Can a Lawyer’s Personality Sway the Jury?

To what degree do the histrionics of lawyers turn jurors on or off? Is sudden celebrity--such as that bestowed on defense attorney Barry Scheck during the O.J. Simpson trial and brought by him to the Massachusetts “nanny trial”--a blessing or a curse? Can pricey consultants really pick jurors who’ll vote the “right” way?

Yes, no and maybe to all of the above, say the experts. The jury is still out.

Choosing a jury is again in the news as selection in the trial of accused Unabomber Theodore Kaczynski is underway in Sacramento.

With his lawyers expected to mount a diminished-capacity defense--and prosecutors likely to paint Kaczynski as sick, but not crazy--his fate will rest in the hands of a jury that, like most juries, is apt to be swayed by more than the facts.

“We’d like to think that justice is done, no matter who tries the case,” says John Shepard Wiley Jr., UCLA law professor and a former assistant U.S. attorney, “but who tries the case can make a difference.”

On the whole, Wiley says, he believes that “jurors take their oaths and their civic obligations extremely seriously,” are “very aware of the gravity of the job at hand and want to do the right thing. Payback is not the right thing.”

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As for jurors being swayed by the presence of lawyer-celebrities, he observes, “Just because you’re famous doesn’t mean you’re loved. Just ask Richard Nixon.”

Tenacious attorney Leslie Abramson, who crafted the winning abuse defense for the Menendez brothers’ first murder trial, says, “Because I’m very well known, I need to know if [prospective jurors] have attitudes about me,” and she tries to ascertain that on questionnaires given to jury panels.

“Those who lay various misdeeds at my door usually wind up leaving,” she says. “Some jurors have been very negative because of that [Menendez] case, and they’ve left. And there have been some who have been very positive, and stayed.”

While positive does not always add up to acquittal for a client, she adds, with negative jurors, “I can’t function.”

A lawyer’s personality can affect a trial outcome, says USC law professor and former trial attorney Erwin Chemerinsky, “but we’ll never know how much. It’s often hard to separate the messenger from the message. If we like somebody who’s delivering a message, we’re more likely to accept their message.”

But, he adds, “It would be an oversimplification to say that just because a jury doesn’t like a lawyer, that’s why they ruled against a lawyer’s client. We can make too much of that.”

He sees lawyer celebrity as a double-edged sword.

“There’s undoubtedly a credibility with the jury that comes with a lawyer being a celebrity. There’s excitement. I think it would be very hard right now to be the lawyer opposite a Johnnie Cochran or a Marcia Clark. On the other hand, that lawyer may come in with negative baggage if people don’t like what they saw in the prior case.”

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Seeming insensitivity to a plaintiff’s pain and suffering tends to put jurors off, Chemerinsky adds, mentioning the New Mexico case in which an elderly woman who scalded herself with McDonald’s coffee and was awarded $2.7 million (later reduced to $480,000). “McDonald’s seemed very insensitive, and the jury made McDonald’s pay.”

The most important thing he teaches: “Never lie . . . either by commission or omission. You don’t ever want to deceive the judge; you don’t ever want to deceive the jury.” If a defense lawyer knows a client is guilty, Chemerinsky says, “your role . . . is to make sure the prosecution proves beyond reasonable doubt, not to argue to the jury that the client is innocent.”

In the courtroom, he says, “There are times when dramatics are needed and effective.” He cites Cochran’s closing argument in the Simpson case. “There are other times when the case should speak for itself. Some people it comes naturally to; with some people it would be phony and ineffective.”

UCLA’s Wiley says, “Jurors are us” and, like us, are turned off by certain behaviors. “Arrogant posturing never goes over well,” while logical, clear, persuasive presentations do.

“There’s a fine line. Courtrooms can be dramatic places. The drama is real. A moment of genuine drama can be a compelling event and set jurors thinking in a way that’s hard to reverse.

“On the other hand, phony drama, manufactured suspense--people resent it and won’t buy it,” Wiley says. “If jurors get a whiff that a witness may be reenacting a rehearsed performance, conveniently crying without sincerity, that can be extremely counterproductive. A lot of table-pounding and hot air also can be counterproductive.”

“I don’t temper my behavior based upon who the jurors are,” says Abramson. “I’m not a one-note samba. If I’m angry, I feel it’s appropriate to show it.” And, she says, who knows? Some of those seemingly mild-mannered jurors “may love to be aggressive. They’re just too timid.”

Elizabeth Loftus, a University of Washington psychology professor who has done extensive research on juries and their decisions, says, “Jurors notice all kinds of things that you might not think they would be noticing, like the kind of car being driven by the client or the lawyer. Sometimes very small things can make a difference. That’s why lawyers do things like put their hand on the defendant, to show warmth and human relationships.”

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In studies of jury trials for the American Bar Assn., Loftus and others asked jurors their opinions of specific opening and closing arguments. One case involved a lawsuit in which the plaintiff’s attorney compared his client to James Meredith, the African American student who broke down racial barriers at the University of Mississippi in 1962.

“This offended one juror because the plaintiff was an obnoxious, loud-mouthed, obscene blowhard,” Loftus says, and the juror was angered at the comparison with “a man of true principle.” The jury awarded that plaintiff minimal compensation.

Jurors do judge lawyers, she says. “I’ve definitely heard jurors say, ‘If I get in trouble, I want him to represent me.’ They’ll have a favorite.” She also recalls one juror saying that “the lawyer looked like an unmade bed.”

Whether lawyer celebrity helps or hurts, “I don’t know,” Loftus says. “Jurors do get a kick out of having famous people around,” an F. Lee Bailey or Gerry Spence.

But in the Massachusetts au pair murder trial, there was speculation, denied by jurors, that the jury was turned off by Scheck, that he was “too New York” or too closely associated with the Simpson case.

It could happen, Loftus says. “In Barry’s case, his fame has come so recently, and he is very strongly identified with O.J. It’s certainly conceivable it’s going to be on the minds of white jurors who tended to be more disappointed at the outcome of the O.J. trial.”

Philip Anthony, who has a PhD in psychology and is CEO of DecisionQuest, Torrance-based trial consultants who did pretrial work for the prosecution in the Simpson criminal case, says 20 years of experience and “thousands and thousands” of cases have taught him that there’s rarely a correlation between jurors’ opinions of certain lawyers and jury decisions.

“A jury can report they absolutely hate a lawyer, but find for that lawyer’s client,” Anthony says. And often, he observes, jurors will find for a plaintiff whose lawyer “is obnoxious, overbearing, whining, quite emotional” and against a “statesmanlike, reserved” defense lawyer. “They’ll say things like, ‘You’re right, we hated him. We talked about him, we laughed about him during deliberations. But we just couldn’t find against him.’

“Jurors really do work hard to base their decision on facts of the case,” he says, and are rarely swayed by inappropriate lawyer behavior.

“You’ll hear jurors rationalize, ‘Oh, that’s just how a lawyer has to behave.’ Some lawyers scream, some pound, some cry, but most of the time jurors will give lawyers some slack. They just perceive that to be how the system works. The vast majority have not served before so they don’t have pre-defined expectations of what appropriate behavior might be. Lawyers can do a little stretching.”

On the other hand, Anthony says, if a lawyer is frequently and consistently admonished by the judge, “It becomes clear to jurors that something must be wrong here.”

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Are jury consultants an indulgence of the embattled rich, a basic necessity or a waste of money?

Says Wiley, “Social scientists in universities have made rather unimpressive progress this century in predicting human behavior. But we now have come to believe that jury consultants can pull rabbits out of hats.”

But, whereas Wiley thinks consultants of little use in choosing friendly juries, he believes they are valuable as a pretrial audience “to double-check the lawyer’s own ideas about what’s persuasive and what’s not” and “to force lawyers to simplify their cases and make them more comprehensible.”

Noted Los Angeles antitrust attorney Max Blecher has relied on his wife Sally as his primary jury consultant for more than 40 years. She alerts him to prospective jurors who are “bad news” and, during the trial, may clue him in that jurors appear to be “thinking about what to make for dinner” instead of listening to a witness.

As for the “experts,” Blecher says, a consultant may conclude that the ideal juror is “a black resident of Pasadena between the ages of 52 and 57. The probability is there’ll be no one fitting that profile on the panel and, if there is, the other side will probably knock them off.”

He’ll go with “instinct and visceral reaction . . . and that wisdom that comes with gray hair.”

Blecher, who graduated from USC law school at a time when, he says, anyone with the tuition could get in, suggests that jury consultants are more valuable to lawyers educated at elite Ivy League colleges and law schools who “don’t have any sense of how average people think or react.”

Going in, there probably is a tendency, Blecher says, for jurors to be biased against the defense in criminal trials. “The idea that people are presumed innocent isn’t always the prevalent view. I think there’s a lot of people who don’t think that. [But] they say they do.”

Like others, however, he believes jurors have “a high sense of duty and dedication. If some person really hates a lawyer, it probably could color their assessment in a case, but I think for the most part they separate the two and will vote for what they think is right.”

Still, Blecher says, “You can alienate them. They like you to be courteous. . . . It doesn’t mean they don’t like to see a little blood and guts, but with a velvet glove. You don’t have to sneer or be contemptuous or make sarcastic remarks. I don’t think that sets well.”

In the au pair case, Abramson says, the jurors did not convict Louise Woodward because they disliked Barry Scheck.

“The jury convicted her because they don’t like dead babies. She was the only target they had. Juries get emotional. Usually they put those petty thoughts and emotions aside . . . but here were people saying, ‘Some son of a bitch must be liable. There’s a dead baby.’

“Reasonable doubt is a gut reaction.”