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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Several years ago when reading  Joe Dimaggio’s biography I was taken aback by Dimaggio’s usual 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.

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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.”

At trial I used techniques learned at Gerry Spence’s Trial Lawyer’s College (TLC). The techniques are  simple. First, know ourself and how we feel about our case. Second, tell the truth to the jury including concerns we have about the case. 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 leads to doubt. Doubt about taking a case to trial. Doubt about being a trial lawyer. Doubt about trial tactics.

On reflection I believe losing is an inevitable result when we try tough cases. There are “MIST” cases I have been successful prosecuting. 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 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.

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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 jury.

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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.

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 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.

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