Tips for Young Attorneys
Judges don’t like it when us attorneys can’t stop bickering. They are irritated by having to deal with our exchanges of snipes, digs and downright insults.
Last month after a trial ended, two jurors followed me down to the courthouse lobby. They wanted to talk about what happened. Both commented on how impressed they were that the attorneys acted in a civil manner. Sure we disagreed with each other and objected and there were tense moments. But we were not overly disrespectful like the lawyers they saw on television. They appreciated that. I thought this was an interesting comment because I could not stand the lead defense attorney. Every time he opened his mouth I could feel my teeth clench.
I’m not saying we shouldn’t fight when we need to. Our job as lawyers is not to make a judge happy. But there is merit to the old proverb that we should pick our battles wisely.
Here are some strategies on how to avoid being drawn into petty fights before judge or jury:
- Learn how to maintain a calm yoga like façade
- Master the art of not rolling eyes
- Bite tongue
- Be physically still – don’t ruffle papers, drum with pen, or slam iPad on table
- Don’t use counsel’s first name
- Slow down when speaking
- Slow down when breathing
- Do not interrupt
- Don’t try to defend everything
- Don’t try to justify everything
- Have faith in the truth
- Wait your turn
- When the other side takes your turn wait for your next turn
- You don’t need to be overly polite
- Don’t be rude
- Be respectful even when wronged
- Carefully limit and pick your fighting moments and then maximize them
- If you hear yourself whining: “but your honor” over and over again – stop it.
- When you lose your temper and start fighting anyway – forgive yourself and move on
Photo: South Lake Union totem
Title: Keep your head to the sky. By Maurice White 1973
“Atticus told me to delete the adjectives and I’d have the facts.” – Chapter 7 of To Kill a Mockingbird
Her right leg was catastrophically smashed, causing excruciating and unrelenting pain. The limb felt like it was being stabbed a million times by a sharp knife. The sharp burning pain became absolutely unbearable to the point where she was forced to take vicodin. She was reluctant to take this narcotic drug, but her overwhelming distress left her no better option. Even so, when she finally managed to choke down the potentially addictive drug, it didn’t help alleviate her suffering. She was unable to get a restful, healing and nurturing sleep, because every time she turned over or made any movement, her severely injured and damaged leg would go into spasms of terrible pain that strongly radiated throughout her fatigued and shaking body. Fortunately, no bones were broken. It took almost six weeks before her badly stretched and tortured ligaments recovered enough for her to begin running again.
We learned the power of adjectives starting in about the second grade. These “describing words” add color to our communication .
In the legal profession, lawyers tend to be very good with language. We enjoy flexing our grammatical skills. Adjectives are high on the list of words that we like to use. So we use a lot of them.
But in our quest to persuade with adjectives, we run the risk of appearing overly melodramatic. The melody and rhythm of what we are saying, is drowned out by disharmony. The audience has difficulty finding its way through our tune. And eventually resorts to ignoring the babble. This process in turn subverts our perceived credibility with both judges and juries.
Here are some thoughts on using adjectives:
- Less is (usually) more
- Save strong ones for moments where emphasis is actually needed
- Don’t use the same one repeatedly within a short time span
- Don’t rely upon them to explain what is going on
- Avoid stringing them together
- Don’t assume they are helping to make your point
- Stop thinking that you can manipulate the audience’s emotions through the use of adjectives
- Practice self restraint in employing them
- Try to hear (from others’ perspectives) what you are saying
- Try to read (from others’ perspectives) what you are writing
- Respect the delicacy involved in using them
- Make sure they have the right tenor
Photo: By Alysha – My melodramatic mother in her pink piggy slippers and slogan shirt.
We are up at the mountain. John, my then husband, his best friend Dale, and me. Our mission – teach John to ski. He is a basketball player. This means skiing has not been encouraged over the years by his coaches.
After finding gear that actually fits, we mosy on over to the base of the lift. Dale and I are shouting out instructions and words of encouragement.
Predictably, not long into it, John topples over.
I say – just flip your leg over, keep your ski tips pointed slightly up and parrallel and then using your poles just pull yourself up.
I get down on the snow next to him, do the manuever and pop up. See, do it just like that, I say.
Over and over this pattern goes. Dale by now has left the scene (traitor).
John is starting to sweat and finally tells me to go away and leave him alone.
I ski off in a huff. From the lift watch him take his skis off, stand up and put them back on.
As you can see by the picture, I had been skiing pretty much as long as I’d been walking. I was experienced and had good technique. I was not just giving verbal instructions, but got down and demonstrated. Multiple times. And John was extremely athletic. So what was the problem.
Well, for starters on a good day, I was almost 5’4. And John was 6’8.
Among other things, my skiis and poles were two feet shorter.
Here’s the point.
We humans learn through emulation. We identify someone who has a skillset we admire. And then we try to follow their example.
The trial lawyer culture is premised on this learning model.
But at the end of the day, imitation will only get you so far.
Photo: Baby Karen in heart ski suit, no gloves, wooden skis with interesting straps and apparently, snow boots.
There’s a well known “rule” that has floated around for years amongst litigators. It goes like this. If your opponent asks you for something, it’s okay to say yes. But only if they give you something that you need back in return.
I know some people who never deviate from that rule. Saying yes without getting something out of it, is seen as a sign of weakness. Or ineffectiveness.
This trial lawyer warrior credo is found in Sun Tse The Art of War. A bible of sorts for trial lawyers. I have a dog eared copy on my office bookshelf. Here is one of many such quotes: “The clever combatant imposes his will on the enemy, but does not allow the enemy’s will to be imposed on him.” Grrrrrrrrrrrr.
Of course, as with all bibles, a single quote can easily be taken out of context.
There are plenty of reasons to try to work out pieces of a case with the other side. There are also plenty of reasons to stand firm and not give an inch.
As a younger lawyer, I pretty much never agreed to anything. Too insecure that I would be giving up a strategic advantage. Plus I was trained first as a defense lawyer which meant i was pretty mean.
Now, I pick my battles. Here are some of the factors that go into the decision of how and whether To Agree or Not To Agree:
- When asked, don’t say yes right away. Say you’ll get back to them.
- Think around the issue as completely as possible from all angles.
- If something bad can happen, even if only a remote possibility, don’t agree.
- Assume something bad will happen. Only after you can convince yourself that there is no downside should you say yes.
- Whether you and the defense lawyer already get along shouldn’t add anything to the equation. Making friends is not your job. Representing your client’s interests is your only concern.
- In Washington, court rule 2A requires any agreement like this to be in writing. Otherwise the handshake means nothing.
- If there is no downside, put aside ego and say yes. You may need a return favor one day.
- Write pretty emails that point out how cooperative you are being. If there’s a dispute later, your writings can be exhibit A.
Photo: The girls as Pocahantas on Halloween a long time ago… And why is it being used to illustrate this post you wonder…Because (as I’m sure you will agree) it’s so cute of course.
The dreaded motion has arrived. The defense has moved to prematurely dismiss your client’s case on some legal technicality. Even though you’ve probably seen this coming, your first instinct is to panic. Then you devour the entire motion. Get mad. And attack it point by miniscule point. Smoosh it to smithereens – at least in your own mind.
The defense wants you to be reactive to a motion for summary judgment in just this way. This means you will fight the battle on their turf. You will be defending your case (instead of prosecuting it). You will be focusing the judge on what the other side says is important.
Here are my thoughts on how to respond to an MSJ:
- Let it sit on your desk or inbox until your anger based adrenaline has subsided. This means at least a full day.
- The next day read it quickly to get the essence. Then leave it alone for at least another full day. It needs to percolate.
- The next day read it more thoroughly. Decide if witness declarations will be needed. These should be a top priority.
- Contact the witnesses and secure signed declarations. This is harder than it sounds on all levels.
- Do not make up stuff and stick it in declarations.
- Try to use the witnesses’ own words and tone of voice.
- Don’t just retype expert reports into the form of a declaration. They need to read the MSJ and rebut the bad stuff.
- Review any depositions, interrogatory answers or other documents that have to do with the liability case.
- You should have already taken key depositions to develop evidence to resist an MSJ.
- If you don’t have all the discovery needed, move for continuance under CR 56F. This means you have to list out everything that you expect to be able to secure and prove.
- Make note of the best evidence you have to support your client’s case.
- Read and analyze all of the related laws, statutes, ordinances, standards and case precedent.
- When researching, avoid a Google mentality. One click leading to one answer means you have done it wrong.
- Don’t ever misquote anything
- Re-read the MSJ completely from top to bottom before beginning to draft the response
- Ignore their briefing when setting up the format of your response.
- I was taught to draft a fantastic conclusion that set forth succinctly and persuasively the best reasons the motion should be denied. Draft that section first and instead of putting it at the end put it at the beginning.
- Anchor the case with a broader morality/public policy component.
- Judges shouldn’t have to wait for the end of a 24 page brief before finding out your best argument.
- Give the judge your roadmap on page one.
- Your entire brief should be premised upon that initial position statement.
- Do not restate the other side’s issues and base your response around them.
- Do not set forth issues in technical legalistic jargon.
- Don’t set forth the issues as questions “should the court…” and then answer them “Yes.”
- Frame the issues the way they should be framed.
- Remember you represent the plaintiff – the one who brought this suit and needs to be advancing it
- Set forth the issues affirmatively as statements
- Do not tell the court that they must do something.
- Be respectful to the judge and don’t try to order them around
- Be intelligent but not obnoxiously so. This is a fine line for lawyers. We do like to dazzle.
- Avoid legalese. Jurors aren’t the only ones tired of hereins, thereins, heretos, and thuses.
- Completely re-state the facts. Don’t simply add to or clarify the facts in the MSJ.
- Folklore has it that a case is usually won on its statement of facts. So make them as compelling as you possibly can.
- Support each statement of fact with a reference. Otherwise it is simply considered to be fiction and will be ignored.
- Don’t put the references in the text. Put them in footnotes. This makes for an easier read.
- Put key documents including photos directly into the text. Hyperlink them to working copies if you can. Attach them also as exhibits.
- All the exhibits need to be verified as being true and correct by declaration.
- Don’t waste pages by creating a specific section in the response brief that lists all the exhibits.
- Use your statement of issues as the outline for the argument.
- Lead with your best arguments first.
- Address and demolish the defense arguments somewhere in the brief.
- Don’t pretend that good points raised by the defense don’t exist. They exist. So deal with them.
- Avoid a defensive tone.
- Don’t be petty, derogatory, arrogant, or condescending.
- Save aggressive adjectives and verbs for occasions when they are truly deserved. Then use them elegantly.
- Research every single case cited by the defense. This is where they usually flub up.
- Obey page limits precisely.
- Obey time limits precisely.
- Complete the draft response several days before it is due.
- Then let it sit for a day before having another go at it.
Photo: Anne and John at The Lucky Diner in Belltown where we have our morning staff meetings to discuss things like MSJs.
These are thoughts and feelings of fellow trial lawyers who sent emails following the day after a crappy jury verdict post.
With the “wins” we think that everything we did was brilliant and it was not. Of course, with the losses we think that everything we did was bad and it was not. J.H. Miami, FL
No question, we always are riding into the wind, which steadily blows at the back of the defense. I have seen cases where the jury is ready, willing and able to do all the work for my opponent, who literally did not have to do a thing in order to win. B.B. Seattle, WA
Funny you should say what you did about losing. In my opinion, you are right on. In many of my major CLEs in recent years, I have made a point of telling my audiences about a major case I have lost. Just two days ago I told 300 Texas lawyers about losing my robot case. Points I made:
- Real trial lawyers hate to lose.
- Real trial lawyers still lose.
- Going to trial and losing makes your subsequent cases worth more in settlement than if you had simply settled your case.
- It is a disservice to us all not to talk about losing. It creates a climate of shame around losing that should not be there. That climate makes people afraid to go to trial.
I did not say so for politically correct reasons, but it seems similar to me to the message Americans (especially girls and women) get about their looks. We see photos of airbrushed models and then compare ourselves to them. We become ashamed of how we look because we compare ourselves to an unrealistic ideal.
After telling the Texas lawyers about my loss—in detail—I then asked how many thought less of me as a person for losing the case. (No hands) How many thought less of me as a lawyer. (No hands) Then, “How many of you think less of yourselves when you lose?”
Then I had them do a thought experiment: “Close your eyes. All of you, I mean it, close your eyes. Think about a trial that you lost—the most painful loss you can think of. Feel your client sitting next to you. Watch as the jury files in. Scan them to see which one is the foreperson—the one carrying the verdict form. Look at their faces to try to figure out if you won or lost. Watch the foreperson hand the verdict form to the clerk. Watch the judge’s face as he reads the verdict form, trying to figure out what the verdict is. Hear him announce the verdict. What are you feeling? I usually feel sick to my stomach and sweaty all over. Stay with that feeling…
“Now, you have a magic button. You can press that button and change the past. Press that button and you will be transported to the other side of the courtroom. You will be the defense lawyer who just won a very difficult trial. You will feel great. How many want to press that button?”
Somehow, I don’t think you would press that button Karen. Rick Friedman, Bremerton, WA
John R. always said “If you’re not big enough to lose, your not big enough to win.” Besides all the other lessons, if we were ashamed of our losses, we would never take the tough cases that can make the law more just. F.I. Seattle, WA
I feel your pain. J.K. Bellevue, WA
I am proud of you because you tried the case. You learn and get better with each trial and, most importantly, the defense knows that you will try the card. That fact raises the value of all of your settlements (probably doubles) for all of your other clients. Justice Tom Chambers, Seattle, WA
We have all been there. Few will admit it. Fewer still will share their losses. T.H. Canada
After the first couple of cases I tried representing a plaintiff I told every other client(s) that went to trial: At the end of this trial you will tell everyone I was an incompetent idiot if you are not awarded the money you believe you deserve. If by some reason you are awarded damages you will tell everyone that you didn’t need me.” D.P. West Palm Beach, FL
If you lose a trial, do not feel bad, if you have done your best. It is nothing compared to many other losses- lost time with family when you are preparing a case, lost time with your husband or wife or kids when they are growing up or the loss of a wife, husband or child. R.H. Lexington, S.C.
Losing makes us all better trial lawyers. Because that is when we really search ourselves deeply to learn from what went wrong And how we can do better in the future. And what mistakes not too repeat. Losing is a refinement process for success. It is in fact a gift. J.N. Atlanta, GA
The Man In The Arena
“It is not the critic who counts; not the man who points out how the strong man stumbles, 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 errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end 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 neither know victory nor defeat.”Theodore Roosevelt, 1910
It is the client that has to live with the result forever – after an unjust result we will remember, we will hurt, we will beat ourselves up because of any number of decisions that we made that we think could have influenced the case to the positive (ignoring the many more decisions made that did just that) –and in my case, go home and have one too many alcoholic beverages, swear and cuss, cuddle with the wife as I discuss my failings, or the stupidity of the jury or whatever and, too often, suffer another sleepless night worried not about finances, or health, or family (ok sometimes family) but mainly about the client and what I should have done. L.S. Larry Slagle
I had to laugh when I read your comments about losing cases and what to do in the aftermath —- That is exactly what I still do over a case I tried and lost in Cleveland in 1985… I am almost over it. R.I. Novato, CA
I remember one night when I was in trial…I had not seen my Mom and Dad for a while because of all the work. Mom had pretty advanced Alzheimers and Dad had gone blind a few years before. We had 24/7 care for them in their home. I missed them so I went to their home around 8 pm. They were in bed by then and I crawled into their king size bed and lay down between them.
My Mom rolled over slightly and I said softly …“ Hi Mom… it’s me Jan.”
Mom said “Oh Jan.” After a moment she said…”Did you graduate from high school?”
I said “…Yeah Mom, I did… and then I went to college… and then to law school… and I became a lawyer.”
She said “Really…a lawwwyyyyer?”
I said “Yes…and I am so sorry I haven’t been to see you lately but I’ve been in trial and I couldn’t get here”…
She said “Oh no dear…you’re in trial… you have to work hard.”
Just then my Dad kind of rolled toward me and said “JAN?”
I replied “Hi Dad – It’s me”
He waited a couple of seconds before he said – “Aren’t you a little old to be in bed with your parents?”
: ) (ok maybe)
I stayed for a little while and finally said I had to go. As I went to leave after our “I love yous”…
Mom said in her quiet sleepy voice…”Kill ‘em dear…”
Dad said in his gruff lawyer voice…”Eat em up!”
I don’t remember the case. I don’t remember if I won or lost. I remember this moment.
Jack Kornfield says that in the end only three things will matter:
How well we have lived.
How well we have loved
And how well we have learned to let go.
Janice Kim, Honolulu, HI
I think a lot about whether I try or settle too many cases. I worry that I am sometimes settling cases because of fear, and not because of the true value of a case or that the client cannot wait any longer for a decision. A.P., Edmonds, WA
At worst it’s way better than a trial skills CLE. D.S. Spokane, WA
Very few lawyers feel comfortable about losing. And thus the urban myth that good trial lawyers always win continues. I would love to see a conference devoted only to lessons we learned by losing. D.S. Marina Del Ray, CA
But when I know that even the best trial attorneys can get an unsatisfactory result, it gives me the courage to be a trial lawyer who tries cases, even the hard ones. And in the end—like Tom Chambers wrote to you—that means a better result in more of our cases, even the ones that settle. G.M., Seattle, WA
Everyone must walk through their ring of fire. S.W. Lafayette, LA
[A]fter deliberating for two days the jury returned a defense verdict yesterday. I had the feeling that Rick described and it was even worse after listening to the jurors justify their verdict. Their comments did not make sense to me. Interestingly one of the jurors could remember my attire but yet his recollection of the evidence in the case was flat wrong.
I came back to the office and that sick feeling did not go away, I had to leave for the afternoon. And today I tried to convince myself it was a new day and I would put it behind me. Here I am this morning trying my best to get things done and yet I still have those feelings (anger, second guessing, confusion, sick stomach, actual pain all through my neck and shoulders that I did not have yesterday before the verdict). … no matter how good it may feel to win from the defense table, I can’t see myself doing that again. J.S. Seattle, WA
I am still haunted about my first personal injury defense verdict, which was over 25 years ago, and the emotions and insecurities you and Rick talked about rang true for me. S.T. Bellevue, WA
It takes guts, and a little insanity, to climb into the ring each time knowing that you are going to have to take some punches in order to have the chance to achieve justice. Sometimes justice is the bigger picture. S.H. Bellevue, WA
If you are truly out there battling for justice, you have high and lows and take some on the chin more than you’d like, but you pick yourself up, and you straighten your back and get back in the battle. S.F. Los Angeles, CA
The clients from the cases I’ve lost, all hang out in a room in my mind called the ‘Kick-me’ room. I go there when I screw something up and let them berate me until I get my fill of self-flagellation. Then I close the door and try to forget… S.S. Issaquah, WA
When I first started as a trial attorney, I had the false assumption that everyone won every case because if I went from what I heard and read that would be accurate as we have a tendency to only report our wins rather than losses. When I had my first loss, I was crushed. I thought trial lawyers don’t lose “what did I do wrong?” I spent nearly a week holed up in my office trying to pinpoint what I could have done differently. I questioned my being a lawyer and thought about changing careers. Thankfully, I had a good mentor who set me straight. Now the losses still sting but I think I have a greater appreciation for the wins. K.K. Olympia, WA
I guess it’s human nature to try to hide the warts, so why should I expect anything different from us. P.M. Macon, GA
I know no salve to make the sting of an injustice go away other than time and the next trial. L.K. Bellevue, WA
I turned down $500K a month ago after closing argument in a Nursing Home case and received a defense verdict. The Judge and Defense counsel were confident that we were headed for a big compensatory and then punitive verdict – hence the offer. I should have used their fear to negotiate a good settlement.
I got carried away with how well everyone thought my case was going. Lesson learned.
Everyone loses – no matter how talented – no matter how effective. Every Plaintiff’s trial lawyer in the world since the beginning of jurisprudence loses.
It is a numbers game. You try enough good cases and you will eventually get a number of great verdicts – and you will also lose.
No one can win every case. B.D. Beachwood, OH
As an ex-motorcycle racer, I have to add one to the mix that crosses well and has always stuck in my mind:
If you’ve never crashed, you’ve never really raced. An occasional crash is the only true test to know you were pushing the limit and taking the chances needed to get the big win. If you can win without ever crashing, its time to find tougher competition. M.A. Spokane, WA
Photo: Picture hanging on my wall: “If thou faint in the time of adversity thy strength is small.” Proverbs 24:10. My life verse since the late 1980s.
The day after.
Oprah talks about the power that our bad secrets hold over us. The amount of time and energy we spend keeping them hidden. The worrying that others will find out. The feelings of unworthiness that fester from trying to suppress our embarrassments.
For trial lawyers, the bad secrets are the crappy verdicts that juries render. Our culture is dedicated to trumpeting big wins but rarely mentioning the small ones. In hushed tones, we talk of losses that we hear about through the grapevine. We rarely say anything directly to the attorneys who drop out of sight to nurse the pain.
This month our state bar ran a story that I wrote 8 years ago on humility. What a coincidence.
Here is what happens after getting yesterday’s crappy verdict.
- Console client. Nothing else matters until that is done.
- Avoid everyone in the office as much as possible. But can’t really.
- Make a pretense of working. Don’t get anything done.
- Send immediate notice of verdict to everyone at office and on trial diary list – because have made vow to always be all the way real.
- Wish didn’t have to broadcast verdict.
- Bet law partners wished I didn’t broadcast the verdict.
- Think of four or five prominent trial lawyers who have gotten defensed recently.
- And of how quiet they are.
- Think about all the lawyers who ask me to work on their client’s cases – even though they know I don’t always win
- Think about how Steve N brought me in to settle or try a case that resolved last month for a very large but secret sum.
- Think about the case tried 2 months ago with Steve H that Allstate is whining about. They need to hurry up and pay that verdict and our fees.
- Wish this case had turned out as great as those cases.
- Think about what a crappy company Allstate is and how that complicated this trial
- Second guess whether should have followed Brad’s advice. Taken a covenant and tried liability later against Allstate who claimed the acts were intentional and not covered.
- Eeny meeny miny moe. Should have taken his advice or not or should have or not…
- Mentally bang head against wall
- Begin to receive slew of condolence emails and inspirational emails.
- Don’t answer any of them. Yet.
- Read most important email from most important mentor: Karen, I am proud of you because you tried the case. You learn and get better with each trial and, most importantly, the defense knows that you will try the case. That fact raises the value of all of your settlements (probably doubles) for all of your other clients. Tom (Chambers)
- Read email from Janice Kim instructing me to go watch a movie as soon as possible
- Email back and forth with Rick Friedman about trying hard cases
- Put Nala’s leash on and leave office at lunch time with no intention of returning.
- Get in car and don’t get lunch.
- Noelle sends me number to call. Call it. She is at the Rome airport. Gives a progress update. On her way to study abroad in Sienna. Love you, Bye.
- Drop Nala off at home.
- Drive to Salvation Army thrift store. Look at all the bits and pieces of old stuff. Find a pretty antique silver tray.
- Drive across the street to Pacific Galleries. Very large antique store. Look at all the bits and pieces and don’t buy anything.
- Drive to Home Depot and get some more pink annuals for the deck pot. While at Home Depot Cristina calls.
- How are you doing
- Am pissed off.
- Are you okay
- Am not upset. Am pissed.
- That’s the same thing.
- No. Am angry at that jury. They were wrong this time.
- Are you at a thrift store
- Hahaha. How do you know I did that.
- You always do.
- Why do you think that is
- You want to be around poor things.
- Total cost of retail therapy $24.67
- Drive home. Alysha is in the kitchen. She gives me a very nice big hug. Needed that.
- Take Nala out again.
- Hook iphone up to speakers on deck. Pandora set to Aretha Franklin.
- Dig in flower pots and transfer the plants.
- Look at emails on iphone. Still pouring in. Frank Schoichet says he has 4 rules of cases not to take against police officers. Rule #1 – no alcohol. Now he tells me. Click off phone.
- Can’t click off brain.
- It is Thursday which means Queen Ann Farmers Market. Get bag and drive up the street. Park. Buy kale, carrots, snap peas, strawberries and raspberries. Go to falafel stand. Take home dinner.
- Back in kitchen, read the rest of sappy Danielle Steele novel on kindle while eating falafel.
- Sweep front porch area and pick up the few leaves that have dared to drop there since yesterday
- Feel slight guilt for not being at office.
- It is now 5 so would have left anyway yet still feel guilt.
- Throw on running gear and out the door with Nala.
- Run up the hill and wind through the neighborhood.
- Agitation is not helping the run much today. Feel like weights are tied to ankles.
- This is what goes through mind
- Despite all the sweet emails from lawyer friends saying this is a good result- know for a fact – it is not.
- Allstate offered $20K to settle. We barely bettered it. That doesn’t make it a win
- Under-estimated the impact of alcohol
- The jury was too old
- They were heading towards a defense verdict. Felt it on Tuesday and have no doubt
- If that sudden emergency instruction had been given, for sure it would have been a defense verdict
- There’s nothing to appeal
- Hope client is feeling better
- This sucks
- Wonder who the presiding juror was
- At least it only took 2.5 days. Not 2.5 weeks.
- Home by 7:30.
- Look at Fandango – movie is playing at 7:50
- Hit the shower and leave house at 7:47. There are 20 minutes of previews anyway.
- Go down usual route and come to stop. Traffic backed up due to graduation ceremonies.
- Make it to movie theater by 8:05. Was aiming for 8:00
- Get popcorn and diet coke.
- Previews are still going.
- Watch Fast & Furious. Janet’s right. Action movie is the way to go
- Come home. Still stewing but not as much
- Do load of laundry.
- Take Nala out.
- Turn on schmaltzy Pandora channel – I will always love you (Whitney Houston).
- Write this trial diary entry.
- And call it a day.
Photo: Rainbow seen from my bedroom window
Tom Chambers has summoned me. I walk down the hall past Sheila – Tom’s right hand office manager whom we have nicknamed Sheera Princess of Power. Enter his fake office. The one where he meets with clients or other lawyers and important people. It is as big as a large living room. Sitting proudly next to the marble fireplace is an imposing desk. There is one small pile of papers neatly stacked on it just so. As if ready for a magazine photo shoot.
Ignoring all of the magnificence, I head towards an open door on the left side of the room. The door leads to a closet. Tom’s real office. Inside, papers and files are piled high on unimposing furniture. Tom sits there contentedly. Surrounded by his cases.
The room is so small that I have to stand outside of its doorway. Tom hands me a file. He has obtained a large uninsured motorist award in an arbitration. It well exceeds the policy limits. He tried to settle with the insurance company. But as usual they are obstinate, unreasonable, and have forced litigation. Now after making its insureds waste time and expense fighting for payment, the insurance company is only willing to pay the award up to its policy limits. But Tom has another idea. The idea involves me. My assignment is to get the insurance company to pay the rest of the money.
Me: I don’t see how this can be done.
TJC: It can be.
Me: Is there precedence for this. Do you have anything for me to work from.
TJC: Just looks at me with that steady unblinking semi-smile of his.
Me: I don’t see how this can be done. (Mentally roll my eyes).
I take the file. Review it. Research it. Write a brief. Read the opposition brief and know we are going to lose. Remind Tom of this. Research more. Write the reply brief.
The day has dawned for the motion hearing. Complain one more time to Tom. He barely blinks. Try a different approach: Hey Tom maybe you’d like to argue this. No. He wouldn’t.
Alysha is still an infant. Hand her carrier to Sheila so she can watch her. Drive the few miles to Third & James.
Trudge into Judge Faith Ireland’s courtroom. This is going to be so embarrassing. Am going to lose this big time. Say hi to the defense lawyer with downcast eyes. Preparing for the inevitable thrashing.
Judge enters. Calls me to the bench. I stand up and deliver.
Defense lawyer goes next. Haughty and snotty. Says I am a dumb dumb and don’t know what the heck I’m talking about (paraphrasing just a little).
Judge Ireland says: motion granted. I smile slightly and pull out a proposed order. As if I always expected to win and this is no big deal.
Defense lawyer is continuing to argue. Her face is actually red. Finally the court shuts her down. Signs the order and sends us on our way.
Drive back to the office. Walk up the stairs. Cross the fake office. Stand in the doorway of the real office.
Tom looks at me. With his half smile.
I shamefully announce the news that I won.
And he grins.
Moral of the story: The biggest mistake trial lawyers make is giving up too soon.
Photo: My nephews Ben and EJ playing chess
I teach trial advocacy with Judith Shahn who is a voice coach. Judy has been a senior lecturer at the University of Washington’s School of Drama since 1990.
Here are Judy’s top suggestions for more effective speaking:
Ten Voice Essentials to Remember:
1. Keep your weight on both feet
(when you move – move deliberately and land on both feet)
2. Keep your hands relaxed at your sides
(when you have the impulse to gesture – let your hands help you; when you don’t – let them just relax. Don’t hold your hands behind you or in front of you – what are you hiding?)
3. Allow your first breath and others may follow
Relax your outer belly muscles (leave the control top panty hose at home) and allow the breath in. Each new thought begins with a breath – thus the word, “inspiration”.
Practice whispering “huh”
Now voice it – “huh”
Now say “hey”, “hi”, “hello”, “how are you?”
(can you feel your middle responding?)
Now, much stronger, “HOW DARE YOU?” The “h” will connect you with your diaphragm.
4. Vocal Energy is what carries your words out to all in the courtroom.
In a jury trial, everything you say is for the benefit of the jury, whether it’s opening, closing or examining a witness. If you had a volume dial from 1-10, you should be between 4 and 6 during the trial.
5. Speak at the speed of your thinking
If you speak too fast, you leave the jury behind you – speak too slowly, and they are way ahead. Your speed will shift, depending on your thinking: example – “The prosecution is trying to make you believe that the circumstances are enough to convict my client in this case; but, after examining the evidence, I believe you will do the right thing and find Mr. Smith – innocent!” The first part of the sentence wants to move quicker, whereas you want the jury to stay with you for the important words: evidence, right thing, and innocent.
6. Employ vocal highlighting
This is something we do naturally when we are expressing something important, but sometimes we forget when we’re under pressure and everything flattens out to sound the same.
Practice emphasizing different words with the simple sentence:
Billy Button bought a bunch of beautiful bananas.
Notice how each new emphasis changes the meaning. Now try with this one:
Mr. Smith never entered the house on Elm Street at 9:00 pm on December 5th, because witnesses identified him at the same time at the George St. Tavern across town. So, he never had the opportunity to murder Sarah Jones.
7. Pitch is thought
Human beings use pitch as a way to inflect their thinking and make it more expressive. Pitch is also an emotional response.
As lawyers, you can use pitch to be more authorative, understanding, ironic, humorous, friendly or factual, for example.
Your voice getting stuck on one pitch is like serving the jury the same meal every day or telling the same, predictable joke. Women tend to get stuck on the higher end and men, on the lower end, but either way is deadly.
8. Timing is everything
Never underestimate the power of rhythm in speaking. Good writers are really aware of it, good actors can accomplish it and good lawyers should take advantage of it. Vary your rhythm as much as possible. Slow down to make a point – use mono syllables when something’s really important. Shakespeare did it:
“that but this blow must be the be all and the end all….here.”
9.“Words are the boats that travel on the river of sound”
This saying is from Kristin Linklater, an internationally renowned voice teacher. In essence, your intention must always be going forward towards the people you are speaking to. If your voice is swallowed or nasal, we are not receiving you.
Practice fluttering your lips: bbrrrreee, bbrrrrrrey, bbrrrrah
or trilling your r’s: rrrrrrreeeeeeeee, rrrrrrrrrrey, rrrrrrrrah
Or practice tossing a ball with someone while you are speaking. Let the final word in your sentence land as the other person catches the ball.
10. There is drama in the room
This may be obvious, but knowing when the light is on you and you are the center of attention is a very important tool. Sensing when to move and when to stay still, when to look directly at someone and when to avoid them, when to be expressive or when to be factual are important tools to have. Playing an intention puts you in charge. For example: are you trying to: educate, inform, entertain, shock, warn, mock, protect, reveal, plead,demand, instruct (or any other intention). This will inform your way of speaking and ultimately how you get through.
Lawyers cannot take communication for granted. The art of persuasiveness can only be finessed with practice. There is always room for improvement. It is wise to periodically to reexamine your modes of expressing yourself: your body language, vocal quality, pacing, clarity, phrasing and intentionality.
Cartoon: By Jay Flynn (c) 2010
Today, someone does something that really ticks me off. Actually, two someones do.
Inside, am gnashing teeth. Mumbling non-swear words. Like Elmer Fudd aims at Bugs Bunny.
Outside, do nothing. Other than email one word to staff: Lame. Then go about business as if nothing is ticking me off at all.
I could have argued back. Will feel way better if I vent. Way Way Better. But a quick (impassioned) assessment backs me down. This isn’t about feeling better. This is about helping the client win.
So I zip my lips. Suppress the urge to immediately fight back. And make a strategic move. That involves silence.
Now, am not saying that we should always keep our mouths shut. But here are examples of when we should at least consider it:
- The judge frowns and says – counsel I will not tell you again, I have made my ruling
- The other lawyer has escalated to the point where their yelling includes the spraying of spittle (there are a few exceptions)
- The witness is furiously chasing you around the conference room trying to “get you” (true story)
- To interject the element of time
The first three should be fairly apparent. Once we push aside the adrenaline.
We want immediate action. If someone throws a punch, we intuitively want to block it and strike back. We don’t want to feel the pain of being hit. And we equate losing the battles with losing the war.
Number four is the toughest one. It is amorphous.
Silence does not mean inaction. Silence does not mean being fatalistic. Silence can buy time. And sometimes time is what can change a case result from a loss to a win.