Introduction – July 2000
Never let the fear of striking out get in your way. -Babe Ruth
July 2000. Manhattan. 9:45am leisurely coffee in office.
Interrupted by screaming interloper.
“COURT! ADJOURN! EMERGENCY! 10am! EASY!
DON’T COME BACK WITHOUT ADJOURNMENT!”
“Sure. I’ll handle it.”
WAIT? WHAT?? Bronx? OMG. No tokens left. Didn’t pack sneakers.
“READ PAPERS ON THE TRAIN!”
Walkman on. Brooklyn Bridge. Union Square. Grand Central. 59th. 86th. 125th. 138th. 149th. 161st.
BRONX!
Sweating. Blisters. Hobble to court in pleather heels.
“Um, yes I would like to request a 2 week…” SLAM
OMG. WHERE IS THE PAYPHONE?? “Law Clerk um shut door…I’ll try.”
“I'd like an order to show cause for an emergent application.” SLAM
Payphone. “Okay, I’ll try.”
“Sir, I need a court reporter to make a record…” SLAM
3 strikes.
Court Officer staring. Amused. Wearing a Yankees lanyard. I nod.
LAST BAT. “Watching the game tonight? Pettitte pitching.”
“So what’s wrong Yankee girl? 3 TIMES?? You seem nice. WAIT.”
“Yankee girl…You have a 2 day adjournment. GET YOUR PAPERS IN!
You just can't beat the person who never gives up. -Babe Ruth
2020 1st pandemic trial in Bronx. I’ll show you how to avoid a strike out. I did.
So that’s how in 2000, I almost struck out in the Bronx. I did everything I learned. I did what I was told. I went by the book. It didn’t work. I couldn’t get the motion adjourned. So I threw out the book and used my common sense. What hadn’t been taught in law school. Or at work. I made my case. Not to a judge. Not to the law clerk who slammed the door in my face three times. I looked outside of the (batter’s) box for help. Then I proudly went back to my office after hitting an RBI.
In-person pandemic trials are moving forward. A criminal trial which had been halted in March just restarted near the Bronx courthouse where I made my winning argument twenty years ago. The lawyers trying these cases are facing communication obstacles they never imagined. They weren’t taught to cross-examine a witness wearing a mask in trial advocacy. The senior partner didn’t tell them what is was like to conduct voir dire when you can’t see the faces of jurors. No one shared with them how to articulate clearly while wearing a mask. And no one will. No lawyer will be taught how to try a case during a pandemic by another lawyer. But like I did twenty years ago, you must look beyond the obvious, and find help outside of the (courtroom) box. That is how you will not strike out.
Where do you look for help? You look for help from people who have been there. Other lawyers have not been there. Who needs to communicate crucial information with a mask while others are wearing masks? Surgeons. Nurses. Medical professionals. Who knows about voice modulation, articulation, tone? Speech pathologists. Audiologists. Vocalists. Body language? Actors. This is where you will find the answers. However, I know you have a lot of work to do…so I found them for you. Below are a few in-person pandemic trial tips:
Obstacle:
If jurors are wearing face masks how can I gauge their reactions to voir dire questions?
Solution:
Look at their eyes
As the features of someone’s gaze can’t be controlled, the eyes are the most reliable of guides to use even if the person isn’t wearing a facial cover-up. Studies suggest that people dig into their inner feelings and allow the autonomic nervous system to take over control of the messages that the eyes signal.[i]
Studies show that “the direct gaze, when we speak of emotions, is as informative, visible and well-detectable muscular facial expressions, and eye movements such as gaze aversion.” “The emotional gaze in a still-face setting” can still have power. In the first of two studies the majority (79%) of participants (100 adolescents aged 14-18) viewers (10 judges ages 27 to 61 years) were able to accurately recognize the emotions of happy, sad, and angry from photos of their eyes alone. [ii]
Look at their eyebrows.
Although the aforementioned study didn’t discuss this, the photos they provided of eyes used in their studies changed not only in width of the eye opening (widest in angry and happy) but also the positioning of the eyebrows. When angry, eyebrows form a “V” but when happy, they bend upward toward the top of your head like an upside down “U.” Sad eyebrows form an upside down “V.” The mouth, may be hidden by a face mask, but eyebrows can still become responsive to emotions and you can use this information in reading other people’s feelings.[iii]
Look at their body language and clothing.
Research on communication makes it clear that these “paralinguistic” elements of speech are important guides to gauging the feelings, sincerity, and intent of other people. Reading these cues in others will, similarly, help you figure out how they’re feeling. [iv] As jurors will be seated, it is important to watch closely as they walk into the courtroom as it is one of the only opportunities to gauge their gate, clothing, and standing body language. Do they appear nervous to be in a courtroom setting? Are they flinching when someone gets too close to them? If so, they may be signaling they are uncomfortable to be there. In order to make this determination it is important to know how stringent the deferral process is for jury duty during a pandemic. If there is a lot of leeway to defer, your analysis of perceived discomfort may be different than if deferral is more difficult. For example, in a trial which started pre-pandemic, such as the aforementioned Bronx case, the jurors did not have a choice to be there such as in the case of a new trial. Is a prospective juror fidgeting? Visibly uncomfortable with the mask? All of these may be indications of someone who does not want to be in a courtroom.
Obstacle:
I am wearing a mask and my verbal communication is stifled.
Solution:
Speaking for hours at a trial in normal times is in itself a challenge. Having to do it with a mask and/or shield is even more difficult and is going to take a lot of preparation. There are two aspects of effective communication while masked, voice preparation and body language.
Your Voice
1) Practice with the mask. Psychologically you will need to approximate the conditions you will be trying your case as closely as possible. Physically, you will need to build up stamina to articulate clearly, which is challenging when your mouth is covered. Voir dire, opening, direct, cross, and summation should all be practiced with your mask. If you have any witness who will be testifying with a mask (check the rules of the court, and also with the witness, as they may opt to wear one even if it is not required), the witness should be prepared to testify with the mask, and be prepared accordingly.
2) Before your trial avoid dairy, alcohol, spicy foods, soda, ice cold water or anything which may affect your voice. Caffeine is also on the “avoid” list, but I refuse to suggest the impossible.[v]
3) Stay hydrated in advance of the trial, and during the trial. Room temperature water is best. Avoid ice cold water, it can affect vocal cord function.
4) Licorice root, which can be put in tea is a demulcent which forms a protective layer over the tissues in your throat, thus preventing irritation in your mucus membranes. Honey will also coat your throat and prevents vocal strain.
5) Learn to warm up your vocal cords (specific tips from Beyonce and other vocalists in article cited in endnotes).[vi]
Your Body Language
6) Gesture big, and more dramatically than you are used to doing. Just as you want to assess the body language of your jurors, you want to use your body language to communicate. Practice by exaggerating your gestures and speaking with your hands and your eyes. For example, if you are giving a list of three items count them off by using your fingers while you say them.
7) Stride wide and work the stage. Your courtroom is going to look different at a pandemic trial. The jurors will not be in the small jury box. They will be socially distanced and will force you to address a larger area. Think about an actor who needs to be seen by those even in the bad seats. Don’t stand in one place. Stride wide and work the stage. This extra walking, with the mask while talking expends energy. This is why performers practice singing and dancing at the same time. This is a learned skill. Practice.
8) Prepare to say less. Probably a good habit even in non-pandemic trials, but when a jury will have an even more limited attention span due to the discomfort of masks, the possible fear of being in a courtroom for too long, and the difficulty of listening to someone in a mask, you will be more well received if you keep it as short as possible. Also, you will be uncomfortable and working the “stage” while encumbered by the mask will be tiring. Do yourself and the jurors a favor and make things as short as possible. Don’t fool yourself into thinking this is anything like a regular trial. Psychologically and physically it is more difficult for everyone.
Obstacle:
Due to social distancing with jurors spaced so far apart I am having trouble seeing all of their reactions while I am talking. I can only focus on a few at a time.
Solution
As discussed above, not only will you have to stride wide and work a large area, but you will also have to read the jurors expressions (eyes and body language) in order to gauge their reception to your arguments and the evidence. This is not the time to fly solo. Consider bringing another colleague, trial team member, or outside consultant to help you interpret the jurors’ expressions. This is especially critical during voir dire, as you may be posing a question to prospective juror #1 and you can’t see the reaction of juror #12 as they are spaced so far apart. This may be an additional expense to your client, so you may need to request authority before trial.
Conclusion
These are only of the few of the many considerations and proposed solutions to think about when trying an in-person case during a pandemic. Think through the trial in your mind and if you have specific questions, call me. I’ll help you. Just don’t ask me how to get an adjournment. Those days are over.
[i] https://www.psychologytoday.com/us/blog/fulfillment-any-age/202004/4-ways-communicate-when-you-cant-see-someones-face [ii] Roiblat, Y. Cohensedgh, S., Frig-Levinson, E. Suman, E., & Shterenshis, M. (2019) Emotional expressions with minimal facial muscle actions Report 1: Cues and targets. Current Psychology: A Journal for Diverse Perspectives on Diverse Psychological Issues. Roitblat, Y., Cohensedgh, S., Frig-Levinson, E., Cohen, M., Dadbin, K., Shohed, C., Shvartsman, D., & Shterenshis, M. (2020). Emotional expressions with minimal facial muscle actions Report 2: Recognition of emotions. Current Psychology: A Journal for Diverse Perspectives on Diverse Psychological Issues. doi: 10.1007/s12144-020-00691-7 [iii] Ibid. [iv] https://www.psychologytoday.com/us/blog/fulfillment-any-age/202004/4-ways-communicate-when-you-cant-see-someones-face [v] https://flypaper.soundfly.com/play/singers-diet-20-things-singers-shouldnt-eat-show/ [vi] https://www.voices.com/blog/vocal_warm_ups/