Netflix has a new program  featuring David Letterman interviewing prominent people,  “My Next Guest Is”.  https://www.netflix.com/title/80209096  I watched the interview with President. Barack Obama and was struck by the contrast of communication skills between the interviewer, David Letterman, and the guest. Obama is an extraordinarily gifted communicator. He is poised, self-confident and has impeccable timing with the gift of articulate communication. Trial lawyers should study him as a model for improved communication skills.

Letterman presented a distracting interviewer from my perspective. He has elected to ignore the first rule of good impression by growing an out of control beard resulting in looking like someone who was recently rescued from street homelessness. In addition, he was inept in his interviewing by poor listening skills. Much of good listening skills involve non-verbal mannerisms and conduct. For example, we all know the basics which include good eye contact, open posture and demonstrated interest in the speaker. Yet, from my perspective, Letterman didn’t exercise these fundamentals. Too often he had his hands in front of his mouth, made nervous gestures with his fingers and was simply not connected on a continuous basis. He would exhibit obvious interest on some subjects and have an “eyes glazed” over appearance at other times. The contrast between the skill of President Obama as a communicator and the ineptness of David Letterman as an interviewer on this particular occasion was striking to me.

I thought of the great listeners Bill Clinton or Gerry Spence. They would have been leaning forward with open body posture directly towards Obama. they would have had direct eye contact and with their facial expressions communicated clearly how engaged they were with the speaker. They would have given the impression there was no one else in that auditorium then the two of them and they were one hundred percent interested in hearing everything he had to say. When we interview new clients or witnesses or anyone else that should be our demeanor. When talk to jurors our first goal is to make a good impression as someone who is interested  in everything they have to say  and is totally listening.  Good listening skills are as much an essential trial lawyer skill is artful cross examination or any other aspect of trial.

What are the attributes of a good listener? There has been a considerable amount of publications and information available regarding this subject. One excellent source of advice on the Internet is at WikiHow: https://www.wikihow.com/Be-a-Good-Listener . Here are their recommendations on how to be a good listener.

  1. Listen with an open mind Place yourself in the other persons shoes. If we allow our inward thinking about other things to dominate, it will block our ability for active listening. We know about hindsight bias, that is when we know the outcome we think we would have known how to avoid it and have done something different. As we listen avoid that kind of thinking to interfere with really listening to the other person. Try to be completely focused on the person who was talking and make sure you are maintaining eye contact as long as the other person is speaking.
  2. In response do not make comparisons between your experiences and the other persons experiences. It’s important to focus on the other person’s situation and avoid responding by comparing it to your own experiences. While that might appear to be helpful it can make the other person feel like you don’t really understand their experience and aren’t really listening. Avoid using “I” or “me” as these indicate you are not listening. Be cautious about acting like your experiences are exactly like the other person’s experiences if you are asked for advice.
  3. Don’t immediately offer solutions.  While listening don’t be thinking about quick solutions to the problem. If you are engaged in thinking about quick fixes you aren’t really listening. Possible solutions should be the product of calm discussion after a full communication to you.
  4. Demonstrate sympathy. In most cases people are just looking for someone to tell their problems to and be sympathetic more than they are looking for a solution. Demonstrate sympathy by your body language, such as nodding at appropriate times or short words of understanding and caring. Look sympathetic. Confirm that you are hearing what they are saying and paying attention by short appropriate comments.
  5. Remember what you’ve been told. One essential part of being a good listener is to actually hear and process what the person has said. Try to avoid having the person explain and repeat themselves by closely paying attention to what they’re telling you so they will know you really have been listening. Be prepared when they are finished to remember what’s been said in your responses.
  6. Know what to avoid doing. Knowing what you should avoid in order to be a good listener is also important. These include the fundamentals of good listening: (1) don’t interrupt – ever.(2) don’t try to change the subject (3) don’t cross-examine – be sympathetic and (4) don’t say or do things that make the person feel worse. Avoid minimizing, “it’s not the end of the world” or “you’ll feel better in the morning.”
  7. Wait until they have finished before you respond. The most important rule is:  never interrupt with advice or your own experiences. That includes resisting the urge to voice impulsive thoughts or solutions. It also includes a reasonable period of  silence when the person has finished speaking to ensure they are done. Waiting patiently for the other person to unfold their thoughts at their own pace is the primary key to becoming a good listener.
  8. Assure the other person of confidentiality and honor it. If a person is sharing with you information that is private and sensitive, you should reassure them that you are a trustworthy person who will keep the conversation confidential. Advise them that whatever is said stays between the two of you and that your word in that regard is your bond.
  9. Be positive and encouraging in your response. Be empathetic and encouraging. Repeat some of the things you were told to show you were really listening and offer positive feedback. Avoid being dogmatic in your responses with statements like, “I may be wrong, but” or “correct me if I’m wrong.” Summarize and restate in your own words to assure the the other person you really been listening.
  10. Your questions should be both meaningful and empowering.  Refrain from putting the other person on the defensive by your questions or statements you make. Use questions as a means by which the other person can find their own solution. Questions you asked should help the speaker move from an emotional response to a more logical and constructive one.
  11. Be reassuring. At the conclusion of the conversation let the other person know that you have been happy to listen and that you are open to further discussion if need be. A reassuring touch can be important. Avoid building up false hopes but offered to assist with solutions if you have the ability to do so.
  12. .Have great eye contact . The primary way the other person knows you are listening is by your eye contact with them. Focus directly on the other person’s eyes and do not stare off into space or glance away at something else while they are talking. Focus fully on what the other person is saying. You should not be thinking about what you are going to reply but totally on what the other person is saying. It’s all about the other person and not you.
  13. Be fully attentive to the other person. If you want to be a good listener then you have to demonstrate that fact physically as well as mentally. Ignore all distractions by turning off devices such as cell phones. Let your body language and your eye contact demonstrate you are fully listening and engaged. Look straight into their eyes. Turn your body towards the speaker. Do not cross your arms or put your hands in front of your face.
  14. Be an active listener. Active listening involves the entire body, face and eyes. It’s okay to throw in an encouraging word or two from time to time. Look interested. When you do speak, do so at the same energy level as the speaker. Mirror their tone rate of speech and talk.
  15. Be patient.  Be patient and willing to just listen.wait until they’re done and when you do speak avoid misunderstanding by brief summaries of what you understood them to say about different things they were discussing. Be patient with them as individuals. If they are sensitive person in an emotional state avoid “tough love” responses. Be sensitive to their state.
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Whether we like it or not, adversity is in an inevitable part of our life. Problems are going to happen and the secret is to know how to deal with them when it happenss. Challenges, large and small, the occur continually through our lifetime. Our attitude determines our personal reality in dealing with adversity. We know from our past experience that Nietzsche was right: “that which does not kill you will make you stronger.” We see the benefit of adversity illustrated in the 1949 British film, The Third Man, Harry lime,Played by the great actor Orson Welles, says:

“Don’t be so gloomy. After all, it’s not that awful. Like the fella says, in Italy for 30 years under the Borgias they had warfare, terror, murder and bloodshed, but they produced Michelangelo, Leonardo Da Vinci and the Renaissance. In Switzerland they had brotherly love – they had 500 years of democracy and peace, and what did that produce? – The cuckoo clock!”

Difficult situations help us appreciate when things are going well for us. Learning to be appreciative of our blessings is enhanced by experiencing adversity. In addition every adversity has within it an opportunity for learning. Many years ago the motivational writer and speaker Napoleon Hill said: “Every adversity, every failure, every heart ache carries with it the seed of an equal or greater benefit.” He also wrote in his classic book, Think and Grow Rich, this:

“Before success comes in any man’s life, he is sure to meet with much temporary defeat, and, perhaps, some failure. When defeat overtakes a man, the easiest and most logical thing to do is to quit. That is exactly what the majority of men do. More than 500 of the most successful men in this country has ever known, told the author their greatest success came just one step beyond the point at which defeat had overtaken them.”

Research from the University of Kent shows that positive reframing of adversity, along with acceptance and humor are the most effective coping strategy for people dealing with failures and adversities. Researchers from the University’s school of psychology published a paper in the International Journal, Anxiety, Stress and Coping, which reported that these three approaches were the most effective in dealing with failure and setbacks. The researchers found that looking for positive aspects in the outcomes they regarded as “failures” and reframing in a more positive way were beneficial.

Og Mandino wrote a best selling motivational book, The Greatest Salesman in the World. In it he writes:

“Obstacles are necessary for success because in selling, as in all careers of importance, victory comes only after many struggles and countless defeats. Yet, each struggle, each defeat, sharpens your skills and strengths, your courage and your endurance, your ability and your confidence and thus each obstacle is a comrade in arms forcing you to become better – or quit. Each rebuff is an opportunity to move forward; away from them, avoid them, and you throw away your future.”

There are three suggestions for handling adversity in the blog for Shorten the Gap http://shortenthegap.com/3-steps-for-how-to-handle-and-reframe-adversity-in-your-life

  1. See the situation for what it really is. Too often we make things a lot worse than they really are. Everybody experiences problems defeat in adversity. It’s something we all experience. The first step is to see things the way they are and not worse than what they are. See it as an opportunity for you to grow. Every challenge or diversity you will ever face in your life is a period of strengthening and growth. The hard part is recognizing the gifts hidden within the shadows of the problems.
  2. Find the gifts. Look for the lessons, the gifts, that are in the situation. Within every problem adversity challenge or defeat there is some gift wraped within the problem. To find them ask yourself questions like these: what can I learn from this situation? What are the benefits it brings to me? What am I happy about in my life right now? What do I have to feel grateful for right now? Who loves me and who do I love?
  3. Focus on gratitude and contribution. Focus on being grateful and finding ways to contribute to others. Motivational speaker Tony Robbins says: “when you are grateful, fear disappears and and abundance appears.” Gratitude can defeat a motions of depression fear regret anxiety and sadness.

Haruk Murakamii Is a best-selling Japanese writer. In writing about adversity he has said:

“And once the storm is over, you won’t remember how you made it through, how you managed to survive. You won’t even be sure, whether the storm is really over. But one thing is certain. When you come out of the storm, you won’t be the same person who walked in. That’s what this storm’s all about.”

I believe that trial lawyers have to have in their “tool kit” the necessary tools to deal with the inevitable adversity, anxiety and failure. Being a great lawyer involves the skills required to fight on after suffering obstacles. One of my favorite lines is from John Dryden’s poem, Johnny Armstrong Last Goodnight “Fight on my merry men all, I’m a little wounded, but I am not slain; I will lay me down for to bleed a while, then I’ll rise and fight with you again.” In the words of William Ernst Henley poem Invictus We need to say: “under the bludgeoning of chance my head is bloody, but unbowed.”

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We’re in Arizona enjoying  the sun and I’ve been too lazy to write a blog. But because I’m late in publishing my regular blog, I’m going to share an article I wrote for our state trial judges. I was invited to speak at their convention last Fall and wrote this for the convention. It deals with the Washington State jury selection process and issues involved in it. Perhaps something of interest is in here and I promise to do a better job on my next entry Happy New Year to you all.

The right to a fair and impartial jury in civil and criminal cases is well established. Washington’s Constitution has adopted language of the sixth Amendment to the U.S. Constitution in Article 1 Section 22 reserving the right to a jury trial in civil. The right to an impartial jury is provided in RCW 4.40.010 – 070 and by CR 38 (a). It is well established that allowing a juror who has an actual bias to sit on a jury in a criminal or civil trial is reversible error. State v Gosser 33 WA App 428 (1982). How well do our present procedures in jury selection accomplish the constitutional right of trial by impartial jurors?

Our procedure for challenging perspective jurors involves a voir dire examination of the panel to be “… conducted for the purpose of discovering any basis for challenge for cause and to permit the intelligent exercise of peremptory challenges.” (RCW4.44.120) However, the courts have generally adopted a policy of fixing an arbitrary time limit allowed attorneys to question the prospective jurors. The time limitations force the attorneys to resort to group questions and group responses by raising hands. This group approach is far less accurate and meaningful than individual questioning and discussion. The lack of time to talk briefly to each person on the panel impairs the ability to determine people with pre- existing bias. One significant improvement in assuring an impartial jury would be to consider whether these time limits have more to do with judicial efficiency rather than assuring a jury of impartial members.

However, there is a more significant and fundamental flaw in our procedures for determining bias. It involves the method by which attorneys exercise challenges for cause. There are two kinds of challenges, challenges for cause and peremptory challenges. (RCW 4.44.130) A peremptory challenge is one for which no reason need be given (RCW 4.44.140) and generally each side is allowed three peremptory challenges (CR 47).
Challenges for cause are either general or particular.(RCW 4.44.150) General challenges relate to a failure to qualify as a juror and particular challenges for cause are of three kinds (RCW 4.44.170) ‘These are (1) For implied bias as outlined in RCW 4.40 4.180 (2) for defects in juror functions of organ or body which make the person incapable of being a juror and (3) “for the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this code as actual bias.” How well does our present procedure in jury selection succeed in assuring that people with actual bias are not permitted on the jury? The evidence is that it doesn’t work very well.

Under our procedures regarding challenges for cause, the process of determining impartiality is a two-step one. First, the bias or opinion must be demonstrated or admitted. However, RCW 4.44.190 provides that showing actual bias is not enough to justify granting a challenge for cause. The second step is that “the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the case impartially”

We know from experience juror bias arises in every trial and, while the Constitution requires an impartial jury, under this procedure showing the existence of a bias is not enough to disqualify the perspective juror. In addition, the perspective juror is asked to search their mind and decide whether they can ignore their bias and be fair in spite of it. Relying upon their response, the judge then decides whether to let them serve in the face of the established bias. How reliable is this practice of essentially leaving it to the perspective juror to decide if they can be fair in spite of fixed opinions or bias?

In 2013 Dr. Christopher Robinson, David Yoakum and Matt Palmer answered this question in a research paper Can Jurors Self – Diagnose Bias? Two Randomized Controlled Trials. (Arizona Legal Studies Discussion Paper No. 12-35) Their study involved other research and their own controlled trials involving 248 mock jurors. They studied the practice of asking potential jurors whether they have any feelings or opinions about the litigants, attorneys, facts or law of the case. If the juror divulges a formed opinion or a bias the next step is to ask if they “can set aside that opinion and decide the case on the basis of evidence to be presented and the law as instructed.” The writers note that judges rely upon their personal evaluation of the panel member’s response to this inquiry in making a decision on a challenge for cause for bias.

One example of judges relying upon the answers received is the prosecution of Gerry Sandusky. Motions for change of venue were denied by the judge who held that: “the answer to whether a juror can be fair and impartial, despite the myriad of influences to which he or she may be exposed, cannot be known until the juror is actually asked.” Our procedure regarding actual bias of jurors relies upon perspective juror ability to make self-examination and then upon their responses to whether the bias will have any influence on their decisions in the case. Knowing human nature is that a reliable indicator? The authors conclude that it is not reliable.

The authors note that one of the reasons why the answers of prospective jurors may turn out to be unreliable deals with what is called “social desirability” bias. That is the juror, despite accurately assessing that he or she cannot overcome a bias, might nevertheless feel the need to publicly claiming that they can act impartially. This deals with conforming to the social norms of being a good and fair person. There is a pressure to respond consistent with this norm which can and does influence the truthfulness and accuracy of juror responses.

Another factor is that a large body of psychological research demonstrates evaluating personal bias can be surprisingly difficult. Too often we are certain we are not biased about a subject when we are in fact biased. Research shows people frequently believe they not biased on a matter, when subsequent testing demonstrates otherwise… This has been called suffering from an “illusion of objectivity.”

Not to be overlooked is the occasional juror who just doesn’t give honest answers. There may be people with a political agenda or people who believe in jury nullification whose answers are deliberately untruthful.

The authors offer a solution they suggest would satisfy obligation to seat an impartial jury. They note that federal laws require that a judge shall disqualify himself or herself from any proceeding in which his or her impartiality “might reasonably be questioned.” Under this standard, it is not whether the judge can be impartial, but whether his or her “impartiality might reasonably be questioned.” They argue applying the same standard to jurors whose bias is being questioned would provide a far superior solution than our present one. They recommend applying a fundamental question: Can a juror’s impartiality be reasonably being questioned for any reason? If so, the court should not allow that person to be on the jury irrespective of any assurances. Their recommendation, in that case, is to simply remove all prospective jurors whose partiality might reasonably be questioned applying the same test as that for judges.

This idea is generally compatible with our appearance of fairness doctrine requiring government decision makers to conduct non-court hearings and proceedings in a way that is fair and unbiased in both appearance and in fact. (RCW 42.36) Washington’s doctrine identifies areas which would indicate a non-appearance of fairness: (1) personal interests (2) financial gain (3) property ownership (4) employment by interested persons (5) prospective employment by interested persons (6) relationship and membership connections and (7) family or social relationships. These seem to be an appropriate outline for challenges as well. One of the criteria for determining whether the appearance of fairness doctrine has been appropriately evaluated is by asking whether a fair-minded person, observing the proceedings, be able to conclude the proceedings were fair and unbiased both in appearance and in fact. If that test were applied in jury selection the chances of an impartial jury are substantially increased over our present practice.
When we have prospective jurors whose circumstances obviously present a significant issue of bias why would we accept their personal assurances of the ability to be fair spite clear questions about the appearance of fairness. The safer and fair procedure would be to remove any question created by appearances of partiality.

This approach can be applied by trial judges under our present statute while exercising their subjective evaluation about whether an individual can disregard the opinion and try the case impartially. It’s reasonable for us to assume that trial judges would apply a standard in carrying out their responsibility to ensure an impartial jury which has a high likelihood of accomplishing this objective.

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