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Counsel-table-sitting-behavior is always noted

Who better to give us important trial tips than jurors themselves?

In our mock trials, the jurors are surveyed after each major break in the day, like after each opening, each case-in-chief, etc.  Just a bit ago we conducted a mock trial on behalf of our defendant client in a breach of contract case.  We did our usual quick survey after the plaintiff’s opening.  On those surveys, not only do we ask about impressions of what they had just heard, but we ask for their overall impressions, too.  In this case, for example, after the plaintiff opening, we asked —

What is your overall impression of the Plaintiff?

Here is a direct quote from one juror:

  • “Very good opening statement. I feel the plaintiff has a strong backbone on his side of the case.”

–OK, good to know, nice jump start to the mock trial.  We know we are doing a good job representing the other side, meaning we should have some valid results from this day.

————————————————–

Now comes the really interesting part of the survey and the real reason for this Persuasion Tip.  We also asked this question —

What is your overall impression of the Defendant?

 It seems like a premature question, doesn’t it?  Silly, really, because the jurors have not heard a single word yet from the defendants.  Not a peep.  So, what was this same juror’s answer to this frivolous question?

  • “Well-dressed, but overall ready and not intimidated or intimidating in their posture and actions.”

 

So, before uttering a word, the defense has set a tone, created an image, communicated their belief in their case.  Not so frivolous, eh?

I know you know this.  I know you know to sit quietly, not reacting, not furiously scribbling notes, nor rolling your eyes.  But, there is someone else at your table who doesn’t know this.  This is their proverbial “first rodeo.”

The target of this email is your client, the plaintiff or the defendant, the corporate rep, the person who drew the short straw back in the conference room at corporate HQ.  These poor souls have to sit through the other side’s opening.  These poor souls have little to no idea that hearing the other side of the case might be the most uncomfortable hour of their lives.   You can tell them beforehand “don’t react,” but that coaching bit is not enough.  Your client needs to realize the full impact of their behavior at counsel table because THEY ARE ALWAYS BEING WATCHED.

ALWAYS.

Instead of leaning over to your client right before the other side’s opening and saying, “Now, don’t react or look upset or anything—just sit here calmly,” you might try rehearsing good “counsel-table-sitting-behavior” the day or so before openings.  Try some of these:

  • Share this email with your client.  It is a real life example of how jurors scrutinize everything in the room;
  • Share some war stories from other cases, like —
    • the one about the attorney defending a major car company, but who drove a car made by a competitor to trial every day, and the jurors noticing him in the parking lot and concluding that he didn’t believe in his client;
    • or the one in which the attorney was talking about his wife and family in voir dire, but wasn’t wearing his wedding ring, and the women jurors concluding he was a liar and a cad;
  • Ask your client, “How do you want the jurors to perceive us?  What type of message do we want to send them?”
    • Practice sitting in a way that conveys that message without talking;
    • As a follow-up, ask your client, “If we wanted to send the message that we are losers/liars/scared/incompetent, how would you sit?”  This is not only fun, but it teaches the importance of sitting well and it provides them with the contrasting example of what-not-to-do so that the what-TO-do is more obvious.
    • If you do this, remember to end your coaching session by going back to practicing, “OK, so let’s practice one more time sitting in a way that sends the right message.”  End the session on a good note.
    • Actual practice is far superior to merely talking about it.
  •  Use video in your practice session to show your client exactly how they look as they practice sitting with confidence, poise, and attention.

You know all this, but your client has no idea that in the insulated, tiny, intense world of a courtroom, everything is being watched and everything matters.

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