June 20th, 2010
In life we should strive for balance.
By balance I don’t mean the kind of stability we associate with movement.
The kind of balance we need to develop is a balance of mind, body and emotion.
It is impossible to rise to our highest level if we are out of balance in any area.
George Knutson, The Natural Golf Swing
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June 16th, 2010
Our client is the most important element of a personal injury case. As we discussed in “Characteristics of the Personal Injury Plaintiff/Hero” a quality plaintiff is true to life, without pretense, and honest. When we present the case to the jury we must intellectually and emotionally understand our client. This allows us to sincerely convey the essence of our client and the nature of her injury.
The first step in being able to do this is to know our client. This begins at the first meeting. Here it is essential to listen. Lawyers have a tendency to do the talking rather then the listening. Listening sends a message to our client we care. Listening allows us to grasp the facts from our client’s perspective. Listening gives our client confidence, as it is human nature to think one who listens is intelligent.
I meet with my client at the first meeting when she signs the fee agreement. I get the facts and feelings on: education, family and employment background; mechanism of injury; detailed description of injury; initial pain and disability components of injury; impact of injury on activities; impact of injury on employment; medical providers; and, insurance information. Next we agree on a plan of action. The client will attack her injury through medical treatment. I will take the burden of dealing with her insurer and third party insurer. In this way we begin our bond.
At subsequent steps in the case, I meet with my client. We do the interrogatories together. We set forth the facts in power language using nouns and verbs. We eliminate modifiers-adjectives and adverbs- that suck the blood out of the English language. We continue to bond. I internalize the case deeper into my conscious and subconscious mind.
Prior to my client’s deposition we meet again with emphasis on the on plot aspects of the case: honest true to life presentation of background, mechanism of injury, injury, attempt to dig out of injury through treatment, and impact of injury. This includes facts and feelings on economic loss, disability (range of motion and strength deficits), impact on activities, and pain. We discuss relating naturally with the defense lawyer with candor and decency. In this way the defense recognizes the jury will like my client. (This maximizes settlement value).
In all client meetings I am focused only on my client. I come to know my client. This allows us to form a solid attorney client bond and trust. This allows us to communicate at our highest level with comfort and ease . This allows us to get into our emotional unconscious minds so jurors have a high likelihood of relating to us with their emotional unconscious minds.
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June 13th, 2010
BLOG
Plaintiff Trial Lawyer Tips- http://plaintifftriallawyertips.com/. (Blog of Paul Luvera-super resource from one of the top plaintiff trial lawyers in U.S.).
LEGAL WEBSITES/LIST SERVES/WEBINARS
Trial By Human List Serve (Must be plaintiff lawyer and must apply). This is an outstanding national list serve great lawyers helping one another.
Case Analysis Webinars. https://www.caseanalysis.com/speakers/. On a regular basis Case Analysis has great webinars taught by national trial lawyers. (Limited to plaintiff trial lawyers and criminal defense lawyers).
Trial Lawyers University. https://triallawyersuniversity.com. Great webinars with rewatch opportunities upon membership. (Limited to plaintiff trial lawyers and criminal defense lawyers).
Trial Lawyers College. https://www.triallawyerscollege.org. Plaintiff Trial Lawyer Courses and podcasts taught by national trial lawyers. (Limited to criminal defense and civil plaintiff trial lawyers)
MEDICAL WEBSITES
NCBI’s Pub Med- http://www.ncbi.nlm.nih.gov/sites/entrez/. (Super medical research site that produces free peer review abstracts. Often all you need to destroy a medical expert).
Wheeless’ Textbook-http://www.wheelessonline.com/. (Wonderful orthopedic website. Put mouse on body area of skeleton where injury presents and click to get more information then you can believe).
Gray’s Anatomy-http://www.bartleby.com/107/. (Online and free).
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June 13th, 2010
It is not often that we succeed in life when we let our feelings get the best of us: anger, irritation, disgust, or any uncontrolled emotion, leads to a blindness. The more we yield to it the more we are at the mercy of the situation. If we cannot control ourself we will not properly respond to the situation.
Life in this sense is a test of character, and beyond doubt good and bad in our character will be revealed. But there is always opportunity to improve. Our conduct in life should be our first consideration when we sum up our life.
Some associate success in life with material accomplishment and see success without considering what really matters. Our friends do not judge us by material accomplishment. To our friends and family the most important aspect of our life is the spirit that prevails throughout our life.
From James Zug, History of Squash, discussing philosophy of Harry Cowles Harvard Squash Coach in 1920s (edited by PAT)
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June 11th, 2010
This is my second rule under the topic “How I Practice Law.” Legalese is “language used by lawyers, and in legal documents, which is difficult for ordinary people to understand.” Cambridge Online Dictionary. As we see from the definition legalese is both spoken and written. The key is for it to make no sense to a normal person regardless of it being spoken or written.
When a lawyer finishes law school they have been exposed to legal language for three years. They hear it from their professors. They read it in cases and statutes. They are trained to use it when they speak or write. Thus, the law student who began law school being able to carry on a conversation like a normal person has become a legal speaking machine that only other lawyers fully understand. They work and socialize with other lawyers and get paid to be a lawyer which means talking and sounding like the lawyer they have been taught to be.
This is a problem because the lawyer needs to communicate with non lawyers. This is especially true for a lawyer who does jury trials. These lawyers need to convince normal people their case deserves fair compensation. Success is more likely if they speak and write in a way that is clear to a normal person.
I must confess for my first few years as a lawyer I believed in legalese. It made me stand out as a lawyer. Routinely I would begin letters: “This letter serves to memorialize our telephone conversation of… .” I thought it was cool to talk and write like a lawyer. I have learned through the years that a quality lawyer talks and writes like a normal person. This means normal people understand and relate to what is being said or written.
Now a days I say let’s sign the agreement rather than let’s execute the agreement; I select a jury rather than conduct voir dire; I agree rather than stipulate; I deal with the other side rather than an adversary; I say harm rather than prejudice; I pay rather than reimburse.
I want to be a normal person fighting for justice. To accomplish justice in our legal system I try cases to a jury of twelve normal people. I talk and write like the normal people I am dealing with. And more often than not my client and I do well.
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June 8th, 2010
In the next series of posts we turn from “Thoughts on Personal Injury Practice” to “How I Practice Law.” These posts discuss rules for myself in the practice of law. I hope you find them helpful in your profession even if it is not law.
The first rule I came across several years ago reading C. S. Lewis. Lewis writing on sin discusses sins of the mind and sins of the flesh. To Lewis sins of the mind are worse than sins of the flesh. Lewis writes the greatest sin of the mind is to be judgmental as in thinking I am better than another.
As an attorney I work on treating all people with dignity and respect. The great Roman Emperor Marcus Aurelius writes he always takes time for his subjects. He knew every Roman citizen is important as all of the citizens make up the body of Rome.
Whenever I think I am too busy to deal with a client, staff member, or anyone in my life, I step back and remember C. S. Lewis and Marcus Aurelius and make time for the person.
This rule recognizes we are all in this together, and no one is more important than another.
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June 7th, 2010
Benjamin Hoff in his excellent book “The Tao Of Pooh” reminds us of the story of the Ugly Duckling. The Ugly Duckling stopped feeling ugly when he released who he is-a swan. Hofff says:
Each of us has something Special…hidden inside somewhere.
But until we recognize that it’s there, what can we do but splash around, treading water?
The Wise are Who They Are.
They work with what they’ve got and what they can do.
The first thing we need to do is recognize our own Inner Nature, and not lose sight of it.
In each of us is something Special, and that we need to keep.
Id. at 64-65.
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June 3rd, 2010
Donald McRae has written a wonderful book on the last trials of Clarence Darrow. There we see how Darrow appealed to the Triune Brain in his closing arguments.
First, Darrow always believed in his case. For Darrow, as for any lawyer, doubt or lack of sincerity translates to failure. Second, he internalized the facts and the law (especially the facts) so they were as familiar to him as his own background. Third, the appeal was always without notes, and from the heart as well as from the mind.
In preparing for the emotional appeal to the unconscious mind in a death penalty case Darrow drew on his own childhood. He remembered his father telling him as a boy of the revulsion he had in witnessing a hanging. According to Mr. McRae, Darrow’s father’s description of the scene marked Darrow. “Almost sixty years later those same feelings coursed through Darrow as he addressed the court.” D. McRae, The Last Trials Of Clarence Darrow (2009)(“brief quotations embodied in critical articles” allowed).
Here Darrow drew on his emotional memory of feelings and images of horror he had from childhood of a hanging to convey that same emotion in his closing argument. This is an appeal to the emotional unconscious mind. In relating hanging in his closing argument Darrow talked in a descriptive way in the present tense avoiding the use of any negative such as “we cannot hang a man.” Darrow conveyed his own emotional feeling about hanging. In this way Darrow related to the Limbic unconscious mind of the judge.
Later we learn in another murder trial Darrow appealed to the logical conscious Neocortex in using the legal definition of “a mob.” He clearly described the legal definition in a logical analytical way. The description was narrow in scope but detailed in describing the legal elements. Once he accomplished this he continued to appeal to the conscious logical mind by contrasting the defense’s description of the scene “of people merely passing by” as making no sense.
According to Mr. McRae once this was done Darrow switched gears by separating the logical argument from the emotional argument. He did this by separating the arguments going from logical words to emotional words and pacing himself. For the emotional argument he recreated the terror his clients experienced when they were confronted by the mob.
Darrow also appealed to the Reptilian Brain. The murder case involving the mob was one in which African Americans shot and killed a white man in the mob engaged in what defendants believed was a storming of their home. Darrow appealed to each juror’s R-Complex by discussing the danger of one’s home being stormed by an African American mob.
Clarence Darrow did not know about the Triune Brain. To Clarence Darrow it was instinctive to separate the logical from the emotional. It was instinctive to discuss safety and danger and how the jury could eliminate it in the future. It came natural to talk in a positive way in the present tense. It came natural to pace himself with pauses and going from a near whisper to a booming voice.
For us: when we believe in our case; when we have internalized our case; when we know the facts of our case like our own background; when we methodically explain the concrete factual and legal aspects of our case; when we draw on our own emotional memory to recreate for ourselves our client’s injury; when we illustrate how defendant’s conduct is a danger to the community with sincerity and honesty; and, when we forget who we are, and convey from our heart and mind, we try our case naturally to the entire Triune Brain.
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June 2nd, 2010
According to Dr. Paul MacLean and his Triune Brain theory the most recent evolutionary part of our mind is the Neocortex. The Neocortex is in the upper part of our brain. Here the Neocortex controls higher executive thought-language, mathematics, and reasoning. In a normal development situation our three brains work together from the top down. Thinking at our highest level occurs in the Neocortex, as we are emotionally balanced in the Limbic System, which allows us to go into action with our Reptilian Brain.
The Neocortex is our conscious logical mind. This is what we typically think of when we think of our brain. It is important to recognize the conscious mind has the following traits:
It is logical.
It can deal in the abstract. “I am going to Hawaii.” The conscious mind pictures a beach in Hawaii.
It likes “the rule of three.”
It does not like more then seven (the number beyond which the conscious mind loses track).
Unlike the unconscious mind it is able to deal with negatives.
It is not emotional.
See Howard Nations, Publications- Powerful Persuasion.
When dealing with a jury or anyone in a decision making situation it is important to relate to the three parts of the Triune Brain. It our next post we will discuss putting together the traits of the R-Complex, the Limbic System and the Neocortex in a presentation that appeals to the entire Triune Brain.
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June 1st, 2010
As we learn from Dr. Paul MacLean the “limbic system” surrounds the R-System like a limb. This part of MacLean’s Triune brain is the emotional cognitive brain. This part of our brain adds our emotions which create long term memory.
“The limbic system is the heart of our brain from which our emotions and drives arise.” (Maria Robinson, Psychology Today).The limbic system operates unconsciously, it records likes and dislikes, it colors our impressions, and it is constantly judging experiences and people. Like the reptilian base of our brain the limbic system has its own agenda which often conflicts with our conscious wishes. See id.
It is important to recognize the emotional unconscious mind has the following key traits:
It records the total experience without dealing with details.
It experiences in the present tense like it is happening now..
It can deal with limitless information.
It cannot interpret a negative. Thus it only interprets positive statements.
It handles information emotionally.
See generally, Howard Nations, Powerful Persuasion (Howard Nations is a nationally recognized trial lawyer practicing in Texas. His website Publications are a must read for all trial lawyers).
Jurors will make decisions using all of their entire brain. This according to Paul MacLean means the R-Complex, the Limbic System, and the Neocortex. In the next post we will discuss the Neocortex (the conscious brain).
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