An article written by James W. McElhaney in 2004 was recently called to my attention. McElhaney is a wonderful teacher of solid trial techniques and a long time writer for the ABA Journal about communication in trial. This article was titled “No Time to Waste” and was published in the Journal at: time_to_waste

In writing about opening statement McElhaney writes about “the golden moment” which he says is the first 30 seconds you have when you first begin to speak on any subject in a trial. That’s when you have everyone’s undivided attention and a chance to make a real impact  or impression on the jury.  He says this concept applies to every aspect of trial from jury selection to opening statement, direct examination, cross and final summation. The golden moment is the first 30 seconds.

To illustrate this principle he gave an example involving  my friend, Albuquerque trial lawyer Randi McGinn, who was defending a murder case and had twenty minutes  for jury selection.  The prosecutor used the traditional questioning about burden of proof and finding the defendant guilty if he proved the case. However, when Randi stood up, the first words out of her mouth were “When the charges were read to  you, I saw the looks of horror on all your faces. This is a despicable crime. What could be more terrible than shaking a helpless six month old baby to death? And that brings us to what Judge Garcia has given us twenty minutes to talk to you about: Being blamed for something you didn’t do. Is there anyone here, on this panel, who has ever been blamed for something they didn’t do?”

That thirty second opening framed the case as being about being blamed for something you didn’t do. It also prompted a discussion among jurors about being blamed for something they didn’t do. She created the issue in the trial as the moral imperative to not  ever blame someone for something they hadn’t done.

McElhaney’s example of the same principle in a civil case was the example of a plaintiff’s lawyer standing up and saying: “ ‘Ladies and gentlemen, this is a case about a young woman’s eyes.” After framing the case about eyes and capturing their attention, he said “‘If you had been in the corporate headquarters of the Midwest Conveyor Manufacturing Co. on June 14, just two years ago, you would have seen six corporate officials choosing not to take the opportunity to prevent a tragedy because of profit motive.” And from there telling the story of corporate greed that caused them to decide not to take safety precautions resulting in an injury causing blindness.

McElhaney notes the psychological principle of primacy applying to the first thing you say to the jury. That is what you first hear you are more likely going to accept as the truth and remember the longest. The same idea applies to direct examination. His example in cross examination was a criminal case where the defense lawyer didn’t start his client’s examination with the usual background questions about education, employment, marital and the like. Instead he started  this way:

Q: You’re Tom Milligan?

A: That’s right.

Q: Tom, before we get started here, let me ask you: Do you understand the nature of the charges this man has brought against you?

A: Well, I think so. He claims I attacked him or something in an alley outside the Seaman’s Cove Bar.

Q: (In an accusatory tone) Tom Milligan, is that right? Did you attack this man outside the Seaman’s Cove on the evening of Dec. 8—or any other time?

A: Absolutely not!

Q: Tom, I’m going to ask you all about Dec. 8, but before I do, I’d like the ladies and gentlemen of the jury to get to know a little about who you are, so let me start with your family life …

McElhaney then gave a true example from one of my favorite cross examinations by now deceased, Washington DC, white collar defense lawyer, Edward Bennett Williams. He was one of the nation’s finest criminal defense lawyers during his career. It happened at the time of the  Watergate scandal. John Connolly had been secretary of the treasury under President Nixon and was charged with taking a bribe. The principal witness against him was Jake Jacobson, a disbarred Texas lawyer. This is how Williams began Jacobson’s cross examination:

Q: Mr. Jacobson, you’re a liar, aren’t you, sir?

A: No, I’m not!

Q: Take a look at this document. It says “Statement of Jacob Jacobson” on the top. That’s you, isn’t it?

A: Yes.

Q: And that’s your signature on the bottom?

A: Yes.

Q: And the first sentence says, “I lied when I testified before the grand jury,” doesn’t it?

A: Yes.

Q: So you are a liar, aren’t you?

Trial lawyers keep misunderstanding  the minds of the people they are trying to convince to vote in their client’s  favor. They present their cases as if  people thought only on a conscious, objective and logical basis to arrive at their opinion. They fail to understand we make our decisions at a subconscious level, based upon our values and on our emotional impressions. They fail to recognize that in our digital age our  attention span is measured in seconds and like Twitter, we want the message to be short and summarized in a few words or we have quickly mentally moved on. Don’t waste the “golden moment.”

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I’ve written about the writings of George Lakoff many times including this post: Lakoff is a retired UC Berkeley professor and author of many publications on linguistics and communication. He has been involved in eleven books and lectured widely.

Lakoff maintains Trump is a super salesman and predicted he would win the election. He was interviewed about this recently and a friend circulated it. You can find it in: In the interview he reminds us  about communication principles each of us should know, understand and practice. His basic message is simple.  Politicians rely upon polls and PR advice when they should be listening to cognitive linguistic and neuroscience experts.  That’s because people don’t vote for what is in their best interests. They vote for their value systems. Politicians need to talk about values instead of making arguments about specific issues. As I observed during the campaign, Trump offered simple solutions: “build a wall” and Clinton offered logical, but involved, arguments. Short, simple and consistent themes are essential in persuasion.

He says each time an idea is promoted the unconscious mind frames it as a concept through which they view the  world. If it doesn’t fit their world view they ignore it, reject it or interpret it their way.  So long as politicians believe people process information logically and at a conscious level they are missing the boat because “98 percent of thought is unconscious.”

It’s important to know conservatives  have what  he calls the “strict father family” picture of authority. That is, authority is justified by morality and in a well ordered world, there should be a moral hierarchy of “God above man, man above nature, the rich above the poor” man above woman, whites above non whites and Christians above non Christians. This is seen as the “natural order.” This is their value system.

How we frame issues is critical. Instead of the Republican’s “regulations & restrictions” progressives should characterize controls and rules as “protections.”  By doing that, we show that it makes a difference when we talk about “getting rid of 2/3rd’s of our protections.” In the same way “taxes” have a different impact than “investments.” Talking about making “investments” in our infrastructure” is different than talking about a road “tax.” Framing to fit the conservative viewpoint is important.

As to candidates who understand these concepts, he notes  that Elizabeth Warren has come the closest to articulating these ideas. But, he says “Elizabeth has a problem. She is shrill and there is a prejudice against shrill women.” How we communicate is also important.

From Lakoff we need to learn the value of metaphors. See his book “Metaphors  we Live By” for good information on this important idea. We also need to have the courage to rid ourselves of the false notion we are primarily rational creatures in our thought process. Communications that have a lasting impression on our subconscious mind operate below our conscious control. So long as we continue to try to persuade jurors using an intellectual and logical approach we are missing the target. We need to rid ourselves of the idea emotion plays no role in decision make because it is all logical. All decision making in all human beings, including genius thinkers, is a combination of rational and emotional response. All decision making involves a large portion of unconscious processing beyond our conscious awareness or control. We create a framework of an outlook about the world involving our value systems and we then filter information through that framework. Persuasion involves presenting something in a way that is consistent with the existing framework and not through useless attempts to change the unconscious framework. That’s why appealing to the rational mind through logical argument is a total waste of time. The presidential election is evidence of that fact.

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When we follow the careers of great trial lawyers we see different attitudes about learning new ideas. There are those who have a viewpoint “if it ain’t broken don’t fix it” when it comes to new ideas or research about being a trial lawyer. This attitude applies to  lawyers who have been very successful just doing what they have always done and just keep doing the same. They are often afraid to leave their comfort zone and are reluctant to risk anything new so they just do the same thing. It works for some, but raises the issue of how much more they might accomplish if they applied new, valid ideas to their work.

My choice was to be a continual student but  involving information from research in sales, marketing and communication rather than legal publications. However, I’ve been careful to incorporate good ideas into my already existing trial approach instead of suddenly adopting what is promoted as the new “end all solution” for success.  In addition, I’ve measured these concepts against proven research in other related fields. In reviewing “new” ideas and concepts applying to trial work, I’ve discovered there few totally new ideas and most are already existing concepts but applied or presented in a new or improved manner.

What I believe is that we must be continual students and  learners with an open mind not assuming we already know something. We should not have the attitude of  a child in grade school  with his hand up shouting to the teacher “I know. I know”  because we should be open to full understanding even if we think we already know. I always believed in the attitude at the Academy at Athens where first year students were called “the wise men.” The second year students were called “those who love wisdom” and the third year were called simply “the learners.” I believe we need the attitude of the label for the third year and not first year students as trial lawyers.

As to being a student of  the law, one viewpoint, held by many great trial lawyers,  is that it is important to learn everything there is know about every technical subject involved in their cases to the point they become experts. These are the lawyers who are particularly bright and have the need to know the subject matter as well or better than the experts involved. They want to be fully prepared to deal with any direction the subject matter might go in discovery and trial. They want to know as much or more about every aspect of the technical issues in the case.  The problem with this approach is that too often these are the people who are just compelled to be intellectually led into every dispute or technical issue during the trial. They need to prove they know as much or more than anyone else on the issue. That leads them into disputes about endless technical issues  just to prove how much they  know and to prove they are right. But, that results in witness examinations and arguments that are very boring, involve insignificant issues to the jury and divert into a trial of confusion which always favors defense. Knowing too much about the subject and a compulsion to prove you are right in a dispute with an expert is disastrous in trial. Who is more boring than a “know it all”?

The other is the approach I learned to follow when I first began trying cases  to rural juries in my home county and surrounding small counties. That approach was  to search for the big picture of the issues in the case that were likely to resonate with the jurors own values and experiences. In involved never losing sight of the overall picture irrespective of the diversions that are created by the defense. That involves not worrying about the details of technical issues, the dispute of complex issues or the many diversions raised, but to instead stay focused on the big picture. Not knowing too much helps in  this regard. I also believed in focusing primarily on the collateral attack of an expert and not the technical issues. If you undermine credibility of a witness and exper their conclusions are as important. It involves trying cases with broad generalizations and slogans intellectually driven lawyers find distasteful. It means repeating the theme and attacking the betrayal of defendant over intellectual disputes of technicality. It is appealing to the minds of ordinary  jurors and not to some personal intellectual standard of technical accuracy. It’s impression over intellectual logic.

So long as you would  rather be right than win, you are going to have problems as a trial lawyer, at least in my view.

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