Whenever Geoffrey Thomas feels a time crunch and has the urge to negotiate a client’s deal over the phone, he resists.
Instead, he grabs his car keys or walks across the street from his downtown Los Angeles office to meet his opponent face to face. This in-person encounter is what Thomas says gives him an edge, even when he is the first one to step forward. “In negotiating,” says the veteran trial lawyer, “you must, if at all possible, do it in person and not on the telephone. You just get so much more information.” Thomas isn’t talking about getting more facts. He’s talking about body language and facial expressions.
For years, lawyers—especially trial lawyers—have known that hidden truths can be revealed in the way that a client, witness, opponent or juror physically responds to a question. They understand that clues come from a person’s voice, face, gestures, speech or any combination, and the ability to correctly interpret these unconscious clues is the stuff that wins cases and builds reputations.
So how do you do it? Easier said than done, veteran trial lawyers say. A good place to start is with the many books that cover the topic.
Psychologist Paul Ekman has written a few of those books, including Telling Lies: Clues to Deceit in the Marketplace, Politics and Marriage and his latest offering, Emotions Revealed: Recognizing Faces and Feelings to Improve Communication and Emotional Life. His research and training about the universality of emotions have been sought after by law enforcement officials and, more recently, by antiterrorism agents.
Ekman, a professor emeritus at the University of California, San Francisco School of Medicine, is now an expert in a workplace violence case in which there are allegations that individuals failed to recognize dangerousness in the workplace.
“That’s not latent negligence,” says Ekman, who explains that 98 percent of the 12,000 people he has studied (mostly in law enforcement and behavioral health) can’t recognize when someone is misleading them.
But Ekman’s studies may be changing that. This fall, Ekman plans to publish his latest research, which he says identifies three expressions that indicate that someone is likely to attack.
Ekman insists that in less than an hour, he can train professionals, including lawyers, to look for subtle clues that someone is manipulating them. “There are hot spots that help you uncover the truth and avoid mistakes,” he says.
There’s one particular expression that is almost a dead giveaway. Ekman calls it a “microexpression of contempt.” It’s when an interviewee has an air of superiority and in just a half-second will almost imperceptibly tighten the corner of one side of his face. While Ekman says it’s possible for someone who is innocent to exhibit the same expression in an attempt to “play” with the interviewer, that’s rare.
Another example comes from an expression he first discovered while reviewing hours of video deposition testimony during a high-profile prosecution in an embezzlement case. The alleged embezzler was being asked to name names, and it was up to Ekman to figure out whether he was lying or falsely accusing anyone.
Ekman, who has observed this in a number of cases since then, found the evidence in a rather subtle gesture. When asked if the falsely accused individual was to blame for the embezzlement, Ekman says, the accuser “did the tiniest shake of his head no as he said yes.”
“This is what we call a gestural slip,” Ekman says. “It occurs unwittingly and contradicts the words.” Ekman cautions that these gestural slips, while often reliable, are culturally specific while facial expressions are universal.
Of course, interpreting split-second facial expressions is hardly an exact science, and Ekman readily admits that there is no real way to determine definitively if someone is lying. It’s even easy to be misled, he says.
Ekman often refuses requests by lawyers to prep witnesses for trial: He says he doesn’t want to make the jury’s job harder than it already is. But if the witness were one of his children, he would do some coaching, especially about how jurors can be misled by stereotypes.
Specifically, Ekman would make sure his child didn’t touch his face while being examined on the stand. “If you touch your face, often people distrust you,” he says. Being overweight, having pimples or a bad haircut can also cost a witness credibility, he says. But there are clues to deception that anyone can learn to recognize, and an intuitive or perceptive interviewer can learn to identify when someone is holding back, Ekman says. “The fact that someone is concealing an emotion during an interrogation doesn’t mean [the person] is guilty,” Ekman says. “If [the person] is in a state of grief and shock, [the person] may be furious at the police for not going after the real murderer.”
Rather than jump to conclusions, Ekman advises police and lawyers to use caution. If there is a sign of concealed anger, the interviewer should establish a better rapport and get to the bottom of the emotion.
“Unless someone is really trained well in lying, they oftentimes give something away,” says trial consultant Cynthia Cohen of Manhattan Beach, Calif. And the best chance to see a hot spot, according to Ekman and Cohen, is the first time the person is asked the question.
That’s why Cohen likes video depositions. Reviewing the tapes, as in Ekman’s embezzlement example, can reveal clues to subjects that lawyers may want to explore further either with that witness or future witnesses. “It’s remarkable what you can learn from watching a person,” Cohen says.
Deception isn’t the only thing to watch for. Los Angeles lawyer Thomas recalls a closing argument in which his co-counsel began to address the topic of damages. He watched the jurors. “I physically saw every one of them pick up the pencil and paper they had and lean forward, eager to hear whatever numbers he was about to give,” Thomas says. Thomas has had his share of disappointing experiences as well. There was, for instance, the juror who nodded continually while he spoke but turned out to be the lone holdout. Thomas considers that to be “the exception, not the rule.”
But Palo Alto, Calif., intellectual property litigator William Sloan Coats has had so many false reads on people who cross their arms that he has relegated that body language cue to the category of myth.
“All these things are entertaining and they can be amusing,” Coats says. But “there’s no certainty with any of them.” While skeptical, Coats doesn’t dismiss the value of reading faces. “You’re always looking for any edge you can get,” he says.