Trial lawyers are professional communicators. As such, we must
take care to accurately and effectively convey our message and
interpret the true meaning of messages we receive from judges,
jurors, witnesses, and opposing counsel. This is all much harder
than it seems. Studies show that 93 percent of our message is based
on nonverbal communication. Contrary to popular conception, it's
not what you say, but how you say it, that most significantly
impacts your audience. Therefore, trial advocates must pay close
attention to all facets of communication to effectively convey
their message in the courtroom.
In her seminal book, "Now What Makes Juries Listen," jury expert
Sonya Hamlin provides insight and compelling advice on how to
effectively communicate in court.1 Hamlin shares a
startling revelation about the components of what makes up a first
impression. In what she calls "The Body Language Powerhouse," she
provides the following equation of an advocate's credibility:
- body language - 55 percent
- tone of voice - 38 percent
Thus, she teaches that 93 percent of what makes you credible is
perhaps your unconscious behavior, not your words.2
This paper reviews tips and tactics for becoming conscious of
this important behavior, and combining body language and voice
tools to achieve better communication at trial.
The First Impression
The principles of "primacy" and "recency" teach that people best
recall what they hear first and last. However, of these poles of
Alpha and Omega, it is the first impression that most often
dictates the outcome of a trial.
It is axiomatic that "you get only one chance to make a first
impression," and that "first impressions are lasting impressions."
In this light, counsel must effectively convey in the opening
statement why her client should win the case. However, the jury's
first impression of counsel begins to congeal long before she
utters the first words of her opening.
What goes into the mix of a first impression:
Shakespeare astutely recognized that "the apparel oft proclaims
the man"3 - that is, the clothes make the man.
That adage applies equally to men and women, because people
generally make snap judgments about others based on their clothing
and appearance. Psychologists believe that our clothing not only
affects how others perceive us, but also governs how we feel about
ourselves.4 Hamlin suggests that counsel cultivate an
aesthetic that says "I'm working and serious" while also creating
an attractive, enhancing look.
For men, the choices are simple, but limited. The basic uniform
is a blue suit/white shirt/maroon "rep" tie.5 Adopting
this uniform makes you look like an "instant attorney." There is,
however, some room for individuality and the need to match your
attire to the venue. What works in a federal court in Manhattan
might not fly in a remote, small-claims court session in rural
Ties are important accent pieces that can strike a chord - good
or bad - for the wearer. "Ties can say serious, original, hearty,
formal, warm, relaxed, creative, conservative, ornate, understated,
notice-me, or I-go-by-the-book. What do you want the jury to know
Hamlin opines that rep ties (with stripes) or Paisley are the
most classic ties when matched with a good blue suit. Conversely,
"pale dull ties are undistinguished and erase your image and your
face - research says juries dislike them."7
Surprisingly, shoes are perhaps the most examined article of
clothing. According to Hamlin, "jurors notice first and most often
whether or not your shoes are polished! They comment on that more
than anything else you wear. … they feel quite personally insulted
if your shoes are not well polished. '"Who does he think we are??
He should get all dressed up to talk to the jury - us! We're
important and if he doesn't think so, why should I listen to him!"'
So, whatever shoes you wear, check the polish and
Jewelry can be distinctive or distracting. For men, cuff links
should be used sparingly, and be understated when they are used.
Rings are okay. In fact, wedding rings are almost always good. They
show that at least someone loves and trusts you! Diamond pinky
rings, by contrast, are subject to speculation.
Hamlin reminds us of the adage that "the eyes are the mirror of
the soul." Therefore, eyeglasses should be avoided when contact
lenses will do. Glasses block your eyes and form a barrier between
the advocate and the jury. If counsel must use eyeglasses, Hamlin
suggests that the lenses be non-reflective; and that the frames be
understated and designed not to overly shield your face.
Women have more choices, but more challenges, than men with
regard to their attire. Some jurors (generally older, more
conservative, and rural jurors) may have outdated views of a
woman's traditional role and stereotypical attributes (like wife,
mother, nurturer, listener, lady). Hamlin believes that all jurors
look for visible reassurance that "the time-honored attributes
society has always assigned to women are alive and well in you."
She explains that "[t]he assumptions that women are more sensitive
than men, more ethical and honest, more play-by-the-rules,
fair-dealing and less manipulative than men are all-to-the-good
stereotypes for [women]."9 A woman's fashion choices in
court should capture these positive preconceptions.
2. Posture and Movement
Trial is a formal, serious proceeding. That being the case,
counsel should adopt a comfortable but respectful posture while
sitting and standing in court. The jury may conclude from your
posture alone that you are either "a standup guy" or "a slouch." By
paying attention to posture, counsel controls that perception.
Likewise, counsel should think strategically about body
placement and movement in the courtroom. Before trial, always check
with the court clerk to confirm the trial judge's rules about
movement in the courtroom. Otherwise, you risk being admonished in
front of the jury for "making the wrong move." Some judges insist
that counsel remain at the table, stand only when addressing the
court and examine witnesses only from the lectern. Other judges
provide more latitude with regard to movement. Confirm your
options, and then use them to your strategic advantage.
Your body movement can enhance the impact and purpose of your
message. The most effective trial advocates have "presence" in the
courtroom. They are not tethered to counsel table or confined to a
lectern. Rather, they make the courtroom their arena (without ever
upstaging the judge).
For direct examination, it is effective to position yourself at
the far end of the jury box while questioning your client or
friendly witness. This ensures that the witness will be facing the
jury, making eye contact, and projecting her voice to the juror
farthest away from the witness box. This dynamic makes counsel the
"13th juror" and transforms the examination into a conversation
that all jurors are part of.
By contrast, on cross-examination counsel should position
herself in the front of the jury box, 8 to 10 feet back from the
middle juror in the front row. This position complements counsel's
communication in several ways. First, it focuses the jury on
counsel's question, not the witness's answer. Counsel is literally
and figuratively "on stage." This position gives counsel the
opportunity to make optimal eye contact with the full jury, and
with each individual juror. In this prominent position, counsel can
"testify" to the jury through well-crafted, leading questions that
the adverse witness must concede. If the witness fights back,
counsel should abruptly stop, and glance at the jury with a subtle
look that says "I'm sorry, but I have to correct this." Then ask
the judge for permission to approach the recalcitrant witness and
impeach her in front of the jury. Be careful not to turn your back
to the judge or jury as you impeach. By maintaining a position
alongside the witness, facing the jury box, you can subtly look at
the jurors after impeaching and make a barely discernible shake of
the head as you resume your position in front of the jury box. If
done well, you can read the jury's approval and grant of implicit
license to become more aggressive in questioning the witness with
When opening and closing, assume a position similar to cross -
not too close to the jury box (or they'll feel like you are
invading their personal space) but not too far back either (or
they'll feel that you are remote and segregated from them).
Remember, when you are "on stage," all eyes are on your every
movement. Button your jacket when you stand up. Be courteous to
co-counsel, opposing counsel and court personnel; and always be
respectful (but not obsequious) to the judge.
By moving with purpose in the courtroom you make it your
space. That effect greatly enhances your credibility with the
3. Eye Contact
This is one of the cultural "lie detectors" in America. In
judging credibility, we often demand that the speaker "look me in
the eye and say that." Under this test, looking down or away
suggests dishonesty or at least insecurity. Hamlin suggests that
counsel sends the best message by fixing a steady gaze at the jury
and then alternately making eye contact with each individual juror.
This technique projects a sense of security, strength, and purpose,
and also allows counsel to relate to and connect individually with
4. Facial Expressions
Any conflict between the advocate's facial expression and oral
expression confuses the jury and undermines counsel's credibility.
For example, furrowed brows and frowns communicate anger,
aggression, and disagreement. They would be a mismatch when telling
a joke or relaying a love story. Conversely, smiling and holding an
active, open facial expression suggest that you are content with
the subject matter of your message. This expression would be
incongruous with a tale of deception or danger. It's critical for
counsel's facial expression to match her spoken message.
Effective advocates match their gestures (movement of hands,
arms, and head) to their words to reinforce and enhance their
communication. These gestures engage the jury and complement
counsel's spoken message. Think about these common matchings in our
"She never had a chance to stop before the crash," spoken while
plaintiff's counsel slowly shakes her head back-and-forth to
reinforce the negative;
"There are two simple reasons why this case should be
dismissed," spoken while defense counsel holds up two fingers in
front of the jury;
"How in the world could the defendant have ever foreseen the
potential for this accident?" spoken while defense counsel has her
arms out and up, bent at the elbows, with her palms open and facing
Find a comfortable resting place for your arms and hands as you
stand and argue to the court. Be aware of fidgeting hands, which
connote nervousness and insecurity, or covering your mouth or face
with your hands, which suggest an intent to conceal your true
feelings from the jury. Likewise, avoid holding your hands behind
your back when you stand in court, as the stance projects
conflicting status. The jury could interpret your stance as
pantomiming a U.S. Marine at parade rest (good) or a criminal
defendant in handcuffs (bad).
Program yourself to move your body in synchronicity with your
spoken message. By practicing this coordinated communication you
will make it second nature so that it looks, feels and is
A word about ethics in communication: As discussed above, body
language - particularly generally accepted cultural norms like
nodding to express agreement, shaking your head to disagree, or
shrugging your shoulders to signify a lack of knowledge - can send
cues or signals that others can reasonably be expected to rely on.
Consequently, counsel must harness and regulate these nonverbal
expressions to ensure that they are used ethically to communicate
intention and substance. For example, ABA Model Rules of
Professional Conduct 3.3 and 4.1 regulate candor to the tribunal
and truthfulness in statements to others, respectively.
It is a disciplinary violation for counsel to misrepresent
material facts to the court and opposing counsel, even in an
adversary system. The fact that a nod of the head, shake of the
head or shrug of the shoulders is not always caught on a transcript
does not protect counsel from potential disciplinary action for
violating these rules. In your body language, as with your spoken
words, you should say what you mean, and mean what you say.
Sounding the Message
Your voice is a toolbox for advocacy. By identifying its full
range of applications you can greatly enhance comprehension of your
substantive message by focusing on how you say it. Your voice has
everything you need to repair an uninspired message: tone, tenor,
inflection, volume, pace, and pitch can be deployed to great effect
in your oral messaging. The key is to become conscious of how,
when, and why you use these tools. For example, by changing the
pace of the story, plaintiff's counsel can cause the jury to lean
forward and tune in by slowing down and speaking softly to them as
she gets to the scene of the fatal accident that is the subject of
her client's suit. She can then create a heightened sense of
urgency and alarm by picking up the pace and volume as the impact
of the accident occurs.
Likewise, your voice inflection can help the jury to hear the
punctuation in your speech. Try this exercise: Say, "do you know
what I mean?" and raise the inflection of your voice on the last
word to form the audible question mark at the end of the sentence.
See, it works!
Likewise, your tone, tenor, and pace can also emphasize the
point of your message. By speaking in a low, flat tone with a slow,
measured pace, your voice can reinforce the point you are
emphasizing. Try using that speaking style in this exercise: Say,
"the plaintiff never complained about the supposedly defective
brakes - not once - not ever!" By reciting these words in this
manner the jury gets your message more forcefully and clearly than
if you delivered it in a hurried, high-pitched voice.
What about the value of brilliant prose?
According to Hamlin and her allies, only seven percent of your
message is based upon the actual words you use when delivering it.
Although some dismiss this as "the 93 percent myth,"11
it seems to be well received and respected in the literature. Of
course, word choice is important - it lays the foundation for
evidence, and it creates the record for appeal - but it is not what
gets the jury rooting for or against you and your client. By
strategically using body language techniques and deploying the full
range of tools the voice has to offer, you will complement the
impact of the verbal message you deliver to the
Christopher A. Kenney currently serves as treasurer
of the MBA. A founding member and managing shareholder of Kenney
& Sams PC in Boston, Kenney has tried cases before every level
of the state and federal trial court system in Massachusetts, and
has served as an appellate advocate before the Massachusetts
Appellate Division, Massachusetts Appeals Court, Massachusetts
Supreme Judicial Court and the U.S. Court of Appeals for the First
Circuit. He recorded an episode of the MassBar Beat podcast on this topic in