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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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).

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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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According to T’ai Chi theory we have capacity beyond what is commonly believed we have. We are capable of a higher level of achievement. Boundaries are from placing 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.

All cases cannot be tried, and some cases should not be tried. Likewise,  a viable personal injury lawyer knows 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 may be paid. In a good  Yin-settlement: the client receives fair value; the client receives a certain result; and, the client is free from the battle of  trial.

“The Chinese have long realized  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.

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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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