Category Archives: COMMUNICATION

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.

HOW MUCH WILL YOU GIVE ME FOR THIS JUG OF WATER? PERSUASION PRINCIPLES

During a flight in Europe I read an article in a business magazine I pulled  from the back of the seat in front of me. It dealt with one of my favorite subjects:  persuasion. The author, Steve Martin, begins the article describing a story he says an English business man  was fond of telling. It involved a young man who came to his office looking for a job. He said that after listening for a few minutes the business man pushed  a large jug of water on his desk towards him and said: “Young man, I have been told that you are quite the persuader. So, sell me that jug of water.” After hesitating for a moment, the job seeker got up from his chair, picked up a wastepaper basket with discarded paper and placed it next to the jug of water on the desk. Then he lit a match and set the paper on fire. Turning to his prospective employer he said: “How much will you give me for this jug of water?”

The author of the article pointed out to make the sale the young man did not point out any features of the water jug nor discuss  savings and purchasing it but instead changed the psychological context in which it was offered for sale. Persuasion scientist have established the fact that successful persuasion is frequently governed more by context than content of the sales pitch.

The young man wasn’t selling the water as a  product in the abstract. He was  selling it to satisfy an immediate need for water. For example, a buyer wanting a 1/8 inch drill bit is not buying it for the inherent quality of the drill bit. Rather, he needs a 1/8  inch hole drilled which is the reason these buying the drill. Someone once wrote a book on sales they titled “sell the sizzle and not the steak.”

Think about our cases. While we are presenting a client to the jury and asking them to  evaluate the client’s case under tort principles,  we should be selling the juror’s need to feel safe from the kind of negligence that injured our client, to feel like they are doing something important and to feel satisfied and  proud of their service as jurors.

The change of context can take more than one form. Another context changer is that of contrast. Research shows that what people experience first has a disproportionate influence on their perception of the next thing they see.  As the article points out, that’s why a $ $60 bottle of wine appears to be a great value after you’ve been first shown  a $120 bottle of wine. Just the opposite reaction occurs if you had been first showing a $10 bottle of wine. Comparison influences perception.

Think about your summation for damages. Don’t we frequently use this principle when we talking about values in the real world  –  paintings that have sold at auction for multi millions and the salaries paid sports stars in comparison to what we say is the value of our client’s case?

There is much to be learned from the research done in the business world in advertising and sales. Our professional role is that of persuasion in our client’s stead. Learn from business  world the principles that work.

PSYCHOLOGY & THE LAW

The June issue of the American Association of Justice Trial magazine has an outstanding collection of articles about the trial practice by  a variety of great trial  lawyers and trial consultants including Mark Lanier, Gerry Spence, Rick Friedman, David Ball and Randi McGinn plus other greats as well. I’m going to outline just a few of the ideas from these articles.

  • David Ball recommends reminding jurors of key points they will need during deliberations. He calls it “arming the jurors.” For example, “In deliberations, you’ll need to explain to each other how you feel about the case. My job is to provide what you will need to do that. Let me start by telling you who we are suing and why..” During direct examination do the same, for example,  “Dr. Adams, the jurors will need to use this in deliberations so how would you explain it to them in non medical terms?”
  • Lisa Blue and Robert Hirschhorn suggest that in voir dire you should ask the panel “Q. If a loved one of yours was severely injured or killed due to negligence of another would you sue?” And, “Q. what is the name of one person, living or dead, whom you admire or respect most?”
  • Howard Nations does a great job of explaining attribution which is such an important concept. There are different kinds of attribution. For example, the jurors might have defensive attribution: “I’d never do that and I wouldn’t have been injured like this plaintiff.”
  • Gregory Cusimano discussed the role of morals, mores and beliefs in trial. He explains the “automatic decision making process” we all have. When basic moral values are offended jurors punish the wrongdoer. He recommends facts which remove plaintiff from the stereotype of someone trying to get rich and which make jurors empahathize with plaintiff while making the defendant look uncaring.
  • Paul Scepter says the more jurors are morally outraged, the more harm they perceive has been done and the more punishment they feel is necessary to counter that harm
  • Robyn Wishart writes that jurors come to court with their own life experiences which they use to interpret the evidence. We need to use images, exhibits to create a shared common experience and avoid different interpretations.
  • Randi McGinn avocates teaching through stories and gives examples of how to do that well.
  • John Romano covers “the sins of anti persuasion” such as overcomplicating the story, failing to make a point and over repetition.
  • William Bailey explains why storytelling is so powerful.
  • Mark Mandell outlines the power of framing and the importance of issues he calls “I just can’t get over” the fac that… issues in the case.
  • Mark Lanier discusses the need for us to set priorities in our lives and our work for proper life balance.
  • Rick Friedman discusses fear of losing created by comparing ourselves to others and why it is illogical to make such comparisons.
  • Gerry Spence discusses fear and the fear of failure which he argues are a gift by opening the gate to growth

This is an issue you should read, index and keep as a valuable summary of important principles of trial.