Poker in the Courtroom – Tells Part 2: Rejection and Acceptance
Can poker skills give you a leg up in jury selection?
How can we put this delicately:
If you screw up jury selection, your entire case is screwed. Trials are costly and stakes are high, and if you’ve let a bad apple slip into your jury, it’s possible nothing will save you.
And yet you have a limited amount of time to hone down the small cadre of people who will decide the fate of your precious trial. To make matters worse, you can’t even trust the things these potential jurors say to you.
This is where poker skills come to the rescue. Read below for poker champ Kenna James’ insights in reading body language ‘tells’ of acceptance or rejection, and how he’s found they’re able to help attorneys in the jury selection process.
So much more than Q&A: the role of body language in jury selection
Selecting a jury is like gardening. Is it important to weed? Absolutely. Get those destructive buggers out of there. But what many attorneys miss is that this experience is also about cultivating something — nurturing your seedling relationship with the jurors, with an eye to the future harvest.
In addition to pruning out the people you don’t want determining your case, you’re establishing the foundations of your relationship with your future jury, and beginning to orient them to your way of viewing the case.
In fact, some of the best attorneys treat jury selection like a first date. You’re not just finding out about your partner — or, in this case, your dozens of probably-grumpy partners lumped in a room together — you’re also creating an impression on them. I hear everyone’s for fairness and impartiality in a trial, but never underestimate the power of being likeable.
The process ain’t no Q&A: the communication happening in that room is multi-layered and nuanced. And that is why an attorney at this juncture needs the skills of a good poker player. While an attorney is focused solely on the content of a venireman’s statement, a poker champ in the same room would see a tremendous array of messages, coming from each person at all times, without any of them opening their mouths.
(Incidentally, these tools can also be used on your first date, but that’s for another website altogether).
5 Reasons to Read Body Language in Jury Selection
Why isn’t it good enough to just ask our potential jurors really good questions?
1. Potential jurors lie
It’s been shown again and again. Trial consultant David Cannon, Ph.D. summarizes the scholarship on this sad fact:
Bush (1976) reported that 33% of the veniremen in the Camden 28 trial lied under oath. Marshall (1983) interviewed 277 ex-jurors, 18% of which admitted to withholding information during voir dire. Seltzer (1991) interviewed 191 jurors in 31 trials. He found that 39% of jurors failed to disclose that they had a connection to law enforcement, or had been a victim of a crime.
Though the results are disheartening, who can really blame the jurors? They’re almost all in an entirely new situation, being asked to answer personal questions in front of a large group of strangers. Nearly all of them are angling for something — many are trying to get out of jury duty, while others might think it’s an exciting option and will be trying to be chosen. This is not the environment most conducive to honesty.
2. Body language belies biases
Body language says something fundamental about people they may not reveal with their words. Everyone wants to sound fair and balanced when they speak (especially when they’ve just heard a judge exhorting them to be impartial and objective). But all of us have biases that we’d never reveal in response to a blunt question.
For instance: very few people will respond ‘yes’ to the question ‘Are you racist?’ But we might notice that their bodies signal rejection whenever a person of a different race speaks. The body can signal biases a person would never allow out of their mouth in front of a room of strangers.
3. Unintentional messages are more honest
When you are speaking directly to someone, they know your eyes are on them. They will monitor their behavior and typically exercise some care in their response to you.
But when someone believes the attention is elsewhere, they will allow their body to react to what is being said, without thought of dissimulation. The movements that your potential jurors believe are unseen are the most honest ones.
A fluttering of these are happening constantly throughout the jury selection process. This is a good reason to have some allies there with you, trained to pick up on body language cues. The more eyes gathering this information, the better.
4. You can suss out sneaky sympathizers
Any venireman who openly sympathizes with us is likely to be struck by the opposing counsel. But once you know what ‘tells’ you’re looking for, you’ll be able to pinpoint a few that sympathize with you. Luckily, the opposing counsel wont’ be as astute, and will think they are merely neutral.
And on the other side, ‘tells’ help you more efficiently gauge who in your audience is hostile to you and sympathizes with the other guys, giving you richer information than bare answers alone.
5. Decisions often come from the gut
Most jurors decide their cases on a gut feeling, and then find logical arguments for what they’ve done. Your job is to hone in on the kind of guts the juror’s got. Body language can speak much more honestly and loudly than the ideas they’re willing to share in front of others. Your work will be easiest if you can use your evidence to confirm something that the juror already believes — selection is your key time for figuring out what that is, and choosing your jurors from those who will have a gut impulse that favors you and/or your client.
What to Look For
In addition to the ‘tells’ discussed in our prior post , some of the most important body language to learn are the signs of acceptance and rejection.
Here are the ‘Tells,’ the specific ways that the body speaks what the mouth may withhold. Below that we’ll discuss how to use them when selecting a jury, but an astute attorney will find dozens of scenarios where the ability to read these body language messages will be helpful.
Tells of Acceptance
These signs indicate that someone agrees with or likes what is being said – especially if the one making them doesn’t realize they are being watched.
- touching or rubbing the head or chin
- touching the speaker or anything that belongs to the speaker
- nod of the head
- leaning forward
- showing marked attention to what is being said
- a general openness of posture
Tells of Rejections
Keep your eyes peeled for these signals that someone dislikes or disagrees with the person speaking – whether that speaker is you or someone else in the room.
- touching the nose or rubbing it
- covering the mouth
- folded arms
- raised eyebrow (indicates strong disbelief)
- leaning back and shaking head (indicates strong disbelief)
- disinterest, such as fiddling and looking at the watch (though be cautious of jumping to this conclusion when those in the room have been through a long and boring process like jury selection, which could make anyone fidgety)
- a general closedness of posture
Watch this brief video for some examples of these Acceptance tells and Rejection tells.
3 Ways to Use Tells in Jury Selection
Once you’ve deciphered the meaning behind a potential jurist’s body language, what can you do with it? To get you started in the magic of poker skills in the courtroom, try these 3 techniques during jury selection:
1. See who agrees with a red flag statement
Imagine you’re a personal injury attorney and you hear a potential juror say “people who sue companies are just whiners and complainers.” Are you going to shut them down or lecture them on why they’re wrong?
If you know the signs of acceptance and rejection, this is the perfect opportunity to pinpoint those in the jury pool who agree with this statement, and mark those who disagree with it. You might even want to ask the one waving the red flag more questions: you’ve probably decided you don’t want her on your jury, but it’s not a waste of your time to continue engaging with her if it means you can efficiently locate others who agree with her stance.
This brings up one important rule for both first dates and poker games: encourage others to talk. If you’re the chatterbox taking up all the time, you won’t get a second date and you won’t win the hand. The same holds true for jury selection. Instead of holding-forth and shutting down others, allow some free-flow of speech — and the non-verbal responses to it — to guide you to the jurors you want. An added benefit is that the jurors will learn to like and respect you more, as someone who listens to them and their peers.
2. Learn what makes you likable to a jury
What signals a lot of ‘rejection’ tells from your potential jurors? Maybe you’ll see them when you lecture, reveal arrogance, fail to listen, or demand that others concede to you. Likewise if your potential jurors can tell you’re pretending to be folksy and down-to-earth, or appear to be trying too hard to please them, you’ll see a lot of disinterest and closed postures.
There’s no one ‘right’ way to be in front of a jury, but different attorneys can get away with different things. What appears hilarious when done by one attorney will come across as unprofessional and inappropriate in another. When you watch for body language you can go beyond weeding out jurors who don’t like you, and also learn what demeanors and statements encourage greater numbers of jurors to feel sympathy for you and your client.
3. Encourage honesty
Observe your own body language: do you act bored or hostile when a potential juror is revealing an unpleasant bias? If so, you’re sending messages to the jury that many of them will subconsciously read and respond to. When its their turn to speak, they’ll likely hide their own biases. You want your veniremen to reveal their biases — now, before they’re the ones stuck deciding your success and failure.
No matter how egregious or irritating you find a potential juror’s statement to be, practice responding with ‘accepting’ body language. Encourage those jurors willing to speak ugly truths by controlling your own ‘tells’ to reveal an open mind and listening ear.
Appreciate these unconventional tips for improving your practice? Check back with the Filevine blog for more articles and videos from poker champion Kenna James.