HOW TO DEAL WITH PERSONAL ATTACKS & NEGATIVE ISSUES IN TRIAL

We just returned from a week long cruise to Alaska  with our children and their spouses. While on the trip I read a book by Drew Weston The Political Brain. It dealt with political campaigning and the election of politicians, but had informative information about persuasion, decision-making and how the human brain functions. While directed at politics I found that most of what he wrote was applicable to us as plaintiff trial lawyers.

For example, I was pleased to read his advice about authenticity of political candidates which was: “if you don’t feel it, don’t use it.” How true for us when we try to use something we read or heard, but haven’t internalized.  Weston also supports my conviction about the power of being truthful. He writes: “the central thesis of this book – that successful campaigns compete in the marketplace of the emotions and not primarily in the marketplace of ideas – may at first blush be disquieting to many Democrats. But, the reality is that the best way to elicit enthusiasm in the marketplace of emotions is to tell the truth. There is nothing more compelling in politics than a candidate who is genuine.” He writes that if you’re a politician and you want to maintain the trust and goodwill of your constituents over a long run, tell them the truth – about what you believe. Voters prefer candidates who are clear on what they believe even if it’s not what they believe. That advice applies equally well to trial lawyers.

I want to share with you some of his observations about political responses to attacks during a campaign. As I read the material, I was struck by how the advice applies to us when we are being personally attacked in trial or have to deal with negative issues in our cases. Here are some of the ideas he suggests in that regard.

He says that when you’re hit with a “dangerous emotional punch” in politics – particularly a low blow – the only appropriate response is an equally powerful emotional counter punch. He advises that if a strategist tells a candidate to “avoid that issue” the candidate should avoid that strategist, because he or she doesn’t understand how the human mind and brain work. He says “the basic principle is the same: silence is the surest way to let the other side shape and activate their associations of choice.”

As to the idea of not responding at all and “taking the high road” he says that a non-response allows the opposition to shape voters networks with impunity, creates an uncontested frame and suggest that the candidate isn’t contesting the charge or has something to hide and emboldens the person who threw the punch to follow up with another.  Never let an attack linger without responding to it. Never let the other side create an emotional association  without responding to it. The idea of responding with something like “he knows that’s not true” or “that’s a lie” creates the problem that it turns the issue into a “he said versus a she said” debate that maintains focus on whether the claim is true or not. Equally ineffective, he argues, is to respond that it was grossly misleading or that it wasn’t fair. That’s because he says such a response has predictable and always unwanted consequences: it reinforces the view that the candidate is weak and establishes the other candidate as being strong.

The most effective device he argues is to inoculate the potential negative attacks. He says: “there’s one strategic principle that can sometimes head off attacks or effective appeals from the opposition before they hit: get there first.” That’s because psychologist’s discovered years ago that a related technique for reducing the power of a negative appeal from the other side is inoculation. Inoculation means building up “resistance” to an appeal by forewarning against it for presenting and answering it before the other side can offer a stronger attack.

He recommends that one of the most potent ways to respond to attacks on one’s character, patriotism or faith is to use the same idiom, refined, to turn the accuser into the accused. Doing so creates a counter narrative that activates the same emotional systems but links them to alternative networks. And even more important is to challenge the frame preemptively – to inoculate – rather than to remain silent and hope for the best, or argue about the smoke after the other side has already made the accusation.

This is a book worth reading.

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REPRESENTING CLIENTS WITH INJURY TO VISION

Recently a trial lawyer friend asked me for ideas  about handling a case involving a client who had negligently been deprived of sight in one eye and resulting limited vision in the other eye. While one would assume that the damages are obvious, my experience in running focus studies regarding cases like this, was the surprising result that many people didn’t regard visual injury and even blindness  as a significant injury. Many people believe that with adaptive devices and other technology one  would be able to function at a somewhat normal manner. Other focus study members referred to blind and sight impaired people they knew or read about that were functioning very well. In Washington State we have an elected a blind lieutenant governor. I think we have to assume that we need to present  evidence to support the seriousness of injuries and not assume the injuries are obvious.

Factors Involved in Vision Impairment Injury

To understand the significance of this kind of injury, try to intellectually reverse roles with a client who has suffered an impairment of vision. Consider the fact that our eyes work every waking hour. That’s an average of 16 hours a day, 365 days a week. They are one of only five senses we have been given to function in life. Furthermore vision was intended to cooperate in a team like manner with the other senses. When one important sense, like vision, is impaired, it effects us as a whole human being.  It changes us from someone who has normal functioning five senses into someone who must cope with the loss of an important sense. What we take for granted is becomes an enormous loss when taken from us.

The Christian Bible explains this very clearly in 1 Corinthians 12 where Paul writes:

“Now if the foot should say, “Because I am not a hand, I do not belong to the body,” it would not for that reason stop being part of the body.  And if the ear should say, “Because I am not an eye, I do not belong to the body,” it would not for that reason stop being part of the body.  If the whole body were an eye, where would the sense of hearing be? If the whole body were an ear, where would the sense of smell be? But in fact God has placed the parts in the body, every one of them, just as he wanted them to be. 19 If they were all one part, where would the body be?  As it is, there are many parts, but one body.there are many parts, but one body.”

The function of eyesight gives us facts, beauty, impressions and are part of our  human function. Eyes are source of information from watching television, going to a movie,  reading newspapers and the computer and in many other ways we don’t always think about. Eyes are important to the enjoyment of daily life. Gardening, recreation and walking without impairment are all related to vision. Eyesight is an important part of our social life. That involves meeting people, enjoying family and friends. We rely upon facial expression is a substantial part of relationships with others.

Research has shown that when people can both see and hear each other, they rely upon facial expressions, body language and tone of voice for the majority of their evaluation and impression of the other person. Sight impairment deprives us of this ability. A change of expression communicates information which a visual person uses to form conclusions about what is being said and the other person. Without vision one would not be certain the other person is smiling or frowning. We communicate and send messages by our facial expressions. In fact, all social settings can be difficult  for a person without normal vision. There is the problem of recognizing other people.  Such simple things as the stress of  the social interchange physically by handshake or otherwise.

Think about the simple daily events that are impacted by visual impairment or blindness. A candle in a dark room makes the darkness tolerable. Extinguish it and you are completely in the dark. Have you ever walked into a dark room and groped for the light switch? Close your eyes and enter the world of the blind or visually impaired. Try moving around with your eyes closed or talking to another person with your eyes closed and you will have a sense of the reality involved with blindness and visual impairment. But for you it is only temporary. For the visually impaired it is a daily experience for the rest of their lives.

Obviously there are employment issues involved for people who are visually impaired. Assuming two people applied for the same job, one with normal site and one with visual impairment irrespective of the lot relating to disability discrimination, it is an important factor in obtaining employment. Review the employment and salary impact of visual impairment.

Think also about the impact on daily life. Being deprived of driving a car and the independence that gives one. Most people With sight have daily activities that include  television, movies, computer, IPads and IPhones. Most people with sight do not have environmental challenges of steps, sidewalks and other mobility issues. Navigating on city sidewalks and in office buildings is a challenge.

Yes there are adaptive devices for the visually impaired. But, research those that are available for the visually impaired.  Consider not just the cost, but the learning effort required to use them. Review the amount of effort in using them after learning how.  Consider the extra time required when employing them. Analyze the number of daily activities that are involved.

Spending quality time with your visually impaired client, listening to them and watching them is the single best way of learning the reality of visual impairment. Be an advocate for your client.

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A PRIMER OUTLINE OF IMPORTANT BASICS OF TRIAL CONCEPTS

While the following points are well known to almost all of us, it is important, from time to time, to review the basics involved in the trial of the case. Here are a few of the well-known and well-established ideas to keep in mind. I  appreciate these may be overly simplistic, but we often forget the basics of good trial tactics.

FOCUS ON THE DEFENDANT – NOT THE PLAINTIFF. START THE STORY TALKING ABOUT THE DEFENDANT.

In 1999 Lawyers Weekly published the results of a study done through the American Trial Lawyers Association. It assigned two of the members, experienced in jury psychology, the research project of presenting cases to hundreds of focus groups around the country. Their research was then evaluated and published. It established the fact that when they begin presenting their opening statement by talking about the plaintiff, jurors would blame the plaintiff for what happened. But, if they started with the defendant’s conduct, jurors focused on what the defendant had done wrong and blamed the defendant. They clearly demonstrated we should start our trial story not with the injuries or the plaintiff, but with the defendant’s conduct. The reason was what psychology calls “availability bias.” An over simplistic explanation is our tendency to use mental short cuts to reach conclusions by putting more emphasis on memorable facts we are given than is deserved. In sort of a “hindsight” way we reach  conclusions about facts before we have reviewed all of the available information first. We tend to rush to judgment.

As a result, the jurors began to immediately fill in blanks and asking themselves questions by focusing upon the behavior first given them.  They construct an understanding of the case in the context of the defendant’s behavior before they review the full context of all the facts.

Added to that, is the psychological factor of “defensive attribution.” This refers to the fact that once we reach conclusions  we began to filter facts that are inconsistent with our own ideas and what we have concluded or about what we would expect others to do. We adopt a unrealistic “this couldn’t happen to me” or “I would never have done that” reaction. In the study jurors developed stories in their minds and then looked for evidence to support their version. As a result we should begin by attacking the defendant’s conduct and not start with a discussion of the plaintiff. In addition sympathy is a very poor motivator. Anger drives plaintiff verdicts.

DEAL WITH KNOWN JUROR BIAS

Virtually every juror comes to court with existing and often unconscious bias. One of the more prevalent involves the idea that “stuff happens” or the bias that things are just going to happen as part of life and we need to deal with with them. This extends to the idea that society shouldn’t have to and can’t afford to compensate everyone for everything that happens to them because things just happen to people in life. Deal with this bias by showing that this is not a case where “stuff happened” but rather one caused by the defendant.

People believe generally in “personal responsibility” and “accountability.” When someone does something that harms another, there is a general expectation that the wrongdoer will take responsibility for their action and be held accountable for it. Apply this to the defendant’s conduct and the defendant’s failure to accept responsibility or be made accountable for the harm that they have caused.

Everyone has these and many other biases. It is our role to understand them, deal with them by the way in which we question our jurors or present our case and not ignore them.

ANSWER THE JUROR QUESTIONS THEY DON’T ASK

The jurors come to court  with questions about what their role is and what the case is about. Too often in jury selection we launch into a discussion about factors in the case or issues of attitudes, but without dealing with the primary questions in the minds of jurors. Think about when you were a child and you had a new game to play. The first question you have would be: “what are the rules.” In a trial, the jurors want to know what are the rules? What is this case all about? What does the plaintiff say the defendant did and what does the plaintiff want? How about the defendant? What does the defendant say? Other questions that  apply incorporate cases involves the question of the chain of command. Who is responsible for what? Organizational charts for corporate responsibility are important in those cases. Answer the unasked questions and you will be seen as a teacher and leader.

OPENING STATEMENT BASICS

I believe David Ball’s books on Damages are the single best summary of the basics for opening statement for plaintiff trial lawyers. Certainly, all of the recommendations and information in the books are valuable and important, but I particularly like the way he has laid out the steps for opening statement. The following is a poor adaption of much of his recommendations in that regard. If you don’t own his latest book, you should.

Start with the Rules

Start the discussion of  what actions  were wrong and why they were wrong. In other words, what are the rules and why are they important? For example: “A driver is required to watch the road and see what’s there to be seen. If the driver doesn’t, even for an instant, and as a result hurts someone, the driver is responsible for the harm. Now let me tell you the story of what happened in this case.”  The brain is more attracted to a present tense narrative than a past one.

Starting with defendant’s conduct tell the story in the presence tense

Start with the defendant’s conduct. Tell the story in the presence tense as if it were happening now. It’s a story and not a chronology. It’s supposed to keep interest as it is being told. Use an active voice: “Jim looks at the light and it is green, so he begins to drive forward.” You are a video camera reporting a documentary.

Make it interesting 

Don’t waste time and lose attention with preliminary talk other than “good morning.” Omit details and irrelevant information. Hit the major big points and leave out the rest. Don’t add anything more than is necessary.  Avoid legal language. If you quote something, use the exact language of the rule or policy instead of clarifying in simple language. Do not be an advocate about your story. Instead, be a story teller of facts. That includes your demeanor and tone of voice. You are a teacher and not a preacher.

Avoid unnecessary dates, times and details 

Don’t use a chronology approach with dates and times. Jurors won’t remember them anyway and they distract from the story.  If you do need time, insert it at the start of the sentence  as in “six days later the doctor…”

Make it short, simple and understandable

Communication is what the other person hears. Not what you think you said. Use simple, short sentences. Use the same rule as in cross examination: one fact per sentence. Remember, sensory descriptions  strengthens the story:  color, smell, sound, touch  and taste.

Next, give them explanations

After you have told them the story, tell them why you are suing. The sequence is: (1) What are the rules (2) What is the story and (3) now, why you are suing. Explain experts will explain the rules and how rules protects people. Analogy in this regard are important as is explaining how dangerous it is to violate the rule.

Explain what defendant did and what defendant should have done instead by not violating the rules. Note that the easier and simpler it was to avoid violating the rule, the stronger your case. If  jurors think they could have easily done the right thing they will feel more strongly about it.

Explain for each rule violated (1) who you are suing  (2) what rule was broken (3) how the defendant did it (4) what is dangerous about violating the rule and who says so (5) how the rule protects people (6) how the violation caused the harm (6) what defendant should have done and (7) how that would have made a difference.

Review the defenses

Undermine the defenses. Start with defense contentions. Explain how you reviewed these defenses before you decided to take the case and what you found out about how valid they were. Explain why they aren’t really defenses.

Discuss burden of proof

Review the standard of proof involved and the general evidence that more than satisfies the legal requirement.

Discuss causation & consequences of injury

Explain you will now discuss the consequences of the violation of rules and conduct of defendant. Describe the chain of  events that demonstrate the connection between the defendant’s actions and the damages resulting. Review causation. Cover the mechanism of harm. This is a clinical, simple explanation and without medical terms. It is a step by step description like domino’s falling.

Explain step by step how it changed your client’s life. Where there is a consortium claim, show how it intrudes on his wife and children. Detail the necessary fixes and helps and what cannot be helped. Use simple line drawings. Simplicity is always best here. Cover the personal consequences of each injury. Then review the before condition of your client’s situation even if in reverse chronological order because it has dramatic impact.

Review the economic loss and make  it clear the evidence will deal with two separate and different types of damages: Economic and Non-economic. Discuss generally the evidence that illustrates those differences.

Conclude with what the jury can do about this

Address the question: “what do you want? in a general way by talking about your presenting evidence regarding the damages.  Advise them you will present them with a way in which to appraise the harm and reflect a reasonable and fair verdict in dollars at the end of the case, once they have all the facts.

 

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