Dateline: March, 2022, Issue 1

What attorney conduct do jurors like and dislike?

Jurors typically have strong opinions about the attorneys in their case, impressed by some conduct and irritated by other conduct.

Between 2011 and 2017, a federal district judge in the Northern District of Illinois, Honorable Amy St. Eve, asked more than 500 jurors in some 50 different trials to complete a voluntary, anonymous questionnaire at the conclusion of their jury service about what they liked and disliked about the conduct of attorneys in their case (St. Eve & Scavo, 2018; St. Eve, 2021). Jurors were asked to list in order (1) three things that the lawyers did during trial that they liked, and (2) three things the lawyers did that they disliked. The jurors did not hold back in providing both praise and criticism: 90% of all jurors answered these questions.

Overall, whether positive or negative, jurors' comments focused on four topics:

Of attorney practices jurors most liked, being organized and prepared was mentioned most often by jurors (23%), followed second by presentation style (15%), and third by good behavior toward opposing counsel, witnesses and the jury (9%).

Of attorney practices jurors most disliked, too much repetition was mentioned most often by jurors (20%), followed second by unprofessional conduct (10%), and third by bad behavior toward opposing counsel, witnesses or the jury (10%).

Jurors paid close attention to how lawyers treated opposing counsel. Jurors liked when opposing counsel got along and treated each other cooperatively and with respect. Jurors paid attention not only to verbal exchanges between counsel, but also nonverbal communications, including facial expressions, eye rolling and body language. Jurors did not like when attorneys were rude to opposing counsel, exemplified by interrupting, bickering, name-calling, smirking, snickering, sarcasm, cockiness, arrogance, excessive banter between the lawyers, and when attorneys at counsel table or in the audience noticeably reacted (e.g., talking, head-shaking, laughing, etc.) during witness examinations, openings or closings.

Jurors also paid close attention to how attorneys treated witnesses. Jurors did not like when attorneys disrespected and behaved unkindly to witnesses, including parties and the translators for witnesses. Jurors sympathized with witnesses, and did not like when attorneys verbally attacked them or asked clearly irrelevant questions designed only to embarrass. Jurors also disliked when lawyers interrupted witnesses, made sarcastic remarks to witnesses, and talked down to witnesses.

Jurors wanted attorneys to respect the jury. Jurors noted whether attorneys were on time. Jurors noted when attorneys made eye contact. While eye contact often was a positive for jurors, jurors also commented that some attorneys (especially those at counsel table or sitting in the audience) took eye contact too far and kept staring at the jury. Jurors further noted whether attorneys talked to them or at them. Jurors particularly disliked when attorneys talked down to them (e.g., prefacing comments with "I know you're not lawyers...", treating jurors "like kids" or "lacking a brain", etc.). Jurors frequently disliked attorneys' attempts at humor.

Jurors attended to attorney conduct not only when attorneys were "on-stage" (presenting or examining witnesses), but also when "off-stage" (seated at counsel table or on breaks). Jurors noticed and disliked when lawyers from the same team were not getting along or failed to work as a team. Jurors noticed and disliked when attorneys at counsel table or in the audience used their cell phones, showed frustration, picked their nose, crossed their arms, rocked in their chairs or appeared bored.

When examining witnesses, excessive repetition was a surefire way for an attorney to irritate the jury. A prevalant theme in jurors' responses was their disdain for repetition. Jurors vehemently disliked when attorneys repeated questions or concepts ad naseum. Jurors perceived repetition as a waste of their time and an insult to their intelligence. Jurors liked, noticed, and commented positively when attorneys "did not beat a dead horse on any subject" and "did not drill a point to death."

In closing argument, jurors wanted and expected attorneys to tie together all the evidence presented during the trial in a meaningful way. Jurors preferred an organized, yet focused, approach to closing argument, rather than a rote scripted argument read by the attorney or a witness-by-witness repeat of the testimony.

In sum, professionalism and civility in the courtroom are very important to jurors. Jurors expect attorneys to present evidence clearly and chronologically without dramatics or aggression.

Source St. Eve, A.J. & Scavo, G. (2018). What juries really think: Practical guidance for trial lawyers. Cornell Law Review Online, 103, pp. 149-174.

Source St. Eve, A.J. (2021). What juries really think: Practical guidance for future trial lawyers. Fordham Law Review , 89(6), pp. 2623-2640.