May 10th, 2017

Trial Lawyer Resilience and “Boys In The Boat”

This is my take on how a trial lawyer is like a Pocock cedar racing shell. James Daniel Brown, In Boys In The Boat (Viking 2013), discusses George Pocock, a master shell builder in the 1920s and 30s. Brown writes about Pocock’s discovery of cedar as the ultimate wood for a racing shell; with the result being “the boat as a whole [is] under subtle but continual tension caused by the unreleased compression in the skin, something like a drawn bow waiting to be released.”

“To Pocock, this unflagging resilience-this readiness to bounce back, to keep coming, to persist in the face of resistance was the magic in cedar.” This unseen force imparts life into the shell. “As far as Pocock is concerned a shell that does not have this “life” in it is unworthy. Id. at 139.

This passage rings true of the worthiness of a trial lawyer. The trial lawyer is under a subtle but continual tension in trial-like a drawn bow. The trial lawyer must have unflagging resilience- a readiness to keep coming especially in the face of resistance. This is the unseen make up of a trial lawyer. With this make up the trial lawyer is worthy of the responsibility of representing an injured person against the resistance of the insurance industry.

    March 22nd, 2015

    What If

    IMG_0497Constantine Stanislavski refers to “The Magic of If” in his classic book “An Actor Prepares. Here Stanislavski instructs acting students to put themself into the emotion of their part by imagining what it is like “if” they (are in the same situation their part places them in). Thus, if an actor is playing the part of a former soldier who has had his leg amputated Stanislavski teaches to imagine what it would be like to live life with a missing a leg. This allows a natural emotional spontaneity to emerge as the actor places himself into the action aspect of the part with his leg missing.

    Recently, I came across an excellent article in the King County Bar Association Bar Bulletin: Daniel Dugan, The Turning Point (March 2015) at 14-15, where Duggan a Trial Consultant discusses his concept he terms “The Turning Point.” Duggan teaches “The Turning Point” is a story telling technique using “counterfactual thinking.” “Counterfactual thinking is a technique where you ask a person to describe the opposite of the situation they are in now.” Id. at 15.

    A counterfactual question “elicits rich responses revealing motivation, emotion and a glimpse at a person’s view of fate or destiny.” Id. Duggan goes on to reason that counterfactual reasoning by jurors allows them to see our case from our client’s perspective.

    To illustrate Duggan suggests we invite the jury to imagine how our client’s life would be if her injury had not occurred. “Well to understand this ladies and gentlemen you will hear from Katie’s  [lay witness] who will tell you Katie’s life would  be… .”  This allows for two story lines-one life as a result of being injured, and the second one with a life cruising along without injury. “The gap between these two story lines will now appear huge and graphic.” Id.

    And the jury goes from the typical mindset of does Katie deserve X amount of money to I get it X amount of money will get Katie’s life back on track. The jury’s verdict becomes the “tool that jurors use to make one life out of the two paths that lay before…[Katie] at the time of [her injury.]” Id. Although her injury forced Katie down her life changing path, the jurors can get Katie back on track because “they understand what it will take to do that.” Id.

    Combining Stanislavski’s “if” with Duggan’s  “counterfactual thinking” allows for our jurors to have a unique perspective and gives them the tool of the gap to fill in the difference between the two lives.

     

      March 18th, 2015

      Jury Thoughts

      JuryDuty42_sgl_PRTv1Jury Selection.  Lawyers refer to jury selection as voir dire which is a Latin term for speak the truth. The problem with the term voir dire is most jurors likely have no idea what the lawyer is talking about when the term voir dire is used. To jurors what is happening is “jury selection.” When the lawyer says “voir dire” jurors hear “lawyer speak language”  from a person acting like a lawyer. This separates the speaker from the jurors who do not talk in “lawyer speak.”

      Being a Lawyer. At Gerry Spence’s Trial Lawyers College we immediately learn “we have a problem.” The problem is we are lawyers, and in our jury trials it is generally the case that our jurors are not lawyers. Our jury is a “tribe,” and the tribe is looking for a leader. The leader is potentially one of the competing lawyers. And the leader is “the voice of the tribe.” The voice of the tribe will likely be a voice similar  to the other tribal members.When we address the tribe in “lawyerese,” speaking like a lawyer, we speak in a foreign voice with a foreign presence. So our first job is to speak like a “real person”and conduct ourself  like a “real person.”

      Being Real. As we learn in The Velveteen Rabbit:

      When you are Real you don’t mind being hurt,.. . It dosen’t happen all at once,… you become. It takes a long time. That’s why it doesn’t happen to [lawyers] who break easily, or who have sharp edges, or have to be carefully kept. Generally by the time you are Real [appearance is secondary]. But [fancy appearance] doesn’t matter, because once you are Real you can’t be ugly, except to people who don’t understand.

      Margery Williams, The Velveteen Rabbit.

      When we are real and speak in the tribe’s language we can’t be ugly to the tribe because the tribe understands.

       

       

        October 30th, 2014

        Facts v. Feeling

        “Then where Should I start?”

        “Start what, for Christ’s sake?”

        “Researching the history of the area. Of Derry Township.”

        ‘”Oh. Well. Start with the Fricke and the Michaud. They’re supposed to be the best.”

        “And after I read those-“

        Read them? Christ, no! Throw em in the wastebasket! That’s your first step. Then read Buddinger. Branson Buddinger was a damned sloppy researcher…but when it came to Derry his heart was in the right place. He got most of the facts wrong but he got them wrong with feeling.”

        Stephen King, It (1986).

        Recently at a Trial Lawyers College weekend seminar we dealt with closing argument. In working on closing it became clear that  facts are secondary to the jury (and to us as a member of the jury tribe). What matters is feeling. Until we feel the case the facts are stale. Stale as in how a typical lawyer talks to the jury. When we talk like a lawyer we stress the facts in a sterile way.We relate to the jury like a lawyer machine. And the jurors not being lawyers turn off and go their own way. If it’s toward our side we are lucky. If it is toward the defense we bring the result on ourself by failing to convey the feeling of the case.

        Now how do we relate to the jury with feeling? Well we begin by discovering the story of our client. We do this by getting emotionally in touch with what our client has gone through and this feels.

        Once we accomplish this and accomplishing this takes immersion into our client’s life we arrive at the emotional level of the case. This allows us to feel with our client. When we feel with our client we can with emotional honesty convey this feeling to the jury. When we do this naturally without trying to sell the jury we give our case a chance.

        The feeling of our client which we mirror flows into the courtroom. The jury relates to this feeling because it is honest and true to life. The facts become subservient to the feeling of the case. Our client has this feeling, we have this feeling and this feeling is given to the jury. When the jury accepts this feeling as its own the facts become secondary to the common feeling of client, us and jury.

         

         

          May 23rd, 2014

          Clarence Darrow on “The Jury”

           

          Every knowing lawyer seeks a jury of the same sort of people as their client; people who will be able to imagine themselves in the same situation and realize what verdict the client wants.

          Choosing jurors is always a delicate task. The more a lawyer knows of life, human nature, psychology, and the reactions of the human emotions, the better equipped for the subtle selection of the so-called “twelve people, good and true.” In this undertaking, everything pertaining to the prospective juror needs to be questioned and weighed: this means all matters that combine to make the person; all of these qualities and experiences have left their effect on ideas, beliefs and fancies that inhabit the juror’s mind. Understanding of all this cannot be obtained too bluntly. It requires finesse, subtlety and guesswork.

          A skillful lawyer does not hunt for learning or intelligence in the box; [the skillful trial lawyer] knows that all beings act from emotions and instincts, and that reason is not a motive factor. … The nature of the person is the element that determines the juror’s bias for or against our client. [The juror’s]… intellect can always furnish… good reasons for following their instincts and emotions. Many [seemingly] irrelevant issues… are not so silly as they seem.  There is no sure rule by which one can gauge any person.

          It is not the law alone or the facts that determine the results. Always the element of luck and chance looms large. A jury of twelve is watching not only the evidence but the attitude of each lawyer, and the parties involved, in all their moves. Every step is fraught with doubt, if not mystery.

          Often a casual remark may determine a vital situation. In all questions people are frequently influenced by some statement which, spoken at the eventful time, determines fate. In fact, all that occurs in life is an endless sequence of events resulting from the wildest chance.

          Clarence Darrow, How to Pick A Jury (Esquire Magazine 1936)(edited/redacted by PAT)(Photograph Courtesy of  the Clarence Darrow Foundation).

           

           

           

           

           

           

            February 16th, 2014

            What’s In It For Me?

            Several years ago when reading  Joe Dimaggio’s biography I was taken aback by Dimaggio’s usuall first reaction: “What’s in it for me?” The great Yankee being first and foremost concerned about himself. Sales philosophy teaches what matters is what the buyer believes is in it for him. Dale Carnegie writes: Why talk about what we want. Although we are eternally interested in what we want no one else is, because everyone else is interested in what they want. “So the only way on earth to influence other people is to talk about what they want and show them how to get it.” Id.

            Applied to a jury trial we know what we want, and what the defense wants, but failing to connect with what the jurors want results in a roll of the dice. This is because what the jurors want  is the key to success. We must get to what the jurors want and show them how to get it.

            This is what the reptilian philosophy recognizes. The reptilian must not be forgotten, but there is more to it than a simplistic low brain analysis. We should remember the middle emotional brain and the logical cerebral cortex. When we do this we factor in the emotional component of like-ability, and the cerebral component of logic meaning we make sense.

            To put this together we must first discover our client’s story. In discovering the story we feel the betrayal of our client, so we can convey our client’s betrayal to the jury. The jury must feel defendant’s conduct is conduct that demands a corrective response because society is better when people are held responsible for their actions. There must be a connection between lawyer, client and  jury so the jury understands their corrective response benefits society which in turn benefits the jury.

             

              September 13th, 2013

              Frontiers of Trauma-Crash Phases and Energy Exchange

              Here are some preparation notes for cross examination of defense medical expert in a significant impact personal injury case:

              Trauma. In trauma the history is the injured person’s story of the impact and the energy exchanged from the impact. To evaluate traumatic injury we must begin with an understanding of the crash phases.

              A traumatic event is divided into three phases: 1) Pre crash phase: 2) Crash phase; and 3) Post crash phase.

              Pre Crash Phase. This is where we analyze the condition of the person before the traumatic event. Acute or pre existing conditions must be taken into account. A traumatic event is often more injury producing to a person with pre existing conditions such as degenerative disk disease. As we say if we are lucky we get old;   when we get old we get degeneration like degenerative disk disease. So if we are lucky we have degenerative disk disease. The down side is we are less able to handle a traumatic event. Other pre crash considerations include the body position before trauma, expectancy  and gender.

              The Crash Phase. “The crash phase begins at the time of impact between one moving object and a second object. The second object can be moving or stationary and can either be an object or a person.” Kinematics of Trauma at 45. In a motor vehicle collision three impacts occur: 1) the impact to the vehicles; the impact to the people in the vehicles; and 3) the impact to the organs inside the people. For example, in a motor vehicle  collision the first impact is the collision between the vehicles. The second impact is to the occupants such as striking the seat belt, the air bag, the head rest or the inside of the vehicle. The third impact is to the occupant’s internal organs and chest wall, abdominal wall  and skull. Id.

              The Post Crash Phase. This phase begins with the care of the injuries. The post crash continues for a lifetime in a permanent personal injury case.

              Energy Exchange. In any traumatic injury case it is important to evaluate and understand the energy exchange. This allows us to get a handle on the forces involved in the traumatic event. Medical providers and juries relate well to cases involving the exchange of significant force. This is because there is a common sense relationship between the exchange of significant force and injury. Here we need to visit basic laws of motion.

              The Law of Conservation of Energy and Newton’s Second Law of Motion. “The law of conservation of energy combined with Newton’s second law of motion describes that energy cannot be created or destroyed but can be changed in form.” Id. Applied to an automobile collision, the motion of the colliding vehicles is energy. When the vehicles collide their energy is dissipated by the bending of their bodies. Energy is then dissipated inside the vehicles as occupant bodies strike objects inside the vehicle. Energy dissipation continues inside the structures of the bodies of the occupants as their organs stop their forward motion against the chest wall, abdominal wall and skull. This translates to personal injury.

                May 20th, 2013

                Learning from Clarence Darrow (Part Two)

                Continuing to discuss highlights of John A. Farrell, Clarence Darrow Attorney for the Damned (First Vintage Books Edition, May 2012):

                Philosophy. The only thing worthwhile is to develop your own individuality and leave something that will liberalize the few who know and care you lived. Id. at 194. “No man is judged rightly by his fellow men. We go here and there, and we think we control our destinies and our lives, but above us and beyond us are unseen hands and unseen forces that move us at their will.” Id. at 263.

                The War of Trial.  Darrow uses the analogy of war when referring to trial: I try cases in the front trenches, fearing nothing. “The front trenches are disagreeable; they are hard; they are dangerous; it is only a question of days or hours when you are killed or wounded… . But it is exciting. You are living; and if now and then you go back to rest, you think of your comrades in the fight; you hear the drum; you hear the cannon’s voice; you hear the bugle call; and you rush back to trial and to the thick of the fight. There, for a short time, you really live. It is hard, but it is life.” Id. at 326.

                Likability- The Most Important Element in a Case. Darrow believes the outcome of trial rests on the elemental factor of likability. When the opposition lawyer is trying to bully the witness Darrow lets him continue, trusting he will antagonize the jury. It is only when he knows the jury is upset that he responds and puts the lawyer in his place. See id. at 346.

                Voir Dire.  Wearing his familiar gray suit, Darrow slouched with his hands in his pockets or slowly roamed the courtroom speaking in a low voice to the jurors. The court and the jurors are all with him and the jurors are eager. “He ever so often makes some droll remark that sets the entire courtroom to laughing and instantly all tension is relived.”  But like all lawyers he makes mistakes: “He pushed too far  with one prospective juror [and asked a needles question that lead to the prosecutor excusing a good juror]. You have to know when to stop,” Darrow told friends that night. “One question too many and you lose a desirable juror, I should have know enough to refrain.” Id. at 409.

                Style. Darrow uses simple words when talking to the jury and from time to time he makes meaningful eye contact with a juror. Throughout the trial he includes all of the jurors through meaningful eye contact. He has a natural demeanor as if the jury is a tribe and he is a tribal member. See id. at 254.”Everything is natural, unaffected and perfectly timed.” Id. at 435.

                Tactics. Darrow once explained his tactics in a criminal case: “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 ponit the case is won. Juries will furnish their own rationalization. If a juror wants to do something , and is intelligent, he will give a reason for it. You’ve got to get him to want to do it. That is how the mind acts.” Id. at 287.

                  April 29th, 2013

                  Learning from Clarence Darrow (Part One)

                  John Farrell’s biography of Clarence Darrow is an engrossing read for trial lawyers as we can learn from Clarence Darrow-the greatest trial lawyer of the early twentieth century:

                  What Darrow learned from his father. My father “taught me to question rather than accept. I had little respect for the opinion of the crowd. My instinct was to doubt the majority. John A. Farrell, Clarence Darrow Attorney for The Damned, (First Vintage Books Edition, May 2012) at 25. 

                  Voir Dire. “Darrow, dressed in homely clothes, with baggy trousers and unshined shoes,” strolled around the courtroom or draped himself over the back of a chair, or leaned into the box to question a juror. He had a soft drawl and a relaxed approach and engaged in a confidential exchange with jurors. “There was method in Darrow’s manner; he believed that a juror’s decision was inevitably based on emotion, not intellect. The more he could in quiet conversation weigh a man’s heart the better.” Id. 164.

                  Demeanor. The press reported Darrow to be a man of intellect and subtlety with an old shoe manner, and a capacity for getting inside the skin of a witness that is possessed by few lawyers. There is nothing theatric about him. He never strikes an attitude. He never explodes. He stands before a witness and just bores into his mind, gently, shrewdly with every appearance of wanting merely to know the truth and nothing more. Id. at 165-66.

                  Opening. Darrow “approached the jury and, with no flourishes or preliminaries, began to speak in his slow mellow drawl. At times he would lean forward, until their noses touched. Sometimes he’d pause to consider, and wipe his glasses. He spoke in the straight simple language of the hills and mines. One reporter said. He gave them a talk much in the same manner that the good old deacon in the little Methodist church you used to attend led the class meeting.” Id. at 172

                  Cross Examination. “Darrow believed that important witnesses in major cases were so well rehearsed that as a rule it is futile to go over in cross-examination the testimony already given.” Id. at 169. In the Loeb and Leopold case Darrow for the most part “decried the spectacle [of the state’s presentation of an army of minor witnesses and] declined to cross examine,” but he chose to grill a police detective who stated “Leopold’s boast about a friendly trial judge.”

                  “Darrow rose, swung his chair around and leaned upon it. He pressed the detective for witnesses, notes, or other supporting evidence. … When the copper hedged he pounced.

                  “Who was with you?”

                  “Nobody but he and I,” the detective acknowledged.

                  “Did you make any memoranda on it?”

                  “Not at the time…”

                  “Mr. officer, don’t you know that this story of yours in reference to a ‘friendly judge’ is pure fabrication made for the purpose of intimidating the court?” Id. at 343.

                  (The Loeb and Leopold case was a thrill killing case where Darrow plead Loeb and Leopold guilty in a bench trial where the only issue was whether Loeb and Leopold would be hung or receive life in prison. Judge Caverly sentenced the young men to life in prison).

                   

                    March 17th, 2013

                    The Yin and Yang of Personal Injury Practice

                    According to T’ai Chi theory, human ability is capable of being developed beyond its commonly believed potential. We are capable of the highest level of achievement. There are no boundaries when we place no restrictions or barriers on our capabilities. “One reaches the ultimate level, or develops in that direction, by means of the ladder of balanced powers and their natural motions-Yin, the negative power (yielding), and Yang, the positive power (action).” Waysun Liao, The Essence of T’ai Chi, (Shambhala 2007) at 6. These two equal powers oppose and complement each other. This natural law is usually ignored, especially by trial lawyers who see only charging Yang and distain the yielding Yin.

                    But all cases cannot be tried, and some cases should not be tried. Likewise, to be a viable personal injury lawyer all cases cannot be settled and some cases should not be settled. The key is to have balance. Balance in knowing when to try a case and knowing when to settle a case.

                    On reflecting on the Yin and Yang, and balance within a personal injury practice, I believe as a general rule the Yang must be in the forefront when we begin a case. This is because we cannot settle a case for fair value unless the insurance company knows we can and will try the case. Thus, we never take a case we cannot try. When we begin this way a Yang aura permeates the case- the insurance company takes us seriously. The Yin aura is appropriate after we are taken seriously by the insurance company. This is when fair value will be paid. The Yin-settlement- must be appreciated: the client receives fair value; the client receives a certain result; and, the client is freed from the battle of a trial.

                    “The Chinese have long realized that the two T’ai Chi elemental powers must interact, and the harmonious result …[brings] progress and unlimited development.” Id. at 8. When we practice personal injury law following the two T’Chi elemental powers of Yin and Yang we concentrate on balance. Balance is to the benefit of our client and our law practice.