September 29, 2022
Welcome to Trialnasium. It is my aim and my hope to issue periodic posts on this new blog that will provoke thought and improve litigation skills for all of us.
Why Trialnasium? The gymnasium was a Greek building originally used for athletic activities but, over time, came to be used also as a place of study and philosophical discussion. The initial goal was to dedicate a space where young Greek men could train and improve their fitness for battle and warfare. As the gymnasium evolved, training became intermingled with providing a place where citizens might discuss the topics of the day at their leisure. It also inspired these youthful soldiers to consider and appreciate the spiritual WHY behind their physical training of WHAT and HOW they would be undertaking to become more effective warriors. As G.K. Chesterton wrote: “The true soldier fights not because he hates what is in front of him, but because he loves what is behind him.” The HOW and the WHAT they should do to defeat their adversaries would be enhanced by the motivational recognition that they fight to conserve and protect their democracy, beliefs, and values. This same process is the goal of this blog for those of us who fight for our clients and our legal system in the courtroom.
So, welcome to Trialnasium. A place where we can think and discuss techniques for more effective communication. It is not my goal to simply examine or train better esoteric and pragmatic skills in the selected areas of litigation. That is too narrow. It is to inspire a mindset that will be more open to finding the most effective paths for clear and persuasive communication. No tricks. No magic. No guarantees. We seek an enhanced opportunity to connect with our juries so they will relate to the issues, care about the resolution, and retell the experience to each other.
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Howard Schultz, the owner of Starbucks, was once asked about the secret of his company’s success. His reply was simple and insightful: “We don’t sell coffee. We sell atmosphere.” I tell my clients something similar: “We don’t sell justice. It can’t be bought or sold. We promise to let the world see and hear you. Everyone wants to be seen. Everyone wants to be heard and understood. Everyone has a story. Our job and our promise are to make that happen in your case.”
There is a saying in golf that also gives us valuable instruction in courtroom communication: “Play the shot in front of you, not the one you wish you had.” Every set of facts is SITUATIONAL and has a CONTEXT that must be recognized and dealt with. The question we must ask ourselves is not: “What do I need to do or say to win this case?” Instead, it is: “What do I need to say or do that will allow the jury to see and feel this case?” Our personal definition of value/meaning is far less important than the likely disparate beliefs the judge or jury will have regarding value/meaning. It will be based on their own experiences and pattern recognitions that will be overloaded with the SITUATIONAL CONTEXT.
Our message, our client’s story will not be for everyone. But it must be for someone. If the message/story is relatable – the jurors can see and feel it – it will become retellable. We want some significant number of the jury to feel deputized to retell the message/story in their own emphatic words and feelings. They will be in the room where it happens (jury room) we won’t. We need their retelling of the story that they have related to, care about, and are compelled to share.
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I have heard it said that: “Bad communication is almost always a love letter addressed by the self to the self.” If we think about that concept, we can see how it applies to every form of communication whether in personal relationships, conversations, arguments, presentations or courtroom tactics. Far too often, we talk for ourselves, about ourselves, and to ourselves as though that simple “venting” and “preaching” will be persuasive or effective. Good communication reverses the flow. It is a gift from themselves to the audience. It contains what the audience wants and what the audience needs to see and feel in order to relate to the problem.
It doesn’t have to be for everybody and, in jury trials or group presentations, it likely won’t be. But it must be for somebody. Those “somebodies” will then seek an audience of their own to share the message in their own inspired voice and words. You won’t be there when it happens but your message will be and it will actually be much stronger than when you delivered it. Your love letter was for them. They received it. They needed it. They related to it and they will pass it on.
This is the backdrop for Trialnasium. We will be periodically discussing more specific aspects of litigation like depositions, voir dire, opening statements, direct and cross-examination, and closing arguments in the next visits. I don’t have all the answers or even claim to perceive all the questions. Together, we’ll seek to develop a mindset that helps us enhance what we do for our clients. That’s worth fighting for!