Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

Next time you’re in a public place — an airport, a hotel lobby, a train, or a shopping mall — stop and take a moment to look around at the other people in the space. How many of them are staring down into their hand-held mobile phone? Most of them? And, before you stopped to look around, maybe you as well? There is a disconnect: We like our technology and the opportunities for instant information, entertainment and distraction that it brings, but at the same time, the sight of others with their eyes glued to their screens tends to generate negative thoughts. It’s another fundamental attribution error: When we use our tech, we are finding useful information, but when they use theirs, they’re tech-addicted zombies. Now, move that interaction into the courtroom. One special group in that setting, the jury, now doesn’t have phones. They’re either under strict instructions to never take them out, or they’ve been collected and left in the jury room. So what do those jurors think when they look over to counsel table to see lawyers and parties with their heads bowed toward their screen, or look into the gallery to see an upcoming expert witness tapping away with her thumbs? It’s a safe bet that they don’t like it, at all.

It’s called “phubbing” or “phone-snubbing,” and describes the feeling we get when someone else seems absent due to their attention to their phones. While much of the research on phubbing has focused on couples, (e.g., Roberts & David, 2016), a more recent study has looked at more formal settings (Roberts & David, 2017). Looking at what employees think when their boss checks a phone during interaction, the team from Baylor found that phone users are seen as less polite and attentive, and garnered lower levels of trust, and less confidence. The workers themselves were less likely to see the work as valuable when their boss was phubbing. The phenomenon has not been researched in court, but there are plenty of reasons to avoid it — the most important being that, if you can do it but jurors can’t, it’s a reminder of inequality. In this post, I’ll share a bit about the reasons and the solutions.

Don’t Give Yourself an Exemption

I’ve been in courtrooms where there is a large, usually red, sign at the entrance: No cell phones allowed. In those courtrooms, it is commonly understood, and sometimes explicitly stated, that this prohibition applies to jurors, but not to the often-large legal teams. And, particularly during jury selection when every member of your team is there, that power difference can be on display. The lawyers and those who assist them might reason, “Surely, they understand that we aren’t checking Facebook, and we have important correspondence we need to stay on top of.” Don’t count on it. What they see instead is someone who either isn’t following the rules (as they understand them) or who is abusing their privileged status. After all, in the rest of the world, what is the most common response when you see someone looking at their phone? That’s right, you want to look at your own. Only the jurors can’t do that, and that power gap emphasizes the barrier between you and them.

Use the ‘Out of Office’

If you’re going into court, leave your phone in your bag and set your account to “out of office.” Anecdotally, I’ve noticed that the “out of office” setting seems to be in decline, perhaps because attorneys, like doctors, feel like they need to be always reachable and because it is seen as increasingly easy to always be reachable. However, an active trial is a pretty good excuse to set all of that aside and focus just on the case and the jury.

Designate a ‘Communication Hub,’ Not at Counsel Table

If you truly need a point of contact, then designate a person on your team to be the ‘communication hub.’ They can be in the courtroom, or near the courthouse, but not at counsel table. If something urgently requires your attention (e.g., the witness you’re calling next has had his flight delayed), then they can come tell you. Being handed a paper note is still okay, and in fact makes you look more important than  looking at your phone.

Ultimately, the problem with phubbing, according to the research, is that it makes the phone user appear to be absent. It communicates that something outside the immediate situation and company is more important than the immediate situation and company. In trial, that never ought to be the case.

Other Posts on Courtroom Etiquette:


Roberts, J.A., David, M.E. (2017). Put down your phone and listen to me: How boss phubbing undermines the psychological conditions necessary for employee engagement. Computers in Human Behavior, 2017; 75: 206 DOI: 10.1016/j.chb.2017.05.021

Roberts, J. A., & David, M. E. (2016). My life has become a major distraction from my cell phone: Partner phubbing and relationship satisfaction among romantic partners. Computers in Human Behavior54, 134-141

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