What is the first image that people conjure up when they think of a lawyer? Chances are they will think about the characters, depending on the generation, in Suits, Better Call Saul, Law & Order, or L.A. Law. With these portrayals of lawyers, it’s easy to see that we have an image problem, one that is simultaneously positive and negative. On the one hand, lawyers may be revered for their presumed oratory skills and cleverness while, on the other, they are reviled as slick spin doctors prescribing misdirection.
Lawyers working in courtrooms must be aware of the perceptions that juries or even judges (yes, they are human too) have about them. What we see on TV or in the movies also colors what lawyers assume others think about how lawyers typically act. But there is no universal truth, and no one style fits all. Drama, showmanship, and even matter-of-fact deadpan each have their time and place. It all depends on the situation, the audience, and, most importantly, you. Any attempt to be something you are not will be painfully obvious. As clichéd as it may sound, you must be yourself. Lawyers can demonstrate courtroom skills in many ways and each of us can be effective using our own persona. With that in mind, consider the following in choosing a style to facilitate your courtroom goals.
Be situationally aware.
Imagine that you gave a speech making fun of someone at his roast. Now imagine using that same speech, word for word, to eulogize the same person at his funeral. While it’s possible that it could be well received, you would be taking a huge risk. Before deciding on a style, you must consider the situation in which it will be used. A hearing is not the same situation as a trial, and a direct examination of your client is not the same situation as a cross-examination of a belligerent opposing party. While you may keep the theatrics to a minimum when addressing only the judge at a hearing, when you are addressing a jury, the situation calls for some more deliberate planning on your part. You never want to be the villain in the courtroom, and your style must be compatible with the behavior of the witness or opposing counsel. As a rule, the strength or forcefulness of your style should not be greater than what these others are doing. You can be tough if your witness is misbehaving but must be nice otherwise.
Help the witness help you.
A direct examination should generally be friendly, warm, and helpful. After all, you want to encourage the witness to talk, be open, and give concessions. But even on cross-examination, it is possible to get what you want while remaining friendly. Doing so shows the jurors cooperation, letting them form positive opinions of you. Ask the witness if he or she is comfortable. Offer water or, if the testimony is emotional, tissues. Add your own (brief) commentary about something the witness said. For example, if the witness testifies about having gone to the doctor, you might quickly comment on how long you had to sit in the waiting room on your last checkup and follow up with a question whether the witness had to endure a similar delay. It builds rapport, and even if it might not be relevant in the case, you might take the chance that the judge will not sustain an objection on something so minor. If the objection is overruled, it makes your opposing counsel look like she interrupted a nice conversation. Even if it is sustained, you can easily get past it by a shrug and a simple, “I’ll move on.” You still look like you’re having a friendly discussion, interrupted only by the technical requirements of the rules of evidence.
Humor makes unpleasant tasks less so.
With complex facts, it always helps to break down the testimony into small, bite-sized pieces for the jury to understand. Complexity also breeds boredom. While you can help the jury’s comprehension by simplifying the testimony, humor is a great antidote for boring testimony and may also effectively show how likable you are. The humor must be natural, however, and the risk of a joke falling flat is great. If that happens, your recovery will depend on your poise and your ability to make fun of yourself. One of the easiest ways to make yourself the butt of a joke is to comment on your inability to make the courtroom technology work properly. Everyone understands this problem and, although it’s not actually funny, welcomes the moment of levity.
Even exhibits can be used as props for some humor. It might be making fun of an awkward PowerPoint presentation, smirking at a communication with colorful language, or the threat of having to listen to endless testimony about documents. I had an expert witness who had to go through a stack of reports, each with similar points about a disputed, but mundane, issue on which he had to opine. I knew it was tedious and could sense the jury’s dread as they looked at the height of the tower of paper and the slow rate at which each thin layer was removed from the top during questioning. It even appeared that the court may cut me off if the testimony took too long. After several similar examples, I thought the point had been made and decided to end the line of questioning on the subject. But before doing so, I said to the witness as I took back the last exhibit, “Thank you, sir. I only have 200 left to go.” The jury gasped. The judge looked up at me incredulously. But everyone realized it was a joke and laughed—not from amusement, but from a sense of utter relief.
Don’t count on a mob mentality.
What if you believe the jury or judge should be angry at the other side? While it’s easy for lawyers to get upset because they have been living and breathing the case, that emotional reaction is not something you can assume you’re going to be able to provoke in an uninterested third party. I had a motion where I thought my opposing counsel did something unethical. When I wrote the motion, I was angry, and my writing reflected my bitterness. But when I got to the hearing, I knew that the judge was not an angry person and not someone who easily saw the bad side of people. I had to be measured in my attack and adjust my tone. Instead of charging into the courtroom with an attitude of, “Can you believe what this guy did?” I thought it would be a better approach to convey that, “I am so sorry for having to bring this to the court’s attention and to darken your day,” and to emphasize that it was a rare, if not unique, circumstance that led us to seek relief. Even if you know your judge to be a hothead, it may be wise to let the court come to the conclusion you seek on his or her own without your prodding. If the facts show less-than-optimal conduct by your opposing party, you may be better off presenting the evidence factually and getting out of the way. Otherwise, you may risk snatching defeat from the jaws of victory.
Sometimes, it really is just the facts (ma’am).
Not everything needs a specific style, be it theatrics, drama, or humor. It may be appropriate to have a very factual, no-nonsense questioning style that does not seem to be affected by the witness. A factual style is clear-cut and encourages straight answers by the witness. Maybe the testimony is so straightforward that any fanfare would appear manufactured. Or the emotional context of the facts would make it inappropriate to do anything other than let the facts speak for themselves. Paradoxically, perhaps the best use of this approach is with a difficult witness. An effective counterbalance to a belligerent, angry witness is a calm, unemotional, yet unrelenting style. The witness’s agitation will contrast with your methodical coolness. It will show that you are in control, impervious to the witness’s bait. Jurors will appreciate your focused approach that avoids wasting their time.
Aggressive and confrontational: It’s what they expect anyway.
Okay, so you didn’t get all the way to trial just to be nice and factual. You’re eager to demonstrate your skills as a lawyer who can dismantle a lying witness and do your best impression of Tom Cruise, yelling, “I want the truth!” While an aggressive and confrontational style often forces concessions from the witness, how aggressive can you be without turning off the jurors? Has the witness shown themselves to be untruthful enough to deserve this treatment from you? One little fib may not warrant a blitzkrieg of punishing impeachment. Just a slap on the wrist should do. Even if the witness is an adept purveyor of falsehoods, you may look like the villain if your aggression seems disproportionate to the witness’s demeanor. In other words, if the witness is a pleasant liar, you can’t be a nasty cross-examiner. Watch the jury’s reaction to the witness during direct examination. Are they crossing their arms or rolling their eyes? That may be a good sign that they are ready for you to be tough. On cross, keep your powder dry until the witness shows by an arrogant or contemptuous attitude that, indeed, your aggression is well-deserved. Then please feel free, within the bounds of courtroom decorum, to demonstrate the full power of your battle station (apologies for the mixed movie references).
These are just suggestions for some different styles that may work in various situations, not a how-to guide on implementing a given style. That is because your style, whether it is being humorous or aggressive, is a product of your own persona. No two people will tell a story in the same way, or be funny using the same jokes, and everyone will have a different approach to being appropriately aggressive. Just remember that styles may or not may fit a given situation. Whichever style you use, you should know the reasons for using it and, most important, be yourself while you do. Once you become comfortable being yourself, you will be as revered as any great lawyer portrayed on the big screen.
About the Author
Jay Kim is the managing partner at Kim Vaughan Lerner LLP, a commercial litigation and employment litigation law firm in Fort Lauderdale, Florida, and is a member of the board of governors of The Florida Bar. Contact him on Twitter @JayKimPA.