Speaking to a jury after a verdict, two jurors commented that one of the main differences they noted between me and my adversary was that I had more of a “presence” in the courtroom while my adversary appeared more timid and unsure of himself.
A young associate who was with me at the time of the conversation, said “I guess that comes with experience and age.” But my adversary and I were both admitted to practice in the same year, so it was not just my bald, gray head that made them say that. Like ALL aspects of successful trial advocacy – it can be taught! So here I summarize my points for mastering courtroom presence which can be applied by an young lawyer. (and really to anyone whose needs to communicate successfully).
Before I outline the points, though, why is courtroom presence important? Because it leads to credibility with the jury. And being credible is the single most important facet to successful trial advocacy. By the way, successful trial advocacy does not mean winning every case. No trial lawyer wins every case. “Facts” still are the driving factor in trials. If all the facts are dead set against you, you could have the presence of Bill Clinton and Ronald Reagan combined and it won’t help your client. But having authority and command of the courtroom will help jurors be more receptive and accepting of your arguments. So here goes:
1. Know the case better than your adversary Many times in the course of the trial I discussed above, my opponent made factual errors about the happening of the accident which were corrected either by the judge or myself. If you are consistently able to correct witnesses or advise the court about a particular fact or issue about the case in front of the jury, they will look to you as being the authority on the case. All you need to do to get this aspect down is follow the 5 “P’s” of trial: “Prepare, prepare, prepare, prepare, and then prepare.”
2. Mind your English Speak in plain English. If conducting the direct of a police officer don’t ask “Did the perpetrator then proceed to exit the vehicle?” ask “Did the man get out of the car?” Prepare your witness to speak in conversational English as well. Use, direct short sentences that are easy to follow. Look out for old legal colloquialisms like “Due to the fact that(“because”); “I call your attention to . . .” (“Let me ask you about . . .”); “Of particular importance on this issue…” (“In particular”). . . you get the idea.
3. Dress appropriately I am amazed at what passes for proper courtroom attire these days. Don’t cross over to “peacock” but be well-dressed. I know some lawyers that totally pull off the bow tie, suspenders, straw boater look. I can’t and never will. I’d look like I’m going to a Halloween party. My suit collection is pretty extensive, but its essentially 50 shades of navy blue – a strong but neutral color with some grays and black thrown in for variety. I recognize that young lawyers’ budgets may be tight and they may only have one or two suits. No problem. That’s what ties (for men) and scarves (for women) are for. Make sure you alternate ties/scarves each day that are very noticeably different from each other and most folks won’t notice you are wearing the same suit. Changing your shirt/blouse style (striped or plain), shoes (always shined!) or watch will also help. At every break – every break – pop into the bathroom to make sure you are properly put together.
4. Keep your own track of the evidence Whether its on an iPad or a note pad, have a chart showing all items marked for identification and those submitted into evidence. At some point in every trial, the court will lose track of what has been admitted or marked and you can again rise to the occasion as the “authority” and have your chart handy. But BE ACCURATE.
5. Make eye contact Always look at the jury when you are asking questions of witnesses and of course during opening and summation. It will always help you remember who it is that really matters – the jury! Also, if I may steal a tip from Terry MacCarthy’s masterful seminars on cross-examination: SMILE! Let the jury see you smile when you address them and even when you address certain witnesses.
6. Project your voice Don’t shout – ever – even when arguing with the bench, but don’t speak at a conversational level either. Most courtrooms have horrible acoustics (even when miked) so elevate your voice to be heard clearly each and every time. Also, don’t interrupt your adversary or the court. Your professionalism will be an example and will be appreciated by the court and the jury. Rise every time when objecting or addressing the court.
7. Be helpful of the court process What do I mean by that? Do things that help the trial move smoother. Have copies of exhibits you intend to submit for your adversary. Give them the original and a copy to look at and then have the original marked for identification. Have copies of depositions you intend to use for the court. Know the court schedule in advance to plan (as best you can) to have a smooth and continuous presentation of evidence. Get to court early – always try to be the first person there, jurors walk in through the same doors lawyers do in most courthouses, they are brought up to the courtroom by court officers in a variety of ways so even though no one officially says anything, they end up knowing who is causing delays. Do not let it be you!
8. Remember: You are being watched! The eyes of the jury are upon you!(and your client). Particularly in criminal cases, but in most trials, the jury is always sneaking peeks at you and your client to see your reaction or just to try and get a bead on you. So be consistent in your demeanor, appearance and behavior. Watch your body language.
9. Don’t make promises you can’t keep In jury selection and when addressing the jury, think about the themes of the trial that you are presenting and do not overstate your case. Keep it simple but establish themes early on in voir dire that you can carry through the entire case and deliver on when all is said and done. (This is why you have to write your summation before you pick the jury).
10. Own the courtroom Move comfortably around the well. Think ahead of time of where you want to stand for a particular examination always making sure that you have a clear line of site to the jury. Do not let an adversary block your view of the witness or jury. Have your file organized so that the exhibits you need for a particular witness are ready and handy on your counsel table. If you are going to use an easel, blackboard, smartboard, power point or other device make sure you know precisely how they operate and practice their use. Have all the chalk, erasers, lasers, pointers, extension cords, adapters, batteries, whatever, you will need. Treat the courtroom as yours. Of course you have to ask appropriate permission from the judge, but once granted, know your way around and know what you intend to do and be able to pull it off smoothly.
In conclusion, doing all of the above every time creates comfort and confidence which transfers into courtroom presence. Therefore you evoke confidence. Therefore you evoke credibility. Therefore you evoke “presence.”