Trump’s Secrets for Courtroom Success

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.

Your jurors might not have a clue!

Improve your jury selection with better questioning

If you want to improve your jury selection skills, consider following the example set by the best doctors in your town.

Years ago, when I was looking for a new doctor, my Dad gave me some great advice: “Whatever you do, don’t take health advice from a fat doctor, or from a doctor who smokes.”

Pretty sound advice, right?

But in addition to looking for health care professionals who are actually healthy, here’s another important tip: Find a doctor who knows how to ask questions.

The humorist Will Rogers once said, “The best doctor in the world is the veterinarian. He can’t ask his patients what is the matter – he’s got to just know.” Since you probably don’t want to share the waiting room with a cocker spaniel, you’ll want to choose someone who asks a few more questions. The reason it’s important is because the quality of your doctor’s questions determines the level of care you’ll receive.

For example, let’s say that you injure yourself while training for a beer pong tournament (No, really, it’s a sport! They even wrote about it in Time magazine!). Your elbow is killing you, so you visit the doctor who asks, “How does your elbow feel?”

Unless you’re incredibly articulate or well-versed in medical terminology, you probably won’t do a very good job of describing what’s wrong. If your doctor isn’t psychic, there’s a good chance that he’ll incorrectly diagnose the problem. But a good doctor doesn’t settle for vague, general answers. Instead, he asks follow-up questions to pin down the problem: “Is the pain on the inside or the outside of the elbow? Do you have pain when lifting objects? Does the pain radiate down your forearm? Are you able to straighten or flex your arm?”

By asking you specific questions, he makes it easier for you to answer and provide him with the details he needs to correctly diagnose the problem (“I’m afraid you’ve got Tennis Elbow”) and prescribe the appropriate treatment (“The only way you’ll be able to represent your firm in next week’s beer pong tournament is if you ice it, use the best elbow brace for tennis elbow, and take a series of Cortisone injections.”)

To improve your jury selection, you need to apply the same technique to your questioning.

You know that your goal for jury selection is to get the jurors talking, because the more you get them to open up and talk about the issues that matter to your case, the more you’ll learn about them and the more intelligently you’ll exercise your peremptory strikes. You also know that one of the best techniques for getting jurors to talk is by asking open-ended questions, which prevent the jurors from giving simple “Yes” or “No” responses. Unfortunately, when most attorneys learn about this technique, they try asking completely open-ended questions, with terrible results like this:

Attorney: “What do you think about the presumption of innocence?”Juror: “Um… It’s good?”

You can elicit better responses than this from your jurors during jury selection if you avoid asking questions that are too broad. Instead, give them some guidance about how to answer. Remember, jury selection is a new experience for most of your jurors. Most of them aren’t comfortable speaking in public, let alone answering questions from inquisitive trial lawyers. To learn what they’re thinking, it’s your responsibility to make it easy for them to answer your questions. They need your help, and they need you to guide them to the answer.

Rather than asking completely open ended questions (“How do you feel about the phrase, ‘innocent until proven guilty’?”), ask for more specific information that drills down to the details you’re looking for. Remember to frame your questions in an open-ended format, so that most of your questions begin with “Who,” “What,” “Where,” “How,” “When,” “Why,” “Explain,” or “Tell us…” The most important point is to ensure that you don’t ask for completely narrative answers, but instead, give the juror a little guidance so he has some idea of what he’s expected to say.

Remember, the easier you make it for the jurors to talk to you, the more information they’ll share with you. The more they share, the more you’ll learn about them, and the better your diagnosis will be when it comes time to decide whether or not to exercise a peremptory strike against them.

Editor’s note: By the way, this technique doesn’t just work in jury selection, it will also improve your direct examination. By being more specific, you’ll help your witnesses improve their testimony. It’s much easier for your witness to answer, “Who was the first person to noce a problem with the fetal heart monitor” than “Tell us, what happened next?”

Which Jurors are Lying to You?

How honest are your potential jurors?  I don’t know about you, but in the past, I’ve seen more than my fair share jurors who lie.  And the sad part is, there doesn’t seem to be any guaranteed way to catch them.  In a two week span, I selected juries for five different cases.  And in almost every single case, at least one juror lied to me, my opponent, or the court.

In criminal cases, one of the issues we almost always inquire about is whether any of the jurors have ever been charged with a crime.   We explain that it doesn’t matter whether it was a misdemeanor or a felony, and it doesn’t matter whether it was dismissed or whether they went to prison.  Usually, one of the attorneys will ask a question like, “Have you, or someone close to you, ever been arrested or charged with a crime?”  Then we’ll ask for a show of hands to see who falls into that category.  Probably every criminal prosecutor and defense attorney asks something similar, because it’s important for us to know whether or not any of the potential jurors have ever been charged with a crime and how that experience is going to shape their perceptions of the evidence and proceedings in this case. 

In the five cases I tried, every juror on every panel was asked whether they had ever been charged with a crime.

But here’s the interesting twist: We weren’t trying to discover whether or not they’d ever been charged with a crime.  We already knew what what their answers should be.  In one of the jurisdictions where I practice, the prosecutors have access to a statewide criminal history program and can run a criminal history check on every potential juror.  In addition, they have a computer in the courtroom so they can pull up more detailed information from the clerk’s office or their case management system. 

So if we weren’t trying to discover whether or not they’d been ever been charged with a crime, why were we asking the question?

Because we wanted to determine which jurors would be honest about it. 

Every juror on every panel was asked whether they had ever been charged with a crime, and in almost every single case, at least one of them lied.

After we completed questioning of the entire panel, we asked the judge to bring some of the jurors back into the courtroom for individual questioning.  Almost without fail, once we confronted them about their lie, they would admit the truth.  We heard a variety of reasons why they hadn’t been honest:

One told the prosecutor that he’d “forgotten.”  “Forgotten?!?”  This guy wasn’t just given a ticket or a Notice to Appear — he’d spent two nights in jail.  Quick, do me a favor and take this pop quiz: How many times have you ever been handcuffed, arrested, and transported to the county jail?  Is that something you “forget?”  (Especially if it only happened 4 or 5 years ago…)

Another was asked, “Why didn’t you tell us about the time two years ago when you were sentenced to probation after you got caught acting as a lookout for a burglary?”  Confronted with the details, he shifted uncomfortably in his chair, then said he thought “it didn’t count,” because he hadn’t been adjudicated.

There were a few other notable comments, but the most memorable was the guy who’d been arrested, convicted of a crime of violence, and sentenced to a lengthy jail sentence.  His reason for not telling us?  He “just didn’t want to.”  If we hadn’t had the details of his arrest and conviction in front of us, we never would have learned about his prior arrest, and it would have changed the dynamics of the entire jury panel.

Unfortunately, these lies may not be uncovered until after they’ve affected your verdict.  For example, there was a $28,000,000 plaintiff’s verdict that was thrown out and a new trial ordered because three jurors lied during jury selection.  The defense attorney had asked whether anyone had ever been involved in a lawsuit.  Two of the jurors didn’t raise their hands at all (one had been sued twice, the other three times), and the third admitted she’d filed a lawsuit, but didn’t mention the other nine times that she’d been sued.

We don’t want to believe it, but some potential jurors will lie to us.  These lies affect the integrity of the jury system and the validity of your verdict.  I wish I could give you a secret formula for catching every lie and keeping those potential jurors off of your jury, but there’s no perfect solution.  The best I can recommend is that you make a clear record so that you can ask the court for help if you do uncover a lie.

First, ask the questions.  Ask specific questions.  And if you have any doubts about a juror, ask them directly.  The more specific and direct you are, the less wiggle room they have, and the more likely it is that they’ll be honest.

Second, don’t leave any room for ambiguity in the record.  If you ask, “Has anyone ever been arrested for any crime?” and none of the jurors raise their hands, make sure you create a record.  Say something like, “None of the potential jurors raised their hands”  or, “Let the record reflect that no one has raised their hand.”  Then, if you discover that one of the jurors has a criminal record, the court will have something to act upon.  Without that statement, your appellate record will be ambiguous as to whether or not the any jurors responded to your question.

You won’t be able to catch every lie, and not every lie you catch may matter. But if you do catch someone in a lie and you think it affected your verdict, you need to make sure that your court record lets the trial court or appellate court help you out.