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I have written in this blog on many occasions about  the scientific research that the motive and reasons behind the conduct which caused the injury to your client is far more important than the facts about the negligent conduct. Proving the negligence is not the same thing as going behind the conduct and proving why the conduct took place. The doctor in a hurry is not the same case as the doctor failed to meet the standard of care in doing surgery. The question of why something happened is far more significant than the proof of the negligent actions itself.

Proof of wrong motives and evil intent are what really drive the verdict in a plaintiffs injury case. This is particularly true in malpractice cases. This subject has been discussed in one of my favorite sources of information The Jury Expert. The last publication featured an article “if it feels bad to me, it’s wrong for you: the role of emotions in evaluating harmful acts” Their research and conclusions concur with the concept I advocate. In general, the article points out, there is a remarkable body of evidence which indicates that our minds are divided between reason and emotion, which together shape the way we think and behave. On a rational basis, all else being equal, we tend to favor whatever course of action leads to the greatest amount of benefit in the long run. When emotions are guiding our thinking, we are more likely to utilize a value or moral standard in our thinking and decisions. The two must both be in balance together for decision making.

Studies indicate that when we are judging other people’s conduct we tend to imagine what it would feel like to perform the behavior ourselves. Our reviewing  the conduct as if we were involved produces a reaction.  In some cases, this creates a feeling of aversion which dictates a judgment that the behavior was wrong: “if it feels bad to me to do it, it’s wrong for you to do it.” This then becomes the measuring stick in our minds for evaluating the conduct  of other  people.

This raises questions regarding how attorneys attempt to influence jurors decisions. The normal inclination is to focus attention on the victims injuries and damages. Lawyers have traditionally focused attention upon the innocent victim  or the injured plaintiff in an effort to create empathy. However research indicates that this is not the strongest motivator. The dominant factor in motivating the average juror is focus upon the defendants actions themselves and whether the jurors would feel justified in performing those actions themselves.

Furthermore, focusing upon injury for sympathy is more likely to have a negative affect upon the jurors. They are already programed to believe the message of tort reform and are prepared to guard against “fast talking lawyers” peddling sympathy. Research would indicate that: “in the case presentation process, sympathy and victim –focus  backfires.” On the other hand, focusing upon the defendant’s actions and especially wrong conduct or motives explaining them, creates a story in the jurors minds involving the question of whether they would have  done the same thing. The article says: “Adding in the current study results, there are more reasons to say “no” to the old-style of (plaintiff attorney) presentation (of focusing upon injuries and sympathy).”

There is an understandable reluctance to put the defendant at the center of the story. However, since the key factor is the jurors contemplation of whether they would perform the same behavior themselves, plaintiffs should set the stage for jurors to try on that decision for themselves. If jurors believe they would never have acted as the defendant did, and if that action would feel wrong to them, they’ll be primed to condemn it and to believe that it had compensable consequences. This also stimulates a duty to punish wrongs which most people, conservatives in particular, unconsciously feel.

Furthermore,  there an  added  benefit from focusing upon the defendant that studies show results from  this  approach. When we are aware there has been an injury or accident, people tend to review stories  of conduct looking for reasons why it should not  have happened or that it was  not an accident they would have allowed  happen. We should always start our case with the defendant’s conduct and not the plaintiff’s. If the story starts  with the plaintiff, the jurors immediately  began the questioning process about plaintiff’s actions. When it starts with  the defendant’s  conduct the same process happens which is beneficial to plaintiff.

As the article points out this approach has a “what would you do?” aspect to it which we cannot embrace directly without violating the “Golden rule” prohibition. However,  centering the story on the decision-making and correctness on the part of the defendant serves as an invitation for the jurors to assume that rule mentally. As the article points out: “in addition, in voir dire, attorneys have a legitimate right to ask about relevant attitudes and experiences which inquiries get the jurors started thinking about the actions from their own perspective.”

We need to start our case in voir dire talking about the motives and  wrong doing of the defendant’s conduct. All of our  cases  should have such a theme: “the case of the sleepy truck driver, the case of  doctor in a hurry or  the case of the cell phone collision” but one that focuses on motive and wrongful conduct. The article says: “the bottom line is that as the research on moral judgment and a number of related fields continues to blossom, practical litigators need to keep pace. That might mean that the death of the idea that there is a time honored, tried-and-true way to try cases” by focusing on the plaintiff’s injuries and damages as a motivator for a jury verdictl


In 1981 in the American Journal of Nursing published an article by Voltaire Cousteau he titled: “How to Swim with the sharks: A primer.” The author died in Paris in 1812. Apparently he was an ancestor of the modern Cousteau and this article was written for the benefit of sponge divers. It was previously translated from French and reprinted in 1973 in a medical journal.

While  it was written for a different audience I kept it because it seemed to me to be a wonderful set of instructions for plaintiff lawyers dealing with the typical defense lawyer.

The author begins by saying: “swimming with sharks is like any other skill: it cannot be learned from books alone; but novice must practice in order to develop the skill. The following rules simply set forth the fundamental principles which, if followed, will make it possible to survive while becoming expert through practice”  So, here is a summary of the rules.

  1. Rule one. Assume unidentified fish are sharks. Not all sharks look like sharks, and some fish which are not sharks sometimes act like sharks.
  2. Rule two. Do not bleed. It is a cardinal principle that if you are injured  either by accident or by intent you must not bleed. Experience shows that bleeding prompts an even more aggressive attack. Diligent practice, will permit the experienced minor to sustain a serious laceration without bleeding  and without even exhibiting any loss of composure. The shark will be confused as to whether or not his attack has injured you, and confusion is to the swimmers advantage.
  3. Rule three. Counter any aggression promptly. Sharks rarely attack a swimmer without warning. Usually there is some tentative exploratory action.The appropriate counter move is a sharp blow to the nose. Almost invariably this will prevent a full scale attack, for it makes it clear that you understand the sharks intentions and are prepared to use whatever force is necessary to repel his aggressive actions. Some swimmers mistakenly believe that an ingratiating  attitude will dispel an attack under these circumstances. This is not correct; such a response provokes a shark attack. Those who hold this erroneous view can usually be identified by their missing limb.
  4. Rule four. Get out if someone else is bleeding. If another swimmer has been injured and is bleeding get out of the water promptly. The presence of blood and thrashing of water will elicit aggressive behavior even in the most docile of sharks. They may attack uninvolved swimmers. No useful purpose is served in attempting to rescue the injured swimmer. He either will or will not survive the attack and your intervention cannot protect him once blood has been shed.
  5. Rule five. Use anticipatory retaliation. A constant danger to the skilled swimmer is that the sharks will forget that he is skilled and may attack again. Some sharks have notoriously poor memories in this regard. This memory loss can be prevented by a program of anticipatory retaliation. The procedure may need to be repeated frequently with forgetful sharks and may be needed to be done only once for other sharks. The procedure is essentially the same as described for – a sharp blow to the nose. Here, however, the blow was unexpected and serves to remind the shark that you are both alert and unafraid.
  6. Rule six. Disorganized and organized attacks. Usually sharks are sufficiently self-centered that they do not act in concert against a swimmer. However, upon occasion the sharks make a coordinated attack upon a swimmer. The proper strategy is diversion. Sharks can be diverted from their organized attack in one of two ways. First sharks as a group are usually prone to internal dissension. The experience swimmer can divert an organized attack by introducing something, often something minor or trivial, which sets the sharks to fighting among themselves. A second mechanism of diversion is to introduce something which so enrages the members of the group that they begin to lash out in all directions, even attacking inanimate objects in their fury. It is scarcely necessary to state that it is unethical for a swimmer under attack by a group of sharks to  divert them to another swimmer. It is, however, common to see this done by novice swimmers and by sharks when they fall under concerted attack.

Now, I ask you, if you reflect on trials against many defense lawyers don’t each of these rules apply to situations you and I have  encountered. The rules are valid for us. I particularly like the rule that says trying to defend against an attack by ingratiating  behavior results in the loss of a limb. This should  be required reading for all plaintiff’s lawyers in my view.




I’d  like you to consider the relationship between the theater and being a trial lawyer.  As  a trial lawyer you need to be a  script writer. Not in the sense of making  up facts, but in the sense of  deciding how to tell the story. The framing you select and the characters you decide to introduce from the actual facts of your case. You need to be the director. You have to decide h0w to present your client’s story and who the characters are  you will introduce plus the sequence of doing so. You need to be the main actor in your play. Not by pretending to be someone you are not or putting up a front, but in exactly the  opposite way. By being totally open and genuine at all times. To accept  the enormous power of telling the truth.  Just as an actor  must adopt the role of the character he or she is playing, you must full  step into the shoes of not only your client  but gain an understanding of every witness, the lawyers, the judge and the jury. Put yourself in their shoes. How do they view what you are presenting and how they present it.

Here are some thoughts about acting and  the theater  you may be able to apply to being a trial lawyer.

Oscar nominee, after William H Macy as said: “there is a popular notion that great actors have to be brave and willing to suffer. While that is true, strangely I find the harder thing is to be brave enough to be simple. To stop when you’ve done it. That’s more frightening than anything.”

Being Genuine:  In Fred Rochlin’s book Old Man in a Baseball Cap he writes: “the greatest gift we can give another is to share ourselves. To do that we must take the mask off and then take off the mask under that one. We reveal ourselves in stories we tell. Stories about ourselves and our experiences. Some are true and some we only think are true.”

Adversity teaches In the play The Teahouse of the August Moon Sakini, an interpreter for the American army, Begins to play by walking down to the footlights in introducing himself to the audience. He describes to them how Okinawa has been conquered many, many times. He says this is helped educate his people. Then he says: “not easy to learn. Sometimes painful. But pain makes man think. Thought makes man wise. Wisdom makes life in durable.”

Being heard  Rex Harrison’s book A Damned Serious Business talks about touring with a theater production. He says that it is an invaluable training ground because you are forced to hold the attention of a restless audience and keep them quiet. You learn to judge the back wall of most theaters and practice hitting the wall with your voice. You need to become experienced at “bouncing off the back wall.” He also discusses self-consciousness. The average human being, if stared at by a lot of other human beings, does get self-conscious. On the stage we  were constantly being stared at by people it auditoriums. The great trick in losing it is in thinking right. If you’re thinking that part right, you should be too occupied in your head to think about your own body.”

Here are some quotes about acting:

  • Talk low, talk slow, and don’t talk too much. – John Wayne
  • acting is the most minor of gifts and not a very high-class way to make a living. After all, Shirley Temple could do it at the age of four. – Katharine Hepburn
  • you can pick out actors by glazed look that comes into their eyes when the conversation wanders away from themselves. – Michael Wilding
  • acting is standing up naked and turning around very slowly. – Rosalind Russell
  • a lot of what acting is, is paying attention. – Nancy Reagan
  • actor is a guy who, if you ain’t talking about him, ain’t listening. – Marlon Brando
  • Tennessee Ernie Ford was a well-known singer who said: “don’t get bigger than the person buying the ticket.”
  • In the movie The Empire Strikes Back Yoda says to Luke Skywalker, “do or do not. There is no try.”
  • acting is happy agony. – Jean – Paul Sartre
  • I want to give the audience a hint of a scene. No more than that. Give them too much and they will contribute anything themselves. Give them just a suggestion  and you get them working with you. That’s what gives the theater meaning; when it becomes a social act. – Orson Welles
  • In Italy or three years, under the Borgias, they had warfare, terror, murder, bloodshed – they produced Michelangelo, Leonardo de Vinci and the Renaissance. In Switzerland they had brotherly love, 500 years of democracy and peace and what did that produce? The cuckoo clock. – Orson Welles
  • a hero is an ordinary individual who finds the strength to persevere and endure in spite of overwhelming obstacles. – Christopher Reeve
  • a true priest is aware of the presence of the altar during every moment that he is conducting a service. It is exactly the same way that a true artist should react to the stage all the time he is in the theater. An actor who is incapable of this feeling will never be a true artist. Konstantin Stanislavisky
  • we have all, at one time or another, been performers, and many of us still are – politicians, playboys, Cardinals and Kings. – Laurence Olivier
  • all the world’s a stage and all the men and women merely players. They have their exits and their entrances; and one man in his time plays many parts, is ask the seven ages. – Shakespeare
  • You’re only as good as your last picture. – Marie Dressler

The ability to paint a picture with words  The sports writer Bob Dolgan of the Cleveland Plain Dealer once wrote that when Indiana broadcaster Jack Graney was doing play-by-play, “you could smell the resin in the dugouts, feel the clean smack of the ball against the bat and and see the hawkers in the stands.”

Fear  Cus D’ Amato was a boxing trainer. He once said” fear is your best friend or your worst enemy. It’s like fire. If you can control it, it can cook for you; it can heat your house. If you can’t control, it will burn everything around you and destroy you.”

Being Nervous  The actor Donald Sutherland has said: “I have made 101 films and I still throw up at the beginning of every one.”

Attitude & self confidence  Howard Hawkes was a Hollywood movie director. He once said: “I have seen actors go along for years and are no better than satisfactory. Suddenly they become brilliant because they found confidence confidence brings poise, style and polish to an actor.”

First impressions  In a biography about the actor W. C. Fields, it was pointed out that he was a star when  to be successful in vaudeville you only had an act that was 12 to 18 minutes long. You have to follow other acts, grab attention of the audience, sell your show all in a very short time.

The story must make sense  In the Greek theater there was a phrase “God from a machine” to describe a solution by a director of a play where he could not think of a logical explanation. Instead they would lower a statue of one of the Greek who would ordain the outcome. This was considered very poor talent for a writer or director. Our trials have to have logical explanations to be acceptable to jurors.

Hard work  In the 1933 movie A League of Their Own Tom Hanks playing the role of the baseball manager says to Gleena Davis, playing the role of the star catcher on the team, when she tells him she plans to quit because it is just too hard: “it’s supposed to be hard. If it wasn’t hard everyone would be doing it. It’s the hard part that makes it great.”