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Winning trials nonverbally: six ways to establish control in the courtroom.

Attorneys spend most of their time concentrating on what to say to judges and jurors rather than on how to say it. Yet unless the body language looks right and the voice sounds right, people will not listen to the words.

Marshall McLuhan wrote in 1964 that the medium is the message. When you interact in the courtroom, you are "on television." If the picture is boring or the sound muffled, no one will listen, no matter how brilliant you might be. They will turn to another channel, which could very well be opposing counsel.

How can you make sure that you use nonverbal language to effectively communicate your verbal message to the jury? What is the key to a winning presentation style? This article outlines six nonverbal techniques that will help establish your control in the courtroom by communicating trustworthiness and confidence to jurors. When you adopt these techniques, you will open jurors to your persuasion.

1. Show an open posture.

The first step in winning your case is to win the trust and confidence of the jurors. This can be done by showing a physically open posture to them. Your physical openness reflects a psychological openness, indicating that you are prepared to be honest and above-board and that you expect jurors to reciprocate by giving you a fair hearing.

When you want to project an open, honest, cooperative posture, adopt the following attitudes and gestures.

Get rid of physical barriers between you and the jurors. We have a natural tendency to protect our soft, vulnerable organs - located in the abdomen - when we are in stressful situations. We put our arms, pinstriped vests, suit coats, legal pads, desks, lecterns, tables, books, and papers in front of our stomachs. But this closes us off to our audience - in this case the jurors - and creates a psychological distance.

Standing with abdomen unobstructed is a courageous posture, reflecting self-confidence, fearlessness, and a receptive mind. So be daring. You will find that as you open yourself physically you will begin to feel more open psychologically.

Avoid addressing jurors from behind any physical obstruction. Strip away the physical barriers between you and your audience.

Show your hands. A second part of the body we tend to hide when we feel vulnerable is our hands. Many people approach life as they would a poker game: cautious and leery, keeping their hands close to their chest so no one can see what's up their sleeve. Although this attitude is sometimes appropriate, in the courtroom it is not.

Keep your hands visible. Don't hide them under the table, in your pockets, inside your vest, or behind your back. Be ready to show that you come before the jurors with open hands, that you are ready to tell the truth.

The open palm is an especially appropriate way to express your trustworthiness. We show our palm as a friendly gesture when we greet people, shake hands, and ask for understanding. Don't hesitate to use an open palm as an expression of your goodwill - and when asking for jurors' goodwill in return.

Address the judge, jurors, and opposing counsel face to face. A third visual sign of cooperativeness is body orientation. When we feel uncomfortable, we tend to pull away, turning our body slightly sideways, offering only a partial view of ourselves. We do this unconsciously, but we are communicating a strong message - "I don't want to face you."

We turn away from people usually out of aversion or timidity. We can turn a cold shoulder to someone we don't like, or we can hide ourselves from someone who intimidates us. Whatever the motivation, body orientation is significant. Make sure you orient yourself to your audience appropriately.

In the courtroom, meet your audience face to face. When the opposing attorney or the judge addresses you, face him or her directly. When you are examining your witnesses, address them face to face. And when you are speaking to the jurors, face them directly. These subtle, unconscious messages will establish rapport and win your audience.

Have a relaxed demeanor. The fourth sign of an open posture is lack of muscle tension. You show tension in the eyebrows, mouth, shoulders, or hands. Tension drains energy that should be going to jurors. When you are holding on to yourself, you cannot be open to them.

According to research, power is perceived as expansive, casual, and relaxed. A great deal of President Clinton's victory in the 1992 election can be attributed to the way he successfully met the barrage of assaults hurled at him. He met each attack against his character forcefully, sometimes even with humor; he never cringed or showed despair. That kind of nonverbal response communicates power and leadership.

When you are in the courtroom fearing the worst, do not let anyone sense your anxiety. Take a deep breath and relax. Release the tension from your brow, jaw, mouth, shoulders. A relaxed demeanor, coupled with an open body, spells leadership. Opposing counsel will be dismayed by your confidence; the judge will be impressed by your calmness; and the jurors will view you as self-confident and thoroughly prepared.

2. Keep in visual control.

"Looking" is not just a matter of eye contact; it is a political behavior. Your success in the courtroom depends on knowing the rules of the game.

Maintain steady eye contact. Eye contact keeps you in control of your interactions. When you look down - to refer to your notes, for instance - you break the contact with your audience and, for those few seconds, lose control of the interaction. The jurors are looking at you, but you can't see them. Avoid this situation whenever possible, and, when it is unavoidable, keep the breaks short.

This does not mean you should stare at someone. Maintaining steady eye contact means staying in visual control, not using your eyes as an assault weapon.

Eye contact is also a friendly gesture. By, giving visual attention you are "touching" your audience and saying, "I think you are important." Touching the jurors with your eyes is your most powerful courtroom communication tool.

When you approach the jury box, do not skim over jurors' faces or address the air over their heads. As you speak, look into the eyes of each juror - one at a time - for four seconds. This is just enough time to establish a connection between you and your listener. This is difficult because it demands that you know exactly what you want to say. Otherwise, you will look toward the ceiling, searching for the right words.

Throughout the trial, address each juror individually, with your eyes. This kin of visual attention puts you in touch with each juror. It converts a preachy, style into an interpersonal one, changes a monologue into a conversation.

Win jurors, not arguments. When a hostile witness is answering a question and you do not believe a word he or she is saying, do not snicker and look away. Some attorneys use that technique in cross-examination to try to unnerve and discredit witnesses in front of jurors. Be careful not to discredit yourself in the process. You can easily be perceived as arrogant, pushy, and bullying.

The safest demeanor is to be assertive, not aggresive. Listen. Give the witness your visual attention. After jurors perceive that you are polite and ready to listen, then you can attack the witness's answer. After you have established yourself as a fair and receptive person, jurors will be fair and receptive to you. You want to win audiences, not just arguments. The war in the courtroom is over winning the leadership position, so jurors will follow your persuasion rather than your opponent's.

Rehearse the rough spots. We often lose eye contact when we don't know how to respond to a question or answer a verbal attack, dropping our eyes just long enough to think of all appropriate comment. In that split second, when we lose visual control of the interaction, we can well lose our credibility. A good opposing counsel will pick up on the hesitation and nail us with it. An observant judge will see our weakness and overrule the objection.

To avoid losing control, go over the weak parts of your case and rehearse your arguments. Be so familiar with your responses that when challenged, you will be able to deliver them without faltering - without losing eye contact. Do not allow your opponents to guess your weaknesses and vulnerabilities. Answer their assaults without flinching.

Maintaining eye contact under assault make you look invulnerable. Jurors often do not understand the verbal power plays that take place between the judge, opposing counsel, and you - around objections, for instance - but they do register the nonverbal messages. Anyone who meets a verbal assault without batting an eye communicates power and authority. So when the judge over-rules your objection, acknowledge him or her visually, say thank you, and smile confidently. How you respond to the objection is the message, not the objection itself.

Avoid eye contact with friendly witnesses who are submissive. Some of your witnesses might be shy, and no matter how much you coach them, they will keep looking at the floor. If this is the case, help them maintain their credibility by avoiding direct eye contact with them.

If you look at them while their eyes are downcast, they become the victims and you become the aggressor. By looking away, slightly to the side, you give your witnesses space. By not looking at them while they are not looking at you, you show that you are attending to their feelings. The jurors see how polite you are - which gives you extra points - and your witnesses' credibility is established.

Maintain eye contact with hostile witnesses who are submissive. How should you monitor your body language with opposing witnesses who are submissive? One way to respond - if you want to discredit these witnesses - is to continue looking at them. Put them in the victim posture of being watched, of being out of visual control. This will put you in the power position.

But be careful not to turn your glances into stares. Do not talk too loud or fast or otherwise intrude into their space. If you are perceived as too aggressive, jurors might turn a witness into the underdog and you into the bully.

3. Keep a balanced stance.

The farther away from the face you go, the more the body reveals its true feelings. So when you want to know what is going on in someone's head, look at his or her feet. While we can control facial expressions, the feet are so far removed from the brain physically that we easily forget them. Meanwhile, they are "spilling the beans," if only we knew how to decipher the message.

Keep your feet steady and weight balanced. Very often, the feet express the nervous tension that is not being released through the mouth and hands. Foot tapping, leg swinging, and toe thumping are common ways nervous energy is displayed.

Other foot positions to avoid:

* When you are not ready to move, one foot stays up in the air;

* When you are not sure of what direction to move in, your left foot points one way and the right points the other way;

* When your thoughts are muddled, your legs are crossed and your foot makes circular patterns in the air; and

* When you are mulling things over, you shift your weight from one foot to the other.

Plant your feet firmly on the courtroom floor; you will feel more grounded. Point them in one direction; you will feel more directed. Keep them still; you will still the wanderings of your mind. Keep the weight evenly distributed on both feet; you will feel more steady. Indeed, when weight is not evenly distributed, you are unbalanced and an easy pushover for someone on the attack.

4. Control the way you lean.

The way you lean indicates what you are thinking. You must learn to control how you lean to be more effective in the courtroom.

Lean forward when presenting. When addressing the judge and jurors, successful attorneys reach out physically by leaning forward, talking at a steady pace, and using gestures to communicate their message more emphatically. This position communicates that the attorneys are engaged in the interaction and are sure of their direction.

Avoid retreat. Attorneys who lean away from jurors, sit back in their chairs, hold their hands behind their back, and speak slowly and softly are imprisoning the body's energy and keeping it from reaching jurors. These physical postures of retreat communicate reserve, skepticism, and passivity. Jurors might even interpret them as aloofness and arrogance.

Leaning back is appropriate when in a listening mode, because you are not ready for action. But when you are trying to get jurors to move in your direction, lean toward them. The ideal picture is for you and the jurors to lean toward each other. That configuration means you are in psychological sync - a sure sign of your persuasive powers.

Negotiate in neutral. An upright posture, where the energy does not move one way or the other, is a neutral position. The head and body sit straight, and the hands rest at the side. The overall attitude of the person is detached and uninvolved.

Neutrality is a powerful posture in the courtroom but difficult to maintain for anyone who has "leanings" one way or the other. The body will want to express its feelings, and to restrain that natural reaction demands concentrated effort.

For example, judges try to stay objective and neutral, but even they give away their biases by the direction they lean in. Your own posture shifts are dead giveaways. When you want to communicate neutrality, concentrate on maintaining a neutral posture.

Lean slightly forward when trying to persuade your audience to move with you. Stay in neutral when negotiating or trying to communicate a noncommittal position. Stay back when you want to express your hesitation, skepticism, lack of involvement, or whatever emotion you feel that makes you unwilling to move forward.

Watch how the judge leans. When the judge leans toward you, she is trying to get closer to you and the interaction. She might be getting closer to the interaction in order to "attack" your objection and rule against you or send you back to the library. Or she might be moving closer to you because she is interested in what you are saying and wants to become more involved in the interaction. Leaning forward indicates a surge of involvement in the interaction, which can be either negative or positive.

On the other hand, when the judge leans away, she is retreating from you. Perhaps she wants to mull over some facts you have just offered and needs some space for thinking. As the attorney, you will hope that she will then move back into the interaction, shifting direction toward you. This would indicate her resumed involvement in what you are saying.

If she stays back, you have probably lost her with that particular argument. So try another one until you find one that moves her back into the interaction. If you watch the judge carefully, you can discover which arguments motivate her to move toward you and which send her into retreat. In this way, you can discover her "leanings" and adjust your strategy accordingly.

5. Take up your personal space.

An important ingredient of a winning professional style is to project self-confidence. This is communicated by the way you use your personal space. The more space you take for yourself, the more important people will perceive you to be.

Expand your gestures. To expand your personal space, you should broaden your gestures. Avoid holding your arms close to your torso when you gesture. By freeing your arms from your sides, you can reach out and take up the space around you.

Another way to take up your personal space is to avoid symmetrical postures where both sides of the body are identically positioned. Symmetrical postures keep your space limited. Fill up your chair, for example, by sitting in asymmetrical postures - put one hand on the chair arm, the other on the chair back; keep one leg extended, the other back.

Keep a substantial amount of imagined space around yourself; don't let opposing counsel walk all over you by getting too close to you, for example.

To practice expanding your personal space, stand in the middle of an empty elevator and own the whole space. Make the imaginary boundary around you as big as you can. As people step into the elevator, watch how close they stand to you. The amount of space they give you will tell you how important they perceive you to be. See how you can adjust your nonverbal postures to get them to give you more space.

Claim your territory. Take up the whole courtroom by physically moving around in it. Don't get stuck in a corner. Spread your visuals out. When you are through with a poster board, put it aside but do not turn it around. Allow it to face the jurors until opposing counsel turns it around.

Don't let opposing counsel close off part of the courtroom to you. Mark your territory and guard it. The courtroom is the battlefield. The more territory you can claim, the more importance and power jurors will ascribe to you.

Avoid stepping into other people's territory. On the other hand, be careful about taking up too much space and intruding onto other people's. Getting too close, pointing, talking loudly, and staring are nonverbal weapons used to violate someone's personal space. When you interrupt an opponent's witness on the stand, you are aggressively invading his territory. This behavior is perceived by jurors to be unintelligent and unfair, and it keeps the witness from presenting the evidence.

In some situations, when your opponent is being unreasonably aggressive, you might choose aggressive tactics in return. They can be executed as subtly or overtly as you deem appropriate. But be careful. If jurors believe you are bullying your opponent, they could turn on you. Depending on the situation, taking up too much space in an aggressive way can undermine your authority as much as taking up too little space.

6. Reach your audience through your

gestures.

We can "touch" people in three ways: through our eyes, our words, and our hands. Using our hands not only enhances our style and projects a more attractive presence but also increases persuasiveness. Research shows that people who use gestures more freely are more persuasive.

Use "illustrators" to punctuate your point. Some attorneys literally "tie their hands up" in closed postures because they want their words to be the most important message and are afraid hand movements might detract from the substance of the message.

But gestures enhance the words by adding feelings to them. Words without gestures are cold abstractions. They are also boring to listen to. When you do not involve your body and your hands in the verbal message, jurors perceive you as detached, uncomfortable, and uninvolved.

One way to create interesting gestures is to form illustrators with your hands to visually describe your words. A "V" for victory is an illustrator. Holding up your forefinger to illustrate "number one" is another. Making a circle with your third finger and your thumb to mean "zero" is yet another. Punctuate your presentations with these visual descriptions. Research tells us that power is communicated by strong illustrators, coupled with a low voice.

Use gestures to anchor your message. People remember gestures better than words. A good technique, therefore, is to use gestures to anchor verbal messages. For example, if you want to emphasize how fast the defendant was driving when he hit the plaintiff's car, you might choose to anchor that message by slamming your fist in the palm of your hand, then saying clearly, "Seventy miles an hour. He was driving 70 miles an hour." Repeat the gesture a second time, and anchor it again with the words "70 miles an hour."

The hard time you repeat the gesture, you don't have to say the words. The words have been anchored in the gesture. The jurors with automatically think "70 miles an hour" and know that you are talking about the speed of the defendant's car at impact.

Avoid self-touching gestures. Your hands are an invisible connection to jurors. Reach out with them. Keeping them to yourself cuts you off from the people you need to reach. Self-touching gestures - like stroking your chin and face, holding your hands, or folding your arms - keep the energy internalized and imprisoned. The persuasive communicator projects the energy of the message outward. Communication is touching others, and your hands - like your eyes - are vitally important in making the connection.

Winning Jurors' Trust

These nonverbal behaviors are designed to win jurors' trust and confidence by presenting a style of authority, openness, control, balance, and power. Your nonverbal messages allow you to establish leadership in the courtroom and win at trial. They are crucial to getting jurors to understand your verbal messages. Make sure you use nonverbal language persuasively in the courtroom to project the style you choose - not merely the one you fall into.
COPYRIGHT 1994 American Association for Justice
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1994, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Bernstein, Constance
Publication:Trial
Date:Jan 1, 1994
Words:3544
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