National legal journal Law360 quoted Butler Tobin this week in an article about “The Art of Effective Body Language at Trial.” In the quoted passages, Butler recalled a tractor-trailer accident case that went to trial in 2013 and a wrongful death car collision accident case that went to trial in 2015. (Both trials contained product liability components.)
The full text of the article is below.
The Art Of Effective Body Language At Trial
By Jimmy Hoover
Law360, Washington (September 1, 2015, 8:08 PM ET) — Whether examining a witness, delivering an opening statement or sitting second chair, it is always critical for trial lawyers to use calm, natural and confident body language before judges and juries, experts say.
Despite what Hollywood courtroom dramatizations would lead you to believe, flailing arms, encroaching on the jury box and disrespectful eye-rolls at the counsel table hurt, rather than help, an attorney’s case.
“You don’t want to be rolling your eyes, shaking your head and looking exasperated at the testimony,” said Joseph Y. Ahmad, a partner at Houston-based litigation boutique Ahmad Zavitsanos Anaipakos Alavi & Mensing PC. “If you give the jury the impression this testimony really hurts, they doubly pay attention. … Maintain your posture, maintain your cool and act is if you expected everything that came out.”
Below, courtroom veterans from a range of legal backgrounds weigh in on the best ways to carry yourself in the heat of trial.
Theatrical arm gestures and other attention-drawing movements can create the impression that an attorney is trying to sell something to the jury, rather than simply relaying the truth, said Ahmad, who often argues for the defense in employment-related actions.
Instead, it is best to act natural, yet in a way that does not put a jury to sleep. “The point of the matter,” said Ahmad, “is you don’t want to sound like a robot up there. On the other hand you also don’t want to come off as cartoonish, as a parody of yourself. You have to find that middle ground, and I think that middle ground is what you can pull off naturally.”
Certain habits that stray from normal social behavior can also distract a jury from the arguments an attorney is making, according to Jeb Butler of Butler Tobin LLC, an Atlanta-based personal injury attorney who recently won a $150 million wrongful death verdict against Fiat Chrysler Automobiles. In an interview, Butler recounted a case he witnessed years ago in which an attorney incessantly chewed on the stem of his glasses in front of the courtroom.
“Sitting here today, I don’t remember much about what he said, but I remember the image of him chewing on his glasses,” Butler said. “It had to be distracting to the jury.”
For Boies Schiller & Flexner LLP lawyer Randall Jackson, acting natural also means maintaining eye contact and not speaking while rummaging through files or staring down at a notepad, two common pitfalls for lawyers that he observed over several years as an assistant U.S. attorney for New York’s Southern District.
“In a normal conversation,” Jackson said, “if you were explaining to your wife why you really need to get the deck redone or explaining to your boss why the budget should include money for a particular project … you would never be holding a stack of paper and reading points.”
Lawyers who do that are “really alienating their court audience,” he said. “It would obviously destroy the natural and personal communication that we all, as communicators and listeners, have grown used to over our lifetime. You have to have normal conversational eye contact.”
Pausing to catch a breath and only moving with purpose instills confidence and establishes credibility with juries, according to attorneys on both the civil defense and plaintiffs’ side of the bar.
“You don’t want to be the stereotypical fast-talking, eyes-darting-all-over-the-place lawyer. … It builds credibility when you talk slowly,” Ahmad said.
It can be difficult to tune out the fact that six to nine jurors, the judge, a witness and even opposing counsel are looking at you, he added. “If you combine that with nervousness, it’s very easy to have a bobble-head effect.”
Given the high-pressure nature of litigation, slowing down can take some practice, he said. Ahmad often videotapes his arguments only to find afterward that his delivery came off more rushed and more nervous than he’d originally thought. Taking the time to fix those quirks pays off in the long run, Ahmad said.
“We’re not always aware of the gestures that we make,” he said. “It helps to see them, to watch them, to be aware of them.”
That same rule applies to Butler, who said his “natural inclination” is to pace. Butler spent significant time learning how to “move only with purpose” by practicing arguments at home with a lanyard strapped to his feet to stop himself from pacing.
Use the Space
If a judge will allow it, attorneys recommend taking advantage of open space in a courtroom to draw the jury’s attention.
Moving away from a lectern is another way to act natural at trial, according to Jackson. In everyday conversation with friends or family members, Jackson said, “you wouldn’t want a huge piece of wood in between you as you were attempting to communicate with that person. … It detracts from some of the things you would naturally do.”
When lawyers move away from the podium, “the jury can see that they’re relaxed” and “that they’re a real person,” he said.
According to Ahmad, removing physical barriers helps connect attorneys with jurors in a way that further establishes credibility. That also applies to chalkboards, which often obstruct the jury’s view of an attorney during presentations, he said. “You don’t have a lot of credibility when your face is partially or fully hidden.”
Michael Attanasio, partner-in-charge of Cooley LLP’s San Diego office, said he uses space and movement during witness examinations, where in order to emphasize an answer from someone on the stand, he silently walks over to an easel to write down a piece of information for the jury.
“That simple movement really focuses the jury’s attention,” said Attanasio, who also serves as chair of the firmwide litigation department.
Huffing, puffing and generally acting like a pill while opposing counsel is presenting an argument during trial can have disastrous effects on a case, Attanasio said.
Such behavior is “incredibly ineffective” and “deeply offensive to the jury,” he said, noting that jurors have in the past told him how disrespectful theatrics from opposing counsel have affected the outcome of cases.
Whether outbursts or reactions are specifically intended to show displeasure or simply an involuntary response to something said, Ahmad warns, “Somebody in that courtroom, somebody in the jury is always looking at you.”
Being respectful also applies to interactions with witnesses and, most importantly, the jury. Lawyers who encroach on the personal space of witnesses during direct and cross-examinations or hover too close to the jury box can be seen as bullies.
“I think when you invade somebody’s space, when you get right up to the bar between you and the jury, you can make the jury uncomfortable,” Ahmad said.
Similarly, Attanasio said breathing down someone’s neck in the courtroom is often a “real turnoff for the jury.”
“Just like in life,” he added, “being a good listener, respecting personal space … all of those things apply more strongly in a courtroom.”