Thursday, March 29, 2012
Last night, I watched coverage of the Obamacare arguments on several networks. One of the networks interviewed Senator Mike Lee. He concluded that Justice Kennedy would probably vote to strike down the individual mandate based on Kennedy's questions and Lee's observations of Kennedy's body language and facial expressions.
I don't know if Lee's conclusion is correct. However, it illustrates the importance of observing body language in the courtroom. Observing the judge's body language (or the jurors') gives insights into what the judge is thinking. Most attorneys seem oblivious to what the judge is doing during a hearing or trial; they concentrate instead on their own presentation or what their opponent is doing. Wouldn't it be helpful to have some understanding of what the judge is thinking?
You don't have to be an expert in body language to read a judge. One time, I was second chair for the defendant in a bench trial. There were only two witnesses; the plaintiff and the defendant. There were two issues in the case, both of which we had to win to prevail. As my co-counsel was cross-examining the plaintiff, I observed the judge. During my co-counsel's questions on the first issue, the judge perceptively nodded his head up and down, as if he were agreeing with my co-counsel's questions, but, during the questioning on the second issue, the judge sat still. When he was wrapping up the cross-examination, my co-counsel asked me whether he had left anything out. I told him that we had won on issue one but that he needed to ask more questions on issue two. He asked a few more questions on issue two, but nothing that really clarified the issue. After he finished his cross, my co-counsel moved for a directed verdict. The judge stated that he was satisfied that we had won on issue one but that he wanted to hear our client on issue two. In other words, I had discerned what the judge was thinking from his body language. (We eventually won on issue two.)
Watching the judge doesn't always work, but I have several other illustrations of how I discerned the judge's thoughts from the judge's body language. Observing a judge's body language is important; a lawyer should use all available tools.