July 28th, 2016

Trial Lawyer Tips From Politicians

Watergate jury, by John Hart. The original hangs in my office.

Watergate jury, by John Hart. The original hangs in my office.

I’ve been watching the political conventions off and on these past two weeks, and it occurs to me that there are a couple good tips in there for trial lawyers.

Two speeches stood out to me as good lessons.

The first was Bill Clinton. Why? Because he is a master story-teller. This isn’t about whether you agree or disagree with his politics, but the manner in which he engaged listeners with stories. He wasted no time in starting with a good old-fashioned boy-meets-girl story and kept coming back to it.

Once upon a time — September 2007, which is 63 years ago in dog years and 200 years ago in internet years —  I quoted Mark Twain on this subject, in discussing the need for the trial lawyer to engage the jurors and tell a story. And the most important thing to do is make sure the listener doesn’t fall asleep. You need to engage the listeners.

The second was that of Mike Bloomberg, who I think gave the best speech so far. How can that be when he stands where Bill Clinton just stood as well as both Obamas?

Because he bluntly stated that he wasn’t speaking to the people in the hall and that he often disagreed with Hillary Clinton. That is enough to make any viewer sit up and take notice (and to get many boos from those in attendance).

The fact that he wasn’t a typical cheerleader, and has supported both Republican and Democratic candidates, gave him credibility to address Trump supporters. He wasn’t there to simply yell Rah, Rah, Hillary. He audience was, perhaps, the most important one of all: The undecideds. That meant there was no reason at all to pander to those seated in front of him.

There is a powerful point here for those that stand in the well of the courtroom. When you give up issues to the other side (that you know you will likely lose anyway) your other arguments gain credibility with judges and juries. If you are respected, your arguments are more likely to find a receptive ear.

But not everything works. Because, for many parts of many speeches, people were merely preaching to the choir. Rousing up the folks in the convention halls. While this may be good to motivate those in attendance to work hard over the next few months, they do little to reach the critical undecided vote.

Tim Kaine was also important, but for altogether different reasons. He started out waving his hands around over his head and wasted all of his initial time with shout outs to his friends.

And that is an awful idea. The moments that people are most likely to listen to you, and most likely to remember, are the opening couple minutes of your remarks. And the closing ones. This is the concept of primacy and recency. The most important moments that should never be wasted are the very start and the very end.

After a few minutes of listening, he lost me, and I went upstairs to write this post. I heard later that the middle of the speech was amusing with his parody of Donald Trump, but I never heard it live.

Given that so much time, money and effort is put forward for these conventions to communicate, it’s worth sitting up to take notice of not just what they say, but how they say it. And to remember that when trying to persuade a judge or jury.


February 12th, 2016

Time is On My Side

The AOL 2.0 floppy disk that I use as a drink coaster. Photo credit: me.

The AOL 2.0 floppy disk that I use as a drink coaster. Photo credit: me.

Yesterday, I listened to a livestream of a suicidal and paranoid member of the Bundy gang surrender in Oregon. He said he was holding a gun to his head as supporters frantically tried to reason with him as he stumbled through a slew of conspiracy theories.

Think about that —  I’m in New York City listening in on a phone call with an armed and suicidal insurrectionist in a remote part of Oregon. What would Benjamin Franklin think? How long would it take for him just to comprehend such a concept?

What a short, strange trip this whole Internet thingy has been.

I first connected via Prodigy, circa 1992. When AOL took the world by storm with its proprietary site in 1993, I was 33. Using their instant messages, you could talk with someone from Prague, in real time, as if that person was sitting in your own building. It was amazing. Revolutionary.

I knew this was going to be huge when hourly charges for dial-up service went to unlimited in 1994, and the site was so overwhelmed that folks couldn’t connect. I still have an AOL 2.0 floppy disk. I use it as a drink coaster.

The World Wide Web followed shortly thereafter.

A huge milestone in its development was the 1998 release to the web by Ken Starr that dealt, in part, with the infamous cigar that Pres. Bill Clinton shared with Monica Lewinsky. I, and countless others, read it online immediately after its release. There was no need to wait a day for the newspapers to print it and distribute it for people to start having intense discussions.

Any semblance of the 24-hour news cycle that Ted Turner‘s CNN and its progeny hadn’t already taken down, was now gone for good.

My first crude website went up in 1999, and this blog followed in 2006. YouTube, Facebook, Instagram, Twitter, Snapchat and more all followed. Again, what would Ben Franklin think?

When I felt my midtown Manhattan building rumble in 2011 as I was sitting at my desk, I turned to Twitter, searched #earthquake, and knew within 30 seconds of the end of the quake that it had been felt from Georgia to Canada. Amazing.

We no longer wait, it seems, for anything.

Except for the law.

Much of what I do, I do the old fashioned way. It is slow and sometimes ponderous. It is the nature of litigation and trial. The world may move ever faster and faster with the explosion of technology, but the pace of the practice of law doesn’t really change.

There might be tinkering around the edges, but fundamentally it is the same today as when I started. Sure, I no longer need to bring a roll of quarters with me to the courthouse while on trial, I can electronically file complaints and motions, and I can bring my entire file to court with me on an iPad. That’s nice; it’s convenient.  Of course, as Keith Lee wrote yesterday at Above the Law, technology is just a tool.

But while the expectations of jurors may change — something that law and order TV shows also contribute to — the reality is that the lawyer’s work hasn’t.

You still have to tell the story. And to do that you need to find the witnesses, do the investigations and plow through the records. You need to lay foundations for evidence, build your examinations upon important points, and know what it is you need to do, and where it is you need to go.

There may be a straight line that gets you from Point A to Point B, but just as often it is otherwise, rambling around from here to there to get to where you want to go.

Telling that story usually takes time. Time that jurors, especially younger ones, may not be attuned to.

What to do about this internal conflict between today’s expectations and old-fashioned lawyering? Relish the concept when you finally get to meet your jurors. Welcome them back to another era, and another pace, when things moved slower. If you want to get the job done. (Because you have no other choice.)

Back in September, 2007,  I used an obscure quote by Mark Twain to describe the process of slowly telling the story.  Given Twain’s mastery of storytelling, I figured he would be a good source.

And so, as the world races faster and faster in making raw information available, we turn back to Twain on the art and flow of storytelling:

Narrative is a difficult art; narrative should flow as flows the brook down through the hills and the leafy woodlands, its course changed by every bowlder it comes across and by every grass-clad gravelly spur that projects into its path; its surface broken, but its course not stayed by rocks and gravel on the bottom in the shoal places; a brook that never goes straight for a minute, but goes, and goes briskly, sometimes ungrammatically, and sometimes fetching a horseshoe three-quarters of a mile around, and at the end of the circuit flowing within a yard of the path it traversed an hour before; but always going, and always following at least one law, always loyal to that law, the law of narrative, which has no law. Nothing to do but make the trip; the how of it is not important, so that the trip is made.

That difference in the expectations of people also came into sharp view in the Oregon standoff, where I started this piece. There were some folks who wanted the buildings that the Bundy gang took over to be immediately stormed. Now! Now! Quicker! Faster!

The Department of Justice, however, took its sweet time. Because time was on its side. And it was a highly successful strategy.

Sometimes we need to move fast. But not always, and fast should not be the default. No matter what kind of technology comes spinning our way.

OK, cue up some Stones to close — though lord only knows what Ben Franklin would think of Mick:




January 16th, 2014

Will Video Testimony Be Misleading? (The Future of Law?)

Apple Insider Image

Apple Insider image of how the patent would work to morph past images in with the present ones for transmission.

Video testimony has been held by many to be a big improvement over a paper transcript. You can see facial expressions, assess the tone of voice, and evaluate delays in answering. Bill Gates learned that lesson years ago with his much-maligned video deposition with the “long pauses before [he] answered the simplest of queries…[and] the hint of contempt in his voice.”

But the “what you see is what you get” belief that we have in video may change, if the testimony is electronically transmitted.  Video testimony in the coming years might not be quite as reliable as we’d like to think.

Will it be our eyes that are deceiving us? No. It may be technology. Is this the future of law?

As per Apple Insider, in discussing a new patent issued today regarding video transmission over low-bandwidth, we may be in for a subtle but significant change. This is the problem that Apple seeks to fix:

Currently, video communication over cellular data is spotty in many areas due to bandwidth restrictions and existing wireless technology. In some cases, features like Apple’s FaceTime are nearly unusable due to dropped frames, extremely low-resolution images and poor audio quality.

How does Apple want to deal with that? By taking sample frames from the call that had been used previously and morphing them into the live conversation, to give the illusion of a constant video stream. In other words — and this is the part that would interest lawyers and judges — the visual cues from the speakers’ faces may not match with the words that are actually being used.

Again, as per Apple Insider:

The U.S. Patent and Trademark Office on Thursday published an Apple invention that replaces frames dropped during a low-bandwidth FaceTime call with pre-recorded or doctored images, thereby creating the illusion of a seamless feed.

Sometimes we see problems in movies and shows where the “sound is off” — as a fraction of a second misalignment messes with our brains. But in the Apple solution, they will simply morph old frames in so that it becomes seamless. The facial expressions you see might be for a different set of words that were previously used.

Is this a problem today? No. Will it be in five years? Check back with me then.


September 23rd, 2013

Apple, Expectations and Trial Strategy

Apple 5sA week ago Apple unveiled its new iPhone 5s and some Apple-bashers had a field day criticizing it for only being incrementally better than the one released a year earlier, the iPhone 5.

And this morning Apple released blockbuster sales of over 9 million iPhones sold since the actual release three days ago.

Why the sharp difference between initial reviews and blockbuster sales. And why is this important to jury trials?

Because those that were bashing were comparing it to the model released just one year ago. But most folks buy two-year contracts when they get an iPhone. Thus, the target audience for the phones was those that bought phones two years or more ago, not the few who want to upgrade every year.

And since there is a huge difference between the one two years ago and the just released, it has tapped a substantial market.

This is all about figuring out where to set the comparison bar when deciding if something is good or bad.

If at trial you want to compare an injury to normal, you have to first figure out what that normal is and set that bar firmly in place.

Last week at trial, a defense expert decided to move the “normal” bar on the range of motion, so that when he showed plaintiff’s injuries to the jury, they didn’t look as bad as they actually were. (I hope to blog on that testimony in the future.)

Firmly forcing a witness to declare what normal is, and locking the person in who is going to give that opinion, is a critical and often overlooked piece of the puzzle that constitutes evidence. It is all about expectation and doing a proper comparison.

My two rupees on your trial tip for the day.


February 7th, 2013

The Wrong Lawyers for the Job? (BigLaw Trial Attorneys Get Bench Slapped) – Updated

Dow is the defendant. But if the jurors fell asleep during plaintiff’s opening, Dow will win regardless of what they did, or did not, do.

Really, you just don’t see this too often. Lawyers do get called out for incompetence sometimes by judges, but it doesn’t really happen too often right after opening statements, and with BigLaw coming in from out-of-state to play on the field.

But sometimes you just might not have the right lawyer for the job. And in the well of the courtroom, in front of the jury, the right lawyer for the job is the one that can tell a coherent story. Not put the jury to sleep.

And these guys put them to sleep. Literally. In the first inning of the game.

The playing field of this dispute is federal court in Kansas City. The issue involves, according to the  Kansas City Business Journal that broke the story, alleged conspiracies to fix the prices of urethane chemical products known as polyether polyols that are used to make a variety of consumer goods.

The sides in this dispute must have felt that local attorneys didn’t know how to tell a story about price fixing, so they brought in the out-of-state big guns.

For the plaintiffs was Michael Guzman of Washington-based Kellogg Huber Hansen Todd Evans & Figel. This is an 83-attorney firm that one website comically calls a “boutique.”

The firm must be good, because, as per the firm’s website, they are absolutely awesome. The roster of attorneys:

includes former Assistant United States Attorneys, Assistants to the Solicitor General, and attorneys who have held senior positions in the White House, Federal Communications Commission, and the Department of Justice, including a former Assistant Attorney General and Counselor to the Attorney General. Almost all of our lawyers have served as law clerks to federal judges, and nearly one-third have clerked for Supreme Court justices.

Hey! I’m impressed!  OK?

On the other side, for the mighty Dow Chemical was David Bernickof mighty New York-based Boies Schiller & Flexner.  Are they impressive? You bet…just read their website copy:

While best known for landmark cases such as United States v. MicrosoftBush v. Gore, and In re Vitamins, we represent some of the largest and most sophisticated organizations in the world when the results matter most. In less than a decade, we have won and saved our clients billions of dollars in trials, arbitrations, and settlements. We have been described by The Wall Street Journal as a “national litigation pow­er­­house” and by the National Law Journal as “unafraid to venture into controversial” and “high risk” matters.

OK, OK, you are all now just as suitably impressed as I am.

First Guzman made “a lengthy opening statement for the plaintiffs.”  Then Bernick spoke for half an hour, handed it off to his colleague Hamilton Loeb of D.C. firm Paul Hastings (800+ lawyers) for another half-hour, then returned to Bernick for another 30 minutes.

Since I wasn’t in the courtroom I will defer to U.S. District Judge John Lungstrum who was, and who presumably has seen his fair share of trials. Was he as impressed with the lawyers as I was after reading their magnificent website copy? Would I be writing this piece if the jurors were enthralled with the legal skills on display?

OK Judge, take it away…and tell us how quickly the jurors lost interest in the story and fell asleep:

“Honestly, if I had to do it over again, I’d give you each half as much time as I did. I told you all again this is your case, you guys do it however you think you want to do it, but you have people at the beginning of opening statements who are taking notes, who were engaged and who were interested. About halfway through the plaintiffs’ opening statement, those people tuned out. Other people literally went to sleep for a while. I did not call them on it because that’s not evidence; it’s not the law.

Ouch. Not kind to plaintiff’s counsel at all. But don’t worry, he had words for defense counsel also:

“It’s the responsibility of counsel, if you want people to hear your opening statement, to present it to them in a way that keeps their attention. Defendants’ opening statement rambled all over the ballpark. I suspect nobody on the jury’s got any idea what they think the evidence is going to be except it’s going to be vaguely different from what the plaintiffs have in mind.

“Now I’m saying this to you all going forward, you owe to your clients and to this jury not to just do everything you possibly can do because somebody says you can, and I really regret giving you an hour and a half each for opening. … The closing arguments in this case will be considerably shorter than what I originally thought would have been the case because neither side evidenced the ability to focus themselves on what they’re supposed to be doing.”

I’m willing to bet that Kansas City has a lot of very fine trial lawyers, and I bet that many of them know how to tell a story without putting people to sleep or rambling all over the place.

I know nothing at all about this case, but this: If jurors fall asleep during plaintiff’s opening then the plaintiff loses. End of story; the case is already over. That shouldn’t happen in the first inning of a ballgame.

The plaintiff has the burden, and if the jurors don’t care about the case, then that burden will be impossible to meet.

Updated, 2/24/13 — Well, now about that? Despite being ripped by the judge for putting the jurors to sleep and rambling in opening, the jury returned a $400M verdict against Dow Chemical (out of one billion dollars in damages sought).

And that means I was wrong. So if I saw a judge rip lawyers in a similar fashion, I would hedge my bet, right? No, I wouldn’t.  As once was said, the race does not always go to the swiftest or the battle to the strongest, but that’s the way to bet.