This is a mixing bowl of unconnected ideas about our work. It’s a summary of some recent E-mail exchanges I’ve had with other plaintiff’s lawyers about different subjects under discussion and my general reading.
How do We Make Decisions?
I’ve written a lot about this subject but in Tuesday’s edition of the this week’s New York Times there was an article about how people make medical decisions regarding their health care. It was based, in part on medical journal articles and interviews with physicians. As I read it, there was an obvious connection to jury decision making. The article observed that in an ideal world, people would base medical decisions on an unbiased evaluation of available evidence. But people are often irrational and many, perhaps most, are driven more by emotion than facts.
This is a very signifcant observation for trial lawyers who have been taught to think people make decisions in a logical and rational manner. The entire jury system is based upon that idea, but there is no question this is not how decisions are made. If science has so very clearly established that decisions are made largely at a subconscious level and always involve a large component of emotion, why would trial lawyers insist on trying cases as if that weren’t the scientific fact? Why wouldn’t they adjust their presentation of the case to be consistent with how decsions are really made?
Dr Lisa Rosenbaum in the New England Journal of Medicine was quoted as saying “we don’t process negative events, only positive ones. People interpret information according to their preconceived notions. Their sense of risk is often determined less by facts than by their feelings and emotions.”
Note the first sentance in the paragraph above about how our subconscious processes negative statements. Research has demonstrated that our subconscious does not register negative statements, only positive ones. Therefore, a political ad which says “Don’t vote for John Smith” registers in our subconscious as “VOTE for John Smith.” I’ve written about the NLP idea of embedded commands that employ this fact: http://plaintifftriallawyertips.com/vulnerability-is-power-brene-brown
Dr Lisa Rosenbaum MD is quoted as saying: “People interpret information according to their preconceived notions. Their sense of risk is often determined less by facts than by their feelings and emotions.” This is consistent with the most fundamental of all principles about the reality of a trial as expressed previously: A trial is a battle of impression and not logic.
I’ve written also about the research that shows people make their decisions at a subconscious level based primarily on their value system and past significant experiences. The article deals with this when they quote Dan Kahan who heads Cultural Cognition Project at Yale University and who says people pick and choose evidence that reinforces their sense of who they are and they groups they belong to.
Once the subsconscious mind makes a decision it begins to filter all of the information which follows. It either rationalizies the evidence to fit the viewpoint adopted or simply ignores it and this is all done without a consious awarness it is going on. That’s why jurors always have a rational opinion for their decision, but have no way to accesss what really happenss in the subconscious. Talking to jurors about why they decided can provide helpful information, but they can’t tell you what the real process was because they don’t know.
How Much Should I Ask the Jury For?
That was the subject of a recent Email exchange and one that comes up in discussion with lawyers. While the lawyer was in trial this was the question that was asked. My response was this:
The fact is your case value depends primarily upon your mental attitude and the conviction you deeply feel about the fairness of the amount you intend to argue. That attitude is created by your evaluation of the case as it has been presented to the jury and by your impression of the jurors in the box. For example, Gerry Spence has argued $30 million dollars for the death of child, but other lawyers likely would have used a lower number because of their very different internal confidence level and personal evaluations.
I don’t think anyone other than you, as plaintiff’s attorney, can select the right number for you to argue with sincerity and with genuine passion. If you don’t believe fully and completely in what you are suggesting as a verdict in the case your chances of getting it are reduced dramatically. That, in turn, requires you to have a deep emotional knowledge of exactly what the injuries have meant to your client. You need to climb inside their skin and really experience what this has meant to them before you can translate it into a fair appraisal as a verdict.
I think the argument should be framed not as you would approach economic damage calculations, but rather as setting a value on impairment of human life. That is, not by math but rather as you would the value of a great painting.This Paul Cezanne painting “The card players” sold for $273 million dollars in 2011.
It’s not the value of the paint and canvas, which is easily replaced, that accounts for the value, but rather that it is something totally unique and irreplaceable.
There is only one human like this client that ever existed in the entire of the world, just as there is one of you that is totally unique. There will never be another human like this one. We look at the value of the loss of something uniquely precious to make our evaluation. It can’t be done by taking the minimum wage and multiplying it over life expectancy. Like the painting there is a loss of a valuable possession of good health that is unique to the child and the family.
The first Rule of Being a Great Plaintiff’s Attorney
I’ve written a lot about being an authentic person. I believe the first and most fundamental rule of advocacy greatness is to be real. If you want to be a great trial lawyer you first must learn to be a real person. My most recent post about this is: http://plaintifftriallawyertips.com/wp-admin/post.php?post=1457&action=edit What does being real mean? Well, it starts with stop hiding behind masks we have created to conceal who we think you really are. We see ourselves as a fraud, a small child hiding deep within who we pretend to be and that guarding totally cuts us off from genuine relationships. It is in our connecting with the jury that we gain trust and credibility. We can’t have a genuine connection unless we are ourselves genuine people.
In a recent post (http://www.keenantrialblog.com/) by my friend Don Keenan he makes this point and quotes lyrics from a Tim McGraw song “Overrated.” I think it is on target for illustrating this point:
Cause we can’t let ’em see the broken part
Water down the wine and jump the shark
We build our castles tall
Just so we can have the higher walls
It don’t matter where you came from
Or where it is you get your name from
We’re going down if we don’t change some.