In analyzing what the demeanor of the plaintiff trial lawyer should be during trial, one should keep in mind how jurors and judges arrive at their viewpoints, opinions and verdicts. Research and functional magnetic resonance imaging has confirmed the majority of our decisional thought processing goes on at a subconscious level. Our impressions and decisions are not logical, but rather a process that occurs without our conscious involvement and at an unconscious level. However, these subconscious conclusions are always rationalized by our conscious mind that insists there be a reason for everything we do. Why is this fact important? It’s important because it means a trial is really a struggle of impressions and not a struggle of logic. Therefore, the impressions we create and our witnesses create are critical to the outcome of the case.
On top of that, we also know that nonverbal communication is considerably more communicative than is verbal communication. How we act, the way we talk and the way we move become an important part of the process by which jurors form impressions and ultimately arrive at verdicts. Consequently, our courtroom demeanor and appearance carry a considerable amount of importance regarding the outcome of the case.
Let’s look at the trial from the typical juror’s stereotyping of lawyers, especially plaintiff lawyers. They do not trust the plaintiff lawyer who they know wants them to give money away. They have been conditioned to believe the same lawyer is devious and will try to put something over on them like a salesperson would. They arrive at the courtroom with their guard up, just as we do when we know a salesperson wants to sell us something. Therefore, our primary goal is to put ourselves outside the expected stereotype. We want to demonstrate that we are credible and trustworthy, and an exception to what they expect. If we are outside of their image of what they expect us to be, we are more likely to be listened to and trusted.
However, it is how we interact with people during the trial that carries the most significant implications from a jury impression standpoint. Arrogance on the part of the lawyer or a witness will seal the fate of either in the eyes of the jury. To communicate the right impression we must treat everyone with respect and be professional in our words and conduct at all times with everyone. That just doesn’t apply to how we treat and speak to the judge. It includes the court personnel, the bailiff, the clerk, the court reporter and anyone else who works in the court room. Someone on that jury is watching you all the time and particularly how you treat them. It also applies to witnesses. You may not treat a witness with arrogance, ridicule or anger unless everyone on that jury gives you their permission to do so and you will never know if has been given so don’t do it.
Most of all, a requirement of a professional, respectful demeanor applies to your treatment of your opponents. You can only hope your opponent is a nasty, arrogant person so that you can demonstrate to the jury how unlike him or her you are by your reaction of professional conduct. In addition, to creating a favorable impression to the jury there an important, additional reason. We know that when we allow ourselves to become upset or angry we lose control of our rational processing. We do not function efficiently. Furthermore, we give up our self-power to the other person. Their words and demeanor control how we react and we are no longer in control.
We have all seen a dispute between two people where one is angry and out of control but the other person remains calm and in control. The latter always is perceived to be the more powerful of the two and more in the right in the dispute. What else happens when two people began arguing and attacking each other? We are uncomfortable. We move away. We don’t want anything to do with it. We think both are wrong. Jurors react exactly the same way to lawyers arguing with each other or treating one another disrespectfully.
So, what is the conclusion we can draw about what our demeanor should be as trial lawyers? It’s clear that our goal is to communicate credibility while treating everyone, including our opponent with respect and professional demeanor at all times no matter what our opponent is doing. Even if we don’t see it as our ethical or moral obligation, we should see it as making sense if we want to win. To be a great trial lawyer with the jurors of today we must learn to treat others with professional respect during a trial at all times.