5 Tips to Enhance Verbal and Non-Verbal Communication

Why do we lard our verbiage with such noise? There are a few basic reasons. First, we are fundamentally fearful. We worry that if we talk like everyone else no one will think us smarter. If we don’t distinguish ourselves we leave ourselves open to the harsh attack of judges and opposing counsel, or the even sharper rebuke of unconvinced jurors. We also desperately want everyone in court to know how smart we are. We can't flash our certificate of Order of the Coif. We can’t show our Super Lawyer credentials. But we can talk like no one else around us. Sometimes we talk like lawyers instead of people because we want to build walls around us. Some trial lawyers like the isolation of being the matador in the ring.

2: Believe Your Case
Plaintiff or defense, you took the case. You accepted the client and pledged your reputation and skills to represent that client zealously. So, before standing before a jury to present this unique set of facts and unique plaintiff or defendant, get in touch once more with what motivated you at the start. That might be the same thing that motivates the jury. At the very least, this exercise will rekindle your passion for the cause, even though you are sleep-deprived from trial preparation and the other cares of the world press in. Impress the jury with your belief, and they, too, will believe.

3: Use David Ball’s Voir Dire Techniques

This is more than one tip. It is a book full of tips. It might be malpractice for a lawyer to try a case without having mastered the techniques set out in Damages 3, by David Ball. Ball’s treatise is smart and insightful. It arms the trial lawyer with techniques to speak to juries in ways that will reach them.

For this tip, however, I’ll make just one of the many points shared in Ball’s book. Ball suggests two questions that, if you use them, will revolutionize your voir dire. (This presumes that you are in a jurisdiction that permits lawyers to do voir dire, unlike federal court where the judge does typically-superficial voir dire.)

 If you raise a topic and get potential juror hands in response, ask one simple question: “Please tell me about that.” This technique let's the potential juror set the tone and substance of the response. It keeps the lawyer’s involvement to a minimum and invites the potential juror to fill the space.

 Follow that pithy question up with: “What else?” The simplicity of this approach is its brilliance. Sometimes, potential jurors answer “Tell me about that” with the politically correct response. But they don’t see the disarming follow up, “What else,” that dives deep into what the potential juror really thinks. Just keep asking “What else,” until the potential juror has nothing more to say.

4: Learn Rules of the Road, by Rick Friedman
Rick Friedman is a fine lawyer from Alaska, who thinks and writes wisely about the work of trial lawyers. Our entire profession owes Friedman a debt of gratitude for sharing his depth of understanding through his books and seminars.

Any Friedman book is helpful. Start with Rules of the Road. It, like Ball’s book, is mandatory for the prepared trial lawyer. The premise of Rules is quite simple. Cases can be reduced to “rules” that the opposing party violated, which caused the harm. If the rule is axiomatic, the opposition must even agree to it. “A driver should operate his car in such a way as to permit her to stop before striking a pedestrian.” This is the kind of rule with which anyone would have difficulty quibbling. It is the kind of rule that can form the cornerstone of a case. Find such rules in your case and you are on the road to convincing the jury of the justice of your cause.

5: Learn the Rodger Dodd/Larry Pozner Cross-Examination Techniques
 In the pantheon of leaders in trial practice education, along with Ball and Friedman, are Roger Dodd and Larry Pozner. Their book, Cross-Examination: Science and Techniques. This massive book provides guidance on organization and delivery of effective cross-examination. The techniques covered in the book save precious hours of trial preparation and the chapter method of cross-examination distillate the important facts into questions that are easy for the jury to understand and difficult for the recalcitrant witness to avoid.

 It would not be possible to do justice to Dodd and Pozner’s 1000-page book in a single paragraph (or even, two). So, we’ll just cover one of the many tips from these sources here. Start with unchangeable facts. Photos, witness statements, depositions, medical records, and a host of other sources of evidence, often contain facts that are bedrock in the case. For example, if a photo taken immediately following a car crash shows 50 feet of skid marks on the roadway leading directly up to the rear tires of Smith’s vehicle, which was involved in the crash, that is an unchangeable fact. As much as any counsel might like that fact to be different, it will not change. It would be foolhardy for counsel to build her case on the premise that Smith never applied his brakes before the crash.

 Building cases around unchangeable facts assures counsel that no matter how mercurial some aspects of trial might be (and they are), some things will stay the same. If counsel’s case remains true to those unchangeable facts, the opposition will have more difficulty shaking the jury from that case. As importantly, if counsel ties her case to unchangeable facts, it will be more difficult for opposing counsel to undermine counsel’s credibility, too.