Source of article The Advantage Blog - Tsongas Litigation Consulting.
It’s not about what you say, but how you say it. Confidence is king. Fake it ‘til you make it. Across all arenas, confidence leads to more opportunities and credibility amongst peers. The courtroom is no exception, and confidence impacts jurors, witnesses, and attorneys within this context.
Researchers have long been interested in leadership characteristics within jury deliberations. One fascinating study looked at which jurors were most likely to change their minds during deliberations. One would expect (or at least hope) to find that those with the most accurate memory would be least likely to change their minds, but that is not what the research showed. Researchers instead found that jurors with the most confidence in their memory were most wedded to their beliefs, and were therefore least likely to change their minds. Those with the least confidence in their memory (regardless of accuracy) were more likely to change their minds. We see this play out in mock juror deliberations all the time. The person who expresses their memory adamantly changes more minds, even if the facts and evidence are misremembered. A less confident person may gently try to correct, but if they themselves don’t even trust their recollection, it will be hard to convince others of their stance.
Whether it is fact or expert witnesses, it comes as no surprise that confidence impacts witness credibility and persuasive power as well. The higher their portrayed confidence, the more persuasive they will be to jurors. However, there is a fine line between confidence and cockiness, one that jurors watch closely. Sounding flippant is a sure way to turn off a jury. In a recent witness preparation session, I dealt with this issue. The surgeon was incredibly intelligent, but also somewhat disinterested and came across as glib. Although a sensitive thing to point out, it had to be done before jurors disregarded his testimony because he was unlikable.
Confidence, of course, also applies to the attorneys presenting the case. A major part of confidence is experience. For well-seasoned attorneys who have presented many times in court, this may be less of a consideration. But for new associates who are before a jury for the first time, practice and preparation are key. Newer associates typically also have fewer opportunities to stand in front of a jury and make mistakes. The stakes are too high, and fewer cases make their way through to the trial phase. Mock trials are an excellent way for associates to get speaking experience. Have them take a smaller role, present damages, or argue one side of the case. Alternatively, involve associates in witness preparation sessions where they can practice direct or cross examination with little or no repercussions. This will help them to learn to think on their toes when answers are not always what they expect. It will also help them to build their confidence before they appear in front of a jury.
As is often the case, confidence is key for all parties involved in trial. Working to increase confidence (but not too much) will increase the persuasiveness of the message.