Law Life: What they see is what you get: Jurors and 'visual identity'

By Correy Stephenson
The Daily Record Newswire

If a picture is worth a thousand words, how much is a real, live plaintiff or defendant sitting in front of a jury worth?

It could be the key to your case.

From a plaintiff’s jewelry to a defendant’s suit to the appearance of family members who stop by the trial, jurors are taking in everything they see and factoring it into their deliberations.

Jurors stuck in a courtroom for hours, days or weeks at a time pick up on even the tiniest of details, explained Douglas Keene of Keene Trial Consulting in Austin, Texas, and lawyers need to understand and address the appearance of their clients and witnesses.

Keene refers to the concept of “visual identity,” which includes everything from clothing to jewelry to general behavior.

“From across the room, how is this person perceived? Do they seem credible?” he asked. “Worthy of compensation in the event he or she was injured? Or trying to get something past the jury?”

To deal with this phenomenon, lawyers should try to “manage the perceptions that are going to be generated by the parties’ appearance in court,” said Richard Gabriel, president of trial consulting firm Decision Analysis in Los Angeles. This “involves treading a delicate line, because jurors are sophisticated. You don’t want them to think a party is dressing up or trying to create a new image, but you have to be aware that jurors are going to have first impressions of parties’ tattoos, piercings or their style of dress.”

A typical example of managing visual identity: most criminal defendants are allowed to change out of their orange prison jumpsuits before trial, or to remove their shackles, noted Dr. Andrew Sheldon, a lawyer and psychotherapist who founded SheldonSinrich, a jury consulting firm in Atlanta, Ga.

“It’s hard to look at people in shackles, for example, without making some kind of assumption about what they were arrested for or how dangerous they may be,” he said. “Jurors are always alert to and taking in cues from everything they see in the courtroom.”

Does this shirt go with this case?

Lawyers used to purchase clothes for clients of moderate means to dress them up for trial, Keene said, although that is no longer typical.

Instead of trying to make clients look admirable, focus on making them authentic, he suggested. Parties should show respect to the court by dressing appropriately, but in a way that suits the people they are, he said.

Keene worked on a number of Jones Act cases involving offshore oil platform workers, who were not “coat and tie guys. The goal was to clean them up, but keep them credible to a jury,” he said, which meant a neat shave, a recent haircut and clean clothes, maybe a modest sport coat or shirtsleeves and a tie.

The same rules apply on the other end of the spectrum, Keene said, noting the poor choice Martha Stewart made carrying a Hermes Birkin bag — which sells for thousands of dollars — to her criminal trial.

“It showed a tone-deafness” towards jurors, Keene said.

He suggested that women keep jewelry to a minimum — a single strand necklace, posts or simple hoops but no dangling earrings, and no more than one ring on each hand — and wear low heels, no higher than two inches.

Gabriel agreed.

“Matters that people are coming into court about are serious matters, so people should look the part,” he said. “Jurors are working with limited amounts of information so they love to make extrapolations of a person’s personality and intentions based on what they are wearing, or how they behave.”

The principle applies to both sides of the bar, Sheldon noted. A corporation facing a lawsuit should consider who is going to represent the company at the table at trial. Should it be a male or female employee, older or younger? If a former female employee is bringing a sexual harassment suit, having a woman represent the company may send a better message to the jury than a man in pinstripes. In an age discrimination suit, an older, seasoned representative might be a better choice.

Lawyers must also keep in mind the jurisdiction. Some federal courts require a coat and tie, and local rules may require women to wear skirts.

“Lawyers need to know where they are and what the norms are for dressing in that area,” said Gabriel, who visits clients in Hawaii where attorneys rarely wear a suit and a tie.

And remember that the visual identity concept applies to the entire group, Keene added. “The whole entourage needs to be respectable,” he said, including the lawyers.

When broaching this subject with clients, lawyers need to be sensitive to those clients’ feelings about their appearance.

“There is a line,” Sheldon emphasized. You still need to ensure that the person is as comfortable as possible, given the stressful situation of a trial.

Gabriel suggested talking to the person to get some information about how he or she typically dresses and appears, and whether there are certain occasions they dress differently for.

To make sure that everyone is on the same page, a dress rehearsal is essential.

“Especially in personal injury cases, hold a couple of meetings with the person dressed as he or she expects to be dressed at trial,” Keene said.

If you’re particularly concerned about this issue, address it during voir dire, Gabriel recommended.

Say to “potential jurors, ‘My client is accused of a terrible crime. Who here looks at him and just by appearance thinks it is probably true?” If you ask the question and address the issue head-on, the party’s appearance doesn’t create an unconscious impression in a juror’s mind, he said.

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