Plaintiff Trial Lawyer Tips

PRE TRIAL AND TRIAL CHECK LISTS

Paul Luvera — Sat, 31 Jul 2010 23:34:00 GMT

If you have followed this blog, you know that I am a believer in check lists. The medical profession has discovered that when doctors follow established and valid check lists they make a lot fewer errors. Pilots religiously follow precise check lists before they take off and lawyers should create as well as use check lists too. Here' a recent check list I created and which is a work in progress. My procedure is to create a check list and then as the work progresses I improve, revise or add to it. I don't want it too detailed or complicated because that will discourage me from using it. I do want the key steps however. This one relates to a personal injury case. Don't be hesitant in looking at other people's checks lists for ideas and to modify your own to fit your practice. Perhaps this will give you some ideas on how to create your own.

PRE-TRIAL

Experts

1. Economist
2. Cost of care
3. Animation
4. Posters/illustrations
5. Medical illustrations

Other

1. Focus - internet?
2. Time line/chronology
3. Review file contents
4. Pleadings & discovery
5. Prepare notebooks:
           (1) Cx
           (2) Resource
           (3) Witness
           (4) Jury
           (5) Trial

Discovery work

1. Depo summaries
2. Loaded into software

Medical - Damages

1. Day in life
2. Medical chronology

TRIAL PREPARATION

General

1. Theme
2. Fault list
3. Tech at trial
4. Trial schedule
5. Divide trial work
6. Shadow jurors?
7. David Ball

Trial

1. Jury Selection outline
2. One page summary
3. Written jury questions
4. Opening outline
5. Direct Outline
(1) exhibits
(2) depo excerpts

Witnesses

1. Lay witnesses
2. Liability
3. Damage
4. Witness schedule
5. Prepare
6. Notice of attendance
7. Subpoenas

Exhibits

1. Depo excerpts in trial software
2. Key documents same
3. Key photos
4. Posters
(1) Facts/dates
(2) Bills
5. Blow ups
6. PowerPoint
7. Time line
8. Medical chronology
9. Model
10. Animation
11. Day in life
12. Wage loss
13. Calendar for period
14. Medical bills
15. Photos
16. Injury list
17. Fault list
18. Xrays etc
19. Hospital & records

Pre-trial Legal

1. Notebook for judge
2. Motions in limine
3. Jury instructions
4. Trial brief
5. Evidence briefs
6. Exhibits in opening
7. Witness disclosure
8. Alternate juror
9. Exclusion of witnesses
10. Judge question list
11. Written jury questions

Other Trial Preparation

1. Trial materials

REPORT ABOUT THE SPENCE TRIAL COLLEGE

Paul Luvera — Tue, 27 Jul 2010 22:59:00 GMT

Well, I'm back from Wyoming and the Spence Trial College. There were fifty four students in attendance. This is a good class in that almost all of them have been to regional seminars and had a good idea what to expect, especially regarding psycho-drama. The previous graduates who were instructors were people I knew and have worked with. Dana Cole was there along with Nelson Tyrone, Joey Lowe, Brooks Cutter and others who were experienced teachers. On Monday Dana did an excellent demonstration of cross examination and we had work shops after that. The boss arrived Tuesday morning to give a demonstration of voir dire with work shops that date. Tuesday night I gave a talk on trial from advocacy to voir dire, opening, direct, cross and final argument. I had some excellent video clips of Gerry that I showed. The next morning Josh Karton conducted the communications discussion and as always was masterful. I never fail to learn from him and others at the college even though I'm supposed to be teaching. The rest of the week involved practicing the skills. so here a few notes about the week.

I always enjoy Josh Karton's teaching techniques. In trying to help a student give an opening statement with some drama and gestures, but a factual one Josh used his movie technique. He was trying to teach the student to give a factual opening and not include conclusions such as "the driver wasn't looking" or "the driver wasn't paying attention." Instead, to describe what the person did that would allow the jury to draw those conclusions. In addition, the description has to be in the present tense - as if it were happening now. It should also be in the first person - as if it were happening to the speaker. Here's how he had the student practice giving only a factual account:

Josh sat next to the student as if they were looking ahead at a movie screen. He told the student he was a blind grandfather who is at the movies with his grand son. The grandson's job is to describe to the grandfather what is happening in the movie as it happens. He can only tell him what is seen and heard in the movie, without adding conclusions of the grandson. Facts without conclusions. He cannot give his conclusion that someone is afraid but rather describe what he sees that indicate someone is afraid. He is not allowed to draw the conclusion a person is a police officer if it isn't in the movie. Instead, he has to describe the person wearing a uniform, with gun and badge. Further, the description has to flow like movie would play out on the screen. The result is that the student learned how to give a proper opening statement.

Another beneficial area involved role reversal techneques taught by the psychodrama instructor. It's such an important skill to learn in order to be a great tria lawyer. Re-creation skills are also taught and this too is a skill every trial lawyer should know as well as practice. Some of the techneques of neuro-linquistic programing are also helpful in regard to both of these and should also be familiar to lawyers. In the 1920's great lawyers like Earl Rogers were using rereation in the court room to win cases. These are not new, but they do require some practice to learn right.

That's a brief report of a couple things you might find of interest. Gerry is 81 years old and is still an impressive human being. I always enjoy my time talking to him. You should consider attending the next regional seminar. The next one in Washington will be at Leavenworth starting March 24th, 2011.

JURY SELECTION COMMENTS

Paul Luvera — Tue, 20 Jul 2010 13:22:00 GMT

I'm teaching this week at the Spence Trial College in Wyoming so I only have time for a brief thought. A trial lawyer friend had a bad result and we had an email discussion about why his focus study was inconnsistent with the verdict. Here are my comments to him.

Focus studies are like computers - garbage in and you get garbage out. A true mock jury presentation is probably the most dangerous for getting wrong information because of the rule of impression. Unless you are doing a full David Ball multiple group at once, I have little confidence in a full mock jury study. In my view you are better of with an internet study for rough evaluations or a study where less is more i.e. key issue information without details and simple verdict forms before discussion plus a lot of other factors too involved for an email.

When I say jurors decide based upon unconscious factors do I mean the outcome of the trial is predestined? Well yes, in the sense the values the arrive with, the significant life experiences they arrive with and the primal drive of survival will dictate how they feel on issues. If in conflict with your case issues you lose period, unless you can show your case issues are in fact consistent or at least not in conflict with those values, life experiences or survival drive. And, worse then that, it is likely they will not share these with you truthfully. sometimes because they don't know what makes them think as they do. Sometimes because they have an axe to grind. Sometimes because they want to be on the jury or simply because they are reluctant to say it in front of others. The truth is that once you have picked your jury, your case is with some rare exception already over as to what they will do. You can revise the numbers perhaps, but your are unlikely to change who wins. And that's before they hear the evidence. Reptile is too over promoted as some kind of key where all you have to do is utter some words and you win.

How do you pick a jury? Well, my view is that first of all the objective is not to convince people your case should prevail. Nor to educate or influence them. The goal is get them talking and hopefully among themselves so you can listen to ascertain values, discover life experiences and find the evil bastards that you must get rid of, but hopefully bond the rest while establishing your credibility as being non judgmental and dedicated to your client. That's part of my talk to the students at the Spence College next week, but it's not original with me. Rather a refinement of Spence ideas, Ball concepts and experience. The real problem is the judges don't believe in voir dire and think their job is to be time efficient. As a result they take all the time they want with silly an inept questions and give the lawyers inadequate time for this key part of the trial. Result, we are likely to make mistakes in our jury selection because we didn't have enough time to do it right.

THE ATTITUDE OF A TRIAL LAWYER , CALLING THE DEFENDANT IN YOUR CASE & NEUROSCIENCE

Paul Luvera — Sat, 17 Jul 2010 17:02:00 GMT

I'm leaving for the Spence Trial College on Sunday for my week of teaching there, so I have only time for a short post. Let me share a couple of recent E-mails to fellow plaintiff trial lawyers on several different subjects. The first one deals with my view about a failure many plaintiff lawyers have - the desire to be liked by everyone and the fear of being disliked. So, here's my take for your consideration: 　

"The goal of great trial lawyers should be that you want to be feared and respected for your skills and determination to do the best possible job for your clients. It should never be that you want to be loved by anyone except your clients. Fear of alienating judges or the desire to be liked by defense counsel are in direct opposition to our duty to our clients. We should not go out of our way to be disliked, but what is required is the courage to be truthful about all things of significance and to put our clients interest's first even when it offends the judge or our opponents or even our fellow trial lawyers."

The second subject deals with whether you call the defendant in your case in chief and if so when? Many very successful plaintiff lawyers make it a practice in malpractice cases to call the defendant early in their case and lock up their story. They feel that by doing so, they prevent the defendant from revising testimony and creating defenses as the plaintiff's case unfolds. They also feel that the defendant is rarely prepared for this happening and they get more favorable testimony. I don't disagree, but I think it requires a lot of skill to successfully do that right or you have the defendant so confined by discovery, you feel safe doing it. I also feel that the trial judge can complicate your case by allowing the defendant to go beyond your direct and testify fully in defense of their case. Here was my reaction to the lawyer who told me he had called the defendant doctor on the second day of trial.

"As to calling the defendant as a witness, I am always in awe of lawyers with the courage to do that. I know any number of great plaintiff lawyers who make it a practice to call the defendant doctor in their case early on. My fear always is that the doctor will win the battle of first impression early in my case. It's a fault of mine I ponder over in every case."

I also had an e-mail exchange regarding the validity of focus studies. An outstanding plaintiff's lawyer had received favorable results from his focus study, but a verdict for less then the offer. Here are some thoughts I had about how things have changed from the time we were doing tranditional focus studies in our cases:

"It's an interesting subject. To give an idea of how far the study of human decision making has moved forward since the days of telephone and group surveying, marketing people are now using neuroscience. They no longer try to analyze the intellectual answers they get from focus studies and surveying. As you and I know, the estimates range that from from 85% to 95% of all human decisions and opinion formation is done at an unconscious level with the conscious mind offering a rational reason for them, but without realizing how the decision was really made. Because people can't rationally access the way in which this happens, researchers are now using fMRI, to study the brain process while presenting information to groups of people. Science has mapped the brain and can see exactly what is happening irrespective of what the people say through functional magnetic resonance imaging. As one example of this process, the front appearance of the Mini Cooper automobile was designed by fMRI with the intention of creating a car that would specifically appeal to women.

I think we need to re-examine how we conduct focus studies with the knowledge that the verbal responses are intellectual and do not necessarily, or perhaps not very often, accurately reflect what really was the reason. My approach, in part, involves reducting the information provided to key issues and revising the process of discussing it."

Anyway, those are some rambling thoughts for now. I'm looking forward to my week of teaching and interacting with the students at the College as well as seeing my old friend Gerry.

A few weeks ago I gave a talk to the Wyoming Trial lawyers on this subject and next week I'll be at the Spence Trial College in WY where part of my talk deals with the need to modify our trial presentations

OUTLINE OF NOTES ON CREDIBILITY

Paul Luvera — Sat, 10 Jul 2010 17:29:00 GMT

A few years ago I represented the children of a deceased father. His wife had been dead for several years before he died. A lawsuit was filed by a woman acquaintance against his estate. She claimed she was entitled to a large share of his estate on the basis of multiple claims including a promise to leave her money and other similar claims. She lost and eventually was required to pay my clients costs and attorney fees. I had a collection of notes on the issue of credibility from which I would select what I thought appropriate or use as a visual reminder of ideas. Perhaps something her will be helpful. Here it is in rough draft form:

CREDIBILITY

A. ARGUMENT

Concept: In this case, a man’s girl friend asks us to ignore his valid will leaving his estate to his only children because she wants it all for herself, but if she can’t have all of it, she will take $1.5 million, but if she can’t have $1.5 million she will settle for $1 million.

Phrases:

she asks us to ignore undisputed facts and common sense
The quest for money darkens the sense of right & wrong
Greed for money is infectious
Greed is the master of gain with deceit. It’s tools are dishonesty and lies
Facts do not cease to exist because they are ignored
You can’t have it both ways
The blurring of facts and fantasy
Facts which can only be ignored by putting both fingers in one’s ears and humming loudly
Their spin on the facts is like trying to drive a car by looking in the rear view mirror
They use the tax returns like an accounting slight of hand

B. Phrases

    1. "oh what a tangled web we weave when first we practice to deceive"
    2. A chain is only as strong as it weakest link
    3. Actions speak louder then words

C. QUOTATIONS

    1.  Their claims amount to nothing more then a collection of dubious facts, half truths and no truths - what ordinary people call lies
    2. Let not the facts get in the way of a perfectly good theory
    3. Difficult evidence to ignore, unless your 11^th commandment is ignore the facts
    4. A magnetic compass should always point north and a moral compass should always point to the truth
    5. When you pull back the curtain what you find are fundamental flaws in their claims
    6. It’s like a david copperfield magic act - all smoke and mirrors
    7.  Rbuaiyat of omar khayyam: "the moving finger writes and having writ moves on; nor all they piety nor wit shall lure it back to cancel half a line; nor all thy tears wash out a word of it"

IDEAS FROM THE WYOMING TRIAL LAWYERS CONVENTION

Paul Luvera — Tue, 06 Jul 2010 20:29:00 GMT

The Wyoming Trial Lawyers’ Association held their annual meeting in Jackson in June of this year. I was privileged to be invited to speak. The convention materials were very informative. Here are a couple of excerpts from two of the convention papers.

David Bossart Fargo, North Dakota provided a paper entitled Law, Lawyers & Listening, What do they have in Common. He quotes from the book Listen Up by Larry Barker, Ph.D. and Kittie Watson, Ph.D., St. Martin’s Press, New York, 2000 their list of the top ten irritating listening habits:

Interrupting the speaker.

Not looking at the speaker

Rushing the speaker and making them feel that that they are wasting the listener’s time
Showing interest in something other than the conversation
Getting ahead of the speaker and finishing their thoughts
Not responding to the speaker’s requests
Saying "Yes, but…,"as if the listener has made up his mind
Topping the speaker’s story with "That reminds me of …,"or "That’s nothing, let me tell you

Frank Costilla Brownsville, Texas paper was entitled Techniques & Approaches to Motivation. He pointed out that some of the defendant’s own corporate language can be of great help to the plaintiff. It may create an image of a big corporation or one that dominates the market or professes safety as an important thing for it. Here are some of his examples:

"most powerful"

"leader in the industry"
"On time, every time"
"safest company in the world"
"largest in the country/world"
greatest resources available"
"greatest knowledge about..."
"best position to research and develop..."
"professes to be 100% safety conscious"
"zero tolerance"
"puts safety first"
"unequaled expertise"
He does a good job of providing a summary of David Ball’s basic rules of conduct. These are helpful rules because it is very difficult to deny they make sense:
- "The greater the danger, the higher the level of care required"
- "Safety is the number one priority"
- "Nothing is more important than safety"
- "A doctor is never allowed to unnecessarily endanger a patient"
- "When there are two ways of doing the same thing, a doctor is obligated to do it the safest way"
There is in psychology a concept of the "halo effect" when another person is seen as having qualities because of the words or actions of another. In trial, lawyers should always demonstrate respect, consideration and concern for their clients both verbally and non verbally. Descriptions of characteristics that conservatives identify with include some of these:
- "Personally responsible in life"
- "Self reliant"
- "Hard working"
- "Independent""Fighter"
- 'Morally upstanding"
- "Positive and hopeful not defeated and dejected"
- "Good person, good father, good son, good sibling"
I was impressed with the quality of speakers and the written materials at this convention.

THE "THIS IS THE FIRST TIME IT HAS HAPPENED" DEFENSE

Paul Luvera — Mon, 28 Jun 2010 20:46:00 GMT

I subscribe to a little meditation pamphlet that has daily readings with Scripture quotes. This reading struck me as having application to the situation where the defendant argues they have had no previous problems. It could be a defective product where they claim no previous injuries or a street intersection or any other situation where the defense says how could it be negligence or all that bad because we haven't had this happen before. Here's the story in the pamphlet:

"A man was filling out a job application when he came to the question: "Have you ever been arrested.?" he wrote "No." The next question was intended for people who had answered "yes" to the previous question. it was "Why?" The applicant answered the question anyway with "I just never got caught."

That struck me as exactly the situation in these case were the defense is claim this is the first problem they had with the product or other situation. It's not profound, but I thought it was a clever answer to the defense.

WHAT THEY DON’T TEACH YOU IN LAW SCHOOL ABOUT TRIAL

Paul Luvera — Sat, 26 Jun 2010 15:29:00 GMT

We are taught a lot of subjects in law school. There are even classes on the trial of lawsuits. But there are some very fundamental rules everyone must learn if they are going to be successful trial lawyers.

RULE NO 1: TO BE A GREAT TRIAL LAWYER REQUIRES HARD WORK, DETERMINATION AND COURAGE

If you want to be a truly great trial lawyer you must be willing to: (1) sacrifice for the good of other people (2) be determined in the pursuit of justice for your clients (3) to put clients before your ego, vanity or greed and (4) to serve others with courage, skill and total honesty. Being a great trial lawyer means hard work, determination and courage in your calling

RULE NO 2: ADOPT THE "RULES OF THE GAME" AS A TRIAL LAWYER

If you want be a great lawyer learn the fundamental rules as developed by great trial lawyers. There are many, but some of the more important include these: (1) Develop mental toughness. Persist in spite of fear, trial problems and unpleasant surprises. Never give up. A trial is a series of battles and one lost battle does not mean the loss of the case (2) Know your opponent’s case through hard work and techniques of psycho drama (3) find the right theme, develop a strategy & stick to them (4) always tell the truth about you, your client and the case and (5) Give it your very best at all times, but if you lose, learn all the lessons you can from it and put it behind you.

RULE NO 3: OPENING STATEMENT IS A STORY NOT A FACT OUTLINE

When making the opening statement, tell it as an interesting story, not as a series of detailed facts in outline form. Jurors want to make sense out of the conflict. They do so by stories in their own mind and will fill in facts to make sense as they interpret them. Give them your client’s story in a compelling manner. Be general in your description. Jurors find irrelevant details boring unless they go to the heart of the issue. Decide from whose standpoint you intend to tell this story, the plaintiff, the defendant or as if a third party looking on. Tell it in the first person as if it were happening now whenever appropriate. Start your story with the defendant rather then starting with the plaintiff because jurors begin to mentally question facts as they are related to them.

RULE NO. 4: IF YOU WANT TO WIN, YOU MUST TELL THE TRUTH

The inflexible uniform rule of every great trial lawyer is that you must at all times tell the truth, the whole truth and nothing but the truth if you want to win. The late Melvin Belli used to say that a trial was a "race for the truth" and advocate the importance of being the first one to tell the jury all of the facts bad as well as good. Gerry Spence has made the important point that to win cases the jury must trust us. In order to trust us we must first be trustworthy. To be trustworthy requires total honesty. Outstanding advocates know the power of the truth and the credibility one gains by being honest about all of the facts of your case, the good and the ugly. Be honest and truthful with the jury.

RULE NO. 5: THE MOST IMPORTANT THING YOU CAN DO ON DIRECT OR CROSS EXAMINATION IS TO LISTEN

Don’t strive to be the best note taker in the court room. Listen intently to what the witness is saying. Stop and think about it’s impact or importance before moving ahead to your next planned question. Be a listener, not a note taker. In conducting direct examination, remember Rudyard Kipling’s words:

"I kept six honest serving men

(they taught me all I knew)

Their names are what and why and when

and how and where and who"

Remember that both direct and cross examination is nothing more then re-telling your client’s story again and again.

RULE NO. 6 IF YOU WANT TO WIN YOU HAD BETTER KNOW HOW NORMAL PEOPLE THINK

Lawyers generally are out of touch with the value systems and attitudes of ordinary people, like those who serve on juries. Ordinary people have a general bias against those who bring lawsuits. They believe the advocates for tort reform. They want to do the right thing as jurors, but they don’t reason to their verdicts the way most lawyers think they do. We need to learn what motivates normal people on a jury. We need to address their demands for honesty and candor from trial lawyers. We need to know and learn how to deal with the value systems and motivations of jurors if we want to win.

RULE NO. 7 ALWAYS KEEP IT SHORT AND SIMPLE

Lawyers are boring people. They talk to too much. They use big words and they are not clear about what they are trying to communicate. Learn to use short sentence & simple words. Use the "telegram" technique. Learn to communicate the point in a short telegram like way. Your messages must be simple, direct and understandable the first time you say it. Remember to only cover one point at a time in direct or cross examination as well as in your communications generally

RULE NO. 8 REMEMBER, IT’S YOUR CLIENT WHO COUNTS AND NOT YOU

You will always be right if you put your client’s interest’s first, before yours. Before your concern over a fee, your concern about looking good or your concern about what makes you happy. A trial is not your show, your time to look good. It’s your client’s only opportunity to have justice. Always put your client’s interest first when making decisions about their case. Love your clients, even if they are unlovable. Learn to see with their eyes, understand how they feel, and put yourself in their place. You are their representative, their spokesperson and their guardian. You owe a fiduciary duty to them in every sense of the word.

RULE NO. 9 IN SUMMATION, IT IS MORE IMPORTANT TO SPEAK FROM THE HEART THEN THE HEAD

Passion is the essence of good argument. Not emotional dramatics but genuine sincerity without pretense. Knowing that you say what you mean and mean what you say carries conviction with jurors. Jurors collectively recognize acting or pretense. They are more persuaded by the non verbal communication then the verbal. Who you really are and what you really believe is communicated to them clearly as a group. Be yourself. Expose who you really are and what you stand for without trying to make an impression. Remember, everyone on the jury wants to do the right thing. They want to achieve something they will be proud of doing. They believe justice should be done and will try hard to achieve justice. It is the role of the advocate to show them why finding in your client’s favor is the right thing to do in this particular case and will be something they can be proud about later.

RULE NO. 10 BE PROUD TO BE A TRIAL LAWYER

You have been given a great privilege and burden of being responsible for what is the most important thing in someone else’s life. They have trusted their legal well being to you and are relying upon you to not let them down. Be proud to be a trial lawyer on the side of those who have been injured or wrong. To be the protection for those who need protection. To be the spokesperson for those who need someone to speak for them. Be proud of being a warrior for those who need your skill, determination and dedication to their cause.

ORDERS IN LIMINE REGARDING PREJUDICIAL ISSUES

Paul Luvera — Thu, 17 Jun 2010 20:12:00 GMT

A very good trial lawyer recently asked other plaintiff lawyers about an issue that I think is worth talking about. His client was on a motorcycle and the defendant admitted liability His inquiry was about asking for a pre tial order that would say "the defendants and their counsel are ordered not to testify, present evidence, argue, or imply that plaintiff has any fault in this matter, or that plaintiffs’ damages should be less because plaintiff was injured while on a motorcycle" This is a good question worth discussing.

My view point about the order regarding the motorcycle was this. Whether spoken or unspoken there are those who will feel motorcycles are dangerous. Telling them they aren't or ordering them to not believe that is a total waste of time. Therefore, I believe you have to explore this in voir dire including (1) life experiences involving motorcycles that the juror has an attitude about (2) good and bad experiences with motorcycles etc.

While you can ask and may obtain an in limine order the issue doesn't go away and you still have to deal with the issue, so the question is how do you, on the one hand, get an order prohibiting defendant from suggesting directly or indirectly it is negligent to drive a motorcycle and, on the other hand, talk about it in voir dire? If you are going to apply for some kind order pre trial, and I'm not sure I would, I recommend you don't ask for an limine order that defense counsel is prohibited etc. rather, I would ask instead that the court give a preliminary instruction to the jury before lawyer voir dire "that plaintiff does not have any fault in this matter, or that plaintiffs’ damages should be less because plaintiff was injured while on a motorcycle." (your language)

To put it another way, you can instruct people to ignore their bias, their life experiences and their values, but it is a waste of time. Instead you need to have an open discussion about these issues and either reframe your case so it is different then what they are biased about or get rid of them.

Another possible way of dealing with the reality of motorcycle bias is a preliminary written question - very simple and brief, but I suggest you have to deal with it. Like a bad smell in the room, you can't ignore it in my view. Instead you need to talk openly about it. But, every lawyer has a different way of dealing with issues.

Whether I am right or not, finding the right response is worth thinking about.

CONSISTENT RULES OF HUMAN NATURE

Paul Luvera — Thu, 17 Jun 2010 19:56:00 GMT

My law partner Joel Cunningham and I recently spent the day conducting focus studies of two cases we are involved in. In addition to the helpful information we received, I was once again struck by how consistent certain principles are regarding human behavior. Over all of my years as a trial lawyer and in conducting numerous focus studies, well-known principles are continually verified. Here are the most fundamental principles we saw people demonstrate during our focus study.

1. Once people take a public position on an issue, they are unlikely to change it no matter what additional facts are presented.

2. People with personal experiences are likely to have fixed opinions based upon their interpretation of their own personal experience and which they apply to a similar situation

3. People look for rules to guide them. They like to have standards, policies and rules that they feel apply to the situation andwhich will have a big impact on their conclusions

4. People take a "CSI" TV approach to the facts by looking for clues and searching details for a guide to a solution.

Regarding the first point, we have repeatedly found in focus studies that where we began with the basic facts and then add more and more increasingly strong evidence, if a person has already expressed an opinion on the issue, it makes no difference what additional information you give them. They will retain their position and simply rationalize why the additional evidence is not material. Even where we tell a person that in fact the defendant has admitted that they were negligent, if the person has previously expressed the opinion defendant wasn't negligent, they will simply say the defendant should never have admitted negligence because they were really not negligent.

Over and over we have found that when somebody forms a strong opinion or impression about something based upon what has personally happen to them they apply the same opinion to a similar situation even when not really the same. Life experiences are tremendously powerful.

Usually the first thing people ask us to focus studies are what the rules are then applied to the situation. By saying that, they do not necessarily mean the law. They are interested in accepted procedures policies and customs that apply to the situation. Therefore rules are of extreme importance as we all know.

Sometimes we forget how human nature works and wrongly assume we can rationally convince people to think in ways that are contrary to human nature. It is good to remind ourselves of this truth.

THE CLASSIC BOOK: INFLUENCE BY ROBERT CIALDINI

Paul Luvera — Fri, 11 Jun 2010 22:39:00 GMT

More than thirty years ago a friend of mine iintroduced me to the book Influence by Robert B. Cialdini Ph.D. (1984). This book has become a classic for those in the field of sales and anyone else dealing with people generally. I have recommended it as required reading for trial lawyers for years. This is not a complex book. There are only six basic principles which Cialdini lists as basic social and psychological principles that form the foundation for persuasion.

The most basic and probably the most important rule is that reciprocity. Cialdini says that this is an extremely powerful rule. Essentially the principle is that when someone does something for you, you feel obligated to do something for them. The other day I received an envelope in the mail which had a dollar bill in it. Of course it was a solicitation to do something. But the principle was that of reciprocity.. I was supposed to feel obligated as result of the gift. When a charity sends you return address labels or you have received some similar "gift" from somene who wants something from you, the rule of reciprocity is being applied. The rule applies even to uninvited gifts It is powerful. It creates an uncomfortable feeling of indebtedness. Even a small favor can produce a willingness to return a much larger favor.What has that to do with trial? Well, the reason lawyers are taught at the Spence Trial College that they should first share something about themselves with the jury before asking the jury to share something with them is because of the rule of reciprocity.

Another principle is that of consistency andt is directly tied to the principle of commitment. People have a need to be and look consistent in their words attitudes and actions. That means that when they make a commitment, especially in public,, they feel obligated to stay with it. S, in voir dire one can apply this rule in a number of ways. If, for example, you are emphasizing the importance of something a commitment out loud by nature will motivate the juror to remain firm to the commitment. In creating a foundation for an excuse for costs, getting the juror to firmly commit to a position which is grounds for a challenge means that even when questioned by the judge the juror is more likely retain the commit position.

A third principle is that of liking. People are far more likely to say yes to an individual they know and like. Liking someone involves a number of factors. One of these is that of common interests and beliefs. Another is physical attractiveness. For trial lawyers, a juror who believes the lawyer is likable, is more likely to agree with them. To the extent you can demonstrate these factors the more likely it is the jurors will follow your advice.

Another principle is that of authority. People tend to feel any pressure for compliance when requested by an authority figure. People who appear to possess levels of knowledge, wisdom, or power often are seen as authority figures. This of course has significant importance when it comes to expert witnesses and other authority figures like law enforcement officers, physicians etc. Think about this principle and the jury instructions. The judge honestly represents someone in a position of authority. Using the judge’s instructions therefor is a good idea for trial lawyers.

Another principle is that of scarcity. People assign more value to something which is what will be scarce. That’s why sales people and advertisements talk about a "limited number." People respond to the loss of freedom by wanting to have more freedom. That includes the ability to have goods or services. Your case should be presented as a unique opportunity for the jury to do something which will not only benefit themselves what the community. It should be seen as a rare chance to become involved in a direct way in improving something that will benefit them. That’s the principle of scarcity.

For a good summary of the book see http://www.rickross.com/reference/brainwashing/brainwashing20.html . I suggest everyone involved in persuasion you read and study the principles in this book.

TWO GUN CROWLEY AND BERNIE MADOFF - TAKING PERSONAL RESPONSIBLITY

Paul Luvera — Wed, 09 Jun 2010 18:08:00 GMT

When I was two years old, Dale Carnegie published his book How to Win Friends and Influence People. It has remained a classic on human nature and is still popular today. One of his chapters dealt with the fact that people never blame themselves even when they are clearly wrong. One of his examples involved "Two Gun Crowley" a killer who was finally trapped by the police in his girl friend’s apartment in 1931. Surrounded by police Crowley carried on a gun battle with police until captured. New York’s police commissioner said he was one of the most dangerous criminals in the history of New York who would kill "at the drop of a feather."

Carnegie points out, however, that while Crowley was trapped in the apartment he wrote a "to whom it may concern" letter which said in part: "Under my coat is a weary heart, but a kind one - one that would do nobody any harm." A short time before this, Crowley had shot a policeman to death when he asked him for his driver’s license. When Crowley was sent to Sing Sing to be executed, he said "This is what I get for defending myself." The point of the story is that "Two Gun Crowley" didn’t blame himself for anything.

Carnegie accurately reported on human nature. As a witness to that we have the recent report about Bernie Madoff who is serving his 150 year prison sentence after his conviction for a decades long Ponzi scheme which defrauded people out of some 19 Billion dollars.

According to an article by Steve Fishman in New York Magazine Madoff told fellow inmates that he had been put in a trap by people who "just kept throwing money at me." He said he took money from people who were rich and greedy but wanted more. He went on to say that he had "carried his employees for years and felt they had turned their back on him" by their cooperation with legal authorities. Madoff was quoted as saying: "F- - - my victims. I carried them for twenty years and now I’m doing 150 years."

Like "Two Gun Crowley" Madoff confirms Carnegie’s universal rule that people don’t take personal responsibility, no matter how bad their conduct. They don’t blame themselves. They find excuses and blame others. That’s human nature. I recommend Carnegie's classic to every trial lawyer as the source of fundamental characteristics of human nature. I have read it many times and still go back to remind myself about the basics of how human beings think and act. It is a very helpful source for us in dealing with clients, judges and others. As old as it is, it is still the Bible of human conduct for me, because human nature doesn't change.

WORLD WAR II BOMBS AND PRODUCT DEFECTS

Paul Luvera — Thu, 03 Jun 2010 13:47:00 GMT

The news reports that three men, who were experts at defusing bombs, were killed while trying to defuse World War II bomb discovered during a construction project. The explosion happened in Goettingen, Germany Wednesday. The explosion happened about 45 minutes before the men planned to take the final step. They had delayed doing it to allow a passenger train to go past and just moments before it did, the bomb went off. The team had been working on explosive removal for years and were highly experienced in defusing unexploded bombs from World War II. More then 2,000 tons of American and British bombs as well as German grenades and Russian artillery shells are unearthed in Germany each year. The great majority are defused safely. It seems to me there are some lessons to learn from this tragic news story in our trial work.

Doesn't it seem to you that this is analogous to the situation involving a hidden defect in a product or a building or environment? I mean, you can have weeks, months and years go by without the defect causing harm or damage and then, suddenly, without warning it "goes off." Like a ticking time bomb, the defect is there, waiting for the victim. The question is not whether it will cause injury or harm, rather who the victim will be. That bomb was in the earth for over 65 years without causing damage, injury or death, but it was only a question of time until it did.

Then there is the perspective from the standpoint of those unfortunate men trying to defuse the bomb. In a tort case, the tort feasor would probably claim the three men were negligent themselves or had assumed the danger. As dangerous as their job was, they had successfully done it numerous times. There was a standard procedure they had to follow to defuse the bomb safely. One wonders is the interruption and unusual delay of their standard procedure in order to allow the train to go by was a contributing factor. A physician can perform a procedure that has a high degree of risk, but when they deviate from the step by step safe procedure disaster can occur.

I make it a practice to save news items like this one that I think I can use in my trial advocacy. I started out putting them in notebooks with dividers as to topics, but with computers, scanning and indexing makes it easier. Anyway, its worth thinking about.

PUTTING REAL WORLD VALUES ON HUMAN BEINGS

Paul Luvera — Wed, 02 Jun 2010 17:02:00 GMT

Mark Rothko was a famous American painter. In 2007, one of his paintings, painted by him in 1950, was sold at Sotheby's auction house for a record $73 million dollars. Previous sales of his paintings were in the millions as well. His paintings hang in museums all over the world. People placed a value in the millions on some canvas and paint in a frame. The total value of the materials was very likely a small sum, so why would the painting be worth millions in the real world of hard finance? These paintings were unique because the painter created each one individually so no one painting was like another. The quality of the work and the skill of the artist who created it determined the value of the paintings.

In March of 1990, a small painting by Mark Rothko was being transported in a special art moving van to an auction site. Also in the van was wood sculpture and assorted antique furniture. As the van was going down the Los Angeles freeway to the auction house, motorist saw smoke coming out of the rear of the thirty foot truck and signaled the driver to pull over. A fire had somehow started inside the van and the contents, including the multi million dollar Rothko painting was destroyed.

The trucking company was responsible for loss. The owners of the valuable art were owed the full value of their loss. They would not tolerate the carrier arguing that you can't put a value on a work of art or that no amount of money would replace it or that they should only pay half of the loss or pay it in installments over time. The carrier who caused the loss was responsible for full accountability. It had to pay the millions it owed for the damaged oil painting and the other objects of art.

Human beings are no less unique and, in fact, far more unique as well as more valuable then a painting on canvas, so why is there so much argument about paying what's owed when a human being is damaged or destroyed? We have any number of examples from the hard, material world where values are placed on what would otherwise be considered an intangible value. It is only when it comes to people that there arguments about not paying what is owed.

MORE SAFETY POINTS & STATISTICAL CROSS EXAMINATION

Paul Luvera — Sun, 30 May 2010 22:40:00 GMT

Here a few more points to add to my last post on the general subject of safety. These came from a case where the surgeon encountered a problem using a product during surgery. The manufacturer had specific safety instructions about this problem. The surgeon decided not to follow the manufacturer’s safety instructions and decided to go ahead with the surgery anyway resulting in serious harm to the patient: So these are a few of the safety points I had in my cross examination materials:

what could be more fundamental then the need to follow the manufacturer’s safety instructions for use of the product?
If you don’t follow the recipe you end up with a bad result
If you choose not to follow the manufacturer’s safety instructions about the product, you are putting the patient at risk of serious harm - which is exactly what happened here
If the written safety rules are ignored, it is always an invitation to disaster
When the doctor is faced with a choice between safety and risk of harm to a patient, we trust our doctor to always chose safety

This particular case also involved statistical issues. Many cases have such an issue in them. It might be the predicted life expectancy of the plaintiff or the odds of a particular harm occurring in the future from the injury or even an issue of causation. The subject is complex, but here are just a few generalities to consider when cross examining an epidemiologist or statistician. There is a lot of professional literature as well as legal literature about this subject for you to review.

statistical relationships may hold true as a matter of averages, but do not control a particular case. For example, tall people tend to weigh more then short people, but that is not always true.
Life insurance mortality tables are used to predict life expectancy, yet they are at best only gross averages where someone might live considerably longer then the prediction or less then the prediction.
It is possible to draw false conclusions from research studies. An example, is a study where people were given drinks of whisky & water, others were given drinks of rum and water and still others drinks of vodka and water. All of the people ended up intoxicated. The conclusion was that the common factor was water and therefore water causes people to become intoxicated!
There are numerous things can influence the conclusion drawn from studies. For example,
- How variable the data relied upon? (Exact comparisons are impossible - age, pre existing health and many other factors inhibit the ability to be certain)
- how accurate an answer do you want?
- how large the sample size used "sample size"
- date extraction bias involving clinical interpretation of the result or interpretation of the data i.e. natural human bias.
We have all seen many examples of studies over the years which end up being in conflict with each other over issues of medical health. One study says some food or drink is harmful to health only to be followed by a later study reaching exactly the opposite conclusion
In 1985 the New England Journal of Medicine published two studies, in the same year, on issue of cardiovascular disease in women that arrived at two totally conflicting conclusions
We've seem influence of the drug industry on research studies which they pay for and involve their product, but which later turn out to have been biased or incorrect
Yet these questionable research studies have been published in reputable journals by qualified medical people
Statisticians use studies like these to arrive at conclusions which are only generalities and do not involve a research study done on this particular patient

CROSS EXAMINATION ABOUT SAFETY

Paul Luvera — Sat, 22 May 2010 13:45:00 GMT

We;ve been in Europe and in fact we leave tomorrow, so I've been behind in posting to this site. Here's a simple outline intended for cross examination about safety. This is from one of my past cases ihvolving an injury at a refinjery.

WARNING-SAFETY CROSS EXAMINATION GENERAL OUTLINE

ELIMINATING OR MINIMIZING RISK OF SERIOUS INJURY OR DEATH

1. TRUE THAT TEXACO SHOULD HOLD PARAMOUNT THE SAFETY AND HEALTH OF IT’S WORKERS?

2. AGREE WITH THE PROPOSITION THAT:

ANY RISK OF SERIOUS BODILY INJURY OR DEATH IS ALWAYS UNACCEPTABLE IF REASONABLE MEANS COULD HAVE BEEN USEDTO MINIMIZE OR ELIMINATE THE DANGER?

3. AGREE THAT "IT'S BETTER TO BE SAFE THEN SORRY?"

4. AGREE ONE SHOULD FIRST INSPECT FOR DANGEROUS CONDITIONS?

5. IF A DANGER IS DISCOVERED ONE SHOULD ELIMINATE THE HAZARD IF REASONABLY POSSIBLE?

6. IF YOU CAN’T ELIMINATE THE DANGER OR PROTECT AGAINST IT, THEN ONE MUST GIVE WARNINGS OF THE DANGER SO PEOPLE WILL KNOW?

    (1) AGREE THAT "APPEARANCES ARE OFTEN DECEIVING" AND WORKERS MIGHT NOT RECOGNIZE A DANGER UNLESS WARNED ABOUT IT?

    (2) AN INADEQUATE WARNING IS NO WARNING AT ALL?

7. TRUE THAT THE GREATER THE RISK OF INJURY THE GREATER THE DUTY TO ACT?

B. SAFETY HAZARDS TO WORKERS

1. IT WOULD HAVE COST FAR LESS TO ELIMINATE HAZARDS OR INSTALL SAFETY DEVICES THEN TO PAY THE COST FOR SERIOUS INJURY

2. LIFE IS TOO PRECIOUS TO EVER RISK IT WHEN THE HAZARD CAN BE AVOIDED?

3. COST EFFECTIVE SAFETY MEASURES- COST OF INJURY vs COST OF

C. PROTECTION

(1) IN AMERICA, WE CARE ABOUT OTHERS

(2) IN AMERICA, WE DON'T WANT PEOPLE TO GET HURT

C. ANALYZING WHAT IS REASONABLE IN ACCIDENT PREVENTION

1. IN DECIDING WHAT'S REASONABLE IN ACCIDENT PREVENTION, WOULD EVALUATING THE RISK OF INJURY BE IMPORTANT?

(1) THE RISK OR CHANCE OF IT HAPPENING SHOULD BE CONSIDERED?

2. THE SERIOUSNESS OF THE HAZARD OR DANGER IS ALSO SOMETHING TO BE CONSIDERED?

(1) A HAZARD THAT COULD RESULT IN DEATH IS MORE SERIOUS THEN ONE THAT MIGHT MAKE A SMALL BRUISE?

3. THE COMPARISON OF BOTH OF THESE RISK & SERIOUSNESS OF HARM SHOULD BE MADE IN DECIDING WHAT IS REASONABLE BY WAY OF ACCIDENT PREVENTION?

4. DO YOU AGREE THAT WHEN IT COMES TO PREVENTING SERIOUS INJURY OR DEATH FROM PREVENTABLE ACCIDENTS, TEXACO SHOULD PRACTICE THE POLICY:

"AN OUNCE OF PREVENTION IS WORTH A POUND OF CURE"

E. EVALUATING THE COST AND EFFORT INVOLVED TO ELIMINATE OR MINIMIZE THE HAZARD

1. AGREE THAT IN EVALUATING WHAT WAS REASONABLE TO HAVE ELIMINATED, PREVENTED OR MINIMIZED THE CHANCE OF THIS DEATH WE SHOULD CONSIDER:

(1) IS THE PROPOSED ACCIDENT PREVENTION ACTION POSSIBLE TO DO?

(a) WAS IT POSSIBLE TO DO?

(2) IS IT A KNOWN AND ACCEPTED ACCIDENT PREVENTION METHOD? - USED BY OTHERS?

(a) THIS IS A KNOWN AND ACCEPTED PRACTICE?

(3) WHAT WOULD IT COST?

a) NORMALLY A LOT LESS EXPENSIVE TO PREVENT ACCIDENTS THEN THE SUFFER INJURY OR DEATH?

(4) HOW MUCH TIME DOES IT TAKE?

(5) HOW DIFFICULT IS IT TO DO? - WHAT EFFORT IS REQUIRED?

(6) IS A SUBSTANTIAL PERSONAL DANGER OR SACRIFICE IN CARRYING OUT THE SAFETY MEASURE?

F. TOOK SAFETY FOR GRANTED

1. ISN'T IT TRUE THAT WORKERS HAVE THE RIGHT TO ASSUME THEY KNOW THEIR JOB AND WILL IT RIGHT?

2. RESPONSIBILITY: IF YOU HAVE CONTROL OVER THE WORK SITE

THEN YOU ARE RESPONSIBLE FOR THE SAFETY OF WORKERS ON THAT SITE?

3. ACCOUNTABILITY: IF YOU FAIL TO FULFILL YOUR DUTY OF SAFETY THEN YOU ARE ACCOUNTABLE?

4. NOT ACCEPTABLE FOR TEXACO TO FAIL IN IT’S DUTY TO PROVIDE A SAFE WORK SITE AND BLAME SOMEONE ELSE?

5. IF A DRIVER’S AIR BAG FAILS TO WORK, THE MANUFACTURER SHOULDN’T BE ALLOWED TO SAY: "BUT IF HAD DRIVEN SAFELY YOU WOULD WOULDN’T NEED AN AIR BAG"

F. WORKERS HAVE RIGHT TO ASSUME OWNER WILL KEEP WORK SITE EN SAFE

1. HAVE RIGHT TO ASSUME WILL ADOPT POLICIES AND PROCEDURES TO ELIMINATE POTENTIAL HAZARDS OF SERIOUS INJURY?

3. WORKERS HAVE RIGHT TO EXPECT THAT IF A POTENTIAL HAZARD OF SERIOUS HARM EXISTS ON TEXACO’S PROPERTY TEXACO WILL TAKE SAFETY ACTION

(1) WHEN YOU FLY ON A COMMERCIAL AIRPLANE YOU DO NOT

HAVE TO CHECK THE TIRES, THE GAUGES OR ASK ABOUT

THE TRAINING OF THE PILOT.

ATTACKING THE EXPERT FOR BIAS

Paul Luvera — Tue, 04 May 2010 20:19:00 GMT

I feel that the collateral information about an expert which indicates bias is more important in cross examination then the issue involved. If you can show a lack of credibility then the opinions of the expert have little weight with the jury. Here's a simple check list of reminders to ask at the time of the deposition for you to consider

ADVERTISING FOR WORK

How became involved in this case
Does advertising for work
Belongs to expert witness group
Any past connection defense firm
Any past connection defendants

EXPERIENCE AS EXPERT

How long acted as expert
Experience - frequency:

               a. cases reviewed
               b. reports written
              c. depositions given
              d. times testified

what states testified in
What percentages for plaintiff vs defendant

FEES CHARGED

For review
For deposition
For testimony

INCOME FROM EXPERT WORK

Highest fee ever earned in one case?

Income last year from expert work

Average annual income from expert work

TORT REFORM ACTIVITY

What political activity
Letters or emails to paper, media or legislators
Contributions made
Literature in his office about it

WITNESS CONSULTANT

Any consultations with non lawyer re being witness
Videos watched or information given

KNOWLEDGE ABOUT LOCAL MEDICAL STANDARDS

DEFINITIONS USED IN ARRIVING AT OPINIONS

What is your definition of these terms as it applies to your opinions here:

Medical negligence
Malpractice
Medical standard of care
Reasonable medical certainty

SOME MORE COMMUNICATION RULES TO CONSIDER

Paul Luvera — Sun, 02 May 2010 20:31:00 GMT

Here are some more very basic concepts about good communication. There is nothing profound here, but thoughts that we need to remind ourselves about as it is easy to fall back into "lawyer" thinking and talking.

ANSWER THE QUESTIONS THE JURORS ARE ASKING THEMSELVES

Think like a juror. What is it the person in the jury box really wants to know? They want to know the answer to some of these questions they are asking themselves

What happened?
What does the plaintiff say
What’s the defense?
What does the plaintiff want?
Who is paying?
What’s the money for?
What will the money be for?

As the trial progresses, the jurors will have questions. While they will have questions for witnesses they can submit to the judge, they also have questions about issues in the case. Try to put yourself in their shoes and provide information they would probably want to know.

USE A THEME THAT FITS YOUR CASE

A theme as used in a lawsuit is not finding some catchy phrase about your case. Themes are not really words at all. Instead, a theme is the underlying and compelling issue that drives your case in the minds of the jury. The words you use should describe that issue, unifying image, idea or concept which the jurors will accept and use to remind themselves what the story is all about.

For example, here are some themes which capture the underlying compelling issue in the case:Tobacco: "legal product, illegally sold

Many warnings, long ignored
Too busy, too big
Not what she has, but what she lost
It’s all about what they revealed & what they concealed

The jurors began to identify the underlying issue in their minds as the information is presented. It will depend upon their value system and their significant personal experiences, but experts are almost unanimous that listeners will determine what the theme is very quickly and very little will change it once done.

A theme is each juror’s private compass pointing to the direction. Juror’s deliberate in themes. We need to fix the jury’s attention on the idea, image or concept of what the real issues are and what the case is really all about, while they listen to the story unfold, because your case will always have a theme in the mind of each person whether you offer one or not.

DO YOU TELL THE JURY HOW MUCH YOU WANT AT THE START OF THE TRIAL OR WAIT FOR ARGUMENT?

Paul Luvera — Sun, 25 Apr 2010 20:00:00 GMT

Recently there was an email discussion among good plaintiff lawyer about whether you tell the jury how much you are asking in jury selection or wait until final argument. Some cited David Ball and said they tell the jury how much they are asking for and some said they are concerned about doing that. Here was my response.

It's an important question and there is no solid agreement in spite of Ball's suggestion. My approach is this. In a lot of cases there are question marks in your case both liability and damages with the result you don't know how the evidence will go in. If you give them the "A" case number and your case is a "C" you can be hurt as to your credibility. This is particularly true in a C case because the jury is continually monitoring your evidence to see if it is worth what you said. In those case I use generalities which address "subtantial damages." I ask what they consider an excessive verdict. I talk about money in such a way to make sure they are prepared and the bad jurors surface.I follow Ball's advice in opening regarding outlining economic loss and advising at end of trial I tell them how they can determine non economic.

In good liability cases with major damages I agree with Spence's approach to start out in jury selection with a number, but that may be something other then a specific number For example "if after you've heard all the evidence, listened to the law and are convinced in the jury room a reasonable and fair verdict is more then $18 million dollars would you sign the verdict?" For example "if after you've heard all the evidence, listened to the law and are convinced in the jury room a reasonable and fair verdict is more then $18 million dollars would you sign the verdict?" You'd be surprised how often jurors are excused for cause on such a question. Or in a rare case I might say "At the end of this case after you have heard all the evidence and the law, we will suggest to you a reasonable and fair verdict is $40 million dollars? If you ageed that that was a reasonable and fair verdict would you sign a vedict for tha amount?

I believe there is no one rule that ought to be followed in every case, but I also believe it is important enough an issue to require a lot of thought and focus study.

ALWAYS BE OPEN TO LEARNING SOMETHING BENEFICIAL

Paul Luvera — Sat, 24 Apr 2010 20:13:00 GMT

I've been involved in the Wyoming Spence Trial College from the day it first began because I believe in Gerry's concept about teaching lawyers how to be great trial lawyers. I read the publication Warrior each month looking for new ideas. This month the issue was devoted to criminal defense and capital defense work. I didn't think there would be much in that issue that would benefit me in my civil damage work, but I was wrong.

One example was Daniel R. Williams, a New York Public Defender, who completed the program in 1994. He wrote a masterful article about the teaching at the college. He noted that first time attendees are often surprised by the emphasis on finding the real person beneath all the masks we put on in our lives. I thought he was on the target when he identified some of the things that keep lawyers from being themselves. These included, he said:

The Cult of Professionalism which he identified as the myth that acting "professional" means an artificial exterior and failure to be able to identify with your client or others
The failure to tune into the feeling of other persons A guarded personality, in the name of professionalism, means you never really are able to know the other person or even know yourself.
The failure to understand the intellect is only a small part of "knowing" There is a need to dig into yourself. Find out your feelings and to give voice to them. To understand the importance of feelings and thoughts

As to jury selection he notes that it is a process of developing relationships and seeing the jury as team members with you as the leader. That requires building trust. and he notes you can't have trust unless you are genuine, authentic and transparent.

I particularly liked these thoughts: "When you are in touch with your own individuality, you cannot help but tell the truth. And when you tell the truth, others reciprocate. Sharing and truth telling become the basis for developing a relationship of trust."

Dr. Xavier Amador, who teaches at Columbia University had an article about dealing with mentally ill clients. I was particularly impressed with his description of "The LEAP Approach: Listen, emphasize, agree. Partner. "Partnering" involves finding those things you can agree about and identifying them.

It involves delaying giving your opinion for as long as you can. That is great advice for lawyers who always want to interrupt the client and just tell them what to do. You delay giving your opinion or answer by showing respect for the question asked or issue raised by promising to answer it, but indicating you want to listen more first. Example "I promise I will answer your question, but if it's okay with you I want to listen to you some more first - okay?"

It also involves using the "A-Tools" - apologize - when you finally do give your opinion or answer: "Before I tell you what I think about this, I want to apologize because it might feel hurtful or disappointing."

Also acknowledge fallibility: "I could be wrong. I don't know everything."

It uses agreement: "I hope that we can just agree to disagree. I respect your point of view and I hope you can respect mine."

Anyway, those are some of the examples of things I learned that I thought were worth remembering and using in my own civil damage practice.