How Do You Win a Lawsuit?

Q: How do you get to Carnegie Hall?

A: Practice, Practice, Practice.

In its excellent Jury Expert blog, the American Society of Trial Consultants offers good advice for trial lawyers:

Rehearse. A lot.

As the authors explain:

Experienced trial attorneys make it look easy. Rest assured, those attorneys are the ones who rehearse the most, privately and publicly. “Off the cuff,” is a romantic ideal, but is not a method for experienced trial attorneys. Attorneys who do not rehearse use the stress related adrenaline rush as a means of creating energy for last minute preparation. Feverishly finalizing content and supporting visuals throughout the night does not produce a persuasive performance.

The article is long for a blog post, but it's definitely worth reading.

How to Strike a Biased Juror for Cause

If you represent a defendant and you want to strike a juror for cause because he or she is predisposed against your client, here's a quick and easy way to do it:

Q: Mr. Smith, you indicated on your questionnaire that you're familiar with this trial from the media coverage?

A: Yes.

Q: Have you formed any opinions about my client's guilt or innocence?

A: Yes. I think he's probably guilty.

Q: But you told the judge that you could set aside your opinion and decide the case based only on the evidence, right?

A: Yes.

Q: Does that mean that I would have to show you some evidence of innocence to change your mind?

A: Yes.

By asking if the defense would have to show this potential juror evidence of innocence to change his mind, you are making a record that he does not presume the defendant to be innocent, but rather that the defendant starts from a position of guilt and the defense would have to prove otherwise to justify an acquittal.

Through this very simple exchange, and without embarrassing or angering the juror, you've just made your record to justify a challenge for cause.

Why "Made to Stick" is a Must-Read for Lawyers

Made to Stick, by Chip Heath and Dan Heath, is not written by lawyers, about lawyers, or for lawyers. But it is one of the most important books that any lawyer can ever read.

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The book is about why some ideas and messages "stick" in the minds of an audience and some don't. A "sticky" idea is memorable, effective, and persuasive. The authors explain the psychology of persuasion in plain English, and they offer dozens of examples of ideas that stick, and ideas that don't. They talk about using stories and concrete examples to make complicated concepts and abstract notions seem tangible and easily grasped. The book is short and it's a quick read.

This is incredibly valuable stuff for people who have to persuade skeptical strangers for a living, e.g. litigators.

Vincent Gambini, Cross-Examiner Extraordinaire

In my humble opinion, the cross-examinations by Vinnie Gambini in My Cousin Vinny represent just about the finest courtroom advocacy ever depicted in cinema. For example:

Q. Hey, Mr. Crane, what are these pictures of?

A. My house and stuff.

Q. Your house and stuff. And what is this brown stuff on the windows?

A. Dirt.

Q: Dirt? What is this rusty, dusty, dirty-looking thing over your window?

A: It's a screen.

Q: A screen? It's a screen. And what are these big things right in the middle of your view, from the middle of your window to the Sack O' Suds? What do we call these big things?

A: Trees?

Q: Trees, that's right. Don't be afraid. Just shout 'em right out when you know 'em. Now, what are these thousands of little things that are on trees?

A: Leaves?

Q: And these bushy things between the trees?

A: Bushes?

Q: Bushes, right. So, Mr. Crane, you could positively identify the defendants for a moment of two seconds looking through this dirty window, this crud-covered screen, these trees with all these leaves on them, and I don't know how many bushes.

A: Looks like five.

Q: Ah ah, don't forget this one and this one.

A: Seven bushes.

Q: So, what do you think? Do you think it's possible you just saw two guys in a green convertible, and not necessarily these two particular guys?

A: I suppose.

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This is textbook cross-examination. He asks short leading questions, one fact at a time, using plain English, and he keeps building by adding one additional fact per question until his grand finale. He doesn't yell at the witness, and he even uses demonstrative exhibits effectively. The last question may have been one too many, but it worked in the movie.

"Work E-Mail Not Protected by Attorney-Client Privilege, Court Says"

Wired Magazine reports on a ruling from a California court that an employee's emails from a work computer to his or her lawyer are not covered by the attorney-client privilege:

… [T]he e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard[.]

Interesting development with pretty wide ramifications.

USA Today: "iPad brings new connection to lawyers, clients."

Interesting piece in USA Today on how a personal injury firm is making creative use of iPads:

The tablet PCs — which are given back to the law firm when a case is over — are used as so-called "red phones" that allow clients to contact either attorney if they have a question or want more information about their case. The iPads also help the attorneys build high-tech presentations that they use to help settle cases before they end up in court, the lawyers say.

Are you using iPads in your practice?

What the Most Successful People Do Before Breakfast

Mornings are a great time for getting things done. You’re less likely to be interrupted than you are later in the day. Your supply of willpower is fresh after a good night’s sleep. That makes it possible to turn personal priorities like exercise or strategic thinking into reality.

Good article in Fast Company about making the most of your mornings. Important for lawyers who spend their 9 to 5 putting out fires and returning calls/emails.

Six Word Memoirs

I'm a fan of concise writing, having never forgotten Strunk & White's admonition to "omit needless words."  I was intrigued recently to learn that Smith Magazine publishes "six-word memoirs," in which contributors summarize their lives in--you guessed it--six words.  (Example: "So many kids call me mom.")

They published a compilation last year, and another has just been published.  I intend to check them out.

Meanwhile, I wonder if I could write my life story in six words.  Can you?  I think I'll give it a try.

P.S.:  Take a look at their six-word resolutions too.

Pogue on Productivity

Litigators usually have to keep many plates spinning at once:  deadlines, more deadlines, hearings, meetings, a full inbox, and a list of calls to return.  It can be overwhelming.

David Pogue is the technology editor of the New York Times and a prolific writer of books, blog posts, and tech reviews.  In a recent Times column, he shared some secrets about how he gets it all done:

"Dear David," wrote a reader recently. "When will you share your productivity tips with us? Not everyone can write five books a year, file two columns a week, churn out a daily blog, speak 40 times a year and film a video every Thursday. What are your secrets?"

Take a look at the full article here.