Wyzga On Words

Lawyers are Suspicious of Stories That Do Not Come Packaged in Structures.

I am delighted to have been invited to join Kathy Hansen's blog, A Storied Career!

Just in case you missed us, over the next several days I'll be re-posting the interview she conducted with me and began publishing on April 9th.

Click here for the 3rd post.

Nurses Hold the Space for Patients, Families to Tell Their Stories.

I am delighted to have been invited to join Kathy Hansen's blog, A Storied Career!

Just in case you missed us, over the next several days I'll be re-posting the interview she conducted with me and began publishing on April 9th.

Here's the second post

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 Tuesday: How Do I Get Down The Story?

Q:    "I have so many details, so many facts, so much information....How do I get down the story?"

A:    Sentence by sentence, using index cards.

When I work with lawyers and others who need to tell a story, I am fond of the compression exercise I learned from Jay O'Callahan.  The trick is to get your whole story down to 15 seconds.  It works.  And then you can put down the paper and no one gets hurt.

Here are two more techniques you can use.

This first one comes from a favorite author, Anne Lamott, who wrote "Bird By Bird - Some Instructions on Writing and Life."  I am charmed by the little story that gives us a clue to the treasures her book will hold, as follows:

"Thirty years ago my older brother, who was ten years old at the time, was trying to get a report on birds written that he'd had three months to write.  [It] was due the next day.  We were out at our family cabin in Bolinas, ans he was at the kitchen table close to tears, surrounded by binder paper and pencils and unopened books on birds, immobilized by the hugeness of the task ahead.  Then my father sat down beside him, put his arm around my brother's shoulder, and said, 'Bird by bird, buddy.  Just take it bird by bird.'"

That is the very same advice I give those with whom I am working. 

Imagine that you are walking in a great swirl of papers.  Each sheet of paper is an item of information for the story.  No wonder you feel lost.  Grab one paper and begin there.  Then take it piece by piece or, bird by bird.

This last tip came to me this morning.  A high school senior by the name of Ben Breedlove wrote his story early last month before he died from a longstanding heart condition. His technique is profoundly stirring.  Words written on index cards, no sound, only the expression in his eyes and the occasional grin.  He was gorgeous.  In his memory I would like to share the technique with you in the expectation that it will be another tool for you to get down the story.

Click here to access  This Is My Story (Part I) and Part II.

Imagine having your clients do the same work.

It's as simple as that.  And if you're still perplexed, call me and we will create the story together.

 

Announcement: Lightning Rod Communications Adds "Lawyer Development" To Services.

Thank you to friends, clients and colleagues who have reminded us here at WyzgaOnWords and Lightning Rod Communications that the #1 fear we "homo narrans" (humans wired to tell stories) have in common is not fear of ssssssssnakes                        

    (although that is #2).

What unites us is fear of public speaking. Daniel Denoon reports:

"If speaking in public scares you, you aren't alone, says Paul L. Witt, PhD, assistant professor of communication studies at Texas Christian University, Fort Worth.

"It is even scarier than rattlesnakes," Witt tells WebMD. "The idea of making a presentation in public is the No. 1 fear reported by people in the U.S."

And it's not just making a speech. Anxiety strikes any time we present our ideas in front of other people.

"Anytime people make verbal remarks that need to be clear and persuasive, we find widespread reports of stage fright and nervousness," Witt says."    

To meet a very real need, Lightning Rod Communications ("Translating Images Into Action") and WyzgaOnWords ("Telling stories to understand, relate and persuade") added "Lawyer Development" to our list of professional services.

What can you expect?  Experienced, professional and individualized training and coaching to produce:

• Narrative skills designed to enhance what you do well;
• Clear, concise and cogent writing;
• Presentations delivered with power, passion and precision;
• Deliberate word choices to be heard, recalled and acted upon; and
• Platform skills (also called theater skills or delivery skills).

All the world's a stage! 

It's time you took your (confident) place on it. 

When Children Are Asked To Testify, The Recall Should Be Carefully Questioned

This small piece by Sindyan Banoo writing for the NYTimes Science section on September 6, 2011, "Memory Process Takes Years to Fully Develop", bears some careful consideration for lawyers and others who are calling children to testify.

A new study reported in the journal Child Development cautions that the ability to remember the origins of memories develops into adolescence and matures in adulthood.  Excerpt.

"Although memory performance generally improved with age, the ability to trace the source of a memory — evaluated by the second test — was particularly weak in children. Adolescents and adults performed equally well, but with a significant difference.

The participants wore electroencephalogram caps that measured their neural activity. Only adults showed a sophisticated pattern of activity when they were retrieving source memory information, said the study’s lead author, Volker Sprondel, a psychologist at Saarland.

Using behavioral measures alone, the researchers would not have detected the difference between adults and adolescents, Mr. Sprondel said.

The findings suggest, he added, that when children and adolescents are asked to testify, the reliability of their source memory — for example, recalling the first time a certain person was encountered, and where — should be carefully questioned."

Click here for the abstract.

The Spirit Of The Law As Against The Letter Of The Law - Which To Apply & Why?

On Saturday my friend will compete in the Ironman Race in Windsor, CA.  I told her I would burn my magic candle for her between the hours of 0500 and midnight, the time she will be running, biking and swimming.  My friend won't be able to see my candle; but I am guessing that the thought will encourage her.

I am reminded of a favorite story I have often told from the platform.  I loved this story from the first moment I heard it told to me years and years ago.  It's one collected by Harold Courlander and Wolf Eslau and comes from Ethiopia.   The theme that runs through the story is one very common to a great part of Ethiopian literature: the spirit of the law as against the letter of the law.

Here are the bones of the story.  A servant boy who had come from the country to serve a rich master wondered aloud one night, "How much cold can a man stand?'  His rich master asked him if he thought he himself could stand the cold of a night on the highest peak in the land, Mount Suluta.  And the boy said he could if there was something worthwhile to gain.

His rich master made the boy a bet that he could not stand one night of cold on Mount Suluta without a tent or clothes or fire.  But, if he did manage to do that the rich man would reward him with land and cattle and a home of his own.  The young boy agreed to the wager. 

To seek some comfort and encouragement the boy visited a tribal elder who told him that he would burn a fire all night long on a hill top the boy could see across the valley from Mount Suluta.  When he got so cold he could not go on he was to look across the valley and know that his friend was there tending the fire for him.  And that would give him warmth.

And so plans were made.  The day arrived and the boy climbed to the very top of Mount Suluta with other servants sent by the rich master.  They took his clothes and sat huddled in a tent drinking hot tea while he was left alone in the cold dark night.  The moon rose, the stars passed overhead and the boy was frigid.

Yet, across the valley he could see just a pinprick of light.  He knew it came from the fire being tended by the tribal elder and the thought of this friend's generosity gave him courage.  In the morning the servants were astonished to find the young boy alive.  They wrapped him in blankets and carried him with great ceremony back to the home of the rich master.

When they arrived the master wanted to know what sustained the boy through the dark and frigid night on the mountaintop.  The boy told him about the fire that was tended on the hill top across the valley.  When he heard this the master grew enraged and he said the bet was off!  There would be no land or home or cattle for the boy - he was to remain a servant because he broke the rule of no fire.

What do you imagine happens next?

What Do We Know About Time? Why Eye Witness Testimony May Be Unreliable As To Time.

Think back to a time when something scary happened to you:  maybe your car skidded on black ice; maybe you tripped and fell headlong down a flight of stairs; maybe you took a dare and went on the tallest roller coaster ride at the amusement park.   How did time feel?  

A brush with death taught David Eagleman about the mysteries of time and the brain.  Burkhard Bilger takes us along on a journey of discovery in his tautly written and provocative New Yorker article profiling neuroscientist Eagleman and his work in "The Possibilian."  Read all 10 pages.  I am betting that you won't look at time, amusement park rides or eye witness testimony quite the same way.  Excerpt:

"When David Eagleman was eight years old, he fell off a roof and kept on falling. Or so it seemed at the time....

In the years since, Eagleman has collected hundreds of stories like his, and they almost all share the same quality: in life-threatening situations, time seems to slow down. He remembers the feeling clearly, he says. His body stumbles forward as the tar paper tears free at his feet. His hands stretch toward the ledge, but it’s out of reach. The brick floor floats upward—some shiny nails are scattered across it—as his body rotates weightlessly above the ground. It’s a moment of absolute calm and eerie mental acuity. But the thing he remembers best is the thought that struck him in midair: this must be how Alice felt when she was tumbling down the rabbit hole."

Eagleman is 39 years old now and an assistant professor of neuroscience at Baylor College of Medicine, in Houston.  Excerpt.

"If Eagleman’s body bears no marks of his childhood accident, his mind has been deeply imprinted by it. He is a man obsessed by time. As the head of a lab at Baylor, Eagleman has spent the past decade tracing the neural and psychological circuitry of the brain’s biological clocks."

 And this is how he spends his life - figuring it out for the rest of us.  Excerpt.

"Although Eagleman and his students study timing in the brain, their own sense of time tends to be somewhat unreliable. Eagleman wears a Russian wristwatch to work every morning, though it’s been broken for months. “The other day, I was in the lab,” he told me, “and I said to Daisy, who sits in the corner, ‘Hey, what time is it?’ And she said, ‘I don’t know. My watch is broken.’ It turns out that we’re all wearing broken watches.” Scientists are often drawn to things that bedevil them, he said. “I know one lab that studies nicotine receptors and all the scientists are smokers, and another lab that studies impulse control and they’re all overweight.” But Eagleman’s ambivalence goes deeper. Clocks offer at best a convenient fiction, he says. They imply that time ticks steadily, predictably forward, when our experience shows that it often does the opposite: it stretches and compresses, skips a beat and doubles back.

The brain is a remarkably capable chronometer for most purposes. It can track seconds, minutes, days, and weeks, set off alarms in the morning, at bedtime, on birthdays and anniversaries. Timing is so essential to our survival that it may be the most finely tuned of our senses."

 So, we all have some sense of time, but it is "intrinsically subjective."  Which may explain why one of my sisters will always be late no matter how early she starts out.  The biggest question: where and how does time exist?  Apparently, time does not match reality.  And this data led Eagleman to research: 

"Why does time slow down when we fear for our lives? Does the brain shift gears for a few suspended seconds and perceive the world at half speed, or is some other mechanism at work?"

 It seems that the only way to find out was to re-create situations in controlled settings.  This leads to the amusement park ride and human subjects.  "He needed something completely safe yet plausibly deadly. “I really chewed on this for a while,” he told me. “I couldn’t put people in a car accident.” Then he heard about the SCAD."

I am going to jump ahead here because I am fascinated with just how complex we human creatures really are.  Folks try to dissect us this way and that way into isolated brain parts but the bottom line is a lot is not clear.  Excerpt.

"Just how many clocks we contain still isn’t clear. The most recent neuroscience papers make the brain sound like a Victorian attic, full of odd, vaguely labelled objects ticking away in every corner. The circadian clock, which tracks the cycle of day and night, lurks in the suprachiasmatic nucleus, in the hypothalamus. The cerebellum, which governs muscle movements, may control timing on the order of a few seconds or minutes. The basal ganglia and various parts of the cortex have all been nominated as timekeepers, though there’s some disagreement on the details. The standard model, proposed by the late Columbia psychologist John Gibbon in the nineteen-seventies, holds that the brain has “pacemaker” neurons that release steady pulses of neurotransmitters. More recently, at Duke, the neuroscientist Warren Meck has suggested that timing is governed by groups of neurons that oscillate at different frequencies. At U.C.L.A., Dean Buonomano believes that areas throughout the brain function as clocks, their tissue ticking with neural networks that change in predictable patterns. “Imagine a skyscraper at night,” he told me. “Some people on the top floor work till midnight, while some on the lower floors may go to bed early. If you studied the patterns long enough, you could tell the time just by looking at which lights are on.”

“There’s always an impulse toward phrenology in neuroscience—toward saying, ‘Here is the spot where it’s happening,’ ” Eagleman told me. “But the interesting thing about time is that there is no spot. It’s a distributed property. It’s metasensory; it rides on top of all the others.”

The real mystery is how all this is coördinated. When you watch a ballgame or bite into a hot dog, your senses are in perfect synch: they see and hear, touch and taste the same thing at the same moment. Yet they operate at fundamentally different speeds, with different inputs. Sound travels more slowly than light, and aromas and tastes more slowly still. Even if the signals reached your brain at the same time, they would get processed at different rates. The reason that a hundred-metre dash starts with a pistol shot rather than a burst of light, Eagleman pointed out, is that the body reacts much more quickly to sound. Our ears and auditory cortex can process a signal forty milliseconds faster than our eyes and visual cortex—more than making up for the speed of light. It’s another vestige, perhaps, of our days in the jungle, when we’d hear the tiger long before we’d see it."

Before I leave you to delve further into Eagleman's work, two mentions: (1) he fell under the spell of Francis Crick, the biologist who years earlier had won the Noble Prize with James Watson for deciphering the structure of DNA.  Crick called the work of inquiring into the notion of individual awareness "the scientific search for the soul."  And (2):

"Something similar happens in language all the time, Dean Buonomano told me. If someone says, “The mouse on the desk is broken,” your mind calls forth a different image than if you hear, “The mouse on the desk is eating cheese.” Your brain registers the word “mouse,” waits for its context, and only then goes back to visualize it. But language leaves time for second thoughts. The flash-lag effect seems instantaneous. It’s as if the word “mouse” were changed to “track pad” before you even heard it.

 The explanation for this is both simple and profoundly strange."

 And now for the rest you're on your own.  No storyteller worth her salt would ever reveal the end too soon or tell the listener what the moral of a story is - it's your own discovery. 

Imagine This: People Use a Metaphor Every 10 to 25 Words. Who Knew Such Poetry?

Unlike shiny red high-heeled pumps, metaphors don't often get our attention. How come?  We take metaphors for granted.  And yet metaphors are a literary device at the very heart of our communication. 

David Brooks, in his April 11, 2011 NYTimes OpEd piece, Poetry for Everyday Life, takes issue with:

"...a clunky but unremarkable sentence that appeared in the British press before the last national election: “Britain’s recovery from the worst recession in decades is gaining traction, but confused economic data and the high risk of hung Parliament could yet snuff out its momentum.”"

What makes this otherwise unremarkable sentence quite remarkable is something that probably flew over your head like it did mine:

"The sentence is only worth quoting because in 28 words it contains four metaphors. Economies don’t really gain traction, like a tractor. Momentum doesn’t literally get snuffed out, like a cigarette. We just use those metaphors, without even thinking about it, as a way to capture what is going on."

Brooks refers to a wonderful new book by James Geary,  "I Is an Other," in which Geary reports on "linguistic research suggesting that people use a metaphor every 10 to 25 words. Metaphors are not rhetorical frills at the edge of how we think, Geary writes. They are at the very heart of it."

TIP: So now that you know you do it, how do you do it more effectively and efficiently in your speaking and writing?  Begin by paying attention to the metaphors you say and hear.  For example, Brooks lists a few examples in his piece, as follows:

"We devour a book, try to digest raw facts and attempt to regurgitate other people’s ideas, even though they might be half-baked.

When talking about relationships, we often use health metaphors. A friend might be involved in a sick relationship. Another might have a healthy marriage.

When talking about argument, we use war metaphors. When talking about time, we often use money metaphors. But when talking about money, we rely on liquid metaphors. We dip into savings, sponge off friends or skim funds off the top."

TIP: At the risk of relying too heartily on Brooks lovely language, I second his advice to take the time to pause and listen.  Imagine that!  Pause.  And.  Listen.  If only once a month, per Brooks: 

"Most of us, when asked to stop and think about it, are by now aware of the pervasiveness of metaphorical thinking. But in the normal rush of events, we often see straight through metaphors, unaware of how they refract perceptions. So it’s probably important to pause once a month or so to pierce the illusion that we see the world directly. It’s good to pause to appreciate how flexible and tenuous our grip on reality actually is."

TIP:  For years I have relied on the precursor to Geary's work, George Lakoff and Mark Johnson's classic, "Metaphors We Live By."  Lakoff and Johnson explain how metaphors have become so central to understanding how we think and how we express our thoughts in language.  Consider adding the updated edition to your library.

TIP:  The savvy lawyer who is testing her case story in small group research such as focus groups or mock trials already knows that she is listening to the ways people in the community use metaphors to help someone else comprehend their often imprecise thoughts.  It is for this reason I will go on record once again to encourage lawyers to allow an experienced professional to facilitate the small group research leaving the lawyer free to hear what is right and, most importantly, wrong with the trial story.  Ironically, it is as if Brooks is actually speaking to lawyers here:  

"Most important, being aware of metaphors reminds you of the central role that poetic skills play in our thought. If much of our thinking is shaped and driven by metaphor, then the skilled thinker will be able to recognize patterns, blend patterns, apprehend the relationships and pursue unexpected likenesses."

I love language - almost as much as a brand new pair of shiny red high-heeled pumps.  No matter the shoe, they all get laced the same way - metaphorically speaking.

 

Q&A Tuesday: Pain & Suffering Damages Story

Q: How do I tell the pain and suffering damages story?

A: Three things:  Pain.  Suffering.  Time.

    What is key to convey: (1) what is pain legally; (2) what is suffering legally; (3) how do you explain pain to the jury; (4) how do you explain suffering to the jury; and (5) what is the true value of money damages for each.

    Pain and suffering are personal to each human being.  Right off the bat we know that juries are biased against pain and suffering damages.  Juries will need an argument balanced between passion and logic.  If you can provide them with a "formula" that ties emotional meaning to a rational and logical method of decision-making. 

    One approach is the "Per Diem" argument which is based on one day in the client's life and extended through the anticipated life expectancy.  For example, a 50 year old female with 25 years to live at 365 days per year plus the 2 years it took to get to trial at a determined dollar figure per day would total out to X amount.  Another approach is to use your client's pain and suffering as a term of indentured servitude to the defendant, and what that's worth.  A third approach is to draft a "help wanted" ad for the type of life your client leads with the pains and the sufferings in her life and ask who would take on that job and for what annual salary.

    1.    Pain. Become familiar with the legal standard and elements of pain as damages in your state.  Identify as many of those in your client's case.   Name each element in your trial.  Your client can testify about all the ways in which she is working to overcome her pain; witnesses who don't have a dog in the fight can testify to the hardship of the pain experienced by your client.  Validate pain as a legitimate damage by linking it to the decision of your state to recognize and legislate this element.  And then tell the jury that the judge will give them the authority to decide the worth of those pain damages.     

    For example, the People of the State of Yours recognize that headache is a very real pain associated with head trauma.  In this state the law says that headache is pain.  My client has headache.  The judge will give you the authority to determine the money value of her pain.  You can repeat this for each element or bundle the elements together; whichever is less tedious and most effective. 

    2.   Suffering.  Suffering is different from pain.  Remind yourself to treat it as a companion to pain but not its identical twin.  So often lawyers run these two together, e.g. "painandsuffering," with little distinction made between them. 

    Again, become familiar with the legal standard and elements of suffering as damages in your state.  Identify as many of those that exist in your client's case.  Name each element in trial.  Allow the jury to hear your client tell them about the mechanisms she is using to alleviate her suffering; let other reliable witnesses testify to the severity, frequency and degree of your client's suffering.  What we are trying to avoid is any "whine" factor.  And then tell the jury that the judge will give them the authority to determine the suffering and the money value of the suffering.

    For example, the People of the State of Yours recognize that anxiety is a very real suffering associated with head trauma.  In this state the law says that anxiety is suffering.  My client has anxiety.  The judge will give you the authority to determine the money value of her suffering.  I prefer repeating this for each element of suffering; provided that the list does not numb the jury.  

    3.    Time.  There is a fallacy in calculating pain and suffering damages.  The fallacy about pain and suffering damages is that we measure them in hindsight.  And when we measure in hindsight we are more likely to both intellectualize and underestimate the length of time rather than feel the passing of actual time.  Mother's who have labored in childbirth know this well; otherwise, the Planet would be a lot less populated. It is particularly difficult when we are asked to calculate pain and suffering in the case of a death when we do not have the decedent to tell us what it was like to feel the pain, to experience the suffering before she died. 

    Think about it:  How long did it feel like it took before the dentist was done drilling out your old filling?  How long did it feel like that baby was shrieking in the crowded airplane?  How long did it feel like the headache wore on before the Aleve kicked in?  These are only a few common examples of how we judge the feeling of the passage of time.  A place to begin exploring this is in voir dire so the jury becomes familiar with the emotional meaning and the logical method to calculate the value of pain and the value of suffering.