The actor, Alan Alda has  written a book If I Understood You, Would I Have this Look on My Face?  I found it has very helpful advice based upon his interviewing various experts. Here is what he has written on some of the subjects I thought of particular interest. I recommend this book for a complete understanding.

The Benefit of Ignorance

I’ve often written about the problem of trial lawyers who approach their trial work from primarily an intellectual level. I’ve discussed lawyers who become deeply involved in technical or complex subjects in their cases. They think they are “semi experts.” When they talk to the jury or examine witnesses they do so in technical and complex terms they are familiar with either to show how smart they are or because they have become familiar.  The lawyer assumes everybody else understands as well as they do. I’ve argued we are better off with broad pictures of the issues and subject matter to avoid this common failure of communication with the jury. When Alda was conducting a television program on science he says that he would study the subject matter in depth in preparation for the interview with the scientist involved. But, here’s what he says he discovered:

“After a while, I saw that I was having trouble talking with them whenever I thought I knew more than I really did about their work. I was boxing in the scientist with questions that were based on false assumptions. I took a bold step and stop reading the science research papers before I met with them. I would come in armed only with curiosity and my own natural ignorance. I was learning the value of bringing  my ignorance to the surface. Ignorance was my ally as long as I was backed up by curiosity. Ignorance without curiosity is not so good, but with curiosity it was the clear water through which I can see the coins at the bottom of the fountain.”

The Rule of Three

I’ve written about the research done regarding the “rule of three.” There is communication significance in three versus four or more items in communication. For example illustrative slides should have no more than three points per slide stated in short, simple and clear English. Here’s what Alda’s writes about the rule of three:

“The three rules of three”

1. When I talk to an audience I try to make no more than three points (they can’t remember more than three, and neither can I) in fact, restricting myself to one big point is even better. But three is the limit.

2. I try to explain difficult ideas three different ways. Some people can’t understand something the first couple ways I say it, but can if I said another way. This lets them triangulate their way to understanding.

3. I try to find a subtle way to make an important three times. It sticks a little better.”

This is great advice I highly recommend. To illustrate my reasons just take the time to look at illustrative exhibits or listen to lawyers arguing motions to a judge, or asking questions or arguing to the jury. They are boring, too long and too complex. Filter everything you do in communication by the rule of three.

Good Communication Requires Empathy

Alda spends considerable time on the importance of empathy in communication. He cites the work of the psychologist Carl Rogers whose whole approach was based on empathy. Rogers conducted his therapy sessions by using words to reflect back what the patient was saying regarding their concerns and problems. He made sure they could clearly see for themselves the issues instead of his responding by giving them advice. His belief was that when people clearly saw the nature of their problem for themselves they would figure out the best way to deal with it. That created an empathetic bond between the patient and Dr. Rogers.  Alda suggests that when we talk to other people we should create empathy by  internally asking ourselves what the other person is feeling. We should then respond that feeling  back to them to ensure we understood, in the same way Rogers did. In doing so we create a bond between the speaker and the listener. Alda cites psychiatrist Helen Reese who trains doctors to be more empathetic, She suggested that we could increase our empathy by mentally labeling the emotions of others – “when you’re with someone, try labeling – is Jack upset? Is Jane excited?  It’ll change how you hear what they’re saying.” Even mentally noting the color of hair or eyes or other features of the other person increases an unspoken bond of empathy according to research.

Techniques for effective communication

I have discussed NLP technique of mirroring as well as the importance of body language in communication. Alda writes about this in connection with the  Merck Pharmaceutical company which was subject to sanctions of $900 million dollars in 2005 over their product Vioxx. It was discovered the drug was associated with strokes and heart attacks. However, millions of prescriptions were written even after it was shown the drug was unsafe. In fact, the company created a training program for selling the product in spite of the harmful impact of the drug. Alda recounts that the company told their 3000 salespeople that they were prohibited from discussing  studies which showed increased risk. They were trained in body language to create empathy with the doctor.  Representatives were taught how long to shake a physician’s hand, how to use verbal and nonverbal cues when addressing the physician to subconsciously raise their level of trust and nonverbal techniques involving mirroring. In notes for the leaders of the course mirroring was explained this way: “mirroring is the matching a pattern; verbal and nonverbal, with the intention of helping you enter the customer’s world. It’s positioning yourself to match the person talking. It subconsciously raise his or her level of trust by building a bridge of similarity.” While this is a shameful example of the misuse of communication techniques, it illustrates that good communication skills can be learned.

The point of Emphasis 

I’ve written about how the first 30 seconds of a beginning, whether in jury selection, opening statement or other parts of the trial,  are the most significant because people are fully attentive at that time. In a different context, Alda writes that readers assume what comes at the end of a sentence has special importance. This is called the “stress position” or a place of emphasis. He uses this example: Suppose you were to tell a friend a joke: “a priest, a rabbi and a minister walk into a bar, and the bartender says, what is this a joke?” But what if you told it this way: “a bartender says: what is this a joke? Because a priest, rabbi and a minister have just walked into his bar.” When we write or create exhibits or examine witnesses or argue to juries, let’s keep this principle in mind.


I won’t recount Alda’s considerable Emphasis placed on the significance of story telling. We all understand how deeply embedded storytelling is in all of us.

We decide subconsciously and explain the reason rationally

I’ve written before about the research that clearly demonstrates most of our decisions and thinking occurs at a subconscious level without our even knowing it. I’ve previously cited research which shows that in spite of this fact people will always offer a rational excuse or reason for the decision which was actually made without their conscious awareness.The book cites the studies done on people who had the two hemispheres of their brain severed in an experiment to prevent seizures. Once that was done the two halves operated independently and neither knew the reason behind decisions or conclusions reached by the other half even though a joint decision or conclusion was reached. The book cites thousands of experiments done in this regard where each hemisphere was asked about a choice or an object’s function. The two halves independently  reached a single conclusion. Then they were asked the reason for the conclusion. In every case the person would come up with a plausible explanation even though one side  of the brain had no clue as to why the other side made the choice. People would guess, prevaricate, rationalize and look for a reason and would always come up with an answer that fit the circumstances. The same thing occurs when we asked the jurors why they reached the decision they did. In almost every case the decision was based upon subconscious impressions, evaluations and existing beliefs. The rational brain had little or no role at all and no awareness of it happening,  but people will inevitably cite rational reasons they believe but which in fact are not the actual reason or reasons.

Speak plainly. Avoid Jargon

I have often discussed the common mistake trial lawyers make using acronyms and jargon. They adopt them because they have become familiar to the lawyer or because they think everybody knows the meaning or they want to demonstrate how smart they are. But, jargon and acronyms are confusing and should not be used in our communication. Alda cites the phrase “martini shot” as an example, which is used in movie making. He explains that this refers to the last filming shot of the day, because  after which everyone goes home and has a martini. Jargon can be a foreign language. By using shorthand that is incomprehensible to the other person or referring to a process that are unfamiliar with, we lock them out and we don’t even realize it because we can’t believe we are the only person who understands the jargon. Speak plain, simple and understandable words if you want to be understood.

Posted in COMMUNICATION | Leave a comment


For some years I  collected and saved in a notebook ideas I heard or read about relating to  communication and advocacy. Here are   two of the items I saved  and which you may find  of interest.

In the 1970’s actor James  Garner was featured in a TV series The Rockford Files.  In an interview  he related how  the English actor Charles Laughton had said to him:  “Jim, your problem is that you’re afraid to be bad.” Garner said  “He was right – I was so worried that the audience wouldn’t like me  that I was bland and innocuous.  Laughton told me, ‘Don’t worry about the audience. Just go out there and take the risk of being bad! I suppose that applies to life – you have to take the risk. You may fail,  but at least you’ve given it your best shot.” It seems to me that lawyers can have the same problem.  They are too nervous about failing and worried about how  they look instead of being open and real. That makes  them guarded  rather than open  and authentic. If you’re not willing to take the risk  of revealing who you really are in an honest way  to the jury, you will never  have  the relationship of trust and credibility that’s essential to successful trial. If you aren’t willing to risk possible failure or looking foolish by trying new ideas or presenting yourself honestly to the jury you will never be a great trial lawyer.

The American Research Group, Inc. once  published “Ten Rules for More Effective Advertising.”  I saved it because I realized almost  every one of them directly applied to trying cases. That’s because the publication dealt with selling and we are in the profession of selling our client’s case to the jury.  Here are the rules which I’d like you to  think about as  rules for effective communication.

  • Does the ad tell a simple story, not just convey information? A good story has a beginning or a sympathetic character who encounters a complicating situation,  a middle where the character confronts and attempts to resolve the situation, and an end where the outcome is revealed. A good story does not interpret or explain the action in the story for the audience.  Instead a good story allows each member of the audience to interpret the story as he or she understands the action.  This is why people find good stories so appealing and why they find advertising that simply conveys information so boring.
  • Does the ad make the desired call to action a part of the story? The whole point of the story, in advertising, is to effectively deliver the desired call to action.  If the audience does not clearly understand the desired call to action after seeing the ad, then there is no point in running the ad. (Note: You need to make clear what you want the jury to do and that is especially true of the verdict amount you want)
  • Does the ad use basic emotional appeals? Experiences that trigger our emotions are saved and consolidated in lasting memory because the emotions generated by the experiences signal our brains that the experiences are important to remember. There are eight basic universal emotions – joy, surprise, anticipation, acceptance, fear, anger,  sadness, and disgust. Use one or more of these in your appeals.
  • Does the ad use easy arguments? Easy arguments are the conclusions people reach using inferences without a careful review of the information. Ads should make arguments that are simple and easily understood. (Note: Think of Donald Trump’s solution to the complex immigration issue: “Build a wall.”)
  • Does the ad show, and not tell? “Seeing is believing” and “actions speak louder than words” are two common sayings  which reflect  human bias and preference. You should assume audiences are skeptical about any advertising  that tells but does not show. (Note: I was always impressed when teaching at the Spence Trial College that when someone was trying to explain an idea Gerry would say “Show me. Don’t tell me” because he said that’s the best way to communicate.)
  • Does the ad use symbolic language  and images that relate to the senses? Life is experienced through the senses and using symbolic language and images that express what people feel, see, hear, smell or taste are easier for people to understand, even when used to describe abstract concepts. (Note:  People have different preferences for communication. Most are visual people, some are auditory and some through feeling. Appeal to all of these senses in trial)
  • Does the ad match what viewers see with what they hear? People expect audio and visual messages to be coordinated in order to understand them. Audio and visual messages that are out of sync may get attention but they make audiences uncomfortable. (Note: Be sure the exhibits and non verbal communications in trial are always congruent with the words or ideas being expressed.  For example, a witnesses words must be totally congruent with their body language in order to be believed.)
  • Does the ad stay with a scene long enough for impact? People have limited mental processing capacities. It takes people between eight and ten seconds to process and produce a lasting emotional response to a scene.  Quick cuts two different scenes require people to devote more of their limited resources to following  and list resources to processing the scene. (Note: This is why repetition of important points and exposure to important exhibits is critical in trial.)
  • Does the ad  let powerful video speak for itself? The processing capacity of our brains is limited and words may get in the way of emotionally powerful visual images. When powerful visual  images dominate – when “a picture is worth 1000 words” – let the image do the talking. (Note: For the same reason illustrative slides should have limited words)
  • Does the ad use identifiable music? Making  music  and identifiable aspect of advertising signals the audience to pay attention for more important content. (Note: Think of anchoring in this regard. Music in ads  are a form of anchoring sound to an idea,  product or image. Use anchoring in trial by connection a theme, an admission or an event to the outcome you want)
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It is not very often in our normal practice we are called upon to perpetuate the testimony of a client who will likely not survive to trial. In cases of mesothelioma it tragically is the case, but on occasion in a normal tort practice it can be necessary. I advised a friend recently in a case where perpetuation was necessary and here’s what I advised.

The approach you use depends almost entirely on the circumstances involving the client and the general style  or approach of the lawyer.  I can only tell you what my approach was which may not fit everyone.

To start with, the video set up for the deposition is really important.  Start with decisions about the camera position and image of the client as well as the background being filmed. I want to avoid filming only a  head shot of the client. I want more of the person  and I want to make certain the background isn’t  distracting or just a flat colored screen either. I want to avoid a strange camera angle with client lying on their side in bed or similar unnatural view  which will be distracting. I do not want a distracting angle shot. If in bed, I’d try using an adjustable hospital bed to provide more of an upright angle. The frame of the client is of importance.

Second, I am concerned about the client’s appearance and clothing. I don’t want a tee shirt with some slogan or baseball cap turned backwards or a totally ungroomed person. My goal is not to project an almost dying person. My goal is to project a person who will make as favorable impression as  possible and that begins with dress and general grooming. That does not  mean a suit and tie, it simply means something that fits the client’s condition in a clean, presentable and natural way.

Third, I want to use exhibits, not a lot, but things like photos the client can talk about and interspersed through the deposition. I want the client in a relaxed mode while breaking up the testimony with exhibits as much as possible.

Fourth, I want to make sure the client is prepared. I don’t mean rehearsed and memorized, but  someone who knows  what to expect in the questioning. I want to prepare the client as much as possible as I would any other client for deposition. On the other hand, this kind of deposition is limited in scope and length with some sensitive questions. I sure don’t want some unexpected client answer  of a damaging nature to my questions. I want the client to know what we are going to cover and why as well as what I’m looking  for in the answers, but the client’s feelings about it.

Preparation includes demeanor. I want my client to be seen as a good person who is  prepared for what’s happening instead of someone looking for pity. It’s not the client I want telling about the difficulties of what they have and are going through in this kind  of deposition. Instead, I want  the other family members, doctors  and minister to do their complaining and tell the sympathetic stories, not the client. The client’s story is that of a brave person in the face of everything who still can smile and is only concerned about other people including their family. No bitterness, anger or resentment of any kind.

Fifth, I would determine if there is legally mandated testimony only the client can give as to subjects like liability, causation or identification of product. If so, I would cover it as briefly as possible to  make  sure it  is covered in the testimony, but only the bare legal necessity. That’s because my approach is to not do the standard exam where you ask: background of who are you,  family history, work history, past medical, bills, future medical and treatment with description. That’s  for other family members or doctors to cover. All I care about with the client about their attitude and feelings.  The client’s testimony is brief and is about the journey to where they are now from a personal perspective and  without appeals to sympathy.

What sort of questions would I ask? It depends upon the client and what they would say. o. I’d make it short and about the client and not an informational exam. Here are some sample questions I might consider for a perpetuation deposition:

  1. Wanda, how long have you been married?
  2. Tell us about your husband
  3. What  would you like us to know about  your children
  4. When did you find out about the cancer? Tell us about that
  5. Tell us about the treatment the doctors gave you
  6. When did you learn there was nothing more they could do?
  7. Tell us about that.  What were your feelings?
  8. Tell us how this affected your family
  9. What are you most thankful for?
  10. What’s the one  thing you regret the  most?
  11. What’s the  worst thing about this cancer disease for you?
  12. What’s been the hardest thing for you go through?
  13. What’s your biggest worry and concern about your family after you have gone?
  14. How would you like to be remembered?

There is not a lot I’ve found on the subject, but this is a rough idea of how one might deal with this situation if you ever have to.

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