By Dr. Ken Broda-Bahm –
During a recent trial, a witness was about to leave the stand as a slip of paper with a question emerged from the jury. The note was enough to make the examining counsel’s blood run cold, as the juror asked the witness, “Isn’t [your attorney] signalling you on how to answer by nodding his head to indicate ‘yes,’ or ‘no’? He is! I see him!” Thankfully for us (actually, wonderfully for us), it was opposing counsel that the note referred to. Thankfully for him, the judge didn’t allow the question to be asked in court. Now, chances are that these small gestures from the attorney were simply unconscious “leaks” of his own thoughts on the question, as opposed to intentional attempts to guide the witness. But the incident provides a useful reminder: Jurors see everything. As a collective, the jury is like Argus, the hundred-eyed giant from Greek mythology. They are closely watching witnesses, legal teams, court personnel, and spectators. On or off the stand, not much gets past them.
So the common advice to “watch your nonverbals” as you enter the courtroom is very sound advice. But to take it beyond the truism, the phenomenon of a jury’s offstage attention has actually been studied. This post shares what we know about jurors’ tendency to take in the whole courtroom and not just the witness stand, and shares seven specific pointers on how to adapt your nonverbal communication during a trial.
A group of legal communications scholars (Rose, Diamond, & Baker, 2010) drew upon a unique data set of deliberation videos from fifty actual trials in Arizona State Court, looking at both the amount of time jurors spent talking about offstage behavior, as well as the effect that this focus had on jurors.
The result? Jurors want to focus on the evidence, not on what is going on nonverbally in the rest of the courtroom. Juror statements about offstage behavior of witnesses, spectators, attorneys, or the judge accounted for 1.5 percent of the content of all deliberation comments — not a huge focus, but a persistent one nonetheless. In 80 percent of the cases, at least one juror made comments about offstage behavior, and there were on average about six such comments per trial, generally used to reinforce the opinions that jurors already had expressed. So, while it isn’t a juror obsession, attention to the offstage is important enough that you should account for it.
Experienced litigators and witnesses already know that it doesn’t help to let the mask slip too much in front of the jury. Still, from a communication standpoint, there is a big problem with the standard advice that one hears. The goal is to keep a motionless visage and flat affect, but Lady Gaga notwithstanding, a “poker face” is not the complete answer. The idea that one can simply avoid non-verbal communication flies in the face of how we perceive each other.
The Principle: You Can’t Communicate Nothing
No, that isn’t bad grammar, but a basic tenet of nonverbal communication: it is impossible, nonverbally at least, to communicate no meaning whatsoever. When I was a college professor teaching human communication, there is one exercise I would run for my students, paired in groups of two. One student would have the secret instruction to try to communicate nothing nonverbally. The other student, sitting across from the first, was asked to interpret what student one was communicating. Invariably, student #1’s efforts to not communicate were interpreted by student #2 as being angry, sad, bored, arrogant, or something even more ideosyncratic to the situation. The answer, “nothing,” never happened because, you can’t not communicate.
So for individuals in the courtroom under the watchful eye of the jury, it isn’t a question of omitting nonverbal communication, but rather a matter of avoiding or minimizing anything that might come across poorly to an observer. It is a tough context, and accordingly, there are more “don’ts” than “do’s,” but here are seven commandments for nonverbal behavior in court. And, by the way, since judges will expect as much or more courtroom decorum, these commandments apply to bench conferences and hearings as well as to jury trials.
1. Do: Keep Your Face and Body Interested, Engaged, and Confident. Instead of a flat face, project the image of engagement and interest, as if you are watching a thought-provoking lecture or television program. You aren’t flat, which suggests “bored” and “disconnected,” you are attending carefully. The behaviors you are after include: a forward lean, a relaxed but upright posture, head level to what you are looking at, consistent and steady eye contact (generally on the witness), and hands folded on top of a notepad.
2. Don’t: Do Anything That Could be Read as Intentional. In the Rose, Diamond, & Baker study, the following exchange was observed in deliberations, as jurors discussed one attorney’s behavior at counsel table:
#1: She even looked at me and rolled her eyes saying, “This guy is totally lying…”
#4: She’s sending messages.
#5: It’s all part of the tactics, being a lawyer.
3. Don’t: React to Specific Statements. When jurors hear something perceived as damaging coming from the witness box or the lectern, their heads swing back to you to see your reaction. Don’t give them one. No head shaking, eye-rolling, or downcast expression. Just keep the same interested and engaged face. As the judge informs you that your key witness is excluded, you need to convey the same nonverbal confidence you had before the ruling. The same goes for notes. If you need to scribble something furiously on a notepad in response to what you just heard, wait thirty seconds, then write it, to prevent jurors from drawing an association between the statement and your reaction.
4. Don’t: Allow Inconsistency Between Nonverbal Behavior and Verbal Testimony. Personal injury attorneys well know that a jury will closely scrutinize the plaintiff’s movement and behavior to see if it is consistent with the injury. In the research, jurors talked about the witness behavior of a plaintiff who claimed an injury prevented her from sitting long periods of time.
#7: She sat more than an hour [on the stand], in one position.
#2: I moved six times (laughter).
5. Don’t: Exchange Nonverbal Gestures. Outside the courtroom, we use nonverbals not just to convey how we feel, but also to engage in a dialogue of sorts: A smile is reciprocated, or a knowing look elicits a nod of confirmation, etc. When witnesses are finishing their testimony, in particular, there is a strong temptation for them to give their own attorneys a “how did I do?” look, and to hope that is met with a reassuring “you did great” nonverbal response. Don’t do it. Don’t exchange smiles, winks, nods or any other purposeful expressions with anyone in the courtroom.
6. Don’t: Stare. Naturally, most of your attention most of the time should be on the witness in the box, or on the attorney at the lectern during opening or closing. Sustained, individual, and direct eye contact toward anyone else is a stare, which can be read as a glare. Jurors in particular don’t like to be stared at when they enter the courtroom, or throughout the day. They don’t want to feel that anyone in the courtroom is there to watch their every twitch. Attorneys, consultants, and others should be careful to keep a subtle eye on the nonverbal behavior of jurors, but without too obviously eye-balling them.
7. Don’t: Telegraph Fatigue or Impatience. Anyone who has gone through trial in any role knows that the days are long, tiring, and not often entertaining. Sometimes you will want to yawn, but stifle it. Sometimes you feel like propping your head in your hands, but don’t do it. And sometimes, say after the tenth bench conference in fifteen minutes, you’ll be tempted to give the universal “WTF” gesture (you know, palms up, mouth open, incredulous facial expression). Again, don’t do it. Be visually unflappable, but still engaged and interested.
Of course, it can be overwhelming to maintain all of this if we see it as a “performance” that must be sustained, without a crack, throughout the court day. In the end, as actors will tell you, the best way to appear “polite,” “alert,” and “engaged” is to actually be polite, alert, and engaged. If you are following the proceedings with all the attention you would have if you actually were a member of the jury, and if you are keeping all of the critical “don’ts” in mind, then your offstage behavior should fade, properly, into irrelevance as jurors bring their focus back to where it should be: the evidence.
- Go Ahead and Talk with Your Hands, But Know What You’re Saying
- Remember, Jurors Are Always Forgetting
Rose MR, Diamond SS, & Baker KM (2010). Goffman on the jury: real jurors’ attention to the “offstage” of trials. Law and human behavior, 34(4), 310-23 PMID: 19728058
Photo Credit: AndyRobertsPhotos, Flickr Creative Commons