Offensive Innovation comes from Gerry Spence and Stephen King.  Speaking to experienced trial lawyers at the Trial Lawyer’s College Gerry Spence explained “you have yet to try your first case because you have been practicing law and trying cases in a way that is expected of you.” At the college we learn to take off our mask and proceed how we intuitively know is right.

 In Stephen King’s book 11/22/63 there is a passage where Jake Epping a high school English teacher tells about  Harry Dunning, a janitor who returns to finish high school:

“My honors kids were juniors…but they were like little old men and little old ladies, all pursey-mouthed and ooo, don’t slip on that icy patch, Mildred. In spite of his grammatical lapses and painstaking cursive, Harry Dunning had written like a hero. … As I was musing on the difference between offensive and defensive writing… .”

Offensive innovation means knowing yourself, trusting your ability to know what is right and acting on it. Taking action in an offensive way going with what I know instinctively without defensive thinking.

Years ago I was at a lecture by the great painter, William Cumming. During the question and answer session a young man asked Mr. Cumming if an artist can learn by studying painting at an art school. William Cumming answered “the ability to create art is not taught. It comes from inside the artist.” The artist knows inside what he wants to paint and he paints it without regard for how it will be received. The artist is painting with “offensive innovation.”

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A successful personal injury lawyer must try the case when the insurance company is unreasonable Trial requires performance under stress. For performance at the highest level:

Prepare. First know the facts inside and out and know the law. Preparation is the foundation to successful performance. It is not the brightest who prevails it is the hardest worker. The lawyer who spends the time to internalize the facts and the law is the lawyer  who has the highest likelihood  of success. Put simply out work the opponent.

Trust Yourself. After thoroughly preparing trust yourself. Here it is essential to recognize you are ready to go. You know what you want to accomplish. You know you are able to get it done at a high level. Like all successful athletes and actors believe in yourself. This self belief results in confidence.

Accept Inability to Control Result. Recognize  the only thing you have control over is yourself. You have the ability to put the time in for preparation. You have the ability to methodically go about the trial or task. You do not have the ability to control the result. And the result may be bad. This must be realized and accepted. Doing this has a psychological or subconscious effect of relaxation and performance without the stress of having to win. This in turn allows performance to take place in the present where natural talent and instinct  emerge to allow high performance.

Visualize High Performance. Successful athletes and actors visualize the game or play before it happens. Often this is as simple as remembering past success and calling on the thought process that occurred. This is an imaginary dress rehearsal. When the event happens the successful athlete or actor is psychologically ready for high performance.

Remember Peaks and Valleys. The great coach John Wooden wrote a note to Rick Neuheisel when Neuheisal started as head football coach at UCLA. The note included the statement  “there will be peaks and valleys.” Great coaches remember the peaks and forget the valleys. No quality athlete or actor dwells on past failures. Forget about past failure and move on. This is what a successful trial lawyer must do.

Simplicity is Beauty. Remember to keep  presentation simple. When in doubt remember the rule “less is more.” Lawyers tend to talk too much and complicate the picture. This risks confusion with the  jury. Confusion with the jury is the darling of the defense lawyer’s nursery. Tell the jury what you want and why it matters. Once this is done move on. Remember  jurors want to hear what they need to know, but they do not want to hear what they do not need to know.

Never Give Up. There will be hard trial times as in “peaks and valleys.” The key is to never quit on yourself. The key is to continue to move ahead at the highest level possible. Remember you cannot control the outcome but you can control giving your best effort. Giving your best effort means living in the present at the highest level until the end.

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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, must 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).

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

Trauma. In trauma start with the injured person’s story of the impact and the energy exchanged from the impact. To evaluate traumatic injury begin with an understanding of the person going through 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-Here we look to the person before the traumatic event. Acute or pre existing conditions are taken into account. A traumatic event is more injury producing to a person with pre existing conditions such as degenerative disk disease. As we age we degenerate and this includes progression into degenerative disk disease. Making the person 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. In a motor vehicle collision three impacts occur: 1) The impact to the vehicles; here collision energy may be absorbed by the vehicles seen in vehicle damage. A heavy duty bumper allows the energy to continue with less dissipation into the people in the vehicle. 3) The third impact may be to the occupant’s internal organs striking the 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 a  traumatic injury case it is important to evaluate and understand the energy exchange, and the forces involved. Medical providers and juries relate to cases involving the exchange of significant energy or force. There is a common sense relationship between the exchange of significant force and injury. 

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.

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Harper Lee in To Kill A Mockingbird says [“y]ou never really understand a person until you consider things from his point of view.”  As a trial lawyer it is essential for me to understand this reality. One way to do this is role reversal.

 Client. I listen when relating to my client. After listening and understanding I role reverse.  I see myself in my client’s shoes. This means all aspects of my client as well as his injury. I become my client and internalize how I feel in his skin.

Defense Lawyer. I also become the defense lawyer. This means having lots of cases as most insurance defense lawyers do. This means having to answer to home office. This means trying to win the case. What facts do I need to know? What facts are bad for me as the defense lawyer? What facts are good for me? How do I feel if  plaintiff is an honest likable person and his lawyer is likable?  How do I feel if  plaintiff and/or his lawyer are not likable?

Witnesses. This means experts and lay witnesses. What is my motivation for being a defense expert or lay witness. Am I preventing frivolous lawsuits? Do I do this to make money or help a friend and this is what is most important? Do I do this because I like to work or want to get involved? These answers help better deal with the witness at the time of deposition and and  trial.

The Judge.  I become the judge. As the judge I want to be seen as fair and impartial. I want to follow the law. I do not want to be reversed. In a close case I will go with the better lawyer. He will be my advocate if there is an appeal.

Jurors.  I become the jurors. In jury selection I learn background facts of jurors that allow me to become the juror. What do I think of the case on first impression? What makes me want to root for plaintiff? What leads me to want to see plaintiff in a negative light

 Keep doing role reversal. I role reverse in my cases and in my personal life. Role reversal makes me a better lawyer and a better person.

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“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).

 Although facts are important what matters to the jury is feeling. We must feel the case so the facts are felt.  To relate to the jury with feeling we begin by discovering the story of our client. To do this we emotionally connect with what our client has gone through and how 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 draw on our emotional experience and connect with the feelings of our client. When we feel with our client we have emotional honesty and convey this feeling to the jury. Through emotional connection we do this naturally without trying to sell the jury.We connect with the jury in a straight forward common sense manner, avoiding legalese and complexity. 

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 our feeling is given to the jury. When the jury accepts our feeling as its own the facts merge into our feeling.

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Starting as a young lawyer and continuing  I consult Professors Strunk and White, The Elements of Style, for speaking and writing with power and conviction. Below are maxims from their book.

Place Yourself in the Background. According to professors Strunk and White good writing (and speaking) comes naturally without trying to effect a certain mood or temper.  Write and speak so the recipient is drawn to what you are writing or talking about rather than your emotional take on the subject. In this way the recipient is drawn to the substance.   If the substance is there the recipient will have an emotional response. 

Write and Speak Naturally.  Be yourself. Forget about imitating someone else.  Admittedly, we are all imitators and have been since babies.  The key is draw on our experiences rather than a copy of the source. This allows the message to be our message which is authentic.

Never Overwrite or Overstate. Stick to the facts without gilding or adding. When we overstate the reader or listener knows. The message is processed in a negative way like this person is trying to sell me something.

Write and Speak with Nouns and Verbs. Eliminate adjectives and adverbs. As stated by professors Strunk and White: “The adjective hasn’t been built that can pull a weak or inaccurate noun out of a tight place.” It is nouns and verbs, not their assistants, that give good writing and speaking its toughness and color.

Avoid the Use of Qualifiers. This means words such as rather, very, little, pretty, and probably to name a few. As stated by the professors: “These are the leeches that infest the pond of good prose, sucking the blood of words.” The use of the adjective “little” is particularly debilitating. “Little” is a badge of a weak speaker or writer.  The same is true with other qualifiers.

Active Voice. Speak and write in the active voice whenever you have a choice. The active voice “I will speak and write with conviction” has power. The passive voice conveys weakness: “I will try to speak or write with conviction.”

Write and Speak at High Level. When speaking use the ing.  Rather than “I’m thinken about doen it, ” say I am thinking about doing it.” This elevates you  to to a speaker with more education in the listener’s mind. The listener consciously and subconsciously hears your message as articulate. Eliminate slang in writing and speaking. This puts you at a higher level.

Make the Point and Stop. As stated by our professors “do not explain too much.”  When saying too much adverbs and adjectives creep into speaking or writing. This makes the message weak rather than strong. Shakespeare says: ” The lady doth protest  too much me thinks.”

Avoid Fancy Words. Speak and write like you are talking to a high school student. Avoid words of  trade that only fellow trade members know.  Avoid foreign language;  it sounds like you are trying to impress;  it is not impressive to deliver a message the recipient misses.

Remember John Wayne’s Maxim:  “Speak slow, speak low, and don’t  say too much.”

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Eye contact leads to meaningful connection. Begin with an accepting and understanding heart,  making eye contact.  

In a jury trial I start with eye contact before speaking. I stay with a juror  (three to five seconds) then go to the next juror who invites eye contact.

When talking and listening I keep eye contact until completing a thought. I go to the next juror who invites connection; I engage with eye contact discussion. This allows me to connect. 

Try making eye contact in all conversation group and individual. It shows the person you have connected with you care.

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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.

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Constantine Stanislavski refers to “The Magic of If” in his 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). Putt ing our self in the “what if”  situation allows a natural emotional spontaneity to emerge.

A few years ago I read an 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 “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 the 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 a life with injury, and two a life 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 jurors a unique perspective and gives them the tool to fill the gap between the two lives.

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