Don’t Treat Your Firm’s Millennial Lawyers Like Wanna-Be Boomers!

As your Boomer partners, lawyers and staff retire, you are dealing increasingly with the Millennial generation, no longer the “babies” of the group, since they are now hitting 30.

You are no doubt discovering that these young lawyers, soon to be partners, aren’t going to become Boomers. Their interests, work ethics and personal values are very different.

Don’t treat your Millennials like wanna-be Boomers! Respect what engages their hearts and talents.

Millennials are driven by meaning, by the ability to make a difference in the world, and although they certainly appreciate decent compensation, it’s not what gets them to be productive or to excel.

For example, when you assign work, make sure to point out the meaning, the value of this work, be it to the client or to the community. Especially to the community, for societal issues are pertinent to this generation, and they will gear up on its behalf.

Provide lots of ongoing positive feedback, along with whatever suggestions for improvement are required. Make sure you offer opportunities for growth and learning. Millennials are generally very accepting of a Boomer’s experience and knowledge, and can benefit greatly from a mentoring relationship.

Don’t begrudge Millennials their tenacious enthusiasm. It is what fuels their willingness to put in the hours and the brain-power you need.

The Millennials are an exciting, powerful generation. Respect them as such, and they will soar – and your firm along with them.

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A Winning Case Dr. Noelle Nelson recently consulted on:

Congratulations to Leila J. Noël and A. Barry Cappello of Cappello & Noël (Santa Barbara) for their successful $4,800,000  Settlement which the Santa Barbara County and Santa Barbara County Sherriff's Department agreed to pay to the survivors (and their parents) of a wrong way driver accident, involving a Sheriff's Deputy, that took two lives and seriously injured two others.

Focus Groups Save the Day–on Broadway!

In the spring of 2012,  Spider-Man: Turn Off the Dark, was widely believed to be headed for total flopdom: media were comparing it to the Titanic. Yet, this fall, the show has already grossed more than $160 million, a Broadway blockbuster, largely due to co-lead producers Jere Harris and Michael Cohl’s 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 was stopped—a radical move--in order to make changes based on the 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. 

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A WINNING CASE Dr. Noelle Nelson recently consulted on:

*Congratulations to Dave Luce and Meghan Lamping of Carmody MacDonald P.C. (St. Louis), and Spencer M. Taylor and M. Todd Lowther of Balch & Bingham L.L.P. (Birmingham) for their $11,106,420 Jury Verdict in TAMKO v. Factory Mutual (FM), a hotly contested business interruption insurance case. FM claimed that TAMKO's damages, which TAMKO sought in the amount of $12.2 million, were less than $2.5 million. FM argued that TAMKO did not suffer a loss of production due to an absence of raw material but instead was impacted by the late 2008 economic downturn, and that TAMKO could not demonstrate that it had actually lost any sales. Clearly, the jury did not agree with FM.

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 “I don’t know,” or “I don’t understand the question” may resort to a vague mulling 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 his or her views 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 video-taped 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.

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A WINNING CASE Dr. Noelle Nelson recently consulted on:

*Congratulations to A. Barry Cappello and Lawrence J. Conlan (co-counsel) of  Cappello & Noël (Santa Barbara) for their successful $7.7 million jury verdict in United Studios of Self Defense (USSD) v. Z-Ultimate Self Defense Studios, et al. The jury decided unanimously in favor of USSD on almost every cause of action against Z-Ultimate companies and its owners (former USSD executives). The charges included breach of fiduciary duty, constructive fraud, misappropriation of trade secrets and confidential information, Penal Code 502 (destroying computer records), trademark infringement and civil conspiracy. In addition, the jury found against the owners of Z-Ultimate companies for malice and fraud.

Put “Truthiness” To Work For You—At Trial!

The value of visuals in trial work is well established, in that images emphasize and clarify testimony or evidence.

However, new research shows that visuals have impact in yet another way, which can be put to powerful use in the courtroom.

Scientists in New Zealand and Canada examined what Comedy Central satirist Stephen Colbert calls “truthiness” –the feeling that something is true. What they discovered is that when a statement, whether true or not, is accompanied by a simply decorative photograph [i.e., one that does not reveal the validity of the claim], it is more likely to be perceived as true. People simply “feel” that the statement is more likely to be true, by virtue of the accompanying visual.

So the statement “The liquid metal inside a thermometer is magnesium” accompanied by a picture of a thermometer (which revealed nothing about the metal inside), was believed to be true far more often than the same statement not accompanied by a decorative photograph.

What does this mean for you? That even when you don’t have a visual or graphic that directly elucidates testimony/evidence you are confident is credible, it’s worth attaching a visual that in some way relates to the testimony/evidence. You thus have greater chances of engaging jurors’ feeling that the testimony is truthful, as you know it to be.

Do You Like Me?

Likeability shouldn’t matter in the courtroom. A lawyer’s personality should be irrelevant. The facts should be paramount, should be the only thing jurors attend to, but  jurors are persuaded by a combination of factors: facts are but one of many.

Yes, your likeability matters. Fortunately, this isn’t high school, and your likeability 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, strength of evidence and the like are fine. Pointing out opposing counsel or a witness’s weaknesses is fine. Beating up on opposing counsel/a 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 clearest, easiest-to-understand, succinct examination of witnesses, the clearest description of evidence, and the clearest 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!

The Enduring, Maddening CSI Effect

In my ongoing research of what jurors think and how they decide cases, I read umpteen blogs, posts and articles authored by those who have served. Recently, yet another article appeared which pointed out to me the enduring “CSI effect,” and how lawyers would do well to pay more attention to it.

Simply put, the “CSI effect” is jurors’ over-riding, sometimes obsessive, need to explore for themselves every bit of physical evidence in an attempt to come to a fair and just decision. This is true whether the case at hand is civil or criminal. Contracts are scrutinized, emails pored over and signatures examined with the same zeal as skid marks and bloodstains.

In the article referred to, jurors requested photos of the victim’s wounds and examined them minutely. A mechanic among them categorically pronounced the wounds as from a Torx screwdriver, despite the fact that apparently no such screwdriver had been mentioned during the trial. The rest of the jurors seized on this interpretation and what had been a stalemated jury with 8 finding against defendant, and 4 equally adamantly finding defendant innocent, rapidly became a unanimous “guilty” verdict.

What’s the lesson here? That it’s up to you, the attorney, to look at your evidence every which way and give a forceful, compelling, interpretation to your evidence such that it cannot be re-interpreted in some unfavorable way by a jury that examines the evidence with a keener eye than yours. Even when there is no way for you or your experts to say with conviction “Here’s the smoking gun!” offer the jurors the strongest probable interpretation that can be drawn from the evidence. Leaving the interpretation up to the jurors is taking a chance you can ill afford when you want to win.

Arrogance 101: Dump It!

Recently,  R. Allen Stanford, the onetime Caribbean banking tycoon, was found guilty of investment fraud by a jury on 13 of 14 criminal counts, and required to forfeit $330 million in assets.

What brought him down? Stanford’s fraud and greed, of course, but according to the jurors, more than anything, it was Stanford’s demeanor that convicted him, his arrogant attitude in the courtroom day after day.

Many of you are saddled with arrogant clients or witnesses, and many a time I’ve been called in to help prepare the witness for trial, because this type of witness always rubs jurors the wrong way. Yet the “fix” is remarkably simple.

Arrogance is expressed through body language, vocal tone, and patterns of response. An arrogant person’s body is often canted back, their chin tilted slightly up as if looking down their nose at others. Their tone is condescending, full of dismissive utterances and/or sarcasm. Their responses fail to take into account jurors’ different levels of education or sophistication.

All of these are easily corrected by an appeal to the arrogant individual’s desire to do well, even brilliantly (a consequence of their narcissism), along with a hefty dose of video-taped role play, none of which alter the truth or substance of their testimony one iota. It does, however, alter your witness’s presentation of said truth on the stand, such that jurors can perceive beyond your witness’s arrogance to what’s important: the substance of their testimony.