In 2002 political advisers James Carville and Paul Begala published a book they entitled “Buck up, Suck up… And Come Back When You Foul Up.” Although dated in terms of its publication, most of the observations they make that relate to communication and persuasion are as relevant today as they were when they wrote it. While the book is intended as advice for politics and politicians, the fundamentals they discuss apply directly to trial work. Here are a few of their observations:
- The importance of determination and never quitting. Nobody thinks of himself or herself as a quitter. And yet, most people who fail, do so because they simply give in. They get tired, or they are worn down, or they lose whatever zeal that got them motivated in the 1st place. There’s a reason pit bulls are the best fighting dogs. They’re not the biggest or the strongest or the scariest. They’re the most tenacious. So be a pit bull, not a Chihuahua.
- Avoid the mistake of being an intellectual instead of a communicator with a message. One of the biggest problems smart politicians and business leaders have is that they tend to suffer from what the Rev. Jesse Jackson calls “the paralysis of analysis.” There so smart they can always see the other side; they can always analyze potential pitfalls and problems. (Lawyers do the same by a failure to focus on only key issues & ignore all other distractions)
- Focus on the big picture. Forget irrelevant details nobody cares about. The lion is fully capable of capturing, killing and eating a field mouse. But it turns out that the energy required to do so exceeds the caloric content of the mouse itself. So a lion that spread its day hunting and eating field mice would slowly starve to death.
- Be open, honest and genuine. A lack of openness breeds mistrust.
- A trial is a race for telling the truth. Inoculate the bad issues by being the first to disclose them. If there’s something bad to be said about you, say it yourself first.
- All trials should be stories. Facts tell, but stories sell. That’s why, from the Greek myths to the griots of Africa the history of humanity has been told in stories. If you are not communicating in stories you’re not communicating. You may be, presenting a series of facts, many of them perhaps important, but the chances of your audience remembering or being moved to do what you want are nil. A good story has a sympathetic protagonist and unsympathetic antagonists, a hero and a villain. It has conflict, which creates drama, then resolution.
- Be short and simple. Be brief. In the modern media age, brevity is more important than ever. Smart people think that sophistication and brevity are mutually exclusive. That’s one of the many reasons we hate smart people.
- The message and how we deliver it is of critical importance. We hear with our ears, but we listen with our minds.
- Always comply with the rule of three. Three may not be company, but it is a sound bite. For many of the same reasons that the mind retains information presented in contrasting pairs, we also tend to remember information presented in groups of three. Two’s a pair and four is a list. If you’ve got ten, they’d better be Commandments or we ain’t going to remember them.
- Always use drama. Surprise them. Memorable things (especially funny things) have an element of surprise; they’re not what we expect. For a variety of other reasons, it’s even better for that twist to be self-deprecating.
- Keep it simple, smarty.
- Self-deprecation works.
- The human mind is incapable of making decisions without an element of emotion. Be emotional.
- If you want them to remember it, make it unique. Offer a message that is unique.
- Repetition is the fundamental requirement for communicating your message. Repeat your message relentlessly. If the mantra of success in real estate is location, location, location, the mantra of communication is repetition, repetition, repetition. You know why politicians repeat the same best basic message thousands of times? Because it works.
- There are always more than one way of viewing something. Find out how to frame your case problems into the right theme, Turn weakness into strength. Most great politicians were able to turn their supposed weaknesses into strengths. Jefferson was such a poor speaker, and such a brilliant writer, that he refuse to stand and speak in defense of his draft of the Declaration of Independence, and his silence was more effective than any orators eloquence. Abraham Lincoln used his less than handsome appearance and is rough, back country upbringing to cultivate an image of simple decency and integrity.
I’ve long been a fan of David Ball’s advice about plaintiff trial concepts. His book David Ball on damages 3 is available from Trial Guides https://www.trialguides.com/ and should be in every plaintiff trial lawyers library. I recently reviewed personal notes I’d made of some of his ideas, which I’m sharing to encourage study of his publications and suggestions. These are just some random ideas from my notes of his writings.
- While physical pain is important, loss of mobility and loss of independence is a more significant factor for most jurors. To the extent the loss of mobility puts the person in danger from further injuries such as falling, the more important it is to jurors. Difficulty in protecting oneself and loss of mobility are more compelling than talking about pain.
- In cases it can be important to find out what a defendant did after the harm. For example, in auto collisions, it’s important to find out what the other driver did after it happened. Did the truck driver stay in his truck, talking on a cell phone to his boss while your client was injured and bleeding? A lack of care and concern on the part of the other party after negligently injuring someone can be significant.
- When proving the cost of future care, it’s important to not just make the assertion that the money is needed. It should be supported by reasons. For example, (1) what is the specific need? (2) how does it work to help them? (3) who will provide it? (4) why is it needed? (5) in what way will it help? and (6)what will happen if it’s not provided? The jurors need to know that this is their one opportunity to provide this assistance. The client can’t come back again for their help. The client shouldn’t have to gamble on whether or not these required things will be available when and if they are needed. The defendant should be required to pay for it.
- The defendant should not be allowed to claim the benefit of not having to pay for future care because the family can or will do so. It is fundamentally wrong to force the family to provide for the care caused by the negligent harm of the defendant and to give the defendant the benefit of the free care. In addition, obligating the family to provide the care impacts the relationship between them as caregiver and the patient. Furthermore, family care is not always safe nor of professional quality. The issue isn’t just paying money. It is ensuring quality care.
- David’s basic premise regarding the issue of damages is (1) to fix what can be fixed (2) to help what can be helped and (3) to make up by the verdict for what cannot be fixed or helped. This simple outline is a clear and understandable explanation of what the damage case is all about. In presenting our damage cases remember that what the jurors want to know is: “how bad is it? How long will it last? What does it prevent the person from doing?”
- David suggests that in presenting an opening statement, it is the lawyer’s role to be an advocate, but rather to explain and inform. He thinks the jurors want to hear what happened and not what the lawyer thinks about it. In almost every case “less” is really “more.” It should be short, clear and understandable. He recommends using the present tense whenever possible with short simple sentences. A rule of one fact per sentence is helpful. Paint a picture as the story is told with color, smell, sound and so on. The lawyer is a little like a video camera reporting what is there to be seen and heard, without conclusions. Always start by setting the scene and describing what the defendant did that led to the harm. Avoid irrelevant details.
- In presenting the case, it’s helpful if the first witness provides an overview along with introducing the harm. This person should have no stake in the outcome and is a strong witness for the plaintiff. Avoid the idea you are asking for sympathy. In conducting direct examination, try to tie the testimony to the next question such as “after the car crossed the center line what was the next thing that happened?” When presenting lay damage witnesses, avoid long narratives and instead present short mini stories.
These are a few examples, by my translation, of David Ball’s ideas on presenting our plaintiff cases. His writings are clear and understandable. His ideas are solid. I recommend your further study.
My friend, California trial lawyer Mark Swendsen, referred me to a TED talk by Russell Dean “Puppets and Perception” https://www.youtube.com/watch?v=X_Molj8L6n. Dean’s talk involved using a puppet to illustrate the subject of his talk.
He showed a diagram of the location of the Amygdala part of the brain at the bottom of the brain and the Limbic system. From an evolutionary standpoint it is the very primitive part of the brain, responsible for emotional responses such as fear, anger and lust. It operates “automatically” because it plays a big part in survival. Commonly called “the lizard brain” or “reptile brain,” it plays an essential part in our decision making. The Neocortex part of the brain evolved much later than the primitive brain. It is responsible for rational thought. These two areas play important roles in decisions.
The primitive brain always makes split second decisions whenever something involving it’s function is perceived by it. That’s because it may mean the difference between life and death. After analyzing whether it involves fight or flight and deciding, the rational brain kicks in with analysis. The survival brain always prevails over the rational brain and operates before the rational brain begins to function. The rational brain always produces a reasonable explanation for the decision even when it was already made by the primitive brain. The primitive brain is an emotional brain. In fact, it is virtually impossible to make any kind of decision without an emotional component that allows us to settle on a final decision.Once the primitive brain acts in the interest of avoiding harm, the rational brain takes over.
Advertisers and people in marketing have long known the power of the primitive brain in the decision-making process. Politicians are equally aware of this fact. Their appeal is to the primitive brain through issues involving sex, fear, anger, outrage, revenge and scapegoating. Once the primitive brain has been activated through these emotional appeals, the rational brain will utterly justify any decision already made as totally rational. Some have described this process as “hijacking” the rational mind. A more complete explanation of this subject can be found in Mark’s excellent book: Target the Unconscious! The Modern Psychology of Rhetoric for The Plaintiff’s Lawyer available at Amazon.
While most of us are aware of the role of the Reptile brain through Don Keenan and David Ball, we are not as aware of the use of these concepts by advertisers and politicians. We continue to see ourselves as totally rational people making objective decisions on any number of important subjects. We don’t always know we are being manipulated through our primitive brain instinctual reactions. The subject is important for us to understand in our plaintiff trial work as well. I recommend taking the time to more fully understand the process involved given it’s role in jury trials.