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