Pens for Lawyers

I write a lot.  Computers are great, but there’s just something about putting pen to paper that is really satisfying.  Because I spend so much time putting pen to paper, I am constantly on the lookout for good day-to-day pens.  I’m not fond of fountain pens, like I’m not fond of riding horses around town, but I do really like a good rollerball or gel pen.  I try lots of pens, and I’ve come across one recently that I really enjoy using. It’s the Uniball Signo .38 tip pen.

What so nice about this pen?  It writes smoothly, but has a thin line and doesn’t skip. And it’s comfortable in my hand for long stretches of time.  It’s become my go-to pen for notes.  I like the dark blue, but it comes in a variety of colors.  It’s also not expensive so it’s appropriate for daily use.

I used to think any old pen was fine, but I’ve become just a bit more picky about them, just because a good pen can make a big difference after you’ve been writing for a couple hours.

I don’t get anything from the company; I just like the pen a lot.

Let me know in the comments any other pens you like.


Evidence and Advocacy

Many trial advocacy books focus on things like juror psychology, theming, framing, sequencing, point of view, and other aspects of presenting your case to the jury.  The focus paid to all these things often demotes the most important part of the trial, which of course is the presentation of the evidence.   That is not to say that the way that evidence is presented is not important, but it remains true that juries do decide cases based on the evidence presented.   Sometimes when I tell my students and other lawyer that I believe the evidence presented is the most important part of a trial, they resist and tell me that the recent discoveries in jury psychology make the evidence presented less important.

But I continue to believe that cases are decided on the evidence presented, so I was glad to read recently this line from Moe Levine:  “if you win your case at all, it’s going to be by the evidence you present and by not making yourself obnoxious.”  I especially like the latter point. This statement sort of captures what a trial lawyer should be doing in as few words as possible.  I am not deifying Moe Levine.  I would not try to duplicate his methods for myself, but I do think someone of his experience deserves close attention.  And his thoughts are in accord with the psychological studies that have identified the evidence as the most important predictor of jury verdicts.

So, before you pick up a psychology book to prepare for your next trial, consider first paying extremely close attention to the evidence and making sure you have it ready to present at trial.


Don’t Eat The Bruises

You could fill a large bookshelf with books on trial advocacy.  Yet the number of civil trials seems to be on the decline, and has been for probably a decade or more.  Could it be that there’s an inverse relationship between the number of trial advocacy books and the number of actual trials lawyers are handling?  Are we reading books and going to seminars instead of trying cases?  Judging solely by the number of trial advocacy books out there, I wonder.  And many of these books are written by people who have never had to talk to a single juror.

Yet there are gems out there.  An excellent book I am now finishing is Don’t Eat The Bruises by Keith Mitnick. He’s a very experienced trial lawyer with Morgan & Morgan.  There are plenty of books by psychologists, trial consultants, and others that attempt to tell lawyers how to try cases successfully.  But Mitnick is a practicing lawyer who has tried tons of cases of all sorts.  That alone makes him worth listening to.

He has a whole lot of good advice for lawyers trying cases, particularly for those who try cases in tough, so-called “conservative” venues.  His concluding chapters on damages contain some of the best approaches to arguing damages that I have ever seen. He also reveals a “note card” that is as low-tech as it is effective.  Also, his approach to voir dire seems to me to be very effective.

If you want a start to finish book on trial advocacy by a lawyer who’s been through the battles, you can’t do better than this book.

But even better than that, get out there and try some cases!

A Cheaper Way to Get Medical Records

One of the common headache-inducing problems that injury lawyers face is obtaining medical records at a fair cost and in a reasonable amount of time.  But there is a way that lawyers should know about to obtain records inexpensively, and quicker than the traditional route in many cases.

The HiTech Act provides a way to obtain electronic medical records, and it lays out a procedure for obtaining them.  We are using this method now to obtain records, but we often meet with resistance from medical providers or their contractors.  It will likely take a dedicated effort by lawyers to make providers aware of the HiTech requirements and to obtain their compliance.

A very good resource for this is Paul Scoptur’s website,  The HiTech Act’s requirements and forms are available at his site as well.  He has very generously made them available and they are very helpful.  Please let us know if you are successful in using the HiTech Act to obtain records and we can share your experiences with other lawyers.

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.