The topic is inspired by my reading of a trial transcript involving a plaintiff’s lawyer who clearly is continually thinking about themselves and not the jury. Being self centered is counterproductive and appearances are not deceiving when we are talking about jurors.
We need to remind ourselves as plaintiff trial lawyers, that the decision about our case will be made by the jurors and that decision will be based upon their impression. Greatly influencing that impression will be us. Jurors are looking for someone they see as credible and trustworthy. While the positive and negative issues in the case drive the verdict outcome, in the end the impression of the advocate plays a major role.
What is the most common flaw in the presentation of the plaintiff’s case? The plaintiff lawyer himself or herself. The most common mistake is the lawyer who hides behind appearances and the lawyer who is focused upon himself or herself instead of the jury. These are lawyers who “wear masks” and pretend to be someone they are not. Genuine and authentic people, with all of their faults, are far more credible and trustworthy than the lawyers who are hiding the reality of who they really are. Great lawyers are always viewing events during the trial from the standpoint of the jury. They are saying to themselves: “What is the jury hearing, seeing and feeling right now?” These lawyers are always viewing the proceedings through the eyes of the jury. Mediocre lawyers, on the other hand, are continually thinking about themselves as if in a mirror; how they think they are sounding or looking to others. They are self-centered and wrongly believe that through acting they can impress jurors.
The truth is just the opposite. All people, especially a group of people collectively, can almost instantly detect phony people. We all relate to someone who is less-than-perfect, but totally genuine. We are repelled by people who pretend to be somebody they are not. It takes courage to expose our selves and our flaws to others. We don’t like to admit that we are nervous or afraid or have concerns about something in our case to jurors. Yet, doing that in jury selection, is what makes us credible people. Sharing how we feel first, before asking jurors to share with us, is not only consistent with the psychological principle of reciprocity and encourages responses from jurors, but it makes us authentic.
Gerry Spence has advocated that to be credible we must take the risk of telling the truth about ourselves. Most of us do not tell much of the truth about ourselves. We hold back our hurt, our anger and our fear. Great pretenses win nothing. To win, we must be believed; to be believed we must be believable. In order to be believable we must tell the truth, the whole truth. As Spence has pointed out: “We must argue from the place where the frightened child abides; where the whispers and wailing are held back. That is where we must focus: that is the place where credibility dwells. Technique has little to do with credibility and therefore little to do with winning.”
Too many lawyers accept the truth of these concepts about being authentic and intellectually understand it. However, they have great difficulty putting it into practice fully. It is frightening to expose ourselves in a truthful manner to a group of strangers in a courtroom. We may show some of the truth, but it is a challenge to open all the doors to our inner self. Yet, that is the great secret of winning trial lawyers.
The truth is appearance isn’t the key factor. Great lawyers can be short, tall, fat or skinny. Great lawyers can have “the wrong voice.” Great lawyers can have trouble expressing themselves with eloquence. But, all great lawyers have one characteristic and that is total, absolute authenticity. They are who they appear to be. All people, including jurors, identify with such people just as they are repelled by the opposite conduct and demeanor. Resolve to have the courage to be who you are. The great St. Paul said: “But by the grace of God I am what I am.” (1 Corinthians 15). Or, if you prefer, Dr. Seuss said: “Be who you are and say what you mean.” And, the 1933 comic book character Popeye the sailor, was fond of saying “I yam what I yam and that’s all what I yam.” Whichever advice you prefer, make it your new resolution to be open, truthful and authentic when you represent plaintiffs in trial. You will be rewarded for doing so.