Will Sylianteng of Wes Litigation Group.

I have a unique practice that affords me the opportunity to practice law and try cases throughout the United States. Just in the past five years, I have had jury trials in Fort Payne, Alabama; Brooklyn, New York; Riverside, California; Philadelphia; Pennsylvania; Tulsa, Oklahoma and Plattsburgh, New York. I have also mediated or appeared in cases in Washington, D.C.; Boston; Massachusetts; Houston, Texas; Baltimore, Maryland; Pensacola, Florida; Miami, Florida; Los Angeles, California; Denver, Colorado; Atlanta, Georgia; San Francisco; Seattle; Richmond, Virginia; Lubbock, Texas and Anchorage, Alaska. While there are pros and cons to my practice (the biggest con being that the transitory nature of my practice does not afford me the opportunity to form long-term relationships with members of the bar and the judiciary), my practice does give me an opportunity to appear in places and before people (juries, attorneys and judges) from different backgrounds (social economic, racial or otherwise (the biggest "otherwise" being Northerners versus Southerners), and as an extrovert, I do enjoy meeting new people.

Many people like to say, "the law is colorblind," When I hear this, I (having had a retinal detachment in the past) like to refer them to a good ophthalmologist to get their eyes checked on. Anyone who has practiced the law in jurisdictions other than the one they grew up in, realizes that the practice of the law, and the world in general, is full of color and that people come in all sorts of shapes, races, ethnicities and genders. These are things that should not be overlooked to create an unrealistic utopian idea, rather these differences should be celebrated. That said, anyone who is not delusional also knows that these differences are not celebrated by everyone, and at some point, you will have people on your jury who will be tainted by explicit or implicit bias against you. As a trial lawyer, you have to be aware of this fact and how said biases may affect your case. Most of the time, when we think about race, gender, sexual orientation, etc., we think of it in terms of how our clients will be perceived. Rarely, mostly because our large egos do not allow us to see it, do we think about it in terms of how we are perceived by the jury. That said, as a 6'4" Asian American male, who has to sometimes try cases in areas where my presence literally increases the Asian American (sometimes general minority) population of a jurisdiction, I have become acutely aware of how a jury may perceive me.

In July 2018, Cynthia Cohen published an article titled "A Guide to Implicit Bias and Explicit Views of Lawyers' Race and Gender" in the ABA section of litigation's trial practice website. In the article Cohen outlined her original study's findings on peoples' perceptions of lawyers, focusing on race and gender. While more studies need to be conducted (and a lot more discussion has to be had), Cohen's study produced several interesting insights. I highlight a few of them here, and I highly recommend that you read the article for a more in-depth discussion. Of interest to me, were the following two findings: her mock jurors preferred to be represented by people of their own race (except, Asians who preferred a "Caucasian male" over an "Asian" attorney—seriously, I am going to have to have a talk with Asian Americans about this); and "Case issues are more determinative of verdict than trial lawyers' race and gender." With respect to said "case issues", Cohen noted, "In the scenario [she gave the mock jurors], issues determined verdict (e.g., accountability in the system is broken, shooting was intentional, police always lie, police officer feared "own life" was in danger, and the homeless person had a gun)". Additionally, "Mock jurors' race and gender did not determine verdict."

Based on my own personal experiences, these two points have merit. That said, while I do believe "trial theme" or "case issues" win the day, a good trial lawyer knows that you do not get there until you have overcome the initial explicit or implicit biases that jurors carry into the box with them; how can you argue issues if they do not yet hear you? Below, I offer a few tips I have learned that I believe may help you get over the initial bias.

Confront the Elephant in the Room Early

Look, everyone knows you are an outsider, so confront it head on and confront it early. A former colleague of mine once had a three-week products liability trial. At the end of the trial, the parties decided to poll the jury. One of the jurors stated, when asked what he will remember most from the trial, "I couldn't stop wondering where the plaintiffs attorney got his monogrammed shirts from."

You do not want your jurors to spend the entire trial trying to "figure out your story." While it may not be ethical or allowable under the rules of a particular jurisdiction to go into your background or get personal, you should attempt to answer the question that every juror who is not used to seeing someone like you is asking in their heads, and do it early enough in the trial, so that the jurors can focus on the winnable case issues more than on trying to figure out your story.

In jurisdictions where I am noticeably in the minority, like the one in Fort Payne, Alabama (where I increased their Asian American population to four for about a week and a half), I used the following phrase during my opening: "Ladies and gentlemen of the jury, let me let you in on a secret … I'm not from around here." From there, my strategy is usually to use a universal theme ("truth, justice and the American way") to endear me to the jury; and to show them that we are not that different (even as a "yankee").

Be Genuine

Endearing yourself to the jury does not mean imitation. Once in Tulsa, during a trial prep session with local counsel, it was suggested by a member of his staff that "Will should get and wear a nice pair of cowboy boots." Mind you, I do not think you have to be of a certain race or ethnicity to rock cowboy boots. However, I personally have never worn cowboy boots, and frankly, they just are not my style. And while jurors may not know much about you, what they can generally sense is when you are pandering or being disingenuous. So, unlike the "national" politicians who come to Philadelphia and order a cheesesteak from Pat's with American Cheese, just do not do it. Be yourself, regardless of what audience you are playing in front of, most people appreciate genuineness … unless (see below).

Surprise, People Generally Do Not Like Attorneys

Let's face it, there are some of us (attorneys) who are simply full of themselves. The impeccably tailored suit, the always coifed hair, the pocket square, the watch that screams "I have money and you don't," and the associates trailing behind you carrying all the trial materials while you enter the courtroom empty handed. Do not get me wrong, people appreciate a nice suit and a well-dressed attorney. However, know your audience, if you are in a more suburban or rural area, do not try to stick out like a sore thumb. Your court attire in Manhattan in New York City should probably be toned down in Manhattan, Kansas. While this is generally a good idea for all attorneys, for minority attorneys this may be more important. See, not only are you battling a potentially negative stereotype about your race, gender or sexual orientation, you may also be dealing with a negative stereotype about your profession. I only mention this point here because, when facing an intimidating situation, the natural reaction is stay with what is familiar. However, sometimes you can stay with the familiar to your detriment.

You Can Not Win Them All

As you know, you cannot win them all. There will be times when no matter what you do, you will not be able to win over a juror. And frankly, as a trial lawyer, you have to know that going in and accept it. You can only control what you can control. To the extent that you can, obviously, create a record. If the prejudice is overt and explicit, attempt to get the juror dismissed. That said, you will never be liked by everyone you appear in front of, no matter what you do or say. However, addressing that elephant in the room, goes a long way to getting your jurors to get past it so you can get to the case issues.