Yogi Berra allegedly said: “You can observe a lot just by watching.” Brilliant, if he said that intentionally. Once the quote became famous, he embraced it and wrote a book called “You Can Observe A Lot By Watching: What I’ve Learned About Teamwork From the Yankees and Life.”
I always suggest to my law students that they practice people-watching as a method of learning how to select a jury and size up witnesses. If I were running a school of litigation, there would be a required course in the art of watching people. Nothing fancy as an academic course in human psychology; more like a practical course on reading people. It would not be taught by lawyers, but by those who do it for a living. I would hire agents skilled in counter-intelligence and interrogation.
As part of the program, the students would have to go out in the field and observe people in their natural environment, especially at airports, train and bus stations. Their job would be to observe, assess and report.
The TSA is taking a page from the Israeli play book by creating behavior detection officers who look for physiological reactions that people exhibit in response to fear of being discovered. El Al is the best at this. When my partner Howard Srebnick and I flew to Israel on a case, we went through their screening process. Interestingly, I quickly passed, but the Jewish-yet-more-Semitic-looking Howard got a full-scale interrogation from the young female security officer. Of course there could have been other reasons for that. I started thinking about all this when watching the Anna Deavere Smith performance the other night. I read in the program how she interviewed 320 people for her project and videotaped them. She studied the tapes over and over so she could become them in the show.
She has a keen eye for detail. As part of her performance, she adopts their mannerisms, to the point of using their actual stutters, hem and haws, flailing arms to animate a point, or “umm” as a punctuation mark. She uses these speech ticks and gestures to make the person come alive and be more vibrant, and interesting. She doesn’t merely impersonate them, but adopts their cadence, mimics their movements, and inhabits their body. She gets under their skin and brings them to life. With an exacting eye, she focuses on people and figure them out by cataloging their facial, speech and body movements. It reminds me of Arthur Conan Doyle.
Doyle used his former Edinburgh medical school professor, Dr. Joseph Bell, as the model for Sherlock Holmes. Like Holmes, Bell was famed for has astute powers of observation and deduction through his meticulous attention to detail. Bell taught the importance of close observation in making a diagnosis. To illustrate this, Bell would astound his students by picking a stranger and, by observing him, deduce his occupation and recent activities.
Doyle related one incident where Bell announced that a new patient was a recently discharged non-commissioned officer, who had been serving in a Highland regiment stationed in Barbados. Bell explained to his medical students, “You see, gentlemen, the man was a respectful man but did not remove his hat. They do not in the army, but he would have learned civilian ways had he been long discharged. He has an air of authority and is obviously Scottish. As to Barbados, his complaint is elephantiasis, which is West Indian and not British.”
All this is a good primer for trial lawyers. We need the skills to size people up. The trial starts when you walk into the courtroom. In fact, I like to watch the jurors lining up in the hallway. Everyone watches everyone else. When the jury venire walks in, they are nervous and put on their masks. It takes work to make them feel comfortable enough to openly answer questions. Everyone in the courtroom is afraid of something. The judge and the lawyers are afraid of making a mistake; the jurors afraid of this intimidating place and answering personal questions. Everyone is on edge, and all that fear is concentrated into the small space in front of the judge’s bench. It feels like theater in the round for neurotics.
I try to inspire students to become people watchers like Dr. Bell did with his medical students. That is where it starts. Unfortunately, in most federal courts, it also ends there. Most, but not all, federal judges don’t let the lawyers ask questions, and thus we don’t get a lot of information. But in a state court like Florida, with wide open, almost unlimited questioning, you have the tools to get to know people, and conversely, let them know you.
It is important to realize that reading people is a skill. You don’t become good at it overnight or an expert right after reading a book. Just like any other skill, you have to practice and work at it. You develop the skill of paying attention and picking up on the little things. Once you are able to do that, you then have to determine what all of those things mean.
We all want to read people better. To see the clues that indicate a mood of an individual. When you can understand how people are reacting to you, and what their emotional state is, you have a good idea how to speak to them persuasively. There are several good books to keep by your side at all times while honing your skills.
In the 70s, I read Desmond Morris’, “The Naked Ape” and “Manwatching: A Field Guide to Human Behaviours.” This was my first exposure to body language. I admit I am not very good at it, but not for the lack of trying. Besides reading these books, I spoke to Jay Schulman. Schulman single-handedly created jury consulting and the use of body language for jury selection in the Harrisburg Seven trial.
In 1972, the Harrisburg Seven trial was big news. It involved a group of Irish catholic priests and nuns who were anti-war protesters led by father Philip Berrigan. This was the first time the new concept called scientific jury selection (SJS) was applied. Schulman, a sociologist from Columbia University, signed on along with Richard Christie, Philip Shaver, and others to assist the defense team. The defendants were charged with, among other things, of conspiring to destroy selective service records and kidnap then-Secretary of State Henry Kissinger.
These scholars volunteered because they believed in the activists’ cause and suspected that the federal prosecutors had selected Harrisburg, Pennsylvania, as the venue for the trial because of its rampant political conservatism. Dr. Schulman and his colleagues did polling, crafted voir dire questions and used body language. All this really excited the profession. He later had other clients like the Attica inmates; Claus von Bulow; Kathy Boudin, a Weather Underground radical who was a defendant in the Brink’s robbery and murder case; Gen. William C. Westmoreland in his libel case against CBS; battered women and Wall Street figures charged with insider trading.
After reading his article on the trial and his techniques, Jay Schulman, et al., Recipe for a Jury, 37 PSYCHOL. TODAY 41, 77-84 (1973), I found out that he was in Miami for business. I managed to cajole him to come to the PD’s office and explain his techniques. It was a great afternoon.
Later I read Dr. Paul Ekman’s books. He has gotten a lot more attention lately, because he is the scientific consultant for the show “Lie to Me.” The show is based on his science. What makes Ekman’s books is that they include pictures of every single emotion, and describe them in detail so that you can recognize them. Pictures are abundant in each chapter for each specific emotion.
In “Emotions Revealed,” Ekman discusses how a person’s face can be “read” to determine what kind of emotions s/he is feeling; focus on emotions such as contempt, disgust, sadness, happiness, and anger. He instructs how to understand how someone is feeling from their face muscles.
Morris, Ekman and others describe which nonverbal clues telegraph untrustworthiness and deception, and which radiate sincerity and compassion. They describe the full gamut of body language — facial expressions, gestures (hands, feet, torso, arms crossing), head movements, eye contact, postures and stances. The facial expressions, gestures, head movements, eye contact, and posture all communicate, either congruently or incongruently, with what you are speaking.
Have you ever wondered why people cross their arms when they’re frustrated? Or when someone lies, they tend to put their hand by their mouth? Communication is three things: voice, tone and body language. Body language can convey an enormous amount of information — it has been said that between 50% and 80% of all communication is non-verbal.
Be a habitual noticer of little things. I read of one guy who had sketched 93 facial expressions for his own use. I would like to have a copy. A lawyer turned me on to Neuro Linguistic Programming. NLP is a ” technology” — a format of frameworks, tools and techniques. I just watched an eyewitness who was asked about the scaffolding disaster at Indiana State Fair. As she started talking, her eyes immediately darted up to her left.
The NLP eye-accessing cues tell the kind of brain processing going on. Up and to the left is remembering visuals, images and pictures from the past. This fit right into what she was saying. She was describing what she actually saw. New images are up and to the right. So seemingly they are constructed and not real. Thus not true. I find the eye cues to be useful. The rest of NLP is beyond me.
Anna Deavere Smith also teaches us how to observe more closely – using active observation – which means observing everything. Speech in action, relationship interactions, body language, and activities — all the senses — can be put to good use when people-watching at their motivations and life stories. When watching people, note every detail you can, especially things that point to deeper stories, such as:
Is their body language in contrast with what they’re saying?
Are they listening?
Do they seem comfortable or uncomfortable sitting in the jury box?
Are they happy? Nervous? Irritable? Why?
What does the way they hold themselves say about them?
What about the way they talk? Does it match up?
Look at their clothes: What do their clothes suggest about them?
Are they wealthy or poor?
Are they stylish or completely clueless about fashion?
Are they adequately dressed or not?
Are they part of any pop culture or sub-culture?
From their style and mannerisms, what do you think this person’s aspirations, politics, or job would be?
Active observation is trying to see the connections between what’s visible in someone (their expressions, clothes, what they’re doing) and invisible (their histories, upbringing, dreams, desires). This is key, because within the gap between what’s visible and invisible is often where the deepest, most credible, feelings are found. I’m curious about the way those things shaped the person in front of me.
Finally, it’s important to remember that the people you’re looking at are just that – real people. While you can empathize, you can never truly know what they’re feeling. All we can do is find out if they are being honest with you. That is what I look for in jurors. I would rather have a juror tell me they don’t like something about the case or the client because they are being open and honest. Most biased people cover-up the same beliefs rather than tell you. The reason can either be self-consciousness, immature psychology or deception. Those are dangerous qualities in a juror. Trying to explain others’ behavior is hard to do. You can’t look inside their minds. We can only guess what is going on there. We can’t observe feelings, beliefs and attitudes.
Today it is fairly commonplace to retain litigation consultants with a background in the social sciences to assist with jury selection. After I read the “Runaway Jury” by John Grisham, and watched the brilliant Gene Hackman in the film, I wanted a Rankin Fitch to help me select a jury. But unfortunately I had to pass because his techniques include a large number of crimes, and I would rather not go to prison if I can help it.