The Power Of Non-Verbal Communication In and Out the Courtroom
Clients often ask how what they should wear to court and how they should act when they get there. We also take the same question when it comes to zoom meeting or hearings. As a general rule your overall appearance and that of your defense counsel should always try to convey trustworthiness/credibility (I believe you) along with strength/competence (I respect you).
With regards to your actions in the courtroom or on during Zoom, your attorney should prepare you and your witnesses for their testimony and prosecution’s cross examination. The trial is the performance, witness prep sessions are the rehearsals and your attorney is the director. In addition to the obvious content of your testimony, witness preparation should cover tone of voice, speed of communication, and eye contact. It is also a good idea to be aware of your conduct when sitting next to your attorney because this will be your position for much if not all of the trial.
Understand that at least someone will always be watching you. While outbursts, eye rolling and snickering are obviously unacceptable, you must practice just sitting calmly with a pad of paper and a pen. You don’t need to give an Oscar winning performance but you and your attorney must do your best to convey trustworthiness/credibility (I believe you) along with strength/competence (I respect you). Good preparation will get you 95% to that goal and the proper dress can finish it off or derail it.
With regards to dress the wrong answer is something that makes you “comfortable”; jeans, sneakers, any form of sweats, t-shirts, and joggers are always inappropriate even on zoom where all meetings are often video recorded. The same rules apply to any professional environment with exception to the medical field where “srubs” are necessary for hygienic reasons. While you don’t want to be uncomfortable, you don’t want to give the impression that you are not taking the proceedings seriously. Your lawyer is obviously required to dress professionally (while I’ve seen some very poor examples recently from male and female attorneys) this rule also applies to YOU!
There is obviously nothing wrong with a suit for men and a suit or a longer skirt for women. At minimum men should wear a collared button down shirt (tucked), a sports coat, and slacks. Clothing should never be baggy or fit poorly (too big or too small). Women should avoid wearing anything too revealing or provocative. Neither should ever wear t-shirts, sweatshirts, hoodies, sneakers, sandals, flip flops, or jeans (no matter how much any of these items cost.) Men and women should wear conservative dress shoes and women should avoid open toe footwear. Male and women should be well groomed; a conservative hairstyle and makeup for women is advisable.
There are some who claim that proper appearance will not determine the outcome of your case. While I agree that a professional appearance will not necessarily make a bad case great, a poor appearance will just give the judge or jury one more reason not to believe or respect you.
The momentum in a criminal trial can shift from the defense to the prosecution and back again on the response to a single question or a person’s nonverbal communication. Your appearance and that of your witnesses therefore factors into that positive or negative impression. Appearance must reinforce your attorney’s arguments. In most cases, especially those in front of a jury, your attorney may present a fabrication theory (it wasn’t my client) and so your appearance should reinforce the argument that you couldn’t have committed this type of crime because you don’t fit the part.
Earlier we spoke about character evidence and that in some situations your attorney cannot bring up your character because of a criminal past. Proper appearance can reinforce good character when your attorney can talk about it but it can also perhaps imply it when your attorney can’t talk about it. The law understands that appearance and nonverbal matter. In their final instructions to a jury, prior to their deliberations, judges tell jurors that they are permitted to use a person’s nonverbal responses and cues to determine credibility.
Again, you must always try to convey trustworthiness/credibility (I believe you) along with strength/competence (I respect you) during a trial. The burden is on the prosecution to prove you guilty beyond a reasonable doubt. If the jury believes and respects your defense, it will be virtually impossible for the prosecution to prove its case. Your appearance is solely in your control so don’t waste an opportunity to help your defense.
Finally, aside from your appearance, recognize that power of silence and listening. Your attorney needs to listen to be effective when it’s his turn to actually speak. Interrupting him or her during opposing counsel’s direct examination or cross examination could cause him to miss a critical response or lose his train of thought. Write down your questions or comments and wait until the other attorney is finished questioning the witness before you speak to your attorney. There is nothing worse for a criminal defense attorney than an elbow in the arm when he is focused on witness’s testimony. Your attorney should address this issue during your preparation sessions.
The bottom line is that appearance matters and preparation is critical! Be prepared and give them every reason to like you.
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