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

                  March 28th, 2012

                  Personal Injury Case and Casablanca

                  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.

                    March 21st, 2012

                    Offensive Innovation

                    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.”