We live in a world far different, in many ways, from the world most of us grew up in. Rudeness is epidemic. Loud laughter, vulgarity, disrespect and discourtesy in public places are not only commonplace, but have virtually become the norm. Only in houses of worship, well-traditioned cultural venues such as art galleries and the theater, and, fortunately, in the courtroom have the rules of civility survived for the most part. But even in the courtroom and in the halls of justice, civility has many faces.
Since almost every lawyer, sooner or later, will find himself or herself in front of a jury, there are some very practical considerations, beyond just following the rules, that merit thinking about.
From the very first moments, jurors are forming impressions and assigning credibility to what they see and hear in the courtroom. This process, which occurs on both conscious and subconscious levels, begins immediately and continues until, behind closed doors, the sum of all of the individual and collective impressions produces a verdict. Underestimating the assignment of credibility to even the smallest of impressions can be disastrous.
In the courtroom, there are four key areas of credibility that successful lawyers will be constantly aware of: the parties, the lawyers, the evidence and the jury. Most attorneys, at the outset of trial, are focused on the evidence they will present, the group profile they hope to achieve in jury selection, opening statements, and the trial process and procedure itself. It often seems as if the lawyers, and those in the well and at the bench, are the only active players - that the jurors play merely passive roles. But the skilled trial lawyer understands that the exact opposite is the reality.
Jurors, from the moment they walk into the courtroom, will be forming impressions and assigning credibility to the parties, the lawyers and the evidence, in order of time, sequence and importance. Because the impressions and credibility of the evidence will be influenced to a lesser or greater degree based on the credibility of the parties and the lawyers, it is the people in the well whose credibility is at issue here.
Before anyone says a word, jury pool members will be looking to see who the players are. Sitting at counsel tables will normally be a plaintiff and a defendant or two, and some other folks yet unknown to jurors. They may not, at this point, even know what the case is about, but impressions will begin to form about the people sitting at the tables and interacting in the well. Before a word is said, judgments are being made and credibility assigned to these as yet unknown players.
Jurors are asking themselves, "Who are these people and what problem has caused this jury to be summoned to duty?" And they will, before hearing a single word about the case and the evidence, begin to evaluate and to assign credibility based on their own experiences with other people. Their impressions could be based on the way someone is dressed, a haircut, a tie, a facial expression, a perceived attitude or similarities to someone a juror may know (and like or dislike). But impressions will begin to form and a degree of credibility will attach even if, at this early stage, they are not well-defined impressions.
If you doubt that this happens, though you may be an experienced trial attorney, the next time you are in a courthouse, walk into any courtroom where a trial is taking place and be aware of where your eyes go and of how quickly you size up and assess the individuals at the tables and in the well. Be aware of the credibility you assign to each, even though you may have never seen them before and have no idea of what the trial is about.
We all do this every day. It is a part of our individual profiling mechanism by which we compare new faces and patterns of behavior to the sum of our own personal life experiences with others. We compare and measure instinctively. It is human nature in its most basic expression.
As for the lawyers, once the process of jury selection begins, the prospective jurors immediately begin to size up the attorneys. While the lawyers are picking a jury, the jurors are picking a lawyer. Believe it!
These first impressions can lay a foundation of credibility or lack thereof that can last throughout the trial. Attitude, demeanor, dress, voice quality, even the order or disorder of the documents and other "stuff" the lawyers have brought to counsel table, will influence, from the outset, the degree of credibility jurors will assign to each of the attorneys in the case. By default, this phenomenon also applies to what the attorneys proffer during the course of trial.
One of the most important things that will build instant credibility is an attorney's attitude toward and interactions with opposing counsel, the court, the court staff and the jurors themselves. A lawyer who demonstrates a high degree of courtesy, respect and civility, along with a little humility in the beginning, will be far more richly rewarded in the credibility contest than one who storms arrogantly into court with an attitude, no matter how good a trial lawyer he or she may, in reality, be.
Showing respect to opposing counsel and all of the players on the trial stage lets jurors know that an attorney is first and foremost an advocate of civility. Respect creates a sense of "rightness" that makes jurors comfortable. Imagine the discomfort of being in a room where two people are arguing or fighting. If they are yelling at each other and accusing each other, the normal human reaction is simply to want to get away, to not get involved.
Gerry Spence once noted that arrogance, insolence and stupidity are close relatives. And in the words of Walter Landor, more than 100 years ago, "Politeness is not always the sign of wisdom, but the want of it always leaves room for suspicion or folly."
Remember, every small impression made on jurors, in the courtroom or in the halls of the courthouse, will be either an increment of advantage or disadvantage. Civility is not merely a set of rules designed to govern courtroom behavior. Civility, when properly understood and honestly employed, is a powerful tool in the arsenal of successful trial lawyers who understand that their own credibility and, ultimately, the credibility of the evidence they will offer in trial is at stake.
When the jury is comfortable with the fact that you have been respectful of the process, the players and, in particular, the jurors themselves - respectful of their time, their humanity and their intelligence (no matter what the level) - they generally will go into deliberations with an attitude of good will toward you and often will give you consideration beyond what the evidence entitles you to. As Elias Magoon once observed, "There is no policy like politeness, since a good manner often succeeds where the best tongue has failed."
Professionally, civility is the rule. More importantly, it is an important increment of advantage that can enhance reputation and success in the courtroom, in the office, on the street and in life. n
R. Craig Smith is a Seattle-based trial consultant with more than 23 years' experience in federal, state and local courts throughout the country, and is lead consultant for the Trial Design Group. He is the author of a recently published book, "Championship Law - Seven Keys to Winning Performance in the Courtroom." He can be reached at craigcnslt@yahoo.com or you can visit his Web site at www.championshiplaw.com.
