TWO IMPORTANT CONCEPTS: ANCHORING & THE MIND-BODY CONNECTION

In a very general sense “anchoring” refers to a connection between two things or ideas. It is widely used in marketing in a variety of ways. For example anchoring is involved in the practice of using one high priced product or service option to make other choices seem cheaper or a better choice by comparison. Advertisers use the concept in tying tunes, images or slogans to their product. The idea is to connect a phrase or slogan to a product so that whenever one hears or thinks about the slogan one thinks about the product which in turn influences purchase decisions. We see it all the time in marketing. Maxwell House coffee has used the slogan “good to the last drop” in all of its messaging and advertising since 1917. When we see or think about Maxwell coffee we connect that to the idea that it’s “good to the last drop.” What’s significant is those ads which make you wonder what the connection is to the product are likely designed to create an emotion or state of feeling which they wanted linked  to their product. Instead of Maxwell’s slogan Folger’s used a scene “Peter comes home for Christmas” and smells coffee brewing to anchor the emotion with their product. Anchors are used  in all advertising.

So, what does that have to do with trial lawyers? It can be applied to the jury or even the judge to create a  subconscious reaction or  idea with the anchor. They can also be used as generate a personal feeling or attitude or reminder in ourselves  as  well. In trial, it is possible to connect an exhibit, a phrase, or an action to an idea which will come to the juror’s mind automatically every time the anchor is repeated.

The process is best explained in  Neuro Linguistic Programming (NLP). NLP anchoring uses a stimulus; it may be a sound, an image, a touch, smell or a taste to trigger a consistent response in you or someone else. It makes a link, connection or association between the two. Once something has been anchored we react to it at a subconscious level without consciously thinking about it. Anchors are built by repetition and association. You can link, just as advertisers do, anchors associating both images and thoughts. The anchor can be a visual anchor: a photo, an object anything. It may be an auditory anchor just as a song can make you immediately think of an event from the past. The Anchor can also be connected to touch smell or taste.

A simple illustration of creating an anchor in trial  could be having a major case theme on a red piece of paper. Each time the theme is repeated the lawyer holds the red paper and speaks from the same physical position and in the same way. After a few repetitions, the lawyer could assume the same physical possession and posture, pick up the red paper, holding it in the same  way, but say nothing, yet everyone would immediately think of the theme. That’s because there is a subconscious connection  between the anchor of the colored paper. and the words linked to it. Themes repeated are a form of anchor  in that it can link the words  to an image: “if the glove doesn’t fit, you must aquit” or even “Lying Ted.”

More importantly, the same idea applies to our personal mental state. We can anchor feelings in the same way. Something as simple as reflecting on a time when we felt very confident and self-assured, clearly creating the image and the feeling. In that state we can then physically connect the feeling to something including a phrase or something physical such as touching fingers together in a particular way or putting our hands together in some fashion or any other physical act. This process when repeated several times creates an anchor between the physical and the feeling. By repeating the physical link we will generate the mental feeling. We can, in this way, anchor  feelings  of confidence or calmness or the like.

Anchoring, therefore, for trial lawyers has two particularly important possible uses. One is like advertising connecting two things together in a courtroom in a way in which we unconsciously generate repeated reactions by the jury or the judge. The other is by anchoring past healthy states of mind to some link of sound, image or touch to produce the feeling of confidence or calm that we need at the time.

Equally important is the proven connection between mind and  body. The relationship between mind and body was emphasized in 2012 when Harvard business school professor and social psychologist Amy Cuddy presented a TED talk on power poses and how the body impacts the mind. Viewed by tens of millions of people, Cuddy’s TED talk is the second most viewed talk in its history. She has now written a book: Presence: bringing your boldest step to your biggest challenges. Cuddy’s revelation about how body impacts the mind is built on solid science (both psychological and physiological). In her original TED talk she discussed how a “power pose” held for a few seconds to a minute or two can produce in the mind a feeling of self-confidence and courage. Her famous image she used was that of wonder woman with her hands on her hips. What research confirmed was that the assuming of a body position directly influenced the subconscious mind. Just as a physical smile can tend to make us feel happy, a powerful position can produce a feeling of confidence while a body position of dejection produces the opposite.

Her book discusses body language and dealing with feelings of anxiety or a sense of powerlessness in the face of challenges or high-pressure situations. Feeling personally powerful involves knowing our values and being true to them as well as alignment of our thoughts and our feelings in our behavior. The power pose idea involves sending messages to our brain that we are powerful. She says: “let your body tell you that you are powerful and deserving, and you become more present, enthusiastic and authentically yourself.” It’s important to note that she is not talking about this process as a way of intimidating others but rather something that is done for a brief time by yourself to generate the feeling before physically taking action. Clearly it also involves how we stand, position ourselves and use our body language while communicating with others as well. The short TED talk is worth watching  to understand the importance of this technique to all  trial lawyers.

These two concepts, anchoring and body language producing self-confidence are basic tools for trial lawyers. Before we reject ideas like this as  some sort of new age ideas we should take the time to examine the research that has gone into both of these concepts. In advertising the marketing research goes back decades and there is an abundant amount of research as well regarding mind and body.

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OUTLINE FOR DIRECT EXAMINATION OF PLAINTIFF HUMAN FACTORS EXPERT

Human factors  experts are professionally trained in psychology and engineering. In general their role is to evaluate how normal human behavior interact with the environment people deal with. Commonly used in industry hey study how activity areas can be made  more efficient or safe for people. Their training allows them to evaluate how apparent a danger might be to a worker of a hazard; how normal  human behavior relates  to the operation of equipment or the efficiency of the arrangement of the environment involved. They are also often very important in personal injury damage claims.  Northwest lawyers began hiring human factors experts how had or were working with Boeing. They were hired to evaluate issues of claims of safety negligence in injury cases and  issues of negligence of parties, including contributory negligence claims. They are a professional field we plaintiff lawyers should be fully  aware about.

Here is a simple  outline of a  direct  examination of a plaintiff human factors  expert in a case where a worker installing a poster on a high billboard hit a  power line near the billboard with the metal rod he was using to install the sign. The electrical force knocked him off the platform and resulted in the partial  loss  of three limbs. There were claims by plaintiff of negligence against defendants and cross claims  as well as a claim  of contributory  negligence. The jury was charged with determining the percentage of  negligence, if any, of plaintiff and two defendants. This brief outline covers basic testimony of a plaintiff human factors expert in that case  which  resulted  in a record plaintiff’s verdict.

        DIRECT EXAM PLAINTIFF HUMAN FACTOR EXPERT

 IDENTIFICATION

  1. IDENTIFICATION
  2. [You are an expert in human behavior A human Factors]

QUALIFICATIONS 

  1. See CV
  2. EXPLANATION OF PROFESSION: (Application in industry etc.)
  3. WHAT WAS DONE IN PREPARATION

(1) VISITED SCENE p 39

(2) REVIEWED PHOTOS

(3)  READ DEPOSITIONS

(4) TALKED WITH PLAINTIFF

UNDERSTANDS HIS OPINIONS MUST RELY ON REA SCIENTIFIC PROBABILITY

ROLE:  EVALUATION OF CONDUCT

  1. ASSUME JURY MUST COMPARE PERCENTAGE OF FAULT OF THREE PARTIES INCLUDING PLAINTIFF. PREPARED  TO EXPLAIN CONCLUSIONS RE  SAME?
  2. AGREES IN MAKING A COMPARISON NOT HINDSIGHT, MONDAY MORNING QUARTERBACK, CRYSTAL BALL

OPINIONS

 OPINIONS REGARDING PERCENTAGE OF FAULT OF PARTIES

(1) OPINION AS TO EACH

(2) EXPLANATION 

OPINION RE DEFENSE CLAIMS ABOUT PLAINTIFF FAULT: 

  • SHOULD HAVE REFUSED TO DO WORK 147
  • SHOULD HAVE USED DIFFERENT WAY OF DOING JOB 117-121
  • SHOULD HAVE SEEN ELECTRICAL WIRE
  • SHOULD HAVE SEEN WARNING SIGNSHOW IMPORTANT IS IT IN REACHING YOUR OPINION TO  CONSIDER: 
    • OTHER LINE CREW DID NOT REPORT HAZARD
    • SYSTEMS ENGINEER WAS AVERY CONCERNED@ BUT NEVER MEASURED & TOOK NO ACTION
    • ENGINEER WHO WALKED THE LINE  INSPECTED EACH POLE AND WIRES SAW NOTHING OBVIOUS OR RAISED A RED FLAG TO HIM
    • OTHER TWO WORKERS, BEN KAPELKE & PAT KUNTZ DID NOT SEE A HAZARD EVEN WHEN ON SECOND LEVEL CATWALK

IS IT IMPORTANT TO CONSIDER WHO HAD THE MOST KNOWLEDGE & CONTROL?

WHY?

WHO DID IN YOUR OPINION?

GENERAL CONSIDERATIONS 

    •       DEFENSE SUGGESTION HE WAS TRYING TO COMMIT SUICIDE?
    •       DO YOU THINK HE WOULD KNOWINGLY RISK DEATH IF REALIZED THERE WAS A DANGER? WHY?TRUE THAT LOTS OF JOBS HAVE RISK OF INJURY?

(a)        WINDOW WASHERS FOR OFFICE BUILDINGS
(b)        HIGH STEEL CONSTRUCTION WORKERS
(c)        FIREFIGHTERS
(d)       POLICE

DOES THE FACT A JOB HAS RISK MEAN IF WORKER HURT IT IS THEIR FAULT FOR TAKING A JOB LIKE THAT IN THE FIRST PLACE? WHY?

  • (OTHER DEFENSE OPINIONS)
  • HAVE YOU READ DEPOSITION TESTIMONYSEEN EXHIBITS?
  • ASSUME DEFENSE EXPERT CLAIM ___________OPINION RE REASONABLENESS OF OPINIONS – WHY?

 

HOW CONFIDENT  ARE YOU ABOUT YOUR ANALYSIS? WHY?

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WHAT DO YOU DO WHEN THE WHEELS BEGIN TO FALL OFF YOUR CASE?

 

A friend of mine who is an outstanding plaintiff’s lawyer was giving a talk on the subject of the experience of having your case began to deteriorate. He asked me for some thoughts and what follows are suggestions. When this subject comes up, I always think of the great New York plaintiff’s lawyer Moe Levine. He has written that he was once trying a case before an abusive judge who did everything he could to undermine his case. Several days into the trial, while the judge and jury were present, Moe began packing his brief case and indicating he was leaving, causing the judge to ask what he was doing. He says he told him it was clear there was no chance of a fair trial in this courtroom so he was leaving. He indicated he was taking a non-prejudicial dismissal and left.

Maybe Moe was being apocryphal, but haven’t you ever wanted to just pack up and leave at some point in the trial when disaster happens? Since, that’s unlikely to happen, here are ten things to consider when your case seems to be losing momentum to the point of concern.

  1. The first thing is to remember that a trial is a battle of impression and not law or logic. Therefore, the question is what is the general impression you, your client and witnesses are making. What about your demeanor, your reactions and your body language?These are the most important factors which influence how the jury perceives your case. You need to maintain a consistent good demeanor with a constant theme and project the righteousness of your case at all times. However, you also need to have a sense  of humor at appropriate moments as well as being willing to acknowledge, without attempted cover up when it is apparent to everyone things went bad. Otherwise you lose the impression of sincerity and trustworthiness you must have with the jury. In the same way a professional poker player must maintain a consistent demeanor, your demeanor needs to be unchanged because, like a runner in a race, if you project you have given up giving up, you are a loser and the case is over.
  2. When you sense that the case has taken a wrong turn, you need to take the time to analyze why. When we continue to do the same thing in the face of a lack of success we will continue to get the same bad result. You must have a willingness positive and objectively analyze what you can change in an effort to try to put the case back on track again. You may have to do this more than once but you must be willing to objectively analyze and face the truth.
  3. Since we often have trouble being objective about ourselves it may be important to have an objective  third party analysis the problem. You need to be totally open to the criticism that it is your attitude, your mannerisms or your communication that represents a contributing cause of the problem. Is arrogance, smart aleck attitude or general anger part of the problem? Should you change your attitude, your demeanor and the way in which you are conducting yourself? Your case is often judged by the impression you create. Be willing to change mid-trial if necessary.
  4. You need to evaluate whether there is a change of legal position you can make to improve your chances. Are you making a claim that can be dropped which is the weak part of your case causing the problem? Are there witnesses you can call or not call that would improve your position with the jury? Is there any alteration you can make in approach, while being consistent with the main theme that would help?
  5. You should evaluate whether you can focus evidence or witness testimony to concentrate on some weakness in the case. Would a change emphasis be of benefit? In general what we talk about the most becomes the most important thing that jurors see in our case. Where is the emphasis in our case and is that part of the problem? Should we refocus in that regard? We need to be willing to modify our approach and not be so rigid with our planned trial when it is necessary.
  6. Sometimes the problem is that you have ignored the jury. You’ve tried the case as if there were no jury, just you and a witness. Too many lawyers do not maintain appropriate eye contact with the jurors, involve them in the process and make clear that they are fully aware of the juror’s involvement in the case. Consider whether you need to involve the jurors through eye contact and general acknowledgement of their role. If there are particular jurors who seem to represent the problem, is there anything you can do to appeal to them through your eye contact and approach?
  7. It is important to make a special effort to arm the jurors who are on your side with arguments in the jury room against those who are not on your side. While jurors make up their mind early in the case, be sure to specifically give the jurors on your side arguments to use in the jury room for your position. For example “Someone might say in the jury room, ‘that doctor smith was caught in too many inconsistencies’ but remind them of all the supporting evidence and testimony …..Etc.
  8. Remember that truth is the most powerful persuader in a jury trial. I had a friend in Spokane who was a great trial lawyer. He was presenting a case when his key expert completely come apart on the stand to the point of embarrassment. In argument he took full responsibility and apologized in summation.  He told them that he was totally mortified, ashamed and embarrassed by the witness because Bill took full responsibility for presenting only valid truthful testimony and he had failed to do so. He told them he had spent his life presenting honest and truthful evidence in court and this was something he had to live with. What really bothered him was his innocent client would likely suffer the consequences of his failure to screen the witness properly and so on. He recovered a very good verdict because of his sincere acknowledgement of the disaster and taking responsibility for it.
  9. It may well be that the situation is serious enough to consider whether you should try to settle the case. Mike Koskoff, a great plaintiff’s lawyer, says that his father Ted who was an outstanding plaintiff’s lawyer had a rule: Never settle on the day you have had a trial problem. If settlement is a compelling alternative avoid doing it on the day of the major disaster but rather to try to time it for when you had a good day.
  10. As a last resort, if your trial has become a true disaster you may have to consider whether you can and should take a voluntary dismissal with a plan to refile and try it again. Clearly this is a last resort alternative but it may be appropriate in the right circumstances. Michael Sterbick was an outstanding plaintiff’s lawyer in Tacoma some years ago he was involved in a trial where things simply were going wrong. After more than several days of trial he elected to take a voluntary nonsuit. He later refiled the case and tried it to a very good verdict. When I talked with him about it he said that the expense and additional effort had been worth it because it allowed him a chance to reframe his entire case and how he approach that a trial. This may be the only alternative in rare circumstances.

Well, those  are some ideas short of running out the courtroom door when you case begins  to become sour. Be strong and  courageous. Keep going.

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