August 15th, 2012

Trial Lawyers College-My Take

This post gives my take on Trial Lawyers College  (TLC) where I attended and graduated in the class of July 2012:

Wyoming. TLC is on Gerry Spence’s Ranch in Western Wyoming. Most students fly into Jackson Hole, and take a TLC charter from Jackson to the Ranch. This means seeing the beauty of Western Wyoming on the way to the Ranch. The Tetons are the highlight of the ride, but all of the country from Jackson to the Ranch is beautiful.

The Ranch. The Ranch is located two and a half hours east of Jackson. The closest town is Debois which is a cool cowboy town 40 minutes west of the Ranch. The accommodations at the Ranch are spartan, clean and fine. The Ranch facilities are well maintained ranch buildings. The food (buffet style) is great given the chefs cook breakfast, lunch and dinner for about 75 people. There are abundant morning opportunities for working out-climbing Spence Mountain a four mile hike from 7000 to 7900 feet,  jogging/walking a country road,  fly fishing (I caught 10 fish-catch and release), and working out in the Ranch weight room. The Wind River, which runs through the Ranch, gives a pastoral setting and  good vibes that make the Ranch a magical place.

Classmates. Although The Ranch is a cool place what makes TLC a great experience is the people. In my class we had 54  male and female lawyers of all ages and ethnic groups, from all over the United States with half being criminal defense lawyers and half being plaintiff injury lawyers. We promptly formed a close bound with 25% of the class as we were divided into four equal groups for the first three days. These are the psychodrama days where we learn who we are and who are peers are. We learn to take off our mask and be our real self. We then integrate back into the collective group. For work sessions we are divided into smaller groups. In this way we get to know all of our classmates in our three weeks together.

Instructors. The instructors are TLC graduates. They are quality trial lawyers from around the United States who take a week off to come to TLC to teach the TLC Method. Work sessions are not lecture like a typical law school or continuing  legal education class. Rather, work sessions are about doing. We learn from doing and showing. Typically an instructor asks our fellow classmates who act as jurors during a work session: “Is he like a lawyer or a real person.” If the answer is lawyer we are not in the TLC Method.

TLC Method. We learn to try cases using the TLC Method. First, we must be ourself. We must take off our mask and face the jury with honesty and without any pretense or legalese. We become one with the jury. Second, we show the jury our client’s story rather than tell the jury about our case. Third, we role reverse with the opposition witness allowing us to see the world as he sees the world. This allows for a sensitive humanistic cross examination instead of an aggressive lawyer like cross. It is the exception to the rule to destroy the witness. Finally, we close the case as we have started the case-we highlight the theme and the story, show the jury what justice means and give the case to our friends the jury.

    August 6th, 2012

    Back from Trial Lawyers College

    With no wasted time we chomp at the bit.

    We learn the mask we wear does not fit.

    Soon becomes apparent this is about who we are.

    To find ourselves we need not go far.

    We need only to go within.

    To discover our story we go back to then.

    There is fear and we know it will not be fun.

    But we trust the method and do not run.

    For the method teaches to accept the past.

    We form a bond that will last.

    A bond from taking off the mask.

    And after this is done we have a blast.

      July 12th, 2012

      Trial Lawyers College

      I am going to Gerry Spence’s Trial Lawyers College from July 13, 2012 to August 6, 2012. Two former graduates Bob Dawson and Mark Wagner convinced me to apply. Both say graduates learn the Gerry Spence Method of trying a case. Both say it can and likely will be a life changing experience. From what I understand we will:

      Discover Who We Are. Before we can try a case at the highest level we must know who we are. This means becoming honest with ourself.  We cannot expect a jury to trust us unless we communicate from our heart with honesty and without pretense.  According to Gerry Spence we cannot do this until we know who we are.

      Self Action. According to Carl Rodgers, On Becoming a Person (1961)(Required reading for Trial Lawyer’s College), until we discover who we are we tend to ask “[w]hat do others think I should do in this situation?” Id. The Spence Method assists in allowing the lawyer to recognize who he/she is, and then act in a realistic way according to the person’s feeling on what needs to be done. We learn to act as our  self instead of  acting based on society’s expectations.

      Discover the StoryKnowing and trusting from one’s heart what needs to be done must be matched with knowing and understanding what our client has gone through and is going through in dealing with her injury. This is done by discovering our client’s story. Under the Spence Method we learn how this is done. Discovering the story allows us to bring the story to the jury in a way that relives the client’s emotions.

      Show Me. All trial lawyers should follow the Missouri model of “show me.” We typically try our case by telling rather than showing. Telling is pedantic and boring. Telling is a turn off to the jury. Showing is bringing the case to life. Showing is living the case in the present tense emotions that are the case. Showing brings the case to life and the jury relates. The Spence Method teaches how to show rather than tell.

      No Internet.  There is no internet at Trial Lawyers College. There will be no Blog posts. Will return August 6th and post about the Trial Lawyers College experience.


       

        June 27th, 2012

        Learning from Simon Rifkind

        Interview With Simon H. Rifkind (Litigation Journal Sept. 1984).

        Q. Judge there  has been a great deal of criticism of the lack of ability of lawyers to try a case. Is this criticism valid?

        A. Well, I have seen trials conducted with extraordinary skill, and great dramatic effect, in the best style that one could possibly imagine. I have also seen trials that were bumbling and poorly done. That’s always been true… .I’m not aware of any decline in the capacity of trial lawyers.

        Q. What are the requirements of a successful trial lawyer?

        A. It is essential a trial lawyer come into the courtroom knowing his case.

        A, he must know the facts.

        B, he must know what he is trying to establish.

        C, he should have a strategy and a program for achieving it.

        To illustrate when I was a Federal District Court Judge for the Southern District of New York I would occasionally have a lawyer come up and say: “Does your Honor want an opening statement?”

        To me this is a foolish inquiry. It is like the producer of a play opening the curtain and saying: “Members of the audience, would you like a prologue or would you rather do without one?”

        Q. So what would you do to become a quality trial lawyer?

        A. Now of course experience helps. A good apprenticeship is helpful. Emulating a master of the art is always a useful thing, but I have always said you have to be yourself. I can’t overstate the point that every trial is theatre, every trial lawyer is a performer, and he must have his style. He has to be himself, natural to himself, compatible with his spirit, with his physical well being, with his appearance, with his dictation, with his style.

        Q. Do you try a case before a jury different than a bench trial.

        A. I do not distinguish between a jury trial and a non jury trial. I regard a non-jury trial as a trial before a one person jury.

        You have an audience, you are writing a play in competition with another playwright who is trying to write a different play. It takes a lot of skill and effort, but it is theatre, there is no question about it. Any significant trial is a contest, and every contest involves a sense of emotional tension.

        The only difference between a bench trial and a jury trial is in a bench trial we have a very experienced theatre goer. Nonetheless, a theatre goer with emotion and a heart waiting to decide for the better play.

        (Edited by PAT).

         

          May 31st, 2012

          Tort Law


          Explained.
          Tort law is the body of  law concerned with civil harm of one against another. The law of torts includes three categories of civil wrongs: intentional torts where the actor intends to commit the harm, negligence where the actor commits a wrong by acting in an unreasonable way, and product liability where a manufacturer places an unsafe product into the market place. All torts have the common thread of causing injury. Lawyers are generally concerned with torts of negligence and product liability. This is because there is usually insurance coverage for negligent and product liability wrongs. Not so with intentional torts.

          Civilized Freedom. In a civilized free society we should be able to do what we desire. We should be able to act freely. But civilized society involves others as well as the actor. In a civilized society the actor is limited in his actions when his actions harm another. Here freedom for one is harm to another and this is not tolerated in a civilized society. Thus, in a civilized society we are free to act up to the point our action harms another.  This is where tort law comes into play.

          Tort Remedy. In tort the the remedy for causing harm to another is money compensation to the harmed person from the person causing the harm. The concept is the person harmed should be placed in the position he was before the harm. When the harm involves a personal injury this means the wrong doer pays the amount of money a jury determines fairly compensates the innocent harmed person.

          Dual Purpose. Tort law protects society’s interests in freedom from harm, with the goal of restoring the person harmed to the position he or she was in prior to the defendant’s harmful conduct. Tort law focuses on protecting people and property by imposing a duty of reasonable care on others. An underlying purpose of tort law is to provide for public safety through deterrence of negligent acts. The concept has a dual purpose. First, provide fair compensation to the harmed person from the person who causes the harm. Second, provide for public safety by way of the deterrent effect of the connection between causing harm to another and having to pay for the harm.

          Misconception. A misconception on tort law has emerged by way of the frivolous lawsuit myth. Pushed by insurance companies the myth is there is something wrong with seeking money compensation for harm caused by the wrongful act of another. Our nation has believed and fostered tort law from the beginning. Our constitution grants the right of jury trial with the idea that fellow citizens will hear the case and provide fairness. If the harm is real and the act causing the harm is a tort then there is nothing frivolous in seeking fair compensation. It is the civilized and proper thing to do. Our society is safer for all of us when fair compensation is properly provided in a tort lawsuit.

            May 24th, 2012

            First Impression

            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.

              May 15th, 2012

              Lawyers Care


              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.”

                May 9th, 2012

                Late Bloomer Trial Lawyer

                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.

                  May 2nd, 2012

                  Learning from Malcolm Gladwell

                  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.

                    April 20th, 2012

                    Thoughts on Losing a Trial

                    541101_10151093860383907_832407924_nThis 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