There is so much information available to us about improving our skills as trial lawyers. Hundreds of lectures, videos, books and articles can be accessed. Our challenge is to keep learning and never assume we have reached a point where we can just do what we have always done. The courage to take risks to try new ideas, or at least ideas that are new to us, and the curiosity to continue to search for improvement are needed if we are to become great trial lawyers. Here are a few examples of some ideas worth thinking about
Dr. Speckart is a jury consultant who has published about communication and trial persuasion. Here a couple of thoughts I’ve summarized from his writings.
- In terms of jury psychology, the question put to the witness itself is often is more important than the answer because the question represents evidence for the juror no matter what the judge tells them.
- Demeanor is critical. One should “kill with kindness” if the attorney is abrasive the jury will assume that the sustaining of objections is because serious transgressions have been committed. However if the lawyer is likable, gracious and refined the jury sees the objections and rulings as technicalities that have meaning only to the members of the legal profession.
Frank Luntz is a nationally known expert on communication. He has published widely and written books on the subject. He has been an advisor to national political parties and candidates. Here is my summary of some of his materials
- You only get one chance to make a good impression. Your first sentence, first thought, first idea, is the most important.
- Be a good listener. Don’t look away. Don’t fold your arms. The people centered: I’m listening; I hear you; I get it; I respect you; you are in control; you decide.
- Phrases that work are: first principles, first things first, prevention and protection, getting our house in order, if you remember one thing, a straightforward approach, optimized – efficient and effective.
- Words of passion are: imagine, let me fight for you, believe, celebrate, freedom, life is an adventure – we you join me.w
- Words that demonstrate principles are: accountability, strict standards, moral compass, social responsibility, objective and unbiased, uncompromising integrity, the simple truth, say which you mean and mean what you say.
- Words that work: prevention, protection, accountability, compassion, the right to, patient centered, and balanced approach.
In an article published in Trial Magazine entitled “Motivating Jurors” March 2008, Wenner and Cusmano made some excellent points. Here are two that I have summarized
- People are reluctant to change the status quo. Jurors perceive the status quo as the position of the parties at the time the trial begins. Jurors, particularly those who feel victimized by large jury award awards, will have an unconscious preference for the status quo – a defense verdict which leaves the parties as they perceive them to be when the trial started. There is a defense verdict bias by jurors. To overcome this you need to frame a defense verdict as a change in the status quo that creates a loss for the jurors. Research shows people are more motivated to avoid losses than they are to obtain gains. If jurors perceive a defense verdict is a personal, family, or community loss, they will be inclined to decide for the plaintiff.
- The verdict should be framed in a malpractice case as a protection against the defendant who threatens to eliminate safe medical practice. Frame a verdict for the defendant as lowering the standard of care and eliminating safe healthcare. People are reluctant to give up what they already own. Framing the defense verdict as a loss of safe healthcare unconsciously motivates the jurors more than the prospects of gaining better or safer healthcare.
Everyone knows plaintiff trial attorney Don Kennan who has lectured and published with trial consultant David Ball about Reptile concepts and trying plaintiff cases. Here is one thought I think we all can benefit from knowing and ties into the idea from the Trial Magazine article.
- The conservative is deeply resistant to change. Establish that the rule the defendant broke was long-standing and why it was important. Show who follows rule and who ignores the rule. Instead of a “set the standard” argument, which involves changing the status quo, argue, “enforce existing standards.” The argument should be it is “it is up to you to enforce the standard. It is up to you to decide how far a company can go in hurting someone by violating long-standing safety rules.”