How to pick a plaintiff jury by nonverbal indicators

Body language often tells more than words. Add some nonverbal indicators to your ideal juror profile

Constance Bernstein
2007 October

The body talks – loud and clear. If you can hear it, you will gain a winning edge in the courtroom – especially in the difficult task of jury selection.

Generally – and we are talking in broad strokes – as plaintiff’s counsel in a plaintiff injury case, you want jurors who are nurturing and generous. They should be nurturing so they will want to help the plaintiff and make her “whole again.” They should be open and receptive to the fact of her suffering. They should be generous so they will give her a lot of money.

These kind of people are touchy-feely; they are gregarious, socially-oriented and often work in the helping professions, such as social worker, teacher, therapist or sales. They do volunteer work.

If this is the extent of the jury profile you have in mind when you begin voir dire, you will make it through the process okay. But if you can expand upon that profile by adding some nonverbal indicators which can visually describe your ideal juror, you will gain a distinct advantage over your opponent.

The plaintiff’s voir dire

What does a nurturing, open, receptive and generous person look like? What kind of clothes does this kind of person wear? Shoes? Hair Style? Accessories?

While the mind is the reservoir of our thoughts, the body is the reservoir of our feelings. Feelings live in the body, and the body leaks. The further away from the head you go, the more the body leaks its feelings. So when you really want to know what kind of person your potential juror is, look at his shoes.

What kind of shoes will a nurturing, open, receptive and generous person wear? The style will be casual and comfortable with plenty of room for the toes, because these people don’t want to be hemmed in. No pointy tips. The heels will be low, because open people want to be able to move around easily. No stilettos. Sandals, sports and walking shoes are more likely to fit this person’s style than compact, tight dress shoes.

We cannot predict how well-maintained or clean their shoes will be. But we can guess how well-maintained and clean their shoes won’t be. They probably won’t have perfect heels and a glossy polished finish. These people are not obsessive types, so the attention they pay to their wardrobe won’t be obsessive. Similarly, their shoes might go with the outfit, but not be color coordinated.

What about clothes? Their clothes will be casually comfortable and loose fitting – rather than tailored – because open people need room to move around in. No cramming the body into tight skirts or pants or collars that pinch. Jackets, shirts and sweaters will be open, not buttoned up. Their clothes, like their shoes, will be clean and neat, but not obsessively so. They will not look “put together,” except in a casual way.

And hair style? Their hair style will be casual and naturally flowing, rather than highly styled or gelled or plastered to the head. Indeed, the styles will be “big” rather than small. Beards and moustaches will be natural looking, rather than designed and sculpted.

We can predict that an open and generous woman will probably carry a big handbag that has room for lots of things. Her accessories will fit loosely on the body – no chokers, for instance or scarves tied tight around the neck. Her earrings might jingle, instead of fitting close to her face.

As you look over the jury pool, the open and nurturing people will be sitting in open postures, i.e., with their hands on the chair arm instead of folded across their stomach. They’ll be engaged with other people, instead of keeping to themselves; they’ll look relaxed, not worried. They tend to be more on the heavy side than the light side – not fat necessarily – but full-bodied. These people will have some weight to them and take up space. Their faces will be big and eyes wide apart. Their whole demeanor will look “open.”

An art, not a formula

In summary, you can tell a great deal about people by the way they visually present themselves to the world. You cannot know what they will think about your case issues, but you can know how they might feel about them. Shoes, dress, accessories and body language are keys to identifying temperament and psychology.

Most important, the body never lies. We might read it incorrectly, but the answers are always there. If a contradiction exists between what a person says verbally and what that person’s body language says visually, trust the body language.

Being aware of these nonverbal indicators will not guarantee you a jury panel ready to give you an immediate verdict, but being literate in the nonverbal language gives you that extra bit of information in jury selection which can make the difference between an educated guess and a wild shot.

Constance Bernstein Constance Bernstein

Bio as of October 2007:

Constance Bernstein is founder and principal consultant of The Synchronics Group Trial Consultants in San Francisco. Established in 1981, The Synchronics Group is one of the oldest trial consulting firms in the country, pioneering the use of scientific and academic principles which have become essential components in today’s complex litigation. She brings to her clients over 25 years of experience in the courtroom, as well as a background in media communications and research as a former university lecturer, journalist, writer and television producer.

Ms. Bernstein has taught Civil Advocacy at Boalt School of Law, and has been a lecturer for the Intensive Advocacy Programs at Stanford University and the University of San Francisco for over eight years. She is a regular presenter at bar associations and contributor to national newspapers and magazines, including Trial Magazine, For the Defense, Lawyers Weekly, The National Law Journal and The New York Law Journal.

Copyright © 2016 by the author.
For reprint permission, contact the publisher: www.plaintiffmagazine.com