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Sincerity fares better with juries than flashy gimmicks

Kansas City Business Journal - by Phil Glynn Contributing Writer

July 22, 2005

Lawyers occupy a special place in the American imagination.

People who have never seen the inside of a courtroom can think of all kinds of trial attorneys -- Gregory Peck's quiet sincerity in "To Kill a Mockingbird," Frederic March's blustering in "Inherit the Wind," Raymond Burr's cool certainty in "Perry Mason."

Lawyers are quick to note that courtrooms on screens big and small with their quick conclusions and tidy endings bear little resemblance to reality.

But the sheer range of attorney-hero characters does jibe with one fact of legal life: Juries respond well to a number of working styles, said Martin Meyers of The Meyers Law Firm LC.

"Credibility is connected to trustworthiness," he said. "It includes convincing the jury that you have a generally correct understanding of the world. This can exist in a number of personality types. There are people who are painfully shy who are actually pretty effective trial lawyers."

Judge Harold Lowenstein of the Missouri Court of Appeals agreed that the key to convincing a jury is based on solid personal appeal, rather than a particular style or gimmick.

"I think jurors really sense sincerity or a lack of it," he said.

In the early 1980s, attorneys used to joke that the hallmark of real trial lawyers was whether they could make a jury cry, said Edwin H. Smith, a judge on the Missouri Court of Appeals.

But with expanded discovery procedures and evidentiary rules, emotion alone doesn't cut it anymore.

"Now, they must be technicians of the law as well, not just orators," Smith said.

A trial lawyer's job, Meyers said, is to "faithfully reduce" a complex constellation of facts -- creating a situation to which jurors can apply common sense.

The danger here, he said, is to avoid patronizing an increasingly sophisticated jury pool.

Marshall Hennington of Los Angeles-based Hennington and Associates applies his understanding of human behavior to his firm's practice of trial and jury consulting.

A psychologist by training, he said an interesting facet of his work is assisting lawyers in the jury selection process.

"Everyone wants to control their own destiny," he said. "That's what this whole process is about: control."

Trial teams vie for control by striking jurors they think will be unfair. The process varies, but it basically consists of questioning potential jurors in ways that will unearth any potential biases.

In theory, the point of the process is to assemble a jury as free from prejudice as possible that will decide a case based on the merits of evidence and argument.

Meyers said one fact of modern culture makes this tough.

"People are tremendously more opinionated today than they were when I started doing this," he said.

He used an example to illustrate the point. In the run-up to the Iraq war, if one asked a group of people whether Iraq possessed weapons of mass destruction, the answer, in theory, should have been, "I don't know."

As a statement of fact, anyone without firsthand knowledge could not have answered otherwise. When people answered "yes" or "no," they were really stating their opinions.

That millions of Americans were participating in just such a conversation at that time is evidence, he said, of how opinionated the United States has become.

The more opinionated a person is, Meyers said, the less likely he or she is to be persuaded. That Americans are opinionated on a range of social issues presents problems to the lawyer seeking a truly impartial juror.

Hennington said another challenge in choosing jurors is looking past demographic characteristics to peer into the mind.

Meyers said one of the changes of the past 20 years is that demographic characteristics do not offer the kind of insight into people's potential reactions they used to.

"Basically, when the culture was much more stable, society was much less mobile, and families were much more cohesive, to a degree there was an insularity. That provided some degree of predictability," he said. "That's of almost no value today."

On top of all the psychological and tactical challenges of dealing with a jury is the simple fact that jury duty is a notoriously unpopular pastime.

Legal professionals agree, however, that if lawyers do their jobs well, they can at least make jurors feel as though their time was spent in service to society.

This complicated dynamic is what makes the practice of trial law fascinating enough to capture the public imagination. But perhaps it is not the flair of the lawyers as much as the inherent attraction of the system, Lowenstein said.

"There is something magical about getting 12 people together, a cross section of the community, to solve a problem," he said.

Phil Glynn | Glynn is a freelance writer in the Kansas City area.

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