Read and react

chaz-ballReading jurors and occasionally reading judges can be like reading tea leaves. At times, it can feel like an exercise in futility, relying on guesswork and intuition. In trial, designed to be a one-way channel for information, receiving feedback can be difficult. Jurors and judges, in bench trials, after all, are supposed to merely soak up the evidence in order to make factual findings.

But from time to time, if an attorney pays enough attention, he or she can get a little necessary and potentially case-changing feedback. Just like any other person actively listening, judges and jurors give nonverbal cues. And those cues are valuable information that can be immensely important in trying to tailor attorney’s argument, what is being conveyed, and how that conveyance takes place.

On rare occasion, a juror will show position completely clearly. I once defended a civil matter in which the juror would look at the plaintiff, nodding and wearing a big Cheshire cat smile. Nothing could be done at that point, but had the juror been noticed and identified earlier, maybe she would not have been selected. Needless to say, that case did not end well for the defendants. In a criminal mater I defended, one morning before trial, as the jurors were trickling in, one looked over at my client and his wife, and smiled to herself. Later in that same trial, as my co-counsel delivered closing argument and began addressing the fact that a crucial witness was not called, a juror yelled out the name of the witness.

Most forms of juror communication are not that clear, but paying attention to that that nonverbal communication can be immensely helpful in determining what’s working and how a juror feels about a case. Consider trying to read jurors for how they feel about a witness or party in determining how examination or arguments should be conducted. Look for confusion to see if you should follow up on evidence or for nodding along at points in testimony to determine what arguments should be focused on in closing.

The same can be said about nonverbal cues from judges. A few weeks ago, in a bench trial in a jurisdiction I do not typically practice, the judge asked the state’s witness questions zeroing in on the primary issue making the prosecutors’ case difficult to prove beyond a reasonable doubt. I then moved for judgment of acquittal which was not granted. But I also advised my client about the right to either testify or elect not to do so. Following my advisement, my client indicated the intention to testify.

As my client made her election, I looked up as the judge made a very noticeable surprised face indicating “…at your own risk.”  I quickly requested it brief indulgence of the court to speak to my client and advised again, emphasizing my advice. Following the second advisement, my client decided not to testify. After closing arguments, my client was acquitted. Had I been looking at my client or anywhere else at the time, I may not have picked up on the judge’s very clear cue.  Along those lines, I have had many occasions in which a judge’s face indicate when an objection should be made and will be granted.

So much goes on the course of a trial, making it easy to get into all of the other things that are happening. Most of the time, save some questions from the court or the occasional juror note, an attorney has no idea for the judge or jurors are thinking. However, paying attention to the non-verbal cues of judges and jurors can give an attorney some upper hand. And that may just make the difference between winning and losing.

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