“In the spring of 1971, I met a girl” LESSONS OF GREAT STORY TELLING

Last night, at the Democratic national convention, former president Bill Clinton gave a talk about his wife Hillary. He did not begin by saying: “My wife would make a great president” or “Hillary Clinton has the experience to solve America’s problems.” No, he started out like a master storyteller by saying: “In the spring of 1971, I met a girl.” That approach is the equivalent to saying “let me tell you a story” or “once upon a time.” It immediately captures interest, resonates with our subconscious by connecting to storytelling and promotes curiosity with the desire to continue listening.

Now, think about this in regard to  opening statements to juries. There are lawyers who still begin their opening statement with “This is my opportunity to tell you the facts about what this case is all about, but what I’m about to say is not evidence” After wasting a golden opportunity of full  attention and telling them what they are about to say  isn’t important they began a chronology and start with the subject of their own client: “On March 19 2015, my client was driving a four-door, brown 2013 Nissan sedan southbound on Highway 315 at 10:15 AM when he was rear-ended by a semi truck owned by Smith moving and storage of Seattle Washington.” Not only are most of the details totally irrelevant and boring, starting the story with your client alerts defensive  attribution in the jury. They immediately began to reflect on how they would have avoided your client’s conduct instead  of focusing on the fault of the defendant.

Suppose instead, the lawyer began by saying: “Richard Williams had been driving a Smith moving and storage truck for over 15 hours when he crashed into the rear end of a car in front of him.” Or, “this case is the story about long-haul truck drivers who continue to drive in a state of exhaustion and while medicated to try to stay awake.” Or, “William Perkins life was forever changed on March 19 of last year when his automobile was run down from the rear by a semi truck. Now let me tell you why this happened.” Capturing interest and connecting with the fact that human beings are hardwired to listen to stories is essential as the first step of the opening statement. Starting  the  conduct of the defendant focuses the  jury on the wrong doing of defendant.

If you watch Bill Clinton’s talk will also see a demonstration of the importance of eye contact, congruent gesturing, good timing and nonverbal facial communication.

Too many lawyers either have their face buried in their notes or otherwise fail to maintain eye contact with the jury, particularly during opening statement. If our PowerPoint or Keynote slides are the message, we are not able to connect with the jury. Our connection with other people is almost exclusively through eye contact. Slides which enhance the verbal message while we maintain eye contact with the jury are helpful. Slides which become the message eliminate us as a message bearer. Our job is to make eye  contact with small groups on the jury and deliver some facts to them, moving on to the next small group with other facts throughout the total jury. Continuous eye contact is required.

Lawyers also tend to not know what to do with their hands. Male lawyers stick them in their pockets. All lawyers tend to hide them behind their back, or cross their arms and some seem to be covering their crotch with their hands. Instead of assuming an open posture with hands in An open position they nonverbally communicate they have something they are hiding. Sometimes there is an insipid small hand gesture as if one were having a small seizure of the hands. Some lawyers have gestures that they have decided to use which simply fail to fit what is being said. Gestures must be congruent with the  words or they are distracting. Bill Clinton’s hand gestures were totally congruent with the words and emotion, he was projecting. Meaningful hand gestures are part of a good opening statement.

It’s been said that the key to life is good timing. Certainly the key to a great opening statement is good timing. When we are nervous, our voice changes and we tend to talk rapidly. It is the pregnant pause that makes the point dramatic. It is the pace that makes the talk understandable. It is the change of level of voice with good timing that makes the talk great. Bill Clinton paused for dramatic input, spoke more slowly when he wanted emphasis and otherwise showed good timing. Practicing our opening statement for good timing is an excellent way to learn the technique.

We know that a great amount of communication is done nonverbally. Our subconscious mind registers nonverbal communication without our being aware of it. Great actors have the skill of facial expressions, tilting the head and general emphasis skill through their nonverbal facial communications. When we are nervous we often have a semi-deadpan expression. We aren’t thinking about what we are saying so much as we are trying to be sure to say what we want to say. When we are really focused on what we are talking about there is a natural tendency for us to look like we are sincere about what were saying. Congruent nonverbal facial and upper body communication is an important part about delivering our message. Bill Clinton demonstrated this during his talk at the convention in a masterful way.

If I were to have a criticism about the delivery of his talk it would be that it was too long from my standpoint. My take was that this talk was delivered after 9 PM, after numerous previous speakers, and at a time when people were tired. I think that while the content was really excellent it should have been geared to the likely attention span of the audience. I say that even though the audience was extremely responsive throughout the entire talk. However,  this was the audience that was on his side for the most part and for you and I giving an opening statement to the jury I think it wise to be considerate of their interest span as well as their state of  tiredness. Short and  simple is better than long and boring.

There are volumes available about story telling and opening statement is a story, but I suggest a book: TED Talks – the official TED guide to public speaking by Chris Anderson. This is not a book of rules but a helpful discussion of observations about the way speakers have presented their talks over the years with unique insight as to what works and doesn’t work. The information is applicable to how trial lawyers present their cases in court.

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LESSONS FROM ONE OF AMERICA’S GREATEST TRIAL LAWYERS – EARL ROGERS

Earl Rogers was a famous attorney who died in 1922. He defended 77 murder cases and lost only three.  He was one of the greatest trial lawyers in American history. The long running  TV series, Perry Mason, was based upon Earl Rogers life. His daughter Della Rogers St. John’s wrote a descriptive book of his trial skills in Final Verdict which is not only enjoyable reading, but educational as well.

We think about Clarence Darrow as a great trial lawyer, but when Darrow  was charged with jury bribery in Los Angeles, it was  Rogers he selected to be his defense attorney. Darrow had been hired by the labor union to defend the McNamara brothers charged in the 1910 dynamiting of the Los Angeles time buildings in which 21 employees were killed. His trial in 1912 was a national sensation.

As you might expect with two giants  of the trial bar and one the client, the trial in Los Angeles was probably one of the more famous lawyer – client disagreements on trial tactics recorded in legal history. Rogers and  Darrow argued daily about tactics with Rogers usually prevailing.

His skills in argument  were also extraordinary. In Darrow’s case, his argument was that the prosecution was a conspiracy against Darrow. In final argument he said to the jury:

“Will you tell me how any sane, sensible man who knows anything about the law business – and this defendant has been added for 35 years – could make himself go to a detective and say to him: “just buy all the jurors you want. I put my whole life, my whole reputation, I put everything I had been to your hands. I trust you absolutely. I never knew you until two or three months ago, and I don’t know very much about you now; but there you are, go to it.!”

Note how he moved to the first person and painted a word picture that created an  image in the minds of the jury to ridicule the idea.

Rogers amazing skill in the courtroom is also described a book by Cohen and Chrisholm entitled Take the Witness. While Melvin Belli was seen as the king of demonstrative evidence, long  before Rogers was already using innovative ideas during trial. At a time when there were no easels with butcher paper or digital display, Rogers was using techniques no one else was using.

In his argument during the  defense of Darrow, Rogers had a huge chart hung from the judge’s bench to the opposite wall. On it were lettered the names of witnesses who testified for the prosecution, classified under headings according to the nature of their testimony. Rogers would dramatically emphasize his argument by approaching the chart with a long pointer to single out the witness he was talking about.

The jury instructions took 30 minutes and the jurors were back in less than half an hour with a not guilty verdict after a three month trial. However Darrow was re-indicted on a claim of bribery of another juror. Rogers began the defense but withdrew mid-trial from illness and Darrow continued pro se. The result was a hung jury with several jurors holding out for a conviction. The prosecution agreed not to re-and try him on a commitment that Darrow would not practice law in California again. Roger’s  daughter claims Darrow failed to pay the agreed fee afterwards.

Rogers frequently used reenactment during trials to his advantage. While defending  a man accused of shooting another during a card game, Rogers had the card table set up and the situation reenacted while he cross-examined. In another trial, when the witness claimed he had been able to see what had occurred in the hallway through the transom of the door, he had the door and transom removed and brought to the court room to demonstrate the impossibility of what had been claimed. In exhibits, reenactment and trial demonstration Rogers was brilliant and before his time.

His cross examination skills were one of the more outstanding qualities he possessed as a trial lawyer. In one case the nephews of the deceased sued the estate claiming that when he had signed his will cutting them off without a penny he was not in full possession of his senses. The chief witness for the estate and validity of the will was the attorney who had drawn it and witnessed it. He insisted that the deceased had been in full possession of his senses and knew what he was doing when he went to the man’s  house for the signing of the will. Rogers spent a great deal of time with this witness on cross examination recalling the many years of close friendship between the deceased,  Patrick Talent, and the lawyer. After a lengthy time of  questioning along these lines he asked the witness:

Q. Was there any change in your friendship before he died?   A. None

Q. At any time in the past had there been any misunderstanding between you?    A. Never, we were always warm friends.

Q. And after you witnessed the will of your old friend, what did you do then?  A. I left.

Q. Well, did you say goodbye to your old friend, before you took your departure?  A. No, I left as soon as I had witnessed his signature.

Q. What!

Now the court and jury were wide-awake after the dramatic cry of Rogers who had approached the witness  and shoved a quivering forefinger into the witnesses face.

Q. You mean to tell this court and jury,(demanded Rogers in a harsh, incredulous tone) that you, the dear friend, the lifelong friend of Patrick Talent, knowing he was dying, did not bid him a last goodbye?   A. I don’t think I did, said the dismayed man

Q. You don’t think! If you bade farewell to your lifelong friend on his deathbed, you would not be uncertain about it. You would know! Did you bid him goodbye? A. No, whispered the witness.

Q. If you did not say goodbye to your dying friend, there could only be one reason – and that was that you knew he was mentally incapacitated, that he did not know you! Is that not so? A. ( after a long pause) the witness raised both hands midway to the shoulders and shrugged.  – Rogers had no more questions.

During argument Rogers assumed a first person role with the deceased saying:

“Suppose Patrick Talent were to enter this courtroom now. Suppose he came within this rail. He would ask what this was all about and he would be told that it was about his will. He would be astonished. He would say:  “Why, I never made a will! (Rogers simulating  the voice and mannerisms of the deceased,, turned towards the lawyer who had been cross  examined by  Rogers,  – Dixon Phillips) “Dixon Phillips, you know I never made a will. You know you made that will. I never did! And, gentlemen of the jury, Dixon Phillips would then jump out of that window!”

The jury took no time to find in favor of Roger’s clients on the issue.

I think we too often believe we have thought up a new idea or trial concept that no one else has used before. However, the truth is that in almost every case, the seed of the idea or concept had already been thought about or used by the trial lawyers of past history. I think there is much to learn about trial work from those who have gone before us and by modifying it to the world and jurors of today.

Here’s to two great and unique trial lawyers of yesteryear Clarence Darrow and Earl Rogers.

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TWO BOOKS ABOUT COMMUNICATIONS WITH IDEAS YOU SHOULD CONSIDER

In 1985 David Ogilvy wrote a book Ogilvy on Advertising which became a classic encyclopedia about successful advertising. Ogilvy was the founder of the famous New York advertising  agency Ogilvy & Mather and what he has to say about successful advertising rules should be read by every trial lawyer. Here are some of the points he makes. As you read them think about your exhibits and PowerPoints, but also your spoken presentations.

  • On average five times as many people read the headlines as read the body copy. It follows that unless your headline sells your product, you have wasted 90% of your money. Headlines get five times the readership of the body type. If your headline doesn’t sell, you have wasted your money because body copy is seldom read by more than 10% of the readers
  • It pays to write short sentences and short paragraphs and to avoid difficult words. I once wrote that Dove makes soap “obsolete” only to discover that the majority housewives didn’t know what it meant.
  • Newspaper editors used to say: “short paragraphs, the shorter the better. Short paragraphs, short sentences in simple words. Bear that in mind and you get $75 a week.”
  • Consumers need a rational excuse to justify their emotional decisions. So always include one. Above all, don’t attempt emotion unless you can deliver it.
  • Open with fire. You only have 30 seconds. If you grab attention in the first frame with a visual surprise, you stand a better chance of holding the viewer.
  • If the issue is complicated, and it almost always is, simplify as much as you reasonably can.
  • Present your case in terms of the readers self-interest
  • Disarm with candor. Give both sides of the issue
  • A caption should appear under all your photographs. Twice as many people read them as body copy.
  • Visuals are the message. Words are no longer the primary message giver. Now pictures tell the story.

Several  years  ago jury consultant Sonya Hamin wrote a book What Makes  Juries Listen Today and her observations on communications are as relevant today as when she wrote it. Here are some  of her ideas:

  • Watch the anchor persons seamless delivery. He or she doesn’t make mistakes or cast about for a word. They don’t look at notes; they look at you directly, keenly, sincerely and they talk.
  • Here are the basic components of the structure of any address:

(1)        a strong opening
(2)        identifying the audience needs and interests as to why they should listen
(2)        organization of material
(3)        understandable language
(4)        analogies and examples
(5)        rhythm, pace and drama
(6)        visual support
(7)        connection with the audience
(8)        a memorable close

Here’s what she says about physical movement during trial: “Do you remember when you were in grade school and the door opened? Everybody’s head snapped towards the door. Same thing is true for grown-ups trapped by a speech. Allow either you or your witness to walk, point, right worse or moved charts, change an image, or explain a point while standing at a screen will enhance what is being said in the courtroom.”

Her observations about physical positioning is also part of  good  communication. She  recommends:

  1. Don’t Hold onto your wrist. It looks like Peter Sellers in the movie Dr. Strangelove where he had to hold onto his wrist to prevent his arm from flying up into a Nazi salute. When we see people with their hands tightly clenched, or hidden behind their backs there is a feeling of hiding something. Use an open position with hands free.
  2. People are less likely to pay attention to you when you’re seated then when you’re standing.
  3. The podium is intimidating and creates a visual barrier between you and the jury. Sitting with a table in front of you does the same thing.

These are the few ideas from two books that are worth considering.

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