Category Archives: Miscellaneous

THE POWER OF IMPRESSION

On January 14th  the New York Times published an interesting article by Sue  Shellenbarger about appearing to be an intelligent person. I was once again struck by the fact of how powerful our impressions are and even more than our rational analysis. The article  discussed research about how people form an impression about how intelligent another person might be. It turns out things we do to  promote an impression of intelligence  may do that or they may do the opposite of what we intended. In general, things that promote intelligence include showing self-confidence, speaking clearly and smoothly, and responding thoughtfully to what others are saying.

Not surprising, one of the strongest signs of intelligence is looking at others when speaking to them or when listening to them speak.  Yes, that is pretty obvious, but have you watched lawyers in jury selection looking down at their notes while the juror is speaking to them? It is far too common.  The  reaction of the juror is the same reaction you have when you are talking to someone at a social function and they are looking over your shoulder while you are talking.

In 2007 a psychology study at at a university in Los Angeles involved videos of participants acting out efforts to be seen as intelligent. The videos were then watched by others who evaluated how intelligent they thought the subject in the video was.  People who were trying to look intelligent used some common behaviors. These included looking at others while listening or speaking, sitting up straight, putting on a serious face and avoiding gestures, such as touching their hair or face. But the study showed that only the first two were really effective in creating  an impression of high intelligence from the people watching the videos. The primary factors were looking at others while listening or speaking and sitting up straight.

The people watching the videos also gave higher IQ ratings to those who appeared more relaxed and confident. Having a self assured expression rather than a poker face, speaking clearly in a pleasant, expressive voice, with gesturing, nodding and being engaged in the conversation resulted in higher IQ ratings by observers of the videos. Note, that these are all signs of focusing on the other other person and really listening to them.

Other stereotypes about intelligence had an impact on impressions as well. Wearing eyeglasses gives an impression of being more intelligent according to a 2011 study. Using a middle initial makes people expect a more intelligent person. In another study middle initials were linked in many people’s minds to higher social status and education.

What about lawyers who love to use big words and pretentious language to show how intelligent they are? In a 2006 study it was found that people who use long, complicated sentences and big words are seen as less intelligent, not more intelligent. In fact,  as  soon as pretentious language begins to  interfere with the other person’s ability to understand and communicate with you, the listener has an impression you are less intelligent according to research. Lawyers should ve keenly aware of this fact. Too many lawyers like to use legal jargon, medical terms or big words to show off how bright they are or how well they know the subject. However, when a lawyer or a witness does a poor job of making things simple and clear to the jury, the jurors do not blame themselves for not understanding, they blame the speaker. First, they make an effort to struggle to understand what is being said, then become frustrated and give up. At that point they stop trying to understand and become very annoyed with the speaker whether the lawyer or a witness. They never blame themselves for not understanding. They blame you because if it is the  witness they don’t understand they blame you for making it too complicated.

What about the most characteristic thing lawyers do: talk too much? People who talk too much and too loudly are seen as someone who doesn’t know what they are talking about and hope that no one will notice. It is also seen as a sign of insecurity. Lawyers talk too much and too loudly most of the time. You can pick  a lawyer out at a resturant or social setting because they are talking loudly and talking too much. In trial, they talk far too much  and in the process are seen  as not knowing what they are talking about.

Appearing calm and confident demonstrates intelligence. The 2007 study indicated that people who move around faster than others are rapid in their speech or reaction to events are seen as less intelligent. The cool calm lawyer in the courtroom is seen as more intelligent than the lawyer who is frantically reacting to everything. One year when I was teaching at the Spence Trial College, Gerry  Spence had a wonderful expression for how a lawyer should act in the courtroom. He called it “watchful waiting.” When someone  is excitedly talking,  you pause, wait calmly and watch until it is over. Then you calmly respond. That’s watchful waiting.

When we compare these studies to the principles outlined by Dale Carnegie in the 1930s about “how to Win friends and influence people” we see that  his principles are as valid today as they were when he promoted them:

  1. don’t criticize, condemn or complain.
  2. Give honest, sincere appreciation
  3. arouse in the other person and eager want
  4. Become genuinely interested in people
  5. smile
  6. remember that a person’s name is to that person the sweetest and most important sound in any language
  7. be a good listener. Encourage others to talk about themselves
  8. talk in terms of the other person’s interests.
  9. Make the other person feel important but do it sincerely

Apply these principles and you will be a better trial lawyer.

TRIAL ASSISTANT INSTRUCTIONS

When I was a young lawyer in the small town of Mount Vernon, Washington I would sometimes fly to places for legal work as the quickest way to get there. Just outside town there was a narrow dirt air strip right along a standing field of corn on one side and a drainage canal on the other. The local pilot who flew the farms for spraying the fields had his planes there and one was a small two seater he would fly me in. He had been flying for over 30 years and had flown hundreds of hours. Never the less, every time I flew with him, he would get out a clipboard with a checklist and walk around the plane with it. He would methodically go through it out loud even though I was the only one with him. He would even open the window on his side before we started out and shout out “Prop On!” before firing up the engine.  The only thing close to us would be cows crazing a long ways away. I was struck how much importance he put on a checklist for some thing he had done hundreds of times. I decided that in my law practice I would create a checklist for every thing we did. Every time we did something new I made a checklist. I modified them as we used them, but they were given to all the paralegals and we followed them together. Here is an example of an early checklist I created when I was really trying simple cases alone but always with a paralegal with me. It will give you an idea of the concept. Of course, this is really simplistic but it gives the general idea. TRIAL PARALEGAL CHECKLIST  Arrangements need to be made to transfer the client files and exhibits needed for trial to the courtroom. The computer, projector and electronics are also to be set up for trial. The general outline for  responsibilities during trial follow: MORNING 

  1. ARRIVE AT COURT AT SAME TIME LAWYERS ARRIVE
  2. ASK ATTORNEY FOR INSTRUCTIONS WHEN YOU ARRIVE
  3. REVIEW WITNESS LIST FOR WITNESSES TO BE CALLED
  4. MAKE SURE WITNESSES ARE THERE & READY TO TESTIFY

WITNESS MATERIALS

  1. HAVE ALL OF THE WITNESS MATERIAL READY FOR THE ATTORNEY. THIS INCLUDES DEPOSITIONS, EXHIBITS AND MATERIALS.
  2. BE PREPARED TO GIVE THE LAWYER THE MATERIALS DURING THE EXAMINATION
  3. HAVE BOXES & TRIAL MATERIALS ORGANIZED FOR EASY LOCATION  AS NEEDED.

DURING TRIAL

  1. BE OBSERVANT FOR ANYTHING NEEDED BY LAWYERS
  2. BE RESPONSIBLE FOR WITNESSES WAITING TO TESTIFY
  3. NOTE OBSERVATIONS REGARDING JUDGE, JURY, WITNESSES & COURT IN GENERAL. DON’T PASS NOTES TO ATTORNEY

MORNING RECESS

  1. CHECK WITH LAWYER FOR PROJECTS
  2. SHARE ANY OBSERVATIONS OR MESSAGES
  3. REPORT ON WITNESS STATUS

NOON RECESS

  1. BE PREPARED TO GET FOOD FOR LAWYERS OR WITNESSES IF ASKED.
  2. REVIEW OBSERVATIONS WITH LAWYER & SHADOW JUROR COMMENTS.
  3. ADVISE REGARDING STATUS OF NEXT WITNESS
  4. REVIEW ANY MESSAGES FROM OFFICE OR OTHER NOTES
  5. ASK LAWYER IF ANYTHING IS NEEDED
  6. CHECK ON WITNESSES FOR AFTERNOON

AFTERNOON RECESS

  1. ASK IF LAWYERS NEED ANYTHING
  2. SHARE OBSERVATIONS OR MESSAGES
  3. REPORT ON WITNESS STATUS – ENSURE WITNESSES READY
  4. ADVISE SCHEDULING PARALEGAL OF TRIAL STATUS

END OF DAY

  1.  REVIEW WITNESS STATUS AND SCHEDULE FOR NEXT DAY
  2. FIND OUT WHAT PROJECTS LAWYER HAS FOR YOU
  3. ADVISE WITNESS PARALEGAL OF STATUS.
  4. HAVE WITNESS MATERIAL AVAILABLE FOR LAWER
  5. GIVE REPORT FROM SHADOW JURORS AND OBSERVATIONS
  6. GET INSTRUCTIONS FOR FOLLOWING DAY.

THE SPENCE TRIAL COLLEGE

In 1994 Gerry Spence asked me to participate in teaching at a new trial college he was creating for lawyers to teach them the right way to  be plaintiff trial lawyers. It was to be a non profit college and we would volunteer our  time  and transportation. I had known him for some time and quickly agreed even thought I had no real idea of what he had in mind.

The other people, in addition to Gerry and I,  invited for this first college were: Judge Joseph Cardine, Judy Clark, Bobby Lee Cook, Phil Corboy, Morris Dees, Alan Dershowitz, Vince Fuller,  Nancy Hollander, Garvin Isaacs, Joe Jamail, Rikki Klieman, Al Krieger, William Kuntsler, Judge Miles Lord, Terry McCarthy, Charles Ogletree, Steve  Rench,  Judge Robert Rose, Jim Shellow, Kim Taylor-Thompson, John Teirney, Bill Trine and Howard Weitzman.

His ad for the college said: “These  great lawyers will be at Gerry Spence’s ranch in Wyoming in August to help you become a winning trial lawyer for  people.”

He said in  this advertisement: ” We believe every trial lawyer has the potential to become an effective and winning advocate for justice. We  are committed to help people’s lawyers become winning lawyers who will ethically and  nobly champion the cause of the injured, the forgotten and the damned.”

From that original group Bill Trine has continued to  participate to date. Since that  invitation 19 years ago I’ve been privileged to have been invited back each year to teach, although I had to miss  two years, as well  and it has benefited me far more than it ever benefited the lawyers who attended.

Originally there was only a July college session lasting thirty days, but in recent years there  are two sessions a year in July and September,  plus many other shorter sessions. I wasn’t able to go in July this  year as planned due to a  trial  so, instead,  I leave tomorrow for  the September session. I’ll fly from Seattle to Salt Lake and take a commuter to Jackson Hole. From there I’ll drive my rental car two and half to three hours to Dubois, WY, population 971. After something to eat there I’ll continue driving another ten miles until I turn on an unpaved  gravel road another ten miles to the Thunderhead Ranch where the main structure used for  teaching and living quarters  for the attendees is the huge two story barn moved from miles away to this location by Gerry’s son Kent. Other outbuildings  are also used as classrooms.

We’ll  start early and work late including sessions after  dinner. The group is broken into units with graduates of the College acting as teaching  leaders.

There is  no TV, no WiFi and  cell phone  use  requires driving some distance  away up a mountain so I’ll not be  posting something this  week  while at  the ranch. I’ll give you a report when I get back.