I like Roger Dawson’s ideas and his books. I have re-read his book Secrets of Power Persuasion and would like to share a few of the ideas he writes about. However, I recommend you buy the book and read it for yourself.

He argues that while pain and pleasure are powerful persuaders, the best method is the "carrot and stick" approach. Apply the pressure of reward and the pain of punishment both.

Consistent with other writers, Dawson recommends giving the other side’s argument yourself, but pointing out the flaws. Most writing about this says the benefit is it shows you are objective and it defuses the objection before it is made. Dawson says it gives you credibility; it forces you to think about as well as anticipate objections and the credibility you gain carries over to what else you say.

In all the years of my trial practice I have always made it a practice to argue for numbers that were not rounded off. My figures were uneven. I did it for the same reason Dawson argues. It indicates that it isn’t a number off the top of your head, but is based upon some analysis. As he notes, the ads for Ivory Soap always had the line "99 44/100% pure. They didn’t say "100%" pure.

I’ve written about Dawson’s book The Secrets of Power Negotiating which I think is the single best book on negotiation I’ve read. Every lawyer should read this book. He gives the three best reasons for always asking for more then you expect to get or want. They are: (1) you might just get it (2) it gives you room to negotiate and (3) it lets the other person win when you take less.

Dawson says the four steps of persuasion consist of (1) know your objective (2) get information about it (3) assess your objective by comparing alternatives to it and (4) look for possible concessions you can made to achieve it.

Additional thoughts include the fact that most people talk too fast for real influencing power. To be powerful you need to pace yourself slowly and in deep tones. A slow deep voice is best. I was reminded of John Wayne’s advice when asked how to be an actor. He replied "Talk low. Talk slow and don’t say to much."

I’ve written about "mirroring" before. Using the same body language, tone of voice and speed of talking as well any other characteristics the other person is using. The idea is that people like people who are like themselves. In addition to mirroring, rapport is increased if you pretend that you already have it with the other person. Imagine the person you talking to is an old friend. Your body language, your attitude and your speaking would reflect that relationship.

So, there are some things I got from reading this book. I hope you can use some of them.

I made some random notes at a recent plaintiff’s seminar I attended. I thought I’d pass them on for you to think about. I thought some of these ideas were particularly worth considering for further development. 

One speaker ran a research company that was constantly looking for new and imaginative ideas. The motto of the company was "invent, disrupt, inspire." When I heard that I thought of how that applies to trial lawyers. They must continually force themselves out of the rut of doing things the same old way and stay current with developments in communication. They need to invent to new ways of doing things and thinking about what they are doing. They need to disrupt the old ways just because they are comfortable and they need to be inspired to search for new and better ways of representing their clients.

Someone argued that their experience was that the plaintiff, at trial, needed to first "get liability down cold" before offering evidence of damages. Otherwise the jury remains skeptical and the damage evidence looks like a play for sympathy. That made sense to me as it is consistent with my belief you need to underplay damages in the voir dire and opening statement because the jury is not fully trusting of the plaintiff’s lawyer in the early stages of trial.

I laughed at the remark of one speaker who said his case was so thin that if you turned it sideways, it would disappear. Another speaker said that in his office, he was in charge of the clear liability cases. The same speaker said that his mentor had taught him "You must never let your face show that your ass is being kicked."

Those of you who have heard Gerry Spence speak know that his basic theme in defending criminal cases as well as trying civil cases is betrayal. He emphasizes a betrayal of trust either by those charged with safe care or a government that is supposed to act fairly and objectively. Betrayal is a powerful concept that goes against our core values. One speaker noted that in Dante’s Inferno the Ninth Circle of Hell, at the utter bottom, Dante describes the worse sin of all: fraud and betrayal of trust. Here, there are degrees of the seriousness of the sin. There is "ordinary" frauds down to the worse fraud of all, according to Dante, which is betrayal of trust by a benefactor. That is the worse, says Dante, because it violates a love that is purely voluntary. One who betrays one’s benefactor comes closest to betraying God directly because it resembles God’s love for us, Dante says. I identified with the speaker who, in describing this, said that of all the levels of hell in Dante’s Inferno, the very lowest level of all was reserved for those who had betrayed a trust. I thought of Gerry’s theme and how this idea fit it so well.

Another speaker was talking about the problem of representing people with pre-existing medical problems. He said that when the case "involves a fragile person, two plus two doesn’t equal four. It equals six."

A speaker from Florida was talking about a case where under Florida law the spouse of the plaintiff could not be comparatively negligent and the verdict form would not have a blank for that issue. Yet when they ran focus studies they continually had a bad result for plaintiff because the jurors felt he shared some responsibility. When he changed the focus presentation to allow an assessment of percentage of fault they results were very favorable to plaintiff with a small percentage of comparative fault to the spouse. The plaintiff filed a motion to add a blank for the spouse’s negligence and over objection of the defense it was allowed. The result was a very good verdict for plaintiff. This is consistent with the fact jurors want to do the right thing and it enhances the lawyer’s credibility when he or she acknowledges client responsibility rather then trying to deny it or hide behind a law which prevents it from being considered.

So there you are. Not profound perhaps, but thought stimulating.

A friend of mine, who is a great trial lawyer, has a trial where the issue is the hospital’s negligence for allowing an unqualified doctor privileges resulting in injury to the patient. He wanted some suggestions on concepts that might be used. I told him that I didn’t have anything original, but shared some general ideas. While we all aren’t going to have a case like that, the odds are we will have a case where the issue is negligent hiring in one sense or another. Where there is an element of trust involved these same concepts might apply. For example, hiring a security person who harms someone or any situation where the public would expect the employer to use caution in who they put in charge. Here are some very random ideas to consider:

 

• It's a case of bait and switch

• It's a case of a broken promise

• A (hospital) is supposed to be a safe haven

• (Hospitals) are like life guards at the pool when it comes to screening doctors

• The buck stops here

• They took a calculated risk with their patients

• it was business as usual

• Now they are closing the ranks

• They want a wall of secrecy

• Now that there is an injury they are in deep denial about their actions

• Nothing short of Russian Roulette with patients

• It's like taking the batteries out of the fire alarm without telling anyone.  

   

   

   

Frank Luntz  has been an advisor to the Republican party for a number of years. He has framed issues for them and advised them how to give talks on issues. He wrote a book Words that Work in which he discusses phrases and words that have power with people generally. Here are a few that might apply to a case like this:

• Prevention, protection and accountability
• imagine
• the "R" words: restore, reform, renew
• "The right to" patients have the right to....
• peace of mind

I also noted that betrayal of a trust is a very powerful concept with people generally. Gerry Spence uses betrayal as a theme in most if not all of his criminal cases and his civil cases as well. We know that people respond to a betrayal of a trust so that should be used in a case like this.

One of may favorite analogies of this is when we fly on an airplane. We are have no obligation to get out and inspect the tires, question the pilot to make sure they are qualified to fly the airplane or do anything other then become a passenger. That's because we trust the airline to screen their pilots and make sure the airplane is safe for us to fly in since the passenger's lives are in their hands. Not only that, even if we wanted to make such a safety inspection we can't. A hospital has even a higher duty of care to make sure their medical staff is competent and their facilities safe because they do their screening of doctors behind closed doors and among themselves.

One last thought. Where warning signs are ignored I like to continue this analogy with a situation on the airplane where a warning light begins flashing in the airplane cockpit. The pilot isn’t supposed to put a piece of black tape over it and ignore it. He or she is supposed to immediately respond before the situation gets out of control. The same thing is true for the supervisor or employer or hospital.

I've often used the old school grading system in my trials in several ways. When I went to school the grades were A, B, C, D & F.  Of course, there were grade variations such as B+ or B- as well, but those were the basic grades. I've used this as an analogy to the conduct of the defendant. "Should the defendant get a passing grade for their conduct? What grade does this defendant deserve for the effort made to exercise the duty of care?" I've used it as a contributory negligence or comparative negligence analogy as well. "Joe, here, isn't required to be an A student or even a B student. All he has to do is get a passing grade. But, these defendants are claiming he has to be perfect. Pass with a 100% grade and that's not the law." I've used it in cross examination of a defense expert. For example, in a medical negligence case "If this were a medical school exam test, just what grade would you give the defendant doctor for their conduct? An A? A B? A C? or a failing grade? Jurors understand grading systems and seem to respond to this kind of approach.

Now, the New York Times reports that the Mount Olive, New Jersey school district as decided to eliminate the D grade completely. You either get an A, B or C or you fail with an F, period.  The superintendent says:

"D-s re simply not useful in society. It's a throwaway grade. No one wants to hire a D-anything, so why would we have D students and give them credit for it?

It seems to me this is a helpful example for adaption of the approach I've described above. One can argue that if you fail to meet the standard of care which is average anything less then that is a total and complete failure. You either exercise ordinary care and above or you have failed to do so. Close doesn't count and you are as responsible for your less then average conduct as if you failed completely.

The school district policy may offer new ways of applying this established analogy for trial lawyers. Give it some thought.

I am at Princeville on Kauai attending the annual Inner Circle of Advocates. I'll try to post something this week, but if you don't hear from me you;ll know why

If you have followed this blog, you know that I am a believer in check lists. The medical profession has discovered that when doctors follow established and valid check lists they make a lot fewer errors. Pilots religiously follow precise check lists before they take off and lawyers should create as well as use check lists too. Here' a recent check list I created and which is a work in progress. My procedure is to create a check list and then as the work progresses I improve, revise or add to it. I don't want it too detailed or complicated because that will discourage me from using it. I do want the key steps however. This one relates to a personal injury case. Don't be hesitant in looking at other people's checks lists for ideas and to modify your own to fit your practice. Perhaps this will give you some ideas on how to create your own.

PRE-TRIAL

  Experts

1. Economist
2. Cost of care
3. Animation
4. Posters/illustrations
5. Medical illustrations

Other

1. Focus - internet?
2. Time line/chronology
3. Review file contents
4. Pleadings & discovery
5. Prepare notebooks:
           (1) Cx
           (2) Resource
           (3) Witness
           (4) Jury
           (5) Trial

Discovery work

1. Depo summaries
2. Loaded into software

Medical - Damages

1. Day in life
2. Medical chronology

TRIAL PREPARATION

General

1. Theme
2. Fault list
3. Tech at trial
4. Trial schedule
5. Divide trial work
6. Shadow jurors?
7. David Ball

 Trial

1. Jury Selection outline
2. One page summary
3. Written jury questions
4. Opening outline
5. Direct Outline
           (1) exhibits
           (2) depo excerpts

Witnesses

1. Lay witnesses
2. Liability
3. Damage
4. Witness schedule
5. Prepare
6. Notice of attendance
7. Subpoenas

Exhibits

1. Depo excerpts in trial software
2. Key documents same
3. Key photos
4. Posters
            (1) Facts/dates
            (2) Bills
5. Blow ups
6. PowerPoint
7. Time line
8. Medical chronology
9. Model
10. Animation
11. Day in life
12. Wage loss
13. Calendar for period
14. Medical bills
15. Photos
16. Injury list
17. Fault list
18. Xrays etc
19. Hospital & records

 Pre-trial Legal

1. Notebook for judge
2. Motions in limine
3. Jury instructions
4. Trial brief
5. Evidence briefs
6. Exhibits in opening
7. Witness disclosure
8. Alternate juror
9. Exclusion of witnesses
10. Judge question list
11. Written jury questions

Other Trial Preparation

1. Trial materials

Well, I'm back from Wyoming and the Spence Trial College. There were fifty four students in attendance. This is a good class in that almost all of them have been to regional seminars and had a good idea what to expect, especially regarding psycho-drama. The previous graduates who were instructors were people I knew and have worked with. Dana Cole was there along with Nelson Tyrone, Joey Lowe, Brooks Cutter and others who were experienced teachers. On Monday Dana did an excellent demonstration of cross examination and we had work shops after that. The boss arrived Tuesday morning to give a demonstration of voir dire with work shops that date. Tuesday night I gave a talk on trial from advocacy to voir dire, opening, direct, cross and final argument. I had some excellent video clips of Gerry that I showed. The next  morning Josh Karton conducted the communications discussion and as always was masterful. I never fail to learn from him and others at the college even though I'm supposed to be teaching. The rest of the week involved practicing the skills. so here a few notes about the week.

I always enjoy Josh Karton's teaching techniques. In trying to help a student give an opening statement with some drama and gestures, but a factual one Josh used his movie technique. He was trying to teach the student to give a factual opening and not include conclusions such as "the driver wasn't looking" or "the driver wasn't paying attention." Instead, to describe  what the person did that would allow the jury to draw those conclusions. In addition, the description has to be in the present tense - as if it were happening now. It should also be in the first person - as if it were happening to the speaker. Here's how he had the student practice giving only a factual account:

Josh sat next to the student as if they were looking ahead at a movie screen. He told the student he was a blind grandfather who is at the movies with his grand son. The grandson's job is to describe to the grandfather what is happening in the movie as it happens. He can only tell him what is seen and heard in the movie, without adding conclusions of the grandson.  Facts without conclusions. He cannot give his conclusion that someone is afraid but rather describe what he sees that indicate someone is afraid. He is not allowed to draw the conclusion a person is a police officer if it isn't in the movie. Instead, he has to describe the person wearing a uniform, with gun and badge. Further, the description has to flow like movie would play out on the screen. The result is that the student learned how to give a proper opening statement.

Another beneficial area involved role reversal techneques taught by the psychodrama instructor. It's such an important skill to learn in order to be a great tria lawyer. Re-creation skills are also taught and this too is a skill every trial lawyer should know as well as practice. Some of the techneques of  neuro-linquistic programing are also helpful in regard to both of these and should also be familiar to lawyers. In the 1920's great lawyers like Earl Rogers were using rereation in the court room to win cases. These are not new, but they do require some practice to learn right.

That's a brief report of a couple things you might find of interest. Gerry is 81 years old and is still an impressive human being. I always enjoy my time talking to him. You should consider attending the next regional seminar. The next one in Washington will be at Leavenworth starting March 24th, 2011.

I'm teaching this week at the Spence Trial College in Wyoming so I only have time for a brief thought.  A trial lawyer friend had a bad result and we had an email discussion about why his focus study was inconnsistent with the verdict. Here are my comments to him.

 

I'm leaving for the Spence Trial College on Sunday for my week of teaching there, so I have only time for a short post. Let me share a couple of recent E-mails to fellow plaintiff trial lawyers on several different subjects. The first one deals with my view about a failure many plaintiff lawyers have - the desire to be liked by everyone and the fear of being disliked. So, here's my take for your consideration: 　 

 

"The goal of great trial lawyers should be that you want to be feared and respected for your skills and determination to do the best possible job for your clients. It should never be that you want to be loved by anyone except your clients. Fear of alienating judges or the desire to be liked by defense counsel are in direct opposition to our duty to our clients. We should not go out of our way to be disliked, but what is required is the courage to be truthful about all things of significance and to put our clients interest's first even when it offends the judge or our opponents or even our fellow trial lawyers."

The second subject deals with whether you call the defendant in your case in chief and if so when? Many very successful plaintiff lawyers make it a practice in malpractice cases to call the defendant early in their case and lock up their story. They feel that by doing so, they prevent the defendant from revising testimony and creating defenses as the plaintiff's case unfolds. They also feel that the defendant is rarely prepared for this happening and they get more favorable testimony. I don't disagree, but I think it requires a lot of skill to successfully do that right or you have the defendant so confined by discovery, you feel safe doing it. I also feel that the trial judge can complicate your case by allowing the defendant to go beyond your direct and testify fully in defense of their case. Here was my reaction to the lawyer who told me he had called the defendant doctor on the second day of trial.

"As to calling the defendant as a witness, I am always in awe of lawyers with the courage to do that. I know any number of great plaintiff lawyers who make it a practice to call the defendant doctor in their case early on. My fear always is that the doctor will win the battle of first impression early in my case. It's a fault of mine I ponder over in every case."

I also had an e-mail exchange regarding the validity of focus studies. An outstanding plaintiff's lawyer had received favorable results from his focus study, but a verdict for less then the offer. Here are some thoughts I had about how things have changed from the time we were doing tranditional focus studies in our cases:

"It's an interesting subject. To give an idea of how far the study of human decision making has moved forward since the days of telephone and group surveying, marketing people are now using neuroscience. They no longer try to analyze the intellectual answers they get from focus studies and surveying. As you and I know, the estimates range that from from 85% to 95% of all human decisions and opinion formation is done at an unconscious level with the conscious mind offering a rational reason for them, but without realizing how the decision was really made. Because people can't rationally access the way in which this happens, researchers are now using fMRI, to study the brain process while presenting information to groups of people. Science has mapped the brain and can see exactly what is happening irrespective of what the people say through functional magnetic resonance imaging. As one example of this process, the front appearance of the Mini Cooper automobile was designed by fMRI with the intention of creating a car that would specifically appeal to women.

I think we need to re-examine how we conduct focus studies with the knowledge that the verbal responses are intellectual and do not necessarily, or perhaps  not very often, accurately reflect what really was the reason. My approach, in part, involves reducting the information provided to key issues and revising the process of discussing it."

Anyway, those are some rambling thoughts for now. I'm looking forward to my week of teaching and interacting with the students at the College as well as seeing my old friend Gerry.

A few weeks ago I gave a talk to the Wyoming Trial lawyers on this subject and next week I'll be at the Spence Trial College in WY where part of my talk deals with the need to modify our trial presentations 

 

 

 A few years ago I represented the children of a deceased father. His wife had been dead for several years before he died. A lawsuit was filed by a woman acquaintance against his estate.  She claimed she was entitled to a large share of his estate on the basis of multiple claims including a promise to leave her money and other similar claims. She lost and eventually was required to pay my clients costs and attorney fees. I had a collection of notes on the issue of credibility from which I would select what I thought appropriate or use as a visual reminder of ideas. Perhaps something her will be helpful. Here it is in rough draft form:

CREDIBILITY                        

A. ARGUMENT

Concept:  In this case, a man’s girl friend asks us to ignore his valid will leaving his estate to his only children because she wants it all for herself, but if she can’t have all of it, she will take $1.5 million, but if she can’t have $1.5 million she will settle for $1 million.

Phrases:

• she asks us to ignore undisputed facts and common sense
• The quest for money darkens the sense of right & wrong
• Greed for money is infectious
• Greed is the master of gain with deceit. It’s tools are dishonesty and lies
• Facts do not cease to exist because they are ignored
• You can’t have it both ways
• The blurring of facts and fantasy
• Facts which can only be ignored by putting both fingers in one’s ears and humming loudly
• Their spin on the facts is like trying to drive a car by looking in the rear view mirror
• They use the tax returns like an accounting slight of hand

B. Phrases

    1.  "oh what a tangled web we weave when first we practice to deceive"
    2.  A chain is only as strong as it weakest link
    3.  Actions speak louder then words

C. QUOTATIONS

    1.  Their claims amount to nothing more then a collection of dubious facts, half truths and no truths - what ordinary people call lies 
    2.  Let not the facts get in the way of a perfectly good theory
    3.  Difficult evidence to ignore, unless your 11^th commandment is ignore the facts
    4.  A magnetic compass should always point north and a moral compass should always point to the truth
    5. When you pull back the curtain what you find are fundamental flaws in their claims
    6.  It’s like a david copperfield magic act - all smoke and mirrors
    7.  Rbuaiyat of omar khayyam: "the moving finger writes and having writ moves on; nor all they piety nor wit shall lure it back to cancel half a line; nor all thy tears wash out a word of it"