We recently won a $5 million judgment in a five-week jury trial in Superior Court in Orange County, California. This was a business case for two sophisticated corporate clients. As trial judges like to do, on several occasions during the course of the trial, our judge exhorted both sides outside the presence of the jury to explore settlement. “It's never too late to settle” he would intone. He continued, “there is an invisible hand at work in this courtroom guiding the jury, and one side or the other could be very disappointed in the result.” Our judge was expressing his faith that a jury is a very powerful being that will inevitably reach the right result not only based on the evidence but also on intangible factors that guide it toward fairness and justice. We didn't settle because we had faith in our case and our clients had faith in us. We trusted our trial judge and our jury. The jury then rendered its verdict, no doubt guided by the “invisible hand.”

Our judge's turn of phrase took on clearer shape the evening after the verdict when we received an extraordinary e-mail from our jury foreperson. He explained that he had been too exhausted and emotionally drained following the trial to meet with us but that he now wanted to reach out.

After first complimenting us on our trial skills and assuring us that the verdict was based only on the evidence, the foreperson turned his attention to defense counsel. Our star witness in the case was a woman. Speaking not only for himself, the foreperson related that the jury found both defense attorneys to be misogynistic and that the jury believed that had the star witness been a man, he would not have been treated in such an insulting and demeaning manner during cross-examination.

The foreperson next observed that the two defense counsel “did a disservice to their clients.” The jury saw that during trial the two of them would turn to each other and make strange noises and facial expressions accompanied by ridiculing gestures. He characterized their behavior as “frat-boy” and “conduct unbecoming a judicial officer.” The jury found this behavior to be “sophomoric” and “disrespectful.” We shared this e-mail with our partners in our law firm, many of whom are very experienced trial attorneys. Not one of them could recall ever seeing such a gesture from a juror.

We all know the phrase, albeit most commonly used in criminal law, that “you will be tried by a jury of your peers.” But the trial attorneys are no less the peers of the jurors than the parties. In order to survive rigorous voir dire and the many peremptory challenges afforded to each side, jurors are fair minded, well educated and capable of critical thinking. Jurors do not want to be insulted by rude lawyer behavior because it makes it seem as if they can be persuaded by such tomfoolery rather than by the evidence, the law and the arguments of counsel.

During trial we were aware of our opponents' snarky behavior. We knew they were constantly whispering, sighing, grunting and eye rolling. Their intent was to convince to the jury that our case was vacuous, silly and not worthy of being taken seriously. We discussed whether to report this behavior to the trial judge and seek an admonition. Ultimately we decided against this because even though the behavior was insulting and distracting, we concluded the jury would find it inappropriate and offensive. Their behavior continued until the very end. During our closing argument, one of the defense counsel took off his watch and slammed it on the table as if to ask how much longer this tedium could possibly continue. However, in every trial, there will be occasions when the other side is scoring points that cannot be mitigated with evidentiary objections. There can be a compulsion to react in such nonverbal ways. This should not be done. The opposite should occur. Rather than wincing or sighing, a good lawyer will remain completely impassive. A trial attorney that cannot control his or her facial expressions and body language in front of a jury has no business being a trial attorney. Let the other side hire him or her.

Of course, as the foreperson's e-mail proved, our intuition and instincts in not complaining to the judge proved right. The jurors found this behavior to be insufferable. In California state court, jurors are allowed to submit written questions to the trial judge. In the middle of trial, one juror asked whether it was appropriate for defense counsel to nod or shake his head to his client on the stand while a cross-examination question was pending. Rather than being chastened, the lawyer seemed unperturbed. Later, while we were sharing a rare light moment with defense counsel during a recess, this attorney joked about the incident commenting that the questioning juror obviously “liked him” and that he was going to “marry her” when the trial was over.

To be sure, these attorneys were good lawyers in the conventional sense. They were seasoned trial lawyers with reasonable skill. They knew how to conduct a jury voir dire. They knew the difference between an opening statement and a closing argument. They were smart, confident and articulate. They knew how to cross-examine an adverse witnesses, and they knew how to ask effective hypothetical questions of experts. On paper, they looked fine. What they lacked was maturity, a common touch, intuition and above all judgment. They did not consider the jury to be their peers. They considered the jurors fools that could be manipulated with nonverbal behavior, overly loud and aggressive cross-examination and witness coaching.

There is a strong difference between the type of behavior exhibited by defense counsel in our case and effective trial advocacy. Effective and tough cross-examination is at the heart of fact finding at trial. Lawyers should pull no punches in presenting an intelligent, witty and razor sharp closing argument. In our case, the jury saw this difference. After trial, both of us and the two defense counsel together spoke to some of the jurors in the hall.  One of the women on the jury looked at the two defense counsel straight in the eye and told them exactly what she thought of their behavior. When we then asked her whether our aggressive trial presentation and hard hitting closing argument upset her, she said absolutely not. The invisible hand was at work, and it slapped down defense counsel.

Now, you might be thinking, “wow, that's an interesting story, but what does it mean for me as general counsel?” Here's what it means for you and for protecting your company against the “disservice” observed by our jury foreperson. Due diligence in hiring your trial attorney must go beyond the traditional methods. It is insufficient to base your decision on the attorneys' resume, his or her trial experience, his or her status in a prestigious law firm, that the law firm is on your approved panel, or his or her boasts of trial experience and victories. Dig deeper. Ask if the candidate is currently in trial and whether you can sit in. Seek referrals from other clients who have seen the candidate in trial. Let the candidate know that you require professionalism and courtesy at all times. And, make this article required reading. More often than not, you will be richly rewarded.

Matthew Steinberg is a partner at Cozen O'Connor, focusing his practice on business and real estate litigation. Amy B. Alderfer is a partner at the firm, practicing in the areas of commercial litigation and products liability.