Zen and the Art of Trial Advocacy

I’ve been listening to a terrific set of audio tapes called Stop Your Whining and Go to Trial by Rick Friedman and Don Bauermeister. It draws on the most recent research on the way our brains react to certain themes and stories and applies this research to trials.  Some of the advice is familiar and some is quite new. For example, we are reminded that we need to claim the moral high ground at trial and that showing bad choices made by the liable parties is important in doing so. This is probably not news to anyone who has tried many cases, but it is important to be reminded that trial lawyers do need to search for the moral truth at the heart of each case.  Friedman and Bauermesiter give some good examples and they freely share numerous resources.  Among the recommended reading is Neil Feigenson’s book on legal blame and Friedman’s own book Rules of the Road.

But is was something else that really resonated with me. Friedman spends some time talking about the uncomfortable subject of comparison. That is, lawyers comparing themselves to other lawyers.  He sees it as a form of fear, connected with ego. As Friedman explains it, lawyers probably fear going to trial (maybe even subconsciously) because they don’t want to suffer a loss or a low verdict and thus compare unfavorably to other lawyers. This idea, while it seems so commonplace, resonated with me.

How many times have we been in a conference or seminar, and the speaker is introduced by reference to his/her gigantic verdicts, their professional accomplishments, and their book-length resume. The thought going through many attendees’ minds is probably something like “Wow, I could never do that” or “Gee, she’s so brilliant, I could never got those kinds of results.”  I’ve certainly had those thoughts, as has nearly every trial lawyer I know, and it can be a struggle to fight against the temptation to be afraid of the inevitable comparisons that may follow if you lose a case or don’t get a big verdict. Connected with this idea, Friedman also suggested something I don’t think I’d ever heard in any other CLE:  we should truly enjoy the success of other lawyers, and not worry about whether we will ever have the same success.  Not easy for competitive lawyers, right? But wonderful advice.

Friedman’s thoughts on focusing less on ourselves and more on the work itself sounds a bit like Pirsig’s Zen and theArt of Motorcycle Maintenance or Crawford’s Shopcraft as Soulcraft.   It was a tonic to me to be reminded that if we just take one step at a time, concentrate on doing good work and focus on our clients, we will probably lose ourselves in our work and not worry so much about outcomes or comparison.



Writing Advice

Most lawyers spend a good deal of time writing.  I enjoy the writing process, especially when I have time to think carefully through whatever issue I’m dealing with and can take time to draft clear and hopefully persuasive documents.  That process is actually a lot of fun.

During the summer, when there is a bit less running around with the kids on sports and activities and the pace of law practice abates a bit, I like to kick up my reading about the writing process.  I’ve lately been reading one of the best books on writing I’ve come across, Garner on Language and Writing, by Bryan Garner, a well-known professor of law at the University of Texas. Justice Ginsburg calls this book a "must read" and she is right.  I think trial lawyers would greatly benefit from this wonderful book of essays that includes such points as these:

  • to be a better writer, read widely, but especially read good writing (such as the New YorkerThe Atlantic and The Economist)
  • keeping a daily journal will make you a better writer
  • poor writing is the result of poor thinking

Maybe the very best chapter is Chapter 19, where Garner lists his recommended books on a wide variety of topics, including legal style and usage.  He also lists fiction and non-fiction by great writers.  Reading those books would certainly greatly improve any writer’s substance and style.

If you have any other recommendations for good books on the writing process, please comment and share with us.   

Recent Case on Spoliation of Evidence

One of the major hurdles we face in litigation is making sure that all relevant evidence is uncovered, analyzed and preserved.  For example, after a tractor trailer wreck, the trucking company may send its representatives to the scene to analyze the wreck and take photographs and measurements.  But sometimes a company or person may fail to preserve evidence, such as videotapes that get “lost” or important documents that somehow fall into a shredder rather than the file where they belong.

What is spoliation?   Under Georgia law, the failure to preserve evidence can result in something called “spoliation” of evidence.  Spoliation is the destruction of evidence or the failure to preserve evidence that is necessary to contemplated or pending litigation.  If a person or entity commits spoliation, the jury can be informed that they may believe that the evidence that was destroyed or not preserved was harmful to that person or entity.  This can be very important in trials, since most parties don’t like the idea of a judge telling a jury that it may believe that party destroyed evidence.

Contemplated Litigation vs. Contemplated Liability:  In a recent case, Watts & Colwell v. Martin (Ga. App., Nov. 29, 2011), the Court of Appeals drew a clear distinction between pending liability and pending litigation, and noted that it is only notice of pending or contemplated litigation that is relevant to spoliation.  So a company preparing an incident report after an injury, by itself, does not constitute spoliation.  In the Watts case, a door hinge that a property manager had taken possession of was lost and the Court of Appeals said that this also did not constitute spoliation.

What To Do?  It seems more important than ever to make sure that “spoliation letters” be sent to defendants in many cases where spoliation may become an issue, and that those letters make it clear that litigation is contemplated, rather than just saying that liability is possible or contemplated. Of equal importance is the need and the duty to preserve all evidence so the jury can have all the information needed to make its decisions.

Websites for Trial Advocacy

             One of the wonderful aspects of my chosen career as a lawyer is that I get to actually try cases to juries.   Learning to try cases is an evolutionary process, and things I did ten years ago I wouldn’t dream of doing today. As in every field of human endeavor, experience is a great teacher.  

            Fortunately, there are plenty of teachers out there who generously share their ideas and advice about trial advocacy. I thought that it might be of some interest to readers to share my thoughts on some of the websites and blogs that I review regularly as I try to improve my abilities as a trial lawyer.   Here’s a short list of some sites I review for trial advocacy tips:

            1.         The Jury Expert – the bimonthly publication of the American Society of Trial                                         Consultants. You will learn something from every issue. Great writers and content.

            2.         Plaintifftriallawyertips.com – Paul Luvera’s blog, where he generously shares                                    advice about trying cases, especially medical negligence cases, which he has won                                with amazing frequency.

            3.         Trialguides.com – this is a great site for books on trial advocacy. Includes books                                 by David Ball, Rick Friedman, Paul Luvera and many others.

            4.         Dayontorts.com – great blog by John Day, an accomplished trial lawyer in Nashville.

            5.         Winningtrialadvocacytips.com – good tips on trial advocacy from Elliott Wilcox.

            In previous posts, I’ve mentioned several other blogs, websites and books on trial advocacy that I like. These five sites are also sources of good information and advice. Please comment and add your thoughts on other websites of interest to trial lawyers.  

A Great New Blog for Trial Lawyers

      Trial lawyers have a great resource in the blog, wyzgaonwords, from Diane Wyzga.  Diane is a friend and an outstanding storyteller and litigation consultant.  She is passionately committed to the study of storytelling and the application of this knowledge to help lawyers understand best how to tell a story.  Diane has been an enormous help to us in conducting focus groups and crafting stories to best communicate our case to juries.

     Using Diane’s work with us in focus groups, we have been able to reject certain stories that seemed plausible before we did the focus groups, and craft stories that addressed the points that really mattered to the focus groups.  This has been invaluable to us.  

     The concept of storytelling is not new, of course.  I had a philosophy professor, a man I deeply admired, who was fond of saying that there’s been no really new intellectual discoveries since the Greeks.  He was (mostly) joking, but we can read a fairly sophisticated analysis of storytelling in the ancient Greeks, perhaps most clearly in Aristotle’s Poetics.  

     But it seems that law school, with its heavy (and probably necessary) emphasis on facts and well-defined issues, can sometimes dampen our enthusiasm or willingness to communicate through story rather than a "stack of facts."   The art of storytelling is sometimes lost on us lawyers, and it’s exciting that we are experiencing a renewal of interest in the art of storytelling. 

     For me, the study of storytelling is an ongoing, exciting and sometimes difficult process, as I try to create a story with the right perspective, the right sequence, the right point of view, the right beginning and the right ending, never knowing for sure if it is exactly right.  Diane is a leader in the resurgence of storytelling as an important form of communication, particularly for lawyers.  Please take moment to check out her blog.