Author Archives: Paul Luvera

TRIAL ASSISTANT INSTRUCTIONS

When I was a young lawyer in the small town of Mount Vernon, Washington I would sometimes fly to places for legal work as the quickest way to get there. Just outside town there was a narrow dirt air strip right along a standing field of corn on one side and a drainage canal on the other. The local pilot who flew the farms for spraying the fields had his planes there and one was a small two seater he would fly me in. He had been flying for over 30 years and had flown hundreds of hours. Never the less, every time I flew with him, he would get out a clipboard with a checklist and walk around the plane with it. He would methodically go through it out loud even though I was the only one with him. He would even open the window on his side before we started out and shout out “Prop On!” before firing up the engine.  The only thing close to us would be cows crazing a long ways away. I was struck how much importance he put on a checklist for some thing he had done hundreds of times. I decided that in my law practice I would create a checklist for every thing we did. Every time we did something new I made a checklist. I modified them as we used them, but they were given to all the paralegals and we followed them together. Here is an example of an early checklist I created when I was really trying simple cases alone but always with a paralegal with me. It will give you an idea of the concept. Of course, this is really simplistic but it gives the general idea. TRIAL PARALEGAL CHECKLIST  Arrangements need to be made to transfer the client files and exhibits needed for trial to the courtroom. The computer, projector and electronics are also to be set up for trial. The general outline for  responsibilities during trial follow: MORNING 

  1. ARRIVE AT COURT AT SAME TIME LAWYERS ARRIVE
  2. ASK ATTORNEY FOR INSTRUCTIONS WHEN YOU ARRIVE
  3. REVIEW WITNESS LIST FOR WITNESSES TO BE CALLED
  4. MAKE SURE WITNESSES ARE THERE & READY TO TESTIFY

WITNESS MATERIALS

  1. HAVE ALL OF THE WITNESS MATERIAL READY FOR THE ATTORNEY. THIS INCLUDES DEPOSITIONS, EXHIBITS AND MATERIALS.
  2. BE PREPARED TO GIVE THE LAWYER THE MATERIALS DURING THE EXAMINATION
  3. HAVE BOXES & TRIAL MATERIALS ORGANIZED FOR EASY LOCATION  AS NEEDED.

DURING TRIAL

  1. BE OBSERVANT FOR ANYTHING NEEDED BY LAWYERS
  2. BE RESPONSIBLE FOR WITNESSES WAITING TO TESTIFY
  3. NOTE OBSERVATIONS REGARDING JUDGE, JURY, WITNESSES & COURT IN GENERAL. DON’T PASS NOTES TO ATTORNEY

MORNING RECESS

  1. CHECK WITH LAWYER FOR PROJECTS
  2. SHARE ANY OBSERVATIONS OR MESSAGES
  3. REPORT ON WITNESS STATUS

NOON RECESS

  1. BE PREPARED TO GET FOOD FOR LAWYERS OR WITNESSES IF ASKED.
  2. REVIEW OBSERVATIONS WITH LAWYER & SHADOW JUROR COMMENTS.
  3. ADVISE REGARDING STATUS OF NEXT WITNESS
  4. REVIEW ANY MESSAGES FROM OFFICE OR OTHER NOTES
  5. ASK LAWYER IF ANYTHING IS NEEDED
  6. CHECK ON WITNESSES FOR AFTERNOON

AFTERNOON RECESS

  1. ASK IF LAWYERS NEED ANYTHING
  2. SHARE OBSERVATIONS OR MESSAGES
  3. REPORT ON WITNESS STATUS – ENSURE WITNESSES READY
  4. ADVISE SCHEDULING PARALEGAL OF TRIAL STATUS

END OF DAY

  1.  REVIEW WITNESS STATUS AND SCHEDULE FOR NEXT DAY
  2. FIND OUT WHAT PROJECTS LAWYER HAS FOR YOU
  3. ADVISE WITNESS PARALEGAL OF STATUS.
  4. HAVE WITNESS MATERIAL AVAILABLE FOR LAWER
  5. GIVE REPORT FROM SHADOW JURORS AND OBSERVATIONS
  6. GET INSTRUCTIONS FOR FOLLOWING DAY.

VULNERABILITY IS POWER- BRENE BROWN

Brene Brown is a PhD research professor at the University of Houston in the graduate College of social work. Her area of research involves relationships between people. She studies vulnerability, courage, worthiness and shame. She has published about these subjects: http://www.amazon.com/s?ie=UTF8&page=1&rh=n%3A283155%2Cp_27%3ABrene%20 She also has a blog(http://brenebrown.com/)  and has TED talks as well.  She confirms what I believe about the essential need of plaintiff attorneys to be totally authentic and to be truth tellers about themselves and their cases if they want to be great trial lawyers.

In trial we are trying to create a bond with the jurors. We want to show them that we are members of  “their tribe” by identifying a common belief or value. We know that we like people who are like ourselves. We tend to trust those we identify with.  This common identity involves creating a relationship with the jurors.

The similarity of Dr. Brown’s work and our profession is that she studies relationships. Her research about relationships shows that it starts with us and how we see ourselves.  What interferes with the ability to make a connection with others  is a belief we are not worthy  personally or professionally. She makes the point that in order to have connections or relationships with other people we have to let ourselves be seen – “really seen. That involves being  willing to be vulnerable to rejection or  pain.

Why don’t people feel worthy? She says it most often is due to a  feeling of shame that makes  us believe we aren’t worthy. We are unwilling to accept us as we are because we think we should be perfect. We need to accept the fact we are not perfect.

In her study of people while doing the research she found that people with a strong sense of  connection had one thing in common which was a sense of courage. The courage to be themselves with all their  imperfections. She suggests that we have to have the compassion to be kind to ourselves first, before we can be kind and connect with others. Her research showed that we can’t practice compassion with other people if we can’t treat ourselves kindly. That involves acceptance  of who we are.

She also found that people who could make connections with others had authenticity. They were willing to let go of who they thought they should be in order to be who they were. That involves being honest about ourselves and that means vulnerability. One thing people in good relationships had in common was that they fully embrace vulnerability. They didn’t see vulnerability as being comfortable. They recognized it was uncomfortable. But, they talked about it as being necessary. They were willing to be vulnerable. The willingness to say I love you first. The willingness to do something where there are no guarantees that you will get a good response in return. The willingness to invest in a relationship that may not work out. They all believed that this kind of vulnerability was fundamental to being a whole person and to have connections with others.

She argues that people avoid this kind of vulnerability by trying to numb emotion, but it can’t be done. She says that the attempts to protect against vulnerability include  trying to make everything that is uncertain, certain. She argues that religion for many  has gone from a belief in faith and mystery, to certainty. This involves an attitude of:  “I’m right and you’re wrong so shut up.” A similar reflection of this is the absence of political dialogue. In politics today, there is no gray area, no middle ground and no area for compromise. It is all either right or wrong period.

Vulnerability means exposing oneself  to the possibility of being wrong or rejected, but it is a requirement for connections with others. Dr. Brown says that when we have the courage to be vulnerable, we believe we are enough just the way we are. Because we start from a place that says “I’m enough” we stop pretending, we stop using devices to numb the truth and we become kinder and gentler to the people around us because we are kinder and gentler to ourselves.

So, what has any of this got to do with plaintiff’s trial work?  Everything. The need for authenticity, vulnerability and honesty is essential to greatness as a plaintiff’s trial lawyer. For example, one of the fundamental teachings at the Spence Trial  College is the need to drop all of the artificial walls we create around ourselves to protect against anyone finding out who we really are. They teach the need to be truthful about ourselves and our case with all of the imperfections of both.

Being real is the first step in winning a case. Why? Because we all have a strong sense of knowing when people are being totally themselves and truthful. We also have an internal antenna that alerts us to people who are guarded and giving slanted information. When that happens we don’t trust the other person and distrust what they say. When we perceive that the other person is not trying to hide behind a mask and is willing to show us who she or he are, with their imperfections, we are likely to trust them. When we trust someone we accept what they say as being credible.

In a trial with six to twelve people studying us and what we say, it is virtually impossible not to be discovered as either authentic and truthful or not. First impressions  are lasting impressions. From the moment the trial begins we need to show our real selves  and be truthful. A trial lawyer who projects to the jury an unguarded and totally authentic person coupled with honesty and truthfulness about their case is someone we trust.

But, here’s the rub – to do that requires being willing to be vulnerable and being willing to be vulnerable requires courage. A trial lawyer who does that makes him or her as well as their case vulnerable. Being vulnerable means you and your  case might be rejected. But, there is no other choice if you want to be the best you can be in representing your client. It takes courage to be vulnerable in front of a group of jurors you want to impress. You want everyone to think you’re perfect and a great lawyer so to let your guard down and really be yourself as well as sharing the imperfections of your case with the jury requires courage.

Brene Brown says: ” Truth and courage aren’t always comfortable, but they’re never weakness contrary to conventional wisdom.”

Many profound truths are simple to state. It takes courage to be vulnerable in front of a room full of strangers when you want to impress them in order to persuade them. Yet the truth is that unless  we are willing to be vulnerable we are not going to be great. So, in the end, it comes down to the reality that if we really want to be great plaintiffs lawyers doing the best possible job for our clients we need to be willing to be vulnerable through truth and authenticity.

APPLYING NEURO LINQUISTIC PROGRAMING STRATEGIES TO TRIAL WORK

Neuro Linguistic Programming (NLP) is a discipline which teaches modeling of thought and action to help achieve improved  performance in yourself. It focuses on how the mind processes information and methods for installing strategies for achievement. I have written about NLP principles frequently. I am convinced that many of the techniques and strategies taught in this discipline are of great importance to success by plaintiff  trial lawyers with jurors, others and themselves.

I believe that we plaintiff trial lawyers, are so caught up in the demands of  our trial practice that we do not spend enough time thinking about our clients and our cases. As the trial date approaches we are totally caught up in discovery procedures and motions of every sort. We soon find ourselves trying to keep  up with all the legal demands of  our case and not  having time to think  about the case as  a whole or examine our own  attitudes about it.

I think our training as lawyers teaches us to concentrate on details and legal issues so that we lose our ability to see our case and ourselves through the eyes of our jurors or non lawyers. We think technicalities and minute details have significance no juror or non lawyer places any importance  upon. We  lose sight of the big picture.  We fail to examine the real issues in our case with the realistic eye of  an ordinary juror. We are easily led  astray by new defenses and red herrings the defense thrives upon. We are distracted from the issues that the jurors will really  find  important.

NLP offers insight about projects and objectives we plan to undertake. Various strategies are offered for doing this. One simple illustration of how one would plan out a project taught in NLP involves asking questions. Here is a very simplistic outline of some questions in that regard. For case analysis we would supplement these and apply what we learn from focus studies, but this will  illustrate one simple example of what I am talking about.

I realize that we are trained to be logical and process our cases by following the rules of  procedure with methods for  taking action we have learned. Therefore, we have skepticism for anything that doesn’t seem to have practical value, but I believe  the great plaintiff trial lawyers are those who put as much mental  effort into  their cases as they do practical steps. It is the ability to always see the case as a  whole with the issues that jurors will think are significant that produces great results.

Objectives

  • what do you want to achieve? Be specific & not “get a big verdict” but detail your objectives. What are you trying to achieve for  your client?
  •  Is this a case which should be settled and  if so, settled early or settled close to trial? Is this a case which should be settled if  at all possible?
  • Is this a case which is better tried than settled if the offer is not substantial?
  • What are the value ranges given liability, damages & coverage?

Behavior

  • what should you do first? Sometimes you are better off to use freedom of information or informal discovery rather  than file the case and sometimes you are better off filing immediately.
  • What are the priorities in importance?
  • how do you plan to accomplish each objective?
  • When should each be done? Create a time table of  priorities.
  • What should you do to accomplish each of them?

Mental strategy

  • what is going on in your mind as you consider each of these?
  • Do you visualize the outcome you want for each?
  • what do you tell yourself about these strategies?

Emotional state

  • How can I do this and enjoy the process?
  • What can I learn from doing this?
  • What do I imagine when I visualize the process?
  • What emotions are you feeling as you go through this process?
  • How will you feel if you accomplish each objective  & the final objective?

Beliefs, values and attitudes

  • what do you believe about the case?
  • How committed are you to achieving success?
  • What is your attitude towards your client in the case?
  • Do you fully & completely understand your client & the case significant facts?
  • What do you anticipate the reaction of others will be to your case and the issues involved?
  • How do you feel about that anticipated reaction?
  • Visualize how you will react to anticipated actions & responses.

So, there you are. I hope there is something here that you find helpful. If nothing else I urge you, during the  frenzy of preparing the case, to stop and take the time  to just think about your client and your case not as a tactical project, but from a human  standpoint. Remember, the people  who will  decide the case do not think the way lawyers and judges have been  taught to think and they decide the case.