Category Archives: COMMUNICATION

A MIXED SOUP OF IDEAS

Projecting Power

In a short piece “how to project power” writer Malia Wollen quotes social psychologist Deborah Gruenfeld at Stanford University: “keep your limbs away from your body.” She says some research shows people posed in expensive postures feel more powerful, exhibit higher testosterone levels and have lower levels of stress. Additional advice: make eye contact while you’re talking, but feel free to look away when others do. This is called by scientist having a high “look – speak to look – listen ratio.” Gruenfeld  has spent decades studying the psychology of power. In 2008 she and a theater instructor began offering a class at Stanford business school called acting with power. Her advice includes: Don’t bother over explaining yourself. Speak succinctly. Take ownership of the space around you, whether it’s a board room or a cubicle. Say to yourself “this is my room. This is my table. This is my audience.” Gruenfeld uses the example of a Queen  who has dignity and respect, makes people feel safe, but underneath her cape is a sword.

This brought to mind the famous TED talk by Amy Cuddy made famous in 2012 and viewed by a record number of people regarding power poses. Cuddy suggests that taking a wonder woman like stance before a tough negotiation or high-stakes meeting can improve how others perceive you, measurably alter the testosterone and cortisol levels in your brain as well as change your and others’ perspective.  Standing with arms on hips and legs spread for a few minutes before the important meeting can boost your confidence and risk tolerance.

Fright

In August of this year Joan Acocella writing in the New Yorker discussed what’s behind stage fright and a book review entitled “I can’t go on!” In 2012 researchers at the University of Nebraska – Omaha surveyed some 800 college students asking them to select their three greatest fears from a list that included such things as heights, flying, financial problems, deep water, death and speaking before a group. As has been the case in other research, speaking before a group beat out all the others including death.stage fright has been described as “self poisoning by adrenaline.”

In response to stress, the adrenal glands pump a hormone (adrenaline) into the bloodstream causing the body to shift into a state of high arousal. Muscles tense, sweats and shakes, heart pounding, mouth goes dry, trouble breathing, nauseated or dizzy,  constricted throat and a voice rising in pitch. This is all from the “fight or flight” response. It all originates from a feeling of exposure. Actor Stephen Fry says that stage fright means the audience sees “the shriveled penis in your head.” Actor Daniel Day Lewis playing in the production of Hamlet in London’s national Theatre turned on his heel in the middle of a show and walked off the stage never to return. In the 26 years since then he has acted only in movies.

Cicero, ancient Rome’s acclaimed orator, said “I turned pale at the outset of a speech and quake and every limb.” Thomas Jefferson, who was said to of been mortally afraid of public speaking. As president, he gave only two speeches, his inaugural address twice. Gandhi was terrified at having to speak to a group: his vision would fog over; he would fall mute. Barbra Streisand is well known for her problems in that regard. There are numerous examples: Ella Fitzgerald, Luciano Pavarotti and Mel Gibson.

There are various ways of dealing with the problem. One is drugs, notably beta blockers which interfere with stress hormones. There is a wide range of behavioral and mental exercises including yoga and meditation. I have no magic formula. However we all know that the most powerful force we have is what we say to ourselves and believe. The first thing that happens with becoming stage fright struck is that we focus on us. We see everybody as looking at us and we are looking at ourselves as well magnify all things out of proportion. In fact, it is the ability to step out of ourselves view the situation as if we were in another part of the room seeing the entire picture. In addition, the visual image we put in our head is key here. Visualizing slow calm confident words and demeanor creates reality for our subconscious. Playing it as a movie in our mind as realistically as possible with color and sound makes it reality in our subconscious. It goes  without saying you have to know the material, you have to be prepared, you must have reviewed everything in your mind well enough to avoid as many surprises as possible. In the end, it’s a matter of having the courage to stand and deliver in spite of fear. After all dignity is grace under gunfire.

LEGAL IMPLICATIONS OF AN APOLOGY

I was recently sent an article about the effect of apology by a journalist from the BBC which was interesting. The failure to make an apology has as  serious consequences as making one does. For  example, a bad, or delayed or non apology can cause a great deal of harm. I think the biggest violators of  basic correct apology are politicians and corporations. After all, their attitude is “being powerful means never saying  you are sorry” and many operate on the proposition don’t ask permission, just do it.  

For the U.S. the classical illustration of  how not to make a corporate apology was Tony Hayward’s apology for the BP golf spill which to this  day is an underlying  reason why there is continued resentment and distrust of BP plus ongoing litigation.

The psychology involved is very  interesting. See recent NY Times  article: http://www.nytimes.com/2015/06/28/style/i-cant-apologize-sorry.html In my trials I have capitalized on the corporate reluctance to  apologize. It is human nature to not want to say you are sorry and in legal settings seen as inadvisable by many lawyers. Here are some thoughts about apologies:

Benefit of Apology

Dr. Jennifer Robbennolt, a University of Illinois law professor has written an article Apologies and Medical Error www.ncbi.nim.nih.gov/pmc/articles/PMC2628492/ Some 550 people were surveyed about their reaction to apologies offered during settlement negotiations in a hypothetical injury case study. Her findings suggest apologies can actually play a positive role in settling legal cases. The studies showed that statements acknowledging an error and the consequences, while communicating regret for having caused the harm can decrease blame, anger, and decrease the risk of litigation.

The article cites another study where patients were asked to evaluate a number of scenarios describing medical errors from the perspective of the injured patient. 98% indicated that they expected a physician’s acknowledgment of the error. In another study 88% of the people wanted the doctor to tell them that they were sincerely sorry for what happened. Focus groups have indicated similar preferences.

Robbennolt’s studies indicate that patients who file lawsuits are motivated to find out what happened and to prevent future injury. In another study surveying medical malpractice claim to determine the motive for filing a malpractice case 90% indicated they wanted to prevent the same thing from happening to somebody else and to receive an explanation for what happened. Yet in a study of physicians about disclosure of problems to patients, 57% referred to the event as a “complication” or “problem” Fewer than half of the surgeons offered some expression of apology or regret and only 8% assured the patient the error would be

The reluctance to apologize is largely based upon the fear of risk of litigation. However Robbennolt indicates that empirical research has demonstrated that most injured patients do not file lawsuits and that physicians substantially over estimate the risk of being sued. Further apologies tend to diminish blame and make patients less likely to sue.

Effective Apology

Studies have shown not any statement will suffice as an effective apology. In an article 8 essentials of an effective apology www.leadingwithtrust.com/2014/03/02//8-essentials– of–an–effective-apology/  The article suggested that there are eight essential elements of an effective apology

Accept responsibility for your actions.

  1. Pick the right time to apologize
  2. Say “I’m sorry,” not “I apologize”
  3. Be sincere and express empathy for how you hurt the other person
  4. Don’t use conditional language
  5. Don’t offer excuses or explanations
  6. Listen figure 8 commit to not repeating the behavior.

LEGAL NOTES

As of January 2009 apology laws had been enacted in 36 states. (Does Sorry work? (Benjamin Ho Cornell University and Elaine Liu University of Houston abstract October 2010) their paper concluded that “we find that in the short run the law increases the number of resolved cases while decreasing the average settlement payment for cases with more significant and permanent injuries. Our findings suggest that apology laws reduce the amount of time it takes to reach a settlement in what would normally be protracted lawsuits, leading to more resolve cases in the short run. In the long run, the evidence suggests there could be fewer cases over all.”

Washington has adopted a statute, RCW 5.64.010 which makes apologies and conciliatory efforts in a malpractice case made within 30 days of the event inadmissible as evidence in a later malpractice trial.

ADVICE FROM THE SON OF A LAWYER & THOUGHTS ABOUT EXPERT WITNESSES

I have a two unrelated subjects I’d like to discuss with you today. One is helpful advice from a non lawyer which we can benefit from and the other some thoughts about advice for your expert witnesses.

Regarding the first, Sunday’s NY Times has an interview with Jake Wobbrock who is the founding CEO of AnswerDash. It is a service that can be downloaded to a website to create answers to customers questions. Jake is professor at the U of W in Seattle and what is of interest is that his father is Portland plaintiff’s lawyer Larry Wobbrock, one of Oregon’s very best trial lawyers,  some of you may know. Here is one article about Larry’s skills as a plaintiff lawyer:

http://www.superlawyers.com/oregon/lawfirm/Lawrence-Wobbrock-Trial-Lawyer-PC/171692ca-31e3-4e8a-ae0e-1e2863e916ce.html

Jake says, in the interview, that his father taught him that in life everyone would like to be a hero at something but that there is no way to be a hero without risking failure, or as he says become “the goat.” He explains his father taught him that if you are at the foul line in a basketball game with two shots which can win the game and no time left you have the opportunity to be a hero but only at the risk of being the goat. His father told him that if you shy away out of fear of being the goat, you can never be a hero. It’s only by embracing both you can become a hero. He says we should seek growth through risk taking, not comfort. Great advice for those of us fearful of acting outside of our comfort zone as plaintiff lawyers.

Jake says to be able to maintain focus for sustained periods is a requirement of greatness. Identifying what is important sand sticking with it is essential. Great advice for those of us who allow defense distractions to get us to chase multiple rabbits when we should have singular focus in our cases.

He says that in hiring people for his company he looks for “the three A’s” which are: Aptitude, attitude and appetite. Aptitude is the skill and ability to perform. Attitude refers to a positive determination to succeed. Appetite refers to a passion for the work, to accomplish and to succeed. Certainly no great plaintiff’s lawyer ever succeeded without passion for those we represent.

The second subject I’m discussing because of an article I recently read about it which I thought made sense. Preparing experts as witnesses is always a challenge because they very often are not open to advice since they see themselves as experts and experts give, not take, advice. Yet I’ve seen some really bad expert testimony in my life, although I flatter myself that most of it came from the defense expert on cross examination. So here are a few fundamental thoughts about being an expert witness:

  1. Listen carefully & think before you answer. Listening is the single most important thing you can do. Thinking is also critical, but not long pauses after every question before responding.
  2. Answer only one question at a time. Far too often witnesses fail to grasp that a question is really not one question but more than one – we call it a compound question. How it’s handled is important. The expert should not be a smart aleck or become a lawyer in their response. If it is a simple statement one could simply break the answer into two answers: “As to your question about drugs. The answer is that there were none. As to your question about speeding, the car was going within the speed limit.” Or one could say: “I’m sorry , but there was more than one question in your statement. Could you restate your question.”  If you only listen to the first and last part of a complex compound question you may give incorrect testimony, Listen carefully.
  3. If important, respond if cut off or interrupted. Not all interruptions to your answer are important and even if you don’t point out the interruption it can reflect back on the manners of the lawyer asking. But, if important, simply wait until he lawyer has finished and say: “I’m sorry, but I had not finished answer your last question which I would like to finish.” Usually the judge will help you.
  4. Don’t guess. While it’s important for you never to act like you are deliberately being uncooperative by refusing to acknowledge obvious things you should, it is equally important you do not guess at important matters. If you don’t know the answer say so. If you know, but can’t remember say “I can’t recall at this time” or “without refreshing my memory.”  If  it is outside your expert area, say so. If you weren’t asked to investigate a subject say “That’s not something I asked to review and haven’t done so.”
  5. What about “yes or no” questions? If you can answer truthfully do so  with a yes or a no and follow with explanation “because…..” If you can’t say so: “I can’t answer truthfully with only a yes or a no without an explanation.” Or consider, if true, “yes, but only the way you have stated the question, but not in this case”

So, the basic rules for experts  are (1) listen and make sure you understand before you answer. Don’t answer until you understand (2) think before you answer (3) be calm and professionally respectful no matter what the demeanor of the cross examiner and (4) tell the truth.