It’s All Connected


Next, the lawyer has to actually start jury selection. It is important for the trial to get off to a good start, and for this reason few lawyers rely purely on improvisation at this early stage. Most have a few phrases they have learned to trust, or an introductory framework they have polished over time. These tried-and-tested opening lines help the lawyer to sound proficient, experienced and, most importantly of all, supremely confident.

Confidence is contagious. If a lawyer is confident, the jury panel sense it immediately. They relax, because they can tell the lawyer knows what she is doing. They also feel confident they will enjoy her work. This makes for a very relaxed and supportive atmosphere, so the lawyer can relax and enjoy her work more. This expectation builds rapport between lawyer and panel, which helps the voir dire to go well. When the voir dire goes well, this further enhances the lawyer’s confidence, and so the circle goes round.

Lack of confidence is also contagious, and has precisely the opposite effect. The panel becomes tense (or bored) and anticipate having a rather disappointing time. This kills rapport, and the jury selection suffers accordingly. This undermines the lawyer’s confidence, so forming a vicious circle.

This is why confidence is vitally important to any kind of performance, including jury selection. Unfortunately, confidence is not to be had just for the wanting. It only comes with experience. But it does come, and brings many rewards.

True, right?

But it’s not just about trial. The quote is from The Full Facts Book of Cold Reading (read it—there’s much in it that is directly applicable to both jury selection and cross). I substituted “lawyer” for “psychic” and “jury selection” for “the reading.”

See also one of my favorite Zen stories, found on this page:

A young and rather boastful champion challenged a Zen master who was renowned for his skill as an archer. The young man demonstrated remarkable technical proficiency when he hit a distant bull’s eye on his first try, and then split that arrow with his second shot. “There,” he said to the old man, “see if you can match that!” Undisturbed, the master did not draw his bow, but rather motioned for the young archer to follow him up the mountain. Curious about the old fellow’s intentions, the champion followed him high into the mountain until they reached a deep chasm spanned by a rather flimsy and shaky log. Calmly stepping out onto the middle of the unsteady and certainly perilous bridge, the old master picked a faraway tree as a target, drew his bow, and fired a clean, direct hit. “Now it is your turn,” he said as he gracefully stepped back onto the safe ground. Staring with terror into the seemingly bottomless and beckoning abyss, the young man could not force himself to step out onto the log, no less shoot at a target. “You have much skill with your bow,” the master said, sensing his challenger’s predicament, “but you have little skill with the mind that lets loose the shot.”

When people ask me about the Trial Lawyers College, I tell them that I think it’s great training, but that many alumni screw up by viewing the TLC way as The Way, rather than a gateway to finding the style that works best for you. I also tell them that I see the attempts of TLC, Inc., the corporation that runs TLC to institutionalize TLC teachings as inimical to the truth, which is that once we can learn anywhere to try cases better. TLC, Inc. is Abercrombieing ((Abercrombie and Fitch, which used to outfit people for adventure travel, now sells softcore porn to gay teens.)) the Trial Lawyers College—preserving the purity of the name, but at the cost of the product.

So as well as the psychodrama of the Trial Lawyers College I have studied cold reading, and improv (did you know that J.L. Moreno, who invented psychodrama, had an improv theatre first?), and acting, and dog training, and martial arts, and a dozen other things, and found ways to incorporate them into my trial lawyering.

I’ve also proposed creating a criminal-defense skunkworks, so that other like-minded lawyers could explore diverse fields and report back to the group on their applicability to criminal defense, but the time (three years ago) was not right. I may resurrect the idea sometime, or if someone else wants to build the framework, I’m in.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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