In doing some Voir Dire Coaching sessions with young attorneys and dropping in on trials in my area, I have noticed that many attorneys lack confidence. With tort reform, consultants such as David Ball have come out strongly and suggested not appearing like an attorney – don’t dress in black, don’t be cocky, don’t advocate too early. I second all of that, but I fear that some attorneys are going a bit too far and appearing weak in an attempt to avoid seeming demanding and overly zealous.
There is a difference between appearing confident and appearing cocky. The former is good, the latter is bad. In my Voir Dire Coaching sessions, I recruit some mock jurors and allow attorneys to practice their voir dire while I interrupt and coach them along the way. At the end, I ask the mock jurors for feedback about the attorney: Did he/she seem like a greedy plaintiff’s attorney? Do you trust him/her? What could he/she do better? I have had a few jurors say the attorney didn’t seem confident. One juror stated, “I would follow her [meaning me] into a fire, but I wouldn’t follow you.” That says it all. You need to command the courtroom and be in control. Jurors need to trust you and believe you are competent so they can follow you. If you are following Carl Bettinger’s “Twelve Heroes” book, you know that you need to be their mentor. Mentors are strong, not weak. No one wants to follow someone who is uncertain.
When you conduct voir dire, be strong and confident, but also warm and humble. When you do opening, be clear and concise, but do not argue. When you introduce documents, be sure you know how to do so without stumbling. If you are new to litigation, consider focusing only on being like-able and confident instead of trying to follow David Ball, Carl Bettinger, Rick Friedman, and all the others. It may be too much and if you are overwhelmed, jurors will see it. You need to be their leader – calm, assertive, confident, like-able. Going “off-code” for an attorney, as Ball and Keenan would say, does not mean seeming inept or unsure of yourself. Jurors look to you for guidance. Be sure you can provide it.