September 23rd, 2012

Losing Breeds Success

Just lost a “MIST” case. For those who do not know a “MIST” case is what we call an automobile collision case with little or no visible damage to the colliding cars and injuries to plaintiff that cannot be seen. Examples include injuries to soft tissue- thus, Minimum Impact Soft Tissue=”MIST.”

In the case I tried techniques learned at Gerry Spence’s Trial Lawyer’s College (TLC). The techniques are  simple. First know yourself and how you feel about the case. Second, tell the truth to the jury about the case especially concerns you have. Third, relate to the jury in a non lawyer natural common sense way. Fourth, show and tell the story. At all times include the jury.

Losing is hard. Losing causes doubt. Doubt about taking a case to trial. Doubt about being a trial lawyer. Doubt about what could have been done differently. But on reflection I believe losing is an inevitable result when we try tough cases. There are “MIST” cases I have been successful prosecuting, and a legitimately injured plaintiff received fair compensation. On reflection I see that it is important to try tough cases. On reflection I have no doubt about the TLC Method.

Trying tough cases gives a legitimately injured plaintiff a shot at justice when the insurance company says pound sand and take little or nothing for your injuries. The only way to succeed in a tough case with little or no offer is to try the case.  By taking on the insurance company in a “MIST” case we stand up for an injured person who deserves fair compensation. This is our charge as a trial lawyer.

Losing is an essential part of the success equation. All successful people have been losers. For me I learn far more from my losses than from my successes. A Loss causes reflection. Reflection leads to retooling techniques. Retooling techniques makes me better. Plus, insurance companies know the only lawyer who can win a case is the lawyer who will try the case. Insurance companies know we will lose sometimes and so will they. When an insurance company deals with a lawyer who will try the case it treats the case more seriously which translates to paying fair value more often in cases where the injured plaintiff is represented by a known trial lawyer.

So I move on to the next trial.  I have learned from my loss. I look forward to trying my next case using the TLC Method- total honesty in a pure and simple way like a regular guy rather than a trial lawyer with a trial lawyer mask.

    August 22nd, 2012

    Eye Contact

    For a trial lawyer eye contact is important. By eye contact I mean meaningful eye contact. Meaningful eye contact is different than serial eye contact. Serial eye contact is what I fell into when talking to jurors before I discovered meaningful eye contact.

    Serial eye contact is what I thought eye contact meant. In serial eye contact one scans jurors briefly meeting a jurors eyes and then moves to the next juror. In serial eye contact there is a tendency to go left to right or right to left juror after juror briefly meeting the eyes of a juror. This type of eye contact is close to worthless. It means little to a juror.

    Meaningful eye contact starts with silent looking into a juror’s eyes. We stay with a juror until we know the juror has made meaningful eye contact back. We then go to eye contact with the next juror who invites eye contact. In the beginning we say nothing just making eye contact.

    When we begin to speak we speak with eye contact with a  juror. We keep the eye contact through the sentences that are needed to make our point. When we have made our point and the juror gives us eye contact permission to leave we find the next juror who invites eye contact and then make another point.

    A way to think of doing meaningful eye contact is to think of reaching with our hand to touch the hand of the juror inviting eye contact. We stay with this juror until another juror (figuratively) extends her hand (eyes) and then and only then do we leave the previous juror assuming we have eye permission to leave.

    Try making meaningful eye contact in all your conversations, especially when the conversation involves a group. You will find a deeper level of receptance which is a good thing in life. And a good thing in life is a good thing in jury trials.

      August 15th, 2012

      Trial Lawyers College-My Take

      This post gives my take on Trial Lawyers College  (TLC) where I attended and graduated in the class of July 2012:

      Wyoming. TLC is on Gerry Spence’s Ranch in Western Wyoming. Most students fly into Jackson Hole, and take a TLC charter from Jackson to the Ranch. This means seeing the beauty of Western Wyoming on the way to the Ranch. The Tetons are the highlight of the ride, but all of the country from Jackson to the Ranch is beautiful.

      The Ranch. The Ranch is located two and a half hours east of Jackson. The closest town is Debois which is a cool cowboy town 40 minutes west of the Ranch. The accommodations at the Ranch are spartan, clean and fine. The Ranch facilities are well maintained ranch buildings. The food (buffet style) is great given the chefs cook breakfast, lunch and dinner for about 75 people. There are abundant morning opportunities for working out-climbing Spence Mountain a four mile hike from 7000 to 7900 feet,  jogging/walking a country road,  fly fishing (I caught 10 fish-catch and release), and working out in the Ranch weight room. The Wind River, which runs through the Ranch, gives a pastoral setting and  good vibes that make the Ranch a magical place.

      Classmates. Although The Ranch is a cool place what makes TLC a great experience is the people. In my class we had 54  male and female lawyers of all ages and ethnic groups, from all over the United States with half being criminal defense lawyers and half being plaintiff injury lawyers. We promptly formed a close bound with 25% of the class as we were divided into four equal groups for the first three days. These are the psychodrama days where we learn who we are and who are peers are. We learn to take off our mask and be our real self. We then integrate back into the collective group. For work sessions we are divided into smaller groups. In this way we get to know all of our classmates in our three weeks together.

      Instructors. The instructors are TLC graduates. They are quality trial lawyers from around the United States who take a week off to come to TLC to teach the TLC Method. Work sessions are not lecture like a typical law school or continuing  legal education class. Rather, work sessions are about doing. We learn from doing and showing. Typically an instructor asks our fellow classmates who act as jurors during a work session: “Is he like a lawyer or a real person.” If the answer is lawyer we are not in the TLC Method.

      TLC Method. We learn to try cases using the TLC Method. First, we must be ourself. We must take off our mask and face the jury with honesty and without any pretense or legalese. We become one with the jury. Second, we show the jury our client’s story rather than tell the jury about our case. Third, we role reverse with the opposition witness allowing us to see the world as he sees the world. This allows for a sensitive humanistic cross examination instead of an aggressive lawyer like cross. It is the exception to the rule to destroy the witness. Finally, we close the case as we have started the case-we highlight the theme and the story, show the jury what justice means and give the case to our friends the jury.

        August 6th, 2012

        Back from Trial Lawyers College

        With no wasted time we chomp at the bit.

        We learn the mask we wear does not fit.

        Soon becomes apparent this is about who we are.

        To find ourselves we need not go far.

        We need only to go within.

        To discover our story we go back to then.

        There is fear and we know it will not be fun.

        But we trust the method and do not run.

        For the method teaches to accept the past.

        We form a bond that will last.

        A bond from taking off the mask.

        And after this is done we have a blast.

          July 12th, 2012

          Trial Lawyers College

          I am going to Gerry Spence’s Trial Lawyers College from July 13, 2012 to August 6, 2012. Two former graduates Bob Dawson and Mark Wagner convinced me to apply. Both say graduates learn the Gerry Spence Method of trying a case. Both say it can and likely will be a life changing experience. From what I understand we will:

          Discover Who We Are. Before we can try a case at the highest level we must know who we are. This means becoming honest with ourselves.  We cannot expect a jury to trust us unless we communicate from our heart with honesty and without pretense.  According to Gerry Spence we cannot do this until we know who we are.

          Self Action. According to Carl Rodgers, On Becoming a Person (1961)(Required reading for Trial Lawyer’s College), until we discover who we are we tend to ask “[w]hat do others think I should do in this situation?” Id. The Spence Method assists in allowing the lawyer to recognize who he/she is, and then act in a realistic way according to the person’s feeling on what needs to be done. We learn to act as our  self instead of  acting based on society’s expectations.

          Discover the StoryKnowing and trusting from one’s heart what needs to be done must be matched with knowing and understanding what our client has gone through and is going through in dealing with her injury. This is done by discovering our client’s story. Under the Spence Method we learn how this is done. Discovering the story allows us to bring the story to the jury in a way that relives the client’s emotions.

          Show Me. All trial lawyers should follow the Missouri model of “show me.” We typically try our case by telling rather than showing. Telling is pedantic and boring. Telling is a turn off to the jury. Showing is bringing the case to life. Showing is living the case in the present tense emotions that are the case. Showing brings the case to life and the jury relates. The Spence Method teaches how to show rather than tell.

          No Internet.  There is no internet at Trial Lawyers College. There will be no Blog posts. Will return August 6th and post about the Trial Lawyers College experience.


            June 27th, 2012

            Learning from Simon Rifkind

            Interview With Simon H. Rifkind (Litigation Journal Sept. 1984).

            Q. Judge there  has been a great deal of criticism of the lack of ability of lawyers to try a case. Is this criticism valid?

            A. Well, I have seen trials conducted with extraordinary skill, and great dramatic effect, in the best style that one could possibly imagine. I have also seen trials that were bumbling and poorly done. That’s always been true… .I’m not aware of any decline in the capacity of trial lawyers.

            Q. What are the requirements of a successful trial lawyer?

            A. It is essential a trial lawyer come into the courtroom knowing his case.

            A, he must know the facts.

            B, he must know what he is trying to establish.

            C, he should have a strategy and a program for achieving it.

            To illustrate when I was a Federal District Court Judge for the Southern District of New York I would occasionally have a lawyer come up and say: “Does your Honor want an opening statement?”

            To me this is a foolish inquiry. It is like the producer of a play opening the curtain and saying: “Members of the audience, would you like a prologue or would you rather do without one?”

            Q. So what would you do to become a quality trial lawyer?

            A. Now of course experience helps. A good apprenticeship is helpful. Emulating a master of the art is always a useful thing, but I have always said you have to be yourself. I can’t overstate the point that every trial is theatre, every trial lawyer is a performer, and he must have his style. He has to be himself, natural to himself, compatible with his spirit, with his physical well being, with his appearance, with his dictation, with his style.

            Q. Do you try a case before a jury different than a bench trial.

            A. I do not distinguish between a jury trial and a non jury trial. I regard a non-jury trial as a trial before a one person jury.

            You have an audience, you are writing a play in competition with another playwright who is trying to write a different play. It takes a lot of skill and effort, but it is theatre, there is no question about it. Any significant trial is a contest, and every contest involves a sense of emotional tension.

            The only difference between a bench trial and a jury trial is in a bench trial we have a very experienced theatre goer. Nonetheless, a theatre goer with emotion and a heart waiting to decide for the better play.

            (Edited by PAT).


              May 31st, 2012

              Tort Law

              Tort law is the body of  law concerned with civil harm of one against another. The law of torts includes three categories of civil wrongs: intentional torts where the actor intends to commit the harm, negligence where the actor commits a wrong by acting in an unreasonable way, and product liability where a manufacturer places an unsafe product into the market place. All torts have the common thread of causing injury. Lawyers are generally concerned with torts of negligence and product liability. This is because there is usually insurance coverage for negligent and product liability wrongs. Not so with intentional torts.

              Civilized Freedom. In a civilized free society we should be able to do what we desire. We should be able to act freely. But civilized society involves others as well as the actor. In a civilized society the actor is limited in his actions when his actions harm another. Here freedom for one is harm to another and this is not tolerated in a civilized society. Thus, in a civilized society we are free to act up to the point our action harms another.  This is where tort law comes into play.

              Tort Remedy. In tort the the remedy for causing harm to another is money compensation to the harmed person from the person causing the harm. The concept is the person harmed should be placed in the position he was before the harm. When the harm involves a personal injury this means the wrong doer pays the amount of money a jury determines fairly compensates the innocent harmed person.

              Dual Purpose. Tort law protects society’s interests in freedom from harm, with the goal of restoring the person harmed to the position he or she was in prior to the defendant’s harmful conduct. Tort law focuses on protecting people and property by imposing a duty of reasonable care on others. An underlying purpose of tort law is to provide for public safety through deterrence of negligent acts. The concept has a dual purpose. First, provide fair compensation to the harmed person from the person who causes the harm. Second, provide for public safety by way of the deterrent effect of the connection between causing harm to another and having to pay for the harm.

              Misconception. A misconception on tort law has emerged by way of the frivolous lawsuit myth. Pushed by insurance companies the myth is there is something wrong with seeking money compensation for harm caused by the wrongful act of another. Our nation has believed and fostered tort law from the beginning. Our constitution grants the right of jury trial with the idea that fellow citizens will hear the case and provide fairness. If the harm is real and the act causing the harm is a tort then there is nothing frivolous in seeking fair compensation. It is the civilized and proper thing to do. Our society is safer for all of us when fair compensation is properly provided in a tort lawsuit.

                May 24th, 2012

                First Impression

                Continuing to read (listen to) What the Dog Saw by Malcolm Gladwell. He’s talking about first impressions. Mr. Gladwell says we form a first impression within seconds (two seconds to be exact). He points out studies show not much difference between a first impression based on seconds and an impression based on prolonged exposure.

                On reflection this makes sense in our age of sound bites and rapid fire media coverage. This also makes sense when we look at ourselves from an evolutionary standpoint. Our prehistoric ancestors had to immediately react on first impression to survive.

                Applying the reality of first impression to a jury trial means our jurors form an impression of us before we open our mouths. According to Mr. Gladwell people like and trust people who appear confident and smile. To fail to make immediate eye contact and smile when jurors enter the courtroom is to miss the first first impression opportunity.

                Jury consultants David Ball and Harry Plotkin teach the importance of jury selection and opening statement in establishing the case in the minds of the jurors. Jury selection is the first time we have a dialog with our jurors. The great Clarence Darrow is reported to have whispered to his second chair after jury selection “the trial is over.” He was correct.

                Opening statement is the first time we introduce the case to our jurors. Both Mr. Ball and Mr. Plotkin teach to begin dispassionately with the conduct of defendant. Then introduce plaintiff in a factual way without trying to sell the case. The aura is that of an accurate historian where the facts call for justice in favor of injured plaintiff. This leaves a first impression of objectivity. When we do this with a pleasant demeanor coupled with an aura of confidence we make a favorable first impression.

                  May 15th, 2012

                  Lawyers Care


                  House Republicans on Thursday (May 10, 2012) approved a sweeping package of budget cuts to food stamps, Meals on Wheels and other domestic programs-while sparing the Pentagon. …

                  If the bill becomes law the nonpartisan Congressional Budget Office estimates more than 20 million children will face reduced food and nutrition support, almost 300,000 will be knocked off the federal school lunch program, and at least 300,000 will lose access to the State Children’s Health Insurance Program.

                  The cuts will replace across-the-board reductions to defense and non security programs that were agreed to as part of last summer’s debt ceiling deal.

                  by Lisa Mascaro Tribune Washington Bureau (5/11/12).

                  My first reading of this article made me mad as a lawyer dedicated to helping people. On further reflection, however, my mad reaction changed to a sad reaction. Sad our legislators chose to take from those less fortunate, those who need the most in these hard times, and divert funds for the needy by “literally taking food out of the mouth of babies while continuing tax breaks for the wealthy.” (Nancy Pelosi Rep. Cal.).

                  As trial lawyers dedicated to helping those in need we can and should speak out about this budget cutting proposal of the House of Representatives. E-mail your Congressman telling him or her:

                  “Recently heard of the House Budget Package vote of May 10, 2012. As a voting member of your district you need to know a yes vote  fails to represent what the majority of people in our district stand for. The May 10, 2012 proposed House Budget cuts take food and health benefits from children and the poor at a time when they need them most. Your vote on this package will be remembered in November. A yes vote translates to votes against you for reelection.  A no demonstrates you like the majority of our district care about those in need, and  stand tall for our district because “we care.”

                    May 9th, 2012

                    Late Bloomer Trial Lawyer

                    Still reading (listening to) Malcolm Gladwell, What The Dog Saw (2009). Gladwell is talking about “Late Bloomers.” To Gladwell there are prodigies and there are late bloomers. We all know prodigies. In art a prodigy is Paublo Picasso. Late bloomers are known but not until they are old. This is because the late bloomer takes years to show his talent. Gladwell uses the example of Paul Cezanne who was not known as a great painter until old age.

                    In the practice of law we also have late bloomers. The traits of a late bloomer include: being well organized; being methodical; making mistakes; but, learning from mistakes. Let’s explore these traits to determine if we are a late blooming trial lawyer.

                    Well Organized. Do we take the time to organize our files? Do we know where to find documents? Do we have a case management system computerized or written where we have at our finger tips all information on client’s case? Are we organized  in any court appearance? If  yes to these questions, and we are not recognized as a legal prodigy then we may be a late bloomer.

                    Methodical. Late bloomers are also plodding. They are in no hurry. They know haste makes waste. They take the time to prepare by internalizing the facts and having the law researched. Little comes as a surprise because we have been there done that. If this is you you are looking more like a late bloomer.

                    Early Mistakes. Although we have had success we have had failures. Failure is seen when we start trying cases.  All phases of  jury trial present problems, and all  of the problems present opportunities to stumble. But we cannot be a late bloomer unless we make lots of mistakes.

                    Learning from Mistakes. The key to being a late bloomer is learning from mistakes. It is through mistakes that we grow as a late bloomer. Gladwell teaches late bloomers make tons of mistakes and they take years in making them. But they get better through their mistakes. The same is true as the late bloomer trial lawyer. In fact without the mistakes we have no hope of getting to the late bloomer level of accomplishment. The level where we are in the same light as the prodigy.