Handle Your Challenging CEO Client Successfully with "Yes, and"

 

Successful CEOs, entrepreneurs and surgeons (among others) can be difficult clients. Their very success too often leads them to believe they know everything about succeeding in their legal matter. Which usually involves their wanting you to do something entirely different from what you know is the best approach to handling their case or themselves as witnesses.

The temptation is to say, "Look, I don't tell you what to do in your field, don't tell me what to do in mine." That may work with some clients, but it's worth remembering that many powerful individuals harbor an underlying fear of being exposed as powerless. It does not advance your work with the client to aggravate that fear.

Instead, use the "Yes, and" approach, which basically consists of the following:

1. Don't wave aside the client's arguments. Treat your client's analyses and suggestions with respect.

2. Then, go on to recommending/doing whatever you think is best. 

For example, "I appreciate that you want me to call Ms. Jones as a live witness, and I think our most successful strategy is to use her declaration."

Notice, it's not "I appreciate that you want me to call Ms. Jones as a live witness, but I think our most successful strategy is to use her declaration," nor is it "I think our most successful strategy is to use her declaration instead." You make no attempt to defend, rebut or otherwise resist your client's perspective. You acknowledge it respectfully, and then go ahead with what you believe is the best course of action.

Such is the power of "Yes, and."

Simple Words That Win With Jurors: “Thank you, Your Honor”

 

I was assisting with voir dire recently when opposing counsel, questioning the prospective jurors, was told by the judge to “Move along, counselor,” to which the attorney replied, “But Your Honor…” I barely listened to the rest of what the attorney was saying, because I was delighted at the expression of confusion and dismay on the faces of the jurors. Opposing counsel had just lost points with the very people they would need to convince down the road, all to my side’s advantage.

Perhaps the most egregious mistake a lawyer can make in voir dire is to fail to fully respect the judge. Prospective jurors are not happy to be there; they do not trust the lawyers, and the whole process is intimidating. Whatever else happens, prospective jurors are convinced only that the judge is neutral and therefore only the judge is trustworthy.

If the judge says, “That’s enough, counselor,” or “Move along, counselor,” or any other such directive, the lawyer should immediately say, “Thank you, Your Honor,” and do so. If the judge says, “You’re out of time, counselor,” the lawyer should refrain from arguing; “But Your Honor, opposing counsel took 10 extra minutes, which ate into my time.” As far as the prospective jurors are concerned, whatever the judge says, goes. If you have a legitimate grievance worth arguing with the judge, to do so out of the range of the prospective jurors. 

Take A Page From Oscar Winning Actors: Read Your Openings/Closings Out Loud Before The Trial!

 

Your opening may read brilliantly on paper, but here’s the thing: the jurors won’t be reading your opening; they’ll be listening to it. Listening involves different pathways in our brains. What may make a great deal of sense when read can come across as just so much nonsense when heard.

The best example I know of is the classic “Eats, shoots and leaves.” A comma is all that distinguishes a murderer from a friendly Koala bear (“Eats shoots and leaves”)! Yet when spoken, the listener has little way of knowing which is which, unless of course, they are attending to the context.

If you want to make sure your opening sounds the way you want it to, read it out loud.

Step One is to read it out loud to yourself, because I guarantee you will pick up all sorts of issues with your written version that need to be addressed. You may even wish to record yourself speaking your opening, since it can be difficult to spot problems while you are speaking. Things to watch out for, for example, run-on sentences. Or the use of “they” “he” “she” or “it” without referencing a noun close enough to the pronoun. Or sentences that have so many conditional clauses, the meaning is lost long before the end of the sentence.

Step Two is to read it out loud to a friend or family member who is NOT intimately acquainted with the material, and from whom you are willing to hear constructive criticism. In addition to whatever comments your friend makes, ask: “Is there enough emotion in this to grab your attention? Is my language clear enough so you never went “huh?” as you listened? Are my sentences short enough? Am I using repetition in a way that helps or hurts? Does the way my opening unfolded appeal to your common sense, or is it too complex?” and so on.

Do the same with your closing argument. Any actor worth their salt always rehearses out loud. A courtroom in many ways, is a theatre.

The small amount of extra effort required to speak your words out loud may make all the difference between convincing the jurors of your case or watching their eyes glaze over as your case peters out.

 

Jurors Live By “What You See Is What You Believe.” Ignore It At Your Peril!

  

“What you see is what you believe” – is true not just of how jurors gauge the veracity of a witness or party’s testimony, but also of how jurors assess you when you sit at counsel table.

Jurors evaluate your demeanor according to stereotypical interpretations; they have no personal knowledge of you that would allow them to determine otherwise.

For example, are you sitting hunched forward, leaning heavily on your forearms or elbows? Jurors may conclude that you are worried, defeated by that last response a witness made. Are you sitting straight, with your arms crossed in front of you? Jurors may take that as meaning you are angry with a witness, or upset by whatever just transpired. Are you fidgeting with your pen? Your glasses? Jurors can readily interpret such mannerisms as indications of your anxiety.

The nonverbal messages you express – consciously or otherwise – are as important to juror impression as are the words you speak.

You must exude self-confidence (not arrogance!) in body as well as voice, for the jurors to be willing to be led to the conclusions you want them to make. They will be reluctant to be led by an attorney who appears anxious, worried, or defeated.

“Grace under pressure” is not a cute aphorism. It is a truth that successful attorneys embody in every aspect of their demeanor.

 

Focus Groups Save the Day–on Broadway!

 

History sometimes provides us with useful lessons for present-day concerns – even if seemingly unrelated to trial techniques. One of my personal favorites is the story of how a potential Broadway flop, Spider-Man: Turn Off the Dark, went from the media comparing the show to the Titanic, i.e., a massive failure, to a $160 million Broadway blockbuster in a few short months. This is due to the producers’ willingness to take drastic measures to turn their incipient flop into a fabulous success.

Among those measures were—you guessed it—focus groups. The producers realized that audience members were leaving the preview performances confused, so they conducted focus groups investigating specific aspects of the show. Production stopped--a radical move--to implement changes based on focus group feedback.

It worked.

Your cases deserve no less. A focus group is a relatively low-cost pre-trial strategy to give you the winning edge. There is nothing that can replace vigorous discussion of your case’s strengths and weaknesses among a group of people rigorously selected to match your jury pool.

Unlike Broadway, you can also receive (if the focus group is conducted with this purpose in mind) juror profiles as to “best” and “worst” likely jurors, assessed from the responses of the focus group members.

Yes, it takes effort and the courage to withstand open criticism from a group of strangers. Yet, given that these strangers are willing to give you the feedback that can put your case in an advantageous posture, it’s well worth it, even when you don’t think your case resembles the Titanic. 

Who Wants A Perceived Liar On The Stand? Not You!

 

People aren’t very good at detecting liars. Studies show that people’s hit rate for detecting lies (54%) is slightly above pure chance (50%), which is good news for the liars, but bad news for you in the courtroom.

Why? Because people tend to pay attention to certain cues to determine if someone is lying, but these cues may mean something entirely different.

Take the “vocal immediacy” cue, for example. Vocal immediacy is the directness with which someone responds to a question. The more roundabout or vague the response, the more likely jurors will figure your witness is lying. However, your witness may simply be thinking out loud, which sounds roundabout. Or your witness may not know what to say, and rather than answer truthfully “I don’t know,” or “I don’t understand the question,” may resort to a vague mulling over what to respond, which again, looks like lying.

Another cue is “uncooperativeness.” People often assume that a person being uncooperative is hiding something, being dishonest. Yet often an uncooperative witness is one who argues with opposing counsel rather than answer the question asked, or attempts to force their view of the facts into every response, rather than let their own attorney do the litigating.

Your best witness—among other things—responds directly to the question asked, and leaves the lawyering up to the lawyer.

The best tool I know to help your witnesses get up to jury-worthy credibility is to use role-play in preparing them to testify. You can’t afford to let your witnesses get away with behaviors that could be mistaken by the jurors as those of a liar.

Do You Like Me?

 

Likeability shouldn’t matter in the courtroom. A lawyer’s personality should be irrelevant. The facts should be paramount; they should be the only thing jurors pay attention to. Would that be nice if it were true? The jurors on any one of your jury panels are persuaded by a combination of factors. Facts are but one of many.

Yes, your likability matters. Fortunately, this isn’t high school, and your likability isn’t based on an indecipherable “cool factor.” Likeability is based on traits anyone can easily acquire or express. Among those traits are:

1. Politeness and civility

Jurors appreciate attorneys who are polite and civil with everyone in the courtroom, from clerk to hostile witness to alternate juror.

2. Appropriate passion

Jurors like attorneys who show zeal for their client’s cause, without stooping to unwarranted bashing of the other side. Arguing inconsistencies and the strength of evidence are fine. Pointing out opposing counsel or a witness’s weaknesses is fine. Beating up on opposing counsel or witness is not.

3. Clarity

Strange as it may seem, the attorney who provides the clearest, most to-the-point roadmap through the trial, the easiest-to-understand, succinct examination of witnesses, description of evidence and explanation of jury instructions—is the attorney who is most liked, and will, in most cases, carry the day.

Master these three traits, and you’ll soon be the “best-liked” and “most-winning” lawyer in the courthouse.