LESSONS FOR TRIAL LAWYERS FROM THE PRESIDENTIAL DEBATE

There is a great deal which can and has been said about the presidential debate of September 29, 2020. For my political view of the debate see https://www.paulluverajournalonline.com/weblog/. However, there are also lessons for trial lawyers from the debate as well.

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For example, former VP Joe Biden exhibited verbal habits which are annoying. Some people have a habit of beginning an answer with “so…” Biden had a similar bad habit of repeatedly beginning sentences with the phrase “So, here’s the deal…” He also had a habit of framing his answers numerically as in “Number one” and “number two” etc. Trial lawyers should similarly be conscious of their speech habits which are annoying when repeatedly used. For example, some lawyers overuse “filler words.” These are words or phrases inserted between sentences that are unnecessary, annoying, and distracting. Instead of pausing between sentences meaningless words and phrases are inserted like “well” or “okay” or “you know” or “like” and “so.” Speech habits that should be changed also include phrases that the person repetitively uses in conversation like these “it is what it is” or “at the end of the day” and “am I right?”

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Another lesson from the debate involved the absence of silence. What was one of the primary facts that made the debate experience generally uncomfortable? It was the lack of any pauses in the talking. It was instead a continuous interrupting and without pauses, all done in a confrontational tone. The lack of pauses or silence made it uncomfortably stressful. We generally are uncomfortable with silence. When a pause occurs during a conversation, we generally want to fill the space. Law enforcement interrogators know this and practice asking a question or making a statement followed by silence. Interrogators know that people feel uncomfortable with the silence and want to fill up with talk. Silence can be a powerful communication technique. Pauses and silent moments in a speech, argument or conversation allow the listener to catch up mentally and adds emphasis to the speaker’s message. Both candidates in the debate were intent upon talking over the other person by talking louder and continuously over the other. The result was absence of communication and viewer irritation. Even though Trump was the instigator and a gross violator, both get tarred by the same brush in the eyes of the viewers. Think about that the next time you’re tempted to get into an interruption match with your opponent in court.

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Pretend for a moment that you were in the position of Joe Biden. Not as a political candidate but in a situation, you likely have been in during a motion argument or trial. Pretend the moderator is the judge who is ineffective in controlling the situation involving an obnoxious opponent like President Trump. Your opponent has the same intention of Trump which was to dominate, upset and throw the other person off track. For anyone who’s been in that situation you know that a response to fight back, interrupt the other person and become upset, always produces an angry judge and a jury who has a very bad impression of both counsels. Now, with the debate conduct of both candidates in mind, assume instead, your response had been to simply remain stoic face (no faces or shaking head) while quietly waiting with your hands grasped together waiting. Suppose you then waited until your interrupting opponent had finally stopped. Then you allow a pause of silence before speaking. If you then responded with a rational statement the impression you would make on judge and jury would be one of calm, confident leadership, not two lawyers fighting. Reacting that way emphasizes, through the patient waiting and pause, the bad conduct of your opponent. Gerry Spence once described that response to me as “watchful waiting.” By that he told me he  meant the projection of controlled power through patient and calm waiting. He explained that this conduct, when followed by a pause and an appropriate response, projected a person who was a calm leader in control. The frantic and excited attempt to respond by interruption projects just the opposite image. Joe Biden might well have followed Gerry’s advice.

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Another important nonverbal factor illustrated in the debate is the importance of tone of voice. This is particularly when we are in a situation like that at the debate involving accusation and interruption. When we are upset our voice normally reflects it. Power is implied by a calm voice in response. If our opponent is doing what Trump was doing at the debate, a controlled response in a calm tone of voice puts our opponent in an unfavorable light by comparison. Your tone of voice is just as important as the words you choose to use.

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Equally important to tone of voice is the speed with which we talk, particularly when we are in a challenging or upsetting situation. Timing is of extreme importance in creating an impression about us.

In a situation like that at the debate, where Trump is attacking with “machine gun” speed, the rate of our talk in response is important. Observe trial attorneys and others who are persuasive in their advocacy. It almost every case the timing of their speech has a great deal to do with the persuasion of their speech. Make a conscious effort to slow down, take a breath and concentrate in speaking out each word. Avoid the impression that you are in a hurry or a rush because that makes you sound nervous and unsure of yourself.

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Even more important than annoying habits of speech, is our body language. This is especially true when we have cameras focused on us as was the case in the debate. However, it is equally significant in the new world of Zoom and teleconferencing. The focusing of the camera by zeroing in on us in those situations fixes attention on how we look and act. We normally don’t think about how important body language is in a trial, but studies indicate that we are judged by the impression others have of us. In the debate the camera was fixed continuously both candidates. The nonverbal impression they communicated was as much due to their body language, conduct and manner of speech as the words they used.

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We know generally about nonverbal language in having an open stance, hands out of the pockets or not behind our backs and avoiding crossed arms. We are also generally aware that we should avoid awkward gestures, and annoying frequent body gestures or other body posture habits that we have. But reflect on the debate. What was the body posture, the facial expressions and where the eyes were looking when one candidate was speaking or attacking the other? During Trump’s prolonged interruptions attacking Biden, what was Biden’s body language? The answer to these questions is the unconscious impression that the viewer has of each of them. Generally, in a situation like this it is important to avoid facial and body posture demonstrating how you feel. Judges dislike it and jurors feel the same. Biden’s best reaction during a Trump rant would be to calmly look straight ahead, not at trump, with no expression of feeling, especially not anger.

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There is also the important question of what action should one take when involved in a situation like that at the debate? President Trump had an agenda of deliberately and continuously interrupting Biden. When the moderator offered no assistance and completely lost control of the situation, Biden responded defending himself and rejecting Trump’s claims as lies through mutual interruption. The result was a cacophony of words no one could understand. The obvious result was to upset viewers by the wasted time involved watching two national leaders acting like teenagers having an argument. The fact that Trump deliberately created situation and was a far greater offender than Biden doesn’t change the negative reaction to both of them. No matter who is at fault if you respond in kind you will be blamed too. This situation is one many of us have encountered in trial involving an unethical and obnoxious opponent. Sometimes it happens with a judge who is unable to maintain control and it is up to us to solve the problem on our own. Our response should have the mistakes made at the debate in mind.

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The first time Trump interrupted, which was almost immediately, was the moment to have taken appropriate action by Biden. Instead he decided to act with restraint and try to first endure Trump’s conduct. As a result, Trump was encouraged to keep it up. The time to confront unethical and obnoxious conduct by an opponent is when it first occurs. What responses might Biden have made? The first is what we previously talked about: body language, timing, tone of voice and choice of action. Biden, after waiting for Trump to wind down, might have ignored Trump and addressed the moderator, Wallace, instead. He could have pointed out calmly to Wallace that there had been a promise of both he and Trump to not interrupt the other. He might have asked Wallace to remind Trump of this fact. Or, he could have addressed Trump after a pause and with a calm level voice, reminding Trump he had agreed he would not interrupt, but it was obvious that his word was not reliable. He could have pointed out he already had broken the promise just like he had in other affairs as president. It doesn’t make any difference what the response of either the moderator or Trump might have been. What is important is that the breach of promise is exposed and highlighted. That would also allow Biden to continue to use a reminder mocking phrase for additional breaches throughout the rest of the debate. During the Reagan Mondale debate Reagan claimed Mondale was misstating facts early in the debate. Each time thereafter Mondale made a claimed false representation, Reagan would say “there you go again” which caused audience members to laugh when he did it. By the way, well phrased mocking of Trump conduct is also an effective way to combat it.

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Biden might also have responded to Trump’s interruptions by ignoring the claims Trump was making and focusing upon Trump’s violation of the agreement. He might have highlighted the apparent fear Trump had of what Biden was saying or made other telling comments about Trump’s conduct. Instead Biden chose to try to respond to the interruptions by contradicting Trump’s claims which was totally ineffective. That’s because the conflict between the two made it impossible to understand what the likely truth was. Biden would have been better off to have generally focused his responses on Trump’s conduct rather than Trump’s claims or ridiculed Trumps fear of a fair debate. A comparison between a calm leader like Biden to an excitable fast-talking person intent on interrupting the other speaker would have created a favorable impression for Biden and a negative one for Trump.

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These are only a few of the lessons to be learned from the debate. We should monitor commentary and discussions about it for more helpful lessons.

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SUGGESTIONS FOR IMPROVED TRIAL SKILLS

Here are a collection of ideas and thoughts from a variety of sources about being a trial lawyer. Perhaps some of these will help you in developing better trial skills.

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AUTHENTICITY

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1.Margery Williams “The Velveteen Rabbit

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Real is and how your made, said the skin horse. It’s a thing that happens to you. When a child loves you for a long, long time, not just to play with, but really loves you, then you become real.

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“Does it hurt?” Asked the rabbit. Sometimes, said the skin horse for he was always truthful. When you are real you don’t mind being hurt.

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Does it happen all at once, like being wound up or bit by bit?

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It doesn’t happen all at once said the skin horse you become. It takes a long time. That’s why it doesn’t happen often to people who break easily, or who have sharp edges, or who must be carefully kept. Generally, by the time you are real, most of your hair has been loved off, and your eyes dropout and you get loose in the joints and very shabby. But these things don’t matter at all, because once your real you can’t be ugly, except to people who don’t understand

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2..Shakespeare Hamlet:

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“This above all: to thine own self be true, And

it must follow, as the night the day, thou

canst not then be false to any many”

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3.Authenticity: talking and acting in a way that is consistent with core values and not pretending to be someone else. Uganda president Idi Amin: “Sometimes people make what I say for what I’m thinking.”  Therefore, honesty is always the best policy not only with others but with us.

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4.Great trial lawyers show calmness, clarity and focus.

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5.Leadership is based on character not style. Authentic leaders are real and genuine.

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6.Groucho Marx: “Sincerity is the key to success. Once you can fake that you’ve got it made. “Contrary to popular advice you can’t “fake it till you make it” by putting on a show. People sense quickly who is authentic and who is not.

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7.Authentic leaders are not perfect and when they make mistakes, they are willing to fully and completely admit their mistakes.

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DEMEANOR

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1.Your demeanor is important. Research has shown nonverbal communication is of extreme importance. People in jurors arrive at impressions and conclusions quickly on first encounter with someone else.

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AMY CUDDY

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1.This Harvard psychologist says people judge you based on two criteria when they first meet you:

(a) can I trust this person?

(b) can I respect this person?

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Psychologists refer to these dimensions as warmth and competence. However, from an evolutionary perspective it was more crucial to survival to know whether person could be trusted. When you consider that in caveman days it was more important to figure out if your fellow man was going to kill you than it was to know if he was competent enough to build a fire.

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2.Cuddy became famous in her field for a study about the effects of “power poses.” The study found that subjects who were directed to stand or sit in certain positions — legs astride, or feet up on a desk — reported stronger “feelings of power” after posing than they did before. Even more compelling than that, to many of her peers, was that the research measured actual physiological change as a result of the poses: The subjects’ testosterone levels went up, and their cortisol levels, which are associated with stress, went down.

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SPENCE TRIAL COLLEGE

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1.A basic premise taught is to find our authentic self and become authentic people. If we are to be trusted, we must be genuine people.

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3.Through techniques of psychodrama we reverse roles with judge’s jurors and witnesses to understand them.

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4.To obtain the trust of other people we must tell them the truth.

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5.You can’t change the judge, but you can change how you react and respond. Remember, you get back what you reflect to others. “The mirror is always working”

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6.Psychodrama is a journey of self-discovery. It can answer the important questions: What are the things I believe are the most important to me? What makes me happy? If you weren’t concerned about failing or if money was no object, how would you live your life differently? What frightens me? What concerns me? If I had the power to change the law, what would I do?

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7.Psychodrama teaches us that there is great power in vulnerability. 

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8.You have the case half won just by being real and open and honest. That can be hard to do because we are not trained that way in law school. It is a tool to help us discover the story of what happened. That’s what we are really doing in the courtroom. We are telling a story by using the witnesses and evidence. To do that well, we need the skills of advocacy.  

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TRIAL SKILLS

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1.For a trial lawyer, truthfulness, honesty and authenticity are the core value essentials to be a great trial lawyer.

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2.One of the essential skills needed is to be a great listener

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3.If you’re wrong admit it quickly and clearly

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4.An important and essential skill of a great trial lawyer is to remember to smile often.

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5.Always remember to use role reversal by seeing things from the other persons point of view

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6.Calmness and self-control are the mark of a great trial lawyer. Practice what Spence calls “watchful waiting” before responding or reacting.

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MAKE CLIENT PART OF TRIBE

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1.Conservative jurors will be reluctant to requests to help client. But if client is part of jury tribe and it is a story about  trust in the defendant with betrayal of that trust conservative jurors will respond. First, you have to make plaintiff part of the juror’s tribe by showing common interests and values.

EMPOWERING THE JURY

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1.It is important to always empower the jury to do what you are asking them to do. Communicate to them that they have the immense power to enforce clear rules in this case

TRANCE STATE

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1.John Appleman was a nationally known trial lawyer who published about communication. He advocated what he called “waking suggestions” which were
(1)Making suggestions for jury actions that were ones readily acceptable and were seen as fundamentally right and fair.
(2)The suggestions must be projected with as demeanor of absolute confidence that the jury will act on suggestion and
(3)They must be presented with the clear assurance the jury will be both proud and glad for doing it in the months and years ahead.

TELL A STORY ABOUT BETRAYAL, NOT A MISTAKE

1.We have a Biblical duty to forgive mistakes and to punish deliberate evil. The client’s story should be one of intentional betrayal of a duty owed. A story of betrayal calls for punishment. A story of accident, mistake and careless negligence calls for understanding and forgiveness. If your story is one of betrayal and ask for significant damages, the jury will be motivated to punish through damages. But, if you tell a story of mistake or negligence and ask for significant damages, the jury will see this as greedy.
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CLEAR COMMUNICATION IN A TIME OF PANDEMIC & POLITICS

Trial lawyers should always strive for clear and understandable communications when dealing with juries. However, we are now in a crisis involving politics and medical pandemic. During periods of crises like this, people are distracted by the fears and challenges created. They have trouble processing information. That is due to the large amount of communications they receive about these problems on a frequent basis. We trial lawyers should keep this in mind regarding our trial presentations. We need to be aware of people’s fears and concerns. People are being flooded with conflicting information about both the political situation as well as the pandemic. This causes an enhanced concern about the reliability of information they receive generally. The result is confusion and a mistrust of all information. That is why we need to avoid mixed messages, confusion or a mistrust of information being provided our jurors.

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That is why trial lawyers should concentrate on refining the message being delivered to jurors so that it is clear and understandable. Some of the basic policies trial lawyers should follow in their jury communications include these.

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Be Real & Be Truthful

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Your message as a trial lawyer rests upon the juror’s willingness to trust you. If you are not trustworthy your message is also not trustworthy as far as jurors are concerned. The first rule of being trustworthy is to always tell the truth. All people have inherent skill to figure out whether the person communicating with them is a genuine human being or someone is trying to spin a message like a salesperson. There is a great power in honesty and truthfulness. We show honesty when we demonstrate vulnerability by acknowledging our own feelings of inadequacies. When we do that we are seen as someone who can be trusted. If you want to be believed you must drop all pretense and concealment of things, we do not want others to see or know about us. Be transparent and be honest.

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Use Clear, Short and Understandable Language

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The goal of clear communication is to avoid misunderstanding from emotions that might be involved and misunderstanding through miscommunication. For the same reason, our communication should be not only clear but accurate so that we are perceived as a trustworthy person. When people are emotionally involved, they tend to be less able to grasp the meaning of the communication. Our words should be precise to avoid any mixed message. Remember, people do not trust what they do not understand. The clearer and more unambiguous you can be, the more likely it will be understood and accepted.

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Choose your Words Carefully

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Under stress, people tend to focus on details and each word in the communication instead of the overall context. You should choose your words carefully because each word has power. Before deciding how to frame the communication think about it from every angle of possible interpretation. The goal is to avoid misinterpretation. The arrangement of the communication and its framing should be accurate but not inflammatory or condescending. We know that people tend to subconsciously process statements that are positive and ignore the negative portion of a communication. For example, when President. Nixon famously proclaimed ”I am not a crook” linguistic experts recognized that it would be received at a subconscious level as

”I am a crook.” Therefore, frame information as “dos” and not “don’ts.” Frame your communications as positive statements.

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Be Redundant – Repeat & Repeat

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Trial lawyers often are unaware of what advertisers clearly understand and that is the need for repeating a message before it is embedded in the listeners long-term memory. Messages must be repeated and reinforced to be remembered or accepted. There is no fixed magic number that fits all situations as to the number of times to repeat a key message. The best-known rule is “the rule of seven.” This rule suggests that a consumer needs to hear an advertising message seven times before they will consider acting. What is established, however, is that a basic message should be repeated, and most experts suggest a minimum is three times. It is well known that combining exhibits or action with the message helps it to be remembered. Do not overlook the benefit of anchoring either. This well-established psychological principle is widely used in advertising  and involves connecting a message to an action or specific thing. Think of the famous experiments of Pavlov’s dogs. The combining of the ringing of the bell and feeding the dogs resulted in the dogs reacting in the same way when just the bell was rung, and no food was present. When we consciously state a message while adopting specific action or object and do it often enough in an identical way, the message automatically comes to mind even not spoke when the action or object is used in the same way.

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The Most Important Rule of Communication is Listening

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A great communicator is a great listener. It is essential that you let people know you are listening if you want them to listen to your message. Showing understanding and being empathetic is particularly to important to good communication during a crisis of like we are having now. Expressions acknowledging the challenges jurors are facing and exhibiting compassion for their discomfort increases the chance that your message will be heard and acted upon. Your goal is trustworthiness. Showing that your message is from a genuine, caring person is important in demonstrating trustworthiness. Remember to demonstrate unity or membership in the same “tribe” as the jurors by a message of” we” as a team working together. People are significantly more motivated when working in connections with others. Show that you are all on a journey together for a result will benefit them.

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The Message Should Involve the Big Picture

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Be sure your messages communicate a big picture analysis of the issues involved. Unnecessary details in your communications benefit the defendant by sowing uncertainty, confusion, and irrelevant issues. Your message should be one that is in context with the core issues and focuses on the bigger picture. The broader context also inspires action by raising the issues to one which can benefit the jurors, their families, or the community. A broad goal tends to unite a group. The goal should be inspirational because that reinforces motivation to act on it.

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Conclusion

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The need for clear communication exists in all our trials. These policies of good communication apply in ordinary times but are particularly significant now in times of crisis. The present media misrepresentations and lies plus the conflicts and disputes have created a unique situation of skepticism and mistrust. Complicating these times even more is the impact of the pandemic on how we try our cases to juries. These complications make good communication a complete necessity. We need to learn the best techniques.

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