Wyzga On Words

Q&A Tuesday: What Do You Do When?

Q:    What do you do when you think you've had enough?

A:    Dream radical.

Today is the day I am supposed to be writing about tips to use to become a better litigator.

I've been thinking about a movie I watched recently: We Bought a Zoo with Matt Damon and that rugged, raspy voiced heart throb, Thomas Haden Church of Sideways. 

The movie is based on the true story of Benjamin Mee who bought a zoo and still lives there.

TIP:    We're not here for a long time, but a good time.

TIP:    “This is love: to fly toward a secret sky, to cause a hundred veils to fall each moment. First to let go of life. Finally, to take a step without feet.” Rumi

TIP:     Dream radical.

Q&A Tuesday: Moot Court, Written Briefs & Oral Argument.

Q:    If written briefs pull the laboring oar in the judges' decision-making, what's the point of oral argument?

A:     To serve as a sounding board for the judges.

Time out of mind I argued the final rounds of Moot Court Competition in front of then sitting chief justices of state supreme courts.

One by one each member of the panel gave the winner (me) and the runner-up (the other guy) their evaluations and suggestions for our future practice.  This one I took careful note of: "In oral argument, do not evade a judge's questions.  The court is asking you questions so it can learn and understand your position.  Participate.  Give the court your best answer."

Imagine my surprise to read similar advice from the United States Supreme Court.  Adam Liptak writing for the NYTimes, "Are Oral Arguments Worth Arguing About?" informs us that the nature of oral argument is to involve the lawyers in the debate.  Excerpt.

"In an interview with Bryan A. Garner published in 2010 in The Scribes Journal of Legal Writing, Justice Clarence Thomas was asked how often he changed his mind thanks to oral arguments.

“Almost never,” he said, adding that they may make a difference for his colleagues “in 5 or 10 percent of the cases, maybe, and I’m being generous there.”

That is as it should be, said Mr. Estrada, who has argued 20 cases before the Supreme Court.

“Somewhat refreshingly to our citizens,” he said, “the administration of justice has to do with the merits of the case and not entirely to do with the skill of the advocates.”

Chief Justice John G. Roberts Jr., who argued 39 cases in the Supreme Court before joining it, told students at Columbia Law School in 2008 that lawyers play a relatively minor role in that highly stylized discourse.

“Quite often the judges are debating among themselves and just using the lawyers as a backboard,” he said. “One of the real challenges for lawyers is to get involved in that debate.”

Oral arguments are in any event far less important than the written briefs.

“Of the two components of the presentation of a case, the brief is ever so much more important,” Justice Ruth Bader Ginsburg told Mr. Garner. “It’s what we start with; it’s what we go back to.”"

TIP:    Write your best brief.  Give your best oral argument.  Answer the court's questions with a "clear, concise and cogent" reply.  Participate in the debate.

 

 

Q&A Tuesday: How Do You Get The Honey Into The Jar?

Q:    How do you get the honey from the bees into the jar?

A:    Slowly, carefully, step-by-step.

The small frames you see are being readied for extraction.  I choose to remove only the surplus honey from a hive so the bees have what they need for themselves and their brood.

The bees build honeycomb on the frames, fill the comb with honey and cap it off.  The first step is for the beekeeper to go to the beeyard and collect those frames, transport them to the extraction room and remove the beeswax cappings with a hot knife or a pick. 

You can see the difference between a capped frame (the one in my hand) and the uncapped one leaning on the bridge in the capping tub.  There is another example in the opaque tub. 

While we're at it we remove any extra beeswax comb on the outside of the frames to make it easier to slip them back into the hive box.  It's hard, sticky work and bees are buzzing around to keep us company.

The uncapped frames fit longways into a motorized stainless steel tub (which is not in the picture) and the honey is spun out with centrifugal force.  The collected honey is gravity-strained into a bucket and then gravity-strained a second time through a fine mesh cloth sieve to collect any stray bits of beeswax.

This pure, raw, unfiltered (filtration takes out good honey properties), unheated (heat destroys some honey properties like enzymes), untreated (no sugar, high fructose corn syrup, pesticides, mitricides, or antibiotics) honey gets bottled.  The extraction and bottling process takes the better part of a day depending on how many frames one has collected.

The work isn't over then.  The "stickies" are returned to the hive boxes in the beeyard so the honeybees can clean up all the honey the extractor did not spin out.  Since we left the honeycomb intact the bees do not have to build it out all over again; just fill and cap.

In her lifetime a worker bee may supply less than 1/2 teaspoon of honey.  She has to visit millions of flowers to gather the pollen and nectar that goes into making honey.  What the worker bees are foraging on, the time of year, weather, heat, drought conditions and the like changes the look, flavor and fragrance or honey - just like wine.  What you taste in the Spring will be different than another time of year or region.

When you get a treat like real honey - just what the bees bring in - it's a labor of love on the part of nature and beek. Plant a garden and invite the bees.

 

 

 

Q&A Tuesday: Do You Know That ASTC's 31st Annual Conference Is June 7th to 9th In New Orleans?

Q:    I heard tell that the American Society of Trial Consultants is holding its 31st Annual Conference in New Orleans.  What's happening?

A:    We are so jazzed to have the opportunity to learn, play, connect and succeed!

TIP:    Check out the ASTC website for an overview of the conference, registration and sponsorship opportunities.

TIP:    Get ready to let the good times role by reading through Conference Planning Committee Member Patricia Rhinehart's list of just a few things to do:

If you love music, New Orleans is the place to be! There’s music all over: people playing in the streets, on sidewalks and in the open-air cafes.

The best thing about the French Quarter is Royal and Chartres. Royal Street of course has great shops and all the fabulous art galleries. Check here for maps.

Stop at the Monteleone Hotel and have a drink at the Carousel Bar.  It's old, it's beautiful, and yes - it's a moving bar!

There's a great little restaurant on Orleans Avenue behind the cathedral - Orleans Grapevine - small, quaint, known for excellent wines.

Check out The Green Goddess. Something of a hole in the wall, but the food and the chef are SO worth it!!!

St. Louis Cathedral is a great stop for a beautiful church with pretty stained glass and even more history.   You may catch a wedding party spilling out into the square and second lining down Royal Street.

Frenchmen Street in the Marigny is New Orleans funky with lots of clubs for listening to music. Watch the clock for the Witching Hour!

Take the streetcar down St. Charles and get off at Lee's Circle.There's the Ogden Museum of Southern Art . A must see.

From there venture down Julia street and others in the Warehouse District  for Galleries and restaurants. 

For military buffs there is the National World War II Museum - a great and moving tribute to the service of the greatest generation.

Continue the streetcar down St. Charles through the Garden District  to Uptown and the University area. 

Stop at Carrollton Avenue and grab some breakfast or lunch at the Camellia Grill before spending some time shopping in the Riverbend area.

If you have access to a car go down Magazine Street for shopping and eating - where the locals go!

See you there when the good times roll!

Q&A Tuesday: Haven't I Seen You Before? Oh, Right! Other Focus Groups.

 

Q:    Who here recycles their focus group research participants?  What's the cost?

A:    Many lawyers do; and the cost is diminished, if not faulty research value.

Half a decade ago I moderated a day-long focus group in a medical malpractice case.  The 21 research participants were carefully chosen  to represent the venire panel for the upcoming trial on the case.  When I excused them I anticipated that their role in focus group research was concluded.

Imagine my surprise to learn from the videographer of that project that the research participants had been reshuffled and recycled in subsequent focus groups in that city as lawyers chose to run their own projects.  How did the videographer know?  He was filming the focus groups and he recognized the players.  One woman in particular was noteworthy for telling the others, "I know how to get us out of here early.  Just give them more than they want for the case.  Make it millions!"

I'm all for free enterprise; but if you insist on moderating your own focus groups, pay attention to the basics:

TIP:    Preliminary Considerations

When you choose to invite a number of strangers to hear your client’s story, do you know who they are?  Where do they come from? How like your venire panel are they? Can they communicate? Will they keep the case confidential after the small group research process is concluded?  Are they focus group veterans, like professional blood donors?

TIP:    Invest in a Professional Recruiter.

This is not the place to compromise. Work with someone who will help design and develop the research  panel beyond mere demographics or statistics. Ideally, you want the research panel to mimic as closely as possible the venire panel you expect at trial. The best recruiters have a strong database and excellent people skills to sort out the nuts and wannabes from the legitimate participant. 

TIP:    Develop the Screener to Reflect Your Case.

Who you recruit should be guided by a carefully crafted screener to staff the research project, maintain confidentiality, capture the eligible participant from the pool who could participate, and sift out participants you would not want because they, their attitudes and biases are not relevant to this research.

TIP:    General Exclusions.

As a general rule - whether you recruit from a temp agency, online or with a research firm - keep out anyone who might even remotely have a personal connection to the case in chief (all sides); anyone who is or has a close family member in the insurance, legal, market research, media, or journalism professions; the clergy; occupations related to the case; or anyone who is currently serving on a jury, has served on a jury within the past 12 months; or anyone who has ever served on a legal research project.  You want to avoid a “Jury of One” or someone who knows how legal research is conducted and will skew the entire project.

TIP:     The Bottom Line for You .

A focus group run with carelessly selected and/or repeat research participants is not (1) reliably predictive, (2) comprehensive in measurement, (3) representative of the neutral venire panelist, (4) legitimate research; and (5) adequate or sufficient to predicate serious strategic or tactical decisions upon.   Focus group veterans know how the game is run and will not be the neutral participant you require for your research.  You may as well save your money and poll family, friends and business acquaintances.

Q&A Tuesday: Focus Group Research And Confidentiality Agreements.

Q:     I am a lawyer who wants to run my own focus groups.  What do I need to know about confidentiality?

A:     Three things: (1) Always Secure a Signed Confidentiality Agreement; (2) Pre-Research Orientation; and (3) Who Stays and Who Goes.

Always Secure a Signed Confidentiality Agreement.  The confidentiality agreement assures the participants that we will not use their private information in exchange for their agreement that they will keep secret the confidential information gained during the course of the research.  Typically each participant is asked to read, complete, sign, and submit a written confidentiality agreement prior to being seated for the project.  Do not email the participant a copy of the agreement ahead of time.  Present it to the participant after she has shown you her driver's license to verify who she is and has signed in for the project. 

The agreement should provide for at least the following:

In exchange for financial compensation, the research participant acknowledges and agrees that:

• The participant is being retained to help decide a real lawsuit;
• The participant will participate fully, thoroughly, and respectfully;
• All information received, heard, discussed, and seen during the course of this project is related to the project and is confidential unless and until required by a court of law;
• The participant shall not disclose any information, opinion, or details about the project in any manner or form whatsoever to any person, entity, business, or organization unless and until required by a court of law;
• The participant will be videotaped and/or photographed;
• His or her videotaped participation, comments, photographs, written questionnaires, notes, sketches, and the like generated during the course of the project become the property of the law firm; and
  
• The participant will pay reasonable damages if he or she breaches the agreement.

Pre-Research Orientation.  Always remind the participants of the importance of the confidentiality agreement that they signed and secure one last acknowledgment of their promise. My practice is to read a statement about the need for confidentiality, have the participants raise their right hand if they agree with the statement, and secure that agreement on videotape. This is also a good time to remind them that all notes, papers, and trash will be confiscated after the project. The trash can be returned to the law firm and shredded.

Only Lawyers and Firm Associates Attend the Research.  Many litigation consultants agree that parties and experts do not attend or testify during the research project. There is a lot of gray area about the confidentiality of focus groups with parties and experts in attendance. Many clients are too vested in the outcome or are simply unable to hear strangers discuss their cases. Your job is to listen and observe the proceedings; not hand-hold the fretful client.

Moreover, having the client or experts address the focus group destroys neutrality. Absolute neutrality is critical to receiving predictive and probative information. Typically, if the client appears for the purpose of being evaluated one of two things will happen: You will have folks who play the devil’s advocate and challenge you or, worse, you will have those who want to be your cheerleaders and advocate strongly regardless what the evidence shows. Neither role works and both hurt. You do not want to risk it.  Substitute a clip of the video-taped deposition instead.

 

Is This Story True?

Q:    Is this story true?

A:    It well may be perceived as such - provided it has two key elements.

As a platform storyteller, focus group moderator, and communications consultant  I am often asked whether a story is true.  To the listener it has the ring of truth; but it may not be literally true if fact-checked.

Does that make it a lie or untrue? Not at all.

Even legal writing may not be precisely and absolutely true once you factor in eye witness testimony, opinion and point of view.

What makes a story "true" to the listener or decision-maker is whether it has two key elements: (1) fidelity, and (2) congruence.

"Fidelity" means that the story must hew closely to the world views, experiences and expectations of the listener or decision-maker.  Another way to say this is that the story is faithful to what we know.  Simple cliched example: Boy meets girl.  Boy loses girl. Boy and girl meet up years later, fall madly in love and live happily ever after.

I am taking liberties but you get the point, right?

Keep in mind the world views, beliefs and expectations of your particular audience of listeners and decision-makers to create stories that have the certain fidelity you need to inform, enlighten or persuade.

A story has "congruence" when it hangs together seamlessly and effortlessly from beginning to end.  When a story is congruent the listener or decision-maker does not have to fight with the structure, values, characters, plot line, format, themes and the like of your story to comprehend its emotional meaning.  You have done that work for them by crafting your particular story with careful attention to the listener's or reader's perspective.

TIP:    Write your stories with fidelity and congruence to create the "ring of truth" that persuades your listener and decision-maker.

Q&A Tuesday: Quickest Way Into The Story.

Q:    I'm getting muddled with all the facts.  What is a quick way into identifying a story I need to tell?

A:     Ask yourself: "Who did what to whom, under what circumstances, toward what ends, with what means?"  Then answer the question step-by-step.  You now have an outline of the beating heart of your story.

Q&A Tuesday: What Makes My Character Or Client Believable?

Q:    What makes my character (or client) believable?

A:    For starters, no one is either all good or all evil. You need a bit of both.

The mistake many folks make when they create a character (or prepare a client for deposition or trial) is they want to err on the side of "my guy is all good and the other guy is all bad."  This sounds like something one would hear in divorce counseling. The truth is, even Darth Vadar and Lucifer started out on the bright side.

Generally speaking we like people like us.  Whether we are conscious of it or not, we relate to characteristics in others which are like those in  people familiar to us. These sense impressions inform the attitudes we have about people - before we even know them. 

In a real world setting like a trial, we want to know if the client comes across in a positive way - or do they turn off the members of the focus group.  What about the client is not believable?  And can this thing be truthfully and accurately corrected so the client is compelling and convincing? 

That does not mean we erase the flaws.  Not at all.  In fact, the case may require the lawyer to embrace the flaws while showing that the event had nothing to do with the flaws.  In the alternative, the flaws may be presented as having some part to play in the event but to a much lesser degree than that of the opposition. 

The key is to steer clear of generalities and stereotypes when preparing your client.  And remember you can't put lipstick on a pig.  Well, you can - but what are you left with? 

 

In the fictional world the same notion applies.  What makes characters endearing is that they have recognizable flaws and virtues.  We may recognize the flaws as belonging to someone else we know - not us.  But we recognize them just the same.  Give us a bit of both angelic and misbehavin'.

I was thinking of this concept while watching re-runs of The Big C, a TV series starring Laura Linney and Oliver Platt.   Linney's character has been diagnosed with cancer and she's trying to have the time of her life while there is life. Platt's character is her self-absorbed husband. But as you allow the characters to develop you come to realize that Linney's character is not all grace and sunshine.  She has a pretty selfish streak.  And Platt's character has a deeply feeling side you would not easily suspect in the beginning.

TIP: Create your characters or develop your client like the well-rounded human beings they are taking advantage of flaws and virtues as befits the situation.

 

 

 

Q&A: Pack Up Your (Trial) Troubles In Your Old Kit Bag.

Q:    What's a kit bag? And what do I pack in it for trial?

A:    A kit bag is a knapsack or rucksack.  A vintage song from WWI, Pack Up Your Troubles In YOur Old Kit Bag, advised the boys going to war to pack up their troubles in their kit bag rather than worry.  I vaguely remember the song being played on a radio show called "Rambling With Gambling."  But I digress.

A few weeks ago the trial team got ready to show up in the courtroom for jury selection.  We assembled boxes and crates and redwells full of trial materials.  Following are a number of items we also packed that made our lives go a heck of a lot more smoothly:

1. Post-It pads in various sizes and colors.
2. Legal pads large and small.
3. Packages of ink pens in blue, black and red.
4. Packages of magic markers and highlighters.
5. #2 pencils with sturdy erasers.
6. A pad of butcher block paper for the easel.
7. A box of bottled water.
8. A supply of Airborne, throat lozenges, aspirin, and Kleenex. 
9. Packages of AA batteries.
10. A metal retractable/telescoping pointer.
11. A supply of single dollar bills and quarters for Xerox machines, parking meters, and vending machines.
12. Extension cords and multi-cord power strips.
13. Computer cables and appropriate connectors.
14. Gaffer tape (to secure the extension cords to the floor).
15. Extra light bulbs for the projector and Elmo.
16. Fruit, nuts and chocolate for the afternoon pick-me-up.
17. A collapsing yardstick and retractable metal measuring tape.
18. A thumb drive or three (they're small).
19. Someone who knows how to run all the techno-gizmos at the time you need them to run.
20. A full tank of gas to get to and from the courthouse timely.
21. Good will and courage.

What do you pack up in your trial kit bag?  How has it saved the day?