Wyzga On Words

Q&A Tuesday: What Is A Landmine For A Case?

 

 

Q:    What is a landmine for a case?

A:    Of all the impediments that your case faces, what is the one fact, impression, perception, legal reference, jury instruction, word, image, bias, distraction, distortion, missing link and/or unsupported conclusion, element, cause of action, witness testimony or rule of law that could derail the process? 

A landmine is worse than a red flag. A landmine is something you have to blow up (before it blows your case out of the water) or sandbag, diffuse or otherwise diminish to lessen its bad effect - but in either case you have to embrace and make each landmine your own.

5 Steps:

Step 1:    Ask yourself honestly, “What are the 21 ways I can lose this case?” List them out from worst to least or most severe to least severe.

Step 2:    Target each landmine and face where you are vulnerable.

Step 3:    Establish a rebuttal(s) to each of these 21 landmines to precisely set out with your evidence how you will burn it down, blow it up, or walk the decision-maker around it.

Step 4:    Do the same process for the opposition's case.  Why?  Because "one man gathers what another man spills."  [Ken Kesey]

Step 5:    Test what you learned in focus group research with the help of a trusted litigation consultant who, unlike you, your colleagues and trial team, has no personal dog in the trial fight.  As Frank Lutz reminds us, “It’s not what we say; it’s what they hear.”  Only when you test your case with an impartial moderator in front of research participants carefully selected to mimic your venire panel will you learn what in your case coincides with their leanings, biases, expectations, beliefs, world views, experiences, and  observations and, more importantly, what does not.

Q&A Tuesday: How Does Storytelling Help Me As Well As My Client?

Q:    How does storytelling help me as well as my client?

A:    Stories are the stuff of daily life.  When we commit to becoming part and parcel of the story we need to tell on behalf of another, the commitment expands our awareness of our humanity.  From this place we become increasingly empathetic, compassionate, and relatable to other human beings, more authentic, believable and better at persuading, too.

Some years back I wrote an article with San Diego attorney Jim Parziale entitled, "Once Upon A Client - The Power of Persuasive Legal Storytelling."  [Click on the title to access the pdf.]  It's a treasure trove of information, thoughts and ideas gained over decades of my storytelling work which became translated into the litigation arena.  I bet you will recognize in these words much of what I have been speaking, teaching and writing about for almost 15 years.

I trust that this work will be of help to you and your clients.  If you intend to use it, please remember the integrity of attribution.

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. 

Draw To Reveal The Story.

Who here doodles?

When we draw we are using a basic visual tool to help make sense of complex concepts, thoughts or ideas.  Drawing can help clarify and articulate our visions to ourselves as well as others in a conversation, presentation, meeting or trial.

I often use Post-It flip charts and Magic Markers when working with clients or audiences.  Drawing provides insight and problem-solving in a myriad of ways that mere conversation or brainstorming simply cannot accomplish as effectively.

Perhaps it's true that seeing is believing.

To see for yourself, visit Legal Sketchpad:

"BUSINESS SKETCHING FOR LEGAL CONFERENCES, STRATEGIC PLANNING MEETINGS AND TRAINING.

Legal Sketchpad promotes the use of basic visual tools in legal communication. As direct as possible, as low tech as possible."

I have no dog in this fight.  I am just pleased to help spread the word that PowerPoint is not the only game in town. 

TIP:    Fall back on what came naturally to you when a box of Crayola 64 helped unleash your imagination and creativity.

What Do I Mean When I Say "Power, Passion & Precision"?

 

Power.

            Passion.

                            Precision.

For decades now I have repeated my "3P Mantra" when speaking and teaching communication skills, story skills, and platform skills.  I use the "3P Mantra" on my office voice mail.

Power means coaching yourself to practice like you play.  The team plays to win.  The team practices to win.  You play to win - so practice like you play - with power.   A coach at my gym was training a member to get ready for her first tri-athlon.  It was the coach who kept reminding the trainee that she was getting ready for a race, a competition, to beat other people - not just taking a bike ride or a swim.  She took the advice and came in 4th in her class.

Passion means having life.  Does your case story come alive?  Or are you putting lipstick on a corpse?  Do you have a sense of affection for your work, for your client, for this case?  When my clients express exhaustion I always ask them, "For what do you have affection?  How do we marshall that for the task at hand?"

Precision means that state of being exact.  To be exact you must consider all the ways to get it right. To get it right you must develop the right story, right facts, right issues, right language, and right mindset. It can't be wrong when it's right.

Power.

            Passion.

                            Precision.

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

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

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

Click here for the 3rd post.

Three's A Crowd But Not A Focus Group.

Two heads may be better than one and three may be better than that.  But if you think that three is a legitimate focus group research panel, it's not.  It's three folks sitting around a table and talking about your case. 

Is it wrong?  No. 

Can you rely on it for strategic decision-making?  Probably not.  At least not for any reliable, statistical and probative value.

What's got my knickers in a knot this time?  I was asked to set up and moderate a focus group after the attorney had done her own research.  The attorney found three people on Craig's List, brought them together for three hours and laid out the whole case before asking the trio a question: "What do you think about what you just heard?" And then she wondered why what she heard was misleading information contaminated by biases which did little to advance the case.

TIP:    Focus groups vary in size, style and content depending on what the attorney needs to accomplish.  Matt McCusker, blogging in Deliberations for the American Society of Trial Consultants (of which I am a board member and co-chair for this year's 31st Annual Conference in New Orleans), offers a viewpoint about focus group research, "Don't Call Me Fluffy: One Perspective On Mock Trials."  It's worth visiting before you do it yourself.

 

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

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

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

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

The agreement should provide for at least the following:

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

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

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

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

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

 

Samuarai Lawyer In Three Parts. Part 2.

Patrick Trudell writing as Zen Lawyer Seattle ([email protected]) posted “Lessons from Musashi-The Book of Water” on 24 January 2012. This post was preceded by Lessons from Musashi - The Book of Earth, and followed by Lessons from Musashi - The Book of Fire.

On January 24th I was speaking with Eric Wagner, a longtime friend who is also a fellow lawyer and life observer in Canada.  I knew he had spent a number of years living in Japan and practicing Aikido.  I asked him for his thoughts on the Book of Water post.  He was generous with his comments. So much so that his remarks will cover three days and conclude with an article relevant to this topic recently posted in the Law Society of British Columbia's monthly publication called The Advocate.

Excerpts from Zen Lawyer Seattle will appear indented and italicized as befits quoting from a source.  Wagner's comments follow each excerpt.

Part 2.

Purpose. “The martial arts [and trials] are not a game… . You must mean it when you strike… . If you do not, you will certainly get hurt. The only reason to draw your sword is to cut down the enemy.” Id. ad 31. The warrior/trial lawyer must “go straight to the heart of the matter… .” Id. at 33. Musashi teaches the main purpose of the warrior is to defeat the enemy. “Do not be side-tracked by the appearance of the enemy or yourself. Do not be conscious of the particular technique you will use. This causes hesitation. …” Id. “Your attack must be filled with conviction and purpose. In this way you defeat the enemy regardless of his abilities.” Id. Your attitude will be recognized by your opponent and he will prefer to fight someone else. Id.

As for “purpose” – it is not correct to say that the only reason to draw the sword is to cut down the enemy.  Sometimes, it is done in order to see the “enemy’s” reaction and show a willingness to cut, so as to help with settlement.  That is why setting mediation for a date just before one would start ramping up for trial is often much better than having mediation when no trial has been set.  He says not to be conscious of the technique you will use.  This is accurate in swordwork or any combat art.  However, in law, one must be extremely conscious of the arguments and other techniques to be used.  At the same time, though, one must avoid locking into a particular argument so as to blind oneself to developments in the case. 

One of the very first Iaido moves one learns is to draw the sword in a horizontal motion in front of the other person’s eyes.  The main intention is not to cut, but to cause the other person to blink,  hesitate, or move in a particular way, thus setting the stage for the next move.  Japanese castles are often designed so that one entrance/exit appears strong and important, so as to attract an attack, while a less obvious portal somewhere else allows troops to come forth and flank the attackers.  The parallel in law is that sometimes, one makes an argument without there being a true intention for that argument to carry the day.  It may be meant to create an environment where another argument  or negotiation strategy will succeed.

Here’s an old Japanese story.  One fellow bragged about the sharpness of his sword.  He threw up a silk scarf into the air and as it fell, it cut itself in two.  Another fellow put his sword into a stream and the leaves cut themselves as they passed over the sword.  The third fellow (why is it always the third guy in these stories?) put his sword into the same stream and the leaves went around, unharmed.  My preference is to develop the skills and stand like the sword in the water, so that conflict itself falls away rather than destroying anything.   That is the teaching we get from Aikido.

If you haven’t tried Aikido, you may want to walk into a dojo and see if it holds anything for you.

Part 3 will conclude on Monday.

 

Do You Or Do You Not Scroll The Text When Playing Videotaped Deposition Testimony?

Typically, depositions are now recorded in some mode of videography to preserve the testimony in real time.

Later, during focus group research, mock trials, settlement conferences, mediations and courtroom testimony clips of the witnesses' depositions may be played  for a variety of purposes.  For example, the litigation consultant may wish to test the credibility of a particular witness; the attorney may wish to show some discrepancies in the opposing party's expert opinions; or the trial attorney may use the film in place of a witness who cannot attend trial, to impeach a witness or to further develop the legal story.  Many trial attorneys are familiar with a trial tool called Sanction Litigation Software to make powerful use of deposition testimony.

More often than not in each of these scenarios and others a scrolling text of the testimony appears in sync with the deponent's spoken words. As one who enjoys foreign films I've gotten accustomed to watching the action on the screen while reading the subtitles.  The experience is similar when I attend an opera in its original German or Italian; but the "subtitles" often scroll across the top of the stage.

However, no matter how carefully one watches and listens, the effect is the same: you may end up sacrificing a bit of visual and auditory attention to get the best of both worlds: accurate understanding and interpretation of the story being told.

I raise this so you might ask yourself whether the synced text is a help or a hindrance to advancing the decision-maker's comprehension.  In which situations does it help you tell the legal story and persuade to your point?  How might it hinder you from getting that point across? 

I believe it comes down to the purpose for which you are using the clip of the deposition testimony while keeping in mind decision-makers learn differently.  One might be distracted by the scrolling text while another needs it to clarify what she hears. 

To decide whether to scroll or not to scroll for comprehension, recall what you know about the best PowerPoint presentations.  Or the presentation secrets of Steve Jobs.  Often, more is less (yes, I meant to write it that way.)

TIPS:

1.    Ask yourself what you want the decision-makers to attend to:  Witness credibility?  Veracity of a statement or description?  The certainty of a conclusion versus an opinion?  Relevance?  Consistency of testimony?  Verbal cues?  Non-verbal tics?  Client likability? And the like.

2.    What is the setting?  Focus group research versus mock trial versus mediation, and so on.

3.    What do you want to come away with that will enhance your chance at verdict success?

4.    In focus group research you can do it both ways: play the testimony with and without the sound and synced scrolling text.  You can inquire of the research participants: who noticed what?  some may have attended to the non-verbal cues of the deponent; others may pick up on tone of voice and the emphasis (or not) on certain words.

5.     Once you determine the research or trial strategy then you can employ the tools to accomplish it. 

6.    Think before you scroll.