DON’T BE LIKE THE SIX MEN OF INDOSTAN

John Godfrey Saxes  poem about an Indian legend had these lines:

It was six men of Indostan
To learning much inclined,
Who went to see the Elephant
(Though all of them were blind),
That each by observation
Might satisfy his mind.

The First approach’d the Elephant,
And happening to fall
Against his broad and sturdy side,
At once began to bawl:
“God bless me! but the Elephant
Is very like a wall!”

The Second, feeling of the tusk,
Cried, -“Ho! what have we here
So very round and smooth and sharp?
To me ’tis mighty clear
This wonder of an Elephant
Is very like a spear!”

The Third approached the animal,
And happening to take
The squirming trunk within his hands,
Thus boldly up and spake:
“I see,” quoth he, “the Elephant
Is very like a snake!”

The Fourth reached out his eager hand,
And felt about the knee.
“What most this wondrous beast is like
Is mighty plain,” quoth he,
“‘Tis clear enough the Elephant
Is very like a tree!”

The Fifth, who chanced to touch the ear,
Said: “E’en the blindest man
Can tell what this resembles most;
Deny the fact who can,
This marvel of an Elephant
Is very like a fan!”

The Sixth no sooner had begun
About the beast to grope,
Then, seizing on the swinging tail
That fell within his scope,
“I see,” quoth he, “the Elephant
Is very like a rope!”

And so these men of Indostan
Disputed loud and long,
Each in his own opinion
Exceeding stiff and strong,
Though each was partly in the right,
And all were in the wrong!

What does  this have to do with plaintiff trial lawyers? Well, one lesson for us is to avoid the common mistake of evaluating our cases, at  intake or at mediation or in trial in the same way the men of Indostan reached their conclusions about the elephant. Instead of taking a full and complete perspective of the entire case, we are distracted by a few factors that color our view of our cases. We look at selected facts as a  legal scholar and not  as a juror who sees all the facts. We fail to take into consideration factors beyond legal considerations such as commonly held value beliefs that will always  prevail over legal rules.  Looking at the case through a legal microscope and not as  a big picture is the frequent explanation for why we lose cases where the law and even the facts seemed to be on our  side. That’s also the most common explanation as to why we  won cases we thought we would lose.

Avoid becoming fixated on any one or few facts or issues, good or bad, in our cases. Instead, ask non lawyers for their overall reaction.  Run focus studies on the big picture reactions. Try re-framing issues in favorable ways and re-evaluate from a broad perspective. Most important, avoid the fatal sin in trial of losing sight of the big picture message by chasing  distracting defense issues that defendant pops up like rabbits coming out of holes  in the ground. Have the discipline to resist the temptation. Think of  Odysseus who put wax in his  crews ears and tied himself to the mast to avoid the power of the Sirens whose singing  was  so beautiful it drove men mad. Stay on message from jury selection through argument and make the message a broad overall one that is consistent with the common values of the jurors.

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IDEAS ABOUT “CLOSING THE DEAL” IN A PLAINTIFF’S TRIAL PRACTICE

When I started my plaintiff’s trial practice it soon became apparent to me that, like or not,  I was involved in sales – professional sales – but nevertheless sales.  I was selling myself to prospective clients, selling an idea or legal position to judges and selling my client’s case to juries. The first place I was professionally selling was to clients because it became apparent to me that I needed to have clients agree to hire me in order to have a legal practice. I wasn’t in a firm where someone else was responsible for finding clients and in signing clients up. It was up to me to find the clients and then convince them to hire me. That was the reality. The subject of finding clients, or marketing, is not what I am qualified to talk about. What I want to talk about is called in sales “closing the deal.” The question is, after we have met with the client how do we get them to hire us?

I will note about marketing legal services, it has been my experience that the great majority of clients do not find their plaintiff’s lawyer by a study of  who is the most qualified plaintiff’s lawyer to hire. Instead, they are guided to some lawyer by a friend or a family lawyer  or an advertisement or some other referral source. Worse than that, a lawyer who is unqualified to handle a particular plaintiff’s case may decide to keep it anyway with the idea that they can settle it and earn a fee. These are the lawyers who contact the qualified lawyers  shortly before trial only when they found out they can’t settle the case. In addition, there are lawyers who are contacted  about a plaintiff’s case which they are not qualified to handle who search for a lawyer for the client. However, their chief concern is not finding the best qualified plaintiff’s lawyer, it is rather  finding the lawyer  who will pay them the largest referral fee. Legal services marketing is a world unto itself in our profession that I leave for others to solve.

When it comes to signing up new clients, the first and most important rule is that all agreements  regarding client representation must be in writing. There are no exceptions to this rule if you want to avoid controversy and possible malpractice lawsuits. My contracts were clear and limited to one page. They spelled out the basics which included such subjects as how the fee would be charged, responsibility for costs advanced and the details  relating to the professional relationship. My policy was I did no work and I was not hired until the contract had been signed by those who had authority to hire me. So, after meeting with the clients and presenting them with the proposed fee contract the question is how do you get them to sign or “close the deal?” That’s the subject of this post.

Think about this from the standpoint of the client. What is it the client really wants to know? Well, here are the basics: (1) can you as their lawyer do what I need done? (2) how much will it cost me? and (3) how long will it take? The clients evaluation of your responses and their impression of  you will determine whether they hire you or not. The first question is whether you are qualified, experienced and able to represent them right? Why hire you in stead of someone else. What’s my advantage in having you as my lawyer? The second involves a discussion of fees both hourly and on a contingency, plus the amounts. You need to decide what your standard fees are and whether you are willing to negotiate them. My policy was to have a reasonable fee that would not be reduced and that you hire a surgeon who negotiated his or her fee for the surgery. As to the  time, I knew generally time in different counties for trial schedules and would advise about average time for settlements. However, I also emphasized the importance of filing suit and discovery before any negotiation except in unique situations.

Taking lessons from the commercial sales field gives us some insight as to how we should deal with these concerns of the client. For example, we need to create a value for the client in hiring us. We need to show how the client will benefit from our services in the short or long term. Convincing the client that you have the skills and ability to solve their legal problem is an essential step. What are other things we should do in this regard?

Be a good listener. Lawyers like to talk, and talk, but are terrible listeners. Letting the client talk is an essential part of  developing a relationship that leads to your being hired. Ask questions, understand  people’s fears and concerns so that you can explain how you’re going to help them solve these problems.

Keep in mind the question is not what’s best for you as far as the client is concerned. The question in their mind is what’s best for me? What the client wants to know  is whether you can help and how you will resolve their issue. Your whole focus should be in listening and understanding their problems and what is best for them.

Don’t attack your competitors. When clients ask you about your professional competitors they may be considering hiring  instead of you,  make it a practice not to attack other lawyers or firms. When you put down your professional  competitor in the hopes of being hired, you are not only being unprofessional you may give a bad impression of yourself to the client and not be hired as a result. Certainly there are  situations where it is in the client’s best interest  to be advised of a problem or  real lack of qualifications in another  lawyer but those are rare situations.

From the field of sales we know that there are certain helpful factors that go into having the client hire you. These include some fundamental rules:

  1. Communicate clearly. Avoid “lawyer talk” and focus on the basic questions in the mind of the client: Can you do it, what will cost and how long will it take? Clearly explain  the legal situation to the client and the process which will likely follow once you’ve been hired.
  2. Make eye contact. We know that good communication involves eye contact because it is the way in which we know we’re being heard. Lawyers as bad listeners also often fail have good eye contact. It helps project confidence in yourself, your services  and what you can do for the client.  And while you’re at it remember to smile.
  3. Stay confident. There is a clear difference between conceit, arrogance and self confidence. We mustn’t make false promises or give guarantees that aren’t possible but confidence in being able to do what the client needs to have done is an essential part of the decision to hire. Project sincere confidence in yourself and your abilities to the client.
  4. Be as positive as  reasonably justified. We should give honest advice and full information about the problem and our ability to resolve it for the client. Our approach should be a positive one, but truthful. The client is looking for someone to trust. Project that to them.
  5. Remain seated until the deal is closed.  Experienced lawyers know that in order to encourage an end to a client meeting, getting up from your chair and walking towards the door is  a proven tool. By the same token remaining seated, even if your client stands up, encourages further discussion about hiring you. Stay seated,
  6. Be prepared for signing. When you are ready to discuss signing the fee agreement, have a pen ready and put it with the contract in front of the client with a concluding request that they hire you as their lawyer. I always had envelopes for different types of personal injury cases. They had inside the fee agreement, medical waivers and all the documents you need a client to sign. The envelope sat on the desk until needed and was ready whenever it was the right time. In an you

How should we go about  asking the client to sign the contract to hire us? The most basic rule in sales is that in order to close a deal you have to ask for the business. The greatest failure of salespeople generally is their fear or reluctance to ask for the business. Once you’ve shown the client how they will benefit from your services and why you are fully prepared to provide a solution to their problem you need to ask the client to hire you. From the field of sales we have learned what things to say to encourage hiring. Modify them to fit you and your personality. They include these kinds of  statements: (1) “Here is the contract for you to review and approve so that we can move forward with this today.” (2) “what you need to think about right now? What can I clear up for you?” (3) “Would you like my help?” and (5) “Are you ready for us to move forward on this?”

The subject of getting clients to hire you involves an enormous number of factors, but perhaps these very basic ideas about signing the fee agreement will inspire you to give this more thought.

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DEALING WITH COMMONLY HELD JUROR BIAS IN JURY SELECTION

People and jurors have commonly held beliefs that are in conflict with our issues in our cases. After decades of the national Chamber  of Commerce, big business and insurance industry propaganda against tort litigation and plaintiff trial attorneys, we can assume that all jurors  have been tainted to one extent or another with anti tort bias. Given the political fighting over immigration, we can assume that representing an immigrant, especially an undocumented one, has issues as does representing Muslims. Then there is inherent racial and minority bias we all have to one  degree or another. Auto drivers are likely going to have adverse feelings about motorcycle and bicycle injury cases. There are numerous other stereotyping biases.  The challenge of this kind of prejudice is that the person who has the bias  may either deny having such a bias  or underestimate the degree of the latent bias or firmly believe they can intellectually isolate any such bias and “be fair.”

When representing a plaintiff with issues that will likely  trigger inherent bias the question becomes how to deal with it in jury selection. Different trial lawyers have various  ways of handling this. I’d like to share my approach using a plaintiff injured in a car motorcycle collision as my example.  I suppose I should point out that my approach was always to be totally candid in acknowledging any issue in a trial. However, over the years I spent time with Gerry Spence including my years of teaching at the Trial College. and we had lots of discussions about trial and  I was exposed  to his style in our teaching together. After awhile what you have learned to do by your own experience and what you have absorbed from long exposure to other lawyers  like Gerry totally blur. As a result probably most of this is not original with me but borrowed from others.

To start with, in my view, looking  for assurances from jurors,  through closed ended questioning, that they can be fair regarding bias is a waste of valuable voir dire  time. Many people don’t think they have a bias, when they do, at least at a subconscious level and because they don’t want to admit it or give assurances about it they can’t possibly keep. It is likewise a  waste of time to plan on establishing the bias of  prospective jurors and challenging them for  cause to legally excuse them from serving.  Too many people will deny the bias  or insist they can set it aside or deliberately conceal it or  because they are intimidated from revealing  they have a bias. In addition, judges are often reluctant to sustain the challenge and instead step  in to rehabilitate the juror. In most states you don’t have enough preemptory excuses to accomplish it either.

I believe the only realistic way to deal with this  kind of inherent bias is a several step process. You first acknowledge the existence of  the bias in yourself when the case was  first offered to you. By admitting to the bias you thereby become part of the group of others in  the jury pool  who feel the same way.  The second step is to open non judgmental,  full and open discussion about the issue to demonstrate your willingness to have free discussion and  at the same time  to identify those who feel this way. Next,  using suggestions of extreme positions, you stimulate a discussion about how it should be dealt with in trial.  This results in the jurors discussing the need for a fair trial and making your arguments plus creating a public commitment by jurors to be  fair. This also encourages the jurors who simply can’t overcome  their negative attitudes to be honest about  it and excuse themselves.

The  process I follow is that the  lawyer begins, before ever asking any juror about the subject, by telling them you want to talk about the “elephant in  the room” by acknowledging that as the lawyer for this injured motorcycle driver you are embarrassed to admit your reluctance, when the case was first offered, to accept representation because of having a negative attitude towards people  who ride motorcycles. As an auto driver you  had  the idea  riding  motorcycles is a risky activity normal people should avoid.  Over the time you have represented (name of  client), however,  you  gained an appreciation for his or her love of  motorcycles and your admiration of this fine person. But, since you had this initial reaction to a motorcycle injury case, you wonder if others have the same initial reaction you had? Ask for hands of those jurors who are willing to share with you the same feelings you have. It  is critical you have the courage to stand and wait for hands to go up. Be willing to say nothing, keep eye contact and not move until a hand goes up you will eventually get hands  going up and which will happen easier if you hold your  own hand up.

When there is a public acknowledgment of the same feelings you have, you have become a member of the group who feel the same way. You all are together in this attitude and that makes  you a member  of their “tribe” or group. You aren’t an outsider lawyer accusing them of bias.

Thank them for having the courage to  raise their hands. The  next step is  to have an open discussion about why “we” feel this way. Note  that it is not “I” and “you.” It is “we” because you are a member  of their  group  or tribe. In the discussion there is no arguing with jurors  no matter  how extreme their position on the subject. To a response “anyone who rides on a motorcycle deserves what happens to them” you should say something like: “I understand how you feel. Sure, you think  it’s nuts  to  ride  a motorcycle – right? Thanks for being honest about it. I’ll bet other people agree with you. Who agrees?”   No attempts to educate them or suggest other views  or in any way  contradict them or look angry or shocked.  You should have an open posture (not crossed arms) and no frowning or non verbal objections. Instead, you nod your head to show you understand  and heard them.  You maintain constant eye contact and pause before turning to any other jurors to show “I heard you. I understand. I’m willing to listen to whatever you want to say.”

The last step is create a discussion about how they think the issue should be dealt with in trial. The discussion is what to do about all of “us” feeling this  way and  yet there is a right to a jury trial by the injured motorcyclist. This “what are we going to  do about this” discussion begins with suggestions  of extreme remedies because you want to stimulate an opposite response and to encourage other jurors from taking up your client’s  cause  and making  the arguments you would like to make.

For example, starting with questions  like these:  “What should  we do about this? Do we just make a rule that motorcycle injuries due  to negligence of others aren’t  entitled to a trial? Or maybe decide that motorcycle injuries  are only entitled to half  justice?  What suggestions do you  have about this since we are going to take  an oath to do full justice if we are selected to be on  the jury.” This leads to a discussion where jurors acknowledge the plaintiff’s  right  to a fair jury trial and public  assurances by jurors they can be fair. This creates a public commitment. We are motivated to be consistent with what we say publicly and carries into the jury room during deliberation plus allows other jurors to remind people about this discussion. It also allows you to remind them about it in final summation.

This approach always  was a comfortable one for me in jury selection because I dealt with the truth in open discussion and without trying to change minds or educate or make jury arguments. The approach demonstrates honesty, being  trustworthy and a genuine person instead of a lawyer trying to  sell something. You may have a better way of handling it because it has  to feel right to you.

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