Wyzga On Words

Make A Point Of Arguing Your Opponent's Point Of View

"All My Old Haunts" is a lovely and thought-provoking OpEd piece written for the NYTimes by Jennifer Finney Boylan.  Boylan revisits her childhood home upon the passing of her mother.  She is visited - as I imagine each of us might be - by memories of days spent in that home with a sister and her parents. 

Boylan gives us a bit of her life story.  Part of that life story are recollections about the effort her parents made to surround themselves with people who had views different from and in-opposite to their own.  As she says, "This kind of thinking seems almost quaint in the current political landscape...."  Her observation goes beyond politics to law, communication, conversation, social discourse, intellectual pursuits and, of course, the stories we tell.

Here is the precise memory that caught my ear.  Excerpt:

"In the wake of the recent debate over the debt ceiling, I imagined my father’s solution. If the goal were to cut $4 billion from the deficit, he’d have suggested that the Republicans be put in charge of coming up with $2 billion of tax increases and the Democrats with finding $2 billion of cuts in services and entitlements. “Only when you try to argue your opponents’ point of view,” he’d have said, “does your own begin to make sense.” " [Emphasis added.]

If you want to know the other side's argument, defense, point of view and the like then step into the story they will tell and argue it for yourself.  Lawyers conducting their own focus group research, for example, may be doubly handicapped if they do not present with earnest their opponent's side and blithly proceed into trial with their own story ringing in their ears.

TIP:    Take on the story of the person with whom you disagree and argue it with, as I say  "power, passion, and precision" to become fully engaged in the alternatives.

TIP:    Argue those alternatives convincingly and listen to the "what if" this story could be or would be heard this way?  What might be the final chapter?

TIP:    Then argue the opposite side and pay attention to which one sways you most persuasively.  It may not be your own story.

I am working on a case right now where I move back and forth - like a wave machine at the aquarium - attending to first this piece of evidence or testimony and then the other. My job may be to tell my client that this is a case of really thin ice.  But I won't know until I make sense of our legal story in light of our opponents' stories.

Query: When have you had the experience of fully arguing an opposite point of view?  Did it feel true to you?  What did you learn?

Two For One: Damage Anchors AND MedMal Cases Pay Only 1 In 5

Yes, tell them what the case is worth:

From Social Science Research Network
July 11, 2011

Damage Anchors on Real Juries
Shari Seidman Diamond
Northwestern University - School of Law; American Bar Foundation

Beth Murphy
American Bar Foundation

Mary R. Rose
University of Texas at Austin - Department of Sociology

John B. Meixner
Northwestern University - School of Law; Northwestern University - Department of Psychology

July 11, 2011

Abstract:
Experiments reveal anchoring as a powerful force, even when participants see the anchor as irrelevant. Here, we examine the reactions of real deliberating jurors to attorney damage requests and concessions in 31 cases involving 33 plaintiffs in which the jury awarded damages. Jurors were critical consumers of attorney suggestions. They reacted more negatively to, and showed less influence from, plaintiff ad damnums for pain and suffering than to damage requests in categories grounded in more objective evidence. Deliberations revealed that jurors often perceive plaintiff ad damnums not only as irrelevant, but also as outrageous, impressions reflected in their verdicts. These findings suggest that extreme plaintiff ad damnums, including those without grounding in quantitative evidence from trial, may not exert undue influence.

Download the paper here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1883861


AND,

Yes, consider the pros and cons of that medical malpractice case that comes to you:

A news article from Associated Press (The Statesman -- Austin, TX)
Aug. 17, 2011

Study: Only 1 in 5 medical malpractice cases pay
By Mike Stobbe

Only 1 in 5 malpractice claims against doctors leads to a settlement or other payout, according to the most comprehensive study of these claims in two decades.But while doctors and their insurers may be winning most of these challenges, that's still a lot of fighting. Each year about 1 in 14 doctors is the target of a claim, and most physicians and virtually every surgeon will face at least one in their careers, the study found. ...

For more:

http://www.statesman.com/life/health-medical/study-only-1-in-5-medical-malpractice-cases-1755963.html


The New England Journal of Medicine study can be accessed here:

http://www.nejm.org/doi/full/10.1056/NEJMsa1012370

Q&A Tuesday: Doctors Get Sleep - Hospitals Still Unsafe - Why? Poor Handoff & Communication.

Q:    Rule changes allow first-year residents to sleep; how come serious medical errors continue?

A:    The shift-to-shift handoff about a patient is a communication nightmare.

Time out of mind when I was a nurse working on a hospital pediatric floor, we did not welcome with open arms the new crop of first year residents.   They were over-worked, over-wrought, and over-fatigued from lack of sleep.  Many is the time a nurse would correct a medication error or other order.

Teaching hospitals finally took note.  It was time to get away from the 30-hour overnight shifts that seemed more medieval than blood-letting to remove dangerous "humours" from a patent's body. In hindsight, it seemed like the right idea:  more sleep should mean clearer thinking medical residents; clearer thinking medical residents (trainees) should mean less hospital errors.

However, as a recent study reports serious medical errors continue. Darshak Sanhavi (sanghavi@post.harvard.edu is the chief of pediatric cardiology at UMass Medical School and Slate's health care columnist) reporting for the NYTimes, "The Phantom Menace of Sleep-Deprived Doctors," reveals how sleep is not enough.  We need to learn how to communicate with care what is going on with each patient in an uninterrupted setting.  And that is just not happening. Excerpt.

"The question, then, is why? There are several possible explanations for the failure of the nationwide 80-hour rule to reduce medical harms. In 2008, the journal Pediatrics reported that two-thirds of residents regularly broke the rule, suggesting that poor enforcement, perhaps related to ingrained norms, had undercut the reform. Landrigan, one of the authors of that study, also thinks that the accreditation council did not go far enough; it had not, after all, banned being on call overnight and still allowed shifts up to 30 hours. Now that the council has abolished extended shifts, at least for first-year residents, Landrigan expects fewer errors.

And yet there are reasons to believe otherwise. About 98,000 people die every year from medical errors. Some of those mistakes are made by doctors whose judgment has been scrambled by lack of sleep. But fixating on work hours has meant overlooking other issues, like lack of supervision or the failure to use more reliable computerized records. Worse still, the reforms may have created new, unexpected sources of mistakes. Shorter shifts mean doctors have less continuity with their patients. If one doctor leaves, another must take over. Work-hour reductions lead to more handoffs of patients, and the number of these handoffs is one of the strongest risk factors for error. As a result, many hospitalized patients are at the mercy of a real-life game of telephone, where a message is passed from doctor to doctor — and frequently garbled in the process."

Click here to read a verbatim record of a trainee giving a report to the doctor coming on shift.

As if that is not enough, click here to read a shift change report with a light census - two trainees without a supervising doctor or nurse in the room manage the handoff between shifts.

What's the key? Supervision.  Excerpt.

“Supervision, not regulation of hours, is the key to improving the quality of patient care,” said Bell, who is now 81 and is still an active clinician at Albert Einstein College of Medicine.

There were other holes in Zion’s care too. Edward Boyer, the director of medical toxicology at the University of Massachusetts Medical School (where I am chief of pediatric cardiology) argued convincingly in The New England Journal of Medicine that Zion died from a medication-related reaction called “serotonin syndrome.” This, he said, was a result of a disastrous interaction between the antidepressant phenelzine, which she had been on for weeks, and the Demerol she was given at the hospital. Though the syndrome was first described more than 50 years ago, surveys show that 85 percent of physicians have never heard of it and fewer still know the drugs that cause it. More than 7,000 people develop serotonin syndrome each year — it can occur as a side effect of common drugs like Prozac, Zoloft and over-the-counter cold medicines, and the risk jumps when offending drugs are given in combination, as they were to Zion.

I walked to our outpatient clinic to see what might happen if I prescribed both phenelzine and Demerol to a made-up patient using the clinic’s electronic medical-record system. Immediately, a large box appeared with the message, “This combination of drugs is associated with a potentially fatal adverse reaction.” Then I went over to the inpatient wards, where, as in roughly two-thirds of American hospitals, there is no computerized prescribing system. Nothing would prevent me from writing the orders for Demerol on the paper chart. Were Libby Zion admitted to a typical hospital today, no matter how rested her doctor was, the same error that killed her could happen again."

Comments to this lengthy article bear reading for the insights and experiences.

TIP:    Patients need to be on top of the hospital and the staff.  Families need to be on top of the hospital and the staff.  Lawyers need to be on top of the hospital and the staff.

Hospital, heal thyself.

 

Bullying in Hospitals Takes a Toll -> Increasing Errors & Chilling Communication

Whether one is a medmal lawyer, a patient or a family member, it's fair to say we have witnessed a rise in hospital errors: medication mistakes, infections, and the like. Would it surprise you to learn that bullying may be responsible for some hospital-related mistakes?  Nurses stop speaking up when doctors dress them down.

Teresa Brown, writing for the NYTimes reveals a "time-honored tradition — blame the nurse whenever anything goes wrong.”  These words were spoken by a physician to Brown and quoted with his permission.

"I felt stunned and insulted. But my own feelings are one thing; more important is the problem such attitudes pose to patient health. They reinforce the stereotype of nurses as little more than candy stripers, creating a hostile and even dangerous environment in a setting where close cooperation can make the difference between life and death. And while many hospitals have anti-bullying policies on the books, too few see it as a serious issue."

Today nurses are highly trained professionals, and in the best situations we form a team with the hospital’s doctors. If doctors are generals, nurses are a combination of infantry and aides-de-camp.

After all, patients are admitted to hospitals because they need round-the-clock nursing care. We administer medications, prep patients for tests, interpret medical jargon for family members and double-check treatment decisions with the patient’s primary team. Nurses are also the hospital’s front line: we sound the alert if a patient takes a serious turn for the worse."

So how is it possible such bad manners (and worse) actually exist?  According to Brown,

"And because doctors are at the top of the food chain, the bad behavior of even a few of them can set a corrosive tone for the whole organization. Nurses in turn bully other nurses, attending physicians bully doctors-in-training, and experienced nurses sometimes bully the newest doctors.

Such an uncomfortable workplace can have a chilling effect on communication among staff. A 2004 survey by the Institute for Safe Medication Practices found that workplace bullying posed a critical problem for patient safety: rather than bring their questions about medication orders to a difficult doctor, almost half the health care personnel surveyed said they would rather keep silent. Furthermore, 7 percent of the respondents said that in the past year they had been involved in a medication error in which intimidation was at least partly responsible.

The result, not surprisingly, is a rise in avoidable medical errors, the cause of perhaps 200,000 deaths a year.

Concerned about the role of bullying in medical errors, the Joint Commission, the primary accrediting body for American health care organizations, has warned of a distressing decline in trust among hospital employees and, with it, a decline in the quality of medical outcomes."

As if hospital patients don't have enough to be concerned about; bullying among health care staff is not healing. 

How Sick Are Hospitals, Really?

I like to say that "back in the day" when I was a pediatric nurse things were different.  We sanded floors, filled patients' water pitchers, and gave back rubs; well, okay - we did two of three of them.

Back then hospital bugs were bad.  Today they are bigger and badder.  Still, some things remain the same.  One of those is the very same thing parents and teachers taught you and, I imagine, you teach your children: wash your hands.  Wash your hands after using the bathroom, before eating meals, and certainly between each patient.

In her NYTimes column on April 13, 2011, "Giving Doctors Orders", Maureen Dowd brings us into the ICU where her brother died after being admitted for pneumonia.  For those of you who follow Dowd's work you know she is no shrinking violet.  If anyone I would expect Dowd to stand up to the folks in the white coats and uniforms.  And yet she writes, "I saw infractions of the rules in the I.C.U. where Michael died, but I never called out anyone. I was too busy trying to ingratiate myself with the doctors, nurses and orderlies, irrationally hoping that they’d treat my brother better if they liked us."

Today Dowd would have the patient, the patient's family, and the loved ones in the room call out the healthcare practitioner - M.D. or not - to remind her: wash your hands before touching this patient. 

Do you believe a healthcare professional would give you a hard time about that?  Apparently so.  Here's a script you can use:

"I called Cohen [CNN’s senior medical correspondent, Elizabeth Cohen], the author of “The Empowered Patient,” to ask her the best way to confront those taking care of you or family members. She said that you have to get over the “waiter spitting in your soup scenario,” that the medical professionals will somehow avenge themselves, by giving less attention, if you insult them.

“There are all sorts of reasons we default to being quiet,” she said. “It is general etiquette not to correct another adult, especially when this is their profession. But when the consequences are so grave, you have to summon up your courage.” You could say that you are a germaphobe, she suggested, and ask if they could please just indulge you?"

Even someone as well-versed in the critical role hand-washing plays in reducing hospital infections, Dr. Peter Pronovost, M.D., admits to being reluctant to stand up to one of his own:

"Dr. Peter Pronovost of Johns Hopkins has been able to prove in a national program that you can curb infections and reduce mortality rates in I.C.U.’s by adhering to checklists, creating accountability and fostering a culture where patients, their families and even nurses and residents feel freer to challenge doctors.

“There’s no doubt that it’s really difficult to question physicians,” Dr. Pronovost says. “It’s hard even for me when my wife or my kids are ill. Many clinicians aren’t the most welcoming. They give verbal or nonverbal clues to say, ‘Hey, I have the answer.’ We just need to change the culture. The patient really is the North Star.”"

 A few years ago I was responsible for researching, writing and developing a brand new website for a friend and client, Connecticut medical malpractice attorney, Vincent DeAngelo.  DeAngelo wanted to provide a teaching website that focused on five critical areas that give rise to many medical malpractice claims: VBAC procedures, Hospital Infections, Medication Errors, Emergency Rooms, and Nursing Homes.

As you can see when you visit the link on Hospital Infections, DeAngelo was already instructing hospital patients and families to wash their own hands and ensure that healthcare personnel did as well. 

In a way it's still a surprise that "everything old is new again."  A recent study of 153 Veterans Affairs hospitals nationwide found a 62 percent drop in the rate of infections caused by MRSA (methicillin-resistant Staphylococcus aureus), "Study Finds Drop in Deadly V.A. Hospital Infections."  Excerpt.

"The Veterans Affairs strategy employs a “bundle” of measures that include screening all patients with nasal swabs, isolating those who test positive for MRSA, requiring that staff treating those patients wear gloves and gowns and take other contact precautions and encouraging rigorous hand washing. The results may not be easily replicated in the private sector, but they are likely to step up pressure by further undercutting the notion, prevalent at many hospitals not long ago, that infections are an unavoidable cost of doing business."  [Emphasis added.]

Whether or not the same results can be replicated in private hospitals - especially in this day and age of cuts, cuts and did I say cuts? - notice that hand-washing is still part of the mix. 

Matters in hospitals are improving.  This is a good thing.  This is not enough:

"But the Centers for Disease Control and Prevention in Atlanta still estimates that one of every 20 patients will acquire an infection while hospitalized. Using data from 2002, the agency concluded that hospital infections were associated with 99,000 deaths and costs of $28 billion to $34 billion a year."

What our parents taught us carries over; the only difference is this time it might save your life or the life of a loved one. 

To Craft the Client's Story Lawyers Need to Know: What is a Plot Form?

    

    If the plot if what happens, what's a plot form? A plot form is the tool to organize and format the story according to what you want to accomplish and achieve.  It is the deliberately chosen order of progression to manage and reveal events over time.

    Of the nine classic plot forms, three are of best use to the attorney: the straight narrative; the Hero’s Journey; and the parallel plot form.  The most accessible book I rely on is The Book of Plots, written by long-time storytelling and social-activist friend, compatriot and colleague Loren Niemi.

    Straight Narrative: The story line is told chronologically; or, as I like to teach, "it beings in January and ends in December."  The story is cumulative and builds to an end.  It is probably the most commonly used plot form by lawyers because it tends to adhere to the familiar, straight-forward, logical progression of a case.

    The Hero's Journey:  This plot form displays the struggle between good and evil, antagonist and protagonist, man and himself.  Joseph Campbell showed us that the Hero’s Journey is a story form which has been told and re-told since cavemen drew on walls with charred sticks.  The Hero’s Journey story form is basically seven elements, although you will find references to as few as five and as many as twelve.  For the seven: (1) there is the ordinary life, (2) which gets turned upside down by some happening, (3) requiring the hero to heed a call that takes him on the road, (4) where he faces tests, makes allies and enemies, (5) then meets with and overcomes an “Ordeal”, (6) so he can seize the reward he has earned, and (7) finally make his way back to the community transformed and able to share his lesson.  Familiar?  This story form is universally recognized. 

    Here's the way Niemi recounts the Hero's Journey plot form in five stages:

1. Something Happens;
2. The Exchange;
3. Series of Challenges;
4. Triumph; and
5. Return to the Community with a lesson and closure.

    To develop the Hero's Journey plot form we must answer a series of questions: What sets the story in motion? Is it accidental or deliberate? How and when is the call to action delivered? What is being traded or exchanged?  For example, the lawyer may ask her client to participate in all that a trial will demand.  What are the challenges within the client’s life which demonstrate the risk and the worth of accomplishment?  In what ways does the client use courage and resourcefulness to achieve the end goal?  You can also think of the decision-makers as being called to go on a Hero's Journey to involve them in the call to action and the end result.

    Parallel: Here, two narratives are successively told with each narrative providing a framework for understanding the other. What is key with the parallel plot form are the points of transition; i.e., when something happens to move the story along we must know who created that action and how come it is critical at this point in the story.  This plot form is most often used to compare and contrast courses of action and inconsistencies between what is felt, thought and done between the two characters. There will be a point at which the plot strands intersect and key characters confront each other and the actions in the story. 

    A classic example of the use of the parallel plot form is in the novel, Cold Mountain, by Charles Frazier.  And the subsequent film version. 

    In the legal arena, this plot form is suitable for managing the events over time in any situation with two courses of action.  For example, a laboring mother and what is going on behind the scenes with the hospital staff and physician who are not attendant to her and her struggling baby.  Or a series of choices that change two lives.  Or a series of decisions in a corporation that result in injury to a consumer. 

    The road is wide open.  The opportunities are endless.  The choices are yours.

To Craft the Client's Story Lawyers Need to Know: What is a Plot?

    What is a plot?  A plot is what happens in a story.  A story begins, something happens, the story ends.  A plot is the middle that ties together the beginning with the end.  A plot is all the juicy stuff.

    TIP:

    As you consider the various aspects of your client’s story to help you design and develop discovery, look at common plot features or patterns that are found in literature and in film.  Ask yourself how could your client's story be told as this plot:

1. Sympathetic character in a bad situation
2. Accident or event that causes a personality change
3. Would-be champion seeking to correct a horrible injustice
4. Evil character seeking revenge
5. Reconciliation of enemies
6. Effects of a certain lifestyle on a character's personality or body
7. Consequences of behavior
8. Loss of something valuable at the hands of another
9. Learning to work hard for something that came easily
10. Making a seemingly simple decision that winds up changing one's life forevermore

    Whether told in or out of the theater of the courtroom, your client's story is the stuff of human drama.  Give your client's Human Narrative the plot that will bring the drama to life.

Q&A Tuesday - Arguing the "Dead Baby" Case

Q: What is a better approach to arguing a case about a dead baby than focusing on the fetal monitor strips and getting mired in the medicine?

Answer: Re-frame the story.

General Facts:
This case involves a first pregnancy with an older mom who is ‘at risk’ for age. The pregnancy progresses well until a few hours into labor late on Easter Sunday night.  The fetal monitor strips show fetal distress. The night nurse makes a number of notes in the chart detailing the downward progression of the fetus before calling the ObGyn who simply receives the information but does nothing else.   

Strengths of the Case:

1. Nobody can stomach the idea of a dead baby who should have been born healthy;
2. At the very least, the ObGyn should have come to the hospital to check on his patient; and
3. Maybe once he got there he could have done something differently—but what?  

Landmines for the Case:

1. An at-risk mother;
2. Expert testimony about an insufficient placenta;
3. Lots of nursing notes in the chart documenting what the nurses saw;
4. The length of time the nurses delayed telling the ObGyn so he could have acted in a timely manner;
5. The contested fetal monitor strips; and
6. Confusing expert testimony about when the baby could have been saved, and in what condition.

What Changed As a Result of the Focus Group?
        We had to reframe this story from one about fetal monitor strips to the more global story of physician communication, coordination, and control by asking: “If we could build a bad delivery scenario grounded in the responsibility of the ObGyn, how would we do it?”

        We made the case winnable by beginning with what every medical student is taught: differential diagnosis. We grounded the story in the four-part process of making a differential diagnosis:

1. Gather information;
2. List the problems from worst to least critical;
3. Rule out the problems; and
4. Treat the worst problem first.

        When the nurse called the ObGyn about the fetal distress, she asked him what to do. At that time he should have been thinking about four issues: an abrupted placenta, placenta previa, prolapsed cord or insufficient uterine oxygen, and sleeping baby. Had the ObGyn followed the basic medical school training of the differential diagnosis he could have quickly and easily eliminated three of the four concerns and zeroed in the prolapsed cord. He did not. He did not call the nurse to check on his patient. He did not activate the crash Cesarian section team which could have timely delivered a healthy baby. When he finally arrived at the bedside he dragged his feet until it was too late.

        The winning case rose up out of the minutia of the fetal monitor strips to a global one that emphasized the decision-making duty of the ObGyn as a “Charles in Charge” who was not, and the choices and decisions made by the person with superior knowledge and control.  If the ObGyn had only followed the differential diagnosis he could have zeroed in on the issue, instituted the "30 minute decision to incision" rule and gotten the baby out alive and healthy.

        Bottom line: It is the personal and professional responsibility of the physician to work the differential diagnosis to figure out what's going on with her patient, and treat the worst case scenario first.  How come?  If a possibility will kill your patient, why wait for the probability.

Sharing Successful Strategy to Highlight Important Testimony

I recently read the following article by Elliott Wilcox.  It made so much sense I wanted to share his strategy in its entirety on this platform:

“Using Loops to Highlight Important Testimony”
by Elliott Wilcox

Not all testimony is created equal.  Regardless of whether your witness testifies for minutes, hours, or days, you probably won't need the jurors to remember everything that he says.  Sometimes, a single word or phrase may be all that's needed to turn the tide of the entire trial.  Usually, however, there will be only a handful of images that you need the jurors to retain.  If you can get the jurors to remember (and believe) those essential highlights, your witness examinations will be a success.

Unfortunately, jurors sometimes miss those essential highlights of testimony.  When they miss those highlights, it's the same as if your witness never testified.  Jurors aren't robots programmed to pay full attention to your case, so their attention levels rise and fall throughout the day, they get distracted by other sights and sounds inside the courtroom, and their minds wander.  If you expect jurors to remember (and believe) those testimonial highlights, you need to ensure that they actually hear the testimony.  One of the best ways to accomplish that is through the use of repetition.

For example, let's imagine that your client was caught up in the middle of a bar fight.  He's accused of hitting someone with a beer bottle, knocking him unconscious.  The other man is 6'4" tall and weighs 220 pounds.  Your client (5'2", 140 pounds), admits to hitting the man, but claims that he was acting in self-defense.

During direct examination, your first witness testifies, “As soon as I heard people yelling, I looked over and saw the big guy pounding on the little guy.”

You're probably thinking to yourself, “Wouldn't it be great if I could repeat that phrase a few times to guarantee that the jury clearly sees this image?”  After all, the image of “big guy pounding on the little guy” goes a long way towards helping establish the validity of your self-defense claim.  By repeating the phrase, you can be assured that even if a juror misses the phrase the first time it's mentioned, he'll be sure to hear it the second or third time it's repeated.

But how will you get the witness to repeat the phrase?

You could tell the witness, “Please repeat your answer so we guarantee that the jury hears it,” but your opponent will jump from her seat and exclaim, “Objection!  Asked and Answered!”

You could feign deafness and say, “I didn't quite hear your answer, please repeat it for the jury,” but not only will you draw the same objection, your credibility will also take a negative hit.

Even if you rephrase the question (“Who was pounding on who?”) or ask the witness to repeat just a part of the phrase (“Who was pounding on the little guy?”) your opponent will still successfully object to the repetition.

So how can you repeat the phrase without drawing “Asked and Answered” objections from your opponent?

The answer is simple.  You're not going to repeat your question, and you're not going to ask the witness to repeat the answer.  Instead, you're going to ask three brand new questions, asking for three new pieces of information.  Using these new questions, the jury will hear your important phrase not once, not twice, but three times.

Here's how it works.  First, identify the phrase that you want the jury to hear again.  In this example, the phrase you want repeated would be, “Big guy pounding on the little guy.”

Next, think of three new pieces of information you can ask about.  Why three?  Because any more and it feels like overkill, any less and it feels incomplete.  The information you're seeking doesn't need to be very important, it just needs to be temporally related to the event.  Here are some examples to get you started:

    * “Where were you standing?”
    * “Where were they standing?”
    * “Who else was there?”
    * “What were you doing beforehand?”
    * “What did you do afterwards?”
    * “How did people react?”
    * “What did you hear?”

Finally, “loop” your valuable phrase into each of the questions:

    * “Where were you standing when you saw the big guy pounding on the little guy?”
    * “Who else was in the room where you saw the big guy pounding on the little guy?”
    * “What did you do after you saw the big guy pounding on the little guy?”

Because these questions seek new information, they're not objectionable.  The new information may not be dramatically important, but that's not the point.  You're not asking the questions because you want the jurors to focus on where the witness was standing or who was standing nearby -- you're asking the questions because you want to burn the image of “big guy pounding on the little guy” into the jurors' minds.

This technique can be very effective for highlighting important testimony, just be careful not to overuse it.  Just as a highlighter can help you identify the important portions of a textbook, it loses its effectiveness when you highlight every word on the page.  Save this technique to highlight the two or three most important portions of your witness's testimony, and you'll ensure that the jurors remember what you need them to remember.

[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]

What Can Poetry Do?

Oftentimes when we write - a brief, an argument, a speech, a "bread-and-butter" note - we can struggle to find the right words, the right turn of phrase, the right image, metaphor or description.  I have found that a very effective communication strategy - legal or otherwise - is to choose a poem.

Take a moment or two to read these poems aloud and fully sense how speaking poetry brings it to light and life.  Experience how the tone and timbre of your own voice creates magic with white spaces and black symbols.

 

Imagine using this one to talk about a car wreck:

One Night

The car crossed two lanes of traffic
and a grass median before plowing
head-on into me, killing my wife,
unborn child, and myself. Before
I died I touched the shoulder
of a policeman, felt the sure strength
of his muscles, heard the only word
he spoke, "Jesus," and I smiled
because I stopped believing in him
long ago. He mistook my smile
for something positive and not listless
irony, and I tried to correct him,
but my throat stopped. Red lights.
Blue lights. Star's gases. I walked home.
My wife wandered off into a river
to give birth. I began calling my friends:
"We are all dead," I said into the phone.
I let them cry or exalt in turn, taking
note. I didn't know it would be this
simple. I slipped into a midnight robe,
poked holes in a black sheet, tore
into a loaf of bread. Wandered off
yeast-heavy neither rising nor falling.

"One Night" by Jeremy Voigt, from Neither Rising nor Falling. © Finishing line Press, 2009. 

 

Or this one to explain the hazards, wreckage and grace of a dad who is divorced:

Divorced Fathers and Pizza Crusts
    by Mark Halliday

The connection between divorced fathers and pizza crusts
is understandable. The divorced father does not cook
confidently. He wants his kid to enjoy dinner.
The entire weekend is supposed to be fun. Kids love
pizza. For some reason involving soft warmth and malleability

kids approve of melted cheese on pizza
years before they will tolerate cheese in other situations.
So the divorced father takes the kid and the kid's friend
out for pizza. The kids eat much faster than the dad.
Before the dad has finished his second slice,

the kids are playing a video game or being Ace Ventura
or blowing spitballs through straws, making this hail
that can't quite be cleaned up. There are four slices left
and the divorced father doesn't want them wasted,
there has been enough waste already; he sits there

in his windbreaker finishing the pizza. It's good
except the crust is actually not so great—
after the second slice the crust is basically a chore—
so you leave it. You move on the next loaded slice.
Finally there you are amid rims of crust.

All this is understandable. There's no dark conspiracy.
Meanwhile the kids are having a pretty good time
which is the whole point. So the entire evening makes
clear sense. Now the divorced father gathers
the sauce-stained napkins for the trash and dumps them

and dumps the rims of crust which are not
corpses on a battlefield. Understandability
fills the pizza shop so thoroughly there's no room
for anything else. Now he's at the door summoning the kids
and they follow, of course they do, he's a dad.

"Divorced Fathers and Pizza Crusts" by Mark Halliday, from Jab. © University of Chicago Press, 2002.

 

Or this one to relate to the common denominator of loss, grief and pain:

At the Vet's
    by Maura Stanton

The German shepherd can't lift his hindquarters
off the tiled floor. His middle-aged owner
heaves his dog over his shoulder, and soon
two sad voices drift from the exam room
discussing heart failure, kidneys, and old age
while a rushing woman pants into the office
grasping a terrier with trembling legs
she found abandoned in a drainage ditch.
It's been abused, she says, and sits down,
The terrier curled in her lap, quaking
as the memory of something bad returns and returns.
She strokes its ears, whispering endearments
while my two cats, here for routine checkups,
peer through the mesh of their old green carrier,
the smell of fear so strong on their damp fur
I taste it as I breathe. Soon the woman,
Like the receptionist with her pen in mid-air,
Is listening, too, hushed by the duet
swelling in volume now, the vet's soprano
counterpointed by the owner's baritone
as he pleads with her to give him hope, the vet
trying to be kind, rephrasing the truth
over and over until it becomes a lie
they both pretend to accept. The act's over.
His dog's to stay behind for ultrasound
and kidney tests, and the man, his face
whipped by grief as if he were caught in a wind,
hurries past us and out the front door,
leaving the audience—cats, terrier, people—
sunk in their places, too stunned to applaud.

"At the Vet's" by Maura Stanton, from Immortal Sofa. © University of Illinois Press, 2008.

 

Or this one that uses nature to balance the transition between death to life:

Mid February
    by Ann Campanella

The day is warm and dank as early summer.
Crows scream and pitch in the woods
like the ruckus of old women fighting
for the shreds of their lives.

A sudden silence — then the hum
of a black-winged cloud oozing
through the naked sky —
the ruckus begins again.

Under the layers of winter grey,
the farm is pale and muted, the barn doors
shut tight. The only animals in sight
an earth-brown squirrel and these harbinger birds.

I am waiting for the sun to shine again,
to learn how to unfurl my heart in its warmth.
These days, neither long nor short, bright nor dark,
wet nor dry, fill me with a sadness I cannot name.

Yesterday was Valentine's Day, a day of love
and chocolate. My father, born eighty-one years ago,
always bought red cardboard hearts full of truffles
for my mother, my sister and me. Now he is gone.

This morning, the doctor taps his pencil
against the screen. A six-week ultrasound.
There, that's the heartbeat.
A tiny flutter outlined by grey.

"Mid February" by Ann Campanella, from What Flies Away. © Main Street Rag Publishing Company, 2006.

 

Or this one for a wrongful death case to express the joy an expectant grandfather felt toward his daughter's pregnancy:

Advice to a Pregnant Daughter-in-Law
    by Charles Darling

Avoid sharp things like corners, scissor points,
words and blades and cheddar cheese. Eschew
whatever's heavy, fast, and cumbersome:

meteorites, rumbly truck and stinky bus,
hockey players, falling vaults, and buffalo.
Steer clear of headlines, bank advices,

legal language, papal bulls, and grocery ads.
Every morning, listen to baroque divertimenti,
romantic operas, Hildegarde von Bingen hymns.

Evenings, read some lines from Shakespeare's comedies;
do a page of algebra; study shapes of clouds
and alchemy; make fun of your husbands feet.

Practice listening like a doe at the edge
of the earth's deep woods, but learn to disregard
most everything you hear (especially your father

and father-in-law). Learn some Indian lullabies;
speak with magic stones beneath your tongue.
Finally, I wish, avoid all tears—except

that the world and time will have their way
and weep we must. Perhaps enough is said
of grief and happiness to realize

that any child of yours will live a lifetime
utterly beguiled (as my child is)
by your bright smile, your wild and Irish laugh.

"Advice to a Pregnant Daughter-in-Law" by Charles Darling, from The Saints of Diminished Capacity. © Second Wind Press, 2005.

 

In our work there is no rule that requires us to create every word ourselves.  How the war of words is won sometimes depends less on coming up with clever language than making use of language cleverly.