Sunday, October 18, 2009

Never Underestimate the Power of Just Being Nice

I recently came across the following October 15, 2009 entry on the Legal Intelligencer's blog and thought it would be a great one to share. I secured the authority to do so from the author, Melissa M. Gomez, Ph.D (UPENN), a jury consultant and owner of MMG Jury Consulting, LLC ( out of Philadelphia. I couldn't agree more with her notion that just being nice can go a very long way in the practice of law:

Never Underestimate the Power of Just Being Nice

Picture this: It is sometime in the late 1980s. I am sitting in a dingy classroom somewhere within the halls of Council Rock High School. Hair: Big. Eyeliner: Electric blue. This class is my first introduction to psychology, the field that will become my future. My teacher, Mr. Curran, a tall lanky man who did not get the memo that the sixties were over, silently writes on the chalkboard in large, block letters: “NEVER UNDERESTIMATE THE POWER OF JUST BEING NICE.” Then he sits down and lets the students marinate for a while in the statement. Twenty years later, I still regularly reflect on it.

Are Jury Trials and ‘Nice’ Incompatible?

So what does this have to do with jury trials? In my humble opinion, a lot. I have seen many a litigator make the error of believing that, in order to advocate for their clients, they need to viciously attack the witnesses on the other side. What I want to tell you is that this tactic does not work. Actually, it often backfires.

At trial, you are not only an advocate for your client, but a reflection of your client. If you decide that the best tactic is to behave aggressively, you have to be prepared for the likelihood that jurors will associate that aggression with your client and not just you. So for example, if the other side is accusing your client of being a bully that has no regard for the individual, and then you are seen verbally attacking a witness on the stand (a behavior associated with bullies), you have in essence, projected the “bully” image in the courtroom. You have personified opposing counsel’s point.

What Does ‘Nice’ Mean at Trial?

Now, of course, being nice does not mean that you fail to make your arguments or expose bad behavior. It does mean, though, that you can attack behavior without attacking the human being. I have seen people viciously and personally attacked on the stand. Jurors don’t like it. More often, the questioner looks bad, not the witness.

For example, in a trial about a contract dispute, opposing counsel was cross-examining one of our expert witnesses. Counsel was yelling. He was flailing. He was angry. Our witness tried to stay calm and answer the questions, but he was obviously shaken by the tone of the questioning. During post-trial interviews, the jurors did not remember much about the content of that cross-examination. What they remembered was the show that the attorney put on and what they relayed was that they felt bad that this witness was forced to put up with such an attack. In essence, while opposing counsel was trying to make the witness look nervous about the content of his testimony, he only succeeded in making the witness look (understandably) upset about being verbally abused.

One day, I may be proved wrong, but, in the many cases I have seen tried, I have yet to find a situation in which it is necessary or appropriate to launch a full frontal attack on a person. Attack the decisions, point out prior inconsistent statements, question the behaviors and do it in a poised, professional manner. There is an art to calmly crushing a witness’ credibility and avoiding appearing like a tyrant. Try it out. Jurors will more likely perceive the confrontation as warranted and professional, not mean. You will appear more confident, making jurors pay attention to your points over your behavior. Of course, it doesn’t hurt that jurors will find it much easier to like you if they perceive you as a “nice” person. Even if, in the battle of the trial, we can’t quite achieve “nice,” we can manage to come away avoiding being perceived as the opposite (you may enter your own term here).

Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at or call 215-292-7956.

Melissa M. Gomez, Ph.D.
MMG Jury Consulting, LLC

I note that reading of the Pennsylvania Bar Association's Working Rules For Professionalism, along with common decency and courtesy, suggest the following additional ways to be nice in the practice of law:

-Treat others with civility and with professional courtesy

-Simply say "please" and "thank you"

-Promptly return phone calls

-Promptly respond to correspondence

-Respect other attorney's schedules as your own--allow for continuances where needed

-Work with others on scheduling--reasonable requests should never be unreasonably refused

-Grant extensions when you can

-Be punctual for appointments; better yet, be early

-Do not use the Rules of Civil Procedure as a weapon

-Do not threaten, try to say it in a non-confrontative way whenever possible

-Attempt to resolve differences through negotiation and without expensive and time-consuming motions practice

-Whenever possible and warranted, give out compliments to others

-Simply smile.

Surely, being nice and courteous, but firm in your position without being trampled on, can go a long way in advancing one's case along in a quicker fashion and with less stress for all involved. Remember, what goes around, comes around. So get out there and hit them (and neutralize them) with kindness.

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