I have served and observed thousands of lawyers over 23 years, and gotten to know their thinking, strategy, intentions, and performance both preparing for and conducting jury trials. And I have become convinced that there is one barrier at the threshold of real excellence, one impediment to being the very best courtroom lawyer one can be.
That is the disconnect between how you see yourself and how your jurors see you.
This is not a recent phenomenon in the course of human events, nor is it confined to our field. The great Robert Burns wrote in 1786:
“O wad some pow’r the Giftie gi’e us,
To see oursels as ithers see us.
It would from many a blunder free us.”
In Re Louse To A Louse
Not so new and not just you, if it’s you at all. (But rest assured that if it’s not you, it’s almost every other courtroom attorney you know.)
The best courtroom lawyers start by getting into the jurors’ mindset where they are at the moment they first come into the courtroom, because that guides attractive behavior, questioning, communication and argument from jury selection through verdict. Only then can you incorporate the more universal elements of their thinking into your choices. Keep in the front of your mind that jurors got called out of their lives, into an unfamiliar setting with unfamiliar rules. They are mostly focused on their trying to do the right thing, not on your agenda.
Consider this your Pre-trial Consciousness Reset Button. Have a seat. Here we go.
You See Yourself As: Right, and therefore the side that should obviously win. And so attorneys tend to speak and act like that.
Jurors See You As: A stranger with a known agenda. And so that tone sometimes comes off as unearned and incongruous.
You See Yourself As: Very reasonable, a fact which would be obvious to anyone if they just think about it.
Jurors See You As: A stranger with a known agenda. So keep that in mind especially in the early stages of trial, before you have earned jurors’ respect and credibility.
You See Yourself As: Skilled with the procedural and evidence rules, and admirably quick with objections. (See my earlier post on objections.)
Jurors See You As: An avid player of a completely foreign game they don’t care about and therefore aren’t going to be impressed by excellence. Reinforces your differentness. Moreover, quite the opposite of being impressively good at a mental puzzle in a live format, they see your “excellence” as a barrier to their hearing the truth. Which they will hold against you.
You See Yourself As: Witty.
Jurors See You As: A dork, and at least preliminarily out of touch with them. Mind you, funny is good (in the right circumstances and in a harmless way); witty is death. What is the difference? For instance, word play is witty (bad) if it is too clever and relies on the linguistic whimsy and not its relation to the facts of the case for its humor.
I know that’s not very helpful, so maybe this bright line test will help: Imagine saying your would-be joke outside of court – if it would elicit a laugh, it’s funny; if it would elicit a smile (and mostly satisfaction for being smart enough to get the joke), it’s wit. Funny is good. Witty is death.
Or, if you are unsure of your jocular assessment, tell your would-be joke to ten people. If nine of them laugh out loud, it’s ok. If two or more only smile, kill it. And if two or more don’t even smile, maybe you’re just not very funny.
Oh, and needless to say, it’s not just in Florida that counsel should avoid ‘knock knock’ jokes that make jurors the butt of the joke. Not just ‘knock knock’ jokes, either; best to steer clear of the whole “gosh, jurors, everyone outside the courthouse thinks you’re stupid” genre. (Yes, that jackass won, but (a) a sample size of one is the smallest there is, and (b) his opponent ended up putting on a lousy case.) (And if you don’t get this reference . . . I envy you.)
I can go on, but you get the point. We sometimes are so focused on the jurors being strangers to us that we forget that we are strangers to them. They know our agenda – to convince them and thereby win our case. Think of the last time you met a stranger with an agenda to convince you of something, maybe trying to sell you something. Remember that feeling? Remember all that resistance arising inside you? Remember their attempts at ingratiation that felt insincere, and remember the ones that felt sincere?
Good. Recapture that in mind before your next trial.