Attorneys spend the majority of their
time concentrating on what to say to the judge and jurors rather
than how to say it. Yet we know from research that the way you say
something is crucial to your persuasiveness. Unless the body language
looks right and the voice sounds right, people will not listen to
Marshal McLuhan wrote some years ago
that the medium is the message. From that point of view, your body
language and voice is the medium of your message. When you interact
in the courtroom, you are on television. If the picture is boring,
or the sound muffled, no one will listen to you, no matter how brilliant
you might be. They will turn to another channel, which could very
well be opposing counsel.
How can you make sure that you are using
your nonverbal language to effectively communicate your verbal message?
What is the key to a winning presentation style?
This article will outline six nonverbal
attitudes which will help establish your leadership in the courtroom.
They communicate trustworthiness and confidence to your jurors.
When you adopt them, you will open the jurors to your persuasion.
an Open Posture to Jurors
The first step in winning your case is to establish
the trust and confidence of your jurors. This can be done nonverbally
- without ever saying a word - by showing a physically open posture
to them. Your physical openness reflects a psychological openness,
indicating that you are prepared to be honest and above-board with
your jurors and you, in turn, expect them to reciprocate by giving
you a fair hearing.
When you want to project an open, honest, cooperative
posture, adopt the following attitudes and gestures:
Keep your abdomen exposed
We have a natural tendency to protect our soft,
vulnerable organs - located in the abdomen when we are in
a stressful situation. We put all sorts of things in front of our
stomachs - arms, pin-striped vests, suit coats, legal pads, desks,
lecterns, tables, books, papers. But putting these obstructions
between our audience and us - in this case, the jurors, closes us
off to them, creating a psychological distance.
When you do not cover-up your torso, you will
feel exposed and vulnerable. For that reason, you see few attorneys
in the courtroom who approach their jurors "unprotected." But an
open abdomen is a courageous posture, reflecting self-confidence,
fearlessness and an open, receptive mind. So be daring. You will
find that as you open yourself physically, you will begin to feel
more open psychologically, and actually become that fearless person.
Avoid addressing the jurors from behind any
physical obstruction. Get rid of the podium. Move from behind counsel's
table. Keep your arms away from your chest; unbutton your jacket;
do not wear a vest; avoid any kind of self-touching, even holding
a pen in your hand. Put your pad of paper down. The imperative is
to strip away the physical barriers between you and your audience.
When you open yourself physically to your jurors,
you open yourself psychologically. And they, in turn, will open
to you psychologically and to your persuasion.
Show your hand
A second part of the body
we tend to hide when we feel vulnerable is our hands. Many people
approach life like a poker game: cautious, leery and holding their
hands close to their chest, so no one can see what's up their sleeve.
Although this attitude is sometimes appropriate, in the courtroom
it is not.
So keep your hands visible.
Don't hide them under the table, in your pockets, inside your vest
or behind your back. Be ready to show that you come before the jurors
with an open hand, ready to tell the truth. So show them an open
The open palm is an especially
appropriate way to express your honesty and trustworthiness. We
show our palm as a friendly gesture when we greet people, shake
hands, and ask for understanding.
Don't hesitate to use it as a expression of your good will, and
when asking for the jurors' good will in return.
Address the judge,
jurors, opposing counsel face to face
A third visual sign of cooperativeness is body
orientation. When we feel uncomfortable, we tend to pull away, turning
our body slightly sideways, offering only a partial view of ourselves.
We do this unconsciously, but we are communicating a strong message,
i.e., 'I don't want to face you.' We turn away from people usually
out of aversion or timidity. We can "turn a cold shoulder"
to someone we don't like, or we can "hide ourselves" from someone
who intimidates us. Whatever the motivation, body orientation is
significant. Make sure you orient yourself to your audience appropriately.
In the courtroom, meet your audience face to
face. When opposing attorney addresses you, give him/her a clear
frontal orientation. When the judge addresses you, give him/her
a frontal orientation. When you are examining your witnesses, address
them face to face. And when you are speaking to the jurors, give
them a frontal orientation. These subtle, unconscious messages can
make a significant difference in the courtroom; they are your tools
for establishing rapport and winning your audience.
Show a relaxed demeanor
The fourth sign of an open posture is lack of
muscle tension. Where do you hold your tension: In the eyebrow?
mouth? shoulders? hands? Holding onto tension takes energy, energy
which should be going to your jurors. When you are holding onto
yourself, you cannot be open to them.
Try to meet the jurors showing a relaxed demeanor.
According to research, power is perceived as expansive, casual and
relaxed. A great deal of President Clinton's victory can be attributed
to the way he successfully met the barrage of assaults hurled against
him. He never seemed to falter. He met each attack forcefully, sometimes
even with humor; he never cringed or showed despair. That kind of
nonverbal response communicates power and leadership. We want our
leaders to be in control; we don't want to see them worried. If
they are worried, then we wonder what will happen to us.
So whether you agree with his politics or not,
President Clinton, like his predecessor Ronald Reagan, is a good
role model for the winning demeanor: Calm, relaxed, open, expansive
and in charge. When you are in the courtroom, therefore, fearing
the worse, do not let opposing counsel or the judge or jurors sense
your anxiety. Take a deep breath and relax. Release the tension
from your brow, jaw, mouth, shoulders. A relaxed demeanor, coupled
with an open body, spells leadership. Opposing counsel will be dismayed
by your confidence; the judge will be impressed by your calmness;
and the jurors will translate your demeanor of "relaxed excellence"
as being self-confident and thoroughly prepared.
in Visual Control
"Looking" is not just a matter of eye contact;
it is a political behavior, and your success in the courtroom depends
on knowing the rules of the game.
Maintain steady eye contact
Eye contract keeps you in control of your interactions,
so maintain it. When you look down to refer to your notes, for instance
you break the contact with your audience, and for those few seconds,
lose control of the interaction. Everyone is looking at you, but
you can't see them. You put yourself in a "victim" posture because
you have no idea what they might be doing falling asleep, pulling
a gun anything seems possible these days. So avoid this situation
whenever possible, and when unavoidable, keep the breaks short.
This imperative does not mean to suggest that
you should stare at the person with whom you are having an interaction.
Maintaining steady eye contact means staying in visual control;
it does not mean using your eyes as an assault weapon.
Giving eye contact not only keeps you in control,
but is a nice gesture. By giving visual attention you are "touching"
your audience and saying: "I think you are important." Consequently,
touching the jurors with your eyes is your most powerful communication
tool in the courtroom.
When you approach the jury box, do not skim
over the jurors' faces; do not address the air over their heads.
Look into the eyes of each juror, one at a time, for 4 seconds at
a time. Research tells us that a 4 second eye contact establishes
a connection between you and your listener. Throughout the trial,
therefore, address each juror individually with your eyes, make
the connection. Giving this kind of visual attention puts you in
"touch" with each juror. It converts a preachy style into an interpersonal
one; changes a monologue into a conversation.
Giving 4 second eye contacts
is difficult because it demands that you know exactly what you want
to say; otherwise, your eyes will shoot up into the sky looking
for the right words. For this reason, the gesture is so powerful.
When you can give that kind of visual attention to your jurors,
it means you are 100% concentrated on them. As you touch
each one, you are saying: "You are the most important person in
Win jurors, not arguments
When a hostile witness is answering a question
and you do not believe a word he/she is saying, do not snicker and
look away. Some attorneys use that technique in cross-examination
to try to un-nerve and discredit witnesses in front of the jurors.
But be careful not to discredit yourself in the process. You can
easily be perceived as arrogant, pushy and bullying.
The safest demeanor is the assertive, rather
than aggressive, one. Listen. Give the witness your visual attention.
After the jurors perceive that you are polite and ready to listen,
then you can attack the witness' answer. After you have established
yourself as a fair and receptive person, the jurors will be fair
and receptive to you. When your witnesses give their testimony,
look at them; pay visual attention.
When jurors talk to you during voir dire, look
at them; pay visual attention. And when you are through with one
juror's voir dire and are ready to go to the next, say "thank you"
before moving on.
The idea in the courtroom is not to win arguments,
but audiences. Your powers of persuasion do not come from winning
people to your point of view, but from winning their faith in your
leadership. The war in the courtroom is to win the leadership position,
so that the jurors will follow your persuasion, rather than your
Rehearse the rough spots
We often lose eye contact when we don't know
how to respond to a question or answer a verbal attack, dropping
our eyes just long enough to think of an appropriate comment. In
that split second, when we lose visual control of the interaction,
we can well lose our credibility. A good opposing counsel will pick
up on the hesitation and nail us to the wall with it. An observant
judge will see our weakness and overrule the objection.
avoid losing control, go over the weak parts of your case and rehearse
your arguments. Be so familiar with your responses that when challenged,
you will be able to deliver them without faltering, i.e., without
losing eye contact. Do not allow your opponents to guess your weaknesses
and vulnerabilities. Answer their assaults head-on, without flinching.
Maintaining eye contact under assault makes
you look invulnerable. Jurors often do not understand the verbal
power ploys that take place between the judge, opposing counsel
and you - around objections, for instance - but they do register
the nonverbal messages that are taking place. And anyone who meets
a verbal assault without "batting an eye" communicates power and
authority. So when the judge overrules your objection, acknowledge
him/her visually, say thank you, and smile confidently. How you
respond to the objection is the message, not the objection itself.
Avoid eye contact with friendly witnesses who
Some of your witnesses might be shy, and no
matter how much you coach them, they can't take their eyes off the
floor. If this is the case, help them maintain their credibility.
Avoid direct eye contact with them.
If you look at them while their eyes are down,
they become the victim in the interaction and you become the aggressor.
By looking away, slightly to the side, you give your witnesses space
and take the pressure off of them and yourself. By reflecting their
nonverbal postures, that is, by not looking at them while they are
not looking at you, you show that you are listening and attentive
to their feelings. The jurors see how polite you are, which gives
you extra points, and your witnesses' credibility is maintained.
Maintain eye contact with hostile witnesses
who are submissive
Suppose the submissive witness is not your witness,
but your opponents'. How should you monitor your body language in
that situation? One way to respond, if you want to discredit this
witness, is to continue looking at him. Put him in the victim posture
of being watched, of being out of visual control. Your looking at
him, when he is looking down, puts you in the power position.
But be careful. Do not turn your glances into stares.
Do not talk loudly or fast or otherwise intrude into his space.
If you are perceived as too aggressive, the jurors might turn the
witness into the underdog and you into the persecutor.
|Maintain a Balanced Stance
The further away from the face you go, the more
the body leaks its true feelings. We can control facial expressions
and fool people with fake smiles, for instance. We are not so aware
of our hands, however, and will often reveal a nervousness by unconsciously
fidgeting with our fingers.
But rarely are we aware of our feet and what
they are doing. So when you want to know what is going on in someone's
head, look at his feet. They are so far removed from the brain physically,
that we easily forget them. Meanwhile, they are "spilling the beans,"
if only we knew how to decipher the message.
Keep your feet steady and weight balanced
Very often, the feet express the nervous tension
that is not getting out through the mouth and hands. Foot tapping,
leg swinging and toe thumping are common ways nervous energy comes
out in the feet.
Other ways the feet leak: When you are not
ready to move, one foot will stay up in the air; when you don't
know what direction to move in, one foot will point one way and
the other will point the other way; when your head is going around
in circles, your foot will make circular patterns in the air; when
you are mulling things back and forth in your mind, your weight
will shift from one foot to the other.
When presenting in the courtroom, therefore,
plant your feet firmly on the floor; you will feel more grounded.
Point them in one direction; you will feel more directed. Keep them
still; you will still your mind. Keep the weight evenly distributed
on both feet; you will feel more steady on your feet. Indeed, when
the weight is not evenly distributed you are out of physical balance,
"an easy push-over" for someone on the attack.
Avoid shifting your weight from one leg to the
other. Shifting makes you look shifty. Be aware that your feet will
shift from side to side when you do not feel on solid ground intellectually.
The key is to maintain a steady stance and keep in balance.
|Control Your Leanings
The way you physically lean, forward or backward,
indicates what you are thinking, or in other words, your "leanings."Learn
to control your leanings to be more effective in the courtroom.
Lean forward when presenting
When addressing the judge and jurors, successful
attorneys reach out physically by leaning forward, talking at a
steady, sure pace and using gestures to communicate their message
more emphatically. These gestures communicate that they are engaged
in the interaction, ready for action, sure of their direction and
thoroughly prepared. When presenting in the courtroom, therefore,
project your energy outward to your audience. Lean into the interaction.
You can't be dynamic when you are leaning away from your audience.
Keep out of retreat
Attorneys who lean away from the jurors, sit
back in their chairs, hold their hands behind their back, hold their
voice back by speaking slowly, softly and ponderously, imprison
the body's energy and keep it from reaching the jurors. These physical
postures of retreat represent a psychological retreat, communicating
reserve, skepticism and passivity. Jurors might even interpret them
as aloofness and arrogance.
Leaning back is appropriate when in a listening
mode, because you are not ready for action. But when you are trying
to get the jurors to move in your direction, lean towards them,
in their direction. The ideal picture is when you and the jurors
are leaning into each other. That configuration means you are in
psychological synch with each other, a sure sign of your persuasive
Negotiate in neutral
An upright posture, where the energy does not
move one way or the other, is a neutral position. The head sits
straight, the body sits straight and the hands rest at the side.
The overall attitude is detached and uninvolved.
Neutrality is a powerful posture in the courtroom
but difficult to maintain for anyone who has "leanings" one way
or the other. The body will want to express its feelings, and to
restrain that natural reaction demands a concentrated effort.
For example, judges try to stay objective and
neutral, but even they give away their biases by the direction they
lean in. Your own posture shifts are dead give-aways. When you want
to communicate neutrality, concentrate on maintaining a neutral
posture, even when your feelings are clearly biased. Keeping cool
is staying in neutral gear.
In summary, lean slightly forward when presenting
and trying to engage your audience and persuade them to move with
you; stay in neutral when negotiating or trying to communicate a
noncommittal position; and stay back when you want to express your
hesitation, skepticism, lack of involvement or whatever emotion
you are feeling which makes you unwilling to move forward.
Watch the judge's leanings
When the judge leans toward you, she is trying
to get closer to you and the interaction. She might be getting closer
to the interaction in order to "attack" you - i.e., make an objection,
rule against you, send you back to the library. Or, she might be
moving closer to you because she is interested in what you are saying
and wants to become more involved in the interaction. So leaning
forward indicates a surge of involvement in the interaction, which
can be either negative or positive.
On the other hand, when the judge leans away,
she is retreating from you. Perhaps she wants to mull over some
facts you have just offered and needs some "space" for thinking.
As the attorney, you will hope that after hearing you out, she will
move back into the interaction, shifting direction toward you. This
would indicate her resumed involvement in what you are saying.
If she does not re-enter the interaction, but
continues to stay back, away from you, you have probably lost her
with that particular argument. So shift gears. Try another argument,
until you find one which "moves" her back into the interaction.
If you watch the judge carefully, you can discover which arguments
motivate her to move toward you and which send her into retreat.
In this way, you can discover the "leanings" of your judge and adjust
your strategy accordingly.
|Take Up Your Personal Space
An important ingredient of a winning professional
style is to project self-confidence. Self-confidence is communicated
by the way you use your personal space. The more space you take
for yourself, the more important people perceive you to be. The
more important people perceive you to be, the more space they give
Expand your gestures
The first imperative in expanding your personal
space is to broaden your gestures. Avoid holding your arms close
to your torso when you gesture. Get them away from the body; spread
your wings. By freeing your arms from your side, you can begin to
reach out and take up the space around you.
Other ways to take up your personal space are
to stay out of symmetrical postures where both sides of the body
are identically positioned. Symmetrical postures keep your space
limited. Fill up your chair, for example, by sitting in asymmetrical
postures, one hand on the chair arm, the other on the chair back;
one leg extended, the other back.
Keep a substantial amount of imagined space
around yourself; don't let opposing counsel "walk all over you"
by approaching you too closely, for example, or "push you aside"
by cutting in front of you.
To practice expanding your personal space, stand
in the middle of an empty elevator and own the whole space; make
the imaginary boundary around you as big as you can. As people step
into the elevator, watch how close they stand to you. The amount
of space they give you will tell you how important they perceive
you to be. See how you can adjust your nonverbal postures to get
them to give you more space. But careful, now - no fair pushing!
Claim your territory
The second imperative in projecting an image of self-confidence
is to claim the territory around you. Take up the whole courtroom
by physically moving around in it. Don't get stuck in a corner.
Spread your visuals out. When you are through with a poster board,
put it aside, but do not turn it around. Keep it facing the jurors,
until opposing counsel turns it around. Don't let opposing counsel
close a part of the courtroom off to you. Mark your territory and
guard it. The courtroom is the battlefield. The more territory you
can claim, the more importance and power the jurors will give you.
stepping into other people's territory
On the other hand, be careful about taking up
too much space and intruding onto others. Getting too close, pointing,
talking loudly, staring are nonverbal weapons used to violate a
person's personal space. When you interrupt an opponent's witness
on the stand, you are aggressively walking into his territory. This
behavior is perceived by jurors to be unintelligent, unfair and
not allowing the witness to present the evidence.
In some situations, when your opponent is being
unreasonably aggressive, you might choose aggressive tactics in
return. They can be executed as subtly or overtly as you deem appropriate.
But be careful. If the jurors perceive that you are bullying your
opponent, they could turn on you. Depending on the situation, taking
up too much space in an aggressive way can undermine your authority
as much as taking up too little space.
|Reach Your Audience Through Gestures
We have three channels of communication to our audience:
Our eyes, mouth and hands. Using our hands not only enhances our
style and projects a more attractive presence, but increases persuasiveness.
We know from research that people who gesture more are more persuasive.
Use illustrators to punctuate your point
So use your hands. Some attorneys literally
"tie their hands up" in closed postures because they want their
words to be the most important message and are afraid hand movements
might detract from the substance of the message.
But words communicate information. Gestures
communicate feelings. Words without gestures are cold abstractions.
They are also boring to listen to. When you do not involve your
body and your hands in the verbal message, jurors perceive you as
detached, uncomfortable and uninvolved. So use gestures to demonstrate
your involvement with your subject matter and your audience.
One way to create interesting gestures is to
use your hands as illustrators to visually describe your words.
A "V" for victory is an illustrator. Holding up your forefinger
to illustrate "number one" is another example. Making a circle with
your third finger and your thumb to mean "zero," is yet another
example. Punctuate your presentations with these visual descriptions.
Research tells us that power is communicated by strong illustrators,
coupled with a low voice.
Use gestures to anchor your message
People remember gestures better than words.
A good technique, therefore, is to use gestures to anchor verbal
messages. For example, if you want to emphasize how fast the defendant
was driving when he hit plaintiff's car, you might choose to anchor
that message by slamming your fist in the palm of your hand, then
saying clearly, "Seventy miles an hour. He was driving 70 miles
an hour." Repeat the gesture a second time, and anchor it again
with the words: "70 miles per hour."
By the third time you repeat the gesture, you
don't have to say the words. The words have been anchored in the
gesture. The jurors will automatically think: "70 miles per hour"
and know that you are talking about the speed of the impact in the
Using gestures to anchor important points in
your case can play a vital part in dramatizing your testimony and
making it more visually interesting.
Avoid self-touching gestures
Your hands are an invisible connection to the
jurors. Reach out with them. Keeping them to yourself cuts you off
from the people you need to reach. Self-touching gestures like stroking
your chin and face, holding your hands, folding your arms, touching
your tie or hair, scratching your head, drumming your fingers, buttoning
and unbuttoning your vest or jacket keep the energy internalized
and imprisoned. The persuasive communicator projects the energy
Communication is touching others, and your hands
like your eyes are vitally important in making the connection. So
no matter how comfortable you feel shoving your hand in a pocket,
clinging to a pad of paper, clasping a pen, grabbing the edge of
the lectern, touching the table, or embracing yourself, make the
extra effort to let go and reach out to your jurors instead.
In summary, I have discussed six imperatives
of a winning presentation style and ways to incorporate these nonverbal
attitudes into your courtroom presentations. Of equal significance
is how to counsel your witnesses to incorporate these attitudes
into their courtroom testimony. Their challenge is to communicate
credibility and trustworthiness to the jurors, also, but under different
In summary, therefore, the six ingredients
of a winning presentation style are:
1. Be open to your audience
2. Keep in visual control
3. Maintain a balanced stance
4. Control your leanings
5. Take up your personal space
6. Reach your audience through gestures
These nonverbal behaviors are designed
to win the trust and confidence of the jurors by presenting a style
of authority, openness, control, balance and power. Your nonverbal
messages are the means by which you establish leadership in the
courtroom and win successful outcomes. They are crucial to getting
your verbal messages across. So when you are in the courtroom, make
sure you use your nonverbal language persuasively, to project the
style you choose, not merely the one you fall into.
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