I was reviewing a stack of material I had put aside to read when I had time and having done so, thought I’d share some of them,  even though they are not organized in any particular order. Here they are:

  • In order to motivate good eye contact, make a practice in talking with other people, to make a specific effort to note the color of their eyes. This enhances optimum eye contact.
  • We often forget the power of silence. As lawyers we have a tendency to be uncomfortable with pauses or silence and fill them with words.  However, when we are encouraging someone to share information with us,  silence can create pressure on the other person to fill the blank  and reveal more information. Use silence as a tool.
  • It’s an obvious, but often forgotten fact, that the the best way to learn something is to teach it. In order to teach it you have to learn it.
  • Alan Alda wrote a book If I understood you, would I have this look on my face? Some of the things he noted included:

(1)   In connection with a television program he hosted, he interviewed people             including scientists about their work. He decided to study the subject that he was going to be talking to the scientist about to prepare for the interview. However, he says he learned that that was a bad idea because “After a while, I saw that I was having trouble talking with them whenever I thought I knew more than I really did about their work. I was boxing in the scientist with questions that were based upon false assumptions. I took a bold step and stop reading the scientist’s research papers before I met with them. I would come in armed only with curiosity and my own natural ignorance.” Lawyers should learn that lesson with regard to both direct and cross examination of experts. While it is important to know the subject too many lawyers make the same mistake Alda did and the result is a boring and often ineffective examination

(2)  Experiments were done regarding people who had suffered a loss of connection between the right and left brain hemispheres either due to surgery or to trauma. The two half’s were operating independently and were unable to communicate with each other like a normal brain. What the scientists discovered, however, was that if the left hemisphere had no clue as to the answer to a question or information about a subject it would nevertheless guess, prevaricate, rationalize and look for a cause and effect. In every case it would come up with an answer that it thought satisfied the circumstances. Our thought process regarding decision-making  follows the same pattern. That is, even when the decision is made at a subconscious level and the rational mind does not realize why it was made, the rational mind will always come up with a reason. That’s why survey’s and even focus group studies  for reasons can be misleading.

(3)  Alda discovered that scientists and people in the scientific field make the same mistake many trial lawyers make.. That is they use shorthand, abbreviation or acronyms. They do it  either because they want to show off about how smart they are or they make the mistake of assuming that everybody understands the meaning.Too often lawyers who have spent a great deal of time learning a scientific subject follow the same pattern with the jury. The jurors, however don’t understand and become confused by this kind of shorthand communication. We need to always avoid this mistake in our communications.

  • Donald McRae wrote a book The great trials of Clarence Darrow.Some of the things noted in the book are worth our considering:

(1)  In the Los Angeles bribery trial against Darrow, he told the jury in final argument: “I am on trial because I have been a lover of the poor, a friend of the oppressed, because I’ve stood by labor all these years, and have brought down upon my head the wrath of the criminal interest in this country. Whether guilty or innocent of the crime charged in the indictment, that is the reason I am here. I have committed one crime, one crime which cannot be forgiven. I have stood for the week and the poor. I have stood for the men who toil… If you should convict me, there will be people to applaud the act. But, if in your judgment and your wisdom and your humanity you believe me innocent, and return a verdict of not guilty in this case, I know that from thousands and tens of thousands and yea, perhaps millions of the weak and the poor and helpless throughout the world will come give thanks to this jury for saving my liberty and my name.”

(2) In his plea to save the life of Leopold and Loeb his argument lasted over two days.It was almost 4 o’clock on the second day when Darrell reached his conclusion: ” I am pleading for the future, I am pleading for a time when hatred and cruelty will not control the hearts of men, when we can learn by reason and judgment and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.” They escaped the death penalty.

(3)  He notes that Darrow did not write out his actual argument to the jury, but he would work on individual passages around which he would create a pattern of words that often were to take two days to deliver and all without notes.

(4)  His opponent in the famous Scopes trial was William Jennings Bryan. Brian’s famous speech which he gave hundreds of times across the country, the “Cross of Gold” speech was on behalf of those opposed to making gold the standard rather than silver. It was chiefly responsible for his being nominated three times to run unsuccessfully for the US president. The memorable conclusion was delivered with a biblical crescendo: “We will answer demands for a gold standard by saying to them: you shall not press down upon the brow of labor this crown of thorns; you shall not crucify mankind upon a cross of gold.”

(5)  Darrow had a difficult  time starting his law practice. He had said in a speech: “for a while, I was practicing law and playing poker on the side and I almost starved. But then, I started playing poker and practicing law on the side and I made enough money to go to Chicago and open an office.”

(6)  Regarding jury demographics, Darrow was once asked about leaving Irish Catholics on the jury involving capital punishment. His response was: “I never met an Irish Catholic yet who didn’t think that someday he might be in trouble himself.”Darrow’s mantra was, once the jury had been selected, that: “the case is won or lost now. The rest is window dressing.”

I saved a memo from the Internet about advice to presidential candidates for their debates with their opponents.It seems to me that some of the advice was applicable to trial lawyers as well. Here are a few:

(1)  Develop a list of three things you MUST say in the debate. Use it as a checklist before each answer to see if you can fit it into your answer.

(2)  While punches are good, counter punches are always better. Study what your opponent has been saying and be prepared with counter punches.

(3)  Always begin your answers with “yes” or “no” whenever possible. Answer the question first and then explain. By doing that you will appear to be both responsive and candid.

(4)  Never nod your head when the other candidate says negative things about you.

(5)  When you talk about the other candidate, look at the audience or the camera, not at your opponent. In addition, occasionally gesture dismissively toward your opponent.

(6)  avoid any defensive posture. Do not cross your hands in front of your crotch or cross your arms over your chest or cross your arms behind your back or put your hands in your pockets. Keep your hands apart so that people see you have no need to protect anything about yourself and that you are totally open.

Since were dealing with communication and persuasion we need to look for accurate information that helps us do our job for our clients as well as possible for us.

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