When is the last time you have given real thought to the real purpose behind our advocacy for our plaintiff clients? I don’t remember what the case was about or what the outcome, but I remember how I felt after my first trial. I thought: “Wow. I’d pay someone to let me do this and to think they pay me!” I was so proud anyone would trust me with their problems and wanted to do my best job for them. My focus was on my clients and the discovery of how thrilling the trial process was for me was a surprise.

The problems of tracking time, billing and collecting from clients was a burden for me. When I first experienced the contingent fee arrangement I was struck by how fair it was to both client and lawyer. Then  arrangement made sense to me  as I had spent my summers during high school and college salmon fishing in Alaska and Puget Sound in Washington. The boat and crew would sail for Alaska in May and return mid summer to fish the Sound until Fall. The crew was paid a percentage of the profit from the salmon caught and sold to the cannery. The harder you worked and the more successful the boat, the more you made. If you didn’t do well you didn’t paid and could even owe money to pay for the expenses of the boat not paid for by the catch. The captain you selected to work for and the skill of knowing how to fish plus hard work determined the outcome. There’s an obvious similarity to the contingent fee arrangement.

Representing injured people  was an obvious choice for me half a century ago when I began the practice because the big firms represented banks, corporations and insurance companies. Unless you wanted that practice, the obvious alternative was plaintiff’s work, regarded by the silk stocking firms as a tad above ambulance chasing. Plus big firms didn’t hire lawyers like me who went to night law school at Gonzaga in Spokane.

Criminal defense work was also open as the big firms did a small amount of white collar work, but not the ordinary defense for the common person. Those lawyers were seen in same light as the personal injury lawyer by the big firms.

Yet, all of these lawyers were and are part of the justice system and have important roles to play. The system functions right when the judge and jury are impartial and both fulfill their jobs with dedicated honesty. The insurance defense lawyer fulfills his or her role when they are ethical, honest and comply fully with the rules of procedure. Their first interest must be the insured client and not their fee, future work from the insurance company or their desire to win. Anything less than that is dishonorable. The criminal defense lawyer does his or her job when they present defenses which ethically challenge the government’s duty to prove guilt beyond a reasonable doubt. This country’s greatness is dependent on how we honor our constitution. Under our constitution the issue is not guilt or innocent of committing the crime. It is whether the state has met the constitutional requirement. The plaintiff lawyer does his or her job when they act in the same way as the duties of the insurance lawyer: honesty, ethics and dedication solely to the interests of their client, not their own.

When you are engaged with an unethical or obnoxious opponent there a some basic rules to consider:

  1. The most important rule is to have calmness in the face of whatever happens. When we are angry and out of control we don’t function right.  Plus we give up our power to the other person by reacting to their cue.  Gerry Spence once described it o me as “watchful waiting.”  Like the matador calmly watching the charging bull.
  2. Respond only to those”attacks” that legally require a response.  Otherwise just just respond verbally, if at all, with something like “That’s interesting” and walk away.
  3. Document everything. Phone calls, conversations & every other kind of communication or exchange should  be documented.  However, document with the idea a judge will read it. No anger. No profanity. All very professional and the less said the better.

Don’t be afraid to apply to the court for relief, but don’t seen as a cry baby bothering the judge with the inconsequential.  Make it big and make it important.

Our purpose as advocates involves  not only dedication to our clients best interests, but the continuation of our constitutional justice system. Let’s resolve to honor our obligations fully and ethically.

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I’ve written and lectured for many years about the essential concept of simplicity in trying lawsuits. Extensive research has demonstrated repeatedly that the message must be simple and consistent. The rule of three, that is that lists should not be longer than three points, is based upon this concept. Trial lawyers must consistently discipline themselves to making the message simple. A consistent theme with a simple message is a fundamental part of communication.

A recent trial illustrates this point. On November 6 James Stewart, a writer for the New York Times, published in the Times an article entitled “Dewey’s Jury’s Deadlock Exposes a System’s Flaws.” The article was about criminal charges of  financial fraud against senior partners in what was one of New York’s most prominent law firms after it financially collapsed. The trial lasted 4 ½ months. The jury of seven women and five men deliberated for 21 days only to be unable to render any verdict on the 93 counts. The jury was dismissed as deadlocked.

The information about the jury deliberation has lessons for us. It turns out they were unable to agree on even the most basic definitions due to the complexity of the prosecutions trial approach. They sent a note to the judge asking for an explanation of what it means to “deliberate.” They expressed confusion over the concept of burden of proof . They debated irrelevant issues like why two of the defendants had such deep suntan’s. There was a great deal of hostility in the jury room.Some jurors refused to budge or explain their positions. Others seem to change their minds constantly. Some jurors close their eyes and refuse to listen when other jurors spoke. In that regard, we know that given complex messages, jurors first try to understand, then they become angry and stop listening. These  are angry jurors because the message is too complex and not understood.

The law required a unanimous decision. It turns out however that preliminary  votes on the most serious charges were 11 to 1 not guilty for one defendant, 10 to 2 not guilty for another and 7-5 guilty for a third defendant. The writer consulted with a professor of psychology at Indiana University and author of the book “jury decision-making.” The expert noted regarding the preliminary vote count, that extensive research suggests that two thirds is a critical mass and getting a verdict. “In other words, nine or more jurors can often get the holdouts to join the majority. But, with four or more jurors, they receive enough reinforcement from fellow jurors to stand their ground. That’s where you tend to get hung juries.”

The professor noted that while prosecutors tend to like multiple counts hoping something will stick- there were 150 in this case – too many resulted in confusion. He also promoted the virtue of simplicity. He quoted one of the jurors to illustrate this. The juror had said: “I just wanted the prosecution to give it to me and one sentence.” The professor pointed out:

“They’re hungering for a story to tie together all these disparate facts. That’s very consistent with how scholars think about juries and jury trials. Trials are like movies. There is a plot, and if the plot doesn’t make sense, jurors get confused.”

The lesson here seems obvious. 4 1/2 months of trial involving 150 counts of felony charges is destined for deadlock unless the prosecution is successful in simplifying the issues. Frankly I don’t know how one would simplify issues involving 150 counts. I’d say this case was destined for failure before it ever started. Let’s resolve to be short, simple and to the point in all of our communications with juries.

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Franz Mesmer is the pen name of an attorney who has written about Neuro Linquistic Programing (NLP) concepts in trial and in sales. I’ve written about this before and his book with the provocative title “Unfair Secrets of Winning in the Law with NLP: a Trial Lawyer’s Manual.” ” I’d like to share with you  the NLP concept of embedded commands discussed in his writings.

Much of these principles are based upon the work of a psychiatrist, Milton Erickson, (1930-1980) who, among other things,  developed a way of giving people suggestions in ordinary conversation that did not cause conscious resistance and represented a form of hypnosis. The idea of a “embedded command” is that it is an instruction or command which is embedded in the sentence which registers  with your unconscious mind without awareness of your conscious mind.

The first principle of this technique is that the unconscious mind only registers positive and never negative ideas. That’s why saying to someone “don’t think of a black cat” results in an immediate thought of a black cat. The unconscious does not register the negative “don’t” part of the sentence, only the positive command. The conscious mind cannot control the unconscious response and you think of a black cat, like it or not. By the way, given this proven fact, how effective do you think it is when the judge says to  the jury: “You are instructed you must not consider  that testimony and you are not consider it your decision?”

An embedded command  is based  upon the idea that the sentence is actually directed to the unconscious mind and that while the conscious mind hears the negative words, the unconscious pays no attention to them, only the positive words. Take the example of a salesman saying to a prospective buyer: “I don’t want you to be hasty in deciding to buy this house. Don’t decide to buy this house until you thought about whether this is really the right house for you. Don’t make a decision to buy it yet.”  In this example, the conscious mind hears words that reflect a salesperson who is not trying to pressure a sale. However, the unconscious mind hears only the positive words in italics which direct the person to decide to buy now.  The italicized words are an embedded command in the statement which is directed only to the unconscious mind.

Related to this idea is the technique of Dr. Erickson who found one can induce someone to go into a temporary, quick trance for five or six  seconds and during that time give a suggestion to the unconscious. The indirect pattern of suggestion involves three steps. First using rapport and pacing with the listener to relax them.  Second distracting the conscious mind and third introducing the suggestion.

The first. rapport, we all understand. We gain rapport by pacing the other’s talk and indicating  common interests. But, it can be as simple as identifying with the listener as a common experience you are sharing. “As we are all here in this court room, sitting comfortably in these chairs, we can all understand the importance of what we are doing.” The second phase of  distracting the conscious mind involves ambiguity in order to cause the conscious mind to search for a meaning. The third step of making  the suggestion takes place during that short interval of the conscious mind searching.

There are a numerous ways to employ the ambiguity. Dr. Erickson would use a handshake that was unusual and during the few seconds of confusion offer an embedded command. A  variety of phrases induce the conscious mind to search imagination: “How do you feel about…; I’m wondering if you ever… ; You may or may not know…; How would it look if…; How would it sound if you…; Can you see yourself…” are phrases with ambiguous definition that invite the conscious to search their memory or imagination for a few seconds.

Additional  help in this process is by putting what you want as a quotation so that the listener perceives it not as coming from you but from someone else. The normal resistance to the statement is reduced because the statement is not coming from you, but somebody else. For example “safety experts have recommended that  we should very carefully consider the importance of this issue because it has consequences beyond this case. ” The statement doesn’t come from you because  you are quoting  somebody else. The quotation can be from anyone, your father, a friend or even “I read in the newspaper.”  Note that there are three distractions. First the quote. Second the “because” and third the presupposition “very important.” Note the importance of  “because.” Research indicates that adding a “because” raises the effectiveness of the request from a low compliance to a much higher compliance.

Part of the technique involves timing. The  embedded commands  are emphasized by positing a little before and after the phrase, speaking in a deeper range of voice or using a gesture or facial expression. While the conscious mind doesn’t recognize them the unconscious mind does.

One other point in this connection. Anything that your mind can imagine, the unconscious takes as real and the mind makes it its own. Various research studies have established this. The unconscious does not distinguish between reality and imagination. One of the more simple illustrations of this fact are experiments involving basketball players. One group actually practiced  taking foul shots while another only saw in their minds a picture of them making every foul shot. The two groups were tested before and after the experiment. The group that only imagined taking the foul shots improved their success as high or higher than the group that had actually done the practice.

Using what is called as “time distortion” one can contact the unconscious though future images of a positive nature. For example: “In the future, perhaps a year from now, you’ll be able to look back on today, feeling the pride of success and the gratitude of having done the right thing and made the right decision in your verdict for the plaintiff. You will see this as the best decision you ever made.” The unconscious mind hears the positive commands included in this statement and registers it.

These are only a few examples of the concept. As advocates, we need to be aware of them proven psychology which is connected to our professional work of persuasion if for no other reason than self protection. I leave to you issues of ethical propriety, but I suggest you at least become aware of the principles.

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