Winning Bench Trials and Arbitrations

Generally speaking, judges and arbitrators are less susceptible to emotion and vagaries of human drama than they are to the facts of the case--the logic that must underpin and support your arguments. Although the following are useful tips in any courtroom setting, they are particularly important in giving you the edge in bench trials and arbitration.

            1. Get to the point. Craft a beginning statement that summarizes your position. Then follow with the three most critical points that back up your interpretation of the facts. Now you’ve located the matter for the judge/arbitrator, given them a context to work from and they are ready to listen to the details.

            2. Make every word count. Keep your phrases short and succinct. The judge/arbitrator will appreciate a lawyer who doesn’t waste their time.

            3. Present yourself and your case with confidence, not with aggressiveness. Your “do or die” attitude, often necessary in a jury trial, is usually counterproductive in ADR/bench trials. Instead, embrace an attitude of “I have the stronger, more accurate, interpretation of the facts.”

Now, you’ve got the winning edge!

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A Winning Case Dr. Nelson recently consulted on:

Congratulations to Dan Hoven and Carlo Conty of Browning, Kaleczyc, Berry & Hoven, P.C. (Helena, Montana) for their successful Defense Verdict, in a case involving complications during a tonsillectomy performed on the 22 year old plaintiff by head and neck surgeon, Dr. Ray Kaufman.  During the surgery, Dr. Kaufman encountered uncontrolled bleeding that required him to ligate the left external carotid artery. Plaintiff claimed Dr. Kaufman breached the standard of care by cutting too deep beyond the tonsil capsule, thus the bleed. Plaintiff subsequently suffered a stroke as the ligation created a clot, and claimed total disability. Defense argued that a subsequent CT angiogram showed aberrant vasculature near the tonsil bed which could not have been anticipated preoperatively.

Use Body Language to Mask Panic

Photo: Karen Neoh

Trials are often minefields, with bombs (whether large or small) exploding in your case just when you thought all was going smoothly. Your witnesses blunder, get trapped by opposing counsel, judges make decisions unfavorable to your case, etc.

But here’s the thing: no matter what is going on, you can’t let jurors know that things aren’t still going your way. And the most common way you let on, is by reacting with surprise. Not good! Jurors feel that you should know everything about the case if you are truly well-prepared, and they tend to evaluate your reaction of surprise as unprofessional. You need to find a way to mask your “Yikes!” if you are to continue to appear credible in the jurors’ eyes.

A primary way of covering your reaction to the unexpected is to use the following specific body language: simply drop your head down a little, to one side, as if thinking something over or consulting your notes. Once you’ve recovered and know where you’re going, simply raise your head, re-connect your eye focus, and resume from where you left off. Jurors will be left with the very credible impression of a lawyer who takes the time to think, rather than the unfortunate and not-credible impression of a lawyer panicking.

Use the Value Embedded in Words to Persuade

If you are to persuade jurors, you must make the case real for them. It can’t be just about facts and figures, yet if you over-dramatize events, your case loses impact. One of the secrets to bringing events to life without resorting to histrionics or melodrama, is to bring vocal color to your words. Color is literally, painting pictures with your voice.

Within any given situation you are describing there will be a few key words that need color, life. All you have to do is make the word sound like what it means. This is much less esoteric than it seems. Technically, you either stretch the word (lengthening) or shorten it. Words such as “break” or “kick” are shortened to give the vocal rendition of a blow. Words such as “abandoned” or “painful” are stretched, lengthened to give them an aspect of suffering.

The word must not however simply be lengthened or shortened. As best you can, put into the word its value. How boring can you make the word “boring” sound? How “non-compliant” can you make the word “non-compliant” sound? How “hurt” can you make the word “hurt” sound? If you really think about what you are saying, you’ll find you do this quite naturally. It is only when we speak without paying attention to the actual words we are using that we lose the dimension of color. Practice making words sound like what they mean and you’ll open up a whole new dimension of jury persuasiveness.