In 1960 an American plastic surgeon wrote a book he titled Psycho Cybernetics. It was a long time bestseller and influenced over the following years many other motivational writers and others to follow his recommendations and teachings. The premise of the book was that in spite of his surgical improvements he found that even after successful cosmetic surgery patients did not always have a  new and improved picture of themselves. In spite of the correction of the cosmetic defect there  was no change of attitude. His conclusion was that our self image determines how we see ourselves no matter the actual physical appearance or facts. Therefore, he argued, it is not enough to change externals. One has to modify one’s attitude and mentally change our self image.

His book explained techniques for this change and was based upon research which demonstrated that the mind cannot tell the difference between vivid imagined events and actual experience through action. Vivid imagination and visualization has the same impact on the mind is if the activity had actually occurred. He concluded that by visualizing success you can change self-image and achieve goals.

This concept was then  adopted by athletes and trainers for competition in sports. Visualization techniques became part of their training for competition. The process has been called “guided imagery, mental rehearsal” and a variety of other things. The process generally speaking involves creating the mental image of what you want to happen and rehearsing it mentally. In Maltz’s book he describes a research project involving three teams of basketball players. One team actually practices shooting a specific number of  foul shots. The second team does not practice. The third team does not practice but mentally rehearses the same number of foul shots by visualizing clearly standing at the file line and repeatedly shooting the ball successfully making every shot. When all three teams are then tested the team that mentally visualized the process scored as well as the team that actually practiced and the team  that did nothing the worst. Maltz’s conclusion was that the “theater of the mind” allowed one to improve performance by mentally seeing themselves doing the activity perfectly because the subconscious is unable to tell the difference between vividly imaged events and physically performing the events.

This has led to athletes and trainers applying the same principle by visualizing  repetitively and perfectly doing the performance. The more vivid the image, the more successful the process. The Soviets made it popular in the 1970s in training their  athletes. Tiger Woods employed the technique and  Jack Nicholas has said: “I never hit a shot, not even in practice, without having a very sharp in focus picture in my head.”

Being able to visualize in my mind has always been easy for me. Early in life I decided that what I didn’t have in skill I could make up for by hard work and practice. In that process I discovered the benefit of mental rehearsal regarding my activities as a trial lawyer. There were few important  legal procedures that I didn’t thoroughly rehearse in my mind before they ever happened. That includes the practice of how to handle something that suddenly took a wrong turn. For major motions, legal arguments depositions and every other aspect of trial practice I always rehearsed repeatedly in my mind doing it perfectly. But, I also practiced how calmly and  well I would react to whatever went wrong. I practiced my jury selection, opening statements direct and cross examinations and final arguments exhaustively in my mind with vivid visualization on a repetitive basis as part of my standard preparation.

My experience was when I had mentally rehearsed how I would handle every conceivable disaster including an angry judge, and off-the-wall response from the juror or witness and a variety of other potential disasters, I was much better prepared for them when they took place. I also found that vivid visualization rehearsal made me more confident and calm when I actually performed the action.

This is not just a unique experience for me. It is consistent with the experience of athletes who have employed this technique as well as actors and everyone else who practices doing it correctly. The more detail, color and sounds you can create in  your mind, the better the visualization and impact. See Neuro Linguistic Programing techniques for this as well.

Practice improves  the ability to visualize. I recommend you try it yourself, because  as someone has said: “seeing is believing.”



Posted in Trial Tactics | 1 Comment


For those who are not basketball fans, the name Stephen Curry may not be someone you’ve heard about. Curry is a member of the Golden State Warriors professional basketball team. He is in another record setting season for points scored in a game. At age 28 he is averaging 30.5 points a game and 6.4 assists  while shooting an average of 51% from the field and 46% from the three point range.

To qualify for a three point shot in basketball, the ball must have been launched a minimum of 23.9 feet from the basket. In professional basketball an average of making baskets 50% or more of the time is considered very good and for three point shots 45% of the time. Curry has made 330 of the three point shots this season obliterating the previous record of 286 that was his record from last season. This is extraordinary basketball in the professional basketball league.Curry is a 6’3″ point guard and among the giants of the game is considered small. His accuracy is extraordinary. He has made 50% of the shots taken beyond 30 feet from the basket.

So, what has this got to do with being a plaintiff’s trial lawyer? While his shooting ability is in a sense a gift, it is based upon hard work, practice and concentrated focus. These are same qualities that are required for being a great plaintiff’s trial lawyer. Curry has a well-established post practice routine of taking 100 shots from the three point range. He works his way around the arc, shooting 10 shots from each spot. In spite of the fact that he is the league’s most valuable player and his extraordinary playing,  Curry  sees room to grow and continues to practice and prepare for games. Most summers he concentrates on maintaining and building endurance and continues to regularly practice  shooting accuracy. In spite of all of his success he prepares, practices and has concentration.

The benefit of the intense practice is that it allows curry to perform without thinking about what he’s doing. It comes automatically because of all the practice. He has said:

“As soon as (the ball) touches my hand, I can go from that point to a quick release and shoot it. I don’t really time stuff – like, all right, I’m about to hit him with a one – two and then shoot. It’s more just, as soon as you get into a move and see daylight, being able to transition from the dribble to the shot as quickly as possible.” He added, “I work on that stuff and try to keep it as quick as I can, and as efficient.”

The connection to Curry’s success and being a successful plaintiff’s lawyer is  that both require hard word with preparation to the point correct things are done at trial without thinking about it. In his book Outliers Malcolm Gladwell says that it takes roughly ten thousand hours of practice to achieve mastery in a field. Deliberate practice not only improves performance but it means the ability for the right action or response without having to think it totally through. Athletes call this being in the zone; coaches call it muscle memory. It means that repeated actions become nearly automatic reflexes.

How do we achieve this as trial lawyers? The answer is work. These are the steps:

  1.  Know you case. You need to read it all: the depositions, the documents, the exhibits and know the witness testimony. There are no short cuts without the risk of suffering failure in this regard.
  2. Prepare in advance. You need to outline your jury selection, opening, direct, cross and summation sufficiently before it is needed to get it right. That doesn’t mean you should read it. It means putting in writing and preparing in advance improves content and delivery.
  3. Practice. Yes,  I know, at least in your own mind, you are already a great lawyer who has tried cases, but if you want to improve you need to practice your planned jury, opening and summation. Preferably you will video tape yourself and  then watch it. Hopefully, you’ll have the courage to have others who are qualified review it and make suggestions. Maybe, in major cases, you’ll take the time to do it in front of a  focus group and accept their review.

If a great basketball player like Steph Curry continues to practice his shooting and work at his endurance in spite of all his success why doesn’t it make sense for us too, if we really want to be great at what we do?

Posted in Advocacy | Leave a comment


This Sunday’s New York Times article about a Texas candidate for the state board of education is an illustration about how human beings really make decisions and then justify them. Mary Lou Bruner, a 68 year old former kindergarten teacher, is running for an important seat on the Texas State Board of Education. Her Facebook posts reveal a strong anti-Obama, anti-Islam, anti-evolution and anti-gay bias. For example, she believes President Obama had worked as a gay prostitute in his youth, that the United States should completely ban Islam, that the Democratic Party had John F. Kennedy killed and that the United Nations had hatched a plot to depopulate the entire world. She’s also expressed the belief that the massacre at Sandy Hook Elementary school in 2012 was a government staged hoax. On her Facebook page she called Obama “Ahab the Arab” and wrote that “he hates all white people and all wealthy people because to him wealthy means white.” She has also posted her claim that he was a male prostitute while he lived in New York with his male partner and writes: “How do you think he paid for his drugs?”

Now, how would you expect ordinary, rational people, even conservatives, to react to these ideas?  Wouldn’t you expect a reaction that someone  this far to the extreme fringe of eccentric beliefs is not qualified to be the Education Board, even if they were a Texas conservative Republican? How anyone believe intelligent and rational voters would vote for her to represent a 31 County section of Texas on a 15 member board that sets the curriculum standards, reviews, adopts textbooks and establishes graduation requirements in Texas public schools?

However she was the top vote getter in the Republican primary winning 40% of the 220,000 cast. What’s the most probable explanation? It’s the way human beings reach conclusions. In general, most of our thinking and decisions are done at an unconscious level without our being aware of it. We form firm beliefs and values based upon our significant life experiences, thoughts and emotional reactions. We also have a reptilian, primitive and instinctive brain that is shared by all reptiles and mammals including humans. It functions automatically at a subconscious level whenever survival or reproduction is involved. That “fight or flee” adrenaline reaction is controlled by this  part  of the brain stem. Offer any threat to survival or protection issues and it is on  alert.

So, if you are a conservative who sees a threat from the U.S. government, the president and immigration your instinctive brain is activated in favor of protective ideas even if outlandish. If you are a Texan voter whose deep seated values generally favor her conservative positions then you subconsciously have a supportive attitude  about her. Not  only that, this process goes on without conscious analysis. Once the subconscious conclusion is reached it is  consciously defended by offering reasons, defenses or excuses on a rational level.

For example, Texans, interviewed for the article, offered excuses or reasons why, in spite of these ridiculous claims, it was perfectly reasonable to vote for her. A 75 year old retired commercial pilot wasn’t aware of her views in this regard and yet was quoted as saying:

“I would not discount her on the basis of having those beliefs. It convinces me, though, that she’s quite conservative, and if I were going to her either way, I would want to err toward the side of the conservative.”

The chairwoman of the Republican  party in an adjoining county was quoted as saying about her: “She’s a nice older lady who doesn’t understand social media and the impact that it can have. I’m still going to vote for Mary Lou, and I’m going to encourage people to do the same.”

Other Republicans have rallied around her and arguing that her views do not disqualify her from sitting on the state Board of Education. One of them, age 85, said: “I believe, like Benjamin Franklin said, stand on principle even if you stand alone. If she’s standing alone, she standing on her principles, and for that I can admire her.” (Actually the saying is credited to John Adams)

What does this political news have to do with our trying cases to juries? It is  essential that we as trial lawyers approach our cases fully understanding how our jurors  think and arrive  at their conclusions. This is a good example of how it happens.  Sorry: No, judges, law professors and lawyer intellectuals, people don’t carefully sift through all testimony,  evidence, exhibits and then carefully weigh it in analyzing to a logical  decision. And, while we are talking about it judge, nor are jurors  capable of obeying your instructions to disregard what they heard or saw or to follow your instructions to disregard their existing opinions and follow the law you will give them even if they sincerely try. That’s contrary to human nature.

Many publications such as Blink by Gladwell, How we Decide by Lehrer and The Social Animal by Brooks, have outlined the how the human brain makes decisions as  documented in neuroscience through the technique of fMRI. What we know is that it is not a conscious rational and logical process. Instead, it is a process involving a large part of emotion along with unconscious and rather instant decision making. Only  then is it   followed by a conscious statement of the decision or a “rational” reason for it.

In practical application it means our jurors are quickly forming impressions at an unconscious and mostly emotionally driven level based upon their  deep seated values and past experiences. Once a firm impression or conclusion is reached they will filter all other information presented and make it consistent with their conclusion or they will  ignore it, reject it as untrue or construe it to be consistent even when  it is not. Trials are battles of impression and  not logic.

With candidate Bruner in Texas or  to Donald Trump, it means that if the person or their positions or claims  are consistent  with our basic values  we are compelled unconsciously to identify with them and then we filter everything else to retain our unconscious decisions. No matter what the law or the evidence we are unable to unconsciously reject our values. Once we reach the conclusion we rationalize the actions and  statements of the person involved, even if clearly ridiculous or outrageous or even untrue, and keep our initial conclusion or decision unchanged. In trials, jurors always make up a story about what the case is about even in the absence of any evidence. They will believe a story with a  beginning, middle and logical end as well as filtering everything else out. That happens early in the  trial. Impressions are being formed as soon as the jurors  file into the courtroom and begin looking around listening. But, each one them  bring their  own value system, bias and attitudes with them whether they admit it or not.

Let’s  try our cases with full awareness of the process and especially our non verbal communications which impact decisions.

Posted in COMMUNICATION | 1 Comment