Lawyer CredibilityHow the Jury Perceives It

Robert V. Wells

The crux of any Jury trial isestablishing and maintainingcredibility. Each side presentsits set of facts, and the jurymust decide which is the most

credible version.

Jurors begin forming their assessments at the outset of the

trial and refine them throughoutThey base their assessments onthe expertness, trustworthiness,and dynamism of lawyers, litigants, and witnesses and ontheir perceptions of how simiiarthese peopie are to them.Understanding how jurors formassessments wiii allow the trial

lawyer to predict and controlhow jurors judge credibilitythroughout the trial.

M urors' assessments of the cred-

m ibility of lawyers, litigants,and witnesses are crucial ele

ments in any jury trial. Most involvecases where the parties are in disputeabout the facts. As a rule, the jurorsselected to hear a case are unfamiliar

with the lawyers, litigants, facts, andlaw involved.

Each side presents a conflictingview of the "reality" of the case, andthe jury decides which is the "correct"reality. In so doing, it must decidewhich position is most credible. Thus,

Trial lawyer Robert V. Wells isdirector of Robert V. Wells andAssociates, which provides communication and trial psychologyconsultant services to trial lawyers.He is currently completing a Ph.D.in communications.

An ATLA member, Mr. Wellshas acted as consultant to the Kan

sas Trial Lawyers Association, theKansas College of Trial Advocacy,and many private law firms.

TRIAL, July 1985

an understanding of how jurors formcredibility assessments is invaluable tothe trial lawyer.

Credibility assessments are one aspect of the process by which peopleform impressions of others.' As humans we construct or create the world

in which we live. Our understandingof others is always in terms of imagesand impressions.^ Since we cannotdirectly perceive another person's intentions, inner qualities, or attitudes,we thus construct an impression by interpreting the other's appearance andbehavior.'

For example, different people willconstruct different impressions of acigar. To one person, it produces aromatic odors; to another, foul pollutants. In the same manner, jurorsconstruct credibility impressions oflawyers, litigants, and witnesses.

Because humans are socialized

within common cultures and use

shared languages, they have generalized constructions of reality." Americans have generalized constructionsof reality that differ from those ofpeople from other cultures. Thus, dueto the socialization process, studieshave identified general dimensions forcredibility assessment across the U.S.population. U.S. jurors can be expected to form credibility assessmentsabout lawyers, litigants, or witnessesbased on the extent to which they appear to exhibit In the courtroom dimensions of expertness, trustworthiness, and dynamism.

Expertness

Expertness is the extent to whichthe lawyer appears to be competent,®intelligent, authoritative, trained, experienced, skilled, informed,®professional,' and a source of validinformation.® Therefore, to establishexpertness, lawyers must demonstrategeneral intelligence and ability; training, experience, and qualificationswith respect to law; and accuracy andvalidity as sources of information.

Lawyers can demonstrate intelligence and ability by appearing knowl

edgeable about all aspects of eachcase. In a civil case, lawyers candemonstrate expertness by explainingthe plaintiffs medical condition to thejury and by conversing knowledge-ably with doctors on direct and cross-examination. Conversely, lawyers' inability to explain concepts or to pronounce words correctly will result inlow judgments of expertness.

Lawyers who know trial practiceand procedure demonstrate legalqualifications and training. Conversely, those who are continually corrected or reprimanded by the courtfor improper courtroom practice willbe perceived as incompetent. Lawyerswho show they have thought out allaspects of the case and are preparedfor any contingencies will be perceived as expert. And if they appearto know what they are talking about,they will also be viewed as accurateand valid sources of information.

Lawyers can establish or destroywitness credibility using the standardsof expertness. The credibility of experts can be established by showingthey did the necessary groundworkand took into account all relevant fac

tors in arriving at opinions. Theircredibility can be damaged by showing they did not do their homework.For example, a doctor's credibilitymay be destroyed if a lawyer canshow that the doctor reached an opinion before conducting tests or viewingimportant medical records.

Competency will also be based ona lawyer's or witness's ability to dealwith both positive and negative aspects of the case. In a study in whichjurors were interviewed about theirperceptions of lawyer credibility, theplaintiff's lawyer continually did notacknowledge weaknesses in his caseduring opening statement and in direct examination of witnesses. The

defense lawyer brought out theseweaknesses in his opening statementand cross-examinations.

For example, the plaintiff's lawyerdid not acknowledge in his openingstatement that the plaintiff told the

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police officer at the accident scenethat he was not hurt and that after the

collision, he went to a party and didnot seek medical attention until the

next day. All of these developmentsare common after car collisions andcould have been explained. The plaintiff's lawyer ignored these facts, however, and allowed the defendant topresent the "real" story.

As a group, the jurors perceived theplaintiffs lawyer as incompetent, saying he was either stupid or unprepared. Several acknowledged thatthese facts were not unusual andcould have been explained and that,by failing to do so, the plaintiffslawyer hurt his case.®

Lawyers, witnesses, and litigantswillalso be judged competent and expert to the extent that they fulfill thejuror's expectations of their roles.Just as theatergoers have expectationsof actors and actresses in a play,jurors have role expectations of participants in a trial.

Jurors have expectations aboutwhat a lawyer should look like andhow a lawyer should behave. Theyjudge a lawyerwho looks the pan andwho appears knowledgeable aboutcourtroom etiquette and practice ascompetent; they judge one who violates their role expectations as low incredibility.

Jurors also have expectations aboutthe proper role of plaintiffs and defendants. They expect plaintiffs tobehave consistently with what they areasking for. ®̂For example, in a medical malpractice case, the plaintiff wasjudged low in credibility because shewas shown not to have followed doctor's orders and not to have doneeverything she could to protect herown health. In a hunting injury casewhere the plaintiff was suing a gunmanufacturer for negligence in thedesign of a rifle safety catch, jurorsperceived the plaintiff as low in credibility because he did not follow accepted safety rules. A plaintiff claiming damages for pain and sufferingwas judged low in credibility becausehe took passes from the hospital during the time period that he claimed tobe in suffering.

Choices lawyers and litigants makeare crucial determinants of credibility.'' Jurors will view choices as intentional and will take the lawyer'schoices into consideration when determining expertness.

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Trustworthiness

The dimension of trustworthiness

is the extent to which lawyers appearto be honest, just, open-minded,friendly,'^ well-mannered, warm,'®fair, loyal to listeners, and reliablesources of information.'"' They mayappear warm, friendly, and well-mannered by being polite and by recognizing the rights and feelings of others.At all stages of the trial, lawyersshould treat jurors, wiinessess, andopposing litigants with repect.

On voir dire, lawyers should bepolite and friendly to all the jurors regardless of their predispositions. Alljurors should be treated as equallyimportant.

Lawyers should not abuse witnesses on the stand. They should remember that people have feelingsand, whenever possible, take these into consideration. This is not to saythat lawyers should hide anger or contempt for a witness or litigant who haslied or attempted to subvert justice. Infact, such a display, when justified,adds to credibility by demonstratingthe lawyer's commitment to the clientand to the pursuit of justice. Lawyers,however, must never go to the extreme of browbeating witnesses whoare captives on the stand.

Lawyers can demonstrate open-mindedness and fairness by beingevenhanded in voir dire questioning.Jurors had more respect for lawyerswho treated favorable or unfavorableprospective jurors equally during voirdire than for those who did not.'®Typically, if a prospective juror acknowledgesa connection with an opposing litigant or attorney, this juroris questioned thoroughly about theconnection and possible prejudice.Jurors gave higher credibility to lawyers who asked the same probingquestions to favorable and unfavorable jurors alike than to those whosummarily questioned and acceptedthe fairness of favorable jurors.

Lawyers will be judged trustworthyif they are perceived to be reliablesources of information. This meansthat lawyers, litigants, or witnessesmust present evidence honestly.Those lawyers who appear to be justsalesmen will generally be held low incredibility.

The most important aspect of trustworthiness is loyalty to the listeners,or a lawyer's desire not only to further

his client's interest, but to do good forthe sake of the jury. Usually, in opening the case and in the jury instructions, the judge will tell jurors thattheir function is to reach a fair and

impartial verdict. Jurors want to dothat. Thus, they feel deceived if theyperceive that a lawyer is trying to keepevidence from them to obtain an un

just decision.Lawyers may trigger this aspect of

trustworthiness by telling the jury inopening statement, "1 am going to getall the evidence before you so that youcan reach a fair and just decision."

Jurors may view continuous objections to the admission of evidence as

a lawyer's attempt to keep evidencefrom them.'® Therefore, lawyersshould use motions in limine to obtain

rulings on the admission of evidenceout of the hearing of the jury.

By demonstrating that opponentsare intentionally trying to withholdevidence, a lawyer can convince a jurythat the opponents are untrustworthy.How choice comes into play can beseen in the use of police reports inauto accident cases. Generally, thesereports contain elements unfavorableto both sides. For example, a reportmay have a plaintiffs statement to apolice officer immediately after theaccident denying injury. It may alsoinclude an inadmissible conclusion ofthe officer that the defendant's negligence caused the collision.

Typically, the defense will try tohave the officer on cross-examination

read the plaintiffs statement denyinginjury. At this point, the plaintiff'slawyer may offer the entire report intoevidence, so that the jury can read itfor themselves. Defense counsel will

then be forced to object to keep thedamaging conclusion out of evidence.The court will sustain the objection,but the jurors will see the defenselawyer as choosing to withhold evidence from them.

Dynamism

This dimension includes such

characteristics as being aggressiverather than meek, emphatic ratherthan hesitant, bold rather than timid,active rather than passive, and energetic rather than tired.'' Dynamism isan intensifier, so if the lawyer, litigant, or witness is perceived as expertor trustworthy, these perceptions willbe intensified if the jury also sees them

TRIAL, July 1985

as dynamic.Dynamism can be developed in two

ways. First, if lawyers take cases theybelieve in and use themes they feelstrongly about, they tend to be dynamic. Lawyers who become protectors of the little guy or watchdogsagainst big business will tend to bemore dynamic than those who are trying just another case. Second, lawyerscan develop and hone their trial skillsuntil trying jury cases becomes almostsecond nature.

Individual Dimensions

Jurors will also have individual

dimensions for assessing credibility.Because jurors have different educational and social backgrounds, theyhave different perceptions of reality,^®and they can be expected to have different dimensions or constructs for

assessing credibility.How can lawyers discover these

dimensions? As a rule, the individualdimensions will be consistent with the

individual backgrounds of the jurors.People are attracted to people theyperceive as similar to themselves,^® so

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TRIAL, July 1985

it can be predicted that they will assesscredibility to those they perceive assimilar to themselves.

Credibility studies support this prediction. Minorities assessed politicianswho espoused minority rights as morecredible than those who did not."Gays assessed gay therapists as morecredible than heterosexual ones.®'

Drug counselors experienced withdrugs were rated as more credible byaddicts than counselors with no drugexperience,®® and speakers who presented messages listeners disagreedwith were rated lower in credibilitythan those who presented messageslisteners agreed with.®®

Predictably, jurors will tend toassess credibility to those who areperceived as sharing similar philosophies, backgrounds, or goals. Thus,lawyers should use voir dire to findout as much as possible about thejurors' educations, socioeconomicbackgrounds, attitudes, and beliefs,and then highlight those aspects of theclient's personal profile that are mostsimilar to the jurors'. In openingstatement, for example, a lawyermight say to a jury: "The evidence

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