In the world of litigation, words matter. Written submissions, statements, admissions , and contradictions all shine a light on the ultimate goal—getting to the truth. However, one important and rarely-emphasized area of focus in litigation is non-verbal communication. Whether we are talking about juries, lawyers, litigants or judges, one common factor at play is the human condition to subconsciously send and receive non-verbal messages.
Impressions and Non-Verbal Characteristics
During litigation, impressions are always being formed – whether or not words are spoken. Facial expressions, eye contact (or lack thereof), and physical gestures are just a few examples of non-verbal communication constantly being revealed and subconsciously evaluated.
Decoding this non-verbal leakage is a valuable skill for lawyers and litigants in order to gain better insight into assessing what the jury, judge, other litigants, and counsel may be feeling.
Studies have shown that a significant portion of communication is rooted in non-verbal characteristics – such as gestures, voice, and facial expressions. Although there are also many cultural differences that influence non-verbal communication, there are seven universally recognized expressions of emotion that have been identified across all cultures – anger, fear, sadness, disgust, enjoyment, surprise, contempt – following research by psychologist Dr. Paul Ekman.
The complex interactions of the human facial muscles have been studied and every expression has been mapped. More than 3,000 facial expressions have been recognized, many of which tend to be involuntary.
Sometimes, facial expressions may be momentarily at odds with what a person is saying or what someone is gesturing, through very brief emotional reactions called micro expressions, which can last just a fraction of a second. As human beings, we innately trust the non-verbal message over the verbal message if they are in conflict.
Facial expressions may be unintentional or intentional but the context as a whole will be important to focus on.
For example, defiant words of anger without the matching facial expression can raise suspicions – a lack of authenticity contradicts the verbal message. Judges, litigants, or lawyers can use this to their advantage to pick up on credibility issues, which would not otherwise be obvious from a reading of a court transcript.
Deceptive Non-Verbal Cues
Experts have commented that when facial and body gestures are misaligned, this incongruence creates a disconnect.
Take Bill Clinton’s famous public denial about having sexual relations with Monica Lewinsky. In his denial, he points in one direction while his head and eyes are facing another direction, creating a clear misalignment. As he states, “I did not have sexual relations,” his head is mostly stationary. However, he clearly shakes his head “no” as he proclaims that he “never told anybody to lie not a single time never”. This subtle contrast is interesting. As he walks away from the podium, there is a clear micro expression of anger on his face with his lips pursed together seen at the 36-second mark.
Take Susan Smith’s public plea for the return of her missing children. She exhibits no facial expression consistent with sadness or anger. Her cry at 14 seconds is unpersuasive. By comparison, her husband standing beside her seems to exhibit more genuine expressions of emotion. Unsurprisingly, Susan Smith was subsequently convicted of drowning her children.
Defensive gestures such as crossed arms or legs can demonstrate a lack of openness suggestive of possibly hiding something or being uncomfortable about hearing something. On the other hand, uncrossed arms, or open hands with palms facing upwards signal greater sincerity and “openness” to what is being heard or said.
In Russell Williams’ police interrogation, his arms are crossed, his head downward and he avoids eye contact. It was quite a telling tape demonstrative of a defensive witness wanting to hide something. To nobody’s surprise, he was later convicted of first-degree murder. By extension, jurors or witnesses exhibiting these defensive gestures can be telling.
Interestingly, there is also research to suggest that changes in pupil size reflect a clear interest in something. Pupil constriction tends to reflect a negative response. These responses are controlled by the autonomic nervous system and are involuntary. This would explain why poker players often wear sunglasses. That being said, applying this to witnesses, judges, jurors, and even counsel (who do not wear sunglasses in court) can give insight into how they may be feeling.
Jurors and judges may also study the reactions of lawyers in court in addition to witnesses. For example, subconscious facial expressions or subtle nodding or shaking of a lawyer’s head when hearing evidence from their client can create impressions in the minds of the finders of fact.
Non-verbal reactions of others (i.e. jury, opposing counsel, judge etc.) may inform a legal team in how to best frame an argument at trial or how to choose an offer or counter offer at mediation. It can also enhance credibility and better persuade others if done properly.
Fueling the “Greatest Legal Engine” for Discovery of Truth
Whether dealing with an examination for discovery, mediation or trial, lawyers, litigants, judges and juries are constantly revealing and receiving non-verbal cues. Being mindful of the unspoken language can offer a strategic advantage.
As the famous American Jurist John H. Wigmore once proclaimed, “[c]ross-examination is the greatest legal engine ever invented for the discovery of truth”. While this may be accurate, it truly is the non-verbal communication that fuels this engine.