Wyzga On Words

Q&A Tuesday: Even Deep In Litigation, Something Somewhere Is Wonderful To Behold.

Q:    How do I maintain level-headed sanity and courage in litigation?

A:    Keep one eye on your advocacy and the other on the good of what you do in the world.

Litigation is a rough-and-tumble way to make a living.  It's easy to get caught up in aggression over assertiveness, combat over conflict, and stealth over strategy.

The litigators who keep it all together have found a way to be human beings who serve as trial attorneys. 

TIP:    Knee-deep in trial it helps to remember that you are working to make ours a better world by telling the story for those who cannot in such a way that the decision-makers see, hear, comprehend and act for verdict success.  

Outside My Winter Window.

The maple standing guard over my backyard is nearing 65 years old. I guess it was planted by some nostalgic East Coaster.  Today the naked branches bear no resemblance to the leafy canopy that will swell to brilliant cooling green all over again in summer.  I believe they will - I know they will.

Through the open window comes a persistent tapping.  Out on a branch is an acrobat of a bird.  I check my Audubon Bird Guide.  It's a Downy Woodpecker.  The sound is like a trill to my ear; the Cornell Lab of Ornithology says different: more like whinnying.  Listen for yourself.

One bird watching.  What a pleasure to get lost in of a Sunday afternoon.

Is Anybody Just The Least Bit Worried About Electronic Stalking? The Supreme Court - But Just A Little.

For $300.00 and a few zip ties you too can track the whereabouts of any vehicle as it comes and goes - and the creepiest part: the driver is unaware.  Maybe it's of use to help monitor teenage drivers or elderly parents who get behind the wheel when it would be best they did not.  However, the wide wide world of electronic stalking by vehicle is up for grabs to anyone who can attach a GPS system to a car.

Erik Eckhom reporting for the NYTimes is featured on the front page above the fold, "GPA Devices Are Being Used to Tarck Cars and Errant Spouses," writes about the latest in technology and the legal system's failure to keep pace.  Excerpt:

"Tens of thousands of Americans are already doing just that, with little oversight, for purposes as seemingly benign as tracking an elderly parent with dementia or a risky teenage driver, or as legally and ethically charged as spying on a spouse or an employee — or for outright criminal stalking.

The advent of Global Positioning System tracking devices has been a boon to law enforcement, making it easier and safer, for example, for agents to link drug dealers to kingpins.

Last Monday, in a decision seen as a first step toward setting boundaries for law enforcement, the Supreme Court held that under the Fourth Amendment of the Constitution, placing a GPS tracker on a vehicle is a search. Police departments around the country say they will be more likely to seek judicial approval before using the devices, if they were not already doing so.

Still, sales of GPS trackers to employers and individuals, for a multitude of largely unregulated uses, are growing fast, raising new questions about privacy and a legal system that has not kept pace with technology. This easy tool for recording a person’s every move is a powerful one that, when misused, amounts to “electronic stalking,” in the words of one private investigator."

When is it legal?  When it is criminal?  Excerpt.

"In the absence of legislation in most states, putting a GPS device on a spouse’s car, or hiring an investigator to do so, is widely considered to be legal if the person placing it shares ownership of the car. But some privacy experts question this standard, and there is little to stop a jealous suitor, or an abusive man trying to prevent a battered woman from escaping, from doing the same.

GPS trackers are increasingly being cited in cases of criminal stalking and civil violations of privacy."

In one retail owner's opinion, selling a GPS is right up there with gun sales.  Excerpt.

“Selling a tracking device is similar to selling a firearm: you don’t ask what they are going to use it for, and what they do with it is entirely out of our control,” said Brad Borst, the owner of Rocky Mountain Tracking in Fort Collins, Colo. His company sells GPS devices online, including a 4-inch-by-2.5-inch model called the Ghost Rider, for $349, that can, with a waterproof box and magnet ($30), be hidden under a vehicle."

Today more than ever one needs to be aware of their surroundings and their privacy rights.

What WON'T You Do For Money?

 

Think of a lighthouse.It stands in one spot on a footprint of shoreline or outside a harbor.  It warns and beckons ships.  It does not beckon all ships; only those that can safely enter the harbor.  It does not run up and down the shoreline signalling all ships to enter that harbor.  It is fixed and with a purpose. 

Why do we (in any profession) chase clients who may not be the best fit for us and our practice? Who do not value our services; who fail to express appreciation for the value our assistance brought to a project; who do not return calls; who do not pay invoices on time or, even worse, try to scramble out from under what they owe.  As Elliott Wilcox reminds us in today's ezine post [ISSN 1559-6044    January 27, 2012    Vol. VIII, Issue 4    Published every Friday.   Sign me up for this ezine!] our time is so precious to us. Be careful what you do with it and for whom you spend it:

 "As we finish the first month of the new year, I wanted to check in and see how you're doing with accomplishing your goals for the year.  Are you on track to try as many cases as you'd hoped?  Are you on track to spend as much time with your family as you want?  Are you on track to learn as many trial skills as you need?

Sometimes, all we need is a little reminder to keep on target.  If it looks like you've fallen off track, make it a point this weekend to invest the time necessary to put you back on the track to success.  Since the Super Bowl isn't until next week, this should be a quiet weekend (unless you'll be joining me in Tampa, Florida, where the pirates will be invading the city for the Gasparilla Festival...  "Aaaaargh!") 

To help keep you on track, here's a little tip that will give you some extra time and peace of mind for the remaining 11 months of the year: One of the most important things you can do as a lawyer (or in any profession) is decide NOT to accept a case or a client.  Just because they have money, it doesn't mean that they're a perfect client for you. 

While you're investing a few hours this weekend working on getting the most out of the rest of the year, make a little list entitled, "Things I WON'T Do For Money."   Here are some examples:

THINGS I WON'T DO FOR MONEY

• I won't accept a case somewhere that requires me to spend two consecutive nights away from my family
  
  
• I won't accept a client who has filed a bar complaint or lawsuit against a previous attorney
  
  
• I won't accept a client who is more than 15 minutes late for our initial meeting and doesn't call to let me know they'll be late

Everyone's list will be different, but you HAVE to have a list.  Otherwise, you'll end up doing ANYTHING for money, and you'll regret it.  This stuff is important.  If you don't have a list, you need to write one.  Don't wait to the weekend -- do it right NOW.

Once you have your list of "Won't's" you'll discover that it's a lot easier to run your practice.  There may be times when money is tight and you're tempted to violate your rules...  Don't.  The money will quickly be gone, and you'll be stuck with a case or a client that you resent.  You'll also be ashamed of yourself for going back on your word.

I hope that helps you keep on track for the next 11 months.  Let's make 2012 your best year yet! 

(BTW - if you need additional help maximizing your time and productivity, my "TIME! (for lawyers)" program is available at www.TimeForLawyers.com )"

What Do You Really Know About Your Family? What Do You Know About Anyone?

It all started at The Corner Perk, a small, locally owned coffee shop in Bluffton, South Carolina.  As the story goes, one day a customer paid her bill and left $100 extra to pay for everyone who ordered after her. One by one the food and coffee orders were filled.  Every few months the same woman has returned to leave another donation with the same request.

But it doesn't stop there.  Other customers have been leaving money to pay for others' food. Some people don't even buy anything when they come in; they just stop to donate and head right back out.  In this day and age the kindness of strangers trumps the greed of Wall Street. 

What does this story have to do with a battered suitcase? Ted Gup, a former investigative reporter for The Washington Post and TIME magazine is handed a suitcase which has laid undisturbed in his mother's attic for some 70 years.  Folded inside the suitcase are hand-written letters sent to a man Gup comes to learn is his grandfather.  The letters are responses to a tiny newspaper ad that promises a $5.00 Christmas donation to be given to folks in Canton, Ohio in 1933 who request such aid - and both the giver and recipient to remain anonymous.   

To us that $5.00 might just buy a coffee drink and muffin at The Corner Perk.  In 1933 - during the Great Depression - if you had the coins you could buy a loaf of bread for seven cents, a pound of hamburger for eleven cents, a dozen egs for twenty-nine cents, and a gallon of gas for eighteen cents.  $5.00 would be the Christmas miracle.

Gup's book, "A Secret Gift," is a time travel back to the Great Depression; a trip eerily reminiscent of the past few years of financial crisis to which he makes frequent reference.  His investigation uncovers intimate layers of community, generosity, and family secrets.  What is heartening is the message of endurance and recovery in the face of a stranger's kindness.

What do you really know about your family?  What do you really know of compassion, suffering, community, loss, humility, resilience, gratitude, perseverance, joy, sharing, inspiration?  Ask for one story - be prepared to receive a treasure trove.

Do You Or Do You Not Scroll The Text When Playing Videotaped Deposition Testimony?

Typically, depositions are now recorded in some mode of videography to preserve the testimony in real time.

Later, during focus group research, mock trials, settlement conferences, mediations and courtroom testimony clips of the witnesses' depositions may be played  for a variety of purposes.  For example, the litigation consultant may wish to test the credibility of a particular witness; the attorney may wish to show some discrepancies in the opposing party's expert opinions; or the trial attorney may use the film in place of a witness who cannot attend trial, to impeach a witness or to further develop the legal story.  Many trial attorneys are familiar with a trial tool called Sanction Litigation Software to make powerful use of deposition testimony.

More often than not in each of these scenarios and others a scrolling text of the testimony appears in sync with the deponent's spoken words. As one who enjoys foreign films I've gotten accustomed to watching the action on the screen while reading the subtitles.  The experience is similar when I attend an opera in its original German or Italian; but the "subtitles" often scroll across the top of the stage.

However, no matter how carefully one watches and listens, the effect is the same: you may end up sacrificing a bit of visual and auditory attention to get the best of both worlds: accurate understanding and interpretation of the story being told.

I raise this so you might ask yourself whether the synced text is a help or a hindrance to advancing the decision-maker's comprehension.  In which situations does it help you tell the legal story and persuade to your point?  How might it hinder you from getting that point across? 

I believe it comes down to the purpose for which you are using the clip of the deposition testimony while keeping in mind decision-makers learn differently.  One might be distracted by the scrolling text while another needs it to clarify what she hears. 

To decide whether to scroll or not to scroll for comprehension, recall what you know about the best PowerPoint presentations.  Or the presentation secrets of Steve Jobs.  Often, more is less (yes, I meant to write it that way.)

TIPS:

1.    Ask yourself what you want the decision-makers to attend to:  Witness credibility?  Veracity of a statement or description?  The certainty of a conclusion versus an opinion?  Relevance?  Consistency of testimony?  Verbal cues?  Non-verbal tics?  Client likability? And the like.

2.    What is the setting?  Focus group research versus mock trial versus mediation, and so on.

3.    What do you want to come away with that will enhance your chance at verdict success?

4.    In focus group research you can do it both ways: play the testimony with and without the sound and synced scrolling text.  You can inquire of the research participants: who noticed what?  some may have attended to the non-verbal cues of the deponent; others may pick up on tone of voice and the emphasis (or not) on certain words.

5.     Once you determine the research or trial strategy then you can employ the tools to accomplish it. 

6.    Think before you scroll.

 

Our Fate - Like Fruit Trees In Winter.

Standing all raggedy, twiggy and forlorn in my backyard is a peach tree. Its naked form reminds me of a piece by German poet and novelist Johann Wolfgang von Goethe:

"Sometimes our fate resembles a fruit tree in winter.  Looking at its sad appearance who would think that those stiff branches, those jagged twigs would turn green again and blossom and bear fruit next spring; but we hope they will, we know they will."

I believe that one of the most difficult and courageous things we can do for ourselves, our families, friends and clients who look to us for a little encouragement is to acknowledge a time of fearful barrenness, that hum of panicky anxiety.  And only then turn coax an expectant face toward spring.

This photograph reminding me that the honeybees are soon on the local blooms was taken by friend and fellow beewrangler, Janet Andrews of Backyard Bees who creates some of the most remarkable honey creams and lip balms you will find anywhere.  Even my pure honey and beeswax cappings find their way into her luscious product.  Family in the chill mountains of Colorado and the dry indoors of New Hampshire swear by its restorative properties.

Every one of us every day needs a little something good.

Now THAT'S A Salty Gal.

I love reading obits.  The whole story is there from start to finish.  You don't have to slog through a memoir or biography to get the real scoop on who someone was when they walked this earth.  A well-written obituary is like salt on grapefruit: it brings out the flavor bite by juicy bite.

As reported by Paul Vitello writing for the NYTimes, Pilar Montero, Bar Owner and Link to Brooklyn's Seafaring Past, Dies at 90, Montero's life may have been lived in a bar on a waterfront but she had a crow's nest view of the world of searfaring.

Just look at her sitting there on her corner stool.   If those walls could talk they might say the same thing the NYTimes wrote of Montero in 2006: "She is a human time machine." 

The facts of a life must not and cannot be the whole story.  Human life is always more than what meets the eye.  Pay careful attention to the facts in the context of what mattered to the person.  Like an argument for wrongful death damages, an obit can be a time capsule of drama, intrigue, history, truth and lies, and all the muddy human nostalgia of who said what to whom and when and what happened next.  All of it matters.

When you are charged with telling the story of one who has passed on - whether by the fault of another or natural causes - it is easy to slide over the dark sides of that person and focus only on the happy facts. Yet, how that person handled ridicule, diversity, challenge, despair, hard times, the luck of the draw, pulling the short straw and the like is what made their story an epic.  Each human story is an epic - a hero's journey. It takes a hero just to get out of bed in the morning to face what the world will howl at you. 

Begin by paying attention to those things for which they had affection.  Then move to what they were drawn to and what mattered.  These steps will guide you to the beating heart of your story.  We listeners will attend to the story of a life that sounds vaguely familiar to our own.

EMPATHY.

As I slowed to a stop behind it I could see the word plain as day on the California license plate hanging from the rear of the dark blue full-size Buick: EMPATHY.

I noted the word EMPATHY while I sat behind the Buick waiting for the signal light to turn from red to green.

Again I noted the word EMPATHY while I impatiently waited for the driver of the Buick to put his foot to the gas pedal and move his car after the light had turned from red to green.

Yet again I noted the word EMPATHY as I pried my sticky fingers away from my horn and watched as the driver bent his head to someone seated low in the front passenger seat.  From what I could see the driver was frail, elderly with a halo of wispy white hair and slender fingers clutching the wheel that his head barely topped.

Finally the Buick moved into traffic, drifting over the divider line before hesitating and then choosing a left-hand turn for which no signal was employed.

Fortunately, we were down in the harbor where the speed limit is a mere 25 miles per hour.

Near the breakwater the Buick carefully turned left again while I turned right.

As I deftly pulled into a parking spot, unbuckled my seat belt with a quick tap, easily swung my legs out of the car, stood steadily before pivoting to close the door, then zipping up my jacket and heading off on my walk at a brisk pace, the word followed me: EMPATHY.

 

 

 

Strong Mock Trials Are A Product Of Experience, Expertise and Enquiry.

I have written often and much about the rigors of focus group and mock trial research.  In my opinion this research has its best chance of reliable success when lawyers practice law and invite litigation consultants to serve as a member of the trial team to guide the lawyers with their experienced observations, analysis and recommendations.

My friend and ASTC colleague, Matt McCusker, recently wrote a piece in Deliberations, outlining the pitfalls of "do-it-yourself" research modeled on demonstrations or word-of-mouth techniques: "Don't Call Me Fluffy: One Perspective On Mock Trials."

Why am I supporting the litigation consulting competition?  McCusker speaks the truth, I agree with it, and his post is a reminder that analysis is more than just critical, dispassionate, objective listening.

"However, these demonstrations do not show the detailed analysis that most consultants give the data they collect.

Typically in mock trials, 3 or more panels of jurors have been recruited and subject to extensive background questionnaires to get a sense of their attitudes, beliefs and life experiences prior to hearing about the case.  Next, these participants are shown detailed case presentations with exhibit books and asked who they favor throughout the day (Plaintiff?  Defendant?  Is there proximate cause?  Etc.).  Then, armed with a treasure trove of information, litigation consultants can analyze the results and search for associations between opinions/experiences and case leanings.  Both qualitative and quantitative analysis are often used to glean the most useful information."

You would not buy a new car without driving it around the block a few times.  Nor would you say "I do." without a few coffee dates beforehand.  Give yourself, your clients and colleagues the best shot at settlement or verdict success by discovering what seasoned litgation consultants can bring to your trial team.