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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There are  two features of human nature that are bewildering. One is the fact that in human reasoning too often “facts are white noise and emotions rule.” That is a quote from an adviser to the leaders promoting Britain’s exit from the European Union. It also happens to be a fundamental truth of human nature. One excellent article on this subject has pointed out that motivational writer Dale Carnegie has written: “when dealing with people, remember you are not dealing with creatures of logic, but with creatures of emotion, creatures bristling with prejudice and motivated by pride and vanity.” That’s why our message has to focus on emotions while maintaining a balance between logic and feelings. Logic and emotion are the two elements that make for a perfect persuasion. We can be persuasive using only logic or only emotion, but the effect will be short-term and unbalanced.

Emotions create movement and action. They generate energy during the presentation and get prospects to act on the proposal being presented. The balance between logic and emotion could be called the twin engines of persuasion and influence. Some people need more logic than emotion. Others may need more emotion unless logic. There is a balance. In most situations, people react based on emotions, then justify their actions with logic in fact. We are persuaded by reason, but we are moved by emotion. Several studies conclude that up to 90% of the decisions we make are based upon a emotion. The article rightly notes that we use logic to justify our actions which really involve emotion.  Our heads tell us not to believe everything we hear, that politicians are bunch of liars, but our hearts are won over by their impassioned speeches. That’s the power of emotion.

The second feature of human nature is the more perplexing issue regarding the fact we  continue to believe in objectively false things even after the truth is clear. The New York Times on March 22 of this year published an article regarding this phenomenon.  It points out the saying: “everyone is entitled to his own opinion, but not his own facts.” However, it turns out we do cling to “our own facts” in spite of the truth. The political events involving Congress and the president have sharply illustrated that the truth doesn’t always count in our minds. Even after Mr. Trump’s claims about former president Obama wiretapping him during the campaign were totally debunked, supporters continued to believe the claim. Republican senators  who blocked President Obama’s nomination to the US Supreme Court  for many months out of political self-interest,  are totally comfortable with their hypocritical outrage that Democrats are unfair in their opposition to Mr. Trump’s nominee. They are self-righteous in their belief that there is no connection between what they did and the Democrats position.

Mr. Trump, in a unique manner, has no reluctance to continually offer “alternative truths” in an appeal to his supporters.  In that regard, the article claims that:

“Mr. Trump, perhaps unconsciously, has grasped a core truth of modern politics: that voters tend to seek out information that fits the story they want to believe, usually one in which members of the other party are the bad guys.”

It appears that even when our false myths are dispelled and debunked, their effects linger. For example Mr. Trump insisted over a period of months that Mr. Obama hadn’t been born in the United States but conceded in 2016 that in fact he had been born in the United States. In a recent poll 43% of the registered voters still believed he had not been born in the United States.

There is an excellent article from the Boston Globe entitled “How Facts Backfire by Joe Keohane. What follows are almost all quotes from his excellent article without quotation marks, but to his credit.  I recommend the article for a fuller understanding. He starts out with the fact that:

“In the end, truth doesn’t win out.” Studies at the University of Michigan found that when misinformed people, particularly political partisans, were exposed to corrected facts in news stories, they rarely changed their minds. In fact, they often became even more strongly set in their beliefs. Facts, they found, were not curing misinformation. Like an under powered antibiotic, facts could actually make misinformation even stronger.

One reason is that research has found ” that it’s absolutely threatening to admit you’re wrong,” The phenomenon — known as “backfire” — is “a natural defense mechanism to avoid that cognitive dissonance” according to the Michigan research. People aren’t blank slates. They already have beliefs, and a set of facts lodged in their minds. They have existing value beliefs and bias which influence their idea of truth and reality. They can cause us to twist facts so they fit better with our preconceived notions. Worst of all, they can lead us to uncritically accept bad information just because it reinforces our beliefs. This reinforcement makes us more confident we’re right, and even less likely to listen to any new information.

There is a substantial body of psychological research showing that people tend to interpret information with an eye toward reinforcing their preexisting views. If we believe something about the world, we are more likely to passively accept as truth any information that confirms our beliefs, and actively dismiss information that doesn’t. This is known as “motivated reasoning.” Whether or not the consistent information is accurate, we might accept it as fact, as confirmation of our beliefs. This makes us more confident in these beliefs, and even less likely to entertain facts that contradict them.

And if you harbor the notion — popular on both sides of the aisle — that the solution is more education and a higher level of political sophistication in voters overall, well, that’s a start, but not the solution. A 2006 study by Charles Taber and Milton Lodge at Stony Brook University showed that politically sophisticated thinkers were even less open to new information than less sophisticated types. These people may be factually right about 90 percent of things, but their confidence makes it nearly impossible to correct the 10 percent on which they’re totally wrong.

Now apply these two concepts about truth and about facts to your jurors. Our job is to present our cases in a way that is consistent with these primary existing beliefs or to show that our cases are an exception outside the application. We can know how best to go about this through well conducted focus studies of various kinds and by our ability to create accurate juror profiles. The more we know about how human’s arrive at decisions and our willingness to abandon false ideas we have about human nature, the better our chance of success.

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Recently I was asked by a lawyer what I recommended for a deposition the lawyer was taking involving witness who was going to testify to facts in direct conflict with his client’s testimony. A classic two versions of the same fact in conflict. I advised him that these are difficult examinations and had this advice.

To illustrate my advice, I’m making up an example of a case with a conflict issue similar to the lawyer involved. Imagine a case involving a newly hired clerk at a twenty-four-hour small business like a 7/11 who was held up and shot. The clerk, who is the plaintiff, claims the owner knew of the security danger from a previous incident and failed to warn the clerk or take safety measures. Another employee had been previously held up and injured. Now this former employee is going to testify she warned the client about the danger before the robbery and the client did nothing. The client denies it.

Here’s my very general advice.  I think you should include as your plan for the deposition these ideas:

  1. You want to commit the witness to their story so there is no room for revision or evasion later. That means details, not generalities.  Who, what, when, where, how many times, why etc. Leave no opening for later giving the witness a chance to explain or add or revise the story as an explanation at the time of trial. This should include the full story – before, during and after – not just the specific conflict.
  2. You want the contrast between the two versions,  the client and the witness, to be clear. To do that you need to question the witness about each detail of  the client’s claims and testimony. You want to know exactly what the conflicts are in detail. You should include the client’s surprise and emotional reaction to learning about this witnesses conflicting testimony and the witness’s feelings and reaction to the conflict. Look for explanations or excuses.
  3. If you have a clear-cut example of lack of credibility such as a previous  inconsistent statement on the part of the witness use it to see what explanation, if any, is offered.
  4. Your deposition should also explore and establish any positive facts or opinions that are helpful to your case.
  5. A key factor is the impression the witness makes. Be sure to video tape the testimony for possible focus group review of witness impression and credibility.

At this stage the lawyer’s demeanor should be very calm, matter of fact and professional. No anger, finger shaking or drama. “Just learning the facts” kind of approach. In my view, there are two essential factors in a situation where there is a direct conflict between a witness the client on an important point:

  • Credibility evidence regarding bias, prejudice, self-interest or corruption
  • A reasonably plausible motive for the witness to tell their story

I suggest your stages of examination should be:

  1. Who are you? Full background family background, education, work history, relationship to everyone in public defender’s office, trial and work experience. Everything that might reveal motive or bias plus qualifications.
  2. The witnesses story should be totally described to contrast it with the client’s version.
  3. There should be a full exploration of all credibility issues in a non-accusatory or threatening manner. Inconsistent records or statements or actions etc.
  4. Most important look for any and all possible motives or explanations.

In creating your deposition approach and searching for possible motives or reasons the witness would offer this conflicting testimony, consider these factors:

  • Think about the claim being made by the witness. This is someone who was so emotionally traumatized by her experience the store agreed to adopt new rules. This was an emotionally charged experience she will never forget and which has caused her a great deal of emotional anguish to this date. Be sure you emphasize how horrible it had been and continued to be for the witness. You also want to emphasize she the extent of her fully warning your client about all of it.
  • Next, bear in mind the witness will claim she warned the client. Yet, the witness wants us to believe, in spite of the client being told about all this and being warned, the client ignored this warning and danger. Instead, the client did nothing about it and continuing working there. That makes no sense. No reasonable person would risk their life or themselves when they knew that the previous employee had gone through this horrible experience without doing something.Does she blame the client for being an idiot or does she claim your client misunderstood and if so what effort did she make to clarify and if not why not etc. etc.
  • The important question then becomes: Why? Why would the client do something that dangerous, risky and emotionally damaging without doing anything or saying anything? The “why” is a key issue here. What’s the witnesses explanation? A Key factor is what is it the witness says the client responded as to why they ignored the warning?
  • More importantly, given the serious nature of this situation what did the witness do? Did she contact the owner? Did she talk to anyone else and warn them for the client? Did she contact the client more than once? If not, why not?
  • On the other hand, consider a possible explanation for giving this testimony. Suppose the witness didn’t fully warn or didn’t warn at all. What if she mentioned what happened to her in a light way, but not a full disclosure or advised in an ambiguous way. Or also consider the possibility the witness may have decided not to say anything even knowing about the situation or simply was negligent in not warning the client resulting in the client being subjected to the same or worse experience. Wouldn’t you expect the witness to feel great guilt or at least shame at having failed to do so when the client was subjected to the same or worse treatment as a result? Wouldn’t you expect a normal person to mistakenly believe they did say something or simply decide to claim they said something when they didn’t out of shame and guilt. Even if she did say something in some light and oblique manner to the client, but failed to make it absolutely clear how serious the problem was, wouldn’t she be likely to think she said something or be motivated today to claim she did warn instead of admitting the truth? Does she feel any guilt at not having said more or follow up? Exactly what is her reaction to this having happened?
  • No sweeping generalities here. Precise, short questions about details. You are painting a word picture. Imagine you are describing a silent movie to a blind person. Make it detailed, in color and precise.

This is why it is so critical for you to very carefully establish the full version and circumstances of the claim warning. You need to know exactly what was said and the full who, what, when, where and why.  Time date and words. You need to know why more wasn’t said or done on that date and on every day, nothing more was said until now. You need to establish exactly what is claimed your client responded and the demeanor and attitude of both. A very detailed and complete picture about this is extremely important to your case.

It’s not a complete outline nor does it fit every situation, but it’s a guide to some thoughts on how to handle this situation.

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