Smart phones. iPads. Laptop computers. Take a look around and you’ll see faces glued to a device of one sort or another. We can order groceries to be delivered to our homes, hire someone to walk our dogs, and even get a college degree, all from the comfort of our couch. Technology has made it so that we never have to leave our homes.
 
North Carolina trial lawyer Perry Fisher recently introduced me to the work of Dr. Twenge. Dr. Twenge has done some interesting research around the rise of individualism; this is where society places a greater emphasis on the self and less on social rules. Individualism, for example, is often blamed for the decline of religion in America.
 
On its face this shift from community to individual and the increasing isolation of the individual would seem to be a negative one for trial lawyers. I, however, think it’s a unique opportunity and can work in your favor.
 
Regardless of the shift towards individualism and isolation due to technology, we cannot erase our very nature: humans are social creatures. We crave interaction with each other; the massive popularity of Facebook is testament to this fact.
 
So how is this good for trial lawyers? We crave social interaction, but we rarely get it. Due to our reliance on technology it is easy to remain isolated, and yet, research shows that isolation is causing more depression and takes a major toll on our mental health. Trial gives people a place to come together and do something important.
 
Think about this for a moment: the opportunity to come together with our fellow community members and do something that will have a lasting impact is so very rare in today’s world. And yet the experience of affecting real change is incredibly rewarding. Ask any juror who has served on a jury and they’ll tell you that it was one of the most meaningful experiences of their lives.
 
We must do a better job of conveying this opportunity to potential jurors during the jury selection process. I’ve seen time and time again jurors self-select to be on a jury once they understand how important their job is and the effect they’ll have on their communities.
 
Our increasing isolation as a society isn’t something we need to worry about in trial; it is something we can use to our advantage. Trial offers people a unique opportunity to feel important, affect change and connect with their fellow human beings.
 
What a gift this is in today’s world.

​Rachel, my colleague here at FORTE sent this article to me yesterday, titled, The Green Smoothie Problem: Why Others Don’t Buy Your Ideas. In it the author discusses a common problem using an analogy of offering someone a green smoothie:

“Imagine I just handed you a smoothie in a glass. ‘It’s a green smoothie. Wanna drink it?’
 
If you’ve never seen or heard of a smoothie like that, you’d react in one of two ways:

1. You’d anchor to things you already understand to be similar. ‘Oh, I saw this at the gym once. It’s like, grass or something. Gross!’ Or maybe, ‘This looks like a children’s drink. It’s gonna be too sugary for me. No thanks.’
2. You’d look for social proof that says it’s a good drink. ‘Do people really drink this? Do the studies show it’s good to drink? Are celebrities endorsing this? Is there a green smoothie case study I can see?’

 
Simply by handing you the smoothie, I’ve immediately put you at an information disadvantage. As a result, you anchor to a past precedent or try to draw confidence from others in order to fill in the gaps in your knowledge as quickly as possible. If my goal is to get you to drink the smoothie, I’ve done a rather poor job. I’ve merely handed you the drink and left you to do all the reasoning to influence your decision.
 
But if I really wanted to influence your decision, what if I shared the reasoning too?
 
What if, rather than simply hand you the smoothie, I laid out the details of how I came up with it?”
 
I was immediately struck by how the Green Smoothie Problem applies to voir dire. So often attorneys will begin voir dire by asking questions and offer no context or reasoning for why they are asking. Jurors, who are already at a disadvantage by having the least amount of information in the room, are immediately put on the defensive; if they don’t understand why you’re asking the question, they are afraid that whatever answer they give may be the “wrong” one.
 
Giving context helps put jurors at ease and helps you get more information. Which is why I suggest always giving a “context statement” before asking a question, or set of questions, in voir dire.
 
For example, if your case involves a car crash, before asking jurors, “Who here has ever been in a car crash?” Simply state, “This case involves a car crash.” If the case involves a hospital, before asking people about their experiences with hospitals, say, “This case involves a hospital.”
 
Other context statement examples include:
 
“In this case, someone was injured in a car crash.”
 
“In this case, there is a disagreement about what caused the crash.”
 
“This case involves an insurance claim that was not paid.”
 
Etc.
 
Attorneys who hear this advice for the first time will often say to me, “But the judge reads a statement of the case before voir dire begins! Why repeat that info?”
 
The answer is twofold. One, the statement by the judge is read in its entirety, where voir dire will examine various aspects of a juror’s belief piece by piece. Two, the person who has the most information is the most powerful person in the room. Why leave that power sitting in the judge’s lap? Giving jurors context as you work your way through voir dire increases your credibility while empowering the jury at the same time. It’s win/win.
​
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​His hands shook violently. So violently that the notes he held only served to illustrate the shaking to the jury. His voice cracked as he spoke. I had put him third; my thought was that seeing two other lawyers present to the jury before him might help him relax. But no, he was as nervous as ever. I tried to read his body language so I could give him feedback later; was he in approachable or authoritative stance? His knees were practically buckling; it was impossible to tell. His “stance” was an attempt to not fall over.

This past weekend was our Opening Statement Studio. Six lawyers from all over the United States came to Portland to work with me for four days on increasing their presence, nonverbal intelligence and presentation skills. We worked on storytelling, teaching and how to deal with objections while playing with breathing and body language and a host of other skills.

After a day and a half of prep, the lawyers arrived Saturday morning to face two mock juries. Each attorney had 20 minutes to present his or her opening and then 10 minutes to hear from the jury and get my feedback. The entire thing would be videotaped.

As I watched this attorney present his opening, I worried about whether or not he’d make it through. But as he began telling the story of what happened to his client, things began to shift. Still nervous as hell, he used a single chair to illustrate to the jury the scene where this all happened. He became, before our very eyes, the characters in those chairs and told the story of how a woman’s life was cut short by a negligent doctor. At one point he ran to the door and shouted, “Call an ambulance!” and it was as if we were there on the day it happened. The jury held their breath as they watched him demonstrate a husband performing CPR on his own wife. 

As he brought his opening to a close, his hands were still shaking. The jury, however, was now in tears. I, too, had to fight the urge to allow the tears that had just welled up in my eyes tumble down my cheeks. 

Once the jury finished their written feedback, I asked them: “Did you notice that the attorney was nervous?” They all nodded. I then asked, “Who here thinks that this attorney is less credible because he was nervous?” Not a single hand was raised. In fact, as the jury began giving their verbal feedback to the attorney they spoke about his incredible storytelling skills, his ability to make the characters come to life, and how after a 20 minute opening in a complex medical-malpractice case they were ready and willing to award him any amount he asked. His nervousness wasn’t even a factor.

Why?

1. The attorney didn’t let the nervousness distract him. He didn’t try to shove it down, but he didn’t let it distract him from the job at hand either. And if it wasn’t distracting to him, it wasn’t distracting to the jury. He taught the jury to ignore it, and they did.

2. The nervousness made him real. Jurors are on high alert for any type of manipulation; had this attorney told this story with perfect poise and perfection, I guarantee you that the jury would have viewed it as a “manipulation” and dismissed it out of hand. Because the attorney was visibly nervous the jury found him more credible, not less.

3. The nervousness made him human. We’ve all been nervous at some point in our lives, whether that was when we asked our boss for a promotion or at our 5th grade piano recital. Nervousness is a human condition. When this attorney embraced his nervousness and presented his opening anyway, he communicated to the jury “I’m just like you.” And they loved him for it.

Nervousness only becomes a credibility issue when we let it distract us from the job we’re attempting to do. Instead of dreading it, embrace your nervousness! Being nervous communicates that whatever you’re attempting to do means something. Forging ahead says to your audience “not only does this mean something to me, it means so much that I’m willing to talk about it even if it makes my knees buckle.”

That takes courage. 

Taking courageous action increases your credibility. So the next time you’re literally “shaking in your boots” I suggest you see it as a good thing. Take a deep breath, hold your head high, and let your passion for your subject come through.