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    Winning at trial attributes of the great trial lawyers slideshare version Winning at trial attributes of the great trial lawyers slideshare version Presentation Transcript

    • J. RIC GASS
    • The Litigation Triangle Gender Differences
    • Do not live In “The Land of What” Live in the parallel universe of Verdicts don’t ask for what Why requires the ability for human connection
    • Getting the why out of photos, evidence, absent evidence, inferences “Dicing The Potato” Why²Why²Why²Why² UnderstandingUnderstanding actionsactions && omissionsomissions The inferenceThe inference & meaning& meaning beyond thebeyond the photos/visualphotos/visual Not just WhyNot just WhyNot just WhyNot just Why
    • RealityReality FactsFacts CourtroomCourtroom FactsFacts Verdict Facts Your FactsYour Facts Their FactsTheir Facts ALLOWS YOU TO MAKE THEM COALESCE Jury FactsJury Facts Juror FactsJuror Facts The Power of WhyThe Power of Why The Power of UnderstandingThe Power of Understanding
    • Great Trial Lawyers Understand Information isn’t necessarily Knowledge & it surely isn’t Wisdom & Understanding And can explain that to jurors
    • Understanding Is How A Trial Comes Together To 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 Understanding The People: Opponent Witness Jury Judge Court Personnel Yourself
    • Understanding Witnesses Their Facts Understanding Their Psychology Their Role in The Case
    • It is asking yourself Not Just What is the outline, the Q&A, for this segment? But: How is this presentation Going to connect with their head, heart, gut? But, But: Even more How is it part of the whole case theme? But, But, But Will 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 problems but 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 Conviction Required to make jurors believe in their position Ability to listen to & accept suggestions/ideas of others Ability to internalize their client’s case & adapt their persona to it
    • Are Cases "Winners" Or "Losers" OR Is That Thinking Self-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 litigators G reat trial law yers 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 times because they are not prepared for trial  Too much has to be paid to settle or the case is lost at trial  Become self-fulfilling prophecies
    • Great Trial Lawyers Recognize Trial 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 ofThe Art of TrialTrial LawyeringLawyering TurTur ningningFacts & LawFacts & Law IntoInto AA VisualVisual
    • 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
    • Only Does Brains Only Does Rockets The Trial Lawyer Does Facts Law Stories Masters the substance of the case Persuades people With language at a 6th grade level On topics requiring The world’s foremost experts
    • Great Trial Lawyers are psychologically able to handle Both losing & winning Handling losing is easy Handling winning is more difficult The single most important skill Figuring out Why 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
    • Trust Their ability to learn more than holding 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
    • BringingBringing ItIt TogetherTogether For TrialFor Trial TheThe EightEight DimensioDimensio nsns Of TrialOf Trial UnderstandinUnderstandin gg A StoryA Story GloballyGlobally AdhesiveAdhesive PersuasivelyPersuasively LegalLegal ElementsElements LogisticallyLogistically Witnesses, motions, briefs,Witnesses, motions, briefs, exam outlines,exam outlines, demonstratives, exhibits,demonstratives, exhibits, supplies, equipment, …supplies, equipment, … 55 PresentationPresentation •MessengerMessenger •MessageMessage •MediumMedium 8 Wild8 Wild CardsCards 7 Group Decision7 Group Decision MakingMaking 6 Jury6 Jury MakeupMakeup 44 PersonaPersona 33 EmotionsEmotions 11 FactsFacts 2 Law2 Law TheThe StoryStory AboveAbove TheThe EvidenceEvidence Style canStyle can kill contentkill content
    • The Messenger The Attributes Of The Trial Lawyer
    • Intelligence Trial “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
    • 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 Spectrum of Trial Lawyers Where Do you want to be? WillingWilling to go toto go to trialtrial ““You reallyYou really enjoy this,enjoy this, don’t youdon’t you?? Never goes to trialNever goes to trial You have to settle.”You have to settle.” ““Things areThings 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
    • Courag e Courage is the first of human qualities because it is the quality that guarantees all 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
    • Commonsens e
    • ●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” Passion Organizatio n Commonsen se Experience Preparation Translation Stage Presence Courage Force of Personality
    • II hearhear And I forgetAnd I forget II seesee And IAnd I rememberremember II dodo And IAnd 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 Art ArtArt 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 forget how you made them feel.how you made them feel. Carl W. BoehnerCarl W. Boehner
    • Intelligence Trial “IQ” Passion Organization Commonsen se Experience Preparation Translation Force of Personality Courage Stage Presenc e