Courtroom Communication Strategies by Lawrence J. Smith and Loretta A. Malandro

In 1985 Courtroom Communication Strategies by Lawrence J. Smith and Loretta A. Malandro was Published by Kluwer law book publishers Inc. When it was published I read this book cover to cover and yellow highlined it plus dictated an outline because it was the single most compressive collection of communication principles I’d found. Even today, this book remains as valid as when it was published because human nature hasn’t changed. While I believe it is out of print copies are available on the internet. Here are a few of the principles worth considering:

  1. The following six communication principles are important: (1) communication is based on perception (2) people actively try to make sense out of their environment (3) perceptions are organized and structured within a brief period of time (4) people use stereotypes to organize their perceptions (5) people tend to see others as similar to themselves and (6) people attempt to maintain their original perceptions regardless of contradictory information
  2. when presented with contradictory information to their original perception, jurors will attempt to maintain their original perception by: (1) denying the existence of the new information (2) placing the disturbing information in a different context and (3) recognizing the inconsistency but maintaining the original belief anyway.
  3. Messages in the courtroom are too complicated. A good rule of thumb is: if they cannot be understood by a high school sophomore with a “B.” average than change them. Good advertising slogans like good courtroom messages are simple, direct and can be understood on the first reading. Jurors are more likely to perceive the source as credible when they understand the message and it allows them to feel competent and intelligent. Counsel should not present information that’s too complicated. They will not perceive the attorney is being more intelligent because of complexity but instead will see the attorney as less intelligent and incapable of communicating a clear and simple message.
  4. when opposing counsel has presented a strong argument, it is best to acknowledge this. Never be afraid to complement counsel on an argument; this increases the juror’s perception of your credibility and trustworthiness. Your job is to point out the obvious weakness, the critical missing element, which undermines the opponent’s argument. It is difficult to follow a back-and-forth argument. Instead, concentrate on the missing element, the erroneous premise or assumption. This is a simple message for the jury to understand remember.
  5. The image you want to present is: (1) competence (2) trustworthiness and (3) passion. Two factors the jurors consider in this regard are: (1) is the attorney well prepared and (2) is the attorney thorough.
  6. A normal adult attention span is only about 18 minutes. Jurors do not listen continually, they tune in and out.
  7. Projecting confidence and power in the court room is a critical factor for the attorney because messages are more believable when they are presented by a source who is perceived to have both power and confidence. Jurors will be watching for signs of your confidence level. You must “act as if” the case is going well, even if it is not. Jurors use nonverbal information to explain what is happening during the trial.
  8. A great deal of perception has to do with how you act and behave. Avoid showing anger or resentment, or being upset with opposing counsel, or rolling your eyes.
  9. The moment the attorney starts to receive negative behavior of any kind from a juror, the attorney needs to pay attention with rewarding behaviors. For example, give that juror more eye contact, more attention and talk directly to that person whenever possible.
  10. impressions are formed within 4 to 6 minutes in face-to-face encounters. Televised and video perception in 30 to 45 seconds. Telephone impressions in less than 30 seconds. You need to engage the jurors within the first 4 minutes of your presentation by pacing the jurors and connecting with them. Connecting can be done with a short statement which says: “what this means to you is…” Jurors form their initial impressions during the first 4 minutes. They base this primarily on visual perceptions and primarily nonverbal.
  11. The first impressions are formed by jurors during the first few days of the trial. After that point, little new information is used to alter the initial perceptions.
  12. The principle of reciprocity is a very powerful principle. People feel obligated to repay others regardless of whether they like the gift or the giver. The principle is not only powerful but is also automatic. The moment you do something for another person they begin to feel obligated. Self-disclosure involves reciprocity such as “I know how I feel about this…”
  13. People have a need to be consistent. They will attempt to maintain their original perceptions regardless of contradictory information. Therefore, if you want people to maintain something you want them to agree to you must first obtain a commitment. The commitment should be active, public, and freely made. A should be made in front of other people – a public commitment for greater power. A commitment should always be anchored. One form of anchoring is simply to paraphrase what they agree During closing remind them of the original commitment.
  14. People are in rapport with one another when they tend to match each other with verbal, vocal and nonverbal cues. One’s ability to connect to the beat of another person is at the heart of persuasion. Copying the other person is essential to being able to persuade. Pacing breathing patterns is a very powerful way of connecting with a person as well as gestures and speed of speaking. Match the way a person talks and you will literally be speaking the same language. People choose phrases and words for reason, listen carefully to what they say and when you respond to use those words and phrases. Pace nonverbal communication.
  15. In a situation with a volatile judge, the attorney should use complementary pacing. They should match the judge’s intensity and mood, but in the opposite direction. If the judge talks fast, with anger and expresses negative comments about the attorney, his client, or his cause, the attorney should talk slowly and in humble terms. The more humble and fair the attorney appears, the more hostile and unfair the judge appears to the jury.
  16. In one study it was found that if an individual admits that he has a bias, the admission actually enhances the credibility.
  17. The general guidelines for appropriate nonverbal behavior include: (1) use good eye contact (2) use facial gestures (3) Display sincere interest in others (4) keep a normal to close distance (5) use excessive vocal cues (6) appear relaxed and confident.
  18. Simple is always better. The best professional speakers avoid jargon at all cost or if they have to use jargon they define the words at the precise moment when they use them. Counsel should be able to state a case in one sentence of no more than ten words. Further there should be a single case theme under which all other points are listed. Multiple peace themes do not work – too much information and too much to retain. The clearest, most concise statement of your theme is the one that works best.
  19. The rule of three. Research findings indicate that messages that are presented in the form of three elements have a greater likelihood for retention because people easily remember three things. A further reason for the rule of three is that it creates a rhythmic pattern. This rule applies not only to phrases and sentences but to major statements or issues in the case. Your major points should be developed from the case theme and should have three major points – no more and no less. If you have more than three points, simply create three major categories and place the points under each category. Do not have more than three points within any subcategory. Psychological studies show the jurors really decide a case on one or two issues, three at the most. They simply ignore the remaining issues.
  20. Presenting a consistent mesage is important. When you develop your theme and the three major points, have them typed on the page with nothing else. As you go through the trial keep looking at that one-page to remind you of the message and to be consistent. The more you have embedded it in your unconscious mind and that of the jurors the greater the likelihood that it will be remembered.
  21. People make decisions by emotion ( unconscious mind) and then validate them with logic (conscious mind). One of the things we know about decision-making is that decisions are made by emotions on an unconscious level and validated by logic through the conscious mind. People feel better if they can support a decision consciously by explaining how the decision to place why they made it. However they are still making decisions at a gut level instinct.
  22. The unconscious mind does not deal with negatives such as “not, never or no one”. In other words, when you say to the unconscious mind, “do not think of a pink elephant” it will think of a pink elephant. When you use the subject “pink elephant” the mind immediately goes into a search pattern for that subject and simply deletes the negative part of the sentence. The unconscious mind does not respond to the absence of something. Therefore when you tell the unconscious mind something with the word “not” or anything negative in it you will get the opposite response.
  23. Studies indicate the most common trait of the foreperson is that this person was exceptionally talkative. They were usually among the first to speak when jury deliberations began. The foreperson is more likely to be a person of high social economic status. How much is said appears to be more important than what is said by the leader. Leaders of small groups can exert considerable influence over the whole group.
  24. Jurors generally can be categorized as follows: (1) leaders: high status, high intellectual ability, strong-willed, self-confident, past leadership experience. (2) followers (3) filler – someone unable to make a decision and goes along with the majority (4) the negotiatrators – people who want to make a compromise decision (5) hold outs – people who refuse to change their position.
  25. The attention span of the juror is on average about 18 minutes even among jurors who are intensely interested. The human mind is capable processing information 5 times faster than we can speak.
  26. Climax and anti climax. Psychological principles debaters have used for structuring arguments for decades indicates that you should put your strongest argument first followed by the weaker arguments in order of strength. Likewise in structuring the order of witnesses for trial try to call the strong witnesses first .
  27.  Try to schedule as few witnesses as possible. Simplify your case as much as you can because this makes it easier for the jurors to understand and reduces the chance of surprising developments.
  28.  The major goal of discovery is to limit issues. All discovery techniques should aim at eliminating issues. The fewer the issues the fewer the problems that can come up.
  29. Jurors closely watch relationships. They closely watch how the attorney reacts to members of the staff as well as opposing counsel . Jurors do not understand how to attorneys can be in conflict with one another and yet be friendly with each other. They want consistency.  The attorney should never be seen being friendly with the opposing counsel in front of the jurors. This would conflict with the jurors need to make sense of their environment . Therefore no matter what the out-of-court relationship is with opposing counsel, do not appear to be friendly with them or interact with them in a friendly manner in front of the jury. Do not take the chance such gestures can be misinterpreted or disturbing to the jurors.
This entry was posted in Advocacy. Bookmark the permalink.

One Response to Courtroom Communication Strategies by Lawrence J. Smith and Loretta A. Malandro

  1. Daniel says:

    Thanks a bunch for sharing this with all of us you rlleay know what you’re talking about! Bookmarked. Kindly also visit my web site =). We could have a link exchange arrangement between us!

Leave a Reply

Your email address will not be published. Required fields are marked *