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September 09, 2014

UPDATED: To jurors, do your associates and paralegals come off like creeps?

Jurors are not dumb. They miss little. They watch you and your team in the courtroom, the back of the courtroom, hallways, restrooms, parking lots, restaurants.

Update: A trial-lawyer and commenter just reminded us that wood-shedding is not soley for those smirking associates or nasty-ass paralegals who hate life. Plaintiffs, defendants, employees for both, fact witnesses and expert witnesses of parties need the same wood-shedding or cautionary harangue. In-house-counsel? No, generally not. But there is always a first time. See comments below. (4:10 pm EST Wednesday, September 10.)

Jurors will always surprise you. No matter what an expert might tell you, or how hard you've worked at selection, you are always wrong about two or three of them. You've heard that.

Creep Control. Well, now hear this: don't go out of your way to antagonize jurors with sideshows which have nothing to do with the trial itself. Bring no "creeps" with you to trial. Keep them in the office. If they must show up--even for a moment--teach them to "un-creep" themselves, starting at 60 second intervals, and practicing until they can hold out for five minutes at a stretch.

Hint: They pretend they are happy confident people who genuinely like other humans. Breathe in. Breathe out. Repeat. And remember, you seek progress--not perfection. Be gentle at first.

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Non-Creeps. Bring to trial no "non-creeps" capable of any snide, "mean" or creepy gesture, facial expression or body language glitch lasting more than one half-second. Instruct your non-creeps to read this post to be on the safe side. Reformed creeps--you spotted them early and sent them to rehab but they are ultimately powerless over they way they look or act--need pep talks, and brief courtroom appearances. See above.

Recovering Creeps Who Under Pressure of Trial May Relapse and Fold or Explode in Public.. See above

A Note on Nerds. In doses, however, a few generic dweebs and law weenies running in and out of the courtroom carrying a huge box of documents, a phone message from your wife about Nantucket later this summer with the Bloors, a good luck note from your mistress, your lucky bow-tie, your spats, your black cape with red lining, or your reserve pair of Bass Weejuns--the kind of people you routinely made fun of in high school--is okay.

Jurors expect all that. You're a lawyer. You live in a world where nerds are almost normal. Jurors get and tolerate that. But jurors just don't like self-important "assisting creeps".

That's really personal. Let us explain more.

Ten years ago, after a two-and-a-half week trial, we won a jury defense verdict in a breach of contract and fraud trial involving three established companies and a super-nail biter which no one could call.

Everyone had "bad" facts to deal with.

All counsel and most witnesses did a fine job.

An honest, fair, bright and even-tempered judge presided. So we interviewed some jurors right after the trial--and were told by all but one of them that they were seriously annoyed by some of the sneers, body language, guffaws and antics of the fire-breathing "let's kick some ass" associates and paralegals in the firms helping the plaintiff and the co-defendant in and out of the courtroom.

This seemed to happen a lot with two younger lawyers the same firm who sat together in the court room smirking and cockily approaching counsel's table bearing a note or message with an attitude that said: "take that" and "your sufferings will be legendary, chumps"--that kind of thing. Harmless macho stuff. But it hurt. Jurors noticed. In our interviews, some of the jurors used words like "creeps", "jerks" and worse to describe these people. The law firm's culprits were just over-jazzed, over-confident, over-macho and young (and they lost.) But their behavior, even subtle things, may have tipped the balance.

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Don't screw up hard work and a client's chances at trial with mean-spirited sideshows confirming what many jurors thought about many lawyers anyway. Jurors are watching you, your attending GC, client representative and/or your witnesses and your associates and paralegals like hawks: in and out of session, in the halls, in the back of the courtroom, restrooms, parking lots, restaurants. Very little is missed.

Whether or not you think your trial people (men or women) are capable of looking or acting like "creeps" and robots of war at any moment during the roller-coaster ride of a trial, explain to them in advance the importance of "maintaining" a demeanor which appears professional yet fair, friendly, amiable and genuinely good-hearted. Better yet, hire only those people to help you present your case to a jury.

Posted by JD Hull at September 9, 2014 11:59 PM

Comments

I try to remain impassive no matter how well (or not so well) things go in the courtroom, but opposing counsel in a 25 court day jury trial wasn't so disciplined.

Mid trial my clients' wives were in the ladies room and overheard three female jurors sharing a less than complimentary assessment of opposing counsel's personality, interruptions and speaking objections.

To exacerbate the effect, two of the defendants and opposing counsel's baby associate were chewed out by the court (after sending the jury out) for making strategic nods of the head when they thought a good point was made by one of their witnesses. The jury took note of this behavior as well.

I'd prefer to think that I worked harder than the other side (and I caught some lucky breaks during cross as well). But the verdict was in our favor, and the foreperson of the jury called me after the trial to "apologize that the verdict was so low". (The verdict was in excess of $1M in general damages to reputation and emotional distress at their wrongful criminal prosecution - more than I asked the jury to award.)

Posted by: Stephen Gianelli [TypeKey Profile Page] at September 10, 2014 01:36 PM

Thanks--and congratulations on your jury win, Stephen. And you make a great point I wish I had included in the post.

Plaintiffs, defendants, employees of parties and witnesses for parties need the same wood-shedding. It's not just unhappy rat-faced associates or paralegals that need a cautionary harangue. (In-house-counsel generally does not.)

You just refreshed my memory. Most of our trials last 2 weeks or more. In one an employee for the plaintiff--an attractive and self-assured female manager in her late 30s with no big role in the trial (or the facts underlying it)--attended for several days and for one reason or another was closely watched by jurors. In one case, visiting with the jury after the verdict, we heard one feisty female juror say of an attendee: "Man, I would really like to get a piece of her."

Posted by: Jdhull [TypeKey Profile Page] at September 10, 2014 03:45 PM

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