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NOVEMBER 2013 - Cohen
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Communication and Trial Practice Tips for the Woman Lawyer

Excuse My Back

by Cynthia R. Cohen, Ph.D., Verdict Success LLC

Appearing confident, yet humble to strangers on Day 1 of jury selection, takes considerable balance. Voir dire is more conversational than the basic Q&A with witnesses. There is an art to revealing jurors’ biases. Establish rapport and get more information from them with a few simple communication techniques.

"Excuse My Back.” In developing rapport during voir dire, remember many jurors are behind the bar as you address the jurors seated in and along the jury box. A simple statement like "excuse my back” as you position yourself in front of the podium connects you to the very jurors who are next seated in the jury box. This simple technique establishes that every juror is important to you and your client.

Vary Your Style. Other techniques include varying your communication style. After asking a question, listening gives the juror a chance to respond and talk about the issues. If you respectfully allow time, you hear below surface responses. Waiting five seconds for a juror’s response may seem interminable, but in the long run allowing the juror to speak and discovering cause issues may save a costly mistrial or undesirable verdict.

Paraphrase Responses. Reflections encourage more revealing responses. Repeating or paraphrasing the jurors’ answers make them feel heard. Sometimes paraphrasing goes too far and becomes an interpretation. An attempt to paraphrase a juror’s comment with a theme such as, "You believe that tort reform will save all of us money,” may backfire. If the interpretation misses the mark, the juror may correct with another response, "No I believe that tort reform will save doctors and hospitals money, but it won’t reduce our healthcare costs.” If the interpretation was accurate, the juror may think the questioner is brilliant and agree or offer more information.

Avoid Giving Jurors Advice. Giving advice tends to make people clam up when they don’t feel you are an authority on the subject or their life. Telling a juror, "You should not feel bad about holding Company X responsible” may diminish the juror’s motivation to vocalize true feelings about prior experiences. Avoid using "should”. (That’s good advice.)

Conclusions. Communication is an art. Being quick on your feet is a trademark of a great trial lawyer. Stick with your style, while refining communication skills.

WLALA Member Cynthia Cohen specializes in jury research, trial strategies, and settlement decision-making at Verdict Success. Dr. Cohen can be reached at 310-545-7914 or