Effective Non-Verbal Skills Can be Learned
Are good experts born, or can they be trained? The skills that expert witnesses have to bring with them into the courtroom are just as sophisticated and subtle as those of the best litigators, and just as difficult to execute. For instance, good experts must appear self-confident – but not arrogant. Polite – but not obsequious. Well dressed – but not too flashy or slick.
They need to speak directly to the point – no waffling – without sounding blunt. Good experts can communicate to the jurors that they believe in their case, that they are sincere, without being perceived as an advocate. And while these experts must project an aura of objectivity and lack of bias, at the same time, they have to successfully convince the jurors that their interpretation is the right one.
Experts need to boil down complicated, esoteric material into easily understandable pieces of information that make sense to a lay audience, without appearing patronizing.
The good expert witness comes into the courtroom prepared – very well prepared – having anticipated and practiced answering the opposition’s challenges. Yet under cross-examination, he/she will want to appear spontaneous and unrehearsed.
Good experts are good performers, without being theatrical. They keep an eagle’s eye on their jurors – checking out the level of interest, noting which juror is asleep, which is bored. The worst time for experts to testify is after lunch, between the hours of 1:30 and 3:00. So during that time, they have to be especially innovative – talk louder, show an interesting prop or exhibit or get out of the witness chair and address the jurors directly (with the judge’s permission, of course.) All the while, these tasks must be carried out maintaining a demeanor of “relaxed excellence,” an attitude which communicates control, leadership and power.
So, is it possible to learn the skills involved in communicating these subtle nuances? Or do you have to be born with a special sensitivity and natural talent? As complicated a job as it is, being a good expert witness can be learned. And most of the learning has to do with making the nonverbal language – which is spoken on an unconscious level – conscious. By bringing the silent, subtle messages that are communicated nonverbally to light, and examining them through the lens of reason, one can gain control over that language and begin to use it in an intelligent, purposeful way.
The nonverbal language is powerful; more powerful than the verbal because it is the primal language of feelings. Most of the attributes of a good expert witness are nonverbal attributes, i.e., self-confidence, politeness, sincerity, preparedness, awareness, relaxed excellence. These are nonverbal attributes because they are based on other people’s perceptions of a person, rather than what the person says about himself. For instance, an expert can declare to the jury that he is credible, but that declaration does not make him credible. The jurors make an expert credible; their perceptions determine who is or is not credible.
This article will outline five nonverbal attitudes which hold the key to an expert’s persuasiveness in the courtroom. They constitute the basic vocabulary of nonverbal communication, and provide tools to use in communicating successfully with jurors.
1. Show an Open Posture to the Jurors
The first ingredient of a winning courtroom style is to show an open physical attitude, which illustrates an open psychological attitude. The jurors’ perceptions of an expert’s honesty, sincerity, self-confidence and leadership is formed by how open or closed the expert presents herself to them. The expert who exhibits an open attitude will elicit openness from the jurors; the expert who closes off from the jurors will see the same posture mirrored back from them. The following gestures communicate an open, honest, cooperative attitude:
Keep the abdomen open
People have a natural urge to cover up their abdomen, especially when under stress. Man’s soft, vital organs are located in this part of the body, so when the abdomen is exposed, people feel unprotected and vulnerable. One sees this behavior in the courtroom when witnesses fold their arms over their chest, wear vests and buttoned jackets, hold papers in front of them and generally try to cover up the front of their body. These obstructions, however, close them off from the jurors and create a psychological distance.
Sequestered in their chair behind the bar, experts are closed off from jurors, so they need to make a special effort to keep open. They will want to put their arms on the arm of the chair, instead of folded over their chest or in their laps; unbutton their suit jacket; and avoid stacking papers and/or books in front of them. Keeping an open abdomen is a courageous, receptive posture reflecting self-confidence and sincerity.
Show one’s hand
Some people approach life like a poker game: cautious, leery and holding their hands close to their chest so no one can see what’s up their sleeve. This attitude may be appropriate in some places, but not inside the courtroom.
Experts want to keep their hands visible, indicating that they come before the jurors hiding nothing. Let go of a balled fist and show an open palm. The open palm is an especially appropriate expression of cooperation; people use this gesture when they greet each other, shake hands, and ask for understanding. When addressing jurors, experts will want to use the open palm as an expression of their good will.
Address the jurors ‘heart to heart’
A third visual sign of a cooperative attitude is body orientation. A frontal orientation, where people face each other squarely, communicates interest in the interaction and a willingness to interact ‘heart to heart.’ A sideways orientation, when people literally “turn a cold shoulder” to others, indicates indifference or disinterest. And finally, when people leave the interaction, they literally “turn their back” on it, communicating their lack of interest in the other person.
Experts need to communicate clearly that they are involved in the courtroom interactions, so they will want to go out of their way to give a frontal orientation to those who address them. For instance, when addressed by the judge, it is preferable to actually turn in the chair in order to give a frontal orientation to answer the judge, instead of simply turning one’s head. When attorney clients address their experts, the experts will want to give the same frontal orientation. And even with opposing counsel, a frontal orientation is desirable because it communicates a sense of fairness and cooperation in seeking justice.
When addressing jurors, it is especially important for experts to turn in their chairs and meet the jurors ‘heart to heart.’ But this raises an interesting question: when should experts address the jury and when should they address the attorney who is asking the questions? Jurors are the more important audience, without doubt. On the other hand, experts can be perceived as rude if they ignore the person who is talking to them – i.e., friendly counsel.
This problem can be addressed by the attorney instructing his expert to “tell the jurors” the answer. Once the attorney gives the expert permission to answer to the jurors – then the expert has a justification for turning away from the attorney. This verbal prompt also establishes a pattern of behavior, so even when counsel does not give the expert the prompt, she can still turn to the jurors with her answers.
Show a relaxed demeanor
The fourth sign of an open posture is lack of muscle tension. According to the research, power is perceived as expansive, casual and relaxed. Being relaxed communicates self-confidence and control. When the jurors look at an expert, they want to see self-assurance; after all, they depend on the expert to take them through the testimony so they can understand it. If the expert looks worried, he doesn’t inspire confidence in the jurors that they are in good hands. So ‘relaxed excellence’ is the key to one’s authority in the courtroom.
People unconsciously hold a great deal of tension in their face – the forehead, eyebrow, mouth, chin, jaw – as well as shoulders, hands and feet. Holding onto tension shuts out other people, because one’s energy is being used to hold onto the tension instead of reaching out to touch someone else.
Before experts take the witness stand, therefore, they are well advised to get the tension out of their face and body. Shaking the head, arms and legs, as well as alternately tensing and relaxing those parts of the body where the muscles are contracted is a good way to release pent-up energy. Then one is ready to meet the jurors feeling confident, in control and at ease.
2. Keep in Visual Control
Eye contact is the most powerful communication tool an expert can bring with her in the courtroom. Nonverbal communication around “looking gestures,” is particularly significant and often identifies the status one has in the courtroom. So learning the rules of the game is important.
Maintain steady eye contact
…With Opposing Counsel
Maintaining steady eye contact keeps one in control of the interaction and is especially important for experts. When opposing counsel is glaring at the witness, trying to intimidate her – using his eyes as a weapon – it is vital that she respond with a steady gaze. As soon as she looks away, she has lost control of the interaction and assumed a submissive posture, because she can no long see what counsel might be up to. She becomes the “observed” one – which is a vulnerable posture – instead of the one observing. Experts want to return eye contact when being observed.
When an expert has to look at documents or study evidence, she will naturally lose the contact, putting opposing counsel in visual control. To compensate for losing eye control, she will want to turn the interaction into one where she makes opposing counsel wait for her.
Making someone wait is a political act. The person who has to wait is the submissive one; the one who other people wait for, or wait on, is the powerful one. Instead of hurrying through the documents in order ‘not to keep counsel waiting,’ the expert witness will want to do just the opposite, i.e., take her good time in going through the papers, until counsel begins to get impatient with ‘having to wait.’ By making him wait, she is asserting her authority in the courtroom. The caveat here is that she will not want to take too long, because the jurors are waiting for her, as well.
…With Friendly Counsel
Giving eye contact not only keeps one in control, but is a nice gesture. Giving visual attention is the nonverbal way of saying: “I think you are important and worth listening to.” So in giving eye contact, one is giving that person credibility. When counsel gives his expert visual attention, counsel is passing his credibility onto that expert by saying, “You have something important to say.” And when the expert returns that contact, he is returning the mutual respect.
The visual connection establishes the psychological connection. The expert and his counsel are a team in the courtroom, and it is important to present a united front. Experts should give counsel their visual attention when counsel is talking to them and never look away, or at notes, or at the judge, or jurors. This establishes respect between the expert and his attorney.
Experts can enhance an attorney’s authority in the courtroom, as well, by “looking to” him for guidance, leadership, answers. When opposing counsel objects during examination, for instance, an expert can give authority to counsel by looking to him for guidance. Even if the expert understands from the judge’s answer how to proceed, by looking to counsel that split second and allowing counsel to direct her, she is communicating that counsel is indeed the leader of the team and she will follow his advice. In the end, adding credibility to counsel will enhance the expert’s credibility.
Rehearse the rough spots
When people do not know how to answer a question, their first nonverbal response is to drop their eyes while they think of something appropriate to say. In that split second, when they lose eye contact, they lose their credibility. When an expert witness drops her eyes, opposing counsel will pick up the hesitation like a hound picks up a scent, and nail her to the wall with it. Losing the visual control is a certain sign of losing psychological control. If an expert has been maintaining good eye contact, and then suddenly loses it at a particular point in her testimony, counsel will know that is the area to probe.
Experts will want to rehearse the answers to those questions which make them feel uneasy, so they can deliver their responses with a steady eye contact. Steadiness is the key here. The worse possible reaction when under assault is to flinch, which indicates that the blow has struck. Instead of allowing the verbal attack to hit its target, the expert witness will want to respond by maintaining a steady gaze, without a moment’s hint of vulnerability, while silently thinking of a good answer. As long as the expert can maintain her steady eye contact, opposing counsel will never guess her weaknesses or vulnerabilities, and neither will the jurors.
Win jurors, not arguments
When an expert is able to keep steady eye contact under pressure, the jurors see her as unfaltering. When she maintains visual contact with opposing counsel generally, showing respect to the opposition, they see her as a fair and cooperative witness, ready to listen and answer the questions honestly, in the pursuit of truth. The jurors’ perceptions of an expert is the key to an expert’s success. More than winning arguments, experts need to win jurors.
Jurors are not experts and quite often do not understand an expert’s complicated testimony. Rather, the expert’s powers of persuasion on the stand come from winning the jurors’ faith in her as an expert. When the experts cannot agree on the “truth,” how can one expect the jurors to know it? The only recourse jurors have is to choose the witness they find most credible, trustworthy and likable. That person becomes the one they rely on to help them find the answers; that is the one they accept as having more knowledge, experience and background than her opponents. Jurors generally vote on people, more than on the complicated evidence.
3. Maintain a Balanced Stance
The further away from the face one goes, the more the body leaks its true feelings. People can generally control facial expressions and put on facades to fool people – i.e., the fakey smile, nervous laugh, toothy grin. But the human is not so aware of his hands, and will often reveal a nervousness by unconsciously fidgeting with fingers, rubbing palms, picking nails.
But rarely is one aware of the feet and what they are doing. So when one wants to know what is going on in someone’s head, the smartest thing to do is look at his feet. They are so far removed from the brain physically, that they are easily forgotten. Meanwhile, the feet are “spilling the beans,” if only people knew how to translate the message.
Keep your feet steady
Very often, the feet express the nervous tension that is not getting out through the mouth and hands. Foot tapping, leg swinging and toe thumping are common ways nervous energy comes out in the feet.
Other ways the feet leak: When one is not ready to move, his feet will stay up in the air; when he doesn’t know what direction to move in, one foot will point one way and the other will point in the other direction; when his head is going around in circles, his foot will make circular patterns in the air.
When testifying in the courtroom – even though jurors cannot see an expert’s feet – the expert will want to plant them firmly on the floor. This will keep him grounded and communicate to the jurors that this expert is steady, reliable and ‘has his feet on the ground.’ An expert’s demeanor should communicate strength of conviction, not easily caught off balance. When an expert has both feet are on the ground, opposing counsel cannot ‘push him over’ easily, or make him lose his balance.
Sitting with legs folded might be comfortable, but it communicates a hesitancy, lack of balance and inability to act. When an expert sits with one foot in the air, he does not communicate the same steadiness that two feet on the ground communicates.
In addition, an expert will want to point his feet in one direction, to feel more directed. Keep them still , to still his mind. And keep the weight evenly distributed on both feet, to make him feel more level headed.
Experts will want to avoid shifting around in their seats, with their weight moving from side to side. Shifting makes one look shifty. Indeed, people shift around physically when they do not feel on solid ground intellectually. So keeping the feet on the floor, with the weight balanced, is an important stance for experts.
4. Control Your Leanings
Too much advocacy is death for an expert witness. Rather, an expert has to maintain that fine line between projecting herself as 100% objective in the way she analyzed the data, but 100% an advocate in the conclusions she reached. This is a difficult balance to maintain. Too much objectivity, and an expert looses her impact; too much advocacy, and an expert looses her credibility.
How to maintain that balance? Here, again, using one’s nonverbal communication on a conscious level can underline and add emphasis to the verbal message. The direction one leans in communicates one’s leanings. Leaning forward communicates advocacy; leaning backwards communicates lack of interest and an upright posture communicates neutrality. By being aware of the direction in which one leans, one can communicate the intended message at the correct time.
Lean forward when presenting
When advocating their results, successful expert witnesses reach out to their audience by leaning forward, talking at a steady, sure pace and using gestures to communicate their message more emphatically. Jurors perceive these gestures to mean the expert is self-assured and engaged in the case.
Keep out of retreat
The witness who leans back in his chair, or wraps his feet around the legs of the chair, or holds his voice back – speaking slowly, softly and ponderously – imprisons the body’s energy and keeps it from reaching the jurors. This kind of witness communicates reserve, skepticism and passivity. These kinds of postures communicate psychological retreat: aloofness and arrogance. These are the kind of experts who put jurors to sleep.
Listen in neutral
An upright posture, where the energy does not move one way or the other, is a neutral position. The head sits straight, the body sits straight and the hands rest at the side. The overall attitude is one of disinterest.
Neutrality is a powerful posture in the courtroom, but difficult to maintain for anyone who has “leanings” one way or the other. The body will want to express its feelings, and to restrain that natural reaction demands a concentrated effort. For example, judges try to stay objective and neutral, but even they give away their biases by the direction they lean in.
However difficult this posture might be to maintain, objectivity and neutrality is the attitude experts will want to assume when explaining the process they used to come to their conclusions. It might not seem difficult to maintain a neutral posture when discussing a scientific methodology; on the other hand, even though the process might be scientifically objective, the expert chose the procedures and naturally supports her own work. But the effort is worth the trouble, because the physical attitude supports the verbal message and gives more credibility to the expert.
In summary, experts will want to lean slightly forward when answering questions and engaging in the interaction; stay in neutral when explaining procedures, listening and communicating neutrality; and stay back when expressing hesitation and lack of involvement.
5. Take Up Personal Space
An important ingredient of a winning professional style in the courtroom is to project self-confidence. Self-confidence is communicated by the way a person uses his personal space. The more space a person takes up, the more important people perceive him to be. The more important people perceive him to be, the more space they give him. The expert who commands a large presence in the courtroom is the expert who has the authority.
Expand your gestures
The first imperative in expanding personal space is to broaden one’s gestures. Self-confident people make broader gestures. One way to ‘spread out and take up space’ is to create space between the arms and the torso – much like a bird spreading its wings. Instead of the arms being glued to the torso when gesturing, the expert will want to free his arms, so that he can reach out and take up the space around him. The whole picture of someone becomes more interesting as it expands and moves in interesting ways. So by making this little adjustment, an expert can change the jurors’ perceptions of him markedly – from a dull, but competent, academic to an interesting, competent academic.
A second way to take up personal space is to avoid any kind of self-touching. Self-confident people reach out and touch others; they do not imprison their energy by keeping it contained within their own body. So experts will want to avoid holding onto themselves; even holding one’s hands in the lap is to be avoided. And expert witnesses will want to avoid holding onto things – like papers, calculators and pencils.
The best place for the hands is on the arm of the chair, or if there is no arm, then on the lap – but not touching. And when it is necessary to look at papers or use a calculator, the expert will want to put the papers, pencils down after he is finished using them. And when standing, the same imperative holds true: experts should avoid any kind of self-touching, i.e., holding hands – either behind or in front of the body, putting them in a pocket, holding onto pointers, pens, etc.
Claim your territory
The second imperative is to claim the physical space in the courtroom. As long as witnesses are sitting in the witness chair, their space is limited to a small area. As soon as they leave the chair and walk down to the floor of the courtroom — to draw something on a flip chart, explain a chart, work with a prop – they expand their space and increase their importance. Experts will want to arrange with the attorney, therefore, to be called to the floor, which motivates their leaving the witness stand. Or if the attorney fails to bring his witness to the floor, then the expert himself will want to ask the judge if he may approach the jurors in order to demonstrate a point, or explain an important concept.
The important point is to move around in the courtroom. The more territory an expert can claim, the more importance the jurors will give him.
Guard against opposing counsel’s aggressiveness
Experts need to guard their personal space carefully. Opposing counsel might try to invade it by approaching too closely, pointing, interrupting, talking loudly, looking down at, or staring. The professional expert will be conscious of these kinds of nonverbal assaults and meet them forcefully.
Since experts are glued to the witness stand under cross-examination, their responses are limited – but nevertheless, available. If opposing counsel points, stares, yells or looks down at an expert witness, the appropriate response is to look away – not down, not up, not at friendly counsel or the judge – but sideways, away from the assault. A sideways maneuver puts the expert in the position of not looking at the person who is looking at him – which is a power position. So the expert will want to assume the superior posture and refuse to acknowledge counsel’s aggressiveness. By so doing, the attacks have no target and consequently, get lost.
When opposing counsel tries to interrupt a witness, the witness should continue talking – even if it means talking over counsel’s words. A witness must not allow opposing counsel to invade his space and take the floor away. If counsel continues to talk over the expert’s words, counsel will be perceived as the aggressor, not the witness. The jurors will think counsel is unfair in not allowing the witness to present his evidence. And they will perceive the expert as a strong, self-assured and engaged witness.
To answer the initial question of this article: Are good experts born, or can they be trained? The answer is clear. And the nonverbal behaviors discussed in this article are designed to help experts perform even better, to win the trust and confidence of the jurors by projecting a style of authority, openness, control, balance, power and engagement. Nonverbal messages, which are the means by which experts establish rapport with the jurors, are crucial to getting the verbal messages across. Experts will want to make sure that when they are in the courtroom they project the style they choose, not merely the one they fall into.
This article was originally published on the Synchronics Group Trial Consultants website. The Synchronics Group Trial Consultants is one of the oldest jury and trial consulting firms in the country, providing strategy, preparation and mock trials.
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