Oct 28, 2016 Persuasively engaging the judge and jury necessitates their wanting to engage
The state-level trial judges before whom I appear have a non-stop flow of cases to handle, just as Seinfeld‘s Newman kept receiving more mail to deliver no matter how quickly he delivered the previous day’s mail. Jurors are yanked from their jobs, families, and other obligations to be paid a pittance to render verdicts on monumentally critical criminal and civil matters. If the criminal defense lawyer does not appreciate this state of affairs, it is at his client’s peril.
Lawyers are roundly disliked and ridiculed by a large portion of people, whether because of their corner on the legal services market, perceived high fees, feeling of privilege and entitlement to wealth (by many lawyers), perceived amorality for the cause of fattening their bank accounts, perceived or actual damage they have wrought on opposing parties and society, or any number of other reasons.
Late Knoxville criminal defense lawyer Robert Ritchie was a great example of how to transcend such poor perceptions of lawyers. Bob at once earned a good income and was very generous with his wallet, including routinely paying the dinner tab for those at his restaurant table during National Association of Criminal Defense Lawyers meetings, without even first seeing the bill nor the price of the wine that had been ordered. As wealthy as Bob apparently was, after he passed away in 2006, a colleague related how easily Bob interacted with police at their station one seemingly tense evening when Bob walked in, easily greeted everyone, and helped himself to the coffee that had been sitting in the pot for who knows how long.
And that is why millions relate so well to Bruce Springsteen and Billy Joel, because no matter all the millions of dollars they have accumulated, they are in touch with ordinary people and with what moves and motivates them.
The lawyer who, like Leona Helmsley, carries a fat ego, looks down on “little people”, and thinks they are entitled to privileges and riches will be smelled a mile away by a jury, and get punished for it. A lawyer who eliminates his or her ego, is self-effacing, and puts his or her clients ahead of money — which can earn more income than doing the opposite — and who feels truly comfortable with and respects janitors and baggage handlers on the same level as physicians and professors, will receive the return respect, comfort, and trust of jurors, judges, and everyone else.
A lawyer should think twice before wearing a Rolex watch, Bally shoes, and Gucci neckties — and an equivalent attitude — into the courtroom, unless before a Beverly Hills jury. Judges earn modest incomes compared to what they could earn at large corporate law firms, and a large percentage of jurors — being drawn from the general population — earn modest incomes. The lawyer may feel free to roll up to the courthouse in a snazzy car and to have fine art adorning his or her law firm hallways, but in the courthouse halls and courtroom, it is time to get down to battle, and not to flash feelings of wealth and privilege.
A lawyer with a New York accent can still persuade judges and juries in rural Texas, just as a Texas lawyer who always wears cowboy boots can persuade a Manhattan judge and jury. We all are humans at heart, and the trial lawyer must engage judges and jurors as human to human.
If the judge barks at the lawyer, the possibly involved or resulting tension can be dissipated by the lawyer’s removing his or her ego from the equation, acknowledging or apologizing for any error by the lawyer that contributed to the barking, deftly readjusting, and moving on. If the judicial barking takes place before the jury and is uncalled for, and the lawyer still is gracious about the matter (and of course the lawyer has the option to urge the judge to limit any barking, if at all, to when the jury is not present), the jury will be less likely to hold the barking against the lawyer. When the judge sees that s/he might be alienating the jury by the judge’s barking, the judge might then reduce the barking.
With all of the foregoing items to handle, the trial lawyer must simultaneously fully and persuasively engaging the judge and jury. The judge and some jury members might already have their predilections. If the lawyer is defending someone charged with such a heinous act as rape, murder, or child molestation, the lawyer already might be facing an at-first recalcitrant jury. However, the lawyer can open up the jury’s ears by getting to the most persuasive point early on, and orally laying out the roadmap for how the lawyer plans to address the reasonable doubt of guilt. For the murder case, that might mean outlining a self defense, imperfect self defense (to seek a manslaughter rather than murder conviction) or misidentification defense. For the rape case, that might mean setting the stage for a defense of consent, misidentification, or prevarication, exaggeration or regret by the complainant. For the child molestation defense, that might involve evidence of overly suggestive prodding by the child’s parents or by law enforcement or child protective services that perhaps uncle Eddie touched a part of the child’s body that nobody should touch, unless as might be innocently a part of bathing a child too young to bathe himself or herself.
The judge and jury want the lawyer to have put his or her time into being prepared, so that the lawyer does not waste nor disrespect their time, and helps them make the right decisions with fewer time-wasting nor bumbling distractions. At the same time, the judge and jury appreciate when the lawyer admits his or her humanity by acknowledging that s/he does not have all the answers, is not a know-it-all, but will do his or her best to know what needs to be known. That is part of being real.
The judge and jury do not want to be bored by droning legalese, nor to feel manipulated by condescending nor inane humor. If the trial lawyer has a captivatingly persuasive story to tell and lucid and credible counterattacks to make about seemingly damning evidence, the judge and jury will want to know more, will pay closer attention, and will therefore be closer to ruling in the favor of the lawyer and his or her client.
We all come from the same source. People often tend to forget that. A persuasive lawyer cuts through to the common denominator that motivates people, through engaging them as persuasively as possible to a verdict in the lawyer’s favor.