By Dr. Ken Broda-Bahm:
By this point, most of us have heard of Martin Shkreli, the former CEO of Turing Pharmaceuticals. Social media has dubbed him the "Pharma Bro" after he acquired the drug Daraprim, an antiparasitic often used to treat AIDS victims, and promptly raised the price from $13.50 to $750 per pill. For that, he has become the latest face of corporate greed. And it is literally his face that is a big part of the story. When he testified last week before the House Oversight Committee to answer for that price increase, the media could not focus on the answers because he mostly took the Fifth (due to a pending but unrelated securities fraud charge). So the focus was all on his nonverbal communication: the facial expressions that Shkreli wore while he asserted his rights against self-incrimination. To understate, those nonverbals left viewers with a decidedly negative impression. As Niraj Chokshi wrote in the Washington Post, "The upturned edges of Shkreli’s mouth — sometimes coupled with a “Who, me?” eyebrow arch — hint at a public rage-inducing smugness. Indeed, Shkreli has become a reviled symbol of corporate greed, symbolized by that smug smirk." In fact, I tried but could not find an article that covered the testimony and did not use the words "smirk" and "smug," and a good number of articles added comments on how "punchable" Shkreli's face is. Indeed, it seems like the one thing that has united Congress and the American people in this divisive election year has been a bipartisan disgust of this guy.
To be fair, in the Shkreli case, his expressions might boil down to, "Look, I told you beforehand that I would need to take the Fifth on everything...and you called me to testify anyway." But that is unlikely to offer much face-saving when it comes to Shkreli's face. Just as facial expression matters in testimony, it matters in the courtroom as well. On the stand or in a deposition, any expression that conveys condescension or contempt can be deadly. When you are sitting at counsel table as well, all manner of nonverbal reactions can pose problems. But for this post, I will focus on the one expression that stands out in the popular response to Martin Shkreli: the smirk. I will look at what it is and how it harms credibility, and share a few recommendations for avoiding the smirk in the courtroom.