Wyzga On Words

Wednesday's Child Is Full Of Woe.

Maybe you've heard this old nursery rhyme:

"Monday's Child is full of grace.

Tuesday's Child is fair of face.

Wednesday's Child is full of woe.

Thursday's Child has far to go.

Friday's Child is loving and giving.

Saturday's Child must work for a living.

But the Child that's born on the Sabbath day is kind and loving and good and gay."

Guess which child I was. Yup - I'm a Wednesday.  The only Wednesday in the family.  Growing up I was reminded over and over again.  A problem with hearing a message like that is you can adopt it for no better reason than its repetitiveness.

Of late and because the days have been so dark and deep I've been wondering: Is this a time of woe to which I have some birthright as a Wednesday Child?  Am I truly woebegone (like a certain Lake of radio lore)?  Or could it be that some great blessing might be attached to this time?  Maybe even a miracle.  But how to know?

Perhaps strangers know you best.  And welcome you best of all.  Last year I was walking, hiking, trekking and slogging my way for 5 weeks & 500 miles on the Camino de Santiago.  I knew woe well.  One evening after the pilgrims' dinner a hospitelera held my weather-beaten face in her cupped hands, looked deep into my eyes and offered me this prayer: "May you find what you're looking for, peregrina, even if you don't know what it is." What a kind, heartfelt blessing that was, life-giving and lasting.

As gifts would also have it last night I was re-reading a favorite book: Marilynne Robinson's Pulitzer Prize winning novel, Gilead. On page 55 is this passage by the pastor ruminating on days gone by:

"I could have married again while I was still young. A congregation likes to have a married minister, and I was introduced to every niece and sister-in-law in a hundred miles.  In retrospect, I'm very grateful for whatever reluctance it was that kept me alone until your mother came. Now that I look back, it seems to me that in all that deep darkness a miracle was preparing.  So I am right to remember it as a blessed time, and myself as waiting in confidence, even if I had no idea what I was waiting for."

I can't say if he was a Wednesday Child or not.  I can say I do recognize a fellow pilgrim on the road we call Life which, in its journeying can disappoint us as easily as charm. Savoring the passage I had just read as if it were written for me alone I chose to re-write the nursery line this way: "Wednesday's Child is full of wondering & wandering."  I choose to believe that this time is one of waiting in confidence, even if I have no idea what I am waiting for. It's a matter of trust that my life will be delivered.

What about you?  Which child are you and how has that served you?

 

 

 

 

 

What's Your Word?

A few minutes before that famous glittering ball dropped at midnight in Times Square or maybe in the wee small hours of January 1, 2013 you might have been framing a resolution or three.

Do you recall what you promised?

What about last year?

And how long did that last?

It's still early enough in The New Year to try something different.  I have a suggestion.  What if you were to simply adopt a word?  And the word that you adopt is your authentic word to be fully lived for the whole of the year.

How would that feel?

Click to download Word Of The Year Discovery Tool 2013-v4

The idea was created by Christine Zane as a tool to help create positive change on the "BE" level of your life instead of the one we are so responsibly familiar with: the "DO" level.

If you run into a problem with having too many words from which to choose just one (as one of my sister's did with a count of maybe 19), allow the word to pick you.  Write all the words you are considering on separate pieces of paper, drop them in a bowl (or a hat), intend for one to choose you and allow that piece of paper to be drawn by your fingers.  It will be the right word.

How do I know?  WyzgaOnWords.

Happy New Year!  We made it.

 

 

 

Transforming Fear In The Aftermath of School Massacres.

 

Members of the Healing Story Alliance scrambled to gather and post resources which might be of use to you and your children:

Click here to access: Transforming Fear in the Aftermath.

And feel welcome to share this material around the world.  We all seem to need something.

Q&A Tuesday: Who Here Is Plagued By Doubt? Even If Only Now & Again?

Q:    Who here, even for a moment, experiences doubt?  Before a trial?  When a client calls with a perplexing question?  When you have to make an either/or decision?  Whenever.........

A:    Click here to listen for 10 delightful minutes as Margaret Dulaney talks about devious doubt.

TIP:    If you're like me, you might recognize your fear in "Bob."  Name the fear and see what happens to diminish it. 

This TIP also works very well in witness prep. Have your witness name or label her fear to manage it.  I often ask the witness to draw a picture of the fear.  It's remarkably freeing and productive.

How Politics Became A Business.

Who wrote the following and when?

"1. The immediate objective is the defeat of the compulsory health insurance program pending in Congress. 2. The long-term objective is to put a permanent stop to the agitation for socialized medicine in this country by (a) awakening the people to the danger of a politically-controlled, government-regulated health system; (b) convincing the people, through a Nation wide campaign of education, of the superior advantages of private medicine, as practiced in America, over the State-dominated medical systems of other countries; (c) stimulating the growth of voluntary health insurance systems to take the economic shock out of illness and increase the availability of medical care to the American people."

Would it surprise you to know it was 1945 in retaliation to a proposal by then President Harry S. Truman? 

Earl Warren, former Governor of California and later Chief Justice of the US Supreme Court had proposed compulsory health insurance for Californians after he had fallen quite ill and wondered how others who were not so well off as he would cope with medical bills.  His proposal was severely trounced. 

Months later President Truman proposed a national program. It was severely trounced. How did this happen?

In her riveting 7 page article that reads like a political campaign whodunit, Jill Lepore writing for The New Yorker magazine, "The Lie Factory," takes us back to the early 1930s when the world of political consulting was born of Leone Baxter and Clem Whitaker.  They named their prodigy "Campaigns, Inc." and political life has never been the same.  

If you think, even vaguely, that you are getting the straight scoop on this election, The Lie Factory may disabuse you of that comfortable notion.  It's downright scary even for a realist.

Q&A Tuesday: What Did You Do, Dad? Learning The Stories Before It's Too Late.

Q:    We spend so much time teasing legal stories out of our clients; what would we get if we used those same story listening skills with our loved ones?

A:    You might hear how your father did something rich and wonderful and good.

All around me are aging parents, dying parents, no-longer-lucid parents.  Eulogies are being written that emphasize achievements, accomplishments and affections.

Before that time comes take a moment to read Neil Genzlinger's heartfelt story about cable TV and his pioneering father. 

And then ask a loved one to tell you a piece of their story.  It's as easy as, "Tell me about a time you got into trouble for something you never told your own parents about."  Or, "Tell me about an early friend you had."  Or, "Tell me what you did in the summer months." And so on. 

How Do You Move A Mind? Tell An Emotionally Meaningful Story.

 

I never excelled at math but I understood enough about formulas to create this one decades ago:

"content + context + value = emotionally meaningful story"

What does it mean?  Lawyers are storytellers. Your client's legal story depends on power, passion and precision to develop and deliver a persuasive argument. Otherwise, the story is equivalent to "water, fire, marshmallows, silicone - now draw your conclusions."

Our justice system turns on legal elements.  But those legal elements came about because somebody did something to somebody else under a set of circumstances.  Facts are necessary to prove the case; but it is the personal, emotional and conflicting aspects of the case that create compelling stories from the same forensic fact pattern.

Whether you are writing a brief, preparing for alternative dispute resolution or presenting your case to a jury, there is no substitute, no silver bullet, no simple technique that substitutes for hard work, creativity and this formula: content + context + human value = emotionally meaningful story.

The same holds true for anyone who uses narrative to relate, motivate, innovate, incite, appeal, agitate, and so on.

Click here to read Maggie Koerth-Baker's article, "The Mind of a Flip-Flopper," delving into the scientific research studying moral attitudes, the ways in which emotions and attitudes interact and, how to change a strongly held belief.  Excerpt.

"Moral attitudes are especially difficult to change, Haidt said, because the emotions attached to those preferences largely define who we are. “Certain beliefs are so important for a society or group that they become part of how you prove your identity,” he said. “It’s as though we circle around these ideas. It’s how we become one.”

We tend to side with people who share our identity — even when the facts disagree — and calling someone a flip-flopper is a way of calling them morally suspect, as if those who change their minds are in some way being unfaithful to their group. This is nonsense, of course. People change their minds all the time, even about very important matters. It’s just hard to do when the stakes are high. That’s why marshaling data and making rational arguments won’t work. Whether you’re changing your own mind or someone else’s, the key is emotional, persuasive storytelling."  [emphasis added.]

How come story works this way? Here's one answer: 

"Timothy Wilson is a psychology professor at the University of Virginia and the author of the book “Redirect,” about how we change our minds and behavior. Stories are more powerful than data, Wilson says, because they allow individuals to identify emotionally with ideas and people they might otherwise see as “outsiders.” Wilson says researchers speculate that children who grew up seeing friendly gay people on TV will be more likely to support gay marriage as adults, regardless of other political affiliations and religious beliefs. Once you care about a character, Wilson says, you can find a way to fit them into your identity."  [emphasis added.]

TIP:    content + context + value = emotionally meaningful story.

 

What To Do When Your Witness Forgets? Step By Step By Elliott Wilcox, Attorney At Law.

“What to Do When Your Witness Forgets”

by Elliott Wilcox

Things were going great.  You'd picked a fantastic jury, delivered an opening statement that got the jurors cheering for your client to win, and your first three direct examinations had gone better than you could have hoped.  Now, halfway through the direct examination of the day's final witness, things are still going exactly as planned.  Your witness is completely prepared, easily answering all of your questions without hesitation, and the jurors are hanging on his every word, completely enraptured by the sound of his voice.  But then, midway through your examination, something unexpected happens when you ask this crucial question:

Q.  “What is the worst fraternity on this campus?”

A. “Well that would be hard to say, sir.  They're each outstanding in their own way...”

Every other time that you've asked this question during your pre-trial preparations with this witness, he's been quick to identify the offending fraternity.  But now, his brain seems to have gone blank. 

[With apologies in advance to Speed fans]:
“Ok, pop quiz, hotshot. The witness has just given you an answer you didn't expect.  If you try to ignore it, the bad answer will destroy your case.  If you try to lead the witness to the correct answer, your opponent will object.  What do you do?  What do you do?”

First things first: DON'T PANIC! 

Far too often, attorneys (especially younger attorneys) lose their minds when they get unexpectedly bad responses from their witnesses.  The worst thing you can do at this point is to give your jurors the impression that you've just lost the case.  Chances are, the witness's incorrect answer isn't nearly as fatal as you think it is, so put on your poker face.  If you freak out, the jury will amplify the importance of the negative answer.  Just keep your cool -- you can fix this.

The next step, before you start jumping through evidentiary hoops trying to refresh the witness's recollection or establish a past recollection recorded, is to ensure that your witness really doesn't remember.

“What do you mean, 'ensure that he doesn't remember'?  Of course he doesn't remember, because otherwise he would have answered my question correctly!”

Actually, that's not necessarily true.  Often, witnesses know the correct information, but the reason why they don't answer correctly is because we ask them lousy questions.  Before you attempt to refresh his recollection, take responsibility for asking a lousy question, and then try asking your question a different way to see if that jogs his memory.  For example, set some parameters for your question, and make it easier for the witness to answer:

Q. “Based on their GPA's and disciplinary records, what is the worst fraternity on this campus?”

A. “Oh, that would be Delta house, sir.”

Sometimes, that's all you'll need to do to get the right answer.  But if rephrasing the question doesn't work, you can also try asking for the information in a different manner.  Are there other questions you could ask that get the same answer?  Consider stacking those questions on top of one another:

Q. “Who dropped a whole truckload of feces into the swim meet?”

A. “Delta house.”

Q. “Who delivered the medical school cadavers to the alumni dinner?”

A. “Delta house.”

Q. “Every Halloween, the trees are filled with underwear.  Every spring, the toilets explode.  Which house is responsible for these shenanigans?”

A. “Delta house.”

Q. “What is the worst fraternity on this campus?”

A. “Delta house, sir.”

Q. “Of course I'm talking about Delta, you TWERP!”

It's not as graceful as the first method,  but it still gets you to the correct answer without having to ask any leading questions.  But let's say none of these rephrasing techniques are working.  Regardless of how you rephrase the question, your witness still can't remember.  What do you do then?  When you've exhausted rephrasing techniques, the next step is to refresh the witness's recollection.

Jurors understand that witnesses sometimes need help remembering details.  For example, if I asked you what you were doing on July 10th of last year, you probably wouldn't be able to remember.  But, if I gave you a chance to look at your calendar, you could probably tell me exactly where you were and what you did.  That's the reason why the rules of evidence allow witnesses to refresh their recollection.  Here is the process you'll need to follow to help your witnesses remember:

Step 1.  Show that the witness can't remember.

Q. “What is the worst fraternity on this campus?”

A. “I can't remember.” 
A. “I don't know.” 
A. “I cannot recall.”
A. “I used to know, but I can't think of the answer right now.”

Showing the witness's lack of memory is an essential step that can't be overlooked.  Unless you can show that the witness doesn't remember, you won't be allowed to refresh his recollection.  There's a world of difference between the witness who can't remember and the witness who remembers the wrong answer.  You can't refresh a witness's recollection simply because he's giving you a bad answer.  (You can impeach him, but you can't refresh his memory.)

Step 2.  Show that the witness previously remembered the information.

Q. “Did you used to know which fraternity was the worst on campus?”

Q. “Prior to today, did you have an independent memory of which fraternity was the worst one on campus?”

Q. “DId you previously remember which one was the worst?”

Step 3.  Ask the witness if there's anything that would help refresh his memory.

Q. “Would it refresh your recollection to look at your report?”

A. “Yes, if I could review my report, that would help me remember.”

Q. “Is there anything that would help you remember?”

A. “Yes, if I could smell a whiff of stale beer and listen to Otis Day and the Knights singing 'Shout,' I think that would refresh my memory.”

Q. “What do you need to help you remember?”

A. “If you'd let me smash a beer can against my forehead, that always triggers my memory.”

The important thing to remember about refreshing memory is that you're not limited to showing the witness documentary evidence.  Typically, you're going to use written documents to refresh witnesses' memories, but understand that you're not limited to paper exhibits.  If there's anything that helps the witness remember, you should be permitted to use it to refresh their memory.

During this step, it's often worthwhile to have the witness explain to the jury why the item will refresh his memory and why he needs some help to remember.  For example, let's say you're dealing with a police officer who makes lots of DUI arrests each year.  By the time the case reaches trial, it's understandable that he might need some help remembering the exact details of this arrest, as opposed to the dozens of other cases he's worked.  Before he uses his report to refresh his memory, you'd want to ask him about the report.  “How soon after the arrest did you write the report?  Why did you write it?  How detailed does it have to be?  How accurate are you when you write it?  What details do you include?  Is it intended to help you remember details about the case months, years, or even decades afterwards?”  By asking those details, you help show the jurors that the refreshed memory will be accurate.

Step 4.  Show the refreshing item to opposing counsel.

Step 5.  Show the refreshing item to the witness, asking the witness to examine the item silently, and then look back at you when he's finished.

Step 6.  Ask the witness if his memory has been refreshed.

Q. “Having reviewed your report, does that refresh your memory?”

Q. “Did smelling the stale beer and listening to 'Shout' help you remember what fraternity is the worst on campus?”

Q. “Now that you've smashed a beer can on your forehead, are you able to remember which fraternity is the worst on campus?”

[If the item doesn't refresh his memory, you can still try to get the testimony in through the “Past Recollection Recorded” evidentiary predicate, but you won't be able to use the “Refreshing Recollection” predicate.]

Step 7.  Once the witness has refreshed his memory, re-ask your original question.

Q. “Now that you've refreshed your memory, please tell us, what is the worst fraternity on campus?”

A. “That would be Delta house.”

It's a good practice tip to tell your witness to turn over the document before answering, so the jury can see that he's testifying from his refreshed memory, and not merely reading aloud from the document.  The jury wants to see that the witness has an independent memory of what happened, and isn't merely parroting what he just read.

Hopefully, you'll never run into the problem of having a witness forget what to say.  But, if you decide to try cases in the real world, sooner or later, it's bound to happen.  When it does, use these quick tips to help refresh your witness's memory, and your case will be back on track before anyone even notices.

WANT TO USE THIS ARTICLE IN YOUR EZINE, WEBSITE, OR BAR ASSOCIATION PUBLICATION? You can, as long as you include the following blurb with it: Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com

Traumatic Brain Injuries Are The Scourge Of Our Soldiers.

Did you know that for every soldier killed in war this year, 25 will commit suicide?

How is this travesty possible?

Like those suffered in the civilian world, traumatic brain injuries as a result of war are silent killers.  You can look pretty normal; and yet you may have lost intellect, cognitive skills, anger management, and the ability to care for yourself.  In the face of a dismal diagnosis and little assistance who wouldn't take a way out?

Lawyers and generals need to read the poignant and searing account of one war veteran who speaks for so many who are losing their minds in "War Wounds" as reported by Nicholas Kristof for the NYTimes.  Excerpt.

"Military suicides are the starkest gauge of our nation’s failure to care adequately for those who served in uniform. With America’s wars winding down, the United States is now losing more soldiers to suicide than to the enemy. Include veterans, and the tragedy is even more sweeping. For every soldier killed in war this year, about 25 veterans now take their own lives.

President Obama said recently that it was an “outrage” that some service members and veterans sought help but couldn’t get it: “We’ve got to do better. This has to be all hands on deck.” Admirable words, but so far they’ve neither made much impact nor offered consolation to those who call the suicide prevention hot line and end up on hold.

The military’s problems with mental health services go far beyond suicide or the occasional murders committed by soldiers and veterans. Far more common are people like Richards, who does not contemplate violence of any kind but is still profoundly disabled.

An astonishing 45 percent of those who served in Iraq or Afghanistan are now seeking compensation for injuries, in many cases psychological ones. It’s unclear how many are exaggerated or even fraudulent, but what is clear is this: the financial cost of these disabilities will be huge, yet it is dwarfed by the human cost."

Cynical Or Schmaltzy, The Olympic Stories Still Inspire Us With Universal Truths.

Like my neighbor's birthday party, it's all over but for cleaning up the trash. 

What will we remember of the 2012 Olympics? 

Each one around the globe will have his or her own story to tell.  And yet there are the Universal stories - those stories that we homo narrans collectively recognize as true because they capture universal truths no matter whether we live in Alaska or Afghanistan, Jersey or Jamaica.

Take a moment to read Frank Bruni's recollection of some Olympic highlights that remind us of who we are when we are our best selves in "The Soul of the Olympics."  These athletes gave us something to savor, like the friends and family enjoying tiramisu birthday cake together last night.