Connecting in the Courtroom
We must make connections to be successful. We must connect with the judge and the jury when presenting our case. Without connection, trial is at best an academic exercise only good for curing insomnia. The decisionmaker will ultimately remember the message we convey, not the way we dress or the impressive words we use. To effectively persuade, the trial lawyer and the witnesses must connect with the decisionmaker.
Connecting means being genuine. Trial is a social experience, albeit one with fixed rules and customs. When we are less than honest, the judge and the jury see right through us. Effective connection means being honest in that setting, especially when we are expected not to be honest. Gerry Spence says the first lie we tell the jury is that we want them to be fair, when what we really want is for them to be fair to us, or even unfairly decide in our favor. By recognizing those expected lies and discarding them, we can connect in a genuine way.
Connecting also means focusing more on the “why” our client did what they did rather than only the “what” they actually did. Sometimes humans perform bad acts for justified reasons. For example, the client admits to killing another person then explains that it was in self defense. In this case, the “why” your client did what they did explains the “what” of their behavior. This is often the case and something we should consider in case analysis.
There are five basic stories in the human experience. The concepts of love, fear, anger, fairness and sadness have meaning for all of us. Everyone has experienced life events that give special meaning to those concepts. Everyone can relate to these feelings. They are the emotional component of the case. These emotional components can engage the decisionmaker and motivate a decision in favor of your client.
When a client has been treated unfairly, the emotional connection will give the decisionmaker the motivation to right the wrong. When the client explains what happened and why they did what they did, it connects the client with the decisionmaker. Once the connection is established, the natural human tendency is to identify and help the person that has been wronged.
Connection leads to understanding. Humans receive information and automatically begin trying to understand the story. Without a connection, the facts are just analyzed without any emotional component of the ultimate decision. As lawyers, we have been trained to strip all feeling and emotion out and just focus on the facts and law. This unnecessary mistake can cause our clients to lose their case.
On cross examination, the trial lawyer must connect with the judge and with the jury. The witnesses are there to simply confirm the facts presented by the trial lawyer. The trial lawyer should use leading questions establishing one fact at a time. Connection is established and affirmed as the trial lawyer sets forth facts that the witness confirms. The decisionmaker connects with the trial lawyer and identifies her as the credible teacher of the facts. The facts are the focus. The lawyer should position herself in the courtroom so that the focus is on the lawyer rather than on the witness. Finally, as much as possible, the trial lawyer should focus on teaching facts positive to her client’s case rather than tearing down the opposing party. Humans connect with constructive, or positive facts much more than through deconstructive, or negative attacks.
Direct examination is the time for the trial lawyer to facilitate the connection between the witness and the fact finder. The trial lawyer should stand as far out of the way as possible. This is the time for our witnesses to explain the “What” and more importantly, the “Why”. Allow the witness to tell why they did what they did. Open-ended questions should be utilized to facilitate the connection between the witness and the decisionmaker. In preparing our witness to testify, we must explain the importance of making eye contact with the decisionmaker. The witness should receive the question from the trial lawyer then turn and make eye contact with the jury and and give her answer. Eye contact is powerful way to firmly establish connection with the decisionmaker. It is hard to ignore a person that looks you in the eye when she speaks. Establishing connection is the key to success in the courtroom.
Please join us at the monthly TCBA Litigation meetings. This section was established by trial lawyers for trial lrawyers. Trial lawyers from all practice areas are welcome. Our goal is to improve as advocates in the courtroom. Meeting dates and speakers/topics for the upcoming year will be published soon. We hope you will join us and we look forward to meeting you soon.
Aaron D. Bundy
M. Shane Henry
Fry & Elder
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