Wyzga On Words

1 Teenager, 11 Texts, 2 Dead Men & Redemption By Science.

It started as normally as any morning: a 19 year old male gets into his SUV to drive to work in the freezing rain of an early morning.  As he drives he sends and receives texts messages and drives so erratically that a tractor trailer driver behind him comments that nothing good will come of this.  Prophetically, as the SUV barrels down the crest of a hill it drifts over the middle line, clips a Saturn which is flung crosswise in front of the tractor trailer, getting hit broadside before coming to a dead stop in a ditch.  The 19 year old is fine.  The 2 men in the Saturn traveling to work were killed.

My family knows that I keep my cellphone turned off when I have it in the car.  They know not to call me from the road on their cellphones.  There is the rare occasion when I'll speak to a brother who has a voice-activated hands-free system and then only in the event of a parent emergency.

My experience with motor vehicle cases and the pre-trial focus groups examining people's thoughts, feelings and opinions about texting and driving has shown me over and over and over again: folks don't like it; *but* it's always the other guy or gal who will cause the problem. 

What explains our addiction to the pings and beeps and ringtones of incoming messages?  For this we turn to a topic near and dear to the heart of my friend and colleague, Stephanie West Allen, who blogs as Idealawg: neuroscience.

According to Matt Richtel's article in the NYTimes, "A Texting Driver's Education", the battle between the prefrontal cortex where high-level decision-making occurs and the lesser but still critical primitive survival regions of the brain gets played out in unexpected ways when the cellphone summons, as follows:   

When the phone rings or a text comes in, the sound can be just as urgent as a lion in the brush — and just as tough to ignore. Is it your spouse? Your boss? A new business opportunity? Primitive brain wiring compels you to answer. But what if you’re driving, like Reggie?

Much of the information that comes through is insignificant, even a nuisance, like spam. Wouldn’t that cause people to learn to ignore it? Perversely, just the opposite is true. The fact that the information is of variable value actually increases its magnetism. That’s because it creates a lure called intermittent reinforcement, a powerful draw that comes with uncertainty of the reward. It’s the very thing that causes a rat in a cage to press a lever repeatedly when it isn’t sure which press will bring the next delivery of food. It presses again and again, just as we click to open our text or email programs.

“What’s happening, in essence, is that you’re constantly scanning your texts and email because every once in a while you are going to get a good one and you can’t predict when that is,” says David Greenfield, a psychologist and an assistant professor at the University of Connecticut School of Medicine, where he teaches a class on Internet addiction. He compares the Internet to a slot machine, adding: “That’s why Facebook is so popular. It’s the fact that it’s dynamic and novel, and constantly changing.”

The idea that technology use affects the brain is supported by a growing body of neuroscience. Several studies show that when people play video games or use the Internet, they exhibit changes in the levels of dopamine, a neurochemical associated with pleasure, similar to changes in the brains of drug addicts. When you hit “send” or press a letter on the keyboard, it prompts a change on the screen, a picture pops up or an email opens, and you get a little dopamine squirt, Dr. Greenfield says, a kind of adrenaline rush. If you do it over and over, it conditions you to the rush, and in its absence you feel bored.

While no one is saying that cellphones and cellphone use are addictive in the sense that a narcotic is, these devices have additive qualities:

“The cellphone, and other similar technology, meet a deep need for social connection with a greater ease and greater potential detriment to it in the same way that a vending machine that is right down the hall plays to our need for calories,” says Dr. Nicholas A. Christakis, a physician and a professor of social and natural science at Yale; he is an expert in the use of social networks across time.

To some researchers, it feels like a process of neurological hijacking, the taking over of our decision-making process."

And this quality which triggers a deeply ingrained reward process is what makes "It Can Wait" about as useful as "Just Say No."  

Two things: after denying for two years that his texting was responsible for the two deaths he caused, Reggie Shaw finally saw how the battle between the focus on his driving was distracted by the primitive parts of his brain calling him to the phone.  The science convinced him.  Now he is on a one-man campaign speaking to anyone who will listen - especially young drivers - that his two counts of negligent homicide are just one text removed from this being another driver's story.

The other is the effort of several men who are closing in on perfecting a device that attaches to the car driving column and will block both incoming and outgoing texts as well as prevent incoming calls from reaching the driver: "Trying to Hit the brake on Texting While Driving."  Some folks say there's nothing to be done until the self-driving car is on the road.  But maybe folks like Reggie Shaw will help us align our behaviors and attitudes so that whatever is coming in over our digital devices really can wait.

Florida's Own Emmett Till.

A long-time friend wrote about recent interviews with jurors in the Zimmerman/Martin trial to say that he was caught off guard to learn that some of the verdict result may have come from interpreting the jury instructions.  His impression was that jury instructions are informative but not mandatory; otherwise, why get jurors involved?  Just let the judge decide. He also expressed the view that the Florida law of 6 might not serve the system well; perhaps 12 heads in deliberations might have been a different story.  And one final requirement: a mix (male/female) should be required as well.

Here's the conundrum: jurors are required to follow the letter of the law as the judge instructs.  Oftentimes a question in jury selection will be " Can you follow the law as the judge instructs you or are your beliefs such that you would not?"  Jury instructions, in addition to being poorly written for the layperson to interpret because they are drafted by.......lawyers, are also meant to be followed as written.  And as the judge has read.  Usually the jury will get all the instructions in the jury room but they can be like hieroglyphics to decipher.  However, that is the point of a jury by peers: the community gets to figure it out.

Yes, a small jury is a more difficult jury.  Give me "12 Angry Men" any day.  The numbers give more room for argument.

The 3rd point is that a defendant is innocent until proven guilty; and that is the job of the prosecution.  If they fail, as they have done so notably before, then the jury has no way out except to vote "not guilty."  When I was in law school and then again trying criminal defense cases, I learned that most often the defendant is guilty and the defense lawyer knows the defendant is guilty.  The job of the defense is to keep the State from fulfilling its promise to the jury: prove the case.  That was done here.  If the charges as filed and the jury instructions said X and if the State did not prove X, then the jury has to go with Y.  Even though following the spirit of the law might have rendered a different verdict.

I am still nauseated by the interview given by the defense trial consultant who said they selected women who would relate to Zimmerman's fear when Martin was beating him.  I wonder what these same women  would have felt walking alone in the nighttime in an unfamiliar neighborhood to be followed by a stranger in a car, who then left the car, chased them........do you think they would fight for their life?

At the same time I still cannot fathom how this jury reconciled that someone can put into motion all these events and stand behind a law designed to protect someone in Martin's shoes.   But I wasn't there.  Who am I to say?

At the end of the day no one really knows.

Still and all, this verdict is a reflection of the collective conscience and consciousness of the community: we allow racial bias, we allow gun-toting, we allow vigilantes, we allow angry, violent, cruel behaviors toward each other, in the media, toward animals, toward the environment. It is our collective consciousness that designs our world.  It's no wonder we have become what we allow.

Florida's own Emmett Till.

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

Do Not Swim, Hike Or Go To The Hospital Alone.

Let's begin here.  "The Short Life and Lonely Death of Sabrina Seelig" as reported by Anemona Hartocollis for the NYTimes reads as a cautionary tale: don't take Ephedra; make sure your jury relates to the story of your dead client; be aware of struggling hospitals, and so on.

What happened?  A 22 year old college student took Ephedra to stay up all night to complete a paper.  Feeling ill in the morning she called 911, an ambulance was dispatched, she was taken to a struggling Brooklyn hospital where she was given sedatives, strapped to a bed, slipped into a coma that evening unattended by the hospital staff and died 6 days after admission.

Her lawyer lost her case for any number of reasons.  I was not there nor part of the trial team.  I do not know.  What is reported is that there was (as there will always be) conflicting testimony, an uneven balance in the gaggle of experts, blame on the plaintiff for bringing about her own death, and juror distancing:

"After a day and a half of deliberations, the jury of four men and two women returned its verdict: Wyckoff and the individuals working there had not been negligent.

The jury did not seem to identify with Ms. Seelig."

As I have written and spoken before, the decision-maker must have some connection to your client.  The decision-maker does not need to have lost a sister or daughter or loved one to death.  The decision-maker does not need to have experience with medical malpractice.  But that decision-maker must be reminded of the values of safety, trust, and vulnerability, taught the medical rules including the simple four-step process of differential diagnosis, as well as the hospital rules of charting, monitoring, and vital signs. 

So often these cases turn on the inevitability of the outcome.  Apparently, Wyckoff Heights Medical Center was just the place.  Excerpt.

"In 2007, when Ms. Seelig was a patient, the state ordered Wyckoff to hire a management consultant to improve its governance and finances. Five years later, it is still struggling. The Brooklyn district attorney has been investigating allegations of mismanagement. A three-month investigation by The New York Times, the results of which were published in March, found a history of insider dealing and positions being given to people with political ties. The hospital officials involved denied any wrongdoing. The hospital does not carry malpractice insurance." 

One thing is for sure: if we have not yet gone to an emergency room or a hospital for treatment, we know someone who has.  One day we will most certainly be there ourselves. 

Here's the rule: Do not go to any hospital alone.  If you must, let someone know where you are going and when and why.

Several years ago I created a website for Vincent DeAngelo, an accomplished, highly-regarded medical malpractice attorney in Hartford, CT.  Mr. DeAngelo insisted that his website provide critical information to the public in five areas of potential medical malpractice: Vbacs, emergency rooms, medication errors, hospital infections, and nursing homes.

Click here to access DeAngelo's educational website complete with detailed downloadable pdfs you can read to learn more about these areas and information to take with you before going to the hospital.  

Our moms were right when they told us not to go swimming alone.  From the grave Sabrina Seelig is reminding us not to go to the hospital alone.

Fear Or Compassion? Which Motivates Action?

I've been reluctant to kick the hornet's nest on this one.  Folks seem pretty divided on The Reptile Theory.  Like Paris - you either love it or you hate it.

The notion that we should regard jurors as reptiles to get some huge verdict out of them by playing to their fears has always struck me as cold-blooded, and not a little inhuman.  How we regard people and things becomes how we treat them.  I felt so strongly about this I co-wrote an article with Stephanie West Allen and Jeffrey Schwartz for The Jury Expert entitled "Atticus Finch Would Not Approve."  [Click AllenSchwartzWyzgaTJEMay2010 to read.]  My position has only strengthened.

I used to work with a beekeeper who insisted on calling the honeybees "really angry" when they reacted to us opening the hive boxes.  He treated them as if they were somehow "really angry."  He over-smoked them.  He was tense, jumpy and afraid.  His physical actions conveyed fear.  At the end of the day working with him I was a wreck.

And yet, there was nothing to fear.  We were suited up for the job.  We would get head-bonked by some of the guard bees; but that was normal behavior.  No bees chased us or swarmed us.  A honeybee has to be truly threatened to sting; when she does she rips out her guts and dies.  Not an action to be taken lightly. 

When I was trained as a beekeeper I was told to remember, "No jerks in the beeyard." While I have not yet gotten to the stage where I will work my hives wearing only a veil, I know that to bee Zen keeps everyone - beekeepers and honeybees - calm.

It works with people, too.  The Science of Compassion by the social scientist David DeSteno writing for the NYTimes shares the results of scientific research that shows empathy with the suffering of others is alive and well.  Excerpt:

"As a social psychologist interested in the emotions, I long wondered whether this spiritual understanding of compassion was also scientifically accurate. Empirically speaking, does the experience of compassion toward one person measurably affect our actions and attitudes toward other people? If so, are there practical steps we can take to further cultivate this feeling? Recently, my colleagues and I conducted experiments that answered yes to both questions.

In one experiment, designed with the psychologist Paul Condon and published in the Journal of Experimental Social Psychology, we recruited people to take part in a study that was ostensibly about the relation of mathematical ability to taste perception — but that in actuality was a study of how the experience of compassion affects your behavior.

In another study, published in the journal Emotion, the psychologist Piercarlo Valdesolo and I conducted an experiment ostensibly about music perception — but that actually investigated how feelings of compassion might be increased.

Our hunch was that compassion is easiest to feel when you have a sense of commonality with someone else."

And what did the scientists find?  Excerpt:

"What these results suggest is that the compassion we feel for others is not solely a function of what befalls them: if our minds draw an association between a victim and ourselves — even a relatively trivial one — the compassion we feel for his or her suffering is amplified greatly.

What does this mean for cultivating compassion in society? It means that effortful adherence to religious or philosophical dictums (often requiring meditation, prayer or moral education), though clearly valuable and capable of producing results, is not the only way to go. There is nothing special about tapping in synchrony; any such commonality will do. Increased compassion for one’s neighbor, for instance, can come from something as easy as encouraging yourself to think of him as (say) a fan of the same local restaurant instead of as a member of a different ethnicity.

Simply learning to mentally recategorize one another in terms of commonalities would generate greater empathy among all of us — and foster social harmony in a fairly effortless way."

I am not Pollyanna enough to believe that I can buy someone a Coke and the world will live in perfect harmony.  

I agree that there is fear in the world.  Look at everything from video games to the nightly news to the most recent midnight movie massacre in Aurora, CO.  You will get more than your share of a diet of human suffering. 

But fear does nothing to improve the situation - fear causes us to hide, bar the doors, become complacent.  Ironically, when we feel an empathy, a compassion for the situation we will act - whether for gun control, mental health, local food, a jury verdict, whatever.  How does it work this way?

"What these results suggest is that the compassion we feel for others is not solely a function of what befalls them: if our minds draw an association between a victim and ourselves — even a relatively trivial one — the compassion we feel for his or her suffering is amplified greatly."

Like my friend the angry beekeeper, you get what you name.  Whether or not the honeybees were "really angry," he perceived them as such and treated them that way.  It was how he perceived them that created the expectation of harm. 

I've had enough of fear.  I prefer to be on the side of those who encourage a deep compassion for human suffering and from that place articulate for action to lessen the plight of others.

Q&A Tuesday: Why Invest In Focus Group Research?

Q:   Why should I invest in focus group research?

A:    Reconnaissance.

I am often asked what is the worth of investing in focus group research.  The answers are as many and as varied as the lawsuit you have filed or are considering filing:

1. learn attitudes
2. learn opinions
3. learn biases
4. learn notions
5. get ideas for discovery
6. get ideas for strategy
7. test the legal story
8. test the experts
9. test the experts' opinions
10. test the other side's story(ies)
11. test the visuals, demonstratives
12. test your own platform skills
13. ferret out the landmines
14. learn all the ways you can (or might) lose your case
15. learn whether you should even file a lawsuit
16. value of the case
17. whether alternative dispute resolution is feasible
18. ideas for direct and cross examination
19. witness preparation
20. whether and how to go to battle
21. and so on.

Still, lawyers are not convinced that they should invest a reasonable amount of money to learn what is bad and worse about their cases, their clients, and their own strategy.

So I am forced to go to a movie to plead my case.  The other night I was watching Steven Spielberg's Academy Award nominated production, "War Horse" based on the novel of the same name.

Early on in the movie, British cavalry officers listen to a report from their scouts about the location of enemy German soldiers.  The Brits learn the number of German troops, number of mounts, artillary, best positions of attack, strategy for attack, risks of loss of men, and so on. 

As the Brits prepare to attack the German soldiers, the officer in charge tells the scout, "Time spent on reconnaissance is time well spent."   

And then they went to battle. 

Who Here Has Given Jury Service?

Would it surprise you to learn that it's not nearly so many as we might think or have been led to believe:

"Twenty-nine percent of the adult American population has served as a juror. The remaining 71% of Americans live with, live next to, work with, or otherwise hear about the experiences, good and bad, of those 29% who have lived it first hand."

- Tom Munsterman
Director Emeritus, Center for Jury Studies
http://www.ncsconline.org/D_Research/cjs/

The media is replete with hair-raising jury and juror stories derived from jurors on high-profile cases, Twittering jurors, pathological liar jurors responsible for causing a mistrial, blogging jurors, texting jurors, flirting jurors, sleeping jurors, Facebook-ing jurors and those who truly want to do a good job.

What's a lawyer to do?  Look no further than the National Center for State Courts Center for Jury Studies.  Following is the Mission Statement:

"Most Americans are more likely to experience the American jury justice system as a juror than as any other type of participant in the legal system. The Center for Jury Studies is dedicated to facilitating the ability of these citizens to fulfill their role within the justice system and enhancing their confidence and satisfaction with jury service by helping judges and court staff improve jury management. To do so, the Center engages in cutting-edge research to identify practices that

- promote broad participation by the community in the jury system
- respect jurors' contributions to the justice system
- utilize jurors' time effectively and make reasonable accommodations for their comfort and privacy, and
- provide jurors with the decision-making tools necessary to make informed and fair judgments in the cases submitted to them."

The Center for Jury Studies disseminates this information through technical assistance contracts, educational programs, and public outreach.

You might wish to check out the publications on such topics as jury size, jury nullification and effective voir dire to learn how to expand the process of justice through your community and courtroom leadership.

Q&A Tuesday: If It's Not What We Say, Then What Do They Hear?

Q:    How do I connect with the decision-maker?

A:    Your goal is to make connections versus making decisions.  Dr. Frank Luntz reminds us, "It’s not what we say; it’s what they hear.”  What the decision-maker "hears" coincides with human leanings, biases, expectations, beliefs, world views, experiences, and observations.

TIP:    No matter where you are, the decision-maker will watch your behavior and make judgments on what they see and hear. If you are considered to be rude, anxious, weak, disorganized, and out of touch with reality the decision-maker will unconsciously assign some meaning to such behavior and incorporate those perceptions into the her decision-making.

TIP:    Decision-makers look for the facts they want to fill in the story they are weaving and will justify the story that makes sense to them.  If you are selling the idea of ice cream for breakfast, the 9 year olds in the audience will be all over it while their parents will not.  The validity (or invalidity) of your story is measured against the decision-maker’s world views, your case evidence, their understanding of the law they are to apply to the evidence, and their values. 

TIP:    People decide “after the fact” as it were: I know where I want to end up and I will amass the reasons I need to support the decision I want to make.  The process is largely unconscious and grounded in feelings and sensations that are mostly out of reach of the conscious mind.  We tend to back into a stated or decision. 

TIP:    If the attorney is sincere, credible and likable the decision-maker will more often make decisions in your favor. We like people like us and we believe we are sincere, credible, likable people. 

       Sincerity anchors:  
        Say what you mean and mean what you say.
        Consistency between words, actions and values.
        Use your own language, style and form to tell your story.
        Congruence between language and emotions.
        Behave consistently over time.

        Credibility anchors:
        Inspire belief and trustworthiness.
        Be the trusted source of information.
        Have expertise.
        Call it like it is; exaggeration detracts.
        You are perceived as being honest.

        Likability anchors:
        Be courteous and polite.
        Demonstrate empathy toward others.
        Adjust to challenges and carry on.
        Stay cool, calm and collected.
        Check your sense of entitlement at the door.