“Words are, in my not-so-humble opinion, our most inexhaustible source of magic”

(J.K. Rowling Harry Potter & The Philosopher’s Stone)

For many years the marketing and sales industry has researched communication as it relates to sales and persuasion. Psychologists have been involved in studies about words, language and aspects of communication as well. We’ve learned that some words have significance because of the  marketing research and others have been studying communication issues involved. 

Kevin Hogan has taught persuasion and influence at the University of St. Thomas management Center and is a frequent media guest as well as an author and lecturer on the subject. He has written and spoken about what he calls “seven magic words of persuasion.” Here they are:

  1. Because: It turns out, the likelihood of getting people to do the things you asked can be substantially increased by using one simple word in your request: “because.” One illustration involved Ellen Langer, a professor of psychology at Harvard, who conducted an experiment that demonstrated the power of the word. She had students, participating in her study, cut in front of a line of people waiting to use a copy machine who used different words and requesting to cut in front. However, the request that use the word “because” irrespective of the reason given had a significantly higher consent than those that did not use the word. There was a 60% compliance without using “because” but, a 93% compliance when the word was used. These and other studies have characterized the word “because” a powerful word.

In our trial work we need to remember the importance of always offering a reason for what we are asking be done. In our jury selection it isn’t enough to ask to wait until they have heard the full story about something before making up their minds. We need to give them a  reason why that is the right and fair way to consider an issue. In cross examination if we are critical of something, we shouldn’t assume the jurors will understand and agree. We should add “…because” and the reason.  That’s why we should always give the jury a good reason for what we ask them to do instead of just asking for a result. When we suggest an amount for a verdict we need to add reasons why it makes sense to do so and not just throw out the number.

  1. Imagine: This is a very powerful word and is often referred to in psychology as a “trance” word. When we ask someone to imagine something the process involves temporarily suspending the conscious mind to explore the idea. This results in the rational mind’s critical evaluation not functioning at that moment and the subconscious mind being accessed. The subconscious mind does not distinguish between real and imagined ideas or visions. When someone imagines they create an impactful reality to the subconscious mind.

When we ask jurors to imagine the ways in which a verdict in favor of your client will confer benefit not just on the client but on each of them as well as the community we activate their subconscious mind with the images involved. If we ask jurors to imagine what our health care would be like if we didn’t have standards of care that are enforced, we trigger a reaction that doesn’t involve rational analysis. Imagine is a magic word in comunication.

  1. Now: Everyone wants things of importance done right now. Yesterday is over and tomorrow is too late. Immediacy is what everyone wants. Now is exactly the right moment to start. We all want instant gratification. For example, studies show 80% of the people will abandon trying to watch a video if it takes more than thirty seconds to load. Suggesting the importance of doing something now rather than later or that taking a particular action now will provide specific benefits is a proven motivator.
  1. Please: Saying “please” is not merely fulfilling a social norm, but has an inherent power as well, when sincerely said. It shows respect and consideration for the other person as well as acknowledging their power of control. It communicates rapport, a relationship and respect. When we demonstrate these subconscious ideas to others, they are more willing to return the same. When we are polite and say please in a genuine way people are more likely to respond in a favorable way to you.
  1. Thank you: Even though these are just words there is something magic about their effect when said in genuine manner. It not only conveys our gratitude, but is an acknowledgement the other person matters. Laura Trics gave a TED talk “Remember to Say Thank You” in which she argued that those two words can be incredibly powerful especially when the person you thank isn’t expecting them or needs to hear them. She makes the point that most all of us want and expect to be thanked for the things we do. Being appreciated really motivates us, both at work and life. Second, she says it is important in our relationships to say thank you rather than assume the other person knows you are thankful.
  1. Names: Using a person’s name has a unique appeal to the person you are speaking to. Dale Carnegie wisely noted that “A person’s name is to him or her the sweetest and most important sound in any language.” Using a person’s name does have “magic” power more than most people realize. The name we were given becomes our tag and when we hear it we are on alert regarding the speaker. It’s ingrained in us. Watch charismatic people. The first thing they ask for is the other person’s name. It will be the last thing they say when they leave. They will use the name frequently in conversation such as: “So Mike, tell me what brings you here?” “Does your family live here, Jane?” and so on.  A person’s name has power over them, more than you might think.

Remember this when you are dealing with the people in the court room who have significant power. The clerk, the bailiff and court reporter. It is unlikely you would be allowed to call jurors by name, but it may be appropriate to refer to their designation by jury chair in the jury box. For example “can you please turn that so that juror number twelve and everyone in the back can see?” Using someone’s name has a magic to it for the person involved.

  1. Control We all have a need to feel like we are in control of our situations and and our lives. When we feel it is out of control we feel threatened. A sense of being in control makes us less anxious and more confident. When we communicate the idea that we are in control and not other person, the normal response is to take a defensive position and an contrary attitude of mind. Making the other person feel like they are in charge or in control of the situation empowers them to respond more favorably to our recommendations and proposals. Acknowledging the power of the other person to control their decisions encourages a more compliant attitude.

Gerry Spence has often told jurors they are in control and they have all the power to decide the case. He has used the analogy of the jurors having the power to  write a check for any amount they want. In the movie Verdict Paul Newman, in the role of a plaintiff’s attorney, tell the jury that “But today you are the law. You ARE the law. Not some book… not the lawyers… not the, a marble statue… or the trappings of the court. today you are the law.” When we argue something to the judge we don’t say “You are compelled by the law to do this” or “ you have now choice.” Human nature results in an exactly opposite reaction and a competitive refusal to be controlled by  someone else.  Instead, we acknowledge the power of the court to make any ruling they wish, but offer  the reason why they should rule in your favor. These are examples of empowering other people to do what you are asking them to do.

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Damages and death cases are often some of the more difficult types of losses we try to juries. We start with the problem of existing bias in most jurors about the subject of death and damages. People often feel that “money won’t bring them back,” or “it’s wrong for someone to get rich over the death of a loved one,” and “time heals all wounds.” Furthermore, it is difficult to put into words ideas that resonate with the idea of damages in a death action. Analogies involving the value of paintings and military aircraft are helpful. Using examples of kidnapping or the payment of money to regain health and survival are often beneficial. Another is the use of song  lyrics, poetry and literature. For example, some years ago, a collection of short articles was published on the subject of family. One of the articles was entitled What is a Wife? Part of the description was:

“When God created the world, he must surely have looked into the future and been puzzled – all those things to be cared for and kept straight! All those beings to be fed; all those electric cords that won’t work; those clothes to be picked up; and what about those forever – tracked – up kitchen floors? So, he created a woman to keep men presentable and the world neat and in good working order. If it weren’t for wife’s, 1 billion men from Murmansk to Miami would be hungry, unshaved, hungry, unhappy and buttonless.”

In the publication there was an article What is a Girl? The Author wrote:

“A little girl likes new shoes, party dresses, small animals, first grade, noisemakers, the girl next door, make – believe, dancing lessons, ice cream, kitchens, coloring books, makeup, going visiting, tea parties, and one boy. She doesn’t care much for visitors, boys in general, large dogs, hand-me– downs, straight chairs, vegetables, snow suits or staying in the front yard. She is loudest when you’re thinking, the prettiest when she has provoked you, the busiest at bedtime, the quietest when you want to show her off, and the most flirtatious when she absolutely must not get the best of you again.”

Song lyrics are also a source of ideas for communicating a loss from the death of a loved one to a jury. For example Jim Croce song Time in a Bottle has lyrics that are relevant.

“If I could save time in a bottle the first thing that I’d like to do, is to save every day till eternity passes away just to spend them with you. If I could make these last forever if words could make wishes come true I’d save every day like a treasure and then again I would spend them with you.”

Country-western singer George Jones had a hit song A Picture of Me Without You with these lyrics:

“Imagine a world where no music was playing then think of a church where no one’s praying if you’ve ever looked up at a sky with no blue that you seen a picture of me without you

Have you ever walked in a garden where nothing was growing or stood by a river where nothing was flowing if you seen a red rose not kissed by the dew then you seen a picture of me without you”

Death has been described in poetry for centuries. Some poems are particularly suitable for cases of damages in a death action. Take the famous poem by W. H. Auden Stop All the Clocks, Cut Off the Telephone:

“Stop all the clocks, cut off the telephone, prevent the dog from barking with a juicy bone, silence the pianos and with muffled drum bring out the coffin, let the mourners come.

Let aeroplanes circle moaning overhead scribbling on the sky the message he is dead, put crêpe bow around the white necks of public doves, let the traffic policeman wear black cotton gloves.

He was my North, my South,  my East and my West, my working week and my Sunday rest, my noon my midnight, my talk, my song; I thought that love would last forever: I was wrong.

The stars are not wanted now: put out every one; pack up the moon and dismantled the sun; pour away the ocean and sweep up the wood. For nothing now can ever come to any good.”

Henry Wadsworth Longfellow wrote many poems. One of the more famous is his poem  which has these words:

“Live’s of great men all remind us we can make our lives sublime, and, departing, leave behind us footprints on the sands of time.

Footprints, that perhaps another, sailing or life’s solemn Maine, a forlorn and shipwrecked brother seeing, shall take heart again”

These are just a few examples of  meaningful literature, song lyrics and poetry that perhaps can enhance our damages with a jury. Depending upon the age of your jurors you can search for more relevant material that might appeal to the jurors in your case. It is an alternative to damage presentation worth considering.

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Preparing expert witnesses for their testimony is an important part of trial preparation in most cases. The reality, however, is that experienced experts are reluctant to allocate time for preparation with the attorney or doubt their need for such preparation. In addition, attorneys are often unable or unwilling to allocate their own time as well as incur the additional expert fee costs for such preparation. Written or video preparation information can be provided by the attorney to the expert, but it is questionable whether the expert will make the effort to review it and there is a risk of a feeling of resentment by the expert that they are in need of such assistance. The most critical time for such an expert preparation is before their deposition is taken. Since most cases are settled out of court, depositions become more and more important. Scheduling adequate time at a time other than the day of deposition is the best way to prepare experts adequately. An effort should be made to try to work with the expert before they are deposed and not just spending a half hour with them on the day of their deposition.

Every deposition is unique depending upon the issues in the case. What follows are some general areas for discussion with the expert. Most are self-evident, but it is helpful to have a checklist for witness preparation with all items to consider.

The two important areas to consider in expert witness preparation are the substance and content of the testimony and the manner or technique of testifying. Even if knowledgeable about  the substance of testimony, an expert can make a poor witness. Consider the general areas the expert will be asked about are (one) issues involving what the plaintiff says the defendants did wrong (two) facts relied upon in arriving at their opinions (Three) opinions reached and reasons for opinions (four) qualifications and  (five) bias issues.

An important step, in the preparation of expert witnesses, is a review of all evidence provided to the expert which the expert is relying upon for their opinion. It’s important for the expert to know what material, discovery information or other data relating, to the experts area of testimony,  has been provided defendant. Likewise, the expert should know what materials in their file have been provided to defendant or are subject to disclosure to defendant.

The goal, in part, should be to eliminate surprises for the expert witness. Anticipated defenses should be discussed fully in that regard. Furthermore, it’s important for the expert to understand the general issues so that the significance of testimony will be appreciated as to the overall impact on the case.

The expert’s qualifications should be reviewed along with personal experience and knowledge. The experts resume should be reviewed to make sure there are no surprises in that regard. The importance of experience and qualifications should be explain to the expert.

One important area of preparation is the experts understanding of the facts surrounding the occurrence. It should be reviewed to make sure that there are no erroneous conclusions or understandings.

The plaintiff’s conduct can also be an important area in the deposition as it relates to the opinions expressed by the expert. The expert should understand how their opinions relate to facts surrounding the plaintiff’s conduct. In addition, the accuracy of the experts understanding regarding the plaintiff’s conduct should be reviewed.

Plaintiffs claims of negligence obviously must be carefully reviewed along with the anticipated defenses and defense issues in that regard.

Proximate cause is always an issue and can’t be an issue even in cases of admitted liability. Each fact theory as it relates to the defend dance negligence should be examined with the expert regarding the cause of injuries. Obviously, no matter how culpable a defendant’s conduct is, if it is not a cause of plaintiff’s injuries it is irrelevant.

The experts involvement with a previous similar occurrence is important. The plaintiff’s lawyer should be sure that all of the experts practical experience and practices are consistent with the opinions they are giving in this case. Nothing is more devastating than an expert whose past conduct is the same as the fault they are now claiming on the part of defendant.

A review of possible defense issues regarding the negligence of parties who are not named in the lawsuit should be reviewed for possible issues defense will raise.

Credibility is always one of the most critical issues in expert testimony. Past contacts or any connections with any of the defendants or defense attorneys should be explored. The experts compensation is of significant importance. The expert may be required to testify to total annual income derived from expert testimony as well as percentages of time or income in relationship to that subject. The percentage of testimony on behalf of a defendant or a plaintiff will be asked.

The basic techniques for testimony are well known, such as not losing one’s temper, not volunteering and the other similar common sense advice. Some areas are of more importance than others. One area to talk to the expert about is the fact that the expert should always use positive answers whenever possible rather than equivocal answers on important subjects. It’s also important that the expert never forgets that the deposition is an adversary proceedings. No matter how cordial or friendly the attorneys are the expert must remember the goal of the defendant’s attorney is to undermine the expert’s testimony. Another important rule is that the expert should not bring papers or documents to the deposition that they don’t intend to produce or defense counsel isn’t entitled to.

These are very basic ideas on a subject that books have been written about. My reason for discussing this issue is to encourage a checklist regarding expert witness preparation advice.

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