Trial Lawyer Resource Center

I read an interesting wire service article in the Maryland Daily Record today on Gerry Spence's Trial Lawyers College. Given Gerry Spence's trial record and the verdicts he has obtained, it is hard not to be interested in copying the tactics and strategies he employs. The question is whether his approach can be successfully adopted by other lawyers.

The goal of Gerry Spence's Trial Lawyers College is to teach trial lawyers how to be more successful in the courtroom and to win big verdicts for their clients. One of the fundamental principles of Gerry Spence that has filtered down to the Trial Lawyers College is the idea that personal injury lawyers need to learn how to become good storytellers. Obviously, trying a case well requires lawyers to convincingly convey their client's story to the jury. The methods the Trial College uses range from the unusual to the bizarre. The first step in "How to Be a Storyteller" is having the lawyers reconnect with their emotional selves, and the summer camp atmosphere is supposed to enable this process. The Trial Lawyers College has the attorneys share meals, chores, and talks around the campfire in hopes that they will "rediscover their own humanness."

This may be the most normal aspect of the Trial Lawyers College. During their sessions, lawyers role-play scenes from their own lives while complete strangers play the role of loved ones. They are supposed to use this opportunity to embrace personal pain and hardship and to learn to love themselves. Part career workshop, part therapy session, the College's classes use this psychodrama role-play to enable the attorneys to reconnect with their humanity. Once the participants connect with themselves (or have themselves voluntarily committed), the Trial Lawyers College teaches them to translate this into a connection with their client. The role-play switches from scenes from the lawyers' pasts to scenes from their clients' own lives. The ultimate goal is to enable the attorneys to create opening or closing statements that truly capture the personal impact on the client.

Last night, the 23 point underdog Philadelphia Eagles played a surprisingly close game against the obscenely dominant New England Patriots. The talk after the game was how the rest of the league will now copy Philadelphia's defense schemes against the Patriots. With obvious limitations, this can work in football. But when it comes to connecting with a jury authentically, the copycat game plan can lead you astray.

I wrote a post a while back for the Trial Lawyers Resource Center, commenting on one writer's view that trial lawyers should not wear bowties at trial. My response was essentially that you should wear bowties if you are a bowtie guy because to connect with people, you have to be yourself. Usually I steer clear of such trite advice. But in this case, it really is true. You have to be yourself or at least an authentic ambassador of yourself to connect with skeptical juries whose initial suspicions are mistrust.

There are a lot of successful personal injury lawyers who do not have the same connection to their inner selves and try a very effective personal injury case and can connect with a jury. I believe wholeheartedly in the idea that you need to tell a quality story to the jury. There are about 1000 things everyone can learn about trying a case from Gerry Spence which is why I have read all of his books and why if I had the opportunity and did not have three small kids, I would love to go to the Trial Lawyers College. But if you try to copy his touchy-feely emoting style at trial, you better have the personality to back it up or you are going to fall on your face in front of the jury.

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There is an article today in the “Maryland Daily Record” titled, “Beware of Bow Ties and Diamonds in Court.” I liked the title. But I disagree with the premise. The article by Paul Mark Sandler, a prolific Maryland lawyer and author, is somewhat more nuanced than the title suggests. But he does suggest that lawyers should be cautious in wearing bow ties or jewelry, writing that trial lawyers should be “conservative in a way that is compatible for what is comfortable” for them. He also writes of the concern of wearing expensive clothing or cuff links on the theory that “expensive looking jewelry can create a gulf that interferes with having the jury ‘identify’ with the lawyer.”

This is the conventional wisdom. But as I have written in the past on the Maryland Injury Lawyer Blog, I completely disagree with it. I think what really “creates a gulf’ between a trial lawyer and a jury is when the lawyer is not authentic. My style is very conservative. I would feel uncomfortable with a diamond stud earring in my ear. But some lawyers in conservative suits look like your cousin who puts on that same conservative suit for every wedding, and he looks like he wants to crawl out of it. Your cousin does not look or feel authentic, which is why he looks so pained, as would some lawyers putting on the same suit. Now, some people can fake stepping outside themselves so well that they appear authentic. But I can’t and neither can most people.

I suspect that Gerry Spence would not be Gerry Spence if he followed this advice. My suggestion as to how to dress and act at trial is simple advice to follow: be authentic and be yourself.

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Most states have a statutory life excpectancy statute in cases where there is permanent harm to the plainitiff. But what is the best way to explain that to the jury? Once you have a statutory life expectancy of 34.6 years? How do you get a jury to see the maximum impact?

One good way is to flip the time backwards and show them all that's happened in the past 34.6 years. Something like this:

Ladies and gentleman of the jury, the judge is going to instruct you that Joe is going to have these problems for 34.6 years. That's a long time. You don't need a lawyer to tell you that. You know that. But it's difficult to understand just how long 34.6 years is.

If we look backwards, rather than forwards 34.6 years ago was 1972. Richard Nixon had just been re-elected and Watergate had not taken place yet. First Time Ever I Saw Your Face by Roberta Flack was the most popular song.

1972 was 10 years before the personal computer. Our soldiers were still in Vietnam.

Think about the presidents we've had since that time and what all has happened in your life. Richard Nixon, Gerald Ford, Ronald Reagan twice, George Herbert Walker Bush, Bill Clinton twice, George W. Bush twice. That's a long time.

Think about all that's changed in our life since 1972. The invention of computers, vcrs, cable tv, dvd's, the internet and so on....

That's how long 34.6 years is. That's how long Joe will have to live with his pain. 34 birthdays, 34 Christmases, 34 New Years Eve's and 34 anniversaries.

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Over the next year, I want to take a stack of closing argument transcripts and break them down to their basic components. There are certain items that have to be argued in every closing argument. An example of some are:

 

• Burden of Proof  – Only a preponderance of the evidence
• Empowering the jury – It’s their decision and not anyone else’s
• Personal Responsibility – That the defendant needs to take responsibility for his own actions
• Only Chance for Compensation – That the client only gets one trial and can’t come back for more money if there’s not enough.
• Intangible damages – Descriptions on how to make intangible damages real.
• Lost Wages – While it seems like a lot, it has to last a lifetime
• Life care plan – While it seems like a lot, it has to last a lifetime

 

In addition to those, there are a number of arguments that are frequently made on common themes. For example, corporate greed, a moment of neglect a lifetime of grief, cases involving a child, comparative negligence and others.

 

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