Category Archives: Advocacy

ONCE UPON A TIME – STORYTELLING BY TRIAL LAWYERS

I’ve written several times about storytelling and its essential involvement in every trial lawyer’s advocacy.  My most recent post was: http://plaintifftriallawyertips.com/trial-lawyers-and-storytelling  A recent article reminded me again  about the importance of storytelling to trial lawyers.

We have all heard about how we should present our cases as stories. We know the emphasis Gerry Spence has put upon telling our case as a client’s story. He has rightfully observed that humans are “hard wired” for stories. Yet, it has been my experience that when the subject is storytelling the great majority of trial lawyers only see it as simply one of many tools available. They think that it is probably helpful but not that it is required as the best possible way to present their case. They echo the significance of storytelling, but rarely make an effort to do so. The necessity of storytelling, however, isn’t lost on the scientific and business community.

The December 13th New York Times featured an article by Alina Urgent: Storytelling Your Way to a Better Job or a Stronger Startup. The article advocated storytelling as best way to present your case for something you want. It described how advertisers incorporate storytelling into their commercials. The idea is important enough that there are people who are story coaches for business leaders and others. One coach works with companies including American Express, PBS and Random House charging $1800-$3500 for workshops and $500-$5000 for one on one training. Another charges $6000-$25,000 for speeches and training for corporations about storytelling. Clearly the business world and others are convinced about the value of storytelling.

Human beings have communicated by stories since they first could communicate.  Storytelling has been called “a strategic tool with irresistible power” by the Harvard business review. The power of storytelling to attract and even manipulate is well-known and well established. However the reason for its appeal has not always been clear. Research now suggests the answer is that storytelling promotes a hormone in the brain that unconsciously creates empathy.

Studies indicate a connection with storytelling and the production in the brain of a hormone “oxytocin.” The hormone is produced by the hypothalamus in the brain. It plays an important role in the neuroanatomy of intimacy, specifically in sexual reproduction of both sexes. It is often referred to as the “trust hormone” that is involved in social relationships. New research suggests that oxytocin plays a crucial part in promoting trust and empathy towards others and has also been called the “bonding hormone.”

Research shows that storytelling promotes the release of oxytocin in the brain. One study involved Paul Zak, professor of economics, psychology and management at Claremont graduate University. He studies oxytocin. To see the impact of storytelling on oxytocin, Professor. Zak conducted an often cited experiment. Participants had blood drawn measuring the level of oxytocin first and then watched videos of stories about things like giving to charities. After watching the videos they had their blood drawn again and another measurement made of oxytocin levels. All of the participants had a significant increase in oxytocin after watching the video stories.

In another study the question of what makes a good story was conducted by a professor at John’s Hopkins University. It involved his graduate students in reviewing two years of Super Bowl commercials. The team coded each of the Super Bowl commercials with a well-known outline for successful stories, Freytag’s Pyramid. In 1863 Gustav Freytag analyzed stories and novels for a common pattern and created a pyramid of steps or acts. Act one, scene setting; Act two rising action; Act three, the climax and turning point; Act four, the reversal and falling action; and Act five the conclusion or moment of last suspense. When the analysis of the Super Bowl commercials was finished it was found that there was a direction correlation of liking or not liking the commercials by TV watchers and the pyramid outline. The most popular followed the outline and the least popular only some of it. They reviewed how consumers had rated the commercials on social media. Using this study they were able to accurately predict the most popular commercial for the next Super bowl.

The story has to be told right to be compelling. A well told story has a structure with a defined beginning, middle and end. Experts say the reason many stories we tell don’t work is that as adults, we tend to judge, analyze and explain and experience, rather than simply tell what happened. Good stories are detailed, honest and personal. Stories we particularly like usually involve some sort of vulnerability without too much emotion. The article points out that: “You can have a multimillion dollar movie that bombs and a brilliant five acts story in 30 seconds”

We need to learn how to tell compelling stories that will invoke a trust or bonding response. There are defined ways of doing this. We all should be familiar with Joseph Campbell’s “The Hero with a Thousand Faces” because it is the proven outline for successful movies, screenplays and novels. In fact, producers evaluate novels and screenplays for probable success using the outline.

A quick example of his recommended story would consist of an ordinary person who is called upon to save the village with a magic elixir that is in a cave in a faraway country guarded by a dragon. At first refusing, the hero meets a mentor who provides guidance convincing the reluctant hero to accept and start out on the journey. The hero is tested on the way, arrives at the cave, has another crisis of faith, but enters and kills the dragon. Carrying the magic elixir back to the village, the hero is again tested on the journey home resulting in a better stronger person. The hero returns to the village with the elixir, saving the village and is given a hero’s welcome. Campbell’s actual outline can be summarized by a story following these steps in this order:

  1. The hero in his or her ordinary world
  2. The call for a hero to save the situation e.g. find the magic elixir
  3. The refusal by the hero to accept
  4. The hero meets the mentor who advises the hero
  5. The hero decides to leave the ordinary world for the unknown
  6. The hero is tested on the journey and survives
  7. The approach before the challenge
  8. The ordeal of confronting death or greatest fear by continuing
  9. The reward where the hero takes possession of the treasure or elixir
  10. The road back to the ordinary world
  11. The resurrection after another severe test with the hero achieving a higher level
  12. The return with the treasure as a hero

In the above outline the hero of this story would likely be the jury rather than your client. Think about your jurors who arrive at court as ordinary people who asked to do something extraordinary from their ordinary lives for the good of the community. They become convinced by lawyer “mentors” and start on the journey to do the right thing in justice. They face the challenge of the jury room in deliberations. Their verdict is the treasure they bring back for the community. Your story can be framed so that it is presented to them with them in the role of a hero asked to do something extraordinary and outside their daily lives. The most important thing they will ever do and will be proud of for the rest of their lives.

It can be applied in other ways as well including, of course to the client who was suddenly and unwillingly thrust into a crisis situation in their life. They are tested and overcome great obstacles deserving of hero’s reward through a just verdict. Story telling applies at every stage of case, jury selection, opening statement, direct examination cross examination and summation. The opening statement should be in a story form and not a chronological narrative of events. It must be told in the present tense as if happening before the jury now.  It can be told in the 1st person as a participant or observer of the events. It can be told from alternative viewpoints including that of the defective product that caused the injury. It should always begin with the defendant and not the plaintiff’s actions for reasons previously outlined in this blog.  Whatever the choices, make it a compelling, personal story well told.

TWO BOOKS WORTH READING BY McGINN & BAILEY

I don’t recommend books often, but two friends of mine have written books that are impressive dealing with plaintiff’s trial practice. One is by the incredible Randi McGinn, the first woman to be selected as president of the Inner Circle of Advocates, the leading plaintiff’s trial organization limited to one hundred members nation wide. As  a New Mexico trial lawyer she heads an all woman law firm and has had amazing verdicts. She is known for her great jury selection skills  and her creative trial skills. The book is Changing Laws & Saving Lives – How  to take on Corporate Giants & Win.

This is not just a “pat myself on my back” biography, but one  where the examples from her trials and her suggestions are both unique as well as informative. I know her to be one of the most creative trial lawyers and she illustrates  that in her book. She offers helpful advice and she gives encouragement to us with her morale building suggesstions. You  will be entertained as  well as  informed.

For example, in  her  chapter on cross esamination she describes the trial with the defense medical expert she cross  examined. She used yellow  sticky notes on the doctor, after asking  his permission, to show all the areas  of the body where the undiagnosed cancer could go resulting in the expert standing in front of the  jury with yellow sticky notes all over  his suit. The book is available from:   http://http://www.trialguides.com/book/changing-laws-saving-lives/

Bill Bailey and I have been friends for many years. Like Randi he was a very creative plaintiff’s attorney and his record like verdicts were the result. He made good plaintiff’s law for us and had many years as an active plaintiff’s attorney before devoting his abilities to teaching, He is now a professor at the University of Washington Law School in Seattle and remains active in the plaintiff bar as well. He and the director of the Washington State Patrol, Seattle Crime Laboratory collaberated in writing  Law, Science & Experts Civil and Criminal Forensics by William S. Bailey and Terrence J. McAdam. This book is also  available  from http://www.trialguides.com

What I like about this book is the combining  of Bill’s trial ideas and  the explanations of the scientist about such things as DNA, fingerprints and science and law interacting  generally. While it discusses criminal evidence it has direct application in many ways to civil trials as well. In addition, Bill’s practical advice about taking  depositions and general trial skills is invaluable too. It comes  with a CD.  There is a very good illustration of the cross examination of a defense medical expert  from an actual case that is worth the price of the book itself.

I like practical books with practical, clear advice and  both of these books offer this.

ARE WE PROFESSIONAL SALES PERSONS AS PLAINTIFF TRIAL LAWYERS?

Have you ever thought of your role as a plaintiff’s lawyer that of a salesperson? The truth is that each time we sign up a new client, negotiate a settlement or argue to a judge or jury we are involved in sales through persuasion. We are professionals who are attempting to persuade someone else to buy our product. Our product is not a new car but rather the truth of our client’s story or the righteousness of our position on an issue. Since we are in sales we ought to take time to study the principles of the world of sales in the retail world  to see if there are principles that apply to our work too.

David Mayer and Herbert Greenberg published an article in 1964 devoted to seven years of research regarding salespeople. They concluded that a good salesperson must have at least two basic qualities: empathy and ego drive. Empathy is the ability to understand and feel what another person feels. It doesn’t necessarily mean being sympathetic. One can know what the other person feels without agreeing with that feeling. But this empathy requires the ability to get powerful feedback from the client. This kind of person senses the reaction of emotion and feelings of the other person. Identifying and feeling their attitude, needs and inner emotion is the kind of empathy required by good sales people.

All good trial lawyers have the same quality  of empathy  with their clients.  it is the ability  to put ourselves  inside  our clients  feelings, struggles  and  pain  that allows us to translate this into  advocacy on their behalf.  The same  required  essential quality  of  salespeople  for  empathy  with another human being  applies  to us as trial lawyers.

The second basic quality needed by a good sales person, according to the study, is a particular kind of ego drive that makes the sales person want and need to make the sale and in a personal kind of way. It is a kind of competitive drive that motivates the sale.

Also, salespeople will fail to sell more often than they will succeed. Failure tends to diminish self-confidence. A good salesperson has an ego that is not so weak that failure results in a diminishing drive.  In fact the failure must act as a trigger – as a motivation – towards greater efforts. Have you ever met a plaintiff’s trial lawyer  who was not ego driven  in a competitive way  for their clients benefit?  It is the  inner  drive  to achieve justice for our clients against  sometimes overwhelming odds  that make  great  plaintiff trial lawyers.  We are first and foremost  warriors on behalf of our clients  and the  drive to achieve  justice for our clients is an essential part  of of what we.

There is a dynamic relationship between empathy and ego drive. It takes a combination of both, each working to reinforce the other, to make a successful salesperson. Too much of either is not beneficial.  As plaintiff’s trial lawyers  there is the same  need for balance.  One can be an ego driven  competitive lawyer,  but lacking in empathy for  the client.  We also can be people  who are extremely empathetic  with our clients, but who lack  the  competitive  spirit  needed  for  success  in doing  are plaintiff’s work.  We need a  balance of the two in order to be a successful plaintiff’s lawyer.

In addition to these two basic qualities of a good salesperson,  there are a variety of  concepts  that  are also important to understand and apply. A few of these include the following .

One of the important  techniques used in sales  is framing  to influence thought . If one says “the glass is half empty” a pessimist has framed the fact of the class being only half full. Framing  alters how we will sort, categorize, associate and ultimately give meaning to events objects and behaviors. Another example might be a headline which reads  “FB I agents  surround cult leader’s compound ”  which creates  a  mental picture  vastly different from “FB I agents raid small Christian gathering of women and children.” Both headlines might be accurate but the associated internal images and feelings are different. Successful salespeople frame persuasive arguments by selecting words or images that are positive, negative or neutral in the minds of the audience.

This applies not only  to sales but to our work. All of us should be familiar with this concept in our work as plaintiff trial lawyers. Framing is so essential it can make the difference between success and failure. Identifying the essence of our case issues – those things that resonate with people at a deep value level – is a fundamental step in advocating our case. the next step is to frame them correctly. It can be a case of a doctor who accidently cut in the wrong place or the case of the doctor who was in a hurry during surgery. The perspective we give determines the impression we create.

The concept of mirroring  is well known in the sales field. Mirroring is the practice of  imitating or mimicking  the movements  speech and body language of  another person you are communicating with.  This process creates a sense of empathy  and common connection at an unconscious level with the other person,. It is accomplished by reflecting  back the same hand gestures, postures, rate and style of speech as the individual you are communicating with.  If done subtly and  with a delay of 2 to 4 seconds between  the  other person’s  action or movement  and your mirroring,  it has an unconscious impact on the other individual, creating a sense of bonding or empathy. It is the same idea  as that of finding similarities with the other person and pointing them out. It’s finding out you both belong to the same fraternal organization  or to  the same political party  or like the same  things.  We like people who are  like ourselves.

The practice of mirroring widely discussed in  Neural Linguistic Programming  as a way to create quicker bonds with other people. It has application not merely in sales as a way to motivate buying, but applies to us in our everyday live dealing with other people. It has application to trial lawyers regarding their clients, interviewing people and in our trials, particularly jury selection.

Another concept that applies to sales is  the expectations people have  of us based upon how they picture our role or who we are. They expect their physician  to be wearing a white coat with a stethoscope around his or her neck  or the  military person to be in a uniform. In sales people have a idea about how a credible and trustworthy sales person should dress and act.  We need to be consistent with their expectations unless we are trying to be disruptive  or make a point. That means as  trial lawyers we should dress and act like people who are authoritative as well as professional. We need to talk and act like people who are credible and trustworthy. We  need to meet the expectations people have professionals who are honest and trustworthy. We need to be congruent with their expectations.

Most of these are totally obvious and well known to you and all of us who are in the plaintiff’s trial practice. The reason I have presented them is because I think we can forget that we are really professional sales people who have a product to sell. The product is justice for our clients. Certainly we are bound by a code of professional conduct that those in sales are not bound by, but we still can learn from the basic rules of persuasion and those in the sales field.