful and professional. While you cannot physically touch jurors, you can touch them through eye contact. This contact is important because if you do not look jurors in the eye, they will suspect that you are uncomfortable or worse, hiding something. Many jurors remember their parents teaching them to look a person in the eye and shake their hand when greeting them. Jurors also know that children guilty of a misdeed look down or away when being questioned by their parents.
If you look only at the lawyer asking the questions while you are testifying, the jury will feel ignored. If they are loft out, they are more likely to become bored and their thoughts will wander to other subjects. If they believe you are intentionally excluding them, they may become angry, purposely tune you out or, worse yet, hold what appears to be your aloof attitude against your client.
On the other hand, do not stare at the jury. Jurors have told me that they like to look at the witness, but if the witness is always looking back at them, they feel like they are invading the privacy of the sitness. Further if you stare at the jury, it will appear like you are making a high pressure sales pith. While you are giving them a sales pitch, you need do so subtly.
The proper balance is to create a triangle of sorts. If you were at a party, you would not listen to what one of our friends was saying and then when it came time to respond turn to the other friend and respond only to him. Remember that the witness is carrying on a conversation with the attorney asking the questions and the jury. The trial lawyer will look at you other times and look at the jury sometimes. You should do the same. Treat it as a conversation between three friends
Vary you eye contact so that it appears natural and flowing rather than planned.
Eye contact with individual jurors is important. By making contact with several individual jurors, you will be giving them attention and drawing the entire jury’s interest. Studies show that the attention span of adults is extremely short. Some say as sort as seven seconds. No matter how good your presentation or how interesting the case, the juror’s minds will always be wandering. By making direct contact with an individual juror, you will draw their focus back to your testimony.
When I first began public speaking, I was so nervous and would always focus on some subject in the back of the auditorium. If I looked at an individual in the audience, I feared I would forget what I was saying or lose my "train of thought". It took practice, but I learned to maintain eye contact with individual audience members while speaking.
To improve your ability to do this, give a speech to yourself in the mirror. Then make that speech to family members. When you feel comfortable, give the speech to a large group. You may wish to consider joining Toastmasters or some other organizations designed to improve speaking skills.
In speaking to large groups, I have noticed that some individuals will lose interest or daydream. When I observe this, I look directly at that individual and speak just a little bit louder. Usually that individual and others seated near him begin to listen. Once I have drawn that group in, I scan the audience and draw in someone else who is not listening and the group around him. This trick allows a speaker to keep as much of the audience involved as possible.
This technique should be applied in a courtroom. Do not concentrate on one juror or some fixed spot in the jury box. Involve all of the jurors by making eye contact with several of them. Obviously, you do not want to stare at any one juror as they will become uneasy. Further, do not strain to make direct contact with every juror. If it appears that you are purposely "networking" the jury, they will sense that you eye contact is insincere or part of an orchestrated performance.
If you use contact lenses, wear them. Glasses are another barrier between you and the jurors. To the extent you can remove this barrier, they will feel closer to you. Obviously, if you have worn glasses all you life and do not feel comfortable wearing contacts, it would be to your benefits to wear them and [not] have red, watery eyes.
Finally, do not forget that facial expression is important. One of my students, who worked for the Yellow Pages, said the company put mirrors in all of the telephone sales cubicles. The company believed that when the sales people had a happy facial expression that this would be transmitted over the phone in a positive voice.
While on the stand you want to be relaxed and speak in a conversational manner, but treat the testimony as serious and important. Although you will know more than the attorneys and participants in the trial regarding the issues about which you are questioned, never appear over confident. Never "talk down" to the jury. Jurors do like "know it alls", especially ones that are condescending. You should appear confident, but not cocky.
During cross-examination you should be matter of fact in your answers. Be firm in your opinions, not combative or belligerent. Always be polite!
Opposing attorney may use one of several techniques against you. First, they may try to get you angry. They may do so by questioning your integrity, your intelligence, or repeatedly asking dumb questions. Under no circumstances should you get angry or respond with sarcastic or flippant remarks. Most jurors do not like aggressive or obnoxious people. If you do not respond in kind to the attorney’s obnoxious remarks, you will gain favor with the jury, while at the same time diminishing their respect for the opposing attorney.
Being a likable witness is more than simply good manners. It involves sensitivity to local issues and the people in the community. For example, if you know you will mention foreign names during your testimony, learn the correct pronunciation. Muddling through the pronunciation exhibits insensitivity to a portion of the population, if that group is seated in the jury box, they may resent you lack of understanding.
Lawyers are the worst at using pompous and meaningless language. Experts often rely on technical words when common language is much more effective. If you want the jury to understand you, talk like the jury would in a normal conversation. In normal conversations, people do no say "The motor vehicle was proceeding down a multi-lane thoroughfare in excess of the posted limits." The jury may not be hot, tired and bored. Using academic or arcane language makes it more difficult for them to listen and comprehend.
Beware of filler language such as "with respect to" and "in regard to." These meaningless filler words add nothing to the substance of your testimony. It simply fills gaps and dilutes the quality message that you want to convey. Remember, there is no harm in short pauses.
On occasion, I have had witnesses tell me they were not comfortable wearing the types of clothing I suggested. One important witness in a wrongful death case told me when he left the military and moved to Hawaii he vowed never to wear a tie again. He said he had not worn a suit in 20 years, did not own one and would feel funny wearing one at a trial. Because of his strong misgivings I advised him to wear what he was comfortable wearing. He came to court in a pair of slacks and a loose fitting Guayabera-type shirt.
They were clean and neat, but not impressive.
Nevertheless, the impression that more traditional clothes would have made would have been negated by the witness’ chafing under them. He might have appeared nervous and had his credibility reduced.
If following any of the suggestions in this article would make you uncomfortable or nervous, then ignore then and dress and act as you want. If you are nervous or uneasy, you will communicate this to the jury through your body language. The jury will sense the uneasiness and may assume you are untruthful.
The suggestions above are generalizations. Sometimes the best advice is to be like everybody else. If you are in a rural area where the majority of the men on the jury are going to wear cowboy boots, work boots, overalls and "gimme" hats, then a blue pinstripe suit may not advisable. Further, if you are a "crusty good ole boy" you might look out of place in a suit. If the jury senses that your clothing or approach is insincere or false, they will seriously question your conclusions and testimony. Thus, use these suggestions as guidelines and confer with the attorney who hired you.
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