Jurors Talk About Trial Attorneys

by Art Raedeke

It can be very difficult for trial counsel to obtain candid feedback from jurors about attorney performance at trial. Even when the trial team has an opportunity to talk with jurors after a verdict, jurors are generally reluctant to offer a frank face to face critique. In interviews conducted by a third party, however, jurors are more forthright about their reactions to how attorneys handled themselves at trial. Our post-trial interviews with numerous jurors have revealed some common reactions to attorney style and demeanor in the court room. Based on jurors' comments about attorneys in a wide variety of cases, following are some pointers for making a positive personal impression on the people in whose hands the outcome of your case rests.

Respect Jurors' Abilities

There are few things that offend jurors more than to be treated condescendingly. Trial attorneys must express faith in the jury's ability to judge. Because of the wide range of educational backgrounds and intellectual abilities in the typical jury, the case should be presented at a level that is simple enough to be grasped by jurors with less than a high school education, but not so elementary as to "talk down" to the highly educated members of the panel. This point is illustrated by a juror's comment about an attorney in a financial fraud case: "At first my impression of him was very positive. He seemed more accessible and realistic. He would look at things from common sense. In the end, though, I felt he was trying to do our thinking for us. He was trying to be simplistic, and I wanted more legal information." The critique offered by that juror also suggests that attorneys should let jurors draw their own conclusions. Another juror in a patent case confirmed this sentiment with this complaint about one of the lead attorneys in that trial: "He was trying to play to the jury and didn't think we had enough intelligence to figure things out on our own." While it can be very effective to let jurors know what conclusion you think the evidence points to, they often resent being told what conclusion they must reach.

Respect Jurors' Time

Another cardinal sin of trial practice is to waste jurors' time. The most common complaint voiced by jurors is that trials are too long and testimony is overly repetitious. While there can be pressure to err on the side of thoroughness in presenting your case, doing so runs the risk of irritating jurors who either do not see the relevance of the testimony or who have long ago picked up the point of the questioning. Take, for example the following juror comments: "He asked the same thing over and over again. It was like he was talking to two year old kids. He could have said what he said in much less time." "He was too long winded. He would go over the same question fifty different ways. I understood after the fifth time and got tired of his questions. It seemed hopeless that he would get a different answer."

Be Organized

Preparation and organization are the key ingredients to keeping jurors' attention and not wasting their time. Conversely, lack of preparation and organization suggest to jurors a lack of interest and/or conviction about your case. This was the conclusion one juror drew in an insurance bad faith case: "He didn't seem to have it all together. He was not familiar with the files or exhibits. He was so disorganized he had to ask the opposing attorneys for exhibit numbers. It was hard to follow his train of thought with witnesses. He probably hurt his case more than helped it. He did a good job in closing, but he had already done so much damage he couldn't make up for it." Another juror described an attorney this way: "It seemed like he could have been more organized. He had to hunt for documents and he used compound questions that confused the issue. He would repeat himself over and over again. It was very repetitious. Where he would confuse, (the opposing attorney) would clear things up."

Be Polite to Witnesses

Jurors generally place a high premium on courtesy and tend to dislike aggressive and confrontational behavior. While jurors understand the need for persistence and firmness, they draw the line when questioning becomes "hostile." A comment from a trial juror illustrates this point: "The plaintiff lawyers were very arrogant and that worked against them. The way they handled witnesses, they were being hostile. That wasn't professional. They would smirk and laugh and it was like they were saying, 'It's so easy, why can't you see it the way we do?'" Another juror made this complaint about an examining lawyer: "He badgered witnesses and picked on them too much. He was too short with people and didn't let them say what they wanted to say." On the other hand, lawyers viewed as treating witnesses with respect have drawn very favorable reviews: "All the defense attorneys were very good and very professional. It was almost as though they were nice people. That counted a lot in their corner." "I loved him. He came across as energetic and seemed like a nice guy. He smiled and was very polite. He was not demeaning to witnesses." "He was very nice to witnesses and persevered when they wouldn't answer. He had a nice manner and was not rude. He finally got what he wanted, but in a nice way. He was not pompous."

Unfortunately, jurors sometimes hold female attorneys to a higher standard of decorum than they do male attorneys. One juror acknowledged: "Maybe it's sexist, but I thought she was too aggressive. There was no need to be so confrontational. It annoyed me." Behavior by a male attorney that is deemed firm and persistent is often considered aggressive and strident when engaged in by a female attorney.

Watch Your "Off Stage" Behavior

Just as jurors demand polite, professional behavior of lawyers who are questioning witnesses, they also expect professional demeanor from lawyers while they are sitting at counsel table. Jurors pay close attention to lawyers who are not "on stage" and, for the most part, dislike visible reactions from them about witness testimony. One juror who liked an attorney overall offered this qualification: "If I needed an attorney, I wouldn't mind having him, but sometimes he would sit there and shake his head and show his opinion. That didn't wash too well with me." Another juror complained that an attorney "sometimes gave an attitude when the other lawyer was up. He would make a grouchy face to the jurors." A third juror expressed a similar reaction: "I didn't care for him at all. He had a smirk and would shake his head when other attorneys were questioning." One juror described a trial attorney as the "court jester" because the attorney would "roll his eyes and click his tongue." He added, "It was very distracting."

Convey Confidence in Your Case

It is not surprising that jurors are affected by the sense of confidence they get from trial attorneys. What is surprising is how often jurors feel that an attorney is not convinced about his or her own case. One juror said of an attorney: "He appeared totally uninterested. He didn't think he was going to win." Another juror concluded that one of the attorneys in his trial "knew he didn't have a winning case."

The need for courtesy and professionalism notwithstanding, part of exuding confidence in your case is bringing energy, enthusiasm and emotion to the courtroom. One juror liked the fact that an attorney "sometimes lost his temper." He explained, "That tickled me because it was the natural thing to do." Jurors in other cases voiced similar sentiments: "He was a great lawyer - sharp as a tack. He presented himself very professionally, but got irritated when he should have." "Sometimes he got excited and that makes a big difference. You could see what he was trying to get at and could tell what was important. It showed he believed in what he was getting at."

Acknowledge the Jury

It is important to let jurors know they are the most important people in the courtroom. Since jurors will decide the outcome of the case, attorneys should direct the trial presentation to the jury box. Making eye contact with jurors goes a long way to letting jurors know they are the focus of attention. One juror liked the fact that an attorney "connected with the jury. He would smile and laugh with us. He was relaxed and you got a warm feeling from him." By contrast, another lawyer was criticized because "he didn't connect with the jury. He made no eye contact with us." There is a limit, however to how much attention should be paid to jurors. One juror felt an attorney paid too much attention to her. She said, "He watched the jury continuously. It sometimes made us nervous and was kind of weird." Another juror complained that one party's attorneys "made jurors nervous because they would stare at us every time we came out of deliberations."

Summary

Feedback from trial jurors shows that lawyers who comport themselves with professionalism, courtesy and respect make a very positive impression on jurors. If jurors like an advocate on a personal level, they are going to be much more receptive to that lawyer's arguments.