Book suggestion for trial lawyers

I have and likely always will be fond of those who don’t follow the crowd, those who seek excellence above popularity.  And I especially enjoy reading books about those who earn real accomplishments in their own unique way.  That’s why I like reading Rick Friedman’s books.  His latest book, Becoming a Trial Lawyer (2d edition), is a gem.  It’s full of great advice from Friedman, who’s had a long and successful career as a trial lawyer.  One of his pieces of advice is that lawyer who want to become trial lawyers should avoid rigid devotion to any formulas and dogmas.  They should instead absorb the many different suggestions of the “one way” to do things in a courtroom and use them in their own way that feels right to each individual lawyer.

Much of the advice on trial practice these days takes the form of “here’s the one right way to be a trial lawyer.”  Some of that advice even comes from people who have never set foot in a courtroom. I have always been skeptical about any dogmatic approaches to things as complex as jury trials. And I appreciate Friedman’s advice to think broadly about how to be effective, and his rejection of any formulas.  Trials are dynamic events, and no one way can capture their complexity.

The one thing I am sure of is that trying cases – lots of cases – and attentively examining your own performance is an effective way to become a better trial lawyer.  Friedman’s book is full of wise advice, but remember the author’s own admonition to think for yourself even as you absorb his advice.

What Should Trial Lawyers Know About Marketing and Psychology – 3 Suggestions

With millions, or billions, of dollars at risk, companies use an immense amount of data to influence sales decisions. Companies can’t afford to leave the choice of their product or service to chance.  The same is true of many political campaigns – no politician wants to let her opponent win the battle of influencing the choice of which candidate should win an election.

This type of influence and persuasion is not limited to consumer-goods companies or politicians.  Trial lawyers can learn a great deal from studying some basics of marketing and social psychology.  After all, just like businesses and politicians, we are asking jurors to make a choice.  Admittedly, there are important differences (we hope) between choosing shampoo and choosing whether an injured plaintiff will prevail at trial, but there are important similarities also.  In this post, I want to describe 3 principles that trial lawyers can use to maximize the effectiveness of the way they present their cases to jurors.

Reciprocity –   Reciprocity is the idea that someone is more inclined to buy something if you first provide them with something of value.  This principle is behind all sorts of marketing.  Just think of all the gifts and freebies that you get over an average year.  In a trial, this principle can help in jury selection.  For example, when you want jurors to lose their fear of self-disclosure, it helps to do some disclosing yourself first.  That’s just one of the many ways to use the principle of reciprocity.

Visual Evidence– Visual evidence is particularly important today, as jurors have become more and more accustomed to seeing messages displayed in visual ways.  From opening to witness exams to closing, visual evidence should be used throughout.  And, just as important, keep it simple, and use the same visuals repeatedly so your message stays focused.

Commitment – Commitment refers to the principle that once someone commits to something, he is far more likely to do it.  In the case of jury selection, jurors should be asked to commit to certain rules that may be important, at least generally.  For example, a lawyer may ask a potential juror if she is in favor of caps on damages in every case.  If the answer is no, it may be wise to emphasize that point during closing. It would be difficult for that juror to later go into the jury room and say she is in favor of caps.

There are whole books that could be written on this subject, but these are three principles that seem important during just about every jury trial.  Please share in the comments any ideas and suggestions that might help all of us lawyers who are trying cases.

Ego Keeps Lawyers From Trying More Cases

I was just reading the latest edition of AAJ’s Trial Magazine, which covers a lot of psychological territory. One of the articles is by Rick Friedman, a very successful trial lawyer who’s written books on trying cases and often lectures to other lawyers about trying cases.  He isolates one factor as the one that seems to keep lawyers from trying more cases – ego.  He calls it the fear of losing, but that fear is driven by ego.  Every trial lawyer is afraid of losing because losing would not only hurt his or her client, but it would also diminish that lawyer in the eyes of his peers. Friedman also refers to this fear as the cancer of comparison – the comparisons that every lawyer makes to his or her peers.  It is the same human problem that has always been with us.  All of us want to appear smarter, stronger, better than those around us. Lawyers are not immune to this.

But we must fight the tendency to let our egos and fears keep us from trying cases, even cases where the odds seem insurmountable.  Friedman says “Corporate America is not afraid of the handful of lawyers who appear to “never lose.’ What would cause fear in corporate boardrooms is a generation of lawyers willing to risk losing – willing to set their own egos aside and fight for their clients in court, even when the odds are against them.”

Good stuff, and worth a careful read.  Then, once read, thrown it away and go try some cases!


What Should a New Lawyer Do to be Ready to Actually Take Cases to Trial

Some of my students this semester asked me a variation on the same question  – what they should do to become good trial attorneys?  They want to know what books I recommend, what strategies work best, and which cases are best-suited for trial.

My answer is that becoming a good trial attorney is largely a matter of geography.  Just as being a good basketball player requires that you change your location from bench to court as often as possible, so too does trial work require that you move yourself from your office to the courthouse.  Trial lawyers try cases.  It’s that simple.  Well, almost that simple.

Let’s take the basketball analogy a little further.  A person who wants to get better at basketball does so by actually playing.  But of course that isn’t all. Good players spend a lot of time practicing and thinking about the game.  There’s a reciprocal process going on – better practice leads to better play, better play helps you see what works so you can focus your practice.  But the 2 main ingredients stay the same- playing the game, and preparation.  So we can revise the formula a bit – trying cases plus thoughtful preparation (revised as experience dictates) are necessary ingredients for the aspiring trial lawyer.

Trials are not basketball games, but if they were one of my mentors could probably be the Steph Curry or LeBron James of trial work.  Often I would ask him what books I should read and what seminars I should attend to become a better trial lawyer.  He would usually patiently say that those things are great but ultimately you have to actually go try cases.   That’s why being a trial lawyer is largely a matter of geography.  I used to think that way of thinking was outdated.  I don’t think so any more.

Don’t misunderstand me – reading books is vital, and so is attendance at seminars.  I’m not encouraging that lawyers avoid those things.  In fact, I love to read books on trial techniques, psychology, persuasion, communication, and cognitive science.  But all that knowledge has to be translated into action, and trying cases is the way we do that.

Today, there’s been an enormous increase in the number of books written about trial work and related fields.  There’s no shortage of books or friendly experts willing to tell lawyers how to try cases.  But there is a shortage of trials.  Very, very few cases on the civil side go to trial.  So, to get better at trial work, get out and actually try some cases.

Making Ideas “Stick” – Some Thoughts on Application to Trial Practice

I want to share some thoughts about a recent book I’m reading – Made to Stick:  Why Some Ideas Survive and Others Die by Chip Heath and Dan Heath.  The book focuses on analyzing why some ideas have staying power and are remembered while others whither on the vine and are quickly forgotten.  Lawyers who have to communicate their ideas – which, I think, includes all of us – should read this really good book.

The real power of the book is that it takes many messages and ideas from disparate subjects and distills the characteristics of “sticky” ideas down to just a few basic principles. Some of the basic ideas are not too startling – like the basic principle of keeping an idea simple – but what the authors call the “curse of knowledge” often makes us talk in unnecessarily complicated ways.  Lawyers too often lapse into jargon – an “injury” or “crushed spine” becomes “damages” and “jury selection” becomes “voir dire” etc. etc.

In addition to simplicity, “sticky” ideas have other basic characteristics, like unexpectedness and credibility.   The book is worth a careful read to grasp these characteristics.  I also found it to be very helpful as I pondered some upcoming trials and tried to apply the principles to my own communications.  I do not believe that juries can be fooled or manipulated, and lawyers who try usually meet with defeat.  But a clear, concise presentation to a jury that respects their time and helps them get to the real importance of a case in a streamlined way is a worthy goal.  This book will greatly help lawyers communicate to juries and other audiences.