What's getting in your way?
Well if you're like most of my clients, I bet it's one of these three things:
You Don't Know What You Want
What do you want?
When I ask clients that, I usually get a blank stare or a confused look.
Want feels so...indulgent. So...self-involved. And what the heck does want have to do with anything anyway?
Without want there is no WILL.
When things get tough, you've got to have a want that's flashing so brightly in front of your face that you KEEP GOING.
It's so easy to wake up one day and realize you're living a life you don't even recognize. Getting clear on what you want not only helps you keep going when things get tough but determines the course of your life.
Maybe you know what you want but you're waiting to take action.
You've told yourself you don't have enough experience. Or training. Or knowledge. Or preparation. You should wait. It's the prudent thing to do.
Here's the truth: you'll never have "enough." You'll never walk into court feeling 100% prepared. You'll never feel you know everything there is to know. (At least I hope not. How boring!) "Enough" doesn't exist. It's a myth. It's a fantasy land you think exists if you'd only patiently wait for it to arrive.
You'll be waiting forever.
Stop waiting. Do it now. Whatever "it" is.
You Aren't Willing to Fail
What's the real reason you're waiting? Well, if you're like most people, you aren't willing to fail. You tell yourself it's because you aren't "enough,” but the real reason is you don't like failing.
Newsflash: no one like to fail! But being willing to fail is the key to moving to the next level of your development. If you want to up your game at trial, you've got to put your fear aside and willingly put yourself out there and give up your excuses.
Start wanting. Stop waiting. Be willing to fail. Get out of your own way and watch as your life, and trial practice, transforms before your very eyes.
How do you help jurors understand the difference between economic and non-economic damages?
On one hand, jurors want a formula, but on the other hand, formulas often backfire. For example, it’s not unusual to watch a mock jury deliberate and hear someone say, “Well, they’re asking for $10,000,000. This guy will live 23 more years according to their experts. So let’s see. Ten million divided by 23 is about $435,000. Divide that by 12 and that's…holy hell that’s over $36,000 a month!”
This is dangerous.
So how do we navigate this in trial? I firmly believe that you need to tell jurors how to calculate damages. So many attorneys throw up their hands and say, “No one can tell you how to do this, you just have to rely on your judgment.” Uh, big mistake. As David Ball says, if you tell the jury that no one can tell them how to calculate damages, they hear: “it can’t be done.”
Here’s how I often suggest handling it...
In voir dire, ask jurors about the difference between the price of something versus the value*. For example:
"Can something have value even if you paid very little for it?"
"What should happen if someone destroys something “priceless?”
"How do we, as a society, make it up to that person?"
"Why are some things valued very high in our society, say, a Picasso or a basketball player, and other things aren’t?"
In opening, tie economic damages to price, and non-economic damages to value. You know jurors will want to use a calculator so tell them when that is appropriate. Say:
“Economic damages is where you can get your calculator out. This is where you look at ‘price.’ How much will it cost to get the plaintiff back on his feet? What accommodations will he need? How much will medical care cost? This is the easier part of your job. You just look at the receipts, the bills, the reports and add it all up."
You can then continue:
"The hard part of your job, however, is non-economic damages. This is where you determine value. You won’t be able to use a calculator here. There is no formula. This is where you have to decide how much value to place on something like no longer being able to walk your daughters down the aisle. Or no longer being able to do simple things like change a lightbulb without asking your neighbor for help.”
But don't stop there. In closing say:
“Now here’s how we came up with the non-economic number.” Walk the jurors through your process. Tell the jury how you came up with the number but continue to tie it to value and not price.
The minute you start talking about how much things cost, you're in the “price” zone. You've got to get jurors into the “value” zone when discussing non-economic damages.
There’s no perfect way to help the jury with non-economic damages, but I do think jurors need more help than we often give. So help the jury by first, explaining the difference between the two types of damages, and then, helping them understand your reasoning for the non-economic number.
*Thank you to John Coletti who, along with Paul Luvera, developed this method and allowed me to share it.
What's the first thing you do when you screw up?
Well, if you're like most people, you try to forget it as fast as possible.
I've talked a lot about failure in this space and on my podcast, but the only way to really learn from your failure and grow as a trial attorney (or anything else) is to feel your way into it.
Here's an example:
A trial attorney came out to work with me last month. During his opening statement to our mock jury, something went wrong and instead of course correcting, I could see his inner critic take over. The opening got choppier and choppier and when he ended, I could tell he felt badly about his performance.
It would have been very easy to try and make him feel better. I could have told him it was fine. I could have reminded him about what a good trial attorney he is. I could have switched gears and done a new activity to build his confidence.
Instead I did nothing. I let him feel his failure. I didn't argue with him when he said he felt it went terribly. I just let him be with what he was feeling.
When he was ready, we watched the video of the opening and processed our way through it. We then tried the opening again, and this time, I watched him perform more passionately than I'd ever seen him perform before.
Here's what's important: When the attorney sat with his disappointment, he eventually realized, on his own, that it was his inner critic that caused his opening to go awry. He wasn't broken, ineffective or untalented. He just let his inner critic take over for a moment and, by really feeling what that was like, he decided he never wanted to do that again.
Had he ran away from his failure, he wouldn't have recognized what actually happened during his opening. He would have instead told himself to just work harder, when in reality, he didn't need to work harder at all. He just needed to ignore his inner critic the next time it started yapping at him when he made a minor "mistake."
When we attempt to run away from our pain, we don't learn. The first step to greatness is to be willing to fail. But merely failing is not enough. You need to feel your way into it.
Here's a podcast episode that talks about this in more depth.
noun. a person who advocates an opposing or unpopular cause for the sake of argument or to expose it to a thorough examination.
Are you using the devil's advocate question in voir dire? No? Well pull up a chair, 'cause you're gonna want this in your repertoire.
I've been playing with the devil's advocate question for several years now and have found it to be an absolute must in my voir dire arsenal.
Here is the basic gist:
A devil's advocate question is where you ask the jurors a question that exposes a defense argument.
For example, say you have an overserving case. A bar overserved a customer, that customer drove drunk, and someone was killed.
The defense may say things like:
"We didn't force him to drink."
"He wasn't obviously intoxicated."
A devil's advocate question then would sound like this:
"Yeah, but, what about personal responsibility? No one poured the drinks down his throat."
"But could the bar really do anything? He didn't seem intoxicated."
You take a defense argument and turn it into a question.
But, you have to be careful. For example, NEVER use a devil's advocate question until you've rallied the jurors to your side.
For example, you wouldn't say:
"This is an overserving case. Which means a bar overserved a customer, and that customer drove drunk and killed someone. Who here thinks the bar couldn't do anything if he didn't seem intoxicated?"
Aack! No. You might as well pack up and go home with that question.
Instead, you want to ask the jurors if they think bars can play a part in preventing drunk driving. You want to ask why that's important. You want ask the jurors if bars should be held responsible when someone they overserved hurts or kills someone else.
And, depending on how they answer (ie, if they are "with" you) you can THEN play devil's advocate with:
"Yeah, but, what about personal responsibility? No one poured the drinks down his throat."
Here's why this works: once someone communicates an opinion, if you challenge that opinion it strengthens their conviction that they're right.
Social science backs me up on this. See this article and this one and this one.
The devil's advocate question allows you to both a) bring up a defense point and b) strengthen the opinions of favorable jurors all in one.
Just make sure you only use the Devil's Advocate Question if the jury is firmly rallied around your idea or the question can backfire.
Click here to listen to my podcast on the Devil's Advocate Question.
We are all about beginnings and endings.
It's exciting to start a new project or finally reach a long-term goal.
But whether it's weight loss, saving a certain amount of money or becoming a better trial attorney, the magic is in the middle.
The middle, however, isn't as exciting as the beginning or end. It's not fun to try things and fail. It's not super sexy to not be great at something the first time you try it.
But the middle is where you change and grow, and if you don't stop to enjoy the process of reaching your goal, you'll miss the best part.
For example, I'm on a journey to lose weight. Sure, it will be nice to reach my goal weight eventually, but I'm loving the journey.
I know it's hard to believe, but I am actually enjoying the entire process of losing weight.
I'm learning how to love myself at any size. I'm learning how to show up for myself when I'd rather quit. I'm learning to keep commitments to myself. In other words, I'm becoming the person I want to be NOW instead of waiting until I hit my goal.
How many of you embrace the journey to becoming the best trial attorney you can be? Although it can be hard at times, I'm telling you, what you're learning NOW is where it's all at.
We all want to believe there's a pot of gold waiting for us at the end of the rainbow. We tell ourselves that once we meet our goal THEN we'll finally be happy. The problem is, it doesn't work that way.
Results don't bring happiness. Effort does. Doing the work to lose weight, save money, become a trial attorney is where the happiness is but most of us miss it because we're so focused on the end result.
The journey is way more fun than the destination, but only if you embrace the magic in the middle.
I know it seems like you are doing an endless number of things both before trial and during.
But when it comes to communication, you're really only doing three things.
Teaching, storytelling and dealing with resistance.
Teaching is where you impart information. You teach throughout trial. For example, if your case involves angiograms, you begin your teaching in voir dire by asking jurors about their familiarity with specific medical terms in your case.
"Who here has any familiarity with angiograms?"
"Was your father's angiogram that you just mentioned diagnostic (performed to diagnose a problem) or interventional (performed to fix a medical issue)?" Etc.
You teach in opening when you tell the jury what angiograms are and how they're used.
"An angiogram is where the doctor punctures the femoral artery..."
"There are two types of angiograms. Diagnostic and interventional. Diagnostic angiograms are performed when..." Etc.
But you also teach in closing when you show the jury how to fill out the verdict form and clarify what the legal terms mean.
And during trial? Your expert witnesses teach on the stand.
You begin storytelling in voir dire by listening to the juror's stories and experiences. You continue storytelling by telling two stories in opening: the story of how the defendant caused the harm, and the story of the effect of that harm on the plaintiff.
But you also tell a story in closing; the story of the plaintiff, projected into the future, where they received no help from the jury.
And during trial? Your lay witnesses tell stories on the stand.
Deal with Resistance
You deal with resistance in voir dire by discussing the very things that are detrimental to your case.
You deal with resistance in opening when you undermine the defense arguments. And in closing you deal with resistance when you teach the jury how to deal with resistance from fellow jurors in the verdict room.
And in trial? You deal with resistance when you conduct your cross exam of the defense's witnesses.
Why is This Important?
It's important to understand the three things you're doing at trial for two main reasons:
First, it helps simplify things. If you know you're teaching, storytelling or dealing with resistance, you can organize your content that way so that it all comes together at the various points at trial.
Second, it informs what body language you should use. Teaching requires you adhere to presentation rules: proper stance, gestures, visuals, etc. When you're storytelling, however, you throw those rules out. Now you can and should "act." Bring the characters to life.
And when you deal with resistance? Adopt the same tone of voice jurors might use should they vocalize their thoughts out loud. "Shouldn't he have told someone?" they might be thinking in a sex abuse case. So say it, just like they'd think it, with proper inflection. This creates a connection between you and the jurors.
Trial can be overwhelming. Simplify your communication by focusing on these three things.
If you've conducted a voir dire that gets jurors interested in the principles in your case, then your jury should be eagerly anticipating your opening to learn more.
Don't blow this chance to inform and inspire jurors by making these three mistakes:
Too Long. Most opening statements are too long.
When your opening is too long, jurors get bored. Opening should be a preview of the evidence and jurors should be left wanting more after you're done. In addition, you want to "hum the tune" of your trial theme in opening so that as the other players (witnesses) sing that tune throughout trial (badly, and often out of tune), jurors remember the original. When you're opening is too long, jurors forget the original song and you start to lose them.
Too Complex. Most opening statements are too complex.
When your opening is too complex, jurors get confused. Names, dates, medical terms the jurors don't understand, stories out of order, tons of visuals...all of these things add to a juror's confusion. When jurors get confused, they go inside to try and figure it out, which means they stop listening to you. If they do figure it out, they'll miss the last few minutes of content you delivered, and if they don't figure it out, they feel stupid.
Too Legal. Most opening statements are too legal.
When your opening is too legal, jurors don't care. And I'm not just talking about legalese either. I'm talking about words like "vehicle" instead of "car." Or "collision" instead of "crash." When you use this type of language no matter how "off code" you're trying to be, you clearly communicate to jurors, "I am a lawyer."
Instead, create an opening that is short, simple and sane.
Short. Condense your opening as much as possible. Short openings communicate, "this is a very simple case that can be decided easily." If you need a 2-hour opening, fine, but really make sure that's the case first.
Simple. Clarify terms for jurors. Remove names and dates. Use the lowest number of visuals you can get away with. Make it easy on jurors to follow along.
Sane. Clean up your language. Use "car," "crash" and other non-lawyer words. Talk like jurors talk.
When you make your opening short, simple and sane, you communicate to the jurors that you have confidence in your case. Half of what you throw into your opening you don't need. So ditch it. Jurors don't commit to content; they commit to people. So make sure your content isn't getting in the way of your connection to jurors.
Give this podcast a listen to learn more.
Have you ever been told you need to, "Own the space?"
What does that actually mean?
Let's first discuss what we mean by "space." We tend to think of space as what is contained within the four walls we're communicating in. But space is not contained by walls. You can enlarge or shrink the space, affecting how it feels to others.
By bringing awareness to it.
Have you ever gone out to eat with someone and felt as though they weren't "there?" One of two things are possible in that scenario: they are either in their head, shrinking the space so small that you feel left out, or they have taken in the entire restaurant into their awareness making you feel lost in it.
How you think about space affects how it feels.
Most presenters, when standing in front of an audience, are in their heads, and it shows. When you're thinking about your content or nervous about what you're about to say, you appear small and constricted to others.
However, when you expand your sense of space, bringing in the entire room and its occupants, and maybe even the hallway outside or the entire building, you expand. You appear large and in charge to others.
But you not only have to increase your awareness of space, you have to move as though you belong there.
That means no side-stepping, no backing up, and no sashaying. (But do send video if you do this.) Just turn and walk normally. Use big gestures and pausing. This communicates to jurors, "I belong here. This is my space. Welcome."
And THAT is what it means to "own the space." Even if you are, however briefly, borrowing it from the judge. ;)
To learn more, give this podcast a listen.
Only seven, you ask?
I know you aren't trying to annoy jurors, (at least I hope not) but there are certain things that you may be doing that are out of your awareness. Let's look at what they are.
#1: Using the hobby question. You want to "warm jurors up." I get it. But asking about hobbies makes light of the situation. No juror wakes up to a jury summons in the mail and thinks, "Ooh goodie! I can't wait to go have a relationship with Mr. or Ms. Attorney!" Avoid this question, at least at the beginning. Jurors are hungry for information, so give it to them.
#2: Telling jurors how important they are. Look, jurors are important, but they sure don't feel important. They've been forced to come to court, shoved in a room and told to wait, corralled into the courtroom and told where to sit, and branded with a plastic sticker that reads: JUROR, telling other people to avoid them! Is it any wonder they roll their eyes when you stand up in front of them and tell them how important they are? Instead, show them. Listen to them. Which brings us to #3...
#3: Not listening. You tell jurors how important they are and that you want to hear from them, then as they speak you dart your eyes around the box, look at your watch or cut them off. Huh? Stop it. Listen to jurors. Intently and with focus. This is what shows them how important they are.
#4: Gimmicks. It's so tempting to try a gimmick you picked up at a seminar, but I implore you to reconsider. Jurors are on high alert for manipulation of any kind. Drop the gimmicks and back away slowly. You don't need them! You just need to show up authentically and let the jury see who you really are. That's it.
#5: Rewording what jurors say. In an attempt to practice "reflective listening" many of you, instead of repeating back what jurors say, reword what they said. This feels manipulative to jurors. If you want to clarify an answer, ask questions instead of rewording.
#6: Making jurors feel stupid. You inadvertently make jurors feel stupid in two ways: 1) you use terms the juror doesn't understand and 2) you ask "should" questions. Should questions are questions like, "What should the doctor have done?" If a juror doesn't know, uh oh. Instead use, "What were your expectations of the doctor?" And of course, always clarify terms before throwing them around so jurors can easily follow the discussion.
#7: Dumb explanations of bias or the jury selection process. Please avoid talking to jurors like they're in 3rd grade and don't understand bias. Instead, tell them about the principles in the case and discuss those principles. That's where you'll find bias, not by lecturing about it ahead of time.
You don't need to do any of the things above to win the hearts and minds of jurors. You just need you. Really.
Give this podcast a listen to learn more.
Last week we discussed the first thing you can read: permission.
Today let's look at the second thing you can read: what mode jurors are in.
Every single communication situation tends to fall into one of two buckets: Issue & Relationship.
You're either tending to the relationship or dealing with an issue when conversing with someone.
Likewise, people tend to be in issue or relationship mode, depending on the circumstance. You can read this nonverbally.
Issue-oriented communication looks like this:
Relationship-oriented communication looks like this:
We like the relationship-oriented jurors, don't we? They smile and nod and make us feel good. But the issue-oriented jurors are scary, aren't they? They stare and cross their arms and make us feel bad.
Stop making up stories.
Issue-oriented jurors are interested in logistics. "What's this about? Is it worth my time?" It doesn't mean they disagree with you.
Relationship-oriented jurors are simply being polite by nodding and smiling. It doesn't mean they agree with you.
Here is what this body language actually means:
Issue-oriented jurors are motivated by facts, evidence and logic.
Relationship oriented jurors are motivated by emotion, stories and the human element.
This means that if you have a primarily relationship-oriented jury, you need to use more relationship-oriented body language and tell more stories and use more emotion.
Conversely, if you have a primarily issue-oriented jury, use more issue-oriented body language and focus on facts and logic.
Stop trying to memorize hundreds of nonverbal cues and just focus on reading permission and what mode your jurors are in. This will allow you to focus on the job at hand instead of being distracted by irrelevant details.
As an expert in nonverbal intelligence, I am often asked how to accurately read a juror's body language.
Here's the short of it: you can't accurately read a juror's body language if what you're looking for is whether or not they'll vote your way.
But there are things you can read: permission and what mode jurors are in.
Let's discuss permission first.
Permission is how receptive someone is to you or your message. It's conveyed nonverbally. Meaning, even if someone says, "Yes, you may do that," you may not have their real permission.
For example, have you ever been in voir dire and asked a juror if you could ask them a question, and they say yes, but then you still have a hard time getting them to answer? They gave you verbal permission, but not real permission.
You can read permission by watching a juror's breathing. Is the juror sitting still, head resting on top of his shoulders, conversing easily? He's most likely breathing well. Conversely, is the juror sitting stiffly, shoulders up, having trouble finding words? She's most likely holding her breath or breathing shallowly.
When a juror holds his or her breath, they go into fight or flight mode. This means they're in survival mode and cannot be receptive to you or anyone else. This is why breathing is an indicator of permission.
Carefully watch a juror's breathing to gauge whether you have permission or not. You can also just tune into how the interaction feels: cold and stunted? You don't have permission. Warm and inviting? You most likely have permission.
Next week we'll discuss the second thing you can read: what mode jurors are in.
Until then, check out this podcast: How to Read Body Language.
In order to be truly great, you have to be willing to fail.
But failure doesn't help you learn if all you do is beat yourself up when you make a mistake.
If you want to take your communication to the next level, you have to stop wasting your mistakes.
What does wasting your mistakes mean?
You're going to make mistakes, so why not use them to your advantage?
Here are some steps you can take to help you learn from your mistakes instead of throwing away the opportunity you have to learn:
Use your mistakes to your advantage. Start really digging in when you make a mistake and use it as an opportunity to learn. Failing for failure's sake is a waste of time. Failing your way to greatness is possible when you learn from your mistakes.
Give this podcast a listen to learn more.
How much thought have you given to body language?
If you're like most people, not much.
And yet how you nonverbally communicate has the power to change everything.
If you want to change your results, you must change your body language.
Body language includes many things: what you do with your face, how you stand, how you gesture, what your voice sounds like, etc., but the easiest way to think about it is to separate the various nonverbal communication skills into four areas:
Today let's discuss body and voice.
Great communicators are highly skilled, but it's not just skill that makes them great. It's timing.
Great communicators know what skill to use when.
For example, there are two basic nonverbal types I teach: authoritative communication and approachable communication.
In nearly every communication situation you are either sending information or seeking it.
For example, if you get a Starbuck's coffee every day, you most likely say, "Tall, soy, light-foam latte," when you get to the cashier. (At least that's what I say.)
But if you miss your turn and end up in a Dutch Brother's parking lot, you might ask, "Do you guys serve soy lattes here?"
To be purposeful, use authoritative communication when sending information:
Additionally, use approachable communication when seeking information:
Want jurors to talk to you? BE APPROACHABLE. Want to communicate you're the leader? BE AUTHORITATIVE.
Using the right nonverbal communication at the right time has the power to change your results.
Give this podcast a listen to learn more.
If you've never said to your kid, "You LOOK at me when I'm talking to you!" are you even a parent?
Most parents have, at one time or another, said this to their kid. (Especially if said kid is/was a teenager.) And that's because we think it's disrespectful to not make eye contact.
When parenting, this is often true.
The problem is, it's not true across the board.
Eye contact does not equal respect. But thinking it does causes all sorts of problems.
For example, if you believe that you should always make eye contact, this will cause you to:
Here's the deal: eye contact does not equal respect, it equals engagement. Which means you need to look at whatever you want (or want jurors) to engage with.
For example, if you are using visuals during your opening statement, I assume you want jurors to look at them. If so, you need to look at them too. Telling jurors to look at your visual while you maintain eye contact confuses them. You say "look up here" but if you maintain eye contact you nonverbally communicate, "keep looking at me." If you want jurors to engage with the visual, you have to engage with it too.
When you're objected to, look at opposing counsel. This will force the jurors to look there too because people follow our eyes. (Don't believe me? Go to coffee with someone and look over their shoulder as you sit across from each other. It will be near impossible for them not to turn around to see what you're looking at.) When you look at opposing counsel, jurors will associate the objection with them ("why are you interrupting?") versus you ("did you say something wrong?")
When you need to move in the courtroom, break eye contact. It's ok, I promise! It's much weirder to sashay to where you're going than to merely break eye contact and walk normally.
You've been told that eye contact is the holy grail of connection. It isn't. It's merely one way to connect with jurors. But if you insist on making eye contact at every possible moment you not only risk totally weirding the jurors out, you miss out on opportunities to systematically use eye contact to your advantage.
Click here to listen to my podcast on eye contact.
When I first started working with lawyers, I was surprised to find that voir dire was the part of trial most lawyers dreaded.
This made no sense to me: voir dire was the one part of trial that was unscripted. It was a conversation, a "get to know you" type of deal. But I soon realized that the "unscripted" part of voir dire was the very thing that made it difficult.
So I set out to fix this problem. I developed a method to help attorneys craft a voir dire that would get jurors talking. And it helped. But there was still a problem.
You can prepare your side of the conversation, but you still have no idea how the jurors will respond.
And that's when I realized that good questions are important, yes, but they're just the start. What you really need to get good at is listening.
When you think of listening you probably think of focusing intensely on someone else (in this case, the juror) and giving them your full attention.
You might be surprised to learn that there are three types of listening.
The first type of listening is the listening I see all the time in voir dire: listening to yourself. This is where you act as though you're listening to the juror but what you're really doing is listening to your own inner chatter.
"Is this a good juror for me?"
"How do I follow up on this?"
I hardly need to point out that this is -not- the type of listening you want to be doing in voir dire.
The second type of listening is where you listen to someone else. This is what most of you have been taught to do in voir dire, but to stop here is a mistake. There's a third type of listening you need to develop.
You need to listen to your intuition. When you listen to your intuition you listen for what's not being said, what's in the room, and how the group is reacting to what individual jurors are saying. This is where every good thing in voir dire happens.
When you listen to yourself, you miss out on all the good information the juror is sharing.
When you listen intently to individual jurors, you risk boring the group.
But when you listen to both jurors and your intuition, you can shape the conversation and infuse it with meaning and purpose. You are present with the individual juror, yes, but you also have an eye on the entire group and what needs to happen next.
But here's the thing about intuition: it doesn't shout at you or slap you in the face. (At least, not most of the time.) It shows up when you get quiet and give it space to arrive. And yet most of you are afraid of silence! So when the juror stops talking you immediately jump in and crowd out the opportunity to let your intuition speak.
Stop. Slow down. Trust that what needs to be said next is just lurking under the surface. Start giving your intuition time to show up and you'll begin to master voir dire with each passing trial.
Give this podcast a listen to learn more.
You communicate nonverbally all the time.
You can't -not- communicate.
And yet I'd guess most of you have received little to no nonverbal communication training.
You cannot be a high performing trial attorney if you don't master nonverbal communication.
1. The majority of any message is nonverbal.
There are three parts to any message:
Content is what you say. Delivery is how you say it. Reception is how it was received.
Even if all three parts were weighted evenly (they aren't, nonverbal communication always speaks louder than words) 66% of any message is nonverbal. How you deliver a message is nonverbal, (body language, voice tone, breathing, and gesturing) and reading how people receive it is done nonverbally. (More on this below.)
To get your message across, you must tune into your nonverbal communication.
2. If there is a mismatch between your verbal message and your nonverbal message, the listener will believe the nonverbal message every single time.
You tell the jury you want to hear from them but then dart your eyes around the jury box. The message jurors receive? "Shut up already, I want to move on."
You tell the jury this case is very serious but then joke around with opposing counsel on breaks. The message jurors receive? "This case is a joke."
You tell the jury this case is simple but then use hundreds of PowerPoint slides and lots of jargon. The message jurors receive? "This case is complex."
Your nonverbal communication speaks louder than your words.
3. The ability to ensure good communication happens rests on your ability to read nonverbal cues.
If you haven't mastered nonverbal communication, that means you misread (or don't read at all) the nonverbal communication of whoever you're communicating with. But this is the only way to tell if what you're doing is working! Communication doesn't happen in a vacuum; you have to keep an eye on your listener to gauge whether your message is landing. You do this nonverbally.
Want to master trial? You must master nonverbal communication. There are no shortcuts. Jurors believe what you do, not what you say.
Give this podcast a listen to learn more.
I bet you've been told you need to build trust with jurors, haven't you.
Here's the problem: trust takes time. Yet, you don't have the luxury of time to get jurors to believe and trust you.
What you need is permission.
What is permission?
Permission is how receptive someone is to you or your message.
Permission is a function of three things:
You can increase permission with jurors (or anyone else) by meeting their need.
For example, what do jurors need at the start of jury selection? Information. They want to know why they're there and what they have to do. So tell them. Forget phony "rapport builders" like asking about hobbies or what jurors have read lately. Get straight to the issue and watch permission go up.
You also increase permission by doing things at the right time. Jurors need to feel empowered, yes. But telling them they're the most important people in the room at the beginning of trial nearly always fails. Why? It's the wrong time. Jurors are on the lookout for any hint of manipulation and this fits the bill. You empower jurors in closing, not when you begin.
Finally, you increase permission by meeting people's needs at the right time and in the right context.
The different parts of trial represent different contexts. The context of voir dire is to get information. The context of opening is to give information. The context of closing is to argue your side. Stay in your lane! Don't argue in opening or deliver a presentation in voir dire.
You need jurors who are receptive to you and your message. Forget about getting them to trust or like you. Instead, focus on meeting their needs at the right time and in the right context and watch permission steadily increase.
Several years ago, Bill Barton agreed to speak at our Power of Presence event. During his talk, he said that he had “learned not to take the losses personally.”
A few weeks later, David Sugerman, an attorney based here in Portland, and I had lunch. David just won a 420-million-dollar verdict against BP. He had attended the Power of Presence seminar where Bill had spoken.
As we discussed his recent win and Bill’s remarks on losing, David said, “I too, have learned how to not take the losses personally. But what I think is even more important is to not take the wins personally either.”
Bill, David and other great attorneys know that there’s little rhyme or reason to why you win or lose at trial. They know that there will be times they’ll lose cases they should have won, and win cases they should have lost. Therefore, they don’t take any of it personally. They just do their best and let the chips fall where they may.
Praising yourself for your brilliant lawyering when you win and beating yourself up when you lose makes absolutely no sense. You cannot base how “good” you are on your win/loss record.
Redefine what success means. Are you there to win or to fight? If you’re there to win, well good luck with that. You cannot control whether that happens or not. But if you’re there to fight? THAT you can always be successful at.
We’re in this to win.
The problem is, you can’t control whether you win or not.
And although I think you know this, I don’t think you accept it.
I see so many attorneys desperately attached to winning at trial that when they lose...it knocks them off their game.
When I was wrestling with an issue in my life years ago, my coach told me something I’ll never forget. She said, “The goal is to be 100% committed and 100% unattached.” It’s ok to want to win. But you need to detach from whether it happens or not.
Let go of the idea that winning is the only acceptable outcome. Instead, focus your energy on doing the best job possible and you might just find that winning takes care of itself.
Verbal information is the most difficult information to get across. Because verbal information is difficult to process, audiences tend to tune out things they don’t understand or have trouble following.
The answer, then, is to create hundreds of PowerPoint slides, right?
No. No no no.
Last year I had an attorney come through my opening statement class. A few weeks before the start of the class, he sent me a 150-slide slide deck.
That’s when I knew we were in trouble.
After he presented his opening to the jury, one juror said, “I thought you were very credible.” The attorney responded, “Thank you!” But the juror continued, “until you started with all the PowerPoints. That’s when you lost all credibility with me.”
When you use hundreds of PowerPoints, what message do you send jurors? This case is really complex. It’s so complex, in fact, it’s going to take HUNDREDS of PowerPoints for me to explain it to you. This is not the message you want to send to jurors.
SO complex = TOO complex = Defense Verdict.
In addition, using tons of PowerPoints interferes with your ability to connect with jurors. Jurors can only look at one thing at a time; you or something else. If you’re constantly using PowerPoints, that means jurors must look at the PowerPoints, not you. You’re missing out on real connection with jurors when you use an insane number of PowerPoints.
I'm not saying never use PowerPoints. What I am saying is every single visual you use should support your presentation, not detract from it. You may think that PowerPoints reduce information overload, but they often do the opposite.
YOU are the main attraction in opening. Focus on telling a good story with excellent nonverbal communication. Use visual information to deepen a juror’s understanding, not as a substitute for teaching from you.
Sari has been dubbed the "Attorney Whisperer" because of her unique ability to help attorneys communicate their real selves.