June 14th, 2020

Write and Speak with Conviction

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 messgae as more educated. 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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February 29th, 2020

Great Cross Examination-Charles Laughton

 Cross examination is a challenging part of the trial.  It presents the opportunity to either turn an adverse witness into my witness or destroy the adverse witness. Either way my case benefits form successful cross examination.

My preference is to turn the witness into my witness. On destroying the adverse witness I do this in a way the jury will accept. I never embarrass, badger, or abuse a witness.

One of my favorite cross examination movie scenes is Charles Laughton in Witness for the Prosecution.  As we see from viewing this short but sweet cross, Laughton is able to destroy a fact witness in a way acceptable to the jury. He uses the classic inability to perceive facts to destroy the witness.

As we see in the clip Laughton begins by setting the foundation for inability to hear (and hearing a conversation is the basis for the adverse testimony). In setting the foundation Laughton begins by asking the witness in a booming voice if she recently applied for a hearing aid. In doing this Laughton uses change of voice (going into a less audible voice) to dramatically illustrate the witness’s hearing problem. When the prosecutor objects Laughton unfazed agrees to repeat the question.

In a booming voice Laughton restates his question with the witness admitting she has yet to receive her hearing aide. Continuing in his booming voice Laughton verbally summarizes the witness’s testimony. In doing this he paints the scene within which the witness is supposed to have heard a conversation that could not be heard by a person with poor hearing. Then by again lowering his voice Laughton demonstrates the witness’s inability to hear as she again cannot hear Laughton’s lowered voice. The damage is done. The witness is destroyed without being embarrassed, badgered or abused.

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June 22nd, 2019

Connection (Eye Contact)

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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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.

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March 22nd, 2015

The Turning Point

IMG_0497Constantine 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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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.

 

 

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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).

 

 

 

 

 

 

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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 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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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.

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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).

 

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