Category Archives: Advocacy

MORE RANDOM IDEAS TO THINK ABOUT

As I sort through  the materials I’ve accumulated over more than fifty years of law practice I continue to find ideas that might be of interest to others. Nothing profound here, but maybe you’ll find it worth reading. Here are the latest selections.

Communication

For a lot of years I kept the following as a reminder about all you had to know in conducting a direct examination of a witness or interviewing a client or witness. Rudyard Kipling wrote: “I kept six honest serving men (They taught me all I knew); their names are what and Why and When and How and Where and who.”

We know that the current research indicates an average attention span of about twenty minutes due, in part,  to the timing of TV before a commercial comes on. But, the idea of brevity is certainly not new in communications. Horace who lived 65 BC wrote: “Unless you are brief, your complete plan of thought will seldom be grasped. Before you reach the conclusion, the reader or listener has forgotten the beginning and the middle.”

The first rule of making a good impression?  Smile

Cross Examination 

The English barrister F.E. Smith was famous for his wit and trial skills. In a case tried to the bench the judge suggested that some of the issues were unclear. Smith gave the judge a short but very cogent account of the issues and their implications. The judge thanked him and said: “Thank you, but I am sorry to say I am none the wiser.” Smith rose and said: “Possibly my lord, but you are far better informed.”

In a case involving a man claiming injuries to his arm Smith was defending the bus company. On cross examination he said to the plaintiff: “Would you please show us how high you can raise your arm now?” The witness slowly raised it to shoulder level. “Thank you,” said Smith, “And now please show us high you could lift it before the accident.” The witness quickly shot his arm up above his head. Defense verdict.

Then there is the cross  examination reported in the book Anguished English

Q. Did you stay all night with this man in New York?

A. I refuse to answer the question

Q. Did you stay all night with this man in Chicago?

A. I refuse to answer the question

Q. Did you stay with this man in Miami?

A. Certainly not

Preparation

There is no substitute for  hard work in preparation. Winston Churchill was famous for his wonderful speeches and his oratory. However, according to Sir John Colville, one of his secretaries, Churchill would devote approximately one hour of preparation for every minute of delivery of his wartime speeches.

I kept a newspaper article that I thought was  a tragic example  of why we should carefully prepare. Like a pilot of an airplane, I believe we need checklists we go over for each repeat work we do as a trial lawyers. Here’s the story.

On Tuesday April 5, 1988 the United Press International ran an article entitled: “Sky diver may have forgotten parachute.” It read in part:

“Louisburg, N.C. a veteran sky diver who fell 10,500 feet to his death apparently forgot to wear a parachute in his excitement to film other sky divers, police said after seeing footage taken by the man during his final fall.

Ivan Lester McGuire, 35 of Durham died in the bizarre accident Saturday. McGuire was filming a jump by other parachutists. Footage recorded a voice-activated camera attached to his helmet…and it sounded like he may have said, Oh no.’ “

Determination 

We all have fears  and are nervous to some degree when we act for our clients in trial.

John Wayne’s rule: “courage is being scared to death and saddling up anyway.”

Someone has said: “Don’t quit. The reason pit bulls are the best fighting dogs is not because they are the biggest or strongest or scariest. It’s because they are the most tenacious.”

Dealing with failure

Another problem we deal with as trial lawyers are our failures. Harold Kushner in his book Becoming Aware wrote: “Life is not a spelling bee, where no matter how many words you have gotten right, if you make one mistake you are disqualified. Life is more like a baseball season, where even the best team loses one-third of its games and even the worst team has its days of brilliance. Our goal is not to go all year without ever losing a game. Our goal is to win more than we lose, and if we can do that constantly enough, then when the end comes we will have won.”

Someone wrote “rules for being human.” They included some of the following:

  1. You will learn lessons. You are in enrolled in a full time school called life. Each day in this school you will have the opportunity to learn lessons.
  2. There are no mistakes, only lessons. The schooling involves a process of trial and error and failed lessons are as much a part of the process as successful ones.
  3. A lesson will be repeated until learned Lessons will be presented to you until you have learned it. When you have learned it you can go on to the next lesson.
  4. The lessons do not end. There is no part of the school of life that does not include lessons to be learned.
  5. The answers lie inside of you. The answers to all life’s questions lie inside you. You need to stop, listen and trust your inner voice.

“Amarillo Slim” Prest6on was a high stakes poker player who lost in the 15th annual Las Vegas World Series of Poker in the final rounds. “Oh well, shed no tears, take no prisoners,” Preston said as he left the table.

Teaching by Example

My friend Gerry Spence would often stop someone at the Trial College who as  explaining or instructing and say “show us.” Here’s Edgar Guest’s poem about the importance  of showing and  not just talking.

Edgar A. Guest wrote Talking the Talk or Walking the Walk

“I’d rather see a sermon than hear one any day.

I’d rather once you walk with me

Than merely show the way.

The eye’s a better pupil

And more willing than the ear

Fine counsel is confusing

But the example’s always clear.

I soon can learn to do it

If you let me see it done.

I can see your hands in action

But your tongue too fast may run

And the lectures you deliver

May be fine and true.

But I’d rather get my lesson

By observing what you do…

Argument

There is the story told by the lawyer for plaintiff about the defenses raised by defendant. He said it’s like the case involving a man who sued for dog bites when attacked while walking on the sidewalk in front of defendant’s house. The Defendant responded: “My dog was chained to the house and the chain does not extend to the sidewalk. Besides my dog is an old dog and has no teeth so even if he bit him it wouldn’t hurt him much. Not only that, I don’t even own a dog.”

The great Houston criminal defense lawyer Richard “Racehorse” Haynes defended Morgana Roberts, known as baseball’s “kissing bandit” because of her habit of running out on the field and kissing players. . She was charged with trespassing for interrupting a Houston Astros season opening game when she kissed Nolan Ryan and shortstop Dickie Thon. Racehorse, noting Morgana’s measurements as 60-24-39 as a topless dancer, maintained it wasn’t his client’s fault she was on the field – it was gravity. He claimed she had leaned over the rail and her ample measurements caused her to lose her balance and fall. “Anybody who understands the laws of gravity will understand,” he said. “Seven out of ten times you lean her over the rail, she’s going to go over.”

Shakespeare wrote in Hamlet: “An honest tale speeds best, being plainly told” and that “Brevity is the soul of wit.” Which brings to mind W.C. Fields memory of a vaudeville routine where the comic says: “Duffy and Sweeney are on barstools drinking away until Sweeney keels over and falls to the floor. Duffy says: “I like a man who knows when to stop.”

Wit 

There are some things that I saved because they just made me smile. No particular lesson, but I thought they should be shared with you.

In Catch 22 Milo Mindbinder explains he is making a fortune buying eggs at three cents each and selling them for two cents. When asked how he could possibly make money buying eggs at three cents and selling them for two, he responds: “Volume.”

General Omar Bradley sent a message to George Patton in WW II ordering him not to capture the town of Trier because it had been arranged for the Russians to take the town instead. Patton, famous for his fast campaigns, had already captured it. He sent a message back: “Have already taken the city. Do you want me to give it back?”

General George McClellan was a large disappointment to President Lincoln for has caution and refusal to attack.  Finally, after a major missed opportunity by McClellan to have won a battle Lincoln wrote him: “My dear McClellan. If you don’t want to use the army I should like to borrow it for a while. Respectfully A. Lincoln.”

PRINCIPLES OF ADVERTISING APPLIED TO TRIAL

I saw an add by Ken Hardison for PILMMA, a marketing firm for lawyers, that made a whole lot of sense to me if I were advertising. As I thought about it, it occurred  to me the same fourteen principles outlined in the advertisement really apply to trials. Here are the principles:

1. Who is your target audience? When we try cases we need to think about who are jurors are and what they want or expect. He says: “research can help.” Certainly we know that focus group research helps and is often essential.

2. You must develop a unique  selling proposition. The ad explains this means you need to figure out what it is about your services stand out among your competitors.  For trial lawyers we need to demonstrate total honesty, trustworthiness and sincerity about our case. We need to stand out as  the person the jury can trust and rely upon . We need to be unique in being totally ourselves and not pretending to be somebody else so that we stand out  as unique in the courtroom.

3.  Brand. The ad says that each ad must have the same logo colors and consistency of brand. What we need to do as trial lawyers is develop a theme that represents the key issue in the case from our perspective that is unique and is consistently followed throughout the trial.

4. Benefits versus features. The ad explains that you must promote the benefits of using your services. It points out that consumers don’t care about you as they have only one burning question in their mind: “what’s in it for me?” The ad says that we must always answer this question first before all else. Many lawyers make the mistake of presenting their case from an intellectual and logical  standpoint assuming the weight of evidence will control the outcome. But, the jurors are consciously or subconsciously asking themselves:  how does this case impact me or those who are important to me?  That’s one of the motivators behind the concept of Reptile, that is if we allow this defendant to get away with this it will affect us in some way.Verdict motivation comes primarily from the belief that the action taken by the verdict will benefit the juror, their family or community.

5. You are not your prospect. The ad points out that one should not make the mistake of believing that because you like  a proposed ad layout that the potential client will like it. When I read that I thought of how many times I have said to other lawyers the worst type of person you can ask advice from about your trial is another lawyer if you are trying to find out what will appeal to the jury. If you want to know how ordinary people on a jury might react to your case ask ordinary people. That’s what focus groups are all about.

6. Create laser focused ads. Mr. Hardison explains that you need to figure out who your target audience is and find a compelling message directed at them. Trial lawyers need to keep  their cases short and simple. Their major points  should not exceed three in number and they should be consistent throughout the trial focused on the theme and issues.

7. There are key questions that must be answered  according to the ad. What is it? What is it about? What do I get? The jurors arrived at the courthouse wondering what is this case about? Why is the plaintiff suing? How much does the plaintiff want? What does the defendant say about? Trial lawyers need to identify the key questions in the minds of the jurors and begin answering them as soon as possible.

8. Headlines are king. Mr. hardison says: “you only have 3 to 5 seconds to capture someone’s attention.” He says that he writes anywhere from 20 to 50 headlines for an ad  before he makes a final decision. He says that the purpose of the headline is to capture the reader. Everything he says about headlines at apply to trial and trial lawyers.

9. Split test when practical. The ad suggests that in order to know if that is working one needs to use two versions with one change and test to see which works. Certainly with focus studies one can present issues, evidence and exhibits in different ways for two different groups to see what works best. The benefit of a focus group is that you can test the marketing of your presentation.These

10. Track your ads results. The obvious point is made that one needs to have a way to check to see whether or not the ad is working. When I read this I thought about shadow jurors. Employing people to sit through at least the early part of trial can give you invaluable feedback as to the results of your work.

11. Testimonials. The end points out that testimonials are the most beneficial ways to advertise. Certainly in trial the impression made by our witnesses is the most important aspect of the testimony presented. The quality of our witnesses and the impression they make reflect and a significant way upon us as trial lawyers and our case.

12. Simple headlines. The recommendation is that: “your headline should be in simple language. Your prospects will not stop to decipher the meaning of an obscure headline.” That thought really flashed out page to me. Our whole goal is to make our communications simple and understandable. Our exhibits must be a “headline in simple language.” We must avoid demonstrating how intelligent we are and how many technical words we know. Short and simple should be our goal at all times.

13. Don’t sell, educate. He points out that people love to buy, but hate to be sold to. That is equally true with jurors. They will resist your attempts to sell. They will however hang on to the conclusions they arrived at themselves because you educated them to make the decision. Like all good sales professionals our job is not to pressure, but to lead people to their own conclusions. Their conclusions they will own and will defend.

14. Repeat your winners. The ad says that when something works you should not change if what you’re doing works. While we as trial lawyers must always be open to learning and modifying for improvement, we must guard against adopting approaches that are not consistent with who we really are. The basic principles of being genuine truthful and sincere are still the winning   combination for trial lawyers.

I haven’t used the services of PILMMA, but this  is an excellent summary for marketing and if were looking  I would check with this company. I think we are in the sales profession every time we go to court and we should study ethical principles of persuasion and sales.

MORAL OUTRAGE & JURY VERDICTS

We are back from Europe and while suffering from jet leg here are some thoughts you might want to consider.

Jurors construct their own story out of the evidence they are given, evaluate that story and then select an outcome that best fits their version of the facts. They apply their own values as well as their perception of the community attitudes in coming to their decision. “Your group’s values are threatened by actions like this. You or your loved ones could be harmed if this is allowed to happen,.” Juries will use these factors in deciding if the the proposed damages are low or high.

So, given this process, what about moral outrage effecting verdicts? Liana Peter-Hagene has written an interesting article The Emotional Components of Moral Outrage and Their Effect on Mock Juror Verdicts. While the article is focused on criminal cases it has many consistencies with what is taught by Gerry Spence regarding the significance of betrayal in civil cases. As the article points out, generally speaking, the more moral outrage jurors feel the more harm they perceive was done and the more punishment necessary to counter  the harm and restore the balance of justice. 

In civil cases just proving a mistake was  made isn’t enough for a substantial verdict and in medical malpractice cases is seldom enough to win the case. We forgive mistakes. What we don’t forgive are actions that require punishment. In fact, conservative jurors  are far more likely to impose more punishment where they feel moral outrage than are liberal jurors. When jurors see behavior which they perceive as moral transgressions, they react with moral outrage. Laws are supposed to represent what society views as right and wrong. When broken there is a need to punish.  When conduct amounts to a betrayal of trust and of what is right  there is a corresponding need to punish. What is clear is that the legal system’s ideal that judgments are based only on rational thought and without emotion is simply contrary to ordinary human nature and impossible to achieve.

Aristotle taught that pathos i.e. emotion, was a crucial component of persuasive speech. Moral judgments  are the product of non conscious automatic intuitive processing. Only after that does conscious reasoning take place to justify whatever has been presented to the conscious as a non biased objective decision.  Given this truth plaintiff lawyers should always be more concerned in discovery for the reasons behind the mistake that was made than proving the mistake exists. It is not just showing the car went through a red light, anyone can make that mistake – it is showing that the reason was the driver was texting, which is a total betrayal of the trust we put in other drivers to drive with reasonable care for  our safety.

We lawyers are trained to look for the evidence which shows a negligent act happened so we tend to quit when we have exhausted that area of inquiry. What we must always  do is to to explore for possible moral outrage and  facts  of betrayal behind the mistake.