Putting Your Worst Foot ForwardAuthor(s): Elaine E. BuckloSource: Litigation, Vol. 31, No. 2, IMAGE (Winter 2005), pp. 37-39, 67Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760479 .

Accessed: 16/06/2014 00:10

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation.

http://www.jstor.org

This content downloaded from 91.229.229.96 on Mon, 16 Jun 2014 00:10:24 AMAll use subject to JSTOR Terms and Conditions

Putting Your Worst Foot Forward

by Elaine E. Bucklo

The man had been convicted of massive fraud for taking the life savings of elderly people. He received a sentence of eight years in federal custody. The trial judge left the bench, and the case was reassigned to a judge known for his compassion and lenient sentences (this was pre-Sentencing Guidelines). The

man moved for a reduction in sentence. At the hearing on the motion, the judge learned that the

man still lived in his fancy home in the northern suburbs. And

sitting in the courtroom was his wife, dressed in her sable coat. Compassion goes both ways. The judge was not moved to reduce a sentence for a defendant still enjoying the fruits of his crimes while his victims suffered.

A woman came to court complaining of discrimination on the basis of her sex. The company said she had been fired for

repeated tardiness and wearing inappropriate clothing after

being warned to dress appropriately. At the trial, the woman arrived late every day, dressed in tight, short dresses. I don't have to tell you the outcome.

Unbelievably to many?although not to federal judges? both of these defendants were represented by counsel. If there is a way to put your worst foot forward, judges have seen it.

And we wonder: Do lawyers not observe their clients? Do

they think the judge or jury pays no attention to the client or others in the courtroom?

I was not very old when my mother began giving me bor?

ing advice: "Dress neatly"; "Smile?you catch more flies with honey than vinegar"; and, later, "You are judged by the

company you keep." She was anything but a tyrant. But she and millions of other mothers and fathers of her generation understood that appearances create impressions. She did not care whether someone was rich or poor. She did care whether

they were nice or not so nice. She simply wanted people to

judge her daughter as the person she hoped she was raising

The Honorable Elaine E. Bucklo, an associate editor of Litigation, is on

the US. District Court for the Northern District of Illinois.

and not to be deterred by dress or other seemingly superficial factors that can create negative impressions. She understood

that, despite the adage, many people never look at the book

beyond its cover. In the courtroom, the way a client dresses says a lot. In the

examples above, dress said it all. The discrimination plaintiff was the defendant's best witness. She proved the truth of their defense. The fraud defendant's wife literally brought the fruits of the defendant's criminal conduct to court. How could his

lawyer think the judge would not see the contradiction between what he was asking and how his client was behaving?

Neither example is subtle. Others are not quite as obvious, although they still make judges laugh?or sometimes cringe. A colleague, once a state trial judge who heard DUI cases, tells me he was always amazed at how often defendants rep? resented by counsel came to court for their hearings wearing T-shirts with "Bud" or "Jack Daniel's" emblazoned across the front. No, the shirts didn't determine guilt. But the slogans said something about the minds of the defendants, and the

negative impression never helped their cases. I once presided over a criminal case involving three defen?

dants who conspired to steal from a large company in which the ringleader worked. He got the others, including a fourth defendant who pled guilty and testified for the government, to form corporations that then ordered material that was never delivered. The lead defendant saw to it that the invoices were

paid, and split the proceeds with the defendant who owned the

particular sham corporation. The defendant who testified for the government came across as a bewildered, dependent woman whom her cohort plied with drugs. She appeared as much a victim as a culprit.

Another of the female defendants might have been por? trayed similarly, and might have won, depending upon the

jury's view of her intent. She might have dressed as a sweet, middle-class woman, and she and her lawyer could have sat

attentively at a separate counsel table. Instead, all counsel sat

Litigation Winter 2005 Volume 31 Number 2

This content downloaded from 91.229.229.96 on Mon, 16 Jun 2014 00:10:24 AMAll use subject to JSTOR Terms and Conditions

with all the defendants and often conferred and laughed together, while the defendants exchanged comments in plain view of the jury. The woman in question came to court each

day dressed in a sleek black outfit that left her looking tough and sophisticated. This was no innocent victim of a domi?

neering boyfriend. Jurors found her guilty. In another criminal case, a young government lawyer

thought he had a loser to try. The defendant, a woman postal employee, had been stealing money from the mail. Postal authorities saw her leaving the post office floor with a test

envelope containing an electric transmitter, but she suddenly took the envelope into the ladies room to open it. There were no female postal inspectors available, so a male inspector made the decision to follow her. When the defendant realized what was in the envelope, she went into a stall to dispose of it. The postal inspector dived under the door of the stall, liter?

ally catching the defendant with her pants down. This story was not going to appeal to women jurors, and the

defense attorney was as confident as the assistant U.S. attorney was glum. But then the defendant showed up for trial wearing a bright purple jogging suit. The government suddenly saw

hope, and the defense attorney stopped gririning. She was con? victed. In the eyes of the federal, mostly suburban, jury, her

poor choice of dress offset the government's conduct. You would think that lawyers could devise a better strategy

than boxing clients into negative stereotypes. But Chicago judges have seen defendants (and their lawyers) show up for

large drug cases wearing expensive jewelry and $2,000 hand

?

made Italian suits. Often these seem to be people from other

parts of the country. Perhaps in Miami or Las Vegas it is okay to look like the stereotypical drug dealer and his lawyer. That is unwise, however, in a federal courtroom in Chicago. We don't dress like that, our jurors don't know anyone who dresses like that, and the only time anyone has seen anyone dressed so flamboyantly is in a movie?about a drug dealer.

We tell jurors that they are not to consider anything they see outside the courtroom, but jurors are only human. Like every? one else, they form impressions instantly. And the importance of dress and the general way a client looks is not limited to the courtroom. A juror remembers seeing a woman standing out? side a courthouse, chain-smoking and looking slovenly. Her reaction was, "If she's a defendant, she's guilty." She was the

defendant, although she pled guilty before jury selection was

completed. Sometimes poor choice in dress is just part of the problem.

Mannerisms tell a story, too. In one case a corporation sued another company, alleging deceptive practices and piracy of confidential information. The information had admittedly come from the dumpster of the plaintiff corporation. That is not

illegal, although a lot of people might find it rather slimy. The

legal issue was what was done with the information. The mar? ried principals of the plaintiff came to trial looking as much as

possible like the average juror, dressed for church or a similar event (and some would say going to a trial is like going to

church). In court they acted like ordinary, decent citizens. By contrast, the defendant's principal officer had slicked-back hair, did not wear a tie, and looked tough. His brother, who retrieved the information from the plaintiff's garbage, took the witness stand wearing shorts. I have never seen a juror in shorts. They have more respect for the system. The jury returned a multi? million-dollar verdict for the plaintiffs.

A colleague tells of a civil rights case in which the plaintiff, a prisoner representing himself, had no witnesses to support his claim that four guards beat him up. But he was a credible

witness, and although prisoners without supporting witnesses do not often win, in this case the prisoner was helped by the fact that he was small in stature. The defendants not only were

large but also wore their uniforms to court and appeared intimidating. The prisoner won. Other colleagues have simi? lar stories about unlikely victories that were helped by smirk?

ing, cocky, tough-looking defendants whom the jury could

picture engaging in the excessive force complained of by a

plaintiff prisoner. Most lawyers come to trial prepared to conduct direct

examination of their witnesses, to cross-examine their oppo? nents, and to make relevant legal arguments. Any jury con? sultant will warn that you must not stop there. Successful courtroom counsel will remind you that the trial is the

lawyer's show. The client and the witnesses are the actors. A director determines how the actors dress, fix their hair, and behave. A director would never go to opening night without rehearsals. A lawyer has somewhat less control, but surely she can check out in advance what the client will wear. A suit and

tie, or a dress or suit in a suitable length and color, generally is appropriate. Jury consultants often check out the actual gar?

ments a client plans to wear. Lawyers may assume that this level of scrutiny is intrusive or unnecessary, but lack of atten? tion to these details can lead to the discrimination plaintiff's wearing that too-tight, too-short skirt. Poor choices in dress are not limited to private clients, either. A colleague of mine

Litigation Winter 2005 Volume 31 Number 2

This content downloaded from 91.229.229.96 on Mon, 16 Jun 2014 00:10:24 AMAll use subject to JSTOR Terms and Conditions

remembers an FBI agent who showed up for trial wearing a

Mickey Mouse tie. And, of course, appropriate dress should not stop after the first day. Jurors notice everything.

Appropriate appearance for court includes hair and

makeup. The principal officer with the slicked-back hair did not help his claim that he was just an ordinary guy who wouldn't try to bully a competitor or intimidate his former

employees (who were witnesses for the plaintiff). Hair styles and/or makeup can make a person look pleasant, severe, kind, or tough. You want the jurors to like your client, to believe he is the kind of person they would like as a neighbor, the kind of person who will tell the truth. If you represent the plaintiff, you want the jury to want to give your client money.

Sure, juries (we hope) decide cases on the basis of evi? dence. All this talk of physical appearance may sound like an

appeal to something less rational and more biased than evi? dence. But in closing arguments and jury instructions, lawyers and judges always tell juries that the evidence includes demeanor and appearance. Assuming the evidence favors your client, is the jury with wide discretion in the size of a damage award likely to give more to an attractive plain? tiff its members can relate to or to a person who offends them?

Expression is another aspect of the impression a client makes in court. I noted earlier my mother's admonitions about

smiling and the company I kept. Grinning in court is rarely appropriate, although because everyone looks better with a

smile, it might be good to let the jury see a smiling face once in a while. But, even if people should not sit at counsel table or testify with smiles plastered to their faces, they rarely if ever should scowl. And yet this happens all the time. I often hear jurors after the conclusion of a case say the criminal defendant?and sometimes the civil one?looked "scary."

Perhaps some of that is brought on by their assessment of the evidence. Mostly, however, it is the result of the defendant's failure to put on a pleasant face.

I have watched parties who never look at the jury smirk, laugh inappropriately, write voluminous notes to the lawyer (when control, intelligence, or intent is an issue), or appear so

morose that juries simply don't want to look at them. I even have seen parties who look bored. One civil case involved a

plaintiff who claimed to have suffered brain injury when her cab driver drove recklessly on Lower Wacker Drive in

Chicago, causing an accident. The cab driver, who vigorously denied the allegation, kept falling asleep in court; when he was awake, his facial expression was insolent. His lawyer noticed nothing until I threatened to exclude the client.

If the case is worth bringing to trial, from either the plain? tiff's or defendant's view, it is worth going over what will

happen in court and suggesting proper dress and behavior to the client. By the time a case is ready for trial, the lawyer should have some idea of the impression the client will make.

People who smirk do not do so only in court. The same is true of people who avoid eye contact. And, long before trial, a

lawyer should be aware of how the client dresses and acts toward the opponent and people in authority.

How do you tell a client that his clothing makes him look like a mobster, or that his facial expressions would frighten a child? Lawyers who are paid a high hourly fee do not want to tell a client that the way he dresses or looks at people will not

help him before the jury. Most lawyers seem to be more at ease dealing with matters that are not so personal.

Lawyers in large cases solve this problem by hiring jury

Consultants. One lawyer who often does this says consultants can talk to the clients and explain the importance of dress and manner in a more direct way than he can, without alienating the client. He also videotapes the client in mock testimony, with or without a consultant's involvement. A lawyer may not be able to tell his know-it-all client that she is going to come off as an ogre, but smart clients will see the problem when it is presented on tape.

Of course, there are limits to what can be done to change the

appearance or manner of a less-than-perfect client. A very suc?

cessful personal injury lawyer says he would never ask a client who does not own a suit to buy one just for court?the change in dress, he believes, would make the client uncomfortable, and the opposing side would find a way to use that unease. But the

lawyer does ask whether the client owns a suit and, if so, when does he wear it. If the client mentions "special occasions," the

An effort to present a bad person as an angel ought to fail.

lawyer suggests that this is probably one of them. He may even

bring out this fact in the client's testimony. Another lawyer asks clients who are intelligent but obtuse

or long-winded to think about their families?most people talk to their children or relatives in ordinary language. He tries to get them to use the same speech pattern in testimony. This is asking a leopard not to change his spots and instead to use a different, preexisting part of his personality.

To ensure your clients or witnesses will make a positive appearance, introduce them to the court. I know lawyers who

always bring clients and witnesses to the courtroom in advance of trial so they can experience an actual court pro? ceeding, feel what it will be like in the courtroom, and under? stand the solemnity of a trial. They make sure everyone knows where the jury box is and how to answer questions while looking in the direction of the jury.

Trials are public proceedings, and a lawyer often does not have much control over who the spectators will be. But some?

times, as I noted earlier with the sable-wrapped wife of the white-collar defendant who asked for leniency, a lawyer does have some say over who will be in the courtroom and should exercise control.

I remember a criminal trial in which a well-represented defendant was accused of tax fraud. He had made millions of dollars and paid almost no taxes (compare that to the average juror). His family was in court for the entire trial. A jury always notices the family. In many cases it is good that the

family conspicuously shows support. In this case, however, the family members entered and left the courtroom at will,

made noise, often whispered among one another, wore obvi?

ously expensive clothing, and by their facial expressions clearly made known their feelings about the proceedings. The defendant was convicted. If I still remember the impression the family made on me after many years, consider the effect

they must have had on the jury.

(Please turn to page 67)

Litigation Winter 2005 Volume 31 Number 2

This content downloaded from 91.229.229.96 on Mon, 16 Jun 2014 00:10:24 AMAll use subject to JSTOR Terms and Conditions

Be responsive when your client calls. Have systems in place that let you be responsive in real time.

Imagine two situations involving a call from an inside lawyer to outside counsel:

In the first scenario, the caller gets a

quick reply from an administrative assis? tant or someone else, advising that the outside lawyer is on a plane but will call back upon landing in four hours. In the

second, no one answers the phone; the caller gets a canned voice-mail greeting that does not advise where the called

party is or when to expect a return call; but the outside lawyer still calls back when the flight lands four hours later.

Even though the turnaround time on the call is the same four hours, the latter situation leaves the impression the

lawyer is unresponsive and unavailable.

Overcommunicate, and be pre? pared to make a recommendation. Inside lawyers are part of the team.

They need to know what is going on.

Management expects them to have answers. Don't leave them without

those answers.

Most things that inside lawyers deal with are, at their core, binary decisions: settle or litigate, sign the contract or don't sign the contract, buy the com?

pany or don't buy the company. Be pre? pared to pick one of your hands.

Don't forget your role as a counselor? the operational executives need all the caveats and warnings that your malprac? tice carrier insists you provide. But more than anything, they need judgment based on experience and training. Don't deprive them of that. Be concise and logical, and be right most of the time, and you will find yourself in the role of trusted coun?

selor, not just hired gun. That is the value

you have to sell, and that is your compet? itive advantage.

Lest you think this is just the "usual

whining" from inside counsel?and that characterization says volumes about those that make it?a recent sur?

vey of inside counsel of Fortune 1000

companies by BTI Consulting Group concluded that only 30 percent of the

respondents were satisfied with their outside counsel. See The Strategic Review and Outlook for the Legal Ser? vices Industry 2004 (Executive Sum?

mary), available at www.bticonsulting. com. That presents a world of opportu? nity for lawyers who, in addition to

being extremely competent, provide superb client service. lD

Worst Foot

(Continued from page 39)

All judges have seen other conduct

by spectators that a good lawyer would rather not have happen. Spectators are almost always assumed to be family members of the trial parties. Some look

intimidating. Others sleep (until removed). They may nod or shake their heads, trying to become witnesses and

calling attention to themselves. One action certainly within the lawyer's control concerns the witness who testi? fies in a supposedly disinterested capac? ity but then for the rest of the day sits with the client's family, sometimes even

leaving with the client in full view of

any jury member outside the building at the same time.

Before a jury, a client's appearance and behavior are more important than the

lawyer's. But lawyers have their failures of professional fashion and demeanor, too. Most lawyers dress the part?but not all do. A colleague notes an increas?

ing tendency by female attorneys to wear backless shoes that make irritating noises when they walk. Attorneys who come in late, argue needlessly with witnesses, and above all appear arrogant do not help their clients. Just as juries want to rule in favor of clients they would like as neigh? bors, they also warm up to respectful,

polite lawyers. I have never seen a TV

lawyer persuade a jury that otherwise would rule against her client. A col?

league, however, firmly believes that one

lawyer's Jimmy Stewart-like demeanor

during his regular appearances in our

building is the only reason one of his clients was found not guilty.

Sometimes, a lawyer's best efforts to

present the client favorably will fail. And, from my point of view, an effort to

present a bad person as an angel ought to fail. The client who has defrauded

elderly people deserves his fate, and if the lawyer's mistake helps us see that truth, justice is served. Still, I can sym? pathize with a federal defender who once represented a defendant accused of stealing mail. The issue was identity, and a witness could testify that the thief wore kelly green pants. The defendant was in custody. His relatives were told to bring him civilian clothing for trial. In the federal building in Chicago, a defendant gets dressed in the lockup and then is brought into the courtroom. On the day of trial, the marshals opened the door from the lockup to the court? room, and the defendant walked in

wearing the clothing his relatives had

brought?including kelly green pants. The advice our mothers gave us is still

good advice: Appearances do count. That advice applies to the courtroom. We are trained in the law. But the law is applied to facts. Central among those facts are the

people who are litigants or witnesses, and that includes how they look and act. 10

STATEMENT OF OWNERSHIP, (Act of August 12, 1970: 5

Title of publication: Litigation (ISSN: 0097-8913) Publication no. 073-970 Date of filing: 10/01/2004 Frequency of issue: Quarterly Number of issues published annually: Four Annual subscription price: $12. Location of known office of publication: 321 North Clark Street, Chicago, IL 60610 Contact person: Rose Rylander Location of headquarters or general business offices of the publisher: American Bar Association, 321 North Clark Street, Chicago, IL 60610 Names and addresses of publisher and managing editor: Publisher: American Bar Association, 321 North Clark Street, Chicago, IL 60610; Managing Editor: Annemarie Micklo, 321 North Clark Street, Chicago, IL 60610 Editor: Charles D. Tobin, Holland & Knight, LLP, Ste. 100, 2099 Pennsylvania Ave., NW, Washington, D.C. 20006 Owner: American Bar Association, 321 North Clark Street, Chicago, IL 60610 Known bondholders, mortgagees, and other security holders owning or holding one percent or more of total amount of bonds, mortgages, or other securities: None The purpose, function, and nonprofit status of this organization and the exempt status for federal income tax purposes have not changed during the preceding 12 months. Publication name and issue date for circulation below: Litigation, Volume 30, No. 4 (Summer 2004) Extent and nature of circulation: (Column 1 is the average number of copies of each issue during the preceding 12 months. Column 2 is the actual number of copies of single issue published nearest to filing date.)

WJEMENT, AND CIRCULATION 2685, Title 29, U.S. Code)

Column 1 Column 2 Total copies printed 75,150 74,191 Paid circulation a. Sales through dealers, carriers,

street vendors, and counter sales 0 0 b. Paid or requested subscriptions 48,686 48,019 Total paid and/or requested 48,686 48,019

circulation Free distribution by mail, samples,com

plimentary, and other free copies 20,933 21,925 Free distribution outside the mail 0 0 Total free distribution 20,933 21,925 Total distribution 69,619 69,944

Copies not distributed 5,531 4,247 Total 75,150 74,191

Percent paid and/or requested 69% 68%

This statement of ownership appears in the Winter 2005 issue of this publication. I certify that all information on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).

Litigation Winter 2005 Volume 31 Number 2

This content downloaded from 91.229.229.96 on Mon, 16 Jun 2014 00:10:24 AMAll use subject to JSTOR Terms and Conditions