Continuing to read (listen to) What the Dog Saw by Malcolm Gladwell. He’s talking about first impressions. Mr. Gladwell says we form a first impression within seconds (two seconds to be exact). He points out studies show not much difference between a first impression based on seconds and an impression based on prolonged exposure.

On reflection this makes sense in our age of sound bites and rapid fire media coverage. This also makes sense when we look at ourselves from an evolutionary standpoint. Our prehistoric ancestors had to immediately react on first impression to survive.

Applying the reality of first impression to a jury trial means our jurors form an impression of us before we open our mouths. According to Mr. Gladwell people like and trust people who appear confident and smile. To fail to make immediate eye contact and smile when jurors enter the courtroom is to miss the first first impression opportunity.

Jury consultants David Ball and Harry Plotkin teach the importance of jury selection and opening statement in establishing the case in the minds of the jurors. Jury selection is the first time we have a dialog with our jurors. The great Clarence Darrow is reported to have whispered to his second chair after jury selection “the trial is over.” He was correct.

Opening statement is the first time we introduce the case to our jurors. Both Mr. Ball and Mr. Plotkin teach to begin dispassionately with the conduct of defendant. Then introduce plaintiff in a factual way without trying to sell the case. The aura is that of an accurate historian where the facts call for justice in favor of injured plaintiff. This leaves a first impression of objectivity. When we do this with a pleasant demeanor coupled with an aura of confidence we make a favorable first impression.

HOUSE OKS BUGET PACKAGE THAT CUTS PROGRAMS FOR POOR

House Republicans on Thursday (May 10, 2012) approved a sweeping package of budget cuts to food stamps, Meals on Wheels and other domestic programs-while sparing the Pentagon. …

If the bill becomes law the nonpartisan Congressional Budget Office estimates more than 20 million children will face reduced food and nutrition support, almost 300,000 will be knocked off the federal school lunch program, and at least 300,000 will lose access to the State Children’s Health Insurance Program.

The cuts will replace across-the-board reductions to defense and non security programs that were agreed to as part of last summer’s debt ceiling deal.

by Lisa Mascaro Tribune Washington Bureau (5/11/12).

My first reading of this article made me mad as a lawyer dedicated to helping people. On further reflection, however, my mad reaction changed to a sad reaction. Sad our legislators chose to take from those less fortunate, those who need the most in these hard times, and divert funds for the needy by “literally taking food out of the mouth of babies while continuing tax breaks for the wealthy.” (Nancy Pelosi Rep. Cal.).

As trial lawyers dedicated to helping those in need we can and should speak out about this budget cutting proposal of the House of Representatives. E-mail your Congressman telling him or her:

“Recently heard of the House Budget Package vote of May 10, 2012. As a voting member of your district you need to know a yes vote  fails to represent what the majority of people in our district stand for. The May 10, 2012 proposed House Budget cuts take food and health benefits from children and the poor at a time when they need them most. Your vote on this package will be remembered in November. A yes vote translates to votes against you for reelection.  A no demonstrates you like the majority of our district care about those in need, and  stand tall for our district because “we care.”

Still reading (listening to) Malcolm Gladwell, What The Dog Saw (2009). Gladwell is talking about “Late Bloomers.” To Gladwell there are prodigies and there are late bloomers. We all know prodigies. In art a prodigy is Paublo Picasso. Late bloomers are known but not until they are old. This is because the late bloomer takes years to show his talent. Gladwell uses the example of Paul Cezanne who was not known as a great painter until old age.

In the practice of law we also have late bloomers. The traits of a late bloomer include: being well organized; being methodical; making mistakes; but, learning from mistakes. Let’s explore these traits to determine if we are a late blooming trial lawyer.

Well Organized. Do we take the time to organize our files? Do we know where to find documents? Do we have a case management system computerized or written where we have at our finger tips all information on client’s case? Are we organized  in any court appearance? If  yes to these questions, and we are not recognized as a legal prodigy then we may be a late bloomer.

Methodical. Late bloomers are also plodding. They are in no hurry. They know haste makes waste. They take the time to prepare by internalizing the facts and having the law researched. Little comes as a surprise because we have been there done that. If this is you you are looking more like a late bloomer.

Early Mistakes. Although we have had success we have had failures. Failure is seen when we start trying cases.  All phases of  jury trial present problems, and all  of the problems present opportunities to stumble. But we cannot be a late bloomer unless we make lots of mistakes.

Learning from Mistakes. The key to being a late bloomer is learning from mistakes. It is through mistakes that we grow as a late bloomer. Gladwell teaches late bloomers make tons of mistakes and they take years in making them. But they get better through their mistakes. The same is true as the late bloomer trial lawyer. In fact without the mistakes we have no hope of getting to the late bloomer level of accomplishment. The level where we are in the same light as the prodigy.

Recently appeared in a Washington Superior Court away from home County of King. It is a 132 mile 213 km drive to the court house. On the way listened to Malcolm Gladwell’s book What the Dog Saw. As we learn from Mr. Gladwell:

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

Gladwell then 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.

Listening to Gladwell made 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 giving rise to the case.

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 know “what it feels like” to be the injured plaintiff.

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 law. Now I will also do the jury instructions to better appreciate the roads the jury may take when making its decision. This will give me a more complete appreciation for the detours the jury may take, and the likelihood a detour will take the case down the road of defeat.

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

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.

Recently three things caused me to think about what I term “offensive innovation.”

Gerry Spence. I saw a five minute video of Gerry Spence speaking to the 2010 Trial College class where he tells experienced trial lawyers they are getting ready to try their “first case.” Mr. Spence explains to the lawyers they have yet to try their first case because they have been practicing law in a way “that is expected of them.” This includes their trials. At the college they will discover their true self and proceed to do what they intuitively know what is right.

Stephen King. In reading Stephen King’s book 11/22/63 I came across a passage where the hero Jake Epping a high school English teacher tells us about  Harry Dunning, an unsophisticated janitor who returns to finish high school:

“My honors kids were juniors…but they were like little old men and little old ladies, all pursey-mouthed and ooo, don’t slip on that icy patch, Mildred. In spite of his grammatical lapses and painstaking cursive, Harry Dunning had written like a hero. … As I was musing on the difference between offensive and defensive writing… .”

This simple reflection passage caused me to think about offensive and defensive writing. Meaning defensive as in a way meant by Gerry Spence-a way we think others (like King’s hero Epping) want us to write.

NPR. Thirdly, I heard the end of an NPR interview with Roberto Verganti who wrote Design Driven Innovation. This is a book that reasons success in business is about having a vision, and taking that vision to your market. Game-changers like Nintendo’s Wii or Apple’s iPod overturned our understanding of what a video game means and how we listen to music. The market place did not show a need for these new meanings, but once it experienced them, it was love at first sight.

Offensive Innovation. I think what Gerry Spence, Stephen King and Roberto Verganti are talking about is “offensive innovation.” “Offensive innovation” means knowing yourself and trusting your ability to know what is right. Then act on it. Take action in an offensive way meaning go with what you think without defensive thinking/worrying about how you will be accepted. As the Nike slogan says “just do it.”

Several years ago I was at a lecture by the great painter, William Cumming. During the question and answer session a young man asked Mr. Cumming if an artist can learn by studying painting at an art school. William Cumming answered “the ability to create art is not taught. It comes from inside the artist.” In essence the artist knows inside what he wants to paint and he paints it without regard for how it will be received. The artist is painting with “offensive innovation.”

I will do my best to try my next case with “offensive innovation.”

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 in a way that 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 with it in the moment. Staying in the moment with the case is living the case as the jury lives the case. This creates a close connection with the jury. Staying in the moment with the case removes any plastic rehearsed presentation wherein the lawyer attempts to set the case in his preprogramed set.

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.

I just read John Grisham’s latest book The Litigators. Th book is funny and entertaining. It is somewhat realistic as far as trial tactics and courtroom scenes. To me it is worth reading. Nonetheless, the book plays on lawyer stereotypes, and paints an unfair picture of small and big law firm trial lawyers. Sadly, this unfair picture of trial lawyers will likely be accepted as true by the non lawyer general public. This will in turn further the propaganda of insurance companies who want the public to believe personal injury lawyers are ambulance chasers out to turn any arguable case into a cash cow.

Taking a Case. In today’s legal climate an experienced personal injury lawyer does not take a case unless he has an honest client, who has been legitimately injured and he can demonstrate liability. Stated another way the case must be one where a jury will relate to  the client being legally wronged and deserving of fair compensation.  An experienced personal injury lawyer does not try to manufacture a case. This is because such an attempt is doomed to failure. Failure in a personal injury case means the lawyer makes nothing in fees.

Paying for a Case. It is unethical for a lawyer to pay for a referral of a case. Grisham leads his readers to believe this is standard procedure for personal injury lawyers.  Although some lawyers may resort to this unethical practice, it is the exception rather than the rule. The standard procedure is to refer to a lawyer who the referring lawyer trusts and knows will do a quality job in representing the client. This is because the vast majority of referring lawyers are ethical and simply desire what is best for the client.

Client before Self. Grisham’s book is laced with passages to the effect lawyers care little for their client. He would have the reader believe lawyers care first and foremost about their fee. My years of experience as a trial lawyer have demonstrated lawyers representing injured people care first about their client. This is the first requirement for winning representation-belief in the client and in his case. This can only be done when the lawyer understands the impact of the injuries to the client. Total belief in the client is infectious-the jury feels the total belief and responds. The fee is secondary and takes care of itself.

The Value of a Quality Lawyer. Generally people buy stereotypes of lawyers when they contemplate faceless lawyers with whom they have no relationship or when they have to deal with an opposition lawyer. When a person is faced with a legal need as in the need to take their case to trial to get fairness the person sees their lawyer in a different light. They see their lawyer as the vehicle for them to get the justice they deserve. The stereotypes break down as they see their lawyer has internalized their case to the point the lawyer knows more about the client’s case then anyone other than the client. It is then that the client understands the value of a quality lawyer. Quality trial lawyers and their clients reading Mr. Grisham’s book will see it for what it is-a fictional version of trial lawyers that plays on stereotypes at the expense of reality.

I just finished reading a column in The Wall Street Journal titled The Fine Art Of Where To Start [a story] by Darin Strauss. Mr. Strauss says the most important part of a story is the beginning as in the first words out of the lawyer’s mouth in opening statement.

Opening Statement Must Tell a Story. In a personal injury case the story involves an injury to plaintiff. Mr. Strauss says the first lesson in story telling is to remember “A story equals trouble.” The personal injury story must discuss how the trouble has caused injury to plaintiff.

Beginning the Story. Mr. Strauss  believes the sooner we introduce the trouble into the story the more likely our listeners (the jury) will pay close attention. To Strauss this means beginning the story with the critical action of the trouble.

Jacob Appel in Writer’s Digest reasons:

I started devoting an entire session of my writing class to opening lines when I realized that the last formal instruction I’d had on the subject was the grade school admonition that stories should begin with “a hook.” In the years since, I’ve come to believe that the fate of most …[stories] is sealed within the initial …[phrases]—and that the seeds of that triumph or defeat are usually sown by the end of the very first sentence.

The Current Model. Quality lawyers and jury consultants teach to begin opening statement by telling the jury the story.  When telling the story David Ball advocates beginning with the rule then going to the story focusing on defendant rather then plaintiff. Mr. Ball usually begins the story before the trouble. In a factual narrative he teaches let the story unfold as it happened  with plaintiff being introduced after defendant causes the trouble.

Current Model Revised. We plan on tweaking the Ball model by beginning with the impact caused by the trouble. We will state this in a thematic way thereby introducing our theme with the impact caused by the trouble. This is similar to Ball’s model of beginning with the rule. After this beginning we will go to the narrative story as does Ball focusing on defendant. After the narrative gets to defendant causing the trouble we will introduce plaintiff as the victim of the trouble. We believe this will lead to a favorable jury reaction as taught by Mr. Strauss.