Mastering the unspoken word; A trial advocate’s guide to body language and nonverbal communication

Issue November/December 2016 By Christopher A. Kenney

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
  • words - 7 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:

1. Dress

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 Alabama.

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 about you?"6

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 heels."8

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 damaged credibility.

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 jury.

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 each juror.10

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.

5. Gestures

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 everyday communications:

"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 each other.

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 jury.12

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 October.

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