Category Archives: Advocacy

RALPH WALDO EMERSON & TRIAL LAWYERS

I realize that my most recent posts have departed from my usual offering of practical advice regarding plaintiff trial practice. This post is equally lacking in practical application to trial, but I think worth considering. I’ve been thinking about what are the fundamental qualities of a great trial lawyer and it seems to me that it always starts with who we are, what we believe and what we think. Everything else are learned attributes or techniques. The most important thing we need to do is to know ourselves. That was the teaching of Plato. His pupil Socrates said “the unexamined life is not worth living.” Shakespeare has Polonius giving advice to his son “This above all: to thine own self be true, and it must follow, as the night the day, Thou canst not then be false to any man.” Learning who we really our is fundamental to personal improvement

I also think we should consider some historical ideas about living our lives which impact us as advocates for the harmed and those in need of representation.

For example, Ralph Waldo Emerson, wrote an essay, “Compensation” in which he said each person is compensated in like manner for that which he or she has contributed.  This “law of compensation is also called “the law of cause and effect” because he argued that the entire system of the world is represented in every particle of its parts. Every excess causes a defect and every defect an excess. “For everything you have missed, you have gained something else and for everything you gain, you lose something.”

For Emerson “The dice of God are always loaded. The world looks like a multiplication table or a mathematical equation, which turn it how you will, balances itself.” He believed cause and effect cannot be severed. That meant, he said, “You cannot do wrong without suffering wrong.” On the other hand, love and you shall be loved.” For Emerson give and you shall be given.  Wrong others and you shall receive the same.

Emerson’s law of compensation was that you can never be compensated in the long term for more that you contribute. If you want to increase your compensation, you must increase the value of your contribution.

Closely aligned with Emerson’s ideas was the concept of “the law of attraction” based upon positive mental attitude. Napoleon Hill published two books on this idea, the best known of which is “Think and Grow Rich” published in 1937. He believed in the importance of controlling one’s own thoughts in order to achieve success, because positive thoughts attract positive results. More recently Norman Vincent Peale’s book “The Power of Positive Thinking” promoted the same idea and remains a best seller. The most powerful force we have is what we say to ourselves and believe.

In fact there is research involving groups of people which have tested the impact of positive thinking on the brain. It showed that positive emotions broadened a sense of multiple possibilities and opens the mind to more options. In addition, had demonstrated an enhanced ability to develop resources.

Even in the New Testament we find passages about what has been called “the law of abundance,” that is, the idea that by giving you will receive and the more you give, the more you will have abundance. We read in Luke: “Give, and it will be given to you. A good measure, pressed down, shaken together and running over, will be poured into your lap. For with the measure you use, it will be measured to you.” And in Mathew we read: “Whoever has will be given more, and they will have an abundance. Whoever does not have, even what they have will be taken from them.”

While televangelists like to utilize these passages to promise donors a reward for supporting their cause and motivational speakers promise benefits based upon some of these ideas, there is a genuine benefit from reasonable application of the concepts.

There are hundreds of books dealing with self-improvement and even more “rules” that are advocated for accomplishing it. A few worth considering among a whole lot more include these ideas from Neuro Linguistic Programing principles.

  1. Be truthful and honest. Speak and act with integrity.  Be who you really are & not pretend.
  2. We already possess all the resources we need to succeed and achieve our goals. We just  need to learn how to unlock them
  3. The meaning of communication is not what is said, but what was understood
  4. You are in charge of your mind and therefore your life
  5. When things get difficult, remember: there is no failure, only helpful feedback.
  6. If one person can do something, we can learn to do it too by modeling the  thinking and behavior
  7. The mind and body are part of the same system and one effects the other.
  8. Every behavior comes from a positive intention. Look behind behavior to the intent
  9. The map is not the territory. We don’t respond to the facts, but rather our mental picture of it. We need to revise our mind to the reality of the world as it exists.
  10. People choose what they believe is the best choice. Choices are based upon experience. More  and  better experiences allow for more choices

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!