Being an effective trial lawyer requires that you build trust with the court, your adversary, and, especially, the jury. When you ask a jury to see the facts of a case, you aren’t just asking the jury to make a leap in logic. You are asking jurors to make a leap in trust—to see the facts of the case as you want the jury to see them.
Trust enables a set of truly extraordinary things every ordinary day. We jump into rolling hunks of steel and hurl ourselves, on parallel and intersecting paths with other rolling hunks of steel, down roads at high speeds. We put cups under running taps and drink what’s produced. We unwrap packages, open cans, twist bottle caps, and readily ingest what’s inside. We consume pills a person in a white jacket tells us to consume, pills that were produced in a factory we have not visited, and staffed by workers we have never met before. We summon strange people, in unknown cars, and ask them to take us somewhere. We give large sums of money to people who play with, and ideally grow, that money for us. We surrender our bodies to the incisions of surgeons. We leave our young ones with others who promise to love, educate, and care for them while we labor. We yield card numbers and funds to faceless others who promise products and services in return.
Certainly, some of these situations feel more extraordinary than others. Each situation, though, relies upon one thing: trust.
Trust is an essential social currency that makes an extraordinary set of everyday interactions possible—including in the courtroom. You cannot communicate the facts of your case effectively or invite a group of untrained, uncertain, uncomfortable, and unfamiliar strangers to see those facts the way you want those strangers to see them without trust.
The work of the courtroom may seem far removed from any of the above scenarios. But it isn’t. Lawyers ask for something extraordinary from a jury. It is a group of strangers who are called to cooperate in making high-stakes decisions in the context of tremendous uncertainty in an opaque and highly unfamiliar environment. And then you ask them to make determinations about responsibility under the law—to impose, or refuse to impose, liability and award, or decline to award damages. None of this is familiar to your juror. The very worst thing you can do, as a trial lawyer, is forget this key insight, or fail to think about it at all. What you, a trial lawyer, ask a jury to do is extraordinary. It isn’t a logic leap. It is a trust leap, in which jurors must rely heavily upon you to frame, structure, steer, and guide their decision-making under law—and trust you to do it.
What is trust? Author, Oxford University lecturer, and trust expert Rachel Botsman offers a compelling definition: “Trust is a confident relationship to the unknown.” According to Botsman, trust is the ingredient that converts anxiety into action in the context of uncertainty. Trust fuels risk-accepting behavior in the face of what isn’t, and ultimately cannot be, known. It facilitates vulnerability. It facilitates listening. It facilitates openness to ideas and ways of seeing that differ from our defaults. It facilitates confidence and comfort in risk. Trust involves a peculiar and powerful alchemy between cognition and emotion, and it is essential in the relationship you have with your jury.
An absence of trust has a destructive effect on the relationship between known and unknown. It produces anxiety. It justifies borders and boundaries. It pushes people back into the familiar. It enhances the effect of availability, anchoring, and confirmation biases. It sows doubt. It discredits what is said or done next.
How does a lawyer build trust with a jury?
First, know these things about trust:
1) You start at a deficit. You have zero credit to spend. You cannot bank on a misstep being registered or framed as a minor deviation. We know, from public opinion surveys, that lawyers do not enjoy presumptive credibility. According to the Pew Research Center, for example, just 23% of Americans surveyed said lawyers contribute “a lot” to societal well-being.[1] That percentage declined to 18% in Pew’s follow-up survey in 2013. Pew similarly found that 34% of respondents think lawyers contribute “nothing” or “not very much” to society’s well-being. A 2002 survey by the ABA[2] replicated these findings: Only 19% of respondents reporting feeling “extremely” or “very” confident in lawyers. This was above “the media” (16%) but below “Congress” (22%), “Judges” (33%), “the U.S. Justice System in General” (39%), and “Doctors” (50%). The fine print of the survey is equally revelatory. Respondents to the ABA survey agreed that lawyers seem “more interested in winning than in seeing justice is served” (74%), spend “too much time finding technicalities to get criminals released” (73%), are “more interested in making money than in serving their clients” (69%), and are “more concerned with their own self-promotion than with their client’s best interests” (57%). Only 26% of respondents, moreover, thought the legal profession “does a good job of disciplining lawyers.” It does not matter if these things are generally true of legal counsel, nor if they describe you, in particular. You, as an individual lawyer, bear the full cost and responsibility of facilitating decision-making among people who perceive these things to be true—about members of your profession, and about you.
2) Everything about you is experienced as a small bit of evidence that amounts to confirmation or disproof of the juror’s working hypothesis about you. In an unfamiliar situation marked by uncertainty and high-stakes decision-making, a reasonable juror will seek and use easy, everyday cues about how to feel and act.
3) Trust is won slowly and lost quickly. Trust is a powerful alchemy of cognition and emotion, and it amounts to a feeling of confidence in uncertainty. It is difficult to build, an ongoing project to maintain, and can be lost in a flash. It is as fragile as it is powerful and is never fully won.
4) Trust is a responsibility. It is a currency, in relationships, that allows you to get what you want, but it cannot be spent freely without parallel re-investment in the stock.
5) Trust is contextual but not fungible. The unique situation of the courtroom determines the outer limits of the kind of trust you can build. Previous successes do not carry over and lend credibility to a trust-building effort in a next case, before a different jury.
6) Your jury feels uncomfortable. Nothing about what you are asking them to do is familiar, and very few have practice in the skills the experience requires.
Second, do these things to build trustworthiness:
1) Acknowledge how the jury feels. You are speaking with a captive group of co-opted strangers who have been drawn into an opaque and unfamiliar performance theatre and charged with making authoritative decisions that shape other people’s lives. It is new. It is strange. They have no practice with it. Do more than thank the jury for its service. Acknowledge how extraordinary it is, and tell them what your job is and how you will guide them through it. It may be your hundredth breach of contract case. It is brand new to your jury.
2) Educate your jury. This (really) does not mean providing a detailed historical exegesis of a law’s origin, meaning, and application. It does mean sharing information that makes the experience less opaque to them. Demystify the work of the law. It is familiar to you but brand new to them. Who are you, and how do you understand your job and role that day? What does the process of law look like? What can they expect? What did they just hear? What are they being asked to do? What skills are they being asked to use? How are they likely to feel? What are they supposed to do with those feelings?
3) Mind your presence. Everything you do, from the moment you enter the courtroom, makes a case that…makes (or breaks) your case. The most important information we communicate is delivered nonverbally.[3] Allision Leotta, former federal prosecutor, is a wealth of critical advice: Connect with your jury. Engage in conversation with prospective jurors, and give them your full, undistracted attention during voir dire. Make eye contact. Bridge the physical distance between you and the jury. Make your resting face pleasant, present, and engaged. Stand tall, sit tall, and don’t cover your mouth when you speak. Bless a sneeze. Be nice—to everyone in the courtroom. Give an emotional witness time; be patient, and offer water or a tissue. Be ready with both.
4) Sharpen and focus your message. Get to the point, and make that point clear. Strain to avoid jargon; speak to the concept, instead. Memorize your main point; memorize it so well, and practice it so much, that you can communicate it naturally, and without reference to notes. Be able to state the claim of your case in just 30 seconds. Confidence and clarity facilitate trust.
5) Mind the excess. Trustworthiness is built, in part, on a projection of confidence. Confidence is Janus-faced, however: It can produce an excess of efficiency in which you forget to mind another’s experience of what is happening. It may be old-hat to you. Behave and speak as if it was brand new to your jury (because it is). Be patient, and explain and steer when needed.
6) Invest in the currency of trust. Trustworthiness, according to Botsman, is a product of four things: competence, reliability, empathy, and integrity. Do you have the skills, knowledge, and experience to carry the case (competency)? Are you consistent, constant, and dependable (reliability)? Can you demonstrate and build genuine connection that makes the jury see your care and investment in a case (empathy)? Do you model what you say (integrity)? Each of these things is built by proxy—a set of cues, indicators, and bits of evidence that signal, to the jury, whether to exhale into the uncertainty of the courtroom and be receptive to the claim you seek to make.
The content of your case matters, but remember the context in which the details of your case emerge. The context in which you’re attempting to build a relationship of trust is experienced, by your jury, as unfamiliar, intimidating, and opaque. Uncertainty is a natural, and inevitable, feature of the courtroom environment, and you cannot remove it. You can, however, manage uncertainty’s effects and give your jury permission to accept, and settle into, the vulnerability that uncertainty generates—and trust you to carry them through it.
At each step, from the moment you enter the courtroom, you build—to borrow from Botsman—a “credibility trail.” To make the best case for your trustworthiness, master more than the content of your case; mind the jury’s subjective experience of your case, and especially of you. Feed the jury a steady diet of small cues and bits of evidence that give the jury reason to trust you, and settle into the claims of your case.
[1] https://www.pewforum.org/2013/07/11/public-esteem-for-military-still-high/
[2] American Bar Association/Leo J. Shapiro & Associates, “Public Perceptions of Lawyers: Consumer Research Findings,” April 2002. Available at: https://www.americanbar.org/about_the_aba/profession_statistics/
[3] Leotta, Allison. “Motion Applied: Your body language during trial can be just as important as what you say,” ABA Journal (December 1, 2016).
