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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This is a guest post from Howard Spiva of the Spiva Law Group. Howard is currently the President of the Southern Trial Lawyer's Assocation and a very talented and successful trial lawyer from Savannah, Georgia.

A lawsuit, and the trial of a case, is a lot like a battle. The resources, experience, and strength of the attorneys are crucial. The outcome of a lawsuit over a catastrophic or serious injury will affect the rest of the client's life. Often, it's the little things that make big differences.

At my firm,  The War Wagon is one of the many "little things" we use in our "lawsuit battles." The War Wagon is a custom-outfitted, 40-foot motor home. Our War Wagon is always parked just a few minutes walk away from the courtroom. This provides our clients and witnesses comfort and convenience that can give us the edge over opposition, stuck sitting in the courtroom all day, or shuttling back and forth between hotel rooms and the courthouse.

The War Wagon gives us fourteen important advantages, strategic advantages that frequently make huge differences during trial.

Never get caught with your pants down!
The War Wagon is a great place for attorneys and clients to have a private lunch and discuss their case without the risk of being seen or heard by a juror or witness. Countless times, jurors see or hear things in restaurants, unbeknownst to clients or witnesses, that have made or lost trials.

When you look like a winner, you are a winner.
In a long trial, in many older courtrooms with inadequate air conditioning, we use the War Wagon to take a quick shower and change into a fresh shirt during the afternoon recess. When we walk back into a hot and sweaty courtroom, we look fresh and alive. While opposing council looks exhausted and bedraggled, we look like winners.

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In most cases, you have at least one demonstrative exhibit that will will shock or wow the jury. A common mistake is to overexpose that picture to the jury, thereby desensitizing them to it.

Another way to do that it to put a black border tape around all of your foam core exhibits. Except for he one exhibit. Put red border tape around that exhibit. When your foam core boards are leaning up against the wall, the jury will see that they all have black border tape except for the one. That will heighten their curiosity in seeing that exhibit.

After they have seen the exhibit and the boards are leaning up against the wall, they will notice the red border standing out among the black borders and it will remind them of the exhibit without even seeing the picture.

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"It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way- in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only."

And so opens a Tale of Two Cities by Charles Dickens. It's a moving passage and one of the most quoted paragraphs in the English language. However, compare it to this picture from a comic book educational text  Marx for Beginners.

Which one gets the point across better? Work on your demonstrative exhibits so that they really tell your point of view and the get to the point of your case. As you can see from the picture above, it's worth the effort.

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The term “strategy” has been bantered around by so many different people in so many different ways under so many different sets of circumstances that often we lose sight of the true meaning of the term “strategy.”  Some people will say that the strategy of a team in the Super Bowl Game is “to put the ball in the end zone.”  That is not strategy at all but merely an end result or goal.  Others will say that the strategy in a real estate negotiation deal is to “sign the papers and wrap up the deal.”  That is not a strategy at all but rather a destination at the end of a journey.  Therefore, for us to begin this exercise as trial advocates, we must have a plain and straightforward definition or explanation of the term “strategy.”  Accordingly, we will define “STRATEGY” as follows:  Strategy comes in two parts – (a) the step-by-step logical, methodological, and analytical means by which one determines a course of specific action or actions to take or to avoid in order to defeat one’s opponent on a given issue, in a given battle, or in any other form of competition or combat; and (b) a positive approach combined with a negative approach (i.e. playing devil’s advocate) to putting into effect those actual steps that must be taken or avoided to defeat your opponent.  “Strategy” is therefore not the end but rather the means to the end.  Your strategy – simply put – is the way you figure out how in the world you are going to figure out a way to defeat an opponent in any given situation combined with figuring out all of the different ways your opponent is going to utilize to figure out a way to defeating you.  Here is the problem – most trial advocates only take the first part of the approach…by figuring out the steps they need to take to defeat their opponent and ignore the logical analysis being conducted by the opponent as he or she figures out the steps to take or avoid to defeat you.

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To enhance a theme, repetition and anchoring can be used to enhance the the impact and recall of the fact for the jury. Howard Nations talks about anchoring in his great article on themes:

Anchoring Through Repetition - Anchoring is a well accepted psychological technique. Anchoring is a technique whereby a word, a phrase or a theme is repeated. It is repeated from the same spot, with the same gestures, with the same facial expressions, the same tone of voice, and with the same mannerisms. One use for anchoring that everyone can remember was done by the late great Jack Benny, who had a certain way of folding his arms, putting his hand under his chin, and saying the word, "Well...." Pretty soon he was getting laughs without saying the word and then he did not even need to put his hand under his chin. He just used part of the gimmick and the anchor worked.

 

 

Anchoring causes an association of the subject matter anchored with an emotional response that is initiated by the repeated use of the anchoring technique. In essence, it communicates our theme impactfully on an emotional level. Because of the pipeline, the theme is easily recalled and therefore is more likely used. …

 

 

While understanding and using these techniques is no guarantee of success, they give the advocate who knows and understands them a persuasive edge. And in this age of high powered litigation in both large and small cases, any edge that an advocate can achieve is one he or she should have. It is our job to present our client's case in the best light. We can achieve this most effectively by increasing our understanding of how to communicate simply with jurors on all of the levels through which they receive information.I was going to say that the whole article is worth a read, but actually ALL of the articles on Howard’s site are good reading.

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David Dempsey’s  Legally Speaking: 40 Powerful Presentation Principles Lawyers Need to Know is in my pantheon of top five favorite law books. David does a great job of breaking down public speaking, how to organize a speech, how to start it, how to end it, how to practice and refine the speech and so much more.

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PowerPoint gets a lot of bad press. There’s nothing wrong with the software, but there’s a ton of bad PowerPoint presentations out there. I think PowerPoint allows a bad presenter to give bad presentations more easily. Cliff Atkinson’s book Beyond Bullet Points: Using Microsoft PowerPoint to Create Presentations That Inform, Motivate, and Inspire does a great job of moving away from the horrific presentations we’re used to.

 

Cliff urges us to consider what the audience wants to know and how the information will help them. Then take that information and put it in a classical Greek story format so that you’re not just giving facts, but telling a story. Good stuff. Cliff has also set up a template to help people storyboard and turn their information into a story. As a trial lawyer, I appreciate Cliff’s structure and find it helpful, but don’t feel the need to follow it 100% of the time.

 

I’ve also been reading Presentation Zen by Garr Reynolds recently. Garr uses the same concepts as Cliff; e.g. getting away from bullet points, working to focus on what the audience wants to hear and using carefully selected graphics to anchor the points. Garr is an American living in Japan and when focusing on simplicity he focuses on a zen approach. As Garr quotes "Simplicity means the achievement of maximum effect with minimum means." — Dr. Koichi Kawana

 

For trial lawyers this is important stuff. How do we get across information so that people will actually understand and accept the information? It’s not enough that we say things, it has to be understood, accepted and internalized by the juror or audience member. If we don’t have that, we’re just talking in the wind.

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Showing jurors x-rays can be a powerful tool. Especially if your client has a prothesis or hardware. The hardware is a vivid way to make real the pain and difficulties your client has gone through. Assuming you have a laptop and a projector, you can easily get the x-rays into your computer.

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Sample Post so Tom's bio will show.

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Sample Post so that Randy's bio will show.

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Sample Post so that Rick's profile will show.

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