Communicating With Your Jury - Using the Opening Statement Opportunity

Today we are continuing our series on the art of communicating with a jury during your trial. It starts when you walk into the courthourse and continues during voir dire and everything you do throughout the trial but the next step in our discussion is your opening statement and both the direct and indirect communication that takes place in that phase of a trial.

There have been volumes written about what to say and how to say it in an opening statement so we will keep it short here.


From the movie My Cousin Vinny

 First Rule: Never go to trial in a case that you think you will lose. The jury can "smell" a trial attorney’s lack of confidence in their case. If you think you will lose, you will lose.

Your confidence in your case must be on display from the very start. It shows in your stance, your demeanor, the words you say in your opening - and how you say them. By the time you are finished with your opening statement, the jury must have one single "take away" thought - that you believe in your client's case to your very bones.

That level of conviction, displayed solidly and with confidence, will make the jury think to themselves, "if their attorney is that convinced, he must really be right."

 Second Rule: Never give a weak opening. No one wants a wimp for a trial attorney. And, just as the jury can smell your lack of confidence, your opposing counsel can smell blood in the water. If you don't think you can win the case, then you shouldn't be in the courtroom with it.

 Third Rule: Never promise more in your opening statement than your evidence will deliver in the trial. There's an old business rule that goes something like this, under-promise and over-deliver. That same rule should apply to your opening statement. You have to say enought to make the jury realize that you are probably going to win the case, yes. But you should also hold back a little, so that you can impress the jury with your evidence even better in the trial.

Promise the jury about your evidence, yes. But then over-deliver on the evidence necessary to win your case with an even stronger conviction expressed in your closing argument.

 Fourth Rule: Keep strong eye contact with your jury. If possible, try to avoid using any crutches during your opening statement. Nothing spells conviction quite like standing in front of the jury box and delivering your opening statement bare naked - meaning no notes at all, merely telling them what the facts are that you are going to prove and why you ought to win and why your opponent ought to lose.

Fifth Rule: Innoculate the negative evidence before your opponent emphasizes it. Every case has both good evidence for you and bad evidence against you. If it didn't, there probably wouldn't be a trial occuring. So, in your opening you must deal with it.

 Don't dwell on it, but explain it away with the same conviction and certainty that you use in talking about your "good" evidence too. You can't ignore it for one simple reason: your opponent will be beating that drum loud and clear because it is all they have got to fight you with.

If you use your opening statement to set the foundation of your personal credibility, then you can begin to build the framework for the jury's acceptance of your truth throughout the trial, as they use your reality of the case to reach their verdict later.



Introduce your trial theme and tell your client’s story in the process. Your trial theme must be appealing, simple and fit the evidence. Most of all, your opening should simply tell your client’s story and explain how the law means that they will find in your favor. "Your favor" is how we put it for one simple reason: When the jury finds in favor of you, they will find in favor of your client.

Ron Burdge

http://www.thelawcoach.com/

Helping consumer lawyers win cases

for over 30 years.

Lawyer Coaching Topics We Cover, click here



The E-Myth Attorney, why most legal practices don't work and what to do about it

I just got back from several days out of town last week and something extraordinary happened during the 6+ hours I was in the air. This is way off topic so grab a cup of coffee and let me tell you about it.

In November 2007 Janet Varnell and I discussed how to apply Michael Gerber’s E-Myth principles to Consumer Law lawyering in a presentation titled “Lawyering E(entrepreneur) Myths” at the annual NCLC Consumer Rights Litigation Conference in Washington DC. Little did we know that within four years Gerber would publish “The E-Myth Attorney: Why Most Legal Practices Don’t Work and What to Do About It,” a companion volume to his original “The E-Myth” book.

We won’t take credit for it, certainly, but it turns out that Janet and I were right in our thoughts on how the E-Myth principles could be applied to Consumer Lawyers and many of the lawyer E-Myth ideas we talked about back then have made it into print.

While they do teach us how to be lawyers, they don’t teach “How to Run Your Business” in law school. Gerber’s new book should be mandatory reading for third year law students. It is that good. And if you are a struggling lawyer looking for a way to free up your life and get on solid financial footing, this book is for you. It is the book that Janet and I should have called Gerber up and offered to help him write.

But we didn’t. That credit goes to Robert Armstrong and Sanford Fisch, two attorneys who were inspired by the first E-Myth book. Now you get a chance to look over their shoulder and find out how to apply the E-Myth principles to successfully running your own practice. It doesn’t matter if you’re a young pup fresh out of law school or an old dog like me — there’s plenty here to apply to every stage of your law career — and it’s never too late to teach an old dog a few new tricks.

This book is full of so many great tips and advice that it should be on every Consumer Lawyer’s night stand. Don’t sit it on your desk and promise yourself that you’ll read it right after you clear that stack of papers next to it. Don’t kid yourself. Get away from the office and grab some quiet time when you can take this thin 178-page volume to heart and mind.

It’s a quick and easy read but the principles in it will both inspire and aggravate you. Inspire you because you’ll likely find yourself saying “Yeah, that is absolutely right” and aggravate you because you add “why didn’t I think of that years ago?” Either way, I promise you will get more out of this book than you likely learned about lawyering in your entire first year of practice. In fact, you’ll probably recognize for the first time some of the many mistakes you made at the start of your legal career and also see, maybe for the first time, how you could have (and will from now on) avoid them.

Some of the chapter titles include “On the Subject of Money,” “Managing the Unmanageable,” “Your Client Loves You, He Loves You Not,” “What time Do You Have?” and “The Reason Behind the Work.” Each of those, and all the other 26 chapters are invaluable.

There are chapters that explain why lawyers aren’t business people and how to fix it, the importance of knowing your numbers, the good and the bad and the ugly of handling people-clients-associates-and-others, the four kinds of money, how to handle a prospective client who asks for a fee estimate at the beginning of a case, why a business plan matters, the importance of time to a lawyer (hint: it’s a lot more than just Abraham Lincoln’s quote), why systems matter in a law practice, what to do when change comes to your practice and to your life, and, of course, the purpose behind your law practice.

The authors talk about so much that this review can’t possibly do the book justice. So instead I’ll just tell you to get the book and then pay particular attention to the wisdom found on these specific pages: 16-22, 26, 29-30, 32-43, 44, 55, 67, 73, 93, 99-100 — oh heck you should pay attention to the wisdom found all thru the book.

At the beginning of this review I said that they should make this required reading for every third year student. Actually that’s wrong.

It should be the first thing a new law student reads at the start of law school - so they get exposed to the importance of the business side of practicing law right away.

And it should also be the last thing a graduating law student reads - so that they can then see and better understand the business principles it teaches in the light of the legal training they have completed.

As Professor Kings field said in the 1973 movie, The Paper Chase, to his new law students, “You come in here with a skull full of mush and, if you survive, you’ll leave thinking like a lawyer.” If you read this book, you can start thinking like a business person too. And if you don’t think like a business person too, well, then thinking like a lawyer won’t be enough to save you from yourself.

As I read this book on the airplane last week, I recalled Janet and I saying many of these things to the 50-plus attendees of that Doing Well While Doing Good seminar back in 2007. It felt good to know that Janet and I were right in some of our thinking about the E-Myth principles and their application to Consumer Lawyers. At the same time, there was so very much more to it.

Get this book. Read it. See for yourself.

And if you know someone graduating from law school, give them your copy after you read it. They are going to need it.

Ron Burdge
www.TheLawCoach.com
Helping Lawyers Do Their Best Everyday

Communicating directly with your jury in voir dire

Today we are continuing our series on the art of communicating with a jury during your trial. From the moment you are both in the same room, in fact when you are walking down the hallway on your way to the courtroom, the communication is occurring.

It just isn't as easy as Perry Mason made it look.



We talked about the basics and the importance of your communication before. We followed that with your "indirect" way of communicating with your jury too. Now, let's talk about the direct communication you can do during voir dire.

Of course, your questions and conversation (and that is what it should be) will revolve around the people and issues in your trial and those will often be unique to each particular trial. But there are some general guidelines that can apply to the voir dire in most trials.

Remember foremost that voir dire is the time for you to make friends with your jury. Do not cut it short and ask every question with a smile and warm expression on your face. You may naturally appear surprised at some juror comments but you should never appear dissatisfied, irritated or upset with a response.

You should be genuinely interested in learning all you can about each individual juror so ask open-ended questions that probe responses and promote conversation. Finding the right open-ended question can be extremely difficult so plan your questions out ahead of time so you can minimize the awkwardness of fumbling for the next thing to talk about.
At the same time, though, your manner should be relaxed and appear to be completely "off the cuff" and not planned out at all. The most effective voir dire should leave the jury thinking that you have nothing but a very bare outline of what you were interested in and you didn't stick to it.

One good technique is to outline the topics and areas that you want to cover. Ignore the language you want to use in the exact questions for the moment. Your starting point is just sort of a bullet list. After you are satisfied that you have everything covered, next start writing out the list of questions - phrased as if you were asking it in front of the jury. Write out every question you think would matter. When you are completely done and satisfied that you have covered it all thoroughly, read through your list one more time and put it away. Then, the day before the trial is to start, go over the list again. Finally, throw the list away.

Okay, that will be hard. But remember that it is more important to have the jury like you that it is to cover every question verbatim. Voir dire is about getting to know the jurors, yes, but it is also about getting them to feel comfortable with you and begin to like you and your manner and style. All of that is far more important than covering every little detail in every question on your list. This exercise (writing an outline and then all the questions and then discarding it) is designed to put the material in your mind in an organized fashion and not to give you a paper crutch to use during voir dire.

You can use humor as long as you do so carefully, lightly and tastefully. Be human and show compassion and attentiveness. Listen. If you don’t listen, you don’t learn about your jurors. If you don’t learn about them, you will seat the wrong jurors. And you know what happens when you seat the wrong jurors in the jury box.

Listening and engaging in conversation is critically important. Find out as much as you can about each juror. Use the customary questionnaires as a springboard for more conversation. At the same time, you have to strike a balance between inquiring and appearance obviously probing. The balance should be struck in favor of casual curiosity. Think of it as being a slightly more formal version of a dinner party where you get a chance to meet someone you do not know and learn more about them - and the object is for you to learn about them and not the other way around.
Knowing your case is critical. Keep it in mind and look for the chance to use juror responses as the opportunity to tie in your case proof and claim elements with juror experiences and responses. That can build a bridge between the jury's common experiences and the case you are going to present. The objective in this technique is to make your case personal for the jury, to get them invested in your side of the case so they want to help your client win.
And if your court process has you excuse a juror in front of the panel, always look at the juror and thank them in the same sentence that you exercise your peremptory. The rest of the panel will appreciate your courtesy and professionalism. If you excuse them only while speaking the judge, the rest of the jurors may think you are cavalier or, worse yet, don't care at all about them.
 
We could go on a long time about the importance of voir dire and the many books and articles that have been written, but we hope these few tips are enough for now.
 
Next time we will talk about your direct communication with the jury in your opening statement and why you need to be wary of the jury's sense of smell.
 

Ron Burdge

http://www.thelawcoach.com/

Helping attorneys win cases for their clients for over 30 years.

Communicating with your Jury the Indirect Way is important too

At different stages of a trial, the trial attorney gets to directly address the Jury, but you have to mindful of the indirect communication that is constantly occurring throughout the trial between the attorney and the Jury. This is the second part of our series on communication techniques and tips for the trial attorney.


Throughout the trial, always show utmost respect and courtesy toward the jury and the judge. Jurors expect it and anything less will offend the jury, even if the judge overlooks the missteps that will occur in the heat of a trial.

A level of “professional” courtesy and respect should always be shown to your opponent and all other persons in the courtroom. This is not the same thing as “utmost” courtesy and respect. Jurors know that in a civil lawsuit the two sides do not agree on something and are fighting each other over it, with the expectation that it commonly involves money.

The result is that the jury expects to see a fight. A courteous and professional fight with words, yes, but a fight nonetheless.

Control your communication with the jury. A trial is about the evidence and witnesses that are presented to the jury for their consideration. Although it should not be about the attorneys or their personal styles, human beings can not help but notice and, at times, be influenced by nonessential and extraneous information. At all times, control your dress, style and mannerisms.

If the jury thinks you are not genuine and sincere with others in the courtroom, then they may not accept your evidence as genuine and sincere - or as truthful. The result is that you may have great difficulty communicating your evidence to the jury in an accepting manner. And that indirect, subtle communication may have occurred without the attorney being fully aware of it at all.

Next time we'll talk about the direct communication with the Jury that occurs in a trial, starting with the Voir Dire questioning of the prospective jurors - where the jury gets their first view and impressions of the attorneys in the case. And the Judge.

Ron Burdge

www.TheLawCoach.com

Helping lawyers win cases for over 25 years.

Communicating with your Jury starts before you talk and continues after you sit down

Today we'll start a series about Communicating With Your Jury in a trial. It happens in several different ways and at several different specific times too.

When does it begin? Your communication with the Jury starts before you talk. From the moment you are both in the same room, in fact when you are walking down the hallway on your way to the courtroom, the communication is occurring.

Every physical aspect of you is being inspected by the jury pool. Your clothes, hair, demeanor, face, attitude, gait, style - everything. Before the trial starts, you are on display and the Jury’s perception of your competency is already on trial. You are “on trial” from the moment you arrive at the courthouse, long before you enter the courtroom, and long before you stand up to begin your voir dire. Knowing that fact can make a difference before your trial even begins.

Your acceptance and your credibility with a jury starts with how you look and how you act. It solidifies with what you say and how you say it.

As a trial attorney, you are both an actor and the director of the stage play that is the trial itself. The jury is the audience. Whether the audience applauds you with a verdict (you win) or throws tomatoes at you (you lose) will depend on how well you present both yourself and your version of the play. The version of the play that you present, of course, is your client’s version of the truth.

Ironically, your opposing counsel is presenting his or her own version of the same play (and their truth) and the Jury is watching both of them unfold in roughly the same time frame. Ultimately, they will applaud only one side’s presentation. They will only believe one side sufficiently to award their verdict.

The prevailing side’s version of the truth becomes, in the process, the truthful reality that is accepted by the Jury and on which they award their verdict.

In most courtrooms you will have three chances to communication directly with the Jury - voir dire, opening statement, and closing argument. You may also get a rebuttal argument, for a final and fourth opportunity. Each of those presents a uniquely different chance to communicate from the communication that will occur during the vast majority of the time that the trial will consumer each day. For that reason, the indirect communication that occurs during a trial must not be ignored. We'll talk more about that next time.

Ron Burdge

www.TheLawCoach.com

Helping lawyers win cases for over 25 years.

Finding and Using Social Media Evidence in Court

We just got back from presenting "New Media in Consumer Transactions and Its Implications for Litigation" at an out of town seminar for lawyers on Consumer Law litigation topics and it was a lively time. If you've been wondering how to find social media evidence that can help (or hurt) your case, there's lots of tips and links that were shared with the group.

You can read the topic's paper given to the attendees by clicking here (limited time only, so get it now) for a free download to read offline later.

Here's an outline of major areas covered (lots of subtopics in each):

A. Understanding Consumer Transaction Media Methods


B. Common Industry Listing of Social Networking Sites

C. Other Jury and Individual Person Online Research Sources

D. Social Media and Litigation Implications

E. How to Subpoena Facebook and MySpace Data

F. Relevant Statutes and Ethics Opinions
 

Ron Burdge

http://www.thelawcoach.com/

Helping Lawyers Help Clients, Since 1978.

Business books to read to run your law practice and keep you sanity - my suggestions are ...

Recently we were asked what business books we had on our bookshelf that might be useful to read when it comes to running a law practice (we add “and keeping your sanity”). Here’s the list, in no particular order of importance or relevance below.

Some of these might strike you differently, of course, and you’re welcome to let us know any others that you think were particularly useful in handling the business side of your practicing law – we’d love to hear what others think too. Many of the books on our shelf are not law-centric since there really aren’t a whole lot that are and general marketing and business discussions are usually quite easily translatable to the business of practicing law. Also, many of these books deal with non-business trial practice issues and sometimes had great nuggets of business wisdom planted in them, although not the primary focus of the book.

Here's our list – what are you reading?

The E-Myth Attorney (of course) by Michael Gerber, et al, which I wrote about before at this link: http://thelawcoach.blogspot.com/2011/05/e-myth-attorney-why-most-legal.html (there’s lots of links in the blog to other resources too)

The Art of Profitability by Adrian Slywotzky, a Zen like novel approach to understanding the importance of profit to a business – I’ve gifted copies of this book with several attorneys and I still have my original thumb-worn copy.

Tell to Win by Peter Guber, 2011, the powerful power of telling a story to influence and lead, recently suggested to me by Louis Green (Ok) and I’m thoroughly enjoying the read right now. Although I’m not done with it, it clearly belongs on this list.

Marketing Outrageously by Jon Spoelstra, my favorite part: Employees to Kill For

Reptile by David Ball and Don Keenan, it really is the key to a juror's heart and mind. Expensive book but there’s nothing like it to understand how a jury really thinks. If there was one button you could press to get the jury to do what you wanted, wouldn’t you want to know what it was?

The Power of Six Sigma by Subir Chowdhury, I’ve read probably half a dozen books on the topic and this is nearly the shortest and definitely the clearest one on the importance of error-free practices. Combine this idea with the E-Myth and you’ve got a recipe for winning (not Charlie Sheen style either). If you understand six sigma and figure out how to apply it to your practice, you’ll only get better and more profitable.

All Marketers are Liars by Seth Godin, very well known author, great explanation on the value of marketing the right way, favorite parts of book: Fiji water and Who's Your Nanny? Entertaining and easy to read and well worth it – all of his books are

Made to Stick by Chip Heath and Dan Heath, why making a product or an idea “stick” in the consumer’s mind is all the difference between financial success and not. My favorite part: The Curse of Knowledge

10 Ways to Screw Up an Ad Campaign by Barry Cohen, you need to understand advertising before you try it. Favored pages: Why Bother - I can't Outspend the Competition (good news, you don’t have to) which I rephrase as “the Mills – the bigger they are the harder they can fall”

Making Your Case by Scalia and Garner, understanding an appellate mind. How can you go wrong listening to Garner (who is terrific) and opening the mind of SC Justice Scalia?

Team of Rivals by Doris Goodwin, it’s good to understand the value of putting yourself in the place of others and this true story of Lincoln is not only a great history read, but if you read between the lines you can see the methods and value of working with others and getting others to work with you (ie you and cocounsel and you and your jury, etc)

The Long Tail by Chris Anderson, the first to really explain how selling less can be selling more – think getting the right clients not the most clients and why niche marketing can get you there

Never Wrestle with a Pig by Mark McCormick, the importance of picking your battles is only part of it, my favorite pages: Feed Your Enemies. This guy wrote What They Don't Teach You at Harvard and, later, What They Still Don't Teach You at Harvard too

Small Giants by Bo Burlingham, nice book on why “big’ isn't always better and how the giant in your niche of law can be you. Read it and maybe you won’t want to have sixteen lawyers and twenty paralegals to supervise

The Maxwell Leadership Bible by John Maxwell, yes it’s a bible. That one probably caught you by surprise, right? Two reasons it’s on this list. First, it’s by Maxwell and he’s a great business thinker who’s on the same level as Seth Godin (and that’s really good). Second, it’s the bible. The eternal story of everything right and everything wrong, everything moral and everything not. I’ve gotten more trial ideas from church sermons and bible stories that any other single source. And there’s a lot more than one or two business concepts rooted in biblical passages too.

Words That Work by Frank Lutz, the simple fact is that people don't hear with their ears. Maybe they ought to, but they don’t. You don’t. I don’t. It’s about time we lawyers realized and acted on it. Smart defense attorneys (and a lot of politicians) already are.

The Imperial Cruise by James Bradley, another history book that tells of a true adventure in the politics (and value) of subterfuge. An interesting dichotomy taught in the politics and history of the times

Duct Tape Marketing by John Jantsch, clever title and content that gives you ideas and approaches to marketing that really work.

50 Prosperity Classics by Tom Butler-Bowden, 50 classic books on the human potential for achieving prosperity distilled down to 5-7 pages each. When you think you can’t handle it any more, pick out a chapter for encouragement, any chapter. Did you know that one of the most financially successful and well-known authors in the world hit rock bottom first and was once broke, homeless, without a family, and trying to decide between sleeping another night in the public library back rooms or buying a gun from a pawn store on a Cleveland street so he could just end it all? The Moral of this book? Don’t let the SOB’s get you down.

Great Negotiators by Tom Beasor, 280 pages of mostly one and two page tips on how negotiators think - and they are all great advice

The Journal of the Legal Writing Institute, (it’s also online here: http://www.journallegalwritinginstitute.org/) published by the Legal Writing Institute (full disclosure: I'm a member), this is simply the best articles on the best legal writing ideas and practices, various authors. Recent ones? When the Truth and the Story Collide-the Limits of Legal Storytelling, the Elements of Rhythm, Flow and Tone to Create Persuasive Acoustic Experience in Legal Writing, an Empirical Analysis of Writing Style, Persuasion and the Use of Plain English - this is simply the best articles around on the topic of the skills and psychologythat go into good legal writing

Of course, there are lots more business books out there that deal with running a law practice and sound business principles in general, so this is by no means a complete list. You will have a favorite that you've read, no doubt, that is not on this list. Let us know what it is and in the future we'll revisit this list and update it.

But for now, this list is a pretty good place to start for the newcomer to the topic of business books to read to run your law practice and keep your sanity.

Ron Burdge

www.TheLawCoach.com

Helping lawyers succeed since 1978

Free Seminar on the Importance of Web Site Content

If you haven't heard of him, Jay Fleischman is very internet savvy and he's offering a free 90 minute web conference presentation to talk about the importance of web site content to your law firm's bottom line.

I strongly recommend you consider tapping into this free opportunity.

The seminar is called "Why Content Matters - And How to Make Your Mark" and he'll be talking about how you can get off the idea of spending a lot of money and instead concentrate on getting your content into a quality level to spread yourself and your impact (and your marketing opportunities) over the net - okay, casting a wider net so people can find you.

He'll talk about:

* the role of content in search engine rankings

* how online content affects consumer perception of expertise

* types of content used by consumers of legal services to make a hiring decision

* how to create a content hub

* secondary content outposts (JDSupra, Ezinearticles, press releases, etc.)

* content promotion strategies (Twitter, LinkedIn, Facebook, Digg, Tipd, etc.)

The webinar will take place on Wednesday, February 16, 2011 at 1:00pm Eastern time. There's no charge to sign up and attend. He promises not to try to sell you anything - just to give you information that can help you get noticed better on the internet.

Just go to this URL: [click here or cut and past the link below into your web browser]

http://www.legalpracticepro.com/why-content-matters-webinar/?awt_l=H55KA&awt_m=L8RKOLzxcrRb1R

Jay is, quite frankly, well worth paying to listen to - and here's a chance to get it for free.

Ron Burdge
www.TheLawCoach.com
Helping lawyers do their best, since 1978.

Referrals Matter More Than Ever - Say Thanks More Than Ever Too

Okay. So the economy is down and business is still not back to where it was a few years ago. Don't quit just yet.

Pay attention to your referrals. Those are the best sources of new clients you can have. Why? Because when another attorney refers someone to you they are saying that they know you and they trust you. And whey they say that to a prospective client of their's - it's the best thing they can say about you.

So, don't forget to thank them. In these tough times, you need every new client you can get. Be sure to let the referring attorney know how much you appreciate the fact that they thought about you, if you want to keep those referrals coming.

A personal handwritten thank you note that is written on quality stationary or a quality oversize note card, and then sent through the US mail, says volumes about your courtesy, appreciation, and professionalism. Emails are nice, but they don't give that extra emotional feeling that a human being gets when they open up a quality envelope, unfold a quality printed thank you card, and read a personal hand written message of thanks on the inside.

It says you also care about them. And you appreciate them. And you won't forget them either. And that reciprocal thought makes that "thank you for the referral" card worth its weight in gold.

Ron Burdge
www.TheLawCoach.com
Helping lawyers help clients and win cases since 1978.

A Different Closing Argument (a Guest Post)

For a different approach to handling a closing argument, here's an article that Elliott Wilcox has kindly allowed us to reprint here. It's a different idea to consider in your next case. If you don't subscribe to his Trial Tips Newsletter, I'd highly recommend it.

“The -Best- Closing Argument?”

by Elliott Wilcox

How do you structure your closing arguments? If you're like many attorneys, you probably take advantage of primacy to start strong and tell the jurors how strong your case is and show them why you deserve to win. Normally, that's exactly how I coach law students and trial lawyers to structure their closings. “Start strong,” I'll say, “disclose your weaknesses in the middle, and then finish strong.”

But... That's not necessarily the “best” way to outline your closing.

Trial advocacy is art. Unlike mathematics or science, where only one correct answer exists, art doesn't necessarily have a “best” way of doing something. Working from the same palette, Cézanne, Picasso and Dali each created radically different depictions of the human form, but none of their masterpieces can objectively be called “the best.”

The same is true of closing arguments. There are many different approaches, but we can't objectively say one of them is the “best” way of structuring an argument.

So, with that in mind, let me offer another approach for structuring your closing argument.

Rather than starting with your strongest argument, then saying “But, here's the weakness with our case,” you might want to consider starting with your case weakness before discussing the strongest part of your case. That's because the word “but” indicates, “Put aside what I just said, and pay attention to what I'm about to say.”

For example, let's pretend that during your semi-annual review, your boss tells you, “Overall, your job performance is excellent, but... your communication skills need improvement.”

If you're like most people, you probably fixated on the negative portion of the evaluation, even though the overall evaluation said you were doing an excellent job. It's just human nature - when we hear the word “but,” we tune out the previous statement and focus on what follows. Don't believe me? Just imagine the person you love most in the world telling you, “I love you more than anything else in the world. You're the most wonderful person I've ever met. I can't imagine life without you. But...”

All it takes is one word and you've completely forgotten about how wonderful you are, haven't you?

With that in mind, you may want to reconsider the structure of your closing argument. Many cases have been won with arguments that basically said, “We have a strong case that deserves to win... BUT, there are a few weakness in this case that you should know about.” If you're afraid this structure may increase the risk of jurors placing greater focus on your case weaknesses, you may want to re-write your argument like this: “There are a few weaknesses in this case that you should know about... BUT, we have a strong case that deserves to win.”

You probably won't want to try this format during opening statements, because at that point the jurors don't know anything about your case yet, and you'll want to fully maximize the power of Primacy by establishing a strong, positive image in your jurors' minds. However, by the time you reach closing arguments, the jurors have heard all of the testimony and seen all of the exhibits in your case, so Primacy doesn't play as big a role.

By the time you reach closings, the only thing left is argument. By discussing your weaknesses first before talking about the strength of your case, you may enhance your credibility with the jury and help them become more receptive to your arguments.

The important lesson is that there's no “best” way to craft your closing argument. Don't get locked into thinking there's only one way to structure your arguments or that there's a “magic bullet” that will work in every trial. Each trial is different, each client is different, and each jury is different. As the trial lawyer, it's your job to discover which structure you should use and which arguments you should make to create your “masterpiece” closing. Good luck!

Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com

Ron Burdge
www.TheLawCoach.com
Helping lawyers win cases since 1978.

You Can Get More Done by Doing Less

Laura Vanderkam, over at bnet.com, has a great article up right now on how to get more done when you have less time to do it in. It's a simple technique we've heard before but she adds some explanation that is remarkably accurate too.

Turns out that if you use a very short "to do" list, it helps you actually get more done than just those few items you put on your list.

Obviously, it helps you focus on priorities far more accurately when you tell yourself you will limit yourself to getting just a few things done - instead of that massive list we all tend to end up with, where we just chip away at what rises to the top of the list each day, whether it is the most important or cost-effective thing to do or not.

Take a read at "Want to Get More Done?" - it's well worth it.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers get more done since 1978.

Court Cancels Sale of Haunted House

It's the perfect story for Halloween. In 1989 Jeffrey Stambovsky bought an old Victorian house on the banks of the Hudson River at the bottom of a dead end street in the Village of Nyack, NY. At first he thought he got a good deal. But he didn't know what the seller knew.

It was haunted.

You can find the court case in a reported decision - 169 A.D.2d 254, 572 N.Y.S.2d 672 is the citation where you can find the case in a lonely law book hidden away on a dusty shelf in the dark damp corners of an empty law library that echoes your footsteps down the hallway as you search among the stacks of musty leather bound volumes no one reads anymore, tucked away in rooms no one dares to enter.

As the court of appeals laced its decision with ghostly references to literature and lore, the court also did something that no other court seems to have ever done - it held that the home was haunted as a matter of law. No if, and or but about it. The poltergeist, it seems, was legally declared to be real. Or was it?

Quipped the judge, "I am moved by the spirit" as he proceeded to declare that "From the perspective of a person in the position of plaintiff herein, a very practical problem arises with respect to the discovery of a paranormal phenomenon: 'Who you gonna' call?' " Of course, we all know the answer to that one.

The buyer had signed an "as is" clause so the seller, Helen Ackley, argued to the court that there was nothing the buyer could do. He certainly couldn't sue her, she said, and the trial court agreed. Apparently the buyer had never asked if the house was haunted so, technically, the seller never really lied or hid it from him. He just didn't discovery it until he moved in. Haunted by the seller's treacherous deceit, the plaintiff appealed.

Like the 3 ghostly apparitions residing in the home, the appellate papers worked their way through the twists and turns of the legal system until they ended up on the desk of Justice Rubin of New York's Supreme Court, Appellate Division, First Department. Then, on an undoubtedly stormy summer night in 1991, no doubt with a headless horseman effigy hanging from a tree out front in the dark, Justice Smith sided up with Justice Rubin and together they crafted their wiley words that would undo the heartless seller's dirty deed.

No doubt with a straight face, the appellate judges noted the difficulties a buyer would face if the ghostly-burdened seller was allowed to avoid liability by her silence. "The notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest." And so they proceeded.

With citations to the ghost of Hamlet from Shakespeare, joined by Prosser on Torts, and muddied with actual case law to support the fearful logic of it all, Justice Rubin noted the difficulties faced by all home buyers if the seller's "as is" clause allowed her to sweep under the rug the loud proclaiming she had made (both nationally and locally) about her home's regular (and irregular) hauntings, made in the years before this unsuspecting buyer came along.

"Applying the strict rule of caveat emptor to a contract involving a house possessed by poltergeists conjures up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale," announced the court of appeals. A normal "subject to inspection" clause might never be the same.

In a written decision that resulted in 17 published points of law [which lawyers call "headnotes", not to be confused with the headless notes of less worthy court decisions, no doubt], the court ruled that since the house was haunted with poltergeists, then the seller did not deliver the premises "vacant" as required by the sales contract. Ahah, with the contract breached, a remedy had to be found.

To that end, the court declared the contract rescinded by the Law of Equity - and with that the seller's ownership of the home arose like a zombie from the grave to haunt her again. And the buyer's purchase was cancelled as the court ghoulisly called the sale "a most unnatural bargain."

So, if this Halloween season you are lured into buying a house without knowing it's haunted, you might want to call the fabled lawyer who got this seller back his money. He went on the become the town attorney for a nearby New York community - presumably where there are no poltergeists.

As for the seller, Helen Ackley, she finally sold the house and moved to Florida in the early 1990's. And just by a curious coincidence, perhaps, just across the river from the haunted house is Tarreytown. Sound familiar? It should. All little children have heard the story. That's where the famed Sleepy Hollow is - the one described by Washington Irving's Halloween tale of the headless horseman, "The Legend of Sleepy Hallow."

Burdge Law Office
http://www.burdgelaw.com/

Helping consumers protect themselves everyday, even from poltergeists.

Special thanks goes out to Nadine, a great friend and source of the case citation above.

The photo above is copyright by Warner Bros. from their 1940's movie "I Walked With a Zombie"

Part 5. How Your Web Site Can Make You Look like a Buffoon

This is the last in our 5 part series.

Last time we talked about the danger of broken links.

The first installment (Make it Hard to Contact You) can be read by clicking here.

The second installment (Stay Above the Fold) can be read by clicking here.

The third installment (Forget About Your Site Map) can be read by clicking here.

The fourth installment (Links That Don’t Link) can be read by clicking here.

Now, here’s the fifth and final installment . . . Rule #5. "Stoopid Speling Erors"

Okay, so now your prospects can contact you easily. Your most important content is on the top of your pages. Your site map is all straightened out. And your links work again.

But did you check the spellilng (pun intended) on all your web site pages? Remarkably, most lawyers don't.

Misspelled words in your content might sound like nitpicking, but it aggravates people who spot them and more people spot them than you think. Worse yet, they are spotted most often by persons with higher education (read, more discretionary cash on hand to hire a lawyer with).

All those nice pages of really good content and it wasn’t proofread carefully enough to avoid the spelling errors? And you didn’t know that the word “there” could end up as “their” in that voice recognition software you dictate with either, did you?

Worse yet, misspelling names of people or places can be highly offensive to some folks. And don’t try to proofread it yourself. After all, you’re the one who made the mistake in the first place.

Lots of studies have shown that writers often miss the same error they made when they were writing the article in the first place. So have a "second set of eyes" do your proofreading. You can use computer programs to spell-check, but there's nothing like a professional reader to catch syntax, grammar and spelling issues for you.

These 5 common problems we've been discussing are not all of the errors that a lot of web sites have, but they are the high points. And if you just fix these, it’ll put you ahead of 90% of the rest of your competition. And that is the whole point.

Ron Burdge

www.TheLawCoach.com

Helping attorneys help clients, since 1978.

PS: The ABA notes a few other frequent errors in this 2006 article here.

Part 4. How Your Web Site Can Make You Look Like a Buffoon

This is the fourth in our 5 part series. last time we talked about how some web sites make it hard to contact you. The first installment (Make it Hard to Contact You) can be read by clicking here. The second installment (Stay Above the Fold) can be read by clicking here. The third installment (Forget About Your Site Map) can be read by clicking here. Now, here's the fourth installment, Broken Links Stink.

Rule #4. Let’s put up links that don’t link.

Sure, everyone just loves to see those “page not found” messages, so let’s have a web site with links that don’t work or pages that aren’t listed in the Site Map at all so the Google spider can’t find them either.

If a prospective client takes the time to find your site and then can’t find what they want in only one or two clicks, they think you could be a buffoon. Check your outbound links to make sure they all work. And then six months later check them again to make sure other people’s web sites are still out there to even be linked to.

And make sure your links are to web sites that are relevant to your site visitors. Links to irrelevant sites can actually hurt you because it can resemble a link farm. And search spiders hate link farms.

A link farm is a web page whose sole purpose is to post outbound links to as many other web sites as they can get someone to pay for. Search engine algorithms don’t like them because they have been programmed to know that it’s just an effort to make them think that the target site pages have more meaningful “real” links to them (from non-farmers) than really exist. In other words, they know a con when they see it.

There are software programs all over the net that check links on your page for free. An easy one to use, which checks the first 60 links on a web page for free is Webmaster's Link Checker. It's quick and easy to use.

So check your links regularley. And that reminds me of another common problem. We'll cover that one next time.

Ron Burdge
www.TheLawCoach.com
Helping lawyers help clients. Since 1978.

Part 3: How Your Web Site Can Make You Look Like a Buffoon Without Really Trying

This is the third in our 5 part series. last time we talked about how some web sites make it hard to contact you. The first installment (Make it Hard to Contact You) can be read by clicking here. The second installment (Stay Above the Fold) can be read by clicking here. Now, for Rule #3, Forget About Your Site Map.

Rule # 3. Make a web site, but don’t make a Site Map.

You go through all this trouble to create great content, launch the site and then realize that Kevin Costner lied. If you build it, they won’t come.

Well, not all on their own anyway. Visitors need help. That's what search engines are for. What no one may have told you is that search engines need help too, and that's what they use spiders for.

Search engine spiders are what the search engines send out, little programs that crawl through a website and report back to the search engine what they find. You can make their job easier.

Simply put, the search engine has to be able to find you if you want people to find you on search results like yahoo and google and bing, etc.

And one of the fastest and easiest ways for that to happen is to put a Site Map page on your site. Search engine spiders love it. So if you don’t have a site map page on your site, the search engine spiders will stop crawling your site and just give up and go on to your competitor’s web site.

The Site Map page is just a page that lists the names of every one of your web site pages with a link to each one of them too. It is kind of like a map to a city, the city being your web site pages. The site map makes it easy for search engine spiders to find and "index" every one of your pages, meaning to tell the search engine what the content is that is on each web site page.

And when the search engine knows what is all over your web site, that increases the odds that your content will be fully considered when someone runs a search to find you and your content. That means you rank higher in search results and all of your pages get put into that great Mr. Googler in the sky who answers all the search inquiries (or Ms. Yahoo, or whatever they want to call it).

Why make it hard for search engines to read your content when you can make it easy?

If your web site doesn’t have a Site Map, you look like an unorganized buffoon and that’s worse than looking like an ordinary buffoon (not that there’s much difference anyway).

And the links on the Site Map remind me of another common problem, but we’ll talk about that next time in part 4.

Ron Burdge

www.TheLawCoach.com

Helping attorneys help clients, since 1978.

Part 2, How Your Web site Can Make You Look Like a Buffoon Lawyer Without Really Trying

This is the second in our 5 part series. last time we talked about how some web sites make it hard to contact you (to read the first installment on Rule #1, click here).

Since then, coincidentally, I was in Novi, Michigan on a trip and needed to contact a lawyer who had just entered a case so I searched and found their web site and started looking for a phone number. Not on the front page, which is where I thought it would be. Not on this page. Not on that page. So I looked for the "contact us" link, clicked, and there it was finally.

Now it may seem obvious that the phone number would be on the contact us page, but to the average consumer looking for an attorney's help, if your phone number isn't right out in the open on every page, if it takes several clicks to find your phone number, then you are just putting roadblocks between you and that prospective client. Why do you want to do that? Consumers don't want to waste time looking for something they can't easily find.

I noticed something else about that website too. It violated rule #2, Stay Above the Fold. The front page just went on and on and on, scrolling down for what seemed like forever.

When you look at a newspaper you can see that the headline is at the top and grabs your attention. When you unfold the paper you see the rest of the front page. The top half is called "above the fold" and the bottom half of the page is what's called "below the fold" in the newspaper business.

Well, your website page has a "fold" too. Above the fold is whatever shows up on the screen when your web page loads. The stuff you have to scroll down to read? That's all "below the fold" and that's where your problem is.

Your important contact info, name, phone number, maybe your location or logo - the important info about you should NOT be below the fold for one simple reason.

You've got "15 and 2" to sell yourself to that surfing potential client. In other words, after landing on your web site, that prospective client will likely spend no more than 15 seconds and 2 mouse clicks, max, to decide if you are what they are looking for. They may not bother to scroll all the way to the bottom of the web page to find your phone number - if it's there at all. And they certainly won't click around in search of it either - or anything else they are looking for.

If you put any important info (like your phone number) below the fold, and your web site visitor doesn't take the time to scroll down to find it, they won't call you at all.

Now, we aren't saying don't go below the fold with more info at all. Indeed, there's a lot of value in having content that is complete, whether it goes below the fold or not. Just be careful what you put where on your web pages.

Below the fold is where lawyers and law firms often put their normal "business" type links, such as About Us, Site Map (you do have one, don't you?), Terms of Use, etc. And that reminds me of Rule #3, but we'll get to that next time.

For now, make sure your most important info on your web site pages is above the fold where your visitors can find it and read it quickly and easily.

Ron Burdge

www.TheLawCoach.com

Helping lawyers help clients, since 1978.

Small Law Firm Break-Even Analyzer

With a tip of the hat to Texas attorney Jim McMillen, a Consumer Law attorney in Houston, we just learned about the Small Business Break-Even Analyzer program. It's free and it takes info about your small business and generates a month by month table for the next five years that can predict when a business can reach a break-even point.

While not intended for lawyers starting out on their own, the program can be used for it and can help young lawyers put on their entrepreneurial hat and plan their business future much better than the old pen and paper approach.

It's just one of several online services you can get free from Small-Business-Ideas.net. You can comjpare different scenarios, see what happens when you increase (or decreas) your income or expenses, and it reminds you of the categories of expenses that you have to account for.

We highly recommend every young lawyer try it out before you strike out solo on your own.

Ron Burdge

www.TheLawCoach.com

Helping lawyers run their business, since 1978.

How Your Web Site Can Make You Look like a Buffoon Lawyer Without Really Trying

I was looking for a specific attorney in another state the other day to call them with a referral to send and noticed a problem on their web site that irritated me. The site was okay, but I had to click 6 times to find their phone number. That reminded me... there are some simple tips that can help your web site make it easier for clients to find and contact you. Here's the first of five.

Even a top notch lawyer can put off prospective clients with a web site that creates friction. That’s anything that slows down moving the shopping prospect to a retained client status. Here’s some common problems.

1. Make it hard to contact you. For some reason, lawyers get so enthralled with putting together a great web site with lots of content and slick graphics that they forget the purpose of the site. Some tend to think that their web site only needs to have one place where your e-mail or phone number might appear so that the prospective client can contact you. And then they hide it.

That's not only wrong, it's silly too.

If you went thru the trouble of building a great site so it would get noticed by the search engines, and the client went through the trouble of searching for your web site and then found it, you should make it easy as possible for them to become your client.

Think of it this way: Click, Call, Mail, Stop by. That’s how easy it should be for people to contact you.

At the very least, your phone number and e-mail link should be on every web page. And not at the bottom of the page, either.

We'll continue this series with four more tips so subscribe to our coaching blog or stop back soon to read the rest of our tips on how your web site can look its best and do its best to attract new clients for you. These won't be all the common problems a lot of web sites have, but they are the high points.

And if you just fix these 5 problems we will point out, then it’ll put you ahead of 90% of the rest of your competition.

Ron Burdge

www.TheLawCoach.com

Helping attorneys help clients, since 1978.

Spyware Disguised as Fake Security Warnings

There's nothing worse than to lose all your hard drive contents to a virus infection you didn't even suspect was coming at you. Attorneys don't have time to wrestle with computers.

Here's some tips to recognize some of the viruses, spyware and other nefarious computer programs that try to get installed on your computer by fooling you into thinking they are security warnings, often requiring some kind of "update" to a program that sounds legitimate.

"Windows has detected a virus" Nope. Microsoft Windows doesn't do that. It can display a warning if your virus software is out of date or not turned on, but it does not scan your computer on its own.

"The Surprise Program" If an anti virus program appears on your desktop and you didn't install it, get worried. Then get rid of it. A security warning that comes from a program you didn't install is a ruse intended to fool you.

"Sounds Right" Sometimes an impressive sounding program name is a tip that the program is not legitimate. Like "Antivirus 2010" or "Spyware Detector" etc. If you don't know what it is, don't trust it.

"Download this Norton Virus Update Now" Real anti virus programs don't prompt you to download anything. They get rid of a virus without having to go get an update to do it. They won't prompt you to get an update in order to remove a specific virus threat.

"The Living Color Message Box" Legit programs don't waste time using flashy, colorful boxes to tell you something. If the message box is fancy, then it's probably fake. It should be a simple, clear and small box. If it's in living color, your computer soon won't be.

Ron Burdge

www.TheLawCoach.com

Helping lawyers help clients, everyday. Since 1978.

Is there marketing help for lawyers?

There's a nice article over on Law.com's Small Firm Business page by Kimberly Rice titled "How Can law Firms Help Their Lawyers with Marketing?" with some great tips.

Kimberly discusses the basics of practical business development and notes that just throwing time at marketing is not a good use of an attorney's time or skillset. She's well qualified to talk about marketing too, judging from her marketing website.

She wisely points out that "One of the most valuable lessons firms can learn from this recession is that their overall health depends upon attorneys who are well educated and disciplined in the nuances of the business development process."

Take a minute to read the article and you'll likely find it worthwhile for your own practice too.

Ron Burdge

www.TheLawCoach.com

Helping lawyers succeed, since 1978.