POWER POSITIONING IN THE COURT ROOM
Elliot W. Stone, Esq.
Since Roman times attorneys have recognized the dramatic impact inherent to the courtroom. To borrow an analogy from the theater, the attorney is the producer, playwright, director and actor for every trial.
One important lesson is that positioning is a vital component of courtroom performance. Like a director, the successful attorney strategically chooses where in the courtroom to play certain scenes of a trial. Following are general principles for successful positioning during a trial's phases. Please refer to the accompanying chart, adjusting the guidelines to the configuration of a specific courtroom.
Size creates power. Through the use of demonstrative evidence, exhibits and a lectern, you can increase your size and, therefore, your power. The closer you stand to the jury, the more powerful you will be perceived. This is generally desirable but can be threatening at times, particularly if the jury is not comfortable with you or you are a large person.
The most powerful position in the courtroom is 3-5 feet directly in front of the jury (1). This position should be used sparingly to preserve its impact.
If you represent a civil/criminal defendant and are seated at the table furthest from the jury, ask the court's permission to place your client at the far end of the table facing the jury (17). This will help compensate for the distance.
If you represent a plaintiff--particularly one that is severely disabled--you should absent him/her from the courtroom, except during important phases of the trial (voir dire, opening and closing statements). If the jurors are overexposed to the plaintiff, they might become desensitized to his/her condition, thereby impacting a possible award.
Should you wish the plaintiff present, seat him/her behind you in the first row of the audience--out of the jury's direct vision but within easy consulting range.
If your client is present throughout the trial, remember that close proximity between client and attorney creates a perceived bond. Touching and relating to your client sends an important message to potential jurors that they too can like and accept you client. This is especially recommended if the client is distasteful to the potential jurors.
Voir dire is the first critical opportunity to bond with the potential jurors. Stand several feet from the individual potential jurors, then approach as close as their sense of comfort will allow. Maintain eye contact as much as possible.
When addressing the entire panel, you may stand just in front of or sit on your table (6,7) to create a relaxed, unintimidating atmosphere.
Opening statement is the time to help jurors become comfortable and familiar with you. To introduce yourself or your client, use the position 3-5 feet in front of the jury box (1) directly behind the lectern (if available), which lends size, formality and authority to the presentation. Lean toward the jury and speak as if you moved closer to them.
Step from behind the lectern to one side or the other (4,5) for more casual moments in your argument. This helps build rapport and intimacy.
Avoid getting too close (particularly if you are large) to the jury box and touching the jury rail liberally; jurors may feel you are invading their space. If you are compelled to emphasize a point, stand at either end of the jury box (2,3), thereby minimizing juror discomfort.
Direct & Cross Examination
To encourage witness/jury eye contact during direct examination, position yourself alongside the jury (10) while posing questions. This allows the jury to listen to your voice while looking at the witness. This position is effective during cross examination when you wish to focus the jury's attention on an unbelievable or openly hostile witness. It is often effective to begin a cross examination from your counsel seat (6) in order to shift the jury's focus immediately. This responds to the jury's desire to see your reaction to the testimony.
During cross examination it is usually preferable to focus attention on yourself. Stand in front of and face the jury (1), delivering single-fact questions to the witness. This will paint a very clear picture while maintaining the focus on you and not the witness.
You may sit behind counsel table (7) while asking preliminary, short or less important questions of a witness.
Place small exhibits and/or demonstrative evidence requiring explanation between the witness box and the jury stand (11-13). This shifts attention away from your opponent, while keeping the exhibits in view for the judge. If the jury seats do not turn, place the exhibits at an appropriate distance directly in front of the jury box. Place large exhibits at a distance (15,16) so that they can be seen by the jury, judge and your opponent.
Stand near the judge (14) when presenting a document for the witness to examine. This places you in close association with the judge in the jurors' eyes and attracts their attention to you and away from the witness.
Positioning during the closing argument should reflect the jurors' familiarity with you. It is now both safe and effective to closely approach the jury. Stand close to or approach the jury rail (2,3) when speaking about intimate, personal or uncomfortable details of your case. Should you wish the jurors to focus on you and not the opposing counsel, speak from the jury rail nearest to the witness stand (2).
Stand next to or behind your client (8,9) to make the jurors face their feelings about him or her, especially if your client is handicapped or distasteful. Approach and point to the witness stand when discussing an important witness's testimony during the closing.
Your trial utilized the entire physical courtroom; your closing argument can as well. Feel free to approach the spectators, pointing to witnesses i.e. family members of the deceased (who should be seated in the front row) while discussing their testimony.
These guidelines for positioning will help you use the courtroom as an actor uses the stage. As you plan a trial, envision your positioning throughout. Remember: in the theater and the courtroom, preparation is the key to success.