Category Archives: COMMUNICATION

WHAT DO TRIAL LAWYERS & THE ACADEMY AWARDS HAVE IN COMMON?

Bruce Feiler wrote about saying thank you at the Academy Awards in the Sunday New York Times. The observations in his article seem to me to have usefulness for us as trial Lawyers. Here are some of the things the article discussed.

At this year’s ceremony the speakers are allowed only 45 seconds which is about 65 words or two tweets to say thanks for the award. So, what advice do the experts have for the award winners? The first is be prepared. The biggest mistake most winners make is not prepared. When you only have 45 seconds say something meaningful you need to prepare in advance the article maintains. Isn’t this also true of us as trial lawyers? Don’t we, too often, simply try to start talking with the belief that we able to say something rational but without preparing. The result is a whole lot of unnecessary words that turn out to be a rambling and often boring talk or argument. How much better it would be for us to have taken the time in advance to think about it and plan an outline of the talk.

Another rule of the experts was to be grateful, but not overly grateful. Oscar acceptance speeches often include long lists of thank you’s. The article points out that that is not only boring but worse, the people you leave off the list will be angrier than the people you included on the list. The recommendation was to make a general thank you to everybody on the team. However it is suggested that whatever you do don’t forget to thank your spouse or family member. What came to my mind, when I read this, was how we often thank the jury in our final summation. We need to remember, if we are going to thank people, to include the court personnel and members of our trial team who are not lawyers – the people we have engaged with during the trial while the jury was watching.

It is recommended that the person be apolitical. The experts point out that the actor is getting an award for acting and not for their political views.

The last rule was in my the most important one. That recommendation was to be sincere, “even if you have to fake it.” A management consultant was quoted as saying
that:

“The best way to be sincere is to actually be sincere. But short of that there are a few techniques to first, pause. Visually it helps because it makes people feel like you are actually overcome with emotion. Second, think before you talk. Say something like, I am so overwhelmed. This gives you time to compose yourself and say what you intended. Above all, when you command the stage, your goal should be to connect. The way we communicate today is so inauthentic. People break up over texting. When you’re in a big moment like you want people to feel closer to you and say, that’s how I would feel if I got that award. If you can do that, you are a star.”

My reaction was that while you might be able to fake sincerity in a 45 second appearance & talk, you have no chance of faking sincerity to a group of six or twelve people over several days. They have built in human antennas that will detect insincerity faster than you can talk or act and if they find it, you lose all credibility. Since a trial is a battle of impression and not logic the key component of impression is being truthful as well as genuine. If you are not honest with the jurors they will figure it out very quickly and if they conclude you have tried to fool them in some way, they will punish you for it. My rule for trial lawyers is be truthful, be honest and be yourself, not someone else you pretend to be.

THE ART OF LISTENING

Our greatest  failure as plaintiff’s trial lawyers  is  not listening with concentration. We don’t really listen to everything the juror is saying  or in a nonverbal way communicating  to us in jury selection. We don’t do a  good job of making  it clear to that juror that we have heard and accept in a totally nonjudgmental way whatever they have told  us. We  don’t carefully listen to the witness testifying in order to know how  to follow up. Listening is an important  trial and  lawyer skill.

At the Spence Trial College the psychodrama leaders  conduct what is called “the listening exercise.” Its purpose is to teach lawyers to be active listeners.  The person speaking sits  in a chair  and the listener sits  in a chair  alongside but  slightly behind. The  speaker begins  to describe something. The listener tries  to reflect what the speaker is saying  or feeling  simply.  They do not give advice nor say anything other then reflect back in a way that demonstrates total concentration and understanding of  what is being said. It is more difficult than you would think to be the listener

As an aside, during the 1940′s and 1950′s  a psychologist, Carl  Rogers, was well none  for  what  he called “non-directive” therapy. He believed people had the ability within themselves to find  solutions and  know  what to  do once  they clearly understood the situation.  He believed that people were fundamentally good and a desire to become the best people they could be. His approach was  to avoid guidance, direction and advice on  what to do  or think. Instead, he would continually show  his clients  he  was totally listening to what they were saying and would reflect  back to them their  statements, feelings  and descriptions as  accurately as possible. By being  a “mirror” the client would begin to  see the whole  picture and would  figure  out  for themselves the correct solution. You can watch Carl Rogers do this on Youtube.

I suggest it is far more important for the other person to know we really were listening  then it is to try to  tell them what to do about a  problem.  It  also creates  a bond with a  juror who  knows you were really concentrating  on what  they said. When we are  listening for what was  not verbalized through intense concentration and focus we learn so much more. Let’s slow down and really listen. My friend Gerry Spence is fond of the expression “watchful waiting” which means a slow pace of listening and acting  in trial. Not immediately reacting with a knee jerk like reaction, but reflecting and calmly dealing with an issue. It means a slow pace with pauses  in talking to jurors and witnesses. It means a  slow focused concentration  in a trial.

As an example  of  our not  listening, the Honeywell company ran a full page ad  in the Sunday New York times promoting a thermostat with voice control. The layout was a series  of paragraphs about listening. I thought it was an effective ad and it was a wonderful illustration of the lack of listening to each other in today’s world. The paragraphs were:

“No one listens anymore. Somewhere there’s trash filled up to the rim. Because your son doesn’t  listen to you.

Shoes torn to  shreds . Because your dog doesn’t  listen to you.

Dirty dishes fill the sink. Because no one listens to you.

Wouldn’t  it be nice if someone heard you?

Introducing  the first thermostat built to listen. Your voice, your control.”

So, while it  doesn’t seem to be such a big deal and  while we tend to think we already know about listening as well as crediting ourselves as good listeners, too often the truth  is otherwise. Let’s pay attention to this art and learn to do it better. Let’s start listening.

THREE HELPFUL PRINCIPLES OF PSYCHOLOGY

Thought for the day:

This is the true joy in life, the being used for any purpose recognized by yourself as a mighty one; the being thoroughly worn out  before you are thrown on the scrap heap; the being a force of nature instead of a feverish selfish little clod of ailments and grievances complaining that the world will not devote itself to making you happy.” George Bernard Shaw Man and Superman

Here are three principles of psychology which can be helpful to you in trial.

Reciprocity refers to motivation to make a response to an action towards us. If the action directed towards you is positive there is a compulsion to respond with  an equally positive reaction. if the action was negative or hostile, then there is a motivation to respond in the same way. This aspect of human nature is so strong that a person feels obligated to return a favor regardless of whether they like the person who originally did the favor or didn’t even want the favor in the first place. Psychologist Robert Chialdini in his book Influence, discusses examples where simple acts create a feeling of obligation in the receiver to respond. This is why we receive in the mail small gifts as part of an advertising or charitable giving effort by trying to invoke the reciprocity principle.  This principle of reciprocity is powerful and built into our human nature at an unconscious level. In jury selection the principle of reciprocity works for us when we share something about ourselves before we ask a juror to share something about themselves with us.  Human nature motivates the juror to respond in kind by sharing information which they might not have shared honestly.

The psychological principal of  anchoring is well known in widely used by businesses and corporations. When we see the McDonald’s logo we do not have  to have also  see  the name to know what it stands for.  Through continuous repetition of the logo and the name in advertisements,  it has become connected in a way it does not requirem it to be spelled-out.  Advertising jingles or slogans can work in the same way by connecting to an automatic mental response or feeling. We can connect an object or symbol to a thought, name or feeling through the concept of anchoring.  For example, if we had a picture of a wrecked automobile and we held it up to the jury and the said that the photo proves the driver was speeding, it is possible to anchor that idea to the photograph. It can be done by holding the photograph in exactly the same way,  while standing in the same place, and speaking the same words in the same way several times over a period of time.  Once it is anchored,  all that one has to do is hold the photograph in exactly the same way while standing in the same place without saying anything and the jurors will automaticaly think words we previously used or the thought conveyed.

The psychological principal of commitment is also well-known among marketing and advertising experts.  We have built in to our human nature a need to be consistent. Research has shown the great lengths  people will go to to be consistent.  One of the byproducts of  this part of our human nature deals with our public positions.  For example, when we have taken a position publicly we are loath to change our position. In jury selection,  a juror who assures the lawyer or a judge about a commitment, as for example to follow the law is given by the court, that juror is very unlikely to make a contrary argument or take a contrary position in the jury room.  The juror has an unconscious need to stay consistent and be consistent.  While we are ordinarily prohibited from asking jurors to make promises it is possible to explore publicly their positions on important issues to our advantage and by their expressing their position out loud, and making it very difficult for them to change their mind  later. This principal is particularly useful when we are planning to challenge a juror  for cause by getting their  commitment regarding their bias expressed out loud. They are unlikely to change their position under additional questioning  by the judge or opponent when done correctly.