Chapter 15

• Jurisdiction: United States

Chapter 15 Trust Me, I'm a Trial Lawyer

Is a trial lawyer's advocacy affected by whether the jurors trust or distrust what they are hearing? And if trust or distrust are major factors in the jurors' decision process, what can trial lawyers do to increase trust and decrease distrust?

There is an entire academic field devoted to the study of trust. And those who study it are called "trust scholars." This confluence of disciplines includes psychologists, sociologists, and organizational management scientists.¹ It does not require citation of psychological data to prove the notion that a person who is not trustworthy will not be believed. In fact, the word trustworthy is self-defining. But in a trial, what are the factors that create trust or distrust, and to what extent can a trial lawyer influence these factors? The answer to those questions may be found in the psychological data.

Public Perception of Lawyers

The National Academy of Sciences conducted a study whose purpose was to learn the level of trust accorded scientists who tried to explain scientific subjects like climate change. In order to gauge the trust accorded scientists, the study measured where they ranked in relationship to other occupations, including attorneys. The study tested two criteria of trustworthiness: capability (competence) and perceived intent for good (warmth).² Although the resulting data was applied to scientists, the same data can be applied to trial lawyers. Lawyers rated high in the public's perception of competence, but low in warmth. In other words, lawyers are respected for their knowledge and ability, but viewed as cold and as having questionable motives.

Gallup polling indicates that 71 percent of the public perceives lawyer honesty and ethics in the "average" to "very high" range. Is that good news? Framed differently, 29 percent view lawyers' honesty and ethics in the "low" to "very low" range.³ Although 71 percent is better than telemarketers and car salesmen, it is far below the other "learned" professions. Parsed differently, the poll found that only 22 percent believed that lawyers rated "high" to "very high" in honesty and ethics. So, the bad news is that the majority of jurors will be ambivalent about trial lawyers, and more will view us negatively rather than positively. Add to those statistics the general skepticism of all jurors at the beginning of a case. Therefore, because trial lawyers need jurors to believe, and not disbelieve, their advocacy, the challenge is to create trust.

To understand what might engender trust or distrust in a trial attorney, a good place to start is to understand trust in general. Trust scholars have found evidence that trust has both a biological and genetic basis with elements of personality, psychopharmacology, physiology, and neuroanatomy. Distrust, on the other hand, seems to be the result of early life social factors, such as parental violence, schoolyard bullying, and deception by peers. But the extent to which parents instill optimism or teach their children to be suspicious of others will affect both the ability to trust or inclination to distrust.⁴ In other words, the biological or social factors affecting juror trust or distrust are well in place when jurors are seated. That does not mean that trial lawyers can't engender trust and minimize distrust. But it does mean that trial lawyers need to have a further understanding of these phenomena.

Perceptions and Attitudes

Communicator credibility requires a perception of both expertise and trustworthiness. As viewed by others, someone with expertise has both knowledge and the ability to be accurate. But trustworthiness is closely tied to preexisting attitudes. An attitude is a frame of reference based on past experience, beliefs, and feelings. As such, attitudes affect the evaluation of words, events, and people.⁵

Attitudes provide mental shortcuts for situations requiring a quick decision and form the so-called gut reaction. This is often the basis of stereotyping new people. The trigger for an attitude, and the ultimate decision to trust, is perception.

Perception is an interpretation of words or events. It is the product of evolutionary factors as well as memory and experience. You have no control over a juror's process of perception, but you do have the ability to affect what is perceived. So, the starting point is to be acutely aware of how jurors are perceiving you. Before you speak one word, you are on display. When jurors enter the courtroom, they are in an unfamiliar environment. Their freedom of movement is limited. They can't leave to use the restroom without permission. They aren't allowed to email, text, or look up information on the internet. The courtroom has been described as "a temple of mysteries whose ceremonies are dark, complex and unfathomable. Pretrial procedures are the cabalistic rituals of the lawyers and judges who serve as priests and high priests." (Daley v. Butte County, 227 Cal. App. 2d 380, 392, 38 Cal. Rptr. 693, 701, (1964)). Like their distant ancestors who relied on heightened senses to survive, the jurors' senses are on high alert. They are searching for cues that will allow them to understand their surroundings and the players in this drama. And they will be looking at you.

First Impressions

There is a saying, "You have only one chance to make a first impression." It applies here. Surveys of jurors have disclosed how juror perceptions of lawyers are formed, including rapport, competence, speaking ability, and annoying habits.⁶ Is the attorney friendly, warm, and courteous? Organized and intelligent? Able to...