Category Archives: Advocacy

RULES FOR PLAINTIFF TRIAL LAWYERS

Today I want to share some random rules of  plaintiff trial work that are not all connected, but, for me at least, have meaning.  They include some of these  ideas:

  • Gerry Spence once shared with me the phrase “watchful waiting.” By that he meant the idea of calmly listening to another argue or make personal attacks on you and waiting patiently without interrupting before responding. And, when responding, doing so in a measured calm manner. Ernest Hemingway wrote the classic:  Death in the Afternoon about bullfighting. The matador’s expression for this idea in bullfighting was “to watch them come.” The idea of developing the skill to watch the bull as he charges with no thought except to calmly see what he is doing and make the moves necessary to the maneuvers you have in mind.  Hemmingway writes that to calmly watch the bull  come is the most necessary and difficult thing in bullfighting. We need the same skill as  trial lawyers.
  • George Lakoff  has pointed out, in his book The Political mind, that all trials are actually about  values. He argues that a  trial is really  a morality play. Jurors decide issues based upon their values, their idea of doing the right  thing and most, if not all, of that process is done subconsciously. Appeal to common values for good in your approach for trial. Show the importance of a plaintiff’s verdict beyond your client’s concerns and how it will benefit them.
  • Frank Luntz in his classic book Words that  Work, says we decide issues, form opinions and impressions  based on how people look; we decide based on how people sound we decide based on how people are dressed. We decide based on their passion. Contrary to our  law  school teaching, it is not logic at work nor weighing the evidence that results in our impressions and decisions. It’s  how we view the situation. There is a big difference between being fully aware of the impression we, our witnesses or our evidence is making from intellectually viewing it a logical fashion.
  • Malcom Gladwell in his  book Blink says 90  – 95% of our choices and decisions are made at an unconscious level by instinct. Think about that. Instead of approaching trial like an intellectual scholar relying upon jurors  using logic and careful evaluation, accept the reality of how our human mind fuctions. Try your cases to the reality of the situation and not myths. The undenial truth is:  a trial is a battle of impression and not logic
  • Certainly there is truth to the concept of the primative brain controlling our mental evaluations and  that survival is the most basic motivator  of our primative brain.  Furthermore, it operates  at a subconscious level without our control. Research shows  that if survival is not at stake the reptile brain goes into autopilot but as soon as survival is at stake the brain shifts into survival mode and nothing else matters. Therefore, if there is a perceived danger to the juror, his or her family or their community the survival instinct is involved. Safety increases survival chances. A jury verdict which promotes a change for safety promotes survival. Don Keenan likes to say that the justice system is a public safety system. An important question  is how the defendant’s conduct is a threat to the juror if allowed to go unpunished.
  • Rules are important because they relate to survival. When we know the rules we are able to navigate through dangerous situations. When we break the rules we endanger ourselves. When other people break the rules they endanger us too. That’s why conservatives and people generally think like a “strict father” – rules must be obeyed like them or not and there is a reward and punishment which must follow. For that reason it is also a common viewpoint that making people accountable for breaking rules acts to enforce them  which, in turn, protect all of us. Rules are enforced by verdicts against wrongdoers who  violate them. But, it  is important to  remember the only rule breaking that counts are those from wrong motives. All other “accidents” or ordinary “negligent” acts are forgiven and do not merit punishment. The most important issue is “why.” Why was the rule broken?
  • The main point to keep in mind is that the question in the minds of the jurors as they wonder what the case is about, is not: helping your injured client out, sympathy or applying the evidence. The primary question in the minds of the jurors is: How will this affect me? What’s this case got to do with me or my family or my  immediate community? Will what happens in this case impact  me? Since that is their real concern you need to address it by showing the benefit of a plaintiff’s verdict on them, their family or their community. In non punitive damage cases there are many ways of doing  this. Keep in mind  the common values of most jurors: (1) They want to be part of something important. They want to make their jury service mean something (2) they have a need to do the right thing, as they see it with their value system (3) they want to feel good about their service and the result. Tie these motivators to their self centered motives and the concepts prevously discussed for the best way to try cases.

THE WISDOM OF SHAKESPEARE FOR US PLAINTIFF LAWYERS

As I read Shakespeare I continually see his wisdom applying to me. This week let me cite some examples  to see what you think

HE JESTS AT SCARS WHO NEVER FELT A WOUND

How true this is. We see in life example after example of this truth. A strong advocate of tort reform and caps has a disabling injury and now complains bitterly about the unfairness of their personal situation. The young person who has yet to experience any pain or injury in their life, trivializes the injury and pain of others. Lacking personal experience we all tend to minimize the complaints and disabilities of others with phrases like: “just get over it and move on.”

It’s our role as plaintiff’s attorneys to first, totally understand how our client’s injuries, pain and disability truly impacts their daily lives  and second, to be able to translate that in practical ways  to the jurors. Knowing that the jurors who have not experienced pain or injury minimize the meaning of both to others, we must be our client’s spokesperson.

SWEET ARE THE USES OF ADVERSITY

This is a hard truth to accept. When crisis come and our case experiences a turn for the worse, we always tend to see the most negative implications. When we don’t get the result we hoped for or lose our case, we are totally discouraged and began to question our skills as advocates. That’s human nature for everyone except the narcissistic.

What years of experience as plaintiff’s trial lawyer has taught me is that adversity has its own rewards if we search for them with the right state of mind. Perhaps our case wasn’t as wonderful as we originally believed and learning it early saved us more grief. Not all turns that appear to be for the worse are. Some need to be seen from a new fresh angle as potential helps, perhaps in simplifying the case. Our losses teach us far more than do our victories if we have the courage to realistically examine what happened. Not all bad events are as bad as we think.

SPEAK ON, BUT NOT OVER TEDIOUS

When Hamlet talks to the players about how he wants them to perform his play he gives them excellent advice we trial lawyers can learn from. He says “speak on, but not over tedious; Men of few words are the best men and an honest tale speeds best being plainly told.” How often these very basic rules broken by us long are winded, unorganized and egotistical advocates. We talk too much. We talk to long and we talk too complicated or patronizing. We read this and intellectually say to ourselves “yes, that’s true,” but we never apply it to ourselves. We need to see a video of ourselves arguing something to grasp how universal the failure really is and how important it is to change.

Hamlet also tells the players: “Suit the action to the word, the word to the action, with this special observance, that you o’erstep not the modesty of nature: for anything so o’erdone is from the purpose of playing, whose and, both at the first and now, was and is, to hold as were the mirror up to nature: to show virtue her feature, scorn her own image, and the very age and body of the time is form and pressure.” He admonishes them to be congruent. Their words must match their body language. They must not be overly dramatic, but totally sincere and realistic because their role is to be mirror of what they are supposed to be communicating.

So, Shakespeare goes on to point out: “Men should be what they seem.” What a powerfully important rule. We should be what we seem to be. He warns there are insincere people: “One may smile, and smile, and be a villain!” and “Things are often spoke and seldom meant.” He warns us that “The devil can cite Scripture for his purpose” so we shouldn’t believe everything we hear. The most important rule he gives us is “To thine own self be true.”

What more important rule of persuasion could be that one is a totally authentic human being, totally sincere and without artificial pretense. Isn’t that our criticism of others: “She was only acting? She didn’t really mean it.” Our job is to suit the action to the word and the word to the action in all of our advocacy.

 OUR DOUBTS ARE TRAITORS AND MAKE US LOSE THE GOOD WE OFT MIGHT WIN BY FEARING TO ATTEMPT

Shakespeare has much to say about courage. In addition to this admonition he also writes: “Screw your courage to the sticking place” and “Thus does conscience make cowards of us all and thus the native hue of resolution is sickled over with the pale cast of thought.” The benefit of a confident and positive minded plaintiff’s trial lawyer is that they are courageous enough to plow ahead in spite of the risk of failure. Not doing so, as Shakespeare points out, often means we lose what we would have gained because we were afraid to attempt it. Certainly, we must all weigh our odds and consider all relevant factors in making these kinds of decisions, but let’s face it, we know we have failed to obtain a good result because we were afraid to take the chance and instead took the easy way out. That’s why Shakespeare points out “Cowards die many times before their deaths, the valiant never taste of death but once.”

AND TWO FINAL THOUGHTS FROM SHAKESPEARE

One thing we need to keep in mind is the importance of the good things we do for others, even those that seen inconsequential. Shakespeare notes: “How far that little candle throws his beams! So shines a good deed and a naughty world.” We should do well for others. That’s our role in life. We are the physicians of the injured, the wronged and those in need of justice.

Lastly, when you are wronged keep in mind what Shakespeare says: “Thus the whirligig of time brings in his revenges.”  Current age translation: “What goes around, comes around.” There is a Karma in this life where eventually we are punished for our wrongs and those that wrong us will eventually get what they deserve as well. Shakespeare says so!

WHAT SHOULD A PLAINTIFF’S LAWYER BE LIKE & WHAT IS THEIR ROLE?

Indulge me with a little freedom of thought which lacks much practical value. I’ve been thinking about today’s television compared to my childhood of radio drama which got me to thinking about  what we are supposed  to be as  plaintiff’s trial lawyers.

First, I think we are supposed to be women and men who are warrior’s for justice. That brings me to the lyrics by Jim Croce:

“You don’t tug on Superman’s cape you don’t spit into the wind you don’t pull the mask off that old Lone Ranger and you don’t mess around with Jim”

But, I think that’s exactly what we are supposed to do as plaintiff’s  trial lawyers. Contrary to conventional wisdom a plaintiff’s trial lawyer should be willing to do all of the things Jim Croce’s lyrics warn should be avoided. It’s our job and our professional calling to have courage to do what is right even if unpopular and frightening. We were not called to seek to be loved by everyone. Respected, we would hope and feared perhaps but not called upon to win popularity contests. We need to have the courage to risk displeasure from a judge, if we are justified in our actions. We certainly should not be afraid to invoke the displeasure of our defense opponent nor the  displeasure of  others if we are right in our conduct.

For us plaintiff lawyers  Art Buchwald painted our role in humorous prose: 

It is an honorable calling that you have chosen. Some of you will soon be defending poor, helpless insurance companies who are constantly being sued by greedy, vicious widows and orphans trying to collect on their policies. Others will work tirelessly to protect frightened, beleaguered oil companies from being attacked by depraved consumer groups. [Commencement address, Tulane University School of Law]

Scripture has much to say about the role of the advocate. For example, from Isaiah 1 we read: “Learn to do right; seek justice, encourage the oppressed, defend the cause of the fatherless, plead the case of the widow.”

Probably the best known historical description of an advocate was by Henry Lord Broughman in 1838 regarding his politically dangerous role as the lawyer for Queen Caroline. A German princess, she had married English Prince George in a political, but unhappy marriage. George wanted to divorce her so adultery charges were contrived against her. Broughman  agreed to defend this unpopular foreigner in a “kangaroo court setting” where  the King controlled the outcome in his favor. Braughman said this in a speech later about being an advocate: 

An advocate by the sacred duty which he owes his client, knows, in the discharge of that office, but one person in the world, that client and none other. To save that client by all expedient means—to protect that client at all hazards and costs to all others, and among others to himself—is the highest and most unquestioned of his duties; and he must not regard the alarm—the suffering—the torment—the destruction—which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be to involve his country in confusion for his client’s protection.”

This idea is reflected, in a way, by those old radio serials.  There was a radio and later a television show called Paladin. It featured a good guy gun fighter who lived in the Carleton Hotel in San Francisco in 1875 who was a gun for hire. His card read: “Paladin Gun for Hire. And, also on the radio and later television was the program Gunsmoke staring Marshall Matt Dillon who kept law and order in Dodge City.  In the right ethical sense, that is our role. To be ready to standup for anyone in a just case irrespective of the popular feelings about it. We weren’t meant to be silk stocking lawyers only representing the rich and powerful. That’s not our calling. We are the town marshal charged with keeping the peace and seeing justice prevails.

It also occurred to me that we may not think of ourselves as Superwoman or  Superman, but that’s  actually what is  expected of us as advocates.

When I was a child we didn’t have television. We had radio. There were many radio serials of adventure that were on the radio each week after school. Why, for ten cents and a box top from Kellogg’s Pep cereal you could get a Superman Crusader ring with a hidden decoder. And the announcer would say: “Faster than a speeding bullet! More powerful than a locomotive! Able to leap tall buildings at a single bound! – the adventures of Superman!” Then  there was Jack Armstrong, the All American Boy. We also had The Lone Ranger and Tonto. The announcer would lead off with:

Hi-Yo, Silver! A fiery horse with the speed of light, a cloud of dust and a hearty ‘Hi-Yo Silver’… The Lone Ranger! With his faithful Indian companion, Tonto, the daring and resourceful masked rider of the plains led the fight for law and order in the early Western United States. Nowhere in the pages of history can one find a greater champion of justice. Return with us now to those thrilling days of yesteryear. From out of the past come the thundering hoof-beats of the great horse Silver. The Lone Ranger rides again.”

It turns out that as fanciful as these radio characters were they were images of what we as plaintiff trial lawyers are expected to be: The defender of those in need, the weak and oppressed. The champion of justice. The one who rights  the wrong. To do that we need to be authentic and real people.  As the Sunday cartoon character of long ago, Popeye the sailor  man, used  to say “I yam what I yam and that’s all what I yam” And, while  we are quoting fictional  characters it was Tarzan who said  “Teach me to speak the language of men.” We too need to be who we are and to learn to communicate in ways our juries can understand.

So, that’s my description of the role of a plaintiff’s lawyer. I admit there’s not much practical help here, but I had fun thinking about the adventures of imagination old time  radio brought to children back when I was a child  which is a very long  time ago.