Category Archives: Tactics


Insurance companies advise their insureds  in malpractice situations to apologize to the injured person. That’s because their research indicates that a prompt concession of fault with an apology motivates the injured person to either not assert a claim at all or to be willing to compromise more quickly and easily. They have enough confidence in this idea to lobby legislators to adopt statutes that prohibit the introduction into evidence that apology or admission of fault has been made in such cases. Washington state has such a statute.

As to admissions of  liability and apology, I’ve written about the subject generally in the past.

The website as recently published an article by Dr.Kevin Boully Ph.D entitled “Mea culpa in the courtroom: apology as a trial strategy.” In it he discusses the effect of a defendant admitting wrongdoing in trial with an apology. While the article generally discusses the concept two particular parts I thought were especially significant. The first was his description of what constitutes a full apology, which he calls “the Four Rs.” They are:

  1. Remorse  “the people of Acme Corporation want Mr. and Mrs. Jones to know they are extremely sorry, and you’ll hear them express their remorse in this trial.”
  2. Responsibility  “The Acme Corporation takes full responsibility for what happened.”
  3. Repair “we want Mr. and Mrs. Jones to know we are willing to make this situation right and to do whatever we can to remedy the damage they have experienced in this case.”
  4. Reform  “the Acme Corporation has already begun to implement changes in its policies, the supervision of its employees, and the procedures in order to prevent a similar outcome happening in the future.”

Let’s examine for the moment these essential parts of a correct apology.  The first thing that occurs to me is the question of admissibility of this outline in an actual trial. After all, the law and the instructions to the jury are replete with admonitions not to allow sympathy to play the role in the jurors decision. The entire idea of an apology involves an appeal for forgiveness as well as sympathy. While the statute or rule may allow a defendant that to admit to liability and thereby, in nonpunitive damage states, exclude evidence of liability, it should not allow the defendant to additionally ask for sympathy. This is particularly true where a defendant has consistently denied liability through extensive discovery depositions only to concede it on the eve of trial. While the existence of the admission may be admissible the rest should not be.

More importantly my reaction to the elements of a perfect apology is that it makes a wonderful outline for cross examination of a corporate representative: “Are you sorry?”  “Do you accept full responsibility for what happened?” “Would you do the same thing again?” What have you done to prevent a similar outcome happening in the future?” In a trial involving in multi national pharmaceutical company I had the opportunity of cross-examining their CEO at trial. His poor demeanor and bad responses on cross examination about these kinds of subjects played an important role in the jurors  impression of the defendant pharmaceutical company in rendering their record size verdict.

The second significant part of this article deals with the reaction when the apology is attempted but not done right. It turns out that a failed apology causes more harm than no apology at all. The article refers to the classic example of Exxon’s botched” apology in the oil spill case. The author says:

” Such a failed apology has many cousins, all of which communicate the message that while your client is saying they are sorry for what happened, they don’t believe it was their fault, they are  not interested in repairing the damage, they aren’t truly interested in fixing the problem, and by the way, they aren’t really sorry.”

The author points out that the badly done apology  “fuels rather than reducing juror anger.”

Note author’s summary I quoted in the previous paragraph dovetails nicely with the idea of using “The Four Rs” in cross-examination  plus the quote in argument to the jury.

There is an old proverb that says “Don’t  strike the emperor unless  you kill him.” You can only hope for a badly done apology by a defendant to the jury because it  causes jury resentment and negative reaction while it opens  the door to effective cross examination and argument. If allowed, it should  also offer opportunities on cross  examination about  each aspect of the requirements for a perfect apology.


This is a mixing bowl of unconnected ideas about our work. It’s a summary of some recent E-mail exchanges I’ve had with  other plaintiff’s lawyers about different subjects  under discussion and my general reading.

How do We  Make  Decisions?

I’ve written a lot about this subject but in Tuesday’s edition of the this  week’s New York Times there was an article about how people  make medical decisions regarding their health care. It was based, in part on medical journal articles and interviews  with physicians. As I read it, there  was an obvious connection to jury decision making. The article observed that in an ideal world, people would base medical decisions on an unbiased evaluation of available evidence. But people are often irrational and many, perhaps most, are driven more by emotion than facts.

This is a very signifcant observation for trial lawyers  who have been taught to think people make  decisions in a logical and rational manner. The entire jury system is based upon  that idea, but there is  no question this is not how decisions are made. If  science has so very clearly established that decisions are made largely at a subconscious level and always involve a large component of emotion, why would trial lawyers insist on trying cases as if that weren’t the scientific fact? Why wouldn’t they adjust their presentation of the case to be consistent with how decsions are really made?

Dr Lisa Rosenbaum in the New England Journal of Medicine was quoted as saying  “we don’t process negative events, only positive ones. People interpret information according to their preconceived notions. Their sense of risk is often determined less by facts than by their feelings and emotions.”

Note the first  sentance in the paragraph above  about how our subconscious processes negative statements. Research has demonstrated that  our  subconscious  does  not register negative statements, only positive ones. Therefore, a political ad  which says “Don’t vote for John Smith” registers  in  our subconscious as “VOTE for John  Smith.”  I’ve written about the NLP idea of embedded commands that employ this fact:

Dr Lisa Rosenbaum MD  is quoted as saying: “People interpret information according to their preconceived notions. Their sense of risk is often determined less by facts than by their feelings and emotions.”  This is consistent with the most fundamental of all principles  about  the reality of  a trial as  expressed previously: A trial is a battle of impression and not logic.

I’ve written also about  the research that shows people make their  decisions at a subconscious level based  primarily on their value system and past significant experiences. The article deals with this when they quote Dan Kahan who heads Cultural Cognition Project at Yale University and who says people pick and choose evidence that reinforces their sense of who they are and they groups they belong to.

Once the subsconscious mind makes a decision  it begins to filter all of the information which  follows. It either rationalizies the evidence to fit the viewpoint adopted or simply  ignores it and  this is all  done without a consious awarness it is  going on.  That’s why jurors always have a rational opinion for their  decision, but have no way to accesss  what really happenss  in the subconscious. Talking to jurors  about why they decided can provide helpful information, but they can’t tell you what the real process  was because they don’t know.

How Much Should I Ask the Jury For?

That was the subject of a recent Email exchange and one that comes up in discussion with lawyers. While the lawyer was  in trial this was  the question that was asked.  My response was this:

The fact is  your case value depends primarily upon your mental attitude and the conviction you deeply feel about the fairness of the amount  you intend to argue. That attitude is created by your evaluation of the case as it has been presented to the jury and by your impression of  the jurors in the box. For example, Gerry Spence has argued $30 million dollars for the death of child, but other lawyers likely would have used a lower number because of their very different  internal confidence  level and personal evaluations.

I don’t think anyone other than you, as plaintiff’s attorney, can select the right number for you to argue with sincerity and with genuine passion. If  you don’t believe fully and completely in what you  are suggesting as a verdict in the case your chances of getting  it are reduced dramatically. That, in turn,  requires  you to have a deep emotional knowledge of exactly what the  injuries  have meant  to your  client. You need to climb  inside their skin and  really experience what this  has meant to  them before you can  translate it into a fair  appraisal as a verdict.

I think the argument should be framed not as you would approach economic damage calculations, but rather as setting a value on impairment of human life. That is, not by math but rather as  you would the value of a great painting.This Paul Cezanne painting  “The card players” sold for  $273 million dollars in 2011.

It’s not the value of the paint and canvas, which is easily  replaced, that accounts for the value, but rather that it is something totally unique and irreplaceable.

There is only one human like this client that ever existed in the entire of the world, just as there is one of you that is totally unique. There will never be another human like this one. We look at the value of the loss of something  uniquely precious to make  our evaluation. It can’t be done by taking the minimum wage and multiplying  it over  life expectancy. Like the painting there is a loss  of a valuable possession of good health that is unique to the child and the family.

The first Rule of Being a Great Plaintiff’s Attorney

I’ve written a lot about being an authentic person. I believe the first and most fundamental rule of advocacy greatness is to be real. If  you want  to be a great trial lawyer you first must learn to be a real person. My most recent post about this is: What does being real mean? Well, it starts with stop hiding behind masks we have created to conceal who we think you really are. We see ourselves as a fraud, a small child hiding deep within who we pretend to be and that guarding totally cuts us off from genuine relationships. It is in our connecting  with the jury that we gain trust and credibility. We can’t have a genuine connection unless we are ourselves genuine people.

In a recent post (  by my friend Don Keenan he makes this point and quotes lyrics from a Tim McGraw song “Overrated.” I think it is on target for illustrating this point:

We amputate the heart
Cause we can’t let ’em see the broken part
Water down the wine and jump the shark
We build our castles tall
Just so we can have the higher walls
It don’t matter where you came from
Or where it is you get your name from
We’re going down if we don’t change some.
Let’s get real and be genuine people without false fronts and pretending to be someone else instead of ourselves, warts, scars and all.

The art of war

During my commute from our home in Gig Harbor to our law office in Seattle I’m listening to a book on tape about the observations of Sun Tzu in the 6th century BC generally referred to as The Art of War. I have read this material several times, but I gather new thoughts each time I review it. Here are some ideas from the book that I think apply to trial lawyers.

A couple of the precepts include the following thoughts. How many times have we signaled our entire approach to the defense through our broad deposition questions and overly verbose responses to discovery? We are ethically obligated to make full disclosure of facts and evidence, but trial tactics are privileged.

"signal to the East and strike to the west"

Aren’t we all guilty of yielding to the temptation to chase every defense side track thrown up to distract us from the strongest point in our case. As we do so we create confusion and doubt over issues that aren’t the key ones we should be focusing upon.

"avoid the strong points and attack the weak"

Have you ever been in trial and had a really bad day? I have and this thought seemed very important in that regard: "Ultimate victory is not in winning every battle, but in defeating the enemy." That’s a good thought to keep in mind on a bad day in trial.

The book discusses "qi" from Taoism or Daosim. Tao can roughly be described as the flow of the universe or the force behind the natural order of things. It is that which keeps the universe balanced and in order. The flow of qi as the essential energy of action and existence. This concept and the idea of the yin and the yang is directly applicable to our trials. Things don’t always go the way we planned, intended or hoped. We need to not panic, but to "go with the flow" and keep moving ahead. This ability to not lose heart and not become depressed is essential for great trial lawyers.

When it comes to trial strategy, we need to give some thought to how we approach trials and how we proceed. One of the classic stories of Chinese literature and thought involves what is called "the ruse of the empty city." This is a famous story from a Chinese novel The Romance of Three Kingdoms. As a army of some 150,000 men and their general reach a city defended by general Zhuge Liang, there are only 5,000 defenders inside. Zhuge analyzes the situation and orders half of the soldiers to leave the city to another location. He has the remaining soldiers hide out of sight. He dresses some soldiers in civilian clothes and has them casually sweep streets near the gates to the city where they can be seen going about daily activities and then orders all the gates of the city thrown open.

Zhuge then goes to the area above the main gate where he is clearly visible. He is dressed in his finest clothes and has two page boys with him. One lights incense and the other fans him while he lays on a couch playing his zither in full sight of the opposing army. His own soldiers think he has lost his mind and are mystified by his actions. The other general, however studies the situation carefully and then orders his army to not invade the city, but instead to leave the area quickly saving the city and Zhuge’s army from sure defeat. Afterwards Zhuge explains that he knew the other general was a man of suspicion who knew Zhuge’s cautious nature in battle as one who rarely took risks of any kind. He also knew that Zhuge employed misdirection and ambushes as a tactic of war, so he concluded this was a well laid out trap and ambush. Zhuge won the battle without fighting a war. We can all draw the lesson from this story about the benefit of tactical decisions in trial.