COMMUNICATE LIKE EARNEST HEMMINGWAY

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Recently an outstanding plaintiff’s attorney shared the report of an obituary about a talented reporter and writer Pete Hamill.

https://www.nytimes.com/2020/08/05/nyregion/pete-hamill-dead.html The key to Hamill’s writing skill was noted in the obituary where it reported: “He idolized Hemingway.” Hemmingway’s writing style was brevity and simplicity with powerful words that dispensed with adjectives and got straight to the point.

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There is much lawyers can learn from Hemingway’s writing style. Lawyers are afflicted with the curse of lacking an awareness of the difference between the important and relevant from the unimportant and irrelevant. They either lack the skill to do so or are too lazy to make the effort.

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One of the most fundamental differences between journalism and other forms of writing is the way journalists obtain the information they write about. Journalists obtain information through a variety of reporting techniques, which can include interviewing sources, looking through government documents, researching old articles, and observing events firsthand.

Good news writing begins with good, accurate reporting. Journalists perform a public service for citizens by presenting truthful facts in honest, straight-forward articles. In a blog regarding news reporting, First News Education, https://schools.firstnews.co.uk/blog/journalistic-writing/top-ten-tips-for-writing-a-newspaper-report/, there is an excellent outline about how to correctly and properly write a news report. The instructions are very relevant to the rules for lawyers in advocacy either an argument or in writing. These rules are:

1.Choose an interesting event or happening to write about

A news report should be about something that is happening now or recently occurred. Current issues, key events and crimes make good subjects for news reports.

2.Tell the whole story in the first paragraph

The opening paragraph should be concise and explain the full story in as few words as possible. Even if someone reads no further, they should know what has happened.

3.Put the most important information at the top

Newspaper articles are written so the information is given in order of importance with each preceding paragraph including more detail. This style of writing is called The Inverted Pyramid where the most important information is in the lead paragraph. If reports end up being too long for the newspaper, they should always be able to be cut from the bottom.

Inverted Pyramid

4.Make sure that the report answers the five “Ws”

Have they answered WHAT happened? WHEN did it happen? WHY did it happen? WHERE did it happen? WHO did it happen to? HOW did it happen?

5.Make Use of Quotes

Including quotes is a useful way of bringing opinion and expertise into your article and will make the story more interesting. Quotations don’t have to be long to be powerful.

6.Don’t waffle or make the report too long

Sentences should be short and punchy. This is a good opportunity for students to practice changing vocabulary, grammar and punctuation to enhance effects and clarify meaning.

7.Read back over your report

Reading out loud will help determine that it all makes sense.

8.Check the facts

A news report is characterised by its use of facts, this is what differentiates it from an opinion piece. Anyone can create an internet page, so it is essential to use reliable sources of information and double-check your facts. Some sources can be trusted more than others, but all facts should be checked in two different places. Which of the sources to the right do you think are the most trustworthy? Where would you place them on the scale to the right? The exercise of writing a news report should help pupils in understanding to distinguish between fact and opinion.

9.Check the spelling and grammar

Make sure to proofread for spelling and punctuation errors using a thesaurus and dictionary to check the spelling and meaning of words. Reports should be written in the third person and past tense; check for consistent and correct use of tense.

10.Finally think of a good headline for the report. A headline should be short and snappy and grab the attention of readers making them want to read more.

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That’s how lawyers should write and advocate. Here is an exercise for learning how to properly write a report. It equally applies to how lawyers should learn to describe the essence of their case.

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1.Find a piece of content 500 words or greater.
2.Take that content and identify what you believe to be its most important component—not necessarily the lead, but what journalists call the Nut Graph.
3.Re-write the story at 1/4 of its original length. So for a 500 word piece around 100-125 words or about a paragraph.
4.Now re-write your 100-125 word story at 1/4 of its length, around 30 words or about a sentence or two.
5.Finally, take your one or two-sentence story and bring it down to 10 words or less.

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Conclusion

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We live in a world of “Twitter” long communication. Our television news stories, with video, according to detailed studies is 41 seconds. The median length of a network TV news package was 2 minutes and 23 seconds. The majority of TV commercials during the Super Bowl are 30 seconds long. In 2019 the average cost of a 30 second ad was $5.25 million.

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In 2000, Microsoft conducted a study measuring how long people can focus on one thing for a specific amount of time. The results showed the average person’s attention span was 12 seconds. About 15 years later, it dropped to 8 seconds. That’s why trial lawyers need to learn simplicity, clarity and brevity in their advocacy, both written and verbal. In addition, this is why storytelling is more critical than ever. We need to understand what truly influences attention, quality, and engagement. Focusing on these signals will help them better connect with our audience and make their persuasion more effective.

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TWO BOOKS WITH GOOD ADVICE ON COMMUNICATION & PERSUASION

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I recently read two books on persuasion and communication. Thank You for Arguing by Jay Heinrichs and Lawyers, Judges and Semi Rational Beasts by Daniel Holloway. They both had excellent advice for trial lawyers. Here is a summary of ideas from both books

As we all know, an essential part of persuasion is showing you share your audience’s values. We divide the world into US and THEM, and reserve good feeling and thinking for the former. We are tribal creatures, and tribal affiliations exert profound influence on our feeling. Tribalism raises the importance of presenting yourself and your client in a way that allows judges, law clerks, and jurors to relate to you and your client. We need to demonstrate our membership in their “tribe” through common values and beliefs. Persuasion works by accommodating the decision-maker’s existing values, attitudes, and beliefs. But, sharing your audience’s values alone is not sufficient. They also must believe that you know what you are talking about and are qualified as well as trustworthy. We tend to trust those who trust us. Integrity and competence serve as general markers of trustworthiness. We think well of people who think well of us. Respect and value the person you are talking to. We give respect and generosity to those who give it to us. We give what we get, and so does most everyone else.

When people show no commitment to accuracy, fairness, or reasonableness, you cannot rely on them to tell you the full truth, to interpret things fairly, to make reasonable requests. Tell the truth — including the essential bad parts. We trust people who clearly care about accuracy, fairness, and reasonableness. As an example one book author says: “While an evangelical Christian will respect you for trying to do what Jesus would do, he still won’t let you remove his appendix.” The audience must consider you a sensible person, as well as sufficiently knowledgeable and trustworthy before they will follow you.

We know emotion plays a role in every decision we make. When we communicate emotionally we should always speak simply. The most emotional words of all have just four letters. Less is more, and in pathetic terms, less evokes more. In general we should always use simple speech, but do not use fancy language when you get emotional. Instead, keep everything simple. The moment you begin to confuse someone, to make him think, the frown deepens, the arms cross. Make everything as simple and concrete as possible (while maintaining accuracy). Use language, voice, and body to help the jurors follow, understand, and engage. Make the words no longer than it needs to be. Develop these skills because there is no time or mental space to think about technique during trial. Use simple language and avoid jargon. Make it interesting, clear, and easy.

Try to make your audience feel powerful. Give them a sense of self-control. Research shows that people who feel powerless tend to lash out more.

As you know, how you describe or frame an issue is important. Here are framing techniques: First, find audience commonplace words that favor you. Next, define the issue in the broadest context—one that appeals to the values of the widest audience. Then deal with the specific problem or choice, making sure you speak in the future tense.

We make moral judgments intuitively and automatically. Only then do we rationalize them. The unconscious feeds snap judgments to the conscious. Snap judgments come from the interplay of (a) the feelings and thoughts active in our minds, (b) trust or distrust in the source of the new information, and (c) the new information itself. Snap judgments are usually final judgments. If a judge or juror has already figured a thing out in the past, it is going to take some doing to move them off their pre-written answer. If you have already committed to an idea, hearing strong arguments against it can deepen your commitment to the idea. The emotional tail wags the rational dog. Or, in Jonathan Haidt’s metaphor, emotion is an untrained elephant, and the rational mind is a rider. The rider mostly just goes along for the rids but comes up with reasons to justify what the elephant is doing.

The progressive view is that democracy depends on citizens caring about each other and taking responsibility both for themselves and for others. This yields a view of government with a moral mission: to protect and empower all citizens equally. Conservatives hold the opposite view: that democracy exists to provide citizens with the maximum liberty to pursue their self-interest with little or no commitment to the interests of others. Under this view, there should be as little of the public involved as possible. Instead, as much as possible should be relegated to what we call the private self-interest. Whatever our moral sensibilities, we take pleasure in altruistic punishment. When someone breaks the rules in a way that threatens to harm others, we enjoy punishing the rule-breaker.

Conclusion

These are a few of the ideas from these two excellent books worth considering.

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        HOW TO WRITE A MEDIATION SETLEMENT LETTER

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“The supreme art of war is to subdue the enemy without fighting.” Sun Tzu, The Art of War

For some time, most settlements have taken place through a mediation process rather than direct negotiation with the insurance company. However, settlement negotiations usually involve a letter sent to the insurance company, defense counsel or to a mediator. These settlement letters are the basis for outlining the case and the plaintiff’s position regarding settlement. While there are a variety of ways these letters can be drafted the most common is a letter outlining the facts regarding liability and damages with supporting documentation.

The letter also serves an important function of advising the mediator and defendants of any conditions of a potential settlement or policies regarding settlement agreements. This avoids misunderstandings about these issues at the mediation. It also avoids the common negotiation tactic of waiting until an agreement has been reached and then adding additional terms of settlement.

Our office policies included a fixed time schedule for mediation to avoid the common experience of discussions dragging out without any fixed time allotted. We found a fixed time period greatly approved the chance of settlement and helped us determine early in the process if there was a reasonable chance of settlement or continuing was a waste of time. We also had a set policy of refusing to agree to confidentiality restrictions as a condition of settlement. We came to the mediation with a memorandum form with blanks outlining the settlement terms for any settlement reached. We required it be completed and signed by all parties before leaving the mediation to avoid later attempts to revise the agreement. Of course, these policies and the settlement proposals involved client advance approval.

The following is one example of how to write a letter to a mediator in preparation for a scheduled or proposed mediation in a medical malpractice case. It is from a case our law firm handled but has been revised for simplicity and by changing names for case identifty confidentiality.

NATURE OF CASE

It is important to give a short summary of the basic nature of the case in the introductory paragraph. Much like the title to a newspaper report, this section gives an outline of what the case involves. For example:

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This is a medical malpractice case against a hospital and two physicians due to negligence involving the care of the mother during labor and delivery resulting in injuries to the infant.

The delivery occurred at Seattle Hospital on November 4, 2016. The suit seeks damages for the injuries suffered by the child and for the consortium loss by the parents, John and Helen Smith. The negligence consisted primarily in failing to deliver the child when babies condition required delivery as well as negligence in the delivery process which a failure to promptly resuscitate the baby aggravated the amount of injury suffered by the child.

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THE PARTIES

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In this section the parties are identified.

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The plaintiffs are the infant child Janet Smith and her parents John and Helen Smith. The defendants are Seattle Hospital, Dr. Joyce Williams and Dr. Michael Townsend.

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PLAINTIFFS ATTORNEYS

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This section identifies the plaintiff attorneys.

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The plaintiffs are represented by George Jones and Harry Smith of Seattle. .

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DEFENDANT ATTORNEYS

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This section identifies the defendant attorneys.

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The defendant Seattle Hospital is represented by William Brown of Seattle. Defendant Dr. Joyce Williams is represented by James Moore and Dr. Michael Townsend is represented by Helen King all of Seattle.

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LIABILITY

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A summary of the liability facts is an important part of the mediation letter. It should not be in extensive detail but rather a outline in order to provide a basic understanding of the case and the issues. It is important to supplement this section with relevant documentation obtained through discovery. It is not unusual to include photographs or other materials as visual exhibits in support of the description.

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Defendant physicians Williams & Townsend, were negligent in failing to deliver the baby when it was imperative to do so and, instead allowing the mother to continue to labor. The failure to deliver the baby caused brain damage to the child which was aggravated by a failure to promptly and correctly resuscitate the child after delivery. The hospital was negligent for its failure to have a qualified person for resuscitation of the infant and the required equipment plus mediations to do so

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The negligence involved allowing the mother to labor for eight hours in the second stage of labor when a much earlier was required due to the condition of the child as revealed by the fetal market monitor strips. The delay resulted in mental and physical disabilities to the infant.

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The mother’s primary physician was Dr. Joyce Williams OB. She was not at the hospital during the eight-hour second stage of labor because she had gone home leaving Dr. Townsend in charge.

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After six hours of labor Dr. Townsend became concerned about the condition of the child to call Dr. Williams and ask her to come to the hospital to examine the mother and infant. However Dr. Williams did not come to the hospital and had to be called a second time. She arrived two hours after she had first been called. While waiting, Dr. Townsend decided to manually turn the child which did on three occasions. However, third occasion, cord and tangled around the baby’s neck compressing oxygen. Dr. Thompson should have remained to monitor the baby after making the turn but instead left and did not discover the problem until Dr. Williams arrived.

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When the baby was delivered it was in a compromised condition, however the hospital did not have available in the delivery room the appropriate resuscitation medications and equipment. A further delay occurred while those were obtained.

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The baby was born with mild brain injury and physical disability due to the defendant’s negligence

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NON-ECONOMIC DAMAGES

In this section an outline of the injuries and the impact they have had and will add them to the future should be reported. The information should be supplemented by documentation such as the reports of experts and excerpts of deposition testimony regarding the effect on both the infant and the parents relationship to the infant.

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The child has mild but significant motor and brain deficits as well as physical disabilities. The parents have devoted their time to the care of the infant. There have been numerous visits to doctors and therapists. The child will continue to need vocational therapy as well as physical therapy.

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ECONOMIC DAMAGES

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In this section the out-of-pocket expenses incurred as well as the projected expenses into the future should be outlined. Again, documentation of these expenses ought to be provided with the letter.

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The past medical expenses exceed $100,000 We are providing the reports of vocational expert and economist regarding the future economic loss. The projected life expectancy of the child is to age seventy. The total economic loss past and future is projected at $250,000.

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EVALUATION

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A discussion of the liability and damages evaluation should be included. In most cases, it is wise to provide a figure being asked as an appropriate settlement about the case.

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We believe the liability facts of this case are compelling and make the case a very strong medical malpractice claim. The defendants excuse for their conduct that babies problems preexisted the labor and delivery are without any substantial evidentiary support. We believe the jury will have a strong reaction to the lack of care on the part of the doctors and the failure of the hospital to provide required care plus resuscitation medication and equipment. A reasonable and fair jury verdict in this case is $5 million dollars.

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OUR SETTLEMENT POLICIES

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It is very important that the letter outlines any set policies that the clients and law firm have regarding settlement. If they are not made clear before the mediation starts there is a risk that settlement can be prevented by other issues even after agreed amount can be reached. Obviously, all of the conditions outlined in the letter must be those approved by the client in advance. Here are examples of policies in that regard.

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We would like to avoid any misunderstanding about our client’s and our settlement policies regarding mediation:

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1.We will not agree to any form of secrecy or confidentiality about any aspect of the facts or settlement reached requirement as a condition of settlement.

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2.We will require a memorandum of the terms of settlement signed by all counsel before leaving the medication.

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3.We will require an agreed time schedule for the mediation process and will only participate in the mediation in conformity to the allotted time.

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Conclusion

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Mediation or settlement letters are important part of reaching a settlement in personal injury cases. They ordinarily do not have to be overly long or complicated. The important thing is to outline the basics of the case and the issues involved for the benefit of the mediator or the defendant that attorneys or insurance companies you’re dealing with.

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A letter is not the exclusive way of providing information of this kind. Settlement outlines have been submitted by digital means including DVD presentations and with exhibits such as photographs, diagrams and even video presentations.

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The letter in this case is intended only as an example of the format which needs to be supplemented and revised that your case.

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