SOME THOUGHTS ABOUT ARGUMENT

Here some random notes  from my argument notebook which you might find helpful.

In the case of the person with pre-existing injuries consider this argument. Suppose a farmer is on his way to market with a truckload of eggs valued at $.41 a dozen. The truck is hit by a careless driver and the eggs are broken. The law won’t allow the defendant driver to argue: “but if they were golf balls, none of them would have been damaged.”

Suppose the truck had a horse it was hauling when it was hit by the careless driver. How much should the defendant have to pay? It depends upon the kind of horse that was injured. Plow horses might sell Ford $250. Riding horses for $2000. Racehorses for $50,000. Whatever the value of what was taken away turns out to be, is the amount the defendant should pay. Well, what if instead of a horse there was a Rembrandt painting worth $1 million. The defendant is obligated to pay for the damage done. He should not be allowed to argue that it is unfair to have to pay full price. “How about paying half price” is not an acceptable argument in the law.

Pre-existing injuries aggravated by trauma can be argued like the farmers truck. It’s like a farmer driving his truck to market when another car runs a stop sign hits it and turns the truck over. The fenders of the truck are bent and the windows are broken. The jury is asked to fix the damages he’s entitled to.  the jury would want to restore the farmer to the truck he had before it was damaged. He’s not entitled to a new truck but is also not entitled to end up with the damage truck. A fair result is the cost of putting the truck back in the same condition it was before the collision.

Tom Lambert was the editor of the American trial lawyers Journal and its executive representative for many years. He was a great orator. Here are some of the quotes from talks Tom gave:

  • a fence at the top of the hill is better than an ambulance in the valley below
  • immunity breeds irresponsibility.
  • Technique without ideals is a menace; ideals without technique is a mess.
  • The best place to eliminate product related injuries is on the drawing boards.”

Moe Levine based his “whole man” argument on a passage from the New Testament 1 Corinthians 12 where it reads:

“So then, the I cannot say to the hand, I don’t need you. Nor can the head say to the feet, well I don’t need you…. and so, there is no division in the body, but all its different parts have the same concern for one another. If one part of the body suffers, all the other parts suffer with it; if one part is praise, all the other parts share its happiness.”

Here are some quotations from various sources which I’ve saved and which you might find useful in some context:

  • it was about as helpful as throwing a drowning man both ends of the rope
  • every person’s right to swing their fist stops at another person’s nose
  • snatching defeat from the jaws of victory
  • that is not a flag I would like to march under

Abraham Lincoln defending a client once told the jury:

“My client is like the man who was going along  the road with a pitchfork on his shoulder when he was attacked by a fierce dog that ran out from a farmers yard. He uses pitchfork to defend himself and in the process killed the dog. The outrage farmer demanded: “what made you kill my dog?” To which the man replied “what made your dog try to bite me?” The farmer retorted “why did you not try to go after him with the other end of the pitchfork?” To which the man responded “why did not the dog come after me with his other end?”

An analogy for circumstantial evidence is the story of Robinson Crusoe. Robinson found a footprint in the sand and at the side of it faded because he knew there was someone else on the island where he had thought he had been totally alone. Note that he did not see a person. He did not see a foot. All he saw with the marks made by a human foot in the sand. That was circumstantial evidence. Our case has footprints in the sand that are just as strong evidence as the story of Robinson Crusoe.

A MIXED SOUP OF IDEAS

Projecting Power

In a short piece “how to project power” writer Malia Wollen quotes social psychologist Deborah Gruenfeld at Stanford University: “keep your limbs away from your body.” She says some research shows people posed in expensive postures feel more powerful, exhibit higher testosterone levels and have lower levels of stress. Additional advice: make eye contact while you’re talking, but feel free to look away when others do. This is called by scientist having a high “look – speak to look – listen ratio.” Gruenfeld  has spent decades studying the psychology of power. In 2008 she and a theater instructor began offering a class at Stanford business school called acting with power. Her advice includes: Don’t bother over explaining yourself. Speak succinctly. Take ownership of the space around you, whether it’s a board room or a cubicle. Say to yourself “this is my room. This is my table. This is my audience.” Gruenfeld uses the example of a Queen  who has dignity and respect, makes people feel safe, but underneath her cape is a sword.

This brought to mind the famous TED talk by Amy Cuddy made famous in 2012 and viewed by a record number of people regarding power poses. Cuddy suggests that taking a wonder woman like stance before a tough negotiation or high-stakes meeting can improve how others perceive you, measurably alter the testosterone and cortisol levels in your brain as well as change your and others’ perspective.  Standing with arms on hips and legs spread for a few minutes before the important meeting can boost your confidence and risk tolerance.

Fright

In August of this year Joan Acocella writing in the New Yorker discussed what’s behind stage fright and a book review entitled “I can’t go on!” In 2012 researchers at the University of Nebraska – Omaha surveyed some 800 college students asking them to select their three greatest fears from a list that included such things as heights, flying, financial problems, deep water, death and speaking before a group. As has been the case in other research, speaking before a group beat out all the others including death.stage fright has been described as “self poisoning by adrenaline.”

In response to stress, the adrenal glands pump a hormone (adrenaline) into the bloodstream causing the body to shift into a state of high arousal. Muscles tense, sweats and shakes, heart pounding, mouth goes dry, trouble breathing, nauseated or dizzy,  constricted throat and a voice rising in pitch. This is all from the “fight or flight” response. It all originates from a feeling of exposure. Actor Stephen Fry says that stage fright means the audience sees “the shriveled penis in your head.” Actor Daniel Day Lewis playing in the production of Hamlet in London’s national Theatre turned on his heel in the middle of a show and walked off the stage never to return. In the 26 years since then he has acted only in movies.

Cicero, ancient Rome’s acclaimed orator, said “I turned pale at the outset of a speech and quake and every limb.” Thomas Jefferson, who was said to of been mortally afraid of public speaking. As president, he gave only two speeches, his inaugural address twice. Gandhi was terrified at having to speak to a group: his vision would fog over; he would fall mute. Barbra Streisand is well known for her problems in that regard. There are numerous examples: Ella Fitzgerald, Luciano Pavarotti and Mel Gibson.

There are various ways of dealing with the problem. One is drugs, notably beta blockers which interfere with stress hormones. There is a wide range of behavioral and mental exercises including yoga and meditation. I have no magic formula. However we all know that the most powerful force we have is what we say to ourselves and believe. The first thing that happens with becoming stage fright struck is that we focus on us. We see everybody as looking at us and we are looking at ourselves as well magnify all things out of proportion. In fact, it is the ability to step out of ourselves view the situation as if we were in another part of the room seeing the entire picture. In addition, the visual image we put in our head is key here. Visualizing slow calm confident words and demeanor creates reality for our subconscious. Playing it as a movie in our mind as realistically as possible with color and sound makes it reality in our subconscious. It goes  without saying you have to know the material, you have to be prepared, you must have reviewed everything in your mind well enough to avoid as many surprises as possible. In the end, it’s a matter of having the courage to stand and deliver in spite of fear. After all dignity is grace under gunfire.

CASE ANALYSIS OUTLINE

Recently I was asked to meet and discuss a case that was going to be tried in a few weeks by a plaintiff’s lawyer. I thought about the information I’d like from the plaintiff’s attorney to prepare for the discussion and created this outline. It won’t fit all cases and it is overly simplistic, but it is an outline that might stimulate your creating a better format for your cases. Here it is.

TRIAL 

  • What venue, judge assigned & trial date – time limits?
  • Identify associate lawyer trying case with you
  • Identify the defense lawyers

CASE FACTS 

  • General type of case
  • Fact summary – 100 words or less
  • Summary of settlement negotiations with last  positions

PRE TRIAL

  • Focus study results
  • Significant pre trial orders or court policies including time limits

CASE ISSUES 

Case Theme 

  • If this were a movie or book, what would the title be?

Liability & Damages 

  1. Three most significant helpful liability issues
  2. Three most significant harmful liability issues
  3. Three most significant helpful damage issues
  4. Three most significant harmful damage issues

Reasons or Motives

  •  Three primary reasons for negligence  relating  to bad motive or wrongful intent.

Causation 

  • What are the most significant causation issues?

Exhibits 

  • Planned primary exhibits with discription

Witnesses 

  • List of plaintiff liability experts with specialty you intend to call
  • List of plaintiff damage experts with specialty you intend to call
  • Experts with specialty you could, but do not intend to call
  • List of lay witnesses – impressions & purpose you intend to call
  • Impression client and spouse make overall

TRIAL PLANS 

  • Voir dire:  Juror profile? (1) key issues –  good & bad you plan to discuss (2) plan for profile inquiry and (3) plan for values & past  experience inquiry
  • Opening: general outline & issues. Plan for damage discussion?
  • Direct: Planned  witness schedule & key direct points
  • Cross: What consistent theme & what key points to repeat
  • Argument: general outline & plan for damage argument