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  General Practice, Solo & Small Firm DivisionMagazine

 
VOLUME 19, NUMBER 2 MARCH 2002

TRIAL PRACTICE

Improving Courtroom Performance

By Leonard Matheo and Lisa L. DeCaro

This article answers common questions about courtroom performance and offers practice techniques that will improve your skills.
1. How can I get more information in a shorter amount of time and still establish a relationship with each prospective juror during voir dire? Using active listening will elicit more detailed answers than any other questioning technique. Waiting and listening for a few seconds after the juror finishes speaking conveys respect for that person and creates a momentary silence that begs to be filled.
In voir dire, how prospective jurors see you treat other jurors impacts how they interact with you. If they perceive that you truly listen to and are striving to understand them, they will desire to communicate with you. On the other hand, if they watch you ignore or correct answers you don't like, they will edit their answers accordingly. They will not see someone they relate to.
To increase your effectiveness, put down your notes and listen while the juror is speaking. Before you begin speaking, make eye contact with the juror. Pause after each answer to make sure the juror is finished speaking and give her an opportunity to fill the silence. Never move on to another question without acknowledging the previous answer. Never contradict, ignore, or discourage any answer. Stop and think before you explain or contradict a given answer. Do you really need to?
Voir dire is not the place to argue your case. Instead, establish good rapport with the jurors and get to know their real values. This can be done only through discussion.
2. What can I do to make my voice more colorful and interesting? Inflection sends messages to the listener and unconsciously influences how she reacts to what you say. Learning how to use vocal inflection is a top priority. There are three common types of inflection.
o Falling inflection is the sound we associate with a statement that has a period at the end. A question using falling inflection tells jurors you know the answer or you don't care about it and neither should they. This may be a useful choice during cross-examination, where falling inflection can imply suspicion about the answer.
o Rising inflection tells the listener that there is more to come or that you have asked a question and await a response. If a question requires an answer, the inflection must rise. Answers seem more important when the question is given a rising inflection, and the questioner seems warm, friendly, and genuinely interested.
o Sustained inflection gives the impression we are not finished speaking. If you leave the jury hanging with a sustained inflection, if you do not "finish" a statement with a falling inflection, the listener will mentally finish it for you. This can be very effective if you have sufficiently engaged them in your story, because they likely will finish your statement in your favor. Sustained inflection can also help you connect separate events in your listeners' minds. Remember: Sustained inflection links items; falling inflection separates even related events.
3. I've heard conflicting theories on memorizing opening and closing statements. If I've memorized my opening, won't I sound canned? You can be truly spontaneous only when you are not thinking about what to say next. If you don't need to think about what you are going to say, you're free to concentrate on how to say it and how it affects your listener. You can focus on your audience rather than yourself. The key is that you can't "sort of" memorize the material. You have to know it so well that you never have to think about what you are going to say next. The best way to do this is to memorize out loud.
4. How can I convince my witness to answer the question and then stop talking? Just as your silence can elicit more detailed responses in voir dire, it can also elicit longer, unrehearsed responses from witnesses during cross-examination. It encourages "rambling" on the part of the witness.
During preparation, practice this exercise with your key witnesses:
o Ask your witness a question and wait while she responds.
o After she finishes answering, do not take responsibility for filling the silence. Instead, continue to look at her and place the burden of the conversation on her.
o If she falls into your trap and embellishes, stop her, explain the concept, and keep throwing this exercise into your questioning until she recognizes when it occurs.
o Practice answering only the question that was asked.
o When your witness can pass this test consistently, opposing counsel will be unable to "trick" her into a rambling response.
5. How can I keep the jury engaged? Tell your client's story first, so the jury knows what each fact means and how it relates to the story. Remember: During the first few minutes of a trial, the jury is eager to learn what the case is all about. A good story speaks to the average person, uses language that makes sense to the listener, and is free of legal gibberish. A good story moves our emotions and cuts to the heart of the matter.
Utilize structure to tell a compelling story. Unlike a recitation of related facts, a story has a beginning, a middle, and an end. The key in trial advocacy is to lead the jury unequivocally to the end that you desire. If you have succeeded in creating a relationship with the jury, have given them a sense of ownership in the story, and have made them feel they can affect the story, you have empowered them to provide the end to your story. Next, find the theme of your case to provide the jury with a point from which to examine all evidence presented throughout the trial. Write down six short sentences that tell the story, as if these were the only six you had. Describe what happened in an efficient and effective way that engages the jury's emotions. Make sure the last sentence asks for the ending you want. Next, tell your story to someone who is not an attorney. That person may ask questions that will help you discover what is truly important in the story and help you narrow your case to its essentials.
If you lose your place, follow these simple guidelines: Stop talking. Use the silence to reconnect with your story. Don't look down, stutter, or otherwise broadcast the fact that you've lost your place. Remain present, and the audience will never know that you lost your place. Don't let it worry you! Remember, even awkward spontaneity is better than the impression that everything is canned.
6. How can I ensure my body language doesn't contradict my words or diminish my credibility? The gestures you use, the way that you hold yourself, where you place your hands, the expressions on your face-all give your audience a lasting impression of who you are. Lawyers must understand and employ the dynamics of body language. Crossing your arms means you are cutting yourself off from listeners. Hands in your pockets means you're hiding something. Rubbing hands together says you're greedy. In reality, we use these gestures in daily life, and they usually mean little. But, whether or not the theories about gestures are accurate, most potential jurors notice them.
7. Should I use the podium? The podium creates a visual wall between you and the jurors and makes it impossible for you to communicate with them as one of them. However, it is a source of comfort for many attorneys, saving you from the "what do I do with my hands" syndrome and keeping your notes and water in close proximity. It does reduce effective communication. If you must stand at the podium, stand next to it rather than behind it.

Leonard Matheo and Lisa DeCaro are trial consultants with Courtroom Performance, Inc., in Denver, Colorado.

This article is an abridged and edited version of one that originally appeared on page 58 of The Brief, Fall 2001 (31:1).