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Does Silence at Trial Scare You?

Announcing a change:
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Imagine you are sitting at counsel table, facing your first venire panel. You are going to pick your first jury. The judge says, "Counsel you may inquire."

You collect your papers and notes. Your prepared questions are just out of reach so half standing you push your chair back and bend over to pick up the errant sheet. Now you stand erect, sliding your chair with the backs of your knees. You sweat inside your clothes and clear your throat as you walk to the podium near the jury. A pit forms in your stomach. The hair on your arms stands on end. You are in fight or flight mode.

 

You arrange your papers on the podium, then rearrange them. You look at the jury box. All the potential jurors are watching you. You clear your throat. "Ladies and Gentlemen." You are really nervous. You have researched this. Anyone who would listen has heard about your upcoming trial. Everyone gave you advice on how to "voir dire" the jury. How's this working for you now?

 

"In this case my client is a small business person. The Defendant is a competitor who . . ."

 

"Counsel, this is not opening statement," the judge interrupts.

 

"Sorry your honor." You pick up your list of questions. Again you clear your throat and begin, "Has anyone had an experience where someone did not play by the rules?" No one says anything. You look right, look left. Still no one responds. "Nobody. Okay. My next question is, ‘Do any of you have a professional license?’"

 

WHAT HAS JUST HAPPENED?

 

A jury selection is like a cocktail party. You are talking to people you don’t know. As attorneys, we expect to ask a series of questions of complete strangers, and because the judge has put them under oath, they should answer every question honestly and forthrightly. It isn’t going to happen.

 

The first problem with our attorney in the example is that he acted like an anxious teenage boy on a prom date. He wants to get right to the good stuff without investing any time in the lead up. The attorney did not give the jurors time to feel comfortable with him. The attorney certainly did not share anything of himself with the jurors. He feels like the jury is cold because his questions supposedly fell on deaf ears.

 

The question, "Has anyone experienced someone who did not play by the rules?" is a fabulous question for a case where someone has done something anti-competitive, or injured someone by negligence, or any number of cases. If the question is a good question, why didn’t the jurors respond?

 

A FEW SECONDS ISN’T ENOUGH TIME FOR JURORS TO RESPOND TO THOUGHT-PROVOKING QUESTIONS.

 

Jurors need time to ponder deep questions - and your questions should be deep questions so you must give them time with every question. A few seconds isn’t enough time for jurors to respond to thought-provoking questions. The deeper your question, the longer jurors will need to process it and respond.

 

If you ask a question that seeks only information, such as, "What do your adult children do for a living?" the jurors’ answers will come quick. We recall, process, and respond.

 

On the other if you ask deep questions that the jurors must ponder, you must give them time. For example, "Name three people who have had the greatest influence on you." Could you answer that question without taking time to ponder? Of course not. It takes time to think over your life, consider the turning points in your life, and analyze the reason for those turning points. Then you have to think back over all the important books you’ve read, and all your teachers and religious leaders, and finally get back to your parents. After that quick analysis, you have to process all your choices to whittle the list to only three. It is not a quick process.

 

Effective jury selection is a series of deep "processing" questions rather than informational questions. The power of the questions however is lost if you are impatient.

 

WHEN THE JURORS JUST STARE AT YOU – DOES THAT MEAN "NO?"

 

When you ask jurors thought-provoking questions, there may be a long silence. Don’t interpret the silence as a "No." Jurors really want to answer your question because we are honored by people who ask deep questions of us. Remember the cocktail party. "Fluff" questions rarely make an impression. You will be remembered after the party if you ask a deep question related to a tidbit shared by someone in your conversation. The same is true of jury selection.

 

GIVE YOUR JURORS TIME TO THINK ABOUT YOUR GREAT QUESTION(S).

 

Unfortunately, silence is an oppressive weight pressing down on us. Attorneys feel "the jurors must talk to me or I am a failure." When jurors greet our questions with silence, we feel the urge to quickly advance to another topic, hopefully one that will generate a better response. That’s probably what our young attorney felt. When he saw that the jurors weren’t responding (aloud) to his question, he jumped to his next topic. But if he’d simply given the juror more time to answer, he would have received a response, and would have been able to learn more about the jurors.

 

 Here is a process for posing deep questions.

1. Ask the question(and tell them how they should respond): "By show of hands, has anyone here ever had an experience where someone did not play by the rules?" 
2. Show them how to respond: While asking the question, raise your hand in the air. (Telling them how to respond and then showing them how to respond triggers mirror neurons in their brains making their brains feel they are raising their hands and answering the question.)
3. Pause. Don’t rush. Let your jurors process your great question. The longer it takes the better your question was.
4. Look at your jurors. While you’re pausing, scan the jurors. They will be encouraged to talk by this simple step. You will see someone who will want to talk. I can’t explain how, but you will know.
5. If no one raises a hand. Pick someone and ask, "Mrs. Jones, what was your experience with someone who did not play by the rules?" By asking her directly, you will get a great response. 
6. Ask the juror to tell of the experience. Mrs. Jones will have an answer because everyone has met people who did not play by the rules. Ask, "Tell me what happened." She will share. Allow her the time.
7. Follow up. After Mrs. Jones’ answer, you will be off and running. Ask other jurors about their experiences. "Anyone else? Mr. Gomez, what about you?" Then go deeper: "Why do you think rules matter?" "Is our society built on the idea that everyone breaks the rules?" etc.

THE FINAL LESSON IS EASY – GIVE THE JURORS TIME FOR YOU TO LISTEN TO THEM.

 

If the attorney asks a question, then moves on without asking the jurors to answer, he sends the message that what the jurors think and feel doesn’t matter. The jurors feel that the attorney has a check list of questions to get through and they are just there as his audience. We gain power with the jurors when they feel that we honor them as persons worthy of listening to and caring about.

 

JOIN MY JURY SELECTION WEBINAR SERIES

 

I am developing a webinar series on a unique method I have developed for conducting jury selection that facilitates the interchange between jurors. I intend to make this a 6-session webinar and go in depth on how to become powerful at voir dire.

Please send me an email at bestlawyer@aol.com

and I will add you to email list. Also, you can be invaluable in developing the program. Send me questions you have or experiences you’ve had picking juries. 

Announcing a change:
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Mandela's Lessons for Lawyers

July 18, we celebrated Nelson Mandela Day. In 1964, Mandela was one of eight leaders of the African National Congress convicted on four broad charges and sentenced to life in prison. He served 27 years before his release and later election as South Africa's president. Despite the court system's mistreatment of Mandela, he resolved to be positive. He challenged everyone to change things for the good. In honor of Nelson Mandela, here are some quotations from which lawyers can learn lessons about law and trials:

LEARN SOMETHING EVERY DAY
"Education is the most powerful weapon which you can use to change the world." – Nelson Mandela

Through education, we became lawyers. Many of us come from families that were financially challenged. Education was a stepping stone for us to enter a profession that gives us the potential not only to create great wealth, but more so a profession where one person can change the course of history.

My father, who was not an attorney, told me stories of his friend, Edgar Denny. Edgar was my scout master, and an attorney. He represented three former employees of US Steel. US Steel had fired the three shortly before they were to retire, and denied them their retirement benefits. When it was time for trial, US Steel flew a cadre of attorneys from the east coast "to teach that country boy a lesson." My father would pause in telling the story, because he could not say it without laughing, "Edgar not only kicked their asses all over the courtroom, he kicked their asses all the way to the airport." Education is the most powerful weapon we have to change the world, if only in the life of one person, our client.

DO YOU FEEL FEAR?
"The brave man is not he who does not feel afraid, but he who conquers that fear." – Nelson Mandela

Some allow fear to prevent them from stepping into what Gerry Spence calls "the killing pit." He told me once, "A court room is a fearful place. Nothing pleasant happens here. I have never heard a symphony in a courtroom. Children don’t play here. Flowers don’t grow here. Birds don’t sing. Butterflies never flitter in a courtroom, there are no windows, the sun does not shine. Only misery, pain, suffering, death, and anguish come here. Why do you think the judge wears black?"

But there is magic in fear. It is by fear that we know we care and are alive. If we did not care, there would be no hesitation – it would not matter to us. It is by loving our client, caring what happens to them, that we become alive.

Early in my career, fear crippled me -- because I allowed it. Now I use it to assure myself I am doing the right thing. I walk to it, wrap my arms around it, and acknowledge it. In doing so, I know, and you can too, that I care. That assurance can lift us to great things.

MAKE YOUR HEART AND YOUR HEAD PARTNERS
"A good head and a good heart are always a formidable combination." – Nelson Mandela

Being smart about what you do is as important as caring and embracing your fear. I call it "being in the moment." Anger leads to poor decisions. It happens frequently; I saw it again today. The court ruled in my favor on a law and motion matter. That presented a calendaring issue for the other side concerning trial. I offered two solutions. Opposing counsel was so angry about the ruling that her response was an attack on me. The judge, recognizing what was going on, said, "Fine. Motion granted. Counsel you don’t have to accept the accommodations Mr. Young offered you. Trial date to remain."

The attorney let emotion prevent her from making a decision the client needed. Her ego interfered with her client’s best interests. Let your heart give you passion, let your head be the governor to express the passion at the right time, and in the right manner.

LIVE BIGGER
"There is no passion to be found playing small — in settling for a life that is less than the one you are capable of living." – Nelson Mandela

"Imagine" is very powerful word when used to begin a story. When we use it with a jury they are transported into the tale of our client’s story. We can accomplish the same in our professional lives. We can "imagine" ourselves slaying dragons. When we see ourselves doing so, it becomes our reality.

Your dragon may be taking on an unbeatable opponent, handling the unwinable case, facing an angry judge, caring for the unlovable client. Aspire to be great. Aspire to live the life you are capable of living. You will be great if you resolve that nothing will stand in the way of your greatness coming through. Go to trial. Take a chance. Follow your dreams.


I'M CREATING A WEBINAR ON JURY SELECTION

I am developing a webinar series on a unique method I have developed for conducting jury selection. It facilitates conversation with jurors. I intend to make this a 6-session webinar and go in depth on how to become powerful at voir dire.

You can help me develop these programs and assure that I cover every important issue. Please send an email to Bestlawyer@aol.com with your questions about jury selection.

If you me to notify you when the webinars will go live, send me an email with your name and a request for notice.

Teachers and Losing. What All of Us Can Learn From Teachers.

Announcing a change:
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Kim Davis, a middle school teacher in North Carolina, responded to my blog post entitled "Three Comments About ‘Losing’ a Trial." She entitled her response: Three Simple Truths about Lawyers and Teachers.

She had received her end of grade testing results for her students and felt "disappointed, thrilled, and sad." She felt the three points I made as an attorney dealing with losing, were instructional for teachers. She responded to my three "lawyer" points by applying them to the challenge of teaching.

1. It’s not about you. She draws the parallel that end of grade testing results are NOT a personal validation or invalidation of a teacher.

2. The Facts. Teachers cannot control the "facts" going on in students’ lives that interfere with the ability to learn, concentrate, or even attend class daily. She says, "They are just facts. No matter how much we love them, work with them, encourage them, the facts are… the facts. Teachers, you know what I mean."

3. Measuring your Wins and Losses. "One test, one day, does not measure whether I am an effective or ineffective teacher. Teachers cannot measure wins and losses by test scores exclusively. We have to measure wins in the lesson the kids won’t stop talking about, or the Socratic seminar that continues at the lunch table long after the teacher has left, or the note you receive, ‘you made me believe I could do math.’ The wins also come from parents who say incredibly kind words to us at unexpected times, or a student who you taught years ago, tells you how much he loved your class. Those are our wins."

Her email was much longer, but you get the idea. I want to share my response because I believe everyone needs to know what teachers know:

MY RESPONSE TO A GREAT TEACHER

Dear Kim,

Until recently, I taught a religion class every school day to 20 high school students. I have done so for three years (this time) and for a total of seven years. We met each school day at 6:30 a.m. I learned more about talking to juries from those students, than I ever learned from a law professor.

Teaching taught me:

1.  Yesterday's lesson (no matter how good) doesn't mean a thing when I stand up to teach today;

2. I don't know what I will say today that will be the most important thing in one of my student's lives - and if I learn sometime in the future, I probably won't remember saying it;

3. Sometimes showing up matters more than anything;

4. My best lessons have been when I threw out a tremendous lesson plan and taught what the students' questions led to; and

5. Loving and caring about the students trumps expertise and honoraria every time. Through it all parents' appreciation at the end of the school year doesn't matter nearly as much to me as a hug and a tear many years later with a student who tells me I changed their life.

I agree with you on another major point - "No child left behind" testing does not measure a teacher's ability, nor success in the classroom. I feel it is a tool invented to justify disassembling public education. There is no way a test can measure the impact of a teacher who loves and cares about their students, unless the measure is conducted on the students' success as people, 20 years after the class concludes.

Announcing a change:
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I WANT TO HEAR FROM YOU.

Email me at Bestlawyer@aol.com. Let me know what "losing" means in your occupation and why it makes you better.

Jury Selection: Can You Be the Matador Facing the Charging Bull?

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You Can’t Get Them Out of the Jury Box With Dynamite.

A potential juror is an animal of strange mien. Upon receiving a jury summons, they may have called friends asking, "How can I get out of jury service?" When they arrive on the fateful day and sit in the jury assembly room, they pray they are not called to the courtroom. When their name is read and they are sent to a courtroom, they calculate the odds of escaping the 12 seats in the box, because the last thing they want is to be put on a jury, until . . . they are put in the box. Then a strange phenomenon occurs. You as an attorney, facing these people who are so resistant to being on a jury, can’t get them out of the jury box with dynamite.


I have seen it over and over again. I finally figured that the reason someone who wanted more than anything to not get on the jury, is suddenly in love with the jury box. No one wants to be rejected. No one wants to hear, "You aren’t good enough for our jury." They rue the walk out of the jury box with all eyes in the courtroom focused on them as they pick up their book, their coat, their bag and are told to return to the assembly room – "We don’t want you on our jury,"

With this dynamic in mind, I had no idea what I was going to do during jury selection on a very big case. Both sides had exercised all their peremptory challenges (because there were horrible people for both sides in that venire panel). The clerk seated four additional prospective jurors. I felt I was in trouble when I arose to ask my questions and prospective juror number 11 crossed his arms and glared at me.

No One Will Admit, "I Am Prejudiced."

Most attorneys I have encountered do not know how to establish the foundation to dismiss a juror for cause. No one will admit, "I am prejudiced." A few will say, "I can’t be fair," but don’t stake your case on that happening.

I posed opening questions to Juror number 11. His answers scared the hell out of me. I had to stand there like the bull fighter who stares into the charging bull’s eyes no matter the fear in his heart. I had to absorb his abuse knowing I had no peremptory challenges left.

It’s not easy having your client attacked in front of the other jurors. It’s not easy remaining calm when you’re attacked. I worried, would this affect the other jurors? Were his answers ruining any chance at a fair trial?

My matador’s cape suddenly seemed very small as the beast charged my case.

I don’t know where it came from, but I responded with an observation, "Sir, you seem to me to be a person who is highly principled."

He acted like he did not know how to respond to this after his attacks. "Well, I yes I think I am."

"Your principles are very important to you aren't they?"

"Yes."

"Are you concerned that if you sit on this jury that you will be asked to set aside your principles by the attorneys or the judge or the law?"

"Now that you mention it, I guess that you’re right."

"And you don’t like that do you?"

'No."

"That really bothers you doesn’t it? Because your principles are really important to you aren’t they?"

"Yes they are."

"They are important to you because they make you who you are don’t they?"

"Yes they do."

"You wouldn’t give them up would you, not for anyone?"

"I hope I wouldn’t have to make that choice."

"No one should have to. Let me ask you this. What if during this trial someone tells you that you must do something that you think is contrary to your principles?"

"Like what?"

"What if the judge instructs you and the other jurors that if you find certain things, you have to give an award that is against what you think is right? That would be asking you to give up your principles wouldn’t it?"

"Yes, I guess."

"Would you do it?"

"Do what?"

"Give up your principles that you hold dear, would you give them up?"

"I don’t think I would like that."

"None of us would like that, but what I am asking is: would you set aside your principles to rule in this case?"

"I don’t think I would."

"Why not?"

"I think principles are what make us who we are. A man without principles is not much of a man in my view."

"Exactly. You have summarized what you feel in that one sentence haven’t you? If you relinquish your principles, you relinquish yourself."

"Yes that’s right."

"And that’s true whether it is me asking you to do it, or the defense attorney, right."

"That’s right."

"What if it’s the judge asking you to put your principles aside? What if he instructs you that are to do something and you don’t agree with it?"

"I wouldn’t do that."

"It doesn’t matter what it is he’s telling you, if you feel it’s against your principles, you’re not going to do it are you."

"No."

"What if the judge is instructing you on the law and you think the law is contrary to your principles. You wouldn’t follow the instruction would you?"

"No."

"Because you won’t do something that is against your principles, even if it’s the judge telling you to do it, right?"

"That’s right."

"Thank you for your honesty, sir. It takes a brave man to tell a judge that your principles are more important to you than what the judge might instruct you to do."

When time came to challenge the potential jurors for cause, I succeeded over my adversaries arguments to get the principled man excused because he told the judge that he would not follow the instructions if they conflicted with his principles. Less than this and the court will probably not strike for cause and you better have a peremptory in your bag.



Announcing a change:
Please enjoy this post, then checkout my new location -YoungonTrials.com  Thank you, Steve


Would You Please Help Me?

I am in the process of developing a free webinar series on a unique method I have developed for conducting jury selection. This method facilitates juror interaction and the development of relationships in the jury. I intend to make this a 6-session webinar and go in depth on how to become powerful at voir dire. You can help me develop these programs and assure that I cover every important issue. Please send an email to Bestlawyer@aol.com with your questions about jury selection. If you are interested in getting a notice when I'm ready to launch the webinars, send me an email with your name and request a notice.

What Keeps You Out of Trial?

"The decision to go to trial is the essential first step for anyone who wants to be a trial lawyer."

 My First Attempt at Trial.

It was 1983. I was sitting in court tightly clutching my file. My clients were two real estate agents sued by the purchaser of a home. The purchaser claimed the agents failed to disclose that water inundated the property. The opposing attorney had photos of mushrooms growing under a carpet that she hoped would prove water inundation.

I did not know opposing counsel. I knew she was a solo practitioner and I knew I was from a small firm -- for all the good that did me. I asked more experienced attorneys in the litigation department what to do at trial. The best advice I received was, "Make sure your shoes are shined." I did not know was that my opponent was facing her first trial, just as I was.

It was a small case. The whole file fit in a very thin redwell folder. My clients sat with me in court. My heart pounded in my chest as I waited for the master calendar judge to take the bench. I couldn't catch my breath as I waited.

The judge took the bench, called our case, and sent my opponent and me into the hall to discuss settlement. We ended up settling the case rather than going to trial. Many years later I talked about that "trial" with my now friend. By then she was a formidable trial attorney, who has now retired from trial and is a much in-demand mediator. Turns out she was just as afraid of that first trial as I was and she was just as ill-equipped to try the case as I was. We shared something else. Both of us decided, independently, that if we were going to be trial lawyers we couldn't let fear prevent us from going to trial.


My First Jury Trial.

The decision to go to trial is the essential first step for anyone who wants to be a trial lawyer. My first jury trial came when my love for my client and need for justice exceeded my fear for how I looked. Shirley was an undocumented Mexican house cleaner who was facing foreclosure of a mechanic’s lien for improvements made to her house by fraud. Before suing, the contractor removed the improvements. The foreclosing contractor  received payment in full from Southern California Edison, and was prosecuting the foreclosure to get the money for utility. I filed a cross complaint against both the contractor and So Cal Edison. When trial commenced, I succeeded in getting the foreclosure suit dismissed and moved into the plaintiff’s chair on my cross action. My client had only $15 in medical specials because she could not take time off work to go to the free clinic for more medicine. The jury awarded $450,000 against the cross defendants.


What Are the Steps to Becoming a Trial Lawyer?

I shared these two examples for four reasons: 

First, everyone is nervous and afraid of trial. If you’re not afraid in your first trial (in your first 20 trials) then you don’t care for your client and you have the wrong case. Fear tells you that you are alive. Fear tells you that you want to do well. Fear tells you that you care for your client and the result.

Embrace your fear. Walk toward it, wrap your arms around your fear. As soon as you embrace and acknowledge fear, it goes away. Fear is like a dark secret that cripples you. You are afraid someone will learn your secret. You hold it close and agonize over it -- until you make public the secret you fear to reveal. When your secret is known, it no longer has control over you.

Second, if you truly care for your client and his or her case, the jury will see that your client is worthy of their help, because you cannot hide how you feel from the jury. You don’t have to vouch for your client or their case, the jury will feel it as you present your case. In my foreclosure case our central damage component was emotional distress. I had no experts. No fancy psychologist was going to take the stand, no doctor was coming to testify. Shirley could not afford to visit a doctor much less employ one for trial at $5000 for a half day. All I had was were lay witnesses: three women Shirley cleaned house for, and Shirley's twelve-year-old son. I started plaintiff’s case with three rather toady women telling the jury about Shirley, and how honest she was, and how they had noticed her crying while she worked at their houses. One of the women was the wife of the litigation partner in my firm. She told her husband, "You will take this case. You will help Shirley." Of course he assigned the case to me as the junior attorney in the firm.

I put each of those women on to show the jury that Shirley was worthy. I ended the case with my last witness, Shirley’s twelve-year-old son, who was the greatest witness I have had in almost 200 trials. He wasn't articulate nor particularly intelligent, but he loved his mother and he took the stand in the innocence of youth to tell his story. He lived with his mother and two brothers in a small house in the barrio, but it was his family’s house.

I call him to the stand. I ask, "Are you afraid?"

He looks up at the judge then at the jury and says, "I’m really scared."

I ask, "Who lives in your house with you?"

He answers, "It’s only me, my mother and my two brothers."

"Tell us about your brothers." The defense objects at this point. The judge overrules the objection as bearing on the credibility of Shirley’s emotional distress at the threat to take her home and leave her homeless with three sons.

"There’s Juan who is ten, and Luis who’s six. Luis is special."

"What do you mean?"

"Luis is our baby and always will be. He has downs." At that, tears fill my eyes. The examination becomes emotionally difficult for me, because my mirror neurons kick in and are mirroring the jury’s response.

"Tell me about your mother before 1982."

"She was always happy and does everything for me and my brothers. She’s my mom."

"Did you notice a time when that changed?"

"Yes, but my mother never said anything."

"How did you know then?"

"Well, every night my mother came to our bedroom. All three of us boys slept in one room and mother slept in the other bedroom. She talks to us every night, then we’d have prayers. She tucked each one of us in, kissed us good night, then closed the door. Every night I heard her go into her room. Every night I heard her through the wall crying. Every night she cried."

"Did you know why she was crying?"

"Not until two weeks ago when you came to our house to meet me and my brothers. When you told me why you were there and what these people [he pointed at the defense table] were trying to do to my family I knew. She started crying at the time you said the suit started. She was crying for our family."

"No further questions of this witness your honor." The defense tries to cross examine my star witness. I figure the jury assessed $10,000 for each question they asked trying to discredit my 12-year-old superstar.

My point, don’t be afraid to be emotionally honest with the jury. If you are feeling something, let it show. You must learn to stand naked before the jury, hiding nothing and be absolutely honest with yourself and your jury.

Third, read the evidence code. It is very short. I am surprised by the number of attorneys I encounter who have never read the evidence code, much less the code of civil procedure. Those are the tools of our trade. You should resolve right now, even if you don’t have a trial on calendar, to read the evidence code, the rules of court, and the code of civil procedure. You will gain a lot of confidence by knowing you've done something your opponent has never considered.

Finally, recognize that it does not take that much to answer, "Ready." You need a witness list, an exhibit list, a short summary of the case for the judge to read during jury selection, jury instructions and a verdict form. Each of your exhibits needs to be marked. That’s it.


Answer "Ready," and Just Do It.
All you need to do to be a trial lawyer is decide to go to trial, then care for your clients and care for yourself. You will find doing so makes you invincible in trial. You will not win every case, but you will love fighting the fight for clients you love.

　

Check back each Friday for my posting of new installments of Young on Trial.

I have published two small books to help the ordinary person with employment issues. They are for sale at Amazon.com for only 99 cents each. One is called "Fired!" and the other is called "I Quit My Job!" Please refer anyone who could benefit from direct answers to employees’ questions during difficult times.

Until next Friday, thank you for reading.