Our Tone Matters – Particularly In More Difficult Cases

Posted on February 06, 2019 in Uncategorized


The vast majority of our time is spent investigating the evidence in our cases, reviewing the state's evidence, preparing to attack field sobriety evidence, preparing to cross-examine cops, and preparing arguments to discredit blood or breath tests. That time and work is important and, indeed, essential to our success.

However, we frequently overlook the importance of emotional aspects of our case. The importance of emotional aspects and the tone of the defense in death (vehicular homicide) cases and serious injury by vehicle cases cannot be overstated. We need to be cognizant of the tone of our defense, and we need to actually spend time readying ourselves to project the proper tone.The defense's emotional tone is always important, but it is exponentially more significant in vehicular homicide cases. Almost any time that we hear people talk about defending vehicular cases, we hear them say "death is different". The phrase is true. Anyone that has handled a trial, particularly a jury trial, involving a death will tell you that the way jurors react when they recognize that a death has occurred.

The change in the jurors disposition is profound and it clearly has an effect on whether jurors will accept your theory of the case. However, beyond saying "death is different" and recognizing that we need to approach these cases differently, very little substantive advice is given about how we should approach these cases.It doesn't matter what type of case that you are handling, your tone matters. And, as with everything that you do in your professional life, your tone should be purposeful. You can play fast and loose with your tone and emotions when someone else's future is not at stake (although we don't advise it), but when you are in court – particularly in cases involving serious injuries or death, your tone and control over your emotions really matters. Let's look at some of the areas where lawyers can use their emotional tone to connect with jurors and help them accept the defendant's theory of the case.

Considerations in determining the appropriate tone for your case

I truly believe that consistency in tone and the emotions that drive your case are important. If jurors agree with the tone of your case, they accept it and they want to know that they can expect it when they hear from you. This is one of the important considerations that you must have when you are trying a case with another lawyer.

If you and another lawyer have vastly different voices in the courtroom, jurors might be taken aback. They might spend valuable emotional energy adapting to another lawyer's style rather than absorbing the content and facts that are critical to your case. So, be careful in deciding to have co-counsel present part of your case.

How do you show and manifest the appropriate tone in your case?

The first step towards showing and manifesting the appropriate tone in the defense of any case is being consciously aware of your tone. Make sure that everything that you say and do is a conscious effort. When you are in the presence of jurors (or the judge), be aware that all of your actions and are being judged. For example, if you discussed with jurors in voir dire how incredibly tragic the accident was and the loss of life in this case is and you subsequently sat down and begin smiling while conversing with your client, jurors may interpret your actions as inconsistent with your statements. Consistency in who you are and how you present yourself and your case is essential, and you must consciously pursue the appropriate tone. Below are some (but obviously not all) of the ways that we can express our tone in the trial of more serious cases.

Voir Dire in Vehicular Homicide Cases

Voir dire in vehicular homicide cases is an exceptional opportunity for you to express to jurors the tone of your defense. It is the first time that you will be able to acknowledge the seriousness of the case and to let them know how you feel about the loss of life in this case. Take advantage of primacy. Do not sit down without tapping into this opportunity for an emotional connection. Let jurors know that you care about the person, their life, and the loss that their family has suffered, and let jurors know why you and they are going through this process.

Tone During Cross-Examinations in Vehicular Homicide Cases

Unfortunately, many lawyers default to hyper-aggressive cross-examinations of witnesses. Don't do this. Be thoughtful, be purposeful, and be dynamic. Adjust your tone according to the actions of the witness. This is the real downside to having a completely scripted cross-examination. Your cross-examination of every witness needs to be flexible enough to permit you to adjust your tone. Before you become hyper-aggressive with a witness, the jury needs to give you permission based upon the actions of the witness.

Distinguish between your law enforcement officers and lay witnesses. In many cases, the tone and tact that you take with law enforcement officers must be vastly different from the tone that you adopt for lay witness examinations. Only in the very exceptional case will jurors give you emotional permission to aggressively cross a lay witness. That is generally not the case with law enforcement officers that jurors will typically hold to a higher standard.

Your Tone in a Serious Case Must Be Consistent

Be careful about everything that you do within the presence of jurors to assure consistency with the tone that you believe to be appropriate. Are you smiley when you get nervous? Laugh at inappropriate times when you are nervous? Well, get some counseling first. And second, don't do that stuff in an around a jury. If those actions aren't consistent with the tone of your case, you'll put your credibility at risk.

Every part of the trial of a vehicular homicide case gives us an opportunity to reach an emotional connection with jurors, and we need to work to make sure that all of our actions before the jury are consistent with the emotional tone that jurors have come to expect from us.

The Sessions Law Firm, LLC
115 Martin Luther King, Jr., Dr., SW, #410
Atlanta, GA 30303
Tel: (470) 225-7710

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