Pick a trial venue in the United States, grab the average citizen who shows up for jury duty and put them next to the average attorney: What will stand out most immediately are the differences. Comparing education, social class, linguistic ability, habits, and a bevy of other qualities, you might think you're looking at two different species. Those differences, combined with a broad cultural disparagement of lawyers, can invite a juror's perception that the lawyers in front of them in court are distant, arrogant, elitist, and condescending. To get past that, advocates need to break out of that constructed image of the "lawyer," and to instead cultivate an image of a "human being." We would like to think that this comes naturally, but the advice to "Just be yourself" can fall flat when there are so many real and perceived differences between the "yourself" and the "themselves."
As a result of this separation, attorneys should think carefully about the steps that might help to break down the barriers. Trial lawyers should make a conscious effort to humanize themselves in front of the jury. There is no formula or single magic-button approach to doing that, and any good advice in this area could be taken to the point where it seems forced or corny. But there are some effective habits that good trial lawyers should internalize and apply intelligently, but consistently, in order to present a more complete and human persona to the jury. Here are my thoughts on seven ways.
1. Reference (or Create) Your Common Ground
I've written before that the basis for communication and persuasion is a sense of identification -- the perception of salient common ground between speaker and audience. Mentioning shared experiences, circumstances, beliefs, and values builds a connection that is a strong basis for credibility. As long as litigators can find a moment where it feels relevant (oral voir dire time works well), you should share some personal information about yourself. Showing that the attorney has a life outside of the law and beyond this case can help to show that you are a person and not just "the lawyer." Sharing some of those humanizing details with the jurors also increases the chances of uncovering some similarities between you and your target audience.
2. Start With What They Already Believe
Successful persuaders don't build a position out of whole cloth and present it fully-formed to their audience. Instead, they're able to shift their audience's beliefs, usually subtly and over time, by grafting their preferred positions onto the existing views of their target audience. Researchers have found that even conspiracy theorists -- those with extreme and unverifiable theories about the world -- can be converted if the advocate consciously adapts and incorporates some of the assumptions that they're making. It's known as the rhetorical technique of the enthymeme: building a position by adapting a premise that your target already accepts. Building in phrases like, "You may think" or "We all know," helps to establish a human connection between you and your audience.
3. Tell a Story
In this blog, I've written a fair amount on stories, and there is a good reason for that focus: Stories are fundamental to the way we understand and are persuaded by new information. Particularly in a trial context, jurors want to develop their own version of what happened, and why, and with what consequences. The reason that the story model works is because a story uniquely binds speaker and audience. Probably dating back to the time when we as a species sat around a common fire pit every night, there is something essentially human about the storytelling setting. It binds both the teller and the listener in an common context, a shared universe of characters and a cohesive plot line. It engages, and that helps to build a human bridge between you and your audience.
4. Appeal to Common Values
Even in an age when differing values, attitudes and beliefs seem to form a wide chasm between individuals and groups, there are still, at an abstract level at least, some common values that bind us together. University of Virginia social psychologist Jonathan Haidt, for example, has been researching moral judgments over the past decade and a half, and has developed an extensive dataset documenting the existence of five common moral foundations that are widely shared across the political spectrum. By identifying and speaking to one or more of those core values as they relate to your case, you are tapping into the moral commitments that form the substructure of community. Reminding your audience that "I believe what you believe" is an effective way of referencing your common human conditions.
5. Don't Condescend
To many lawyers, adapting to jurors means "speaking their language." When that means removing legal jargon and communicating simply and directly, that's a good thing. But when it means speaking to jurors as if they were children, or as if they lack the basic ability to understand and evaluate what they hear, then it's a very bad thing. Litigators should definitely adapt, especially in language level, but should not risk conveying the impression that they have low expectations or a negative perception of their audience. Both in what you say and how you say it, communicate respect and trust, not contempt.
6. Use humor (But not Jokes)
The classic way of breaking the ice is to rely on a laugh or a smile, or maybe just a friendly expression. Humor can be an important shared emotion, a way to bridge differences. The trial lawyer, however, can't afford to look like they're not taking the process seriously, or not appreciating the time provided by the jurors and the court. Planned jokes are out. They risk looking too premeditated and they often fall flat. A line that would be funny at dinner or in a bar, won't necessarily play well in the tense and adversarial courtroom atmosphere. For that reason, rely on naturally occurring humor, not jokes. When circumstances provide you with an excuse, share a laugh or a smile with the jury.
7. Admit Error
Nothing says "I'm human" like admitting to a weakness. Particularly when it regards a problem that jurors are likely to hang on you anyway, offering an admission and apology where appropriate can be an effective way to surprise your jury and encourage them to rethink any assumptions they may have made about you or your client. Obviously, counsel needs to think carefully before offering either the reality or the appearance of a concession of liability. But give it serious thought: Research (see Boully, 2008) has shown that apologies, when they're sincere and complete, lead to more positive judgment and less motivation toward anger and punishment.