The attitude of a trial lawyer , calling the defendant in your case&neuroscience

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 

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