“Beware of the Smiling Juror,” warns Melissa Gomez, a jury consultant blogging on The Legal Intelligencer website last week. Ms. Gomez points out, quite accurately, that trying to read jurors’ body language and other non-verbal cues is both “fruitless and tiring.” With regard to the smiling juror, she warns, we don’t know whether that person is grinning because he likes what we are saying, or because he can’t wait to stick it to us when jury deliberations begin.
Most disturbing about a trial lawyer trying to read jurors’ facial cues and body language is the potential it has to distract the lawyer from what’s most important: presenting one’s case as clearly, cleanly and fully as possible. Every time you look over to see if your jurors are nodding along with your argument, you run the risk of being thrown off course.
Rather than attempt to read facial cues, focus on getting to know your jurors before the action begins. Get the jury list in advance of trial. By reviewing the list, you can learn about the types of people you might find on your jury. You may observe, for example, that many of those on the list are retired farmers, or nurses, or teachers, as opposed to businesspeople. Read the questionnaires that many jurisdictions have jurors complete. Research your jurors online. All this knowledge will help you ultimately tailor your argument to your listeners. Be vigilant about using voir dire to “unpick” the potential jurors most likely to side against your client.
Jury consultants can help at many stages of the process. Not only can they assist in suggesting the best way to present evidence to the jury, but they can also help select jurors that are likely to be most receptive to your arguments. Once trial begins, you should have enough confidence in your preparation that you shouldn’t be thrown off by a juror’s crossed arms or unexpectedly sheepish expression.
That said, don’t ignore your jurors’ non-verbal cues completely, especially when their demeanor changes dramatically from one day to the next. In November 2010, I blogged about a case in which the defense noticed a juror’s sudden change in demeanor. The defense went back and did further investigation into this juror’s background. In doing so, the defense found she had much to hide and asked the judge to remove her from the trial. The judge did so, and, in the end, the defense won the case.
Still, proper research is a better bet overall than trying to figure out what that juror’s smile, smirk or grimace signifies. It may just mean that he had a lousy breakfast.