By this point, most of us have heard of Martin Shkreli, the former CEO of Turing Pharmaceuticals. Social media has dubbed him the "Pharma Bro" after he acquired the drug Daraprim, an antiparasitic often used to treat AIDS victims, and promptly raised the price from $13.50 to $750 per pill. For that, he has become the latest face of corporate greed. And it is literally his face that is a big part of the story. When he testified last week before the House Oversight Committee to answer for that price increase, the media could not focus on the answers because he mostly took the Fifth (due to a pending but unrelated securities fraud charge). So the focus was all on his nonverbal communication: the facial expressions that Shkreli wore while he asserted his rights against self-incrimination. To understate, those nonverbals left viewers with a decidedly negative impression. As Niraj Chokshi wrote in the Washington Post, "The upturned edges of Shkreli’s mouth — sometimes coupled with a “Who, me?” eyebrow arch — hint at a public rage-inducing smugness. Indeed, Shkreli has become a reviled symbol of corporate greed, symbolized by that smug smirk." In fact, I tried but could not find an article that covered the testimony and did not use the words "smirk" and "smug," and a good number of articles added comments on how "punchable" Shkreli's face is. Indeed, it seems like the one thing that has united Congress and the American people in this divisive election year has been a bipartisan disgust of this guy.
To be fair, in the Shkreli case, his expressions might boil down to, "Look, I told you beforehand that I would need to take the Fifth on everything...and you called me to testify anyway." But that is unlikely to offer much face-saving when it comes to Shkreli's face. Just as facial expression matters in testimony, it matters in the courtroom as well. On the stand or in a deposition, any expression that conveys condescension or contempt can be deadly. When you are sitting at counsel table as well, all manner of nonverbal reactions can pose problems. But for this post, I will focus on the one expression that stands out in the popular response to Martin Shkreli: the smirk. I will look at what it is and how it harms credibility, and share a few recommendations for avoiding the smirk in the courtroom.
What Is a Smirk?
It's one of those "Know it when I see it," kind of things, but when you break it down, it is a little more complicated. According to a ten-step guide to "How to Smirk," (Yes, the internet has everything), a smirk is a closed-lipped and asymmetrical smile (higher on one side than the other), combined with specific eye contact and eyebrow position. One team of researchers (Sénéchal, Turcot & Kaliouby, 2013) even developed a computerized process for automatically detecting smirks as viewers watched screens, so that advertisers can tell whether potential customers are smiling or smirking at their commercials. That process focused on the asymmetry of the resulting face, and the team writes, "Asymmetric facial expressions, such as a smirk, are strong emotional signals indicating valence as well as discrete emotion states such as contempt, doubt, and defiance."
Why Do We Hate the Smirk?
Context is everything, and there are smirks that are funny, friendly, or flirtatious. But it is safe to say that in a litigation context, or in any comparably serious context like Shkreli's testimony in the House, the smirk communicates contempt. And apparently, there is some psychology to that. Dr. Mark Goulston in Psychology Today writes, "Show me someone who smirks in public and I'll show you someone who rages in private." The psychologist associates the smirk with a narcissistic personality, noting that those with an excessively high opinion of themselves are also likely to feel offended or injured when faced with even relatively minor insults. That tendency can lead to rage or violence in private settings. "However when these people are exposed to the spotlight of public scrutiny," Goulston explains, "they know better than to vent that rage overtly. Instead they smile, doing their best to distract from how much they are seething underneath. To anyone watching, that smile is anything but happy," In contrast, "It is often seen as smug, arrogant and condescending." That seems to fit Shkreli pretty well.
How Can We Avoid "Shkreli-Face" in the Courtroom?
This is an extreme case of course, but in less-guarded moments, witnesses, parties at counsel table, and the attorneys themselves can fall victim to the kinds of reactions that jurors will notice: the eye roll, the quizzical expression, and the smirk. To guard against that, anyone who is in the courtroom needs to focus on keeping a relaxed and attentive face. If you feel respect for the setting and for the process (including the opposition), then that respect is more likely to be conveyed naturally. There are a few mechanics to keep in mind, particularly if you are the type of person, like Mr. Shkreli apparently, who has trouble keeping your nonverbal reactions to a minimum.
Keep Lips Upturned Slightly
An attentive face should not be frowning, and should not keep lips in a flat line either. That shows displeasure or tension. Instead, the lips should be turned up slightly at the corners. It is a subtle distinction that I have written about here before, but too much upturning of the lips, and the smile becomes a smirk.
Only Smile When It Is Sincere
A smile can be effective, but a forced or fake smile can convey nervousness or even guilt. In the context of the serious or tragic events that lead to litigation, a smile is also often inappropriate. At the same time, we are human and humorous moments will occur in nearly all cases. When those moments occur, go ahead and smile. One note here is that a genuine smile usually shows the teeth, while a smirk generally does not.
Keep Eyebrows Sightly Upraised
The smile, of course, is only one part of the expression. We also look to other parts, especially the eyebrows, when interpreting the tone and the sincerity of a smile. As I've written here before, the eyebrows should also be slightly upraised. They should not be flat or furrowed, but neither should they be pulled up in an expression of surprise.
Keep It All Symmetrical
The key feature that makes an expression mocking rather than sincere is a lack of symmetry. That squares with other ways we view faces as well, since faces that are more symmetrical are also likely to be viewed as more beautiful. That one quality of symmetry is what allowed a computerized system to effectively distinguish between a smile and a smirk. So smiles should be even, eyebrows should be lifted together. But beyond that, your head should be straight up, and not cocked to one side or the other, and your body when seated or standing should be centered and not leaning to one side.
It is a safe bet that in context, Shkreli doesn't care how his nonverbals came across to the House oversight committee, or to the millions of Americans who saw or read about the testimony. And if there was any doubt about whether his nonverbal expressions really did convey contempt or not, he cleared that up with a Tweet right after his turn at the witness table: "Hard to accept that these imbeciles represent the people in our government."