In Malcolm Gladwell’s book What the Dog Saw we learn:

Interior Life. “We want to know what it feels like to be a doctor,” rather than what doctors do every day. “Curiosity about the interior life of other people’s day-to-day work is one of the most fundamental of human impulses.”

Belief in Product. Gladwell  discuses famous “pitchmen” by distinguishing between an athlete who sells a product by pitching himself and a true salesman who sells a product by pitching the product. The great pitchman has an internal belief in his product. The great pitchmen in Gladwell’s book have internalized their product by inventing a better mousetrap so to speak. Thus, they have the enthusiasm that comes from a knowing understanding of the superior nature of their product.

Client’s Skin. Listening to Gladwell makes me think the same is true for a lawyer who is selling his client’s case. The lawyer has a story to tell and the story is not about himself. The story is the story of his client. The story can be told with full conviction only when the lawyer has taken the time to climb into the skin of his client. The lawyer must internalize the facts of his client’s story at the same emotional level his client has lived the events of his case.

Total Belief. When this has been done and only when this has been done is the lawyer ready to present his client’s case. At this point the lawyer can talk to the judge or jury on a personal and intimate level. Notes are not necessary, just as when Gladwell’s pitchman naturally discusses the product he  invents and in which he has total belief. Although the lawyer has not invented the case, he knows the case internally so he relates to his client’s story as his story. The effect on the judge or the jury is to internalize “what it feels like” to be the injured plaintiff.

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This week I received a verdict in a eleven day survival action case. The verdict is a total defeat. My client the estate of decedent takes nothing. I estimate my law partner and I including our legal staff spent over 400 hours on the case. We likely have $40,000 in costs advanced which we will not be paid by the insolvent estate. Below are my thoughts:

What We Control. We cannot control the result. What we control is preparation and work before and during trial. For me this means  countless hours before trial and 15 hour work days including weekends after the trial begins. We gave our best effort and there is nothing more we could have or would have done. There is satisfaction in knowing this.

Taking Cases. They say if a lawyer wins all of his trials he is not trying enough cases. Well I am trying enough cases because I lose sometimes. The case I just lost was a hard case factually and legally. I know the decedent’s family. I took the case because I am their lawyer. They wanted justice for the death of their son and for this they came to me.

Jury Instructions. Before I file a case I have a solid understanding of the facts and the jury instructions to appreciate the rules the jury will follow when making its decision. This gives me an appreciation my opening and closing and the evidence in between.

Continue to Stand for Justice. I will continue to take tough cases. After all I am a trial lawyer and this means I must enter the arena. To quote Theodore Roosevelt:

It is not the critic who counts, nor the man who points how the strong man stumbled or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena; whose face is marred by dust and sweat and blood; who strives valiantly…who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause; who, at best, knows the triumph of high achievement; and who, at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who know neither victory nor defeat.
Theodore Roosevelt, 1910

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Often when I am discussing a client’s personal injury case I ask my client if they have seen the movie Casablanca. Regardless of whether they have seen the movie I tell them their case is like the closing scene.

In the closing scene of Casablanca Humphrey Bogart tells Ingrid Bergman she must leave Casablanca with her husband. The success of the French Resistance in World War 11 depends on her leaving with her husband. When Ingrid Bergman asks about “us”  in relation to her husband Bogart says “the problems of three little people don’t amount to a hills of beans in this crazy world.”

I then tell my client a wise client years ago told me “nothing matters unless it matters when you’re 75 years old.” I then explain this statement  and the closing scene in Casablanca represent the importance of her personal injury case. Meaning the only thing that really matters is how she feels at 75. If she misses the opportunity to do everything she can to recover to the highest possible level from her injury she will regret  missing the opportunity she has now when she is 75.

As far as the simile on her case being like Casablanca, I explain her legal case  ultimately does not mean a hill of beans in the long run of her life- meaning when she is 75 years old what matters is how she feels. Plus dedicating herself to recovery now by doing everything in her power to get better makes her personal injury case better. This is because juries best appreciate a person who never gives up and does everything possible to overcome her injury.

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This post discusses thinking outside the box to succeed as a trial lawyer representing injured people.

The Time is Now. A trait of a quality trial lawyer is living in the moment. Preparation is essential as in having a thorough understanding of the facts and the law. Also it is important to image the case so the steps of the trial are imagined or imaged as an actor does before the play. This preparation  should not, however, substitute for allowing the trial to unfold naturally while staying in the moment. Staying in the moment lives the case as the jury lives the case. This creates connection with the jury. Staying in the moment removes any plastic rehearsed presentation.

Ditch Prior Successes. Great trial lawyers rarely use the same argument again. They move to the next case and present it in a new way that fits the story of the case. Defense lawyers at times pick the brain of a prior opponent to try and find out how the lawyer will approach their case. Trial lawyers who think outside the box could care less about what the prior lawyer has to say because the last case is done and they have moved on to the next with a fresh presentation that fits the story of the new case.

Do the Opposite. Under the classic personal injury case situation the lawyer presents a settlement demand prior to filing the case. Although this still makes sense in some cases, in many cases the pre filing demand is a waist of time. Further it telegraphs to the insurance company the lawyer wants to settle the case rather than take the case to trial. This results in the insurance company paying less for the case. Full value is paid when the insurance company knows the lawyer is prepared and willing to file the case.

Try the Case Without Medical Records. With the advent of Evidence Rule (ER) 904 trial lawyers routinely submit voluminous medical records of their plaintiff which are then introduced at trial. Consider thinking outside the box and forget about submitting ER 904 medical records. Have the treating physician testify to all relevant medical facts. In closing reiterate key medical testimony. The jury does not take any medical records into the jury room. This allows for a decision based on the medical testimony rather than on what a juror may chose to focus on when medical records are available in the jury room.

Never Stop Learning. Although the saying is success breeds success, success is dangerous when it breeds contentment, failure to reflect, and failure to grow. In today’s world change is rapid and those who fail to change and grow are left behind. Remember to forget the glory days, grow from the past and live originally in the present.

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