Today I want to share some random rules of  plaintiff trial work that are not all connected, but, for me at least, have meaning.  They include some of these  ideas:

  • Gerry Spence once shared with me the phrase “watchful waiting.” By that he meant the idea of calmly listening to another argue or make personal attacks on you and waiting patiently without interrupting before responding. And, when responding, doing so in a measured calm manner. Ernest Hemingway wrote the classic:  Death in the Afternoon about bullfighting. The matador’s expression for this idea in bullfighting was “to watch them come.” The idea of developing the skill to watch the bull as he charges with no thought except to calmly see what he is doing and make the moves necessary to the maneuvers you have in mind.  Hemmingway writes that to calmly watch the bull  come is the most necessary and difficult thing in bullfighting. We need the same skill as  trial lawyers.
  • George Lakoff  has pointed out, in his book The Political mind, that all trials are actually about  values. He argues that a  trial is really  a morality play. Jurors decide issues based upon their values, their idea of doing the right  thing and most, if not all, of that process is done subconsciously. Appeal to common values for good in your approach for trial. Show the importance of a plaintiff’s verdict beyond your client’s concerns and how it will benefit them.
  • Frank Luntz in his classic book Words that  Work, says we decide issues, form opinions and impressions  based on how people look; we decide based on how people sound we decide based on how people are dressed. We decide based on their passion. Contrary to our  law  school teaching, it is not logic at work nor weighing the evidence that results in our impressions and decisions. It’s  how we view the situation. There is a big difference between being fully aware of the impression we, our witnesses or our evidence is making from intellectually viewing it a logical fashion.
  • Malcom Gladwell in his  book Blink says 90  – 95% of our choices and decisions are made at an unconscious level by instinct. Think about that. Instead of approaching trial like an intellectual scholar relying upon jurors  using logic and careful evaluation, accept the reality of how our human mind fuctions. Try your cases to the reality of the situation and not myths. The undenial truth is:  a trial is a battle of impression and not logic
  • Certainly there is truth to the concept of the primative brain controlling our mental evaluations and  that survival is the most basic motivator  of our primative brain.  Furthermore, it operates  at a subconscious level without our control. Research shows  that if survival is not at stake the reptile brain goes into autopilot but as soon as survival is at stake the brain shifts into survival mode and nothing else matters. Therefore, if there is a perceived danger to the juror, his or her family or their community the survival instinct is involved. Safety increases survival chances. A jury verdict which promotes a change for safety promotes survival. Don Keenan likes to say that the justice system is a public safety system. An important question  is how the defendant’s conduct is a threat to the juror if allowed to go unpunished.
  • Rules are important because they relate to survival. When we know the rules we are able to navigate through dangerous situations. When we break the rules we endanger ourselves. When other people break the rules they endanger us too. That’s why conservatives and people generally think like a “strict father” – rules must be obeyed like them or not and there is a reward and punishment which must follow. For that reason it is also a common viewpoint that making people accountable for breaking rules acts to enforce them  which, in turn, protect all of us. Rules are enforced by verdicts against wrongdoers who  violate them. But, it  is important to  remember the only rule breaking that counts are those from wrong motives. All other “accidents” or ordinary “negligent” acts are forgiven and do not merit punishment. The most important issue is “why.” Why was the rule broken?
  • The main point to keep in mind is that the question in the minds of the jurors as they wonder what the case is about, is not: helping your injured client out, sympathy or applying the evidence. The primary question in the minds of the jurors is: How will this affect me? What’s this case got to do with me or my family or my  immediate community? Will what happens in this case impact  me? Since that is their real concern you need to address it by showing the benefit of a plaintiff’s verdict on them, their family or their community. In non punitive damage cases there are many ways of doing  this. Keep in mind  the common values of most jurors: (1) They want to be part of something important. They want to make their jury service mean something (2) they have a need to do the right thing, as they see it with their value system (3) they want to feel good about their service and the result. Tie these motivators to their self centered motives and the concepts prevously discussed for the best way to try cases.


As I read Shakespeare I continually see his wisdom applying to me. This week let me cite some examples  to see what you think


How true this is. We see in life example after example of this truth. A strong advocate of tort reform and caps has a disabling injury and now complains bitterly about the unfairness of their personal situation. The young person who has yet to experience any pain or injury in their life, trivializes the injury and pain of others. Lacking personal experience we all tend to minimize the complaints and disabilities of others with phrases like: “just get over it and move on.”

It’s our role as plaintiff’s attorneys to first, totally understand how our client’s injuries, pain and disability truly impacts their daily lives  and second, to be able to translate that in practical ways  to the jurors. Knowing that the jurors who have not experienced pain or injury minimize the meaning of both to others, we must be our client’s spokesperson.


This is a hard truth to accept. When crisis come and our case experiences a turn for the worse, we always tend to see the most negative implications. When we don’t get the result we hoped for or lose our case, we are totally discouraged and began to question our skills as advocates. That’s human nature for everyone except the narcissistic.

What years of experience as plaintiff’s trial lawyer has taught me is that adversity has its own rewards if we search for them with the right state of mind. Perhaps our case wasn’t as wonderful as we originally believed and learning it early saved us more grief. Not all turns that appear to be for the worse are. Some need to be seen from a new fresh angle as potential helps, perhaps in simplifying the case. Our losses teach us far more than do our victories if we have the courage to realistically examine what happened. Not all bad events are as bad as we think.


When Hamlet talks to the players about how he wants them to perform his play he gives them excellent advice we trial lawyers can learn from. He says “speak on, but not over tedious; Men of few words are the best men and an honest tale speeds best being plainly told.” How often these very basic rules broken by us long are winded, unorganized and egotistical advocates. We talk too much. We talk to long and we talk too complicated or patronizing. We read this and intellectually say to ourselves “yes, that’s true,” but we never apply it to ourselves. We need to see a video of ourselves arguing something to grasp how universal the failure really is and how important it is to change.

Hamlet also tells the players: “Suit the action to the word, the word to the action, with this special observance, that you o’erstep not the modesty of nature: for anything so o’erdone is from the purpose of playing, whose and, both at the first and now, was and is, to hold as were the mirror up to nature: to show virtue her feature, scorn her own image, and the very age and body of the time is form and pressure.” He admonishes them to be congruent. Their words must match their body language. They must not be overly dramatic, but totally sincere and realistic because their role is to be mirror of what they are supposed to be communicating.

So, Shakespeare goes on to point out: “Men should be what they seem.” What a powerfully important rule. We should be what we seem to be. He warns there are insincere people: “One may smile, and smile, and be a villain!” and “Things are often spoke and seldom meant.” He warns us that “The devil can cite Scripture for his purpose” so we shouldn’t believe everything we hear. The most important rule he gives us is “To thine own self be true.”

What more important rule of persuasion could be that one is a totally authentic human being, totally sincere and without artificial pretense. Isn’t that our criticism of others: “She was only acting? She didn’t really mean it.” Our job is to suit the action to the word and the word to the action in all of our advocacy.


Shakespeare has much to say about courage. In addition to this admonition he also writes: “Screw your courage to the sticking place” and “Thus does conscience make cowards of us all and thus the native hue of resolution is sickled over with the pale cast of thought.” The benefit of a confident and positive minded plaintiff’s trial lawyer is that they are courageous enough to plow ahead in spite of the risk of failure. Not doing so, as Shakespeare points out, often means we lose what we would have gained because we were afraid to attempt it. Certainly, we must all weigh our odds and consider all relevant factors in making these kinds of decisions, but let’s face it, we know we have failed to obtain a good result because we were afraid to take the chance and instead took the easy way out. That’s why Shakespeare points out “Cowards die many times before their deaths, the valiant never taste of death but once.”


One thing we need to keep in mind is the importance of the good things we do for others, even those that seen inconsequential. Shakespeare notes: “How far that little candle throws his beams! So shines a good deed and a naughty world.” We should do well for others. That’s our role in life. We are the physicians of the injured, the wronged and those in need of justice.

Lastly, when you are wronged keep in mind what Shakespeare says: “Thus the whirligig of time brings in his revenges.”  Current age translation: “What goes around, comes around.” There is a Karma in this life where eventually we are punished for our wrongs and those that wrong us will eventually get what they deserve as well. Shakespeare says so!


Dr. Bryan Edelman published an article in The Jury Expert: titled “The impact of graphic injury photographs on liability verdicts and non-economic damage awards.” The issue of photographs and other exhibits often comes up when a defendant objects that the exhibits are” inflammatory and prejudicial.”

FRE 403 says: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or of cumulative evidence.”

Dr. Edelman’s study concluded that photographs of graphic injury have a significant effect on final verdict. He concluded research participants who saw the plaintiff’s injury photographs were significantly more likely to render plaintiff verdicts than participants who did not the photographs. The use of these photographs, offered ostensibly to assist in assessing damages, actually strengthen a somewhat weak plaintiff’s case according to the author. He concluded that his findings indicate that while injury photographs may be relevant for assessing damages, they also appear to spill over and contaminate questions on liability. He believed that the photos also significantly boosted the amount of non-economic damages awarded.

However, other research indicates that some photographs can be so gruesome that jurors become upset at the lawyer displays them. Dr. David Wright and James Goodman – Delahunty published in Psychiatry, Psychology and Law, volume 18 August 2011 entitled “Mock jury decision-making in a civil negligence trial: “The impact of gruesome evidence, injury severity and information processing route.”

They did a mock jury study involving 240 students using one of two visual evidence conditions either neutral or gruesome photographs plus one of two injury conditions, moderate severe and high injury severity. Their findings were:

1. mock jurors who read about a more severely injured plaintiff were more sympathetic towards the plaintiff compared with mock jurors who read about a less severely injured plaintiff

2. Mock jurors exposed to gruesome photographs rated the defendant as significantly more negligent compared with mock jurors exposed to neutral photographs.

The authors also concluded:

“The results of our research and of other researchers suggest that the prejudicial influence of gruesome evidence on decision making occurs at an unconscious level. Jurors appear to be unaware of the extent to which they are susceptible to prejudice as a result of exposure to this type of evidence.”

Experienced lawyers have found that trial lawyers who use graphics generally will be able to educate the jurors on the case facts and issues more easily and persuasively. Action creates interest and therefore animated graphics increase the jurors understanding and retention facts. The question is what exhibits and especially what photographs should be shown were not shown to the jury for the greatest benefit by the plaintiffs’ attorney?

Here are some personal general beliefs based upon experience. Graphic and gruesome injury photographs can offend jurors. They may react with anger as well as revulsion. They will directed at the lawyer who presented the offending material. Some people are far more sensitive to graphic evidence than others and it is sometimes hard to judge in this regard. The best way to find out is by showing them to non-lawyers for their reaction, particularly focus groups.

If photographs or exhibits have the potential to defend but are necessary in the plaintiff’s case there are ways to avoid a negative reaction from the jurors. These include making sure the jury is warmed in advance about the photos or exhibits as well as the necessity for introducing them into evidence. I have put photographs in a folder so that when I pass them around to the jury I tell them that if they do not want to look at they can simply pass the folder along. Exhibits can be covered. Large posters can have a cover sheet. If the exhibit or photo is potentially offensive it should be in the smallest reasonable size and not made large. Keep in mind that curiosity is a common human trait and this approach may enhance interest in the exhibit in a favorable way for which you will not be blamed.

I believe that it is important to carefully sort through the potential photographs, records of injury and injury exhibits only the best. Non-lawyers, not involved in your case, are the best group of people to help you make this selection. I also believe that in major injury and damage cases less is always more. One does not have to emphasize or exaggerate major injuries. In fact, the more left to the imagination of the jurors the better.

This also applies to your own client in my opinion. My severely injured clients would be in the court only for jury selection, perhaps opening statement and then not again in court until they testified. Not only that, but their testimony was always very brief. Their testimony was generally that they were trying hard to get better and doing the best they could in that regard. Somebody else, their family, their friends, or their doctor had the rule of describing the injuries.

In addition to the required skills of advocate the selection of exhibits plays a significantly important role. This is particularly true of liability and damage photographs as well as other she exhibits. This should not be handled casually but should be studied by focus groups as much as the case is studied generally.