By Christina Marinakis, JD, PsyD, Former IMS Strategy & Jury Consulting Advisor
“All the world’s a stage,” as they say, and apparently, that includes the courtroom. From countless post-trial interviews with jurors, we have concluded that jurors are always watching you—not just to see if you are a good lawyer, but to see if you are a good person. Thus, it is important for attorneys to be mindful of their actions not only when they are speaking to the jury, but also while sitting in the courtroom, navigating the courthouse, and even outside on the courthouse steps.
It is difficult to say whether attorney etiquette has any impact on the verdict outcome, but the fact that jurors continually tell us about counsel’s irksome behaviors suggests that, at the very least, these behaviors distract jurors from the issues they should be attending to. Below, we examine a few of the behaviors jurors have found most bothersome, in the hopes that you can avoid getting on their bad side before any of the evidence is even presented.
Be Mindful of Your Manners
Though most jurors keep their thoughts to themselves on this issue until after the trial, I was fortunate (or unfortunate as it may be) to be in voir dire with a woman who was not shy about her perception of the male attorneys’ etiquette. When my client pressed her about her comment that she did not particularly enjoy working with people at her job, she exclaimed that “people are unfair.” Pressed even further, she brazenly stated, “Just in this courtroom, I’ve seen a lot of things that are unfair. Women in the elevator should get off first, yet I see you men jump out in front of them. Let the ladies go first. And while you walk in with a briefcase or folder, you’ve got these young ladies carrying boxes of documents. If I could send one message to all you lawyers here, it’s that you should show respect to women. That’s all.” Though this rant took everyone by surprise, this juror made a good point—that attorneys should be mindful of the impressions they create, particularly in their dealings with their colleagues, which may include women and minorities.
Perceived disrespect may be interpreted by some jurors as rudeness at best, or bigotry at worst. For example, retired New York Judge Shira A. Scheindlin observed in an Op-Ed in the New York Times that while older male attorneys frequently argued motions in her courtroom, they often turned to a young female attorney sitting next to them to consult on the case facts. In front of a jury, this dynamic could send the message that the male partner is stifling the achievements of the female partner. Along the same lines, consider the impression you send the jury when you bring a non-diverse trial team into the courtroom. And, as Judge Scheindlin’s anecdote illustrates, it may not be enough to have “token” diversity; each member of the trial team will need to play a meaningful role to demonstrate to the jury that the client values diversity.
The Haves and the Have Nots
One attorney etiquette-related complaint that comes up time and time again during post-trial interviews is jurors’ perception that they are treated as second-class citizens in the courtroom, bound by rules that do not apply to “self-righteous” (and often oblivious) lawyers. Over the years, we have heard jurors complain about being denied access to bottled water, coffee, candy, mints, gum, and—most frustrating—cell phones, while in the jury box. Yet, they see the attorneys enjoy these luxuries throughout trial. This perception of unequal treatment can leave jurors feeling resentful. Thus, it is important for counsel to refrain from engaging in activities that the jury is not permitted to enjoy. While it is understandable that lawyers may need water and mints given their heavy speaking roles, use these resources inconspicuously so as not to flaunt them in front of the jury.
To illustrate the intensity with which jurors sometimes dissect attorney behaviors, consider another case, where opposing counsel thought he was being polite by unwrapping his peppermints in advance—presumably so the crinkling of the wrapper would not be distracting during trial. Yet, in post-trial interviews, nearly half of the jurors spontaneously commented that it was “weird” or “gross” for said attorney to lay out unwrapped food on the desk, only to be consumed hours later. (Along the same lines, jurors will notice when an attorney fails to wash their hands before leaving the restroom.)
Catch More Flies with Honey
Jurors expect the utmost professionalism from lawyers and frown upon those who disparage opposing counsel and their witnesses. Although jurors may laugh at the snide remarks, sarcasm, and zingers that attorneys sometimes launch at each other in the courtroom, we almost always hear them denounce such behavior after the trial. Indeed, the most common response to the question, “What would you recommend the attorneys do differently in the future?” (besides “Nothing”) is something to the effect of “Don’t belittle your opponent.” Eyerolls, snickers, huffs, throwing up your arms in disbelief, and other nonverbals expressing disgust and disagreement are frequently viewed as unprofessional and disrespectful. Most of these behaviors are unconscious or difficult to control, so it takes extra effort to contain them. Even actions you may deem harmless—such as turning your back to the witness while they are speaking—have been viewed as disrespectful by some jurors. And while sarcasm can be a fun way to make your point, it really has no place in cross-examination and should be used sparingly, if at all. While a few jurors may appreciate the drama and humor of these remarks, it is best not to risk upsetting others on the jury. Ultimately, you will score more points with jurors (and probably with opposing counsel as well) if you “kill them with kindness.”
Final Thoughts
Although it is true that you cannot please everyone (including the jurors who hear your case), as far as attorney etiquette is concerned, remember that jurors are always watching. When your client’s fate rests in their hands, their perception is your reality.
