Winning at trial attributes of the great trial lawyers slideshare version
description
Transcript of Winning at trial attributes of the great trial lawyers slideshare version
J.RICGASS
TheLitigationTriangle Gender Differences
Do not liveIn
“The Land of What”
Live inthe parallel
universeof
Verdictsdon’t ask for
what
Why requiresthe ability for
human connection
Getting the why out of photos,
evidence, absent
evidence, inferences
“Dicing The Potato”
Why²Why²Why²Why²
Understanding Understanding actionsactions
&&omissionsomissions
The inference The inference & meaning & meaning beyond the beyond the
photos/visualphotos/visual
Not just WhyNot just WhyNot just WhyNot just Why
RealityRealityFactsFacts
CourtroomCourtroomFactsFacts
VerdictFacts
Your FactsYour Facts
Their FactsTheir Facts
ALLOWS YOU TO MAKE THEM COALESCE
Jury FactsJury FactsJuror FactsJuror Facts
The Power of WhyThe Power of WhyThe Power of UnderstandingThe Power of Understanding
Great Trial Lawyers Understand
Informationisn’t necessarily
Knowledge& it surely isn’t
Wisdom&Understanding
Andcan
explainthat
tojurors
UnderstandingIs How A Trial Comes
TogetherTo get the jury to understand & believe you have to have understanding
Understanding in the trial setting isn’t just understanding {The law
{The facts
But Also UnderstandingThe People:
Opponent WitnessJury JudgeCourt Personnel Yourself
Understanding Witnesses
Their Facts
Understanding Their Psychology
Their Role in The Case
It is asking yourselfNot Just
What is the outline, the Q&A, for this segment?
But: How is this presentationGoing to connect with their head, heart, gut?
But, But: Even more
How is it part of the whole case theme?
But, But, ButWill it connect with the jury’s way of thinking?
14
Do my questions & presentation
Use the right words
Address the emotions
Fit the psychology
Speak visually
Do I Understand?
Great trial lawyers live in a land of solutions not problems
Great trial lawyers live in a land of creativity & execution
They not only can create the solution They have the courtroom ability to execute it
They tell you about problemsbut it always comes with
“and here is what I think we do about that: a solution”
Great Trial Lawyers“play it down the board”
Vizzini - Buttercup - Westley
Great Trial Lawyers Balance
ConvictionRequired to make jurors believe in their position
Abilityto listen to & accept
suggestions/ideas of others
Abilityto internalize their client’s case
& adapt their persona to it
Are Cases "Winners" Or "Losers"OR
Is That ThinkingSelf-Fulfilling Prophecies?
• Importance of case intake selection
• Winners and losers usually are settled
• Trial lawyering wins cases outside the mainstream: Edward Bennet William’s categories
– Losers & Winners
– Horse race cases: good lawyer vs bad lawyer, great lawyer vs good lawyer, & great lawyer vs great lawyer
Ways To Win In Litigation
• Win in pretrial stage by good case development
• Win in mediation by bringing more to the table than money
• Winning in trial by being the best lawyer in the courtroom is what we look at today
Great reporters
Great case developers
Great li
tigato
rs
Great trial lawyers
Our focus today
Most cases don’t go to trial.
Frequently aren’t handled like a trial file from the beginning.
Result:
Settle and don’t go to trial many timesbecause they are not prepared for trial
Too much has to be paid to settle orthe case is lost at trial
Become self-fulfilling prophecies
Great Trial Lawyers RecognizeTrial Work As An Integrated Process
Is• Different than talking just about
techniques and skills
• More than your diction and questions
• Having the right tools and using the tools right
• Talking about an art
The Art of The Art of Trial Trial LawyeringLawyering
TurniTurningngFacts & LawFacts & Law
IntoInto
A A VisualVisual Human StoryHuman Story
Law Facts
Integrated Topic
• But don’t want to chill: can be easy• “Who are you?”• “What are your qualifications to testify?”• “What did you see? Know? What opinions?”• “Pass the witness”
• Carryover• Debriefs – After action reviews• Technique of each case lies in each case - Columbo• What carryover for Tom Hanks from Forrest Gump to Apollo 13?
• But with great trial lawyers it is something larger
OnlyDoes
BrainsOnlyDoes
Rockets
The Trial LawyerDoesFactsLaw
Stories
Masters the substance of the case Persuades people
With language at a 6th grade levelOn topics requiring
The world’s foremost experts
Great Trial Lawyersare psychologically able to handle
Both losing & winning
Handling losing is easy
Handling winning is more difficult
The single most important skill
Figuring outWhy You Won
Judge you got or avoided?
Jury or a specific juror?
Opposing counsel?Facts dealt to you?Your skill?
In doing what?MILs?Persona?Instructions?Verdict form?
Voir dire?Opening?Direct?Cross?
Closing?Visuals?Exhibits?Objections?
Story/theme?Organization?Witness selection?Witness preparation?
Realized
TrustTheir ability to learn
more thanholding on to
things achieved
The Great Trial Lawyers
How do you learn from the AAR
process?
Learning is different than just doing
It isn’t basking in glory Or pouting in defeat
It isn’t just what you did and what happened
It’s what you did and why it happened
Can it be applied in the next trial? “Does it have legs?”
Based on my “yin & yang”: Cases where brought in just to do the trial Cases I get to develop from the beginning
To plan for the next trial
To become a great trial lawyer
Using the
After Action
Review process
BringinBringingg
It It TogetheTogether r
For For TrialTrial
TheTheEight Eight
DimensioDimensionsns
Of Trial Of Trial
UnderstandiUnderstandingng
A StoryA Story
Globally Globally AdhesiveAdhesive
PersuasivelPersuasivelyy
Legal Legal ElementsElements
LogisticallyLogistically
Witnesses, motions, Witnesses, motions, briefs, exam outlines, briefs, exam outlines,
demonstratives, demonstratives, exhibits, supplies, exhibits, supplies,
equipment, …equipment, …
5 5 PresentatioPresentatio
nn•MessengerMessenger
•MessageMessage•MediumMedium
8 Wild 8 Wild CardsCards
7 Group Decision 7 Group Decision MakingMaking
6 Jury 6 Jury MakeupMakeup
4 4 PersonaPersona
3 3 EmotionsEmotions
1 1 FactsFacts
2 Law2 Law
TheThe StoryStoryAbove Above
The The EvidencEvidenc
ee
Style can Style can kill kill
contentcontent
TheMessenger
The Attributes Of The Trial Lawyer
IntelligenceTrial “IQ”
• Not just raw brain power• It helps
• Not necessarily your school• What you learned is more important
than where you learned• Other kinds of IQ – Like emotional IQ• Trial IQ: Whether you continue studying &
learning• Not the science of your specialty
• Not the law of your specialty • The “art & science” of trying cases
Translation
On three levels• Common sense• Undeniable logic• Personal force
• Not just jargon – AP view vs PA view
• Translating/Integrating what happened and why into• Legal rules• Wisdom and justice• Doing what is right
• Requires ability to recognize those
Force of Personality
• This one is tricky• Nice people don’t always win• Nice people don’t always deserve to win• Don’t compromise logic/reason to be nice
• My up front “warning” in voir dire: “I can be stern”• “We didn’t like Mr. Murphy but we had to find for his client.”
• Not the same with everyone• Everyone does it differently• Not necessarily physical -- not BIG vs SMALL
• Soft spokeness v. loudness• Neither end of spectrum works well
• Bottom-line: Ethos• Jurors perception of your internal credibility
• It is:
• The book: You Are The Message (Roger
Ailes)
• Eyes• Energy• Conviction & Passion
• Ability to summon this skill on demand and at the right time
• Great trial lawyers create "The Answer“• It matters not what the witness says
• Carries over into• Client relations• Witness prep• Dealings with opponent
• Dealings with judge
• Ability to connect in the terms of the time: • "I Feel Your Pain”
• Ability to stop thinking about the problem
and start looking for the solution
• A belief you can find the solution
• A belief that failure is not an option
• But watch out for
• Conviction: a blessing and a curse
Stage Presence
• Read Ball “Theater Tips and Strategies
for Lawyers”• Be conscious of it – think about it – visualize it• Non-verbal communication -- huge percent
of communication• Mark your territory• Use of computer: pros & cons – alert jury to it• Ipad/TrialPad vs computer for visuals
•Atty or paralegal or demonstrative person “running the clicker”
Preparation
• It takes Seal Team Six• to get me into final preparation
• It takes Seal Team Six• to make me stop once I start
• Build in trial prep as you do case development• Develop triggers for the pleasure of preparation• Develop aids
• Voir dire spread sheet• The daily trial report form
Organization
• Gives you the right tool for the right time
• Facilitates the right decision
• Facilitates the right instinctive decision under fire
• Allows not just compliance with the rules, but makes them work for you
• Allows the luxury of conscious thinking unimpeded with the mundane or basic
• Doesn’t stifle creativity but rather allows time to be creative and efficient
• Not only gets you prepared
• Juries notice organization and disorganization
• Juries penalize disorganization and reward organization
• Organization puts you on offense and your opponent on defense
• Organization puts pressure on your opponent and relieves pressure on you for trial or settlement
• Organization wins cases and gives you peace of mind
51
This cannot be us
... The Friday Before Trial
Or this
... The Friday Before Trial
100 Days To Trial
• Look at the stages of trial• What you have to/should be doing at each stage• What can you do at each stage• Then create specific items for the last 100 days
to trial• But, to win settlements and trials
you have to want to go to trial
The Spectrumof Trial LawyersWhere Do you want to be?
WillingWilling to go to to go to
trialtrial
““You really You really enjoy this, enjoy this, don’t youdon’t you??
Never goes to trialNever goes to trialYou have to settle.”You have to settle.”
“ “Things are Things are going badly. going badly.
Experience
●This one is tricky also
●Can’t be 20 years at level 1
●It has to be 20 levels in 20 years
●Examples
●“The witness who smelled of alcohol”
●“The “Use the stick before a break and
the carrot after the break”
Passion
●Passion for the case and the trial
●Passion for trials in general
●On the level of passion for golf
●Live, eat, sleep and breathe trials
Courage
Courageis the first of human qualities
because it is the quality that guaranteesall others.
Winston Churchill
●The No Blink zone
●To stand by
●your evaluation and
●your advice
●To stand up to opposing counsel
●To stand up to courtroom abuse
●To stand up to an injustice
Commonsense
●It’s not what a jury will do
●It's what a great trial lawyer can convince a jury to do
●Tempered by commonsense
● to recognize
●the bounds of
●your abilities and
●your facts and
●not by the bounds of your ego
Intelligence
Trial “IQ”
PassionOrganizati
on
Commonsense
Experience
Preparation
Translation
Stage Presence
Courage
Force of Personalit
y
I I hearhearAnd I forgetAnd I forget
I I seeseeAnd I And I rememberremember
I I dodoAnd I And I
understandunderstand
Do All The Good Things You Do Now
Be the trusted guideBe the trusted guide
Be the trusted teacherBe the trusted teacher
Be the translatorBe the translator
Trial Work Is An ArtArtArt flourishes where:flourishes where:
there’s a sense of adventure;there’s a sense of adventure;
a sense of never having been done before;a sense of never having been done before;
of complete freedom to experiment.of complete freedom to experiment.
When caution comes into art, you get repetition,When caution comes into art, you get repetition,
and repetition is the death of art.and repetition is the death of art.
Alfred North Whitehead.Alfred North Whitehead.
ConclusionConclusion
They may forget what you said.They may forget what you said.
They will never forgetThey will never forgethow you made them feel.how you made them feel.
Carl W. BoehnerCarl W. Boehner
IntelligenceTrial “IQ”
PassionOrganizatio
n
Commonsense
Experience
Preparation
Translation
Force of Personality
CourageStage
Presence