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Successful Courtroom Communication Techniques

By William S. Bailey

AN OVERVIEW OF THE MASS MEDIA'S INFLUENCE ON THE COURTROOM

Seventy years ago, Clarence Darrow could give an 8-hour closing argument and have the jury hanging on every word. This was due not only to his virtuoso performance, but also because his audience was largely unconditioned by the verbal and visual shorthand of film and television. However if Clarence was to give such a eloquent, 8-hour filibuster today, he would be in grave danger of being labeled as a gasbag or worse by a 1990's jury.

Like it or not, jurors view a trial on which they sit in real life with the same expectations as they view the trial on television at home. If the trial lawyer fails to match the production values and entertainment level that jurors have become accustomed to through the media, he/she will lose the jury. While jurors cannot change the channel of a real life courtroom scene, they can let their minds drift far, far away. Bored jurors do not often lead to a good result for the plaintiff.

Serving as an actual juror forever changed the way I communicate as a trial lawyer. As a juror, I was removed from the singleminded focus of a lawyer/participant, and saw courtroom communication from a spectator's eyes for the first time. It was only then that I realized the horrible truth: The traditional approach to trying cases is terribly boring for anyone who has come of age in the media dominated post Word War II era. Despite good lawyering on both sides of the case on which I sat as a juror, I became nearly narcoleptic, constantly fighting off the temptation to fall asleep. Why? The slow drip-drip-drip of information through the conventional means of courtroom communication was totally at odds with the rapid flow of information I was accustomed to seeing on television or in motion pictures.

For example, the pace of a traditional courtroom trial suffers badly by comparison to the standards of TV news production. The average TV news commentator takes only 1 minute 30 seconds to cover a story -- 30 seconds to set the stage, 30 seconds to tell the details and 30 seconds to wrap up. For most of this time, the viewer sees much more than just a talking head. The spoken words of the newscaster are accompanied by either a picture or diagram of the scene, often supplemented by a cutaway to a location shot. The ponderous ritual of trial is in stark contrast to the TV news, often taking an hour or more to express points that are no more complex than those which take 1-1/2 minutes on the average news program.

Why is this? The traditional trial process is a slavish ritual which has not yet graduated into the second half of the twentieth century. If Abraham Lincoln were transported by time machine from his heyday as a trial lawyer in the 1850's into a present day courtroom, he would not need any explanation on the process of a ìmodernî trial - the basic elements would be much the same as he knew them 140 years ago.