I just got back from New York where I spoke at an AAJ seminar. There were excellent speakers on Friday which I missed because of my having to travel that day. On Saturday Mark Mandell from RI, Russ Herman from LA and Tom Girardi from CA spoke ahead of me. I was the last speaker. Here are some random ideas I noted from the speakers.
The importance of the “the rule of three.” List things in three’s – it’s powerful. Literature and research indicate how we hear in three’s. Russ Herman suggested using this idea:
- This was an OSA case; It was obvious, suspicious and abnormal. This is a Triple a case: arrogance, avarice, and attitude. This was a POP case: predictable, obvious and preventable.
- Reinforce theme: on CX pointing to the X ray: “Look at this X ray. Isn’t it obviou? Isn’t it suspicious? Isn’t it abnormal?
Other ideas he suggested:
- To show tumor growth use simple objects instead of Cm measurements e.g. a walnut and a plastic lemon
Tom Girardi argued that juries today make up their minds on what he called philosophical issues rather than evidence or the law. The compelling underlying theme or value, he suggests, really determine the outcome.
Mark Mandell gave an excellent talk on framing and trial generally. Here are a few of his ideas summarized:
- Mark no longer calls doctor as first witness in every case. He feels trials last a long time and impact lost on jurors who can’t remember what the first witness, weeks before, testified. He said he might call doctor first to establish specific points or evidence. He is more likely going to call the doctor as last witness in his case or simply wait for cross examination.
- He talked about the importance of case themes. For example, in a malpractice case where the doctor was over his or her head: “Know your limits.”
- I liked his discussion about the importance of “just can’t get over” issues in a case. He means by that those issues which the jury later says “we just couldn’t get over the fact that….” I agree about the importance of discovering and emphasizing those kinds of issues.
- In dram shop cases or cases of employee negligence he recommended avoiding using the name of the employee or agent defendant to emphasize the employer negligence. In a dram shop case, the drunk driver would become “Brown’s Tavern’s customer” or in a suit for sexual abuse against a diocese “the diocese priest.” The idea is to by pass the acting defendant and emphasize the employer.
- Can we agree you always keep a look out ahead for traffic? (“yes”) I like to discuss that with you the day you got in your car, drove to the exit and entered the freeway merging with traffic.
While I’m talking about advocacy ideas, here are some rambling thoughts I’ve recorded from things I’ve read or heard.
Keep in mind that in cross examination or in evidence pointing out and identifying inconsistencies and contradictions is a small victory compared to the reason why it exists. It is the reason behind these contradictions or inconsistencies that there is powerful advocacy, especially when it supports your case or undermines the other person’s case.
I laughed at a talk my friend Ron Krist from Texas gave when he said about a lawyer “his ego could support a much greater talent.” He also made a politically improper remark about picking a jury in Brownsville, Texas near the Mexican border with a large Hispanic population. He said the mantra there for jury selection was “Ennie Meany, Miney, Moe. All you gringos have got to go.”
In the book, Clarence Darrow: Attorney for the Damned” Darrow is quoted about jury selection as follows:
“You try to throw around the case a feeling of pity, of love, if possible for the fellow who is on trial. If the jurors can be made to identify with the defendant and his ‘pain and position’ they will act to satisfy themselves. At this point the case is won. Jurors will furnish their own rationalization. If a man wants to do something and he is intelligent, he can give a reason for it. You’ve got to get him to want to do it…that’s how the mind acts.”
In fact, psychologists have found that we use the “makes sense” rule. We take a position, look for evidence that supports it and if we find some evidence – enough that our position ‘makes sense’ we stop thinking and we view the issue from our perspective. In other words, we make decisions and then we find reasons. This process involves our minds that are fast, intuitive, emotionally driven, prone to shortcuts and bias, but capable of processing enormous amounts of data.
The truth is that people let their likes and dislikes determine their beliefs about the world. Our emotional attitudes drive our beliefs. Therefore, we need to remember that if it pays to be liked by the jury it costs even more if they dislike us.