All too often, trial lawyers focus outward on the witnesses, the trial technology, the evidence, and the other attorney; all of which are very important components of trying a case in front of a jury, but then neglect to understand their own visibility in the trial.
There are four critical times when a lawyer is a “witness”.
1. Jury selection.
2. Opening statement.
3. Cross examination.
4. Closing argument.
The ethical rules clearly have limitations on the lawyer as both advocate and witness, but I am not talking about testifying from the stand, but rather giving testimony by who you are, your actions, your mannerisms, your presentation, by your very presence in the court room.
Think about it. You are in trial, and you are the first person the jury watches after the judge. You are not only going toe to toe with an adversary who would delight in making you look bad, but every step and move you make will not go unnoticed in and out of the court room.
So, what are you a witness to and for what?
- When the jury looks to you, they are expecting someone to be familiar with the facts, the law, and the case; someone to lead them to a just result and not to play them with parlor tricks as seen on television.
- You thank them for their time, and thus are expected to respect their time by screening your witnesses to those who have something to say and add to the case. Only those who will tell the truth. Remember the old rule that you cannot impeach your witnesses because you vouch for them? Well, impeachment may be permitted, but vouching is implicit with every witness you call, every piece of evidence you seek to admit, and every position you take.
- By introducing evidence, you are telling the jury this is important.
- If you should go on the attack on a witness, it is only because that witness is not telling the truth by leaving something out, embellishing the facts, or being less forthright with the jury. Think about it. If you expect the witness to be straight, would you not be surprised the jury will also hold you to an even higher standard? Of course, they will.
Once you start taking a look at the substantive role you have in the jury’s eyes, then you can deal with it forthrightly.
I remember when I was attending the Army Judge Advocate General’s School, one of the clear messages was that there are four times when “testify” to the jury.
- VOIR DIRE (JURY SELECTION).
This term derives its meaning from Anglo Normal usage relating to the juror’s oath to tell the truth or speak that which is true, and not the more recent French word of “voir” referring to see.
I liked Gerry Spence’s explanation that jury selection is an honest exchange between lawyer and the jurors; or as he said it “I’ll show you mine, if you’ll show me yours.” So if voir dire is an exchange of honesty, then the parlor tricks, the cute promises, have no place. If the standard is to select a fair and impartial jury, then why all the moves to disqualify jurors that may be leaning the other way and tipping the others in your direction. The hard fact is every lawyer believes in their cause and want to win. So, if you pursue this approach, then you really are seeking a favorable jury.What you are doing really is talking straight and not advocating, appealing to cheesy emotions, or telling them what to do. As you size them up, they are sizing you up. When I attended a seminary by Gerry Spence, I took to heart is comment that you “honor” them and acknowledge their honesty; and the best way to honor them is to be honest too. More importantly, it’s effective.
- OPENING STATEMENT.
You just had an honest exchange with the jury. Now follow through with the facts and not opinions or advocacy. Tell the story with simple prose and don’t lay it on thick.Think about where they are coming from. Literally off the street cold intro a sterile environment with starched suits and language and a natural distrust for the system and the keepers of that system – the lawyers.
- CROSS EXAMINATION.Yes. Your questions had better be on point. Cross examination is not angry examination, but rather your opportunity to tell your client’s side of the story and you should control the tempo, the timing, and the content by simply doing all the talking and obtaining the witness’s agreement with what you are saying. Stick to facts and watch out for the weasel and their opinions.
- FINAL ARGUMENT.Not everyone believes a closing is where you change the minds of jurors. If you have not made your case for your client, your cause, and your character to lead by now, then do not expect to do the impossible with a few well-selected phrases.
Lay out the evidence, the facts, and answer the hard questions for the jury. Be reliable in your content, concise in your comments, and concrete in your explanations. If you have been straight before, then you will be heard.
The consensus now is to equip the jurors to respond to the speculation and the questions of those who are against your.
With that said, remember you are always being watched. Be careful of who you are with and how you act and speak in the hallways, the stairways, and the elevators; before the trial, during the trial, and after the trial.
Give the jurors a reason to make a difference and that your cause is just.
I remember the old saw was that “you can’t sell what you don’t buy.”
However, that is oh so wrong. You are not selling anything to anyone. Justice is not to be bought or sold. The jury is literally the conscience of the community. Respect them for that position and power they possess. Don’t just believe in being and doing the right thing. But BE IT. Feel it.