Category Archives: Trial Skills

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Trump’s Secrets for Courtroom Success

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So, in case you didn’t hear, we had an election this week…

The night before the election, I was listening to "Keepin’ it 1600", a podcast hosted by former Obama administration aides. They were unabashedly confident that Secretary Clinton had the keys to the White House in her pocket.

24 hours later, they, like many others in the news media, were scratching their heads and asking, "What happened?!?"

Every poll, from ABC News and Reuters to CNN and FOX news had Clinton winning, so…. How did Trump win?

To quote the Keepin’ it 1600 podcast from the day after the election:
"It turns out that Donald Trump’s theory of the case… was just better."

Regardless of your personal feelings about the outcome, there are some important trial lawyer lessons to take away from Trump’s victory.

Lesson #1: These Voters Will Be Your Jurors
First of all, it’s important to remember that the people who voted for Trump are the same people who will be serving on jury duty Monday morning.

It doesn’t matter whether you agree with them or not… They will be the people deciding your client’s fate on Monday.

If you can’t (or won’t) understand how the Trump voters feel or why they voted for him, you won’t be able to talk to them or persuade them to vote for your client.

Invest the time to find out how the jurors in your county voted and how they think. I don’t know if your local election supervisor offers the same level of data that I have available in my jurisdiction, but I can pull up polling data by precinct, giving me the power to touch the pulse of different parts of my community. Get it and study it – it’s worth the time.

While you’re at it, talk to people who voted differently than you.

The internet lets us withdraw from opposing viewpoints and surround ourselves with news that we agree with.

That’s the kiss of death for a trial lawyer.

The greatest trial lawyers know how to put themselves in other people’s shoes and feel what they feel. Clinton’s husband was a master at that. People mocked him when he said, "I feel your pain," but his ability to convey his empathy was one of his keys to winning the White House.

Before your next trial, you need to put on their shoes and walk around for awhile.

Go somewhere where people hold diametrically opposing points of view from your own, and make the effort to understand why they believe what they believe.

You don’t need to change your mind, and you certainly don’t want to try to change theirs. Your only goal is to understand why they feel the way they do.

This is a spin-off from one of my previous recommendations, where I recommended going to Wal*Mart at 3 AM. You probably don’t normally shop at Wal*Mart at 3am, but these people are going to be your jurors, so as the trial lawyer, it’s your job to understand why they feel what they feel and why they think what they think.

If you don’t, your client will pay a hefty price.

Lesson #2: Talk to Be Understood
There was lots of commentary about how we are dealing with "low information" jurors who can’t (or won’t) understand anything over a 6th grade vocabulary level.

One important critique that I saw repeated time and time again was that Clinton didn’t know how to talk to these voters.

You probably didn’t have any difficulty understanding her. You never got lost in the middle of a speech and said, "Huh?"

But you’re not most people.

In the Rolling Stone article, "President Trump: How America Got It So Wrong," Matt Taibi wrote, "we heard voters saying they were literally incapable of understanding the words coming out of Hillary Clinton’s mouth."

To illustrate the point, he quoted a supporter he met at a Trump event who told him, "When [Trump] talks, I actually understand what he’s saying. But, like, when fricking Hillary Clinton talks, it just sounds like a bunch of bulls***.”

Her problem, of course, is the same as yours: She has a law school education.

Compare Clinton’s speech style to Trump’s.

Commentators said that Trump’s language may have been the simplest political rhetoric that’s ever been used on the campaign trail.

Voters never had to stretch their brains to understand what he was saying. He spoke at (or below) their comprehension level, never above. No one listening to Trump speak ever walked away scratching their heads and saying, "Huh…. I don’t understand what he was trying to say."

On a personal level, that rankles me at my core. I don’t want to live in an Idiocracy world. The smarter we are, the better we are, and I hope that as trial lawyers we can use our considerable power to educate the citizenry and raise the level of discourse.

But that’s a goal we should work towards outside of the courtroom.

If you try to undertake that goal inside the courtroom, you should be brought up on ethics charges, because you’re neglecting your responsibility to your client.

To best represent your client, you must be understood.

When jurors can’t understand you, they can’t be persuaded. That’s why you must meet them where they are and as they are.

One of the best examples of this can be found in Paul’s letter to the Corinthians (1 Corinthians 9:19-22):

Though I am free and belong to no one, I have made myself a slave to everyone, to win as many as possible. To the Jews I became like a Jew, to win the Jews. To those under the law I became like one under the law (though I myself am not under the law), so as to win those under the law. To those not having the law I became like one not having the law (though I am not free from God’s law but am under Christ’s law), so as to win those not having the law. To the weak I became weak, to win the weak. I have become all things to all people so that by all possible means I might save some.

To put it succinctly: He met them where they were.

He didn’t try to change them or change their beliefs… He met them where they were, accepted them as they were, and spoke to them standing in a place of common ground.

You must do the same.

If your jury consists of Rhodes Scholars and rocket scientists, you may perorate with as many sesquipedalian words as you please.

But if your jurors have difficulty understanding 8th grade level language, you need to dial down your vocabulary.

Here’s the important point though… You can’t talk down to them, and you need to feel comfortable and confident, regardless of the vocabulary level at which you’re speaking.

Clinton wasn’t.

She’s very comfortable speaking at the highest vocabulary levels (listen to her speaking at committee meetings and hear how confident and composed she sounds), but when she tries to dial down her language, you can sense her discomfort. It’s not her, it’s not her native tongue, and she’s not comfortable speaking it. Voters (and jurors) pick up on that type of internal conflict.

Trump, however, is very comfortable speaking at that level. It’s not because he’s uneducated (he earned a B.S. from the Wharton School of Business and I’ve heard he’s a voracious reader), it’s because he’s trained himself to shift comfortably between different vocabulary levels.

Don’t let your law school education prevent you from being understood.

Get comfortable speaking at every level. Speak with people smarter than you, speak with people dumber than you, and speak with everyone in-between. Speak with elementary school students and speak with academic scholars and speak with the guy behind the counter at the gas station…

he more you talk, the more comfortable you’ll feel, and the easier it will be for you to talk to anyone.

Lesson #3: Target the Most Valuable Voters

According to results from a few hours ago, Clinton is winning the popular vote, leading by about 1% According to Google, the current tally is 60,072,551 votes for Trump, and 60,467,601 votes for Clinton.

But not all votes are weighted equally.

Clinton may have won more total votes, but Trump won the votes he needed to win the Electoral College.

Look at the types of counties where he resoundingly won:

·  Rural counties: 90.5%
·  Counties where less than 5% of the residents were foreign born: 91.9%
·  Counties where median income was less than $50,000: 88.5%
·  Counties where less than 20% of adults have college degrees: 92.2%
·  Counties with populations less than 10,000: 93.7%


Separating leaders from the sheep dramatically changes the dynamics of jury deliberation

By winning the popular votes in those areas, it delivered an electoral vote landslide: 290 votes to 228.

At the end of the day, the only votes that matter are the electoral votes. (Trump is the fifth president to be elected despite losing the popular vote.)

Here’s the trial lawyer lesson: Just like not all votes are weighted equally, not all jurors are weighted equally, either.

Some people are leaders, and some people are followers.

If you can get the leaders on your side, it has a disproportionate impact on your verdicts.

Targeting the right jurors during jury selection is one of the most effective ways to win more trials. If you can identify leaders in the jury pool who will be favorable to your client, they are the most valuable people in the courtroom, and you should do everything you can to seat them on your jury.

Officially, they only get one vote, the same as everyone else.

But practically speaking, they count for more than that, because they have the power to persuade other jurors and rally more votes. Your dream juror is a strong, persuasive leader who truly believes in your client’s case. If you can identify and rally those potential voters, your client will win.

One final thought on all of this…
Politics is ugly. Campaigns, especially presidential campaigns, are often conducted with a scorched earth mentality.

But we’re all in this together, so afterward, we must pick up the pieces and move forward towards the goal of a better country.

To quote Lord Baelish in Game of Thrones, “We only make peace with our enemies. That’s why it’s called ‘making peace’.”

Clinton began that process in her concession speech, and she said, "I hope that he will be a successful president for all Americans."

We should all wish the same.

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The Secret Sauce for Courtroom Victory

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The past few weeks of sports have delivered some incredible highs and lows.

Like millions of other fans, I stayed awake into the early morning hours, captivated by the cliffhanger ending of Game 7.

Harry Caray calls Game 7
https://www.youtube.com/watch?time_continue=119&v=nApTGkLd2hs

(I’m not crying… You’re crying!)

I guess I’ve been a Cubs fan since I was a little kid.

We lived near McHenry, Illinois and my dad loaded up the van with all of the neighborhood kids to take us to Wrigley Field.

I still remember walking into the stadium and experiencing everything for the first time.

The sights, the smells, the excitement leading up to the game… It was a great memory.

It was the first baseball stadium I’d ever been in, the first major sporting event I’d ever been to, and I loved it.

I fell in love with baseball.

My parents were even cool enough (and patient enough) to take me to a Dairy Queen near Chicago where we waited in line for HOURS so I could get Dave Kingman’s autograph. (Keep in mind, this was back around 1979, when he made the All-Star team and was the NL home run leader – he was a rock-star and a living legend!)

Yup, I loved baseball.

But then, something odd happened.

In 1994, they cancelled the World Series because the players went on strike.

They turned their back on me (and millions of other fans), so I turned my back on them.

Other than going with my family to see a game in Yankee Stadium before they moved into their new stadium (my dad and my brothers have been Yankees fans their entire lives, so it was a great experience), I doubt I’ve watched even a dozen games (including Wednesday’s World Series finale) in the past twenty years.

It makes me sad to write that, because I used to care so much about baseball.

But once trust is broken, it’s almost impossible to regain it.

Compare baseball’s level of trust to the level of trust created by the person in the next sporting story.

On the other end of the emotional spectrum, in September we heard the sad news that golfing legend Arnold Palmer had passed away.

Arnold Palmer was a legend.

My interest in golf started when I was in 3rd or 4th grade, after we moved to Florida. We lived near Palm Beach Gardens ("The Golf Capital of the World"), so I saved my allowance, bought a starter set (only 5 clubs: 9W, 7W, 5W, D, Putter!) and got the chance to join my dad on some of the best golf courses in the country.

The lucky thing about living near the PGA Championship Course is that I had the opportunity to see some of the best golfers in the world. I saw the 1983 Ryder Cup, and I got to walk the course following golf legends like Jack Nicklaus, Tom Watson, and Gary Player.

But Arnold Palmer was different.

When Palmer was playing, you could tell at an instant which hole was at, because there were more crowds following him than any of the other players.

They called it "Arnie’s Army."

It didn’t matter whether he was leading or trailing…

He always had a crowd.

That’s because people loved him.

In one chance encounter, I quickly found out why.

I was probably 11 years old, and watching the players warm up at the driving range. As they finished up and walked out the practice area, I would ask for autographs. This was before celebrity "selfies," and almost everyone was kind enough to sign my little autograph book.

As one of the players finished, I asked him for an autograph.

He brushed me off.

And it wasn’t just a brush offf… It was rude enough that other people took notice.

One of the people who noticed was a fellow player on the practice tee.

From behind me, I heard a kind voice say, "I wouldn’t mind signing your autograph book, if you’d like."

When I turned around, it was Arnold Palmer.

THE Arnold Palmer!

I was awestruck.

He was bigger than life, and when he signed my autograph book, he made me feel like the most important person on the planet.

That entire encounter probably took all of 15 seconds, but it’s been indelibly etched in my mind for these past 30+ years.

But there’s nothing unique about that experience. I bet he probably had encounters like that every day of his life, touching people in some small way, making them feel important and special.

That’s why he had "Arnie’s Army" and that why he was so celebrated.

That’s why the other golfer, despite his fame and his skill, never enjoyed the types of crowds or the legacy that Palmer did.

(There’s no need to mention the other golfer’s name, but don’t worry, it wasn’t any of the ones I’ve mentioned in this article.)

The Trial Lawyer Lesson

If you’re still reading, you’re probably going, "Those are nice stories, but so what? Where’s the tip that helps me become a better trial lawyer?"

Here it is:

THE TRIAL LAWYER LESSON
To win the jury, you must earn (and keep) their trust.

Your ability to persuade jurors never relies solely upon your courtroom skills.

You can practice your opening statements, examinations, and closing arguments until you’ve honed them to a fine edge.

You can work with your witnesses until they have the oratory skills of Cicero.

But if jurors don’t trust you, or if they don’t trust your witness, you won’t win.

(Remember Aristotle and the ol’ logos, pathos, and ethos trilogy?!?)

At the beginning, jurors don’t trust you…

Other lawyers don’t trust you…

Even your own client might not trust you.

Trust can be difficult to earn, but if you are the type of person who is trustworthy, if you’re the type of person who radiates character, then you can earn their trust.

You can’t fake it – you’re either trustworthy, or you’re not.

(Think about that for awhile… If you’re not happy with your answer, you might want to change a few things in your life).

But even if you’re trustworthy, and even if you earn the jurors’ trust, you will lose it in an instant with a misrepresentation or a stupid mistake, so be careful with what you say and mindful of how you say it.

Be honest, be trustworthy, and keep the jurors’s trust. That’s the secret sauce to persuasion.

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Performing Under Pressure

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The Secrets to Performing Under Pressure

Parallel parking.

If you work in a major city, it’s something that you probably do every day.

For example, here’s a picture of where I parked my car outside the courthouse just the other day:

Nothing special about it, right?

Sure, the car is a little longer than the average sedan, but there’s still plenty of distance between my car and the cars in front and behind.

There’s absolutely no reason for me to be nervous about parking the car in that space, right?

And usually, I’d agree with you.

Normally, I would park the car in a spot that size without even thinking twice.

But this time, I hesitated, and almost had second thoughts about parking in that spot.

Maybe it will sense once you see the full view of where I was parking:

That’s right… The spot where I was going to park was in-between two police cars.

Even though it was a normal parking job, it didn’t feel normal, because of the extra pressure weighing on the situation. Of all the different cars in the world that you don’t want to accidentally bump into, “police car” ranks near the top of the list.

(Also on the list: Rolls Royce, Ferrari, and anything owned by a Mob Boss)

Nothing was different about the actual facts… The traffic, the size of the parking spot, the length of the car, etc… All of those facts were exactly the same.

It was just the perception of everything that was magnified because of the types of cars involved. Suddenly, it felt like this was going to be much more difficult that it actually was.

The same is true for your trials.

Pre-trial preparation, jury selection, opening statements… The same techniques apply in every type of case.

But when you’re involved with a high-stakes trial, a high-publicity trial, or dealing with a legendary opponent, it feels like the case is different.

Just remember: It’s not.

Trust your training, and trust your skills.

The same winning advocacy techniques that you’ve successfully relied upon in other cases work here, too. Be confident. You can pull this off. Just take a deep breath and remind yourself, “This is a trial… I know how this works. I’ve been here before. I’ve won cases before. And I can win this one, too.”

The pressure makes the case feel different, but don’t let it negatively affect your composure or case presentation.

If you can’t perform under pressure, you shouldn’t be in this line of work. Every client, regardless of whether they have the lowliest dog-bite case or a ground-breaking human rights issue, deserves your professionalism and highest effort.

When pressure rears its ugly head, keep calm, maintain your composure, and keep your focus. You can do this. You’ll soon realize that this case isn’t really any different from the other cases you’ve tried, and you’ll put yourself in the best position to successfully bring home the winning verdict.