Don’t Think About a Purple Elephant!

There’s something strange about how our brains work.  For some reason, our brains don’t seem to comprehend the word “Don’t” very well.  In fact, our brains have the power to completely ignore that single word while still hearing every other word in the statement.  It happens on a subconscious level.  When we hear the word “Don’t,” we ignore that word and follow the rest of the command.  If you’ve ever coached sports, you probably noticed the difference between telling an athlete, “Don’t miss this shot” vs. “You’re going to make this shot.”  When you tell players, “Don’t miss this shot,” they’re more likely to miss.  For some reason, “Don’t” gets lost in the shuffle, leaving only the command: “MISS THIS SHOT!”

The reason that happens is because our minds latch onto the strongest image available.  You use words to create verbal images.  The verbal images you create determine whether jurors focus on what you’re asking for, or if they focus on the complete opposite of what you’re asking them to do.  Here are some other examples of how words can affect imagery and outcomes:

WRONG PICTURE RIGHT PICTURE
“You’re going to be meeting with our #1 client.  Don’t screw it up.” “You’re going to be meeting with our #1 client.  I know you’re going to handle things professionally.”
“The game is on the line.  If I miss this kick, we lose the game.” “I’m going to split the uprights, and we’ll win the game.”
“These are our most expensive wineglasses — whatever you do, don’t drop them.” “These are our most expensive wineglasses — hold onto them carefully.”

Do you feel the difference between the right picture and the wrong picture?  You know that when you tell a guest, “These are our most expensive wineglasses — whatever you do, don’t drop them” that the glass will soon shatter on the floor.  But when you phrase the same request positively, it completely changes the picture you create in someone’s minds.  Changing the image changes the outcome.

As a trial lawyer, you’re a wordsmith.  It’s your responsibility to craft words with care and precision, creating verbal pictures that achieve your desired results.  You have an obligation to your clients to maximize the persuasive impact of your messages.  One simple technique you can apply to achieve that goal is to create the right pictures in your jury’s mind.  You can do that by phrasing your language in the form of positive images, rather than negative images.

Unfortunately, lawyers are notorious for using negative language.  Think about criminal defense attorneys, for example.  They don’t want their jurors to focus on the fact that their client isn’t testifying, because they’re afraid the jurors will think the defendant isn’t testifying because he’s guilty.  But what do these attorneys do?  They tell the jury, “Don’t hold it against my client if he doesn’t testify.”  Translation?  “If he doesn’t testify, you should hold it against him.”

Prosecutors and plaintiff’s lawyers make the same mistake.  They regularly ask the jury, “Don’t hold us to a higher burden of proof than required by law.”  What do you think the jury is going to do after they hear that?

Judges aren’t exempt, either: “Objection sustained.  The jury must disregard that statement.  Don’t pay any attention to that evidence.”  If you had all day to think about it, you couldn’t come up with a better way to highlight that statement for the jury.

Your goal this week is to find a better, more positive way, to illustrate your points during trial.  Spend a few moments thinking about your last trial and review how you asked the jury to think about your most important points.  How did you phrase your language?  Did you phrase your requests positively or negatively?  Did you ask for things you didn’t want?  The picture that you paint in the jurors’ minds is likely to be fulfilled.  What types of images are you creating?   Focus on creating positive images in your jurors heads, and the persuasive impact of your courtroom presentations will improve immediately.

The Trial Lawyer’s Library

When I began my career as a trial lawyer, I had no idea what books I was supposed to read.  There were hundreds of thousands of books in my law school library, but I wasn’t sure which ones were most important to developing my trial advocacy skills.  I read thousands of thousands of pages, looking for the best trial advocacy tips and techniques, and wasted a lot of time, energy, and money in the process.

Hopefully, this list will help you shortcut the process that I went through. In this article, you’ll find my recommendations for the books that a trial lawyer should read and digest.   You’ll note that I didn’t include books on trial advocacy, and that was done on purpose.  There are hundreds of trial advocacy books worth reading (as someone who dedicates yourself to improving your trial advocacy skills, you probably already have at least a dozen or more books on the subject, right?).  Instead, these books are intended to expand your horizons, maximize skills that weren’t developed in law school, and help you get the most out of your persuasive skills.

Influence, by Robert Cialdini
Want to know how to influence jurors?  This is the definitive text on the subject.  Includes persuasive techniques to improve your entire case presentation, from pre-trial preparations to closing arguments, as well as techniques for improving your pre-trial negotiations.

On Writing, by Stephen King
Great tips for telling stories and presenting more effective opening statements.  Replace the word “reader” with “juror” and you’ll feel like the book was written specifically for trial lawyers.

Remember Everything You Read: The Evelyn Wood 7-Day Speed Reading & Learning Program
You read thousands and thousands of pages while preparing for trial — this will help you do it faster and remember more of what you read!

Think and Grow Rich, by Napoleon Hill
The entire book should be mandatory reading for everyone who enters the business world, but there are great lessons for trial lawyers, too.  Focus on Ch. 1 (Desire) to see what it takes to become a great trial lawyer, and Ch. 9 (Power of the Master Mind) for assistance improving your trial advocacy skills.

How to Win Friends and Influence People, by Dale Carnegie
If you intend to make a career out of persuading jurors, you probably already have a dog-eared copy of this book on your bookshelf.  You’ll learn more about pre-trial negotiations and trial advocacy from this book than you did from your entire law school education.

The Art of War, by Sun Tzu
If you believe that trials are war and the courtroom is your battlefield, this book will help you prepare your battle plan for success.

The War of Art, by Steven Pressfield
Each morning, as soon as you wake up, “Resistance” attempts to keep you from being the best courtroom advocate that you can be.  This book shows you how to break past “Resistance” and excel at your profession.

Man’s Search for Meaning, by Viktor Frankl
Losing a trial is not the end of the world.  This book will help you get through the rough patches, especially if you lose a case, lose a client, or get dissuaded with the practice of law.

Quick and Easy Way to Effective Speaking, by Dale Carnegie
You speak for a living, so why not improve your presentation skills?   Loaded with great tips for improving your presentations to judges and jurors alike.

The Memory Book, by Harry Lorayne
If the correct objection or impeachment fact isn’t instantly available to you during trial, it’s worthless.  This book will help you improve your memory so that you can be more effective during trial.

The New Way Things Work, by David Macauley
An effective method of getting your ideas across involves the use of diagrams or images.   In this book, David Macauley shows you how hundreds of devices work.   With a combination of words and images, he makes difficult concepts easy to understand.  Using the same techniques, you can help your jurors understand complex issues and facts in your case.

Aesop’s Fables, by Aesop
This book contains dozens of valuable themes for use in your next trial.   By weaving these fables into your closing argument, you’ll help jurors immediately understand the underlying values of your arguments and see why your client deserves to win.

I’m sure that there are dozens of other useful books that I overlooked.  If you know of a book that other trial lawyers will find valuable, please take a moment to post a comment including your recommendation.

Free Software for Trial Lawyers

On a budget?   Here are some software programs that will help you prepare for your next jury trialand won’t break the bank.  Most of these programs work on a variety of platforms, but since I’m a Mac guy, one or two of them might be Mac-only.

IMAGE EDITING PROGRAMS

GIMP: www.gimp.org
Need to crop photos, modify images, or enhance images for trial?  This is a cheap (free) alternative to Adobe Photoshop.   It includes a wide variety of image editing tools.   It’s not easy to get started, but it’s a powerful resource.

Seashore: www.seashore.sourceforge.net
A simple image editing program that’s easier to use than GIMP.

Inkscape: www.inkscape.org
This is an illustration program (similar to Adobe Illustrator) that lets you create vector drawings and illustrations. It doesn’t have all the bells and whistles of the professional program, but it lets you create amazing artwork.

Hugin: www.hugin.sourceforge.net
If you’re trying to take photos of a large, panoramic area, you usually can’t fit the entire scene into a single photo (at least not without a thousand dollar camera lens).  Hugin solves that problem by letting you stitch 2+ photos together into a panoramic view.

AUDIO EDITING PROGRAMS

Audacity: www.audacity.sourceforge.net
If your evidence includes audio recordings of depositions, interviews, or police interrogations, Audacity is an invaluable tool.  With this program, you’ll be able to edit audio recordings, extract smaller portions from extended interviews, and perform other audio editing functions. 

3D MODELS / CRIME SCENE MODELING

Sketchup: sketchup.google.com
Create 3D and 2D models, apply textures, and voila! you’ve created an interactive model of the crime scene!

Sweet Home 3d: www.sweethome3d.eu
Need to layout a residential crime scene or a slip & fall scenario? Sweet Home 3d can render home layouts, furnishings, and create floorplans.

OFFICE SUITE PROGRAMS

Scribus: www.scribus.net
This program is great for producing flyers, brochures, newsletters, etc.   You can use it to create posters or enlargements for use in direct examination or closing argument.

OpenOffice: www.openoffice.org
Can’t afford (or don’t trust) Microsoft Office? OpenOffice includes a full office suite programs.   You’ll get a word processor, spreadsheet, database, graphics, and presentation programs. 

Google Docs: docs.google.com
Create and edit web-based documents, spreadsheets, and presentations.  
The documents are stored online, so multiple parties can modify them at once (beware of attorney-client privilege violations).

AbiWord: www.abisource.com
This word processing program is similar to Microsoft Word.

PRODUCTIVITY PROGRAMS

Evernote: www.evernote.com
This program works on your computer, iPhone, PDA, etc.  You can synchronize your notes everywhere at once.  It’s invaluable for jotting down notes, websites, and more.

Freemind: www.freemind.sourceforge.net
Need to brainstorm new cross-examination questions?  Trying to organize your direct-examination, but not sure which topics you should address or which order you should present them in?  Freemind is a mind-mapping program.  If you’ve never used a mind-map before, it might take a little getting accustomed to, but it will make it much easier for you to get those brilliant ideas out of your head and onto paper.

TimeBridge: www.TimeBridge.com
If you’ve ever tried to schedule a meeting with several busy people, you know how difficult it can be to find a time that works for everyone.  This online meeting scheduler allows all of the invitees to choose a preferred meeting slot, then it finds tha day and time that work the best for everyone.