Jim Perdue Sr is a Texas trial lawyer who has a fifty year history of great plaintiff trial work. We are friends through our membership in the Inner Circle of Advocates. He has published books, videos and articles about trial work and is a national lecturer on the subject. He is also  an adjunct professor at the University of Houston Law Center as a lecture on trial skills. I’d like to share some brief points about  communication from one  his books, Winning with Stories, available from Trial Guides publishers.

  • Be sure to make clear “burden of proof” actually means “more likely than not.”
  • Rules are what keep us safe. We have to know the rules in order to know what to expect  and if we don’t know what to expect we are fearful. Therefore, when rules are broken, we feel threatened. It’s in our own best interest to make sure that the rules are enforced so talk about rules to the jury. For example: (1) morphine is a powerful drug  (2) morphine should only be administered  in the recommended dosage  (3) only a medical doctor has the knowledge and experience to set the dosage amount and (4) the nurse administered morphine without the doctor’s approval & that violated a basic rule of safe medical care.
  • The outline for trial consists of  simplifying the facts, setting the scene, tying it together with the theme and presenting it as a story.
  • Understand the importance of framing. What we call something and how we describe it determines  our impression. “Clear cut logging” evokes a response in one’s mind that is different from “forest management practices,” but can be used to describe the same activity.
  • Our reptilian brain helps us to survive. When faced with the unknown it asks itself  “Can I eat it or can it eat me?  Should I fight or should I run?” This part of our primitive brain operates subconsciously and totally automatically. It sleeps until there is something that signals it to a wake up and be alert. When this part of our brain perceives that we or our family are threatened  it will automatically react.  That is why  self protection is such a powerful theme in our cases  when connected to a verdict for the plaintiff. If the primitive brain concludes a verdict for plaintiff  is a self  protection act the rational mind will decide a verdict for plaintiff  is appropriate.
  • Much has been written about “the cultural code.” What we are talking about is that  inherent in our  subconscious minds, as a result of our past significant experiences,  cultural impressions and observations,  are  “code words”  connected to  things in our culture that automatically attach as existing impressions. For example,  a doctor might evoke the code for “hero.” A hospital would  have a code  for “processing plant.”Understanding the codes in  your  case will identify existing  bias or impressions.
  • All trials  are morality plays  told as stories.  They all involve right and wrong.  Our stories are “good” when we tell  how it happened, “better” when we tell why it happened  but “best” when we tell how it felt.  Stories should begin with the antagonist –  the defendant. That’s because of risk attribution bias we all have. The idea that we would never have done  whatever it is that caused or was the result of some activity. We second guess and believe we would never have done that.  When we start with the antagonist jurors will go back and second-guess what the Defendant did.  That’s why we do not start our stories with the protagonist but with the defendant.
  • Remember the importance of motive. With regard to the plaintiff, the jurors want to know why the plaintiff brought the lawsuit and it cannot be just for money or only about this client. Jurors want to feel their jury time was important and made a difference. Their verdict must be seen as having meaning outside of the court room and far more important than just the individual plaintiff. They want to see the plaintiff’s  motive in filing suit as changing something for the better and making sure it doesn’t happen again.  Motive is also important with regard to the defendant. Showing that a doctor simply made a mistake is likely going to result in jurors following their human nature and forgiving the mistake. It’s the wrong motive behind the mistake  that causes jurors to impose punishment. Greed or indifference or other wrong reasons for the mistake require punishment.
  • Good trial lawyers know the importance of connection with the jury. The primary way we connect is with eye contact but body language is equally important.
  • In trial we have to demonstrate proper demeanor. Show concern for others. Avoid interrupting. Use simple, direct and concise language. Project belief and your clients cause. Show self-confidence and self assurance. Radiate energy and passion for your clients case. No matter what happens keep a positive outlook and keep smiling.
  • Always view the trial from the broad perspective of the big picture. Be a big picture lawyer.Refuse the defendants temptation to chase after frequent issues the defendant creates to distract. Keep your eye on the big picture.
  • Most important, all trials are stories that have a beginning middle and end.  Present your case as a story and not a checklist accounting of facts. To the extent you fail to tell a full story the jurors will create their own story to fill in the blanks. Your story is about an innocent person who suffered harm because of the bad motive of the defendant  who refuses to accept responsibility or provide  the remedy  for the harm created. The failure to hold the defendant accountable will mean that the jurors and their families are in danger. Rules have been broken which put all of us at risk  and they must be enforced through the verdict for the plaintiff. It’s the morally right thing to do and the jurors will have done something important that they will be proud of for the rest of their life.

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