[The following was adapted from “The Winning Argument,” a book published by the ABA Section of Litigation and co-authored by Paul Mark Sandler, Ronald Waicukauski and JoAnne Epps.]
During the first moments of an argument or opening statement, judges, juries, and arbitrators observing you for the first time will form impressions of you and your case. Your appearance and demeanor will likely influence those first impressions. If you seem offensive at the outset, your image may be tarnished throughout the proceedings, lowering your ethos and your persuasiveness.
Standards of dress vary. In the western part of the country, dress is often more relaxed than in certain sections of the East Coast. While there is no standard dress code to recommend, you must consider your dress and appearance before every argument, taking into account the customs and general standards of the area. This includes the way your audience expects lawyers to look.
Many lawyers avoid bow ties based on the belief that juries will not trust someone wearing a bow tie, but those who argue appellate cases or non-jury trials have no hesitation to wear them. Although you might prefer more casual and colorful attire at times, traditional suits usually represent competence and professionalism. Be conservative in a way that is compatible with what is comfortable for you, consistent with your own personal style, and compatible with your audience’s expectations.
Also, choose jewelry carefully. Sparkling jewelry can be distracting and inappropriate in the courtroom. Some trial lawyers will not wear jewelry of any kind, including cuff links, when arguing before a jury on the theory that expensive-looking jewelry can create a gulf that interferes with having the jury “identify” with the lawyer.
Beyond apparel and accessories, other factors can influence a juror or judge’s perceptions. For instance, how you arrange your material on the table or lectern is a significant factor in your overall appearance. A neatly arranged table conveys preparedness, organization and control. If you are always groping for exhibits, you might lose credibility.
Consider, too, how you use space in the courtroom. Where you stand and how freely you can move about are governed in part by court rules and the predilections of individual judges. If you have questions about this, consult the rules and judge’s staff before trial.
In one jurisdiction, the judge does not allow counsel to stand when the jury enters and departs, and the judge will reprimand counsel if they do so. Knowing the judge’s preferences will help you avoid such embarrassments. (Normally, standing as the jury enters and departs is a good nonverbal mode of communication — it shows respect.)
When allowed and not overdone, moving about the courtroom can help your presentation. Compare, for example, standing behind a lectern and reading an argument and standing before the jury box and arguing without notes. The former can be flat and one-dimensional, whereas the latter is likely to be more exciting and enlivening.
During closing argument, moving from one juror to the next, making direct eye contact, gives a powerful impression that you care about each juror and that you are speaking from the heart rather than a script.
When you are required by the court to remain behind a lectern, you may be permitted to step to the side so long as you do not stray far. When behind a lectern, it is also especially critical to use eye contact and appropriate gestures to communicate with your audience. That said, avoid excessive gesturing. Overly dramatic hand motions or facial expressions will distract and annoy your audience. As a general rule, use moderation in all aspects of delivery.
There is certainly room to disagree about specifically where to stand, what to wear and how to look at trial, but there is no disagreement on the importance of appearing natural and comfortable. Whether or not you leave the bow tie at home, being yourself will always engender confidence.