Criminal Law

Tips for winning body language in the courtroom

By Randy O'Donnell, Associate Editor

A courtroom is in part a stage and lawyers must realize they are among the players, Toronto criminal lawyer Jill Presser tells

Presser, principal of Presser Barristers, describes judges and juries as a litigator’s audience and says theatricality plays a role in persuading them.

“Juries are folks. They get bored. They will tune out if they aren’t entertained and engaged. They want to watch compelling counsel,” she says.

“When your audience is a judge, theatricality is less important but judges are also human beings, so if you want to persuade them, some element of entertainment is important.”

Presser, who recently presented at a Toronto Advocates' Society forum — "Winning Body Language for Litigators" — says, as an advocate, a lawyer must be persuasive whether they are appearing before a judge, a panel of judges, or judge and jury.

To do so, she suggests they should:

  • use accessible language
  • be conversational as much as possible
  • don’t be married to the script — be able to look up and connect with their trier
  • talk to and respond to them
  • make eye contact
  • use humour if possible but don’t force it
  • practise, record, listen and watch to ensure you are coming across as intended

“To speak well, be sure to vary your tone, pitch and speed. Listeners tune out when they hear the same thing again and again,” Presser says. “But if you change up the speed, you create interest. Increasing the speed can intensify the drama, slowing the speed can have listeners anticipating what will come next with greater interest.

“Change up the volume to underscore what you are saying — louder to show you are angry, quieter to make your listener lean in and pay closer attention.”

Confidence, conveyed through body language and facial expressions, is integral to commanding a courtroom, Presser says.

She suggests taking notes or placing hands on the desk in front of you to eliminate nervous actions. She also recommends taking an open stance, with hips and shoulders square to the podium or desk.

“Telegraph with your body and face that you have nothing to fear here, that everything in the trial is unfolding exactly as you have planned,” Presser says.

“I think in the opening address it is important to come across as sympathetic, as someone the jury will want to listen to and like. This is accomplished with open, friendly facial expressions — a subtle, composed smile to telegraph competent, confident kindness.”

Presser says it’s important to remember that jurors and judges are constantly watching and assessing your credibility and trustworthiness based on those observations. Stay in character all the time, she says, even when you aren’t speaking.

“Jurors and the judge will notice everything you do — when you enter the courtroom, when you are listening to the judge, when opposing counsel is on their feet.

“So you want to conduct yourself with respect and civility toward everyone in the courtroom at all times,” Presser says.

That includes clients. She recommends shaking their hands, making eye contact and consulting them.

“Never call your client ‘the accused.’ Always call them by their name. Never recoil, laugh, show fear or disrespect toward your client,” Presser says. “If you behave as if you like, believe and respect your client, your decision-maker is more likely to like and believe them.”

She says it’s critical to impress upon clients that courtroom behaviour and attire are critical, stressing that they be well-dressed and look respectable — slacks and a shirt with buttons, jacket and tie if possible, or slacks or skirt with a blouse.

“I’ll never forget the time in my early days as a defence lawyer when I told my client to ‘dress well’ for court. I was upset and disappointed when they arrived at court, and I said, ‘Hey I thought you were going to dress well for court?’ to which the client replied, ‘I did! This is my best AC/DC T-shirt.’”

While judges will be watching your body language, it’s also important that you observe theirs, Presser says. Make eye contact, engage the judge in conversation, and watch to see if your arguments resonate.

“Is the judge writing, looking down, appearing to be listening, frowning, looking confused, or frustrated?

“Be responsive to the judge — ensure the judge is with you. Ask nicely how you can help. ‘I see Your Honour’s shaking your head — can I please try to help with whatever’s troubling you?’”

It’s key that a litigator is prepared, should it be necessary to go off-script, Presser adds.

“Be ready to completely pitch the plan for your argument to be responsive to your judge.

“This doesn’t mean you have to back down — you can disagree with a judge or stand your ground, but do engage. Be civil and professional and support your argument when you are disagreeing or trying to persuade your judge to come around to see things your way with references to the record, the evidence, and the law,” she says.

There are times where you just cannot read the judge, Presser says. They’re not giving any facial or body language clues and not asking questions or taking notes.

In those instances, she will sometimes stop her submission and ask the judge if there is anything she can assist with or whether it would be more beneficial to the court for her to focus on a specific part of the argument.

“Even in judge-alone matters, we are there to persuade as advocates. While we tend to think of being less theatrical in front of judges alone than we do in front of juries, we still need to engage our judges in order to persuade them. We have to be entertaining and helpful, interesting, and informative,” Presser says.

“Where your judge is telegraphing that she or he is not engaged, is bored or even just passively waiting for your submissions to be over, this is a clear sign that it’s time for you as advocate to up the entertainment quotient in your presentation.”

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