Non economic damages in UDAP Litigation

Last week, while presenting several presentations on the use of expert witnesses at the National Consumer Law Center's 20th Consumer Rights Litigation Conference in Chicago, several audience members asked about recovering damages for the different types of non-economic injuries that a consumer experiences when victimized by a merchant's unfair and deceptive acts and practices.

Under one or more claims in a civil case, an injured consumer may have the right to be compensated for "non economic" damages. These are often thought of by lawyers and consumers alike as emotional or aggravation damages but can actually be based on a variety of physical or emotional symptoms and/or circumstances.

If you represent the consumer, your client may have the right to be compensated for emotional damages but you will have to tell the jury about it and the consumer must provide sufficient convincing evidence of the injury and/or damage - or they generally can not be compensated for it.

A few years back we heard from Virginia attorney Tom Domonoske on his thoughts on what kinds of injuries might be the subject of a non economic damages claim. Since then, the list has been broadened and made more complete, but there's no question Tom's input started it all. Here are just some of the examples of different types of circumstances that a consumer may experience and which may be compensable.

• Aggravated existing illness
• Anxiety attacks
• Appetite loss
• Bedridden circumstances
• Chest pain
• Concentration loss
• Crying
• Dizziness
• Fear
• Headaches
• Humiliation or embarrassment
• Hypertension
• Hysteria
• Illness
• Irritability
• Job performance affected
• Job loss
• Medical expenses
• Muscle spasms
• Nausea
• Nightmares
• Privacy loss
• Relationships affected
• Reputation affected
• Loss of sexual desire
• Shortness of breath
• Sleep loss
• Stomach pain
• Weight gain
• Weight loss

A consumer normally can not be compensated for these traumatic experiences unless there is some evidence of the injury, such as them talking about it and explaining it to the jury, or other persons tellilng what changes they have seen in conduct and demeanor, etc. In some state, actual medical evidence may be needed to prove causation for one or more symptoms and its relationship to a defendant's conduct.

Basically, the consumer should be able to finish this sentence: "because of what they did to me, I experienced ..." and then talk about the applicable symptoms listed above.

These experiences must also be caused by what happened in the case too. In other words, the consumer must genuinely believe (and be able to explain) that their emotional or physical symptoms are the direct result of what happened to them in relation to their troubles over their consumer product or service and their dealings with the merchant involved.

Friends, family, co-workers, and other persons may have witnessed the consumer going through some of the symptoms described above. If so, they may be able to help explain the evidence that supports the non economic injury and help a jury to understand how serious and real all of it has been for the consumer.

The question becomes, how did the consumer's reactions manifest themselves in the consumer's daily life? If the consumer was not bothered by what happened in their case, then they do not have the right to receive any compensation for emotional non-economic damages. If it did, then the consumer does have the right to compensation.

But a jury has to know that it is real and, as a practical matter, that means they have to hear about it from the consumer and their witnesses.

The consumer's explanation must be real, genuine and from the heart. If these symptoms do not apply to the consumer, then they should not talk abotu them and the attorney should not ask the jury to give any money because of them. Even if the jury does allow the consume rsome "aggravation" money for non economic injuries, the law is some states may limit the recover (such as in Ohio where it is capped at $5,000).

Can non economic injuries enhance a consumer's recovery in a UDAP case? Maybe, but that will always depend on the consumer and their ability to testify adequately, the attorney and his/her ability to demonstrate why it is appropriate, the defendant and their culpable conduct, the judge and the instructions being given and, of course, how the jury sees it all come together.

Ron Burdge

http://www.thelawcoach.com/

Helping attorneys, helping clients

Setting up systems that work with InShort, an iPhone App

Last weekend at the NACBA annual fall workshop in Colorado Springs, we talked about the importance of The E-Myth Attorney concept of creating and using systems and processes in your law practice. Lots of great questions from an audience that craved systems analysis and the profit, both personal and professional, that can be had from it.

Naturally, people wondered what we used to create the systems we use in our own law practice.

For the litigation side of our practice, we commonly use Amicus Attorney - partly because our firm grew up with it from version 1.0 and everyone knows how it works and it fits us perfectly. But for the bankruptcy side of the practice, Amicus doesn't seem to fit very well for designing systems and processes there.

Instead, we're getting used to an iPhone app called InShort which we use on our iPad - not the iPhone version, for reasons we'll get to.

Both simple to learn and able to get complex, InShort has a lot of promise. The User Manual for instance, which is built into the app itself as its opening screen on your first use, actually walks you through a sample process, showing you step by step what each aspect of the program means and how it works and how to create your own. Smart move.

For creating a system or process for your practice, this looks like a great approach to the problem so far. In some ways, it's a bit like mind-mapping a system out except that this app lets you then apply that system and check off your progress after you design it and start to implement it in your practice.

The InShort app is $6.99 in the iTunes Store (used to be under $5), which is just slightly higher than most productivity apps, but it is slick and highly polished and worth it. The InShort app lets you diagram out the process you are trying to create in a sensible and methodically manner. You can actually start with nothing but an idea and create your process inside the app if you want - getting rid of the usual pen and paper first step. So far, it looks awfully good on an iPad - but kind of tight on an iPhone.

You can check out a good review of it here (click) at the iPhone App Review site. But like everything else when it comes to finding or creating a system or process that works best in your own law practice, it's all up to you. You have to check out lots of alternatives and settle on the one that works best for you because, at the end of the day, the best system in the world (or the program that creates it) isn't worth anything at all if it doesn't work good for you.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers helping clients

The Link to The E-Myth Attorney

We're in Colorado Springs today to give a seminar on Success, E-Myth Lawyering Principles, and Business Economics for the National Association of Consumer Bankruptcy Attorneys at their annual Fall Workshop. There have been tons of great tips and advice on the business of lawyering during this two day workshop, from some of the best business minds in law,  and we're honored to have been invited to speak.

Michael Gerber, author of the remarkable E-Myth series of classic business books, and the publisher, John Wiley & Sons, have graciously allowed us to distribute a free copy of two of the chapters from The E-Myth Attorney as part of our presentation at the workshop. These two chapters will give you a taste of why we have said that this is the best book on the business side of lawyering ever to come along.

Workshop attendees can get your free copy of the two EMyth Attorney book chapters by clicking on this link: http://dl.dropbox.com/u/6160661/E-Myth%20Attorney%20Chapters%205%20and%206.pdf

Click the link and print your copy today. This link will go "dead" within the next few days and after that you'll have to go to your local bookstore or order your copy of the book online. As we've said before, it's a great read and well worth it. Those who attended the NACBA Fall Workshop were lucky to have learned that the great folks at BKExpress, one of the conference exhibitors, brought a hundred free copies of the E-Myth Lawyer as a surprise give away for workshop attendees. Still, click on the link and read your free chapters today.

Ron Burdge

www.TheLawCoach.com

Helping lawyers helping clients

for over 30 years

Cases You Should Not Take - Great Article Worth Reading

Ever wondered whether or not to take on a case that you weren't sure about? Susane Robicsek, an experienced bankrutpcy attorney from North Carolina posted a great article on Bankruptcy Cases Not Taken, posted on the Bankruptcy Mastery web site (click here) on exactly this topic.

Although her post deals with bankruptcy cases, the rules of the road that she discusses are universal and well-learned.

The article byline says a lot too: the cases not taken are the ones that can keep you in business.

If you have doubts about a case nagging at you, don't accept the case until you read her article. Lots of good wisdom here and the rules are universal. It's clear that she, like so many other attorneys, learned the lessons the hard way. Read her article now and maybe you can avoid the hard road to travel too.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers helping clients.

A Guy Searches Google - 2 result comparisons tell the whole story

Gyi Tsakalakis, is co-founder of AttorneySync Law Firm Internet Marketing, and has a great post on the importance of spreading your info across various sources on the internet in order maximize the points where you can be accessed by a potential client who is looking for a local attorney.

And his two comparisons is not far off the mark either.

There is no question that any attorney who wants to rise above the everyday internet buzz is an attorney who needs to frequently be online with all the sources that are out there for that purpose, and there are lots of them.

If you haven't claimed your Avvo profile, go do it. http://www.avvo.com/

If you haven't set up a Google's Places listing for your firm, go do it. www.google.com/placesforbusiness

If you haven't claimed your your JDSupra profile, go do it. http://www.jdsupra.com/

Those three are a minimum - and you should check out the AttorneySync article for even more tips - click here.

Ron Burdge

http://www.thelawcoach.com/

Helping Lawyers Helping Clients.

Since 1978.

Burdge to address National Association of Consumer Bankruptcy Attorneys in Colorado

 

The National Association of Consumer Bankruptcy Attorneys will have its national workshop in Colorado Springs at the end of this month and topics will cover the range of consumer bankruptcy issues facing attorneys nationally.

The fall workshops are an annual opportunity for consumer bankruptcy lawyers to get in-depth education and training on bankruptcy law issues from some of the nation's experts and most experienced attorneys.

This year's two-day workshop will feature courses designed for new attorneys and paralegals as well as a more advanced track on complex bankruptcy law issues. NACBA will also feature a special series on the business of practicing law for consumer bankruptcy lawyers and we are grateful to have been invited to speak for two hours before the group.

Most attorneys are not business-minded individuals and have little, if any, business experience. Law school teaches the law, as we all know, but most of them don't teach how to run a law practice as a business. We will fix that problem in Colorado by discussing the E-Myth principles of Michael Gerber's business classics and how they can apply to the business of practicing law. Fueled by a desire to help and serve consumers just when they need it most, many consumer law offices in today's economic climate face economic and business problems of their own as they struggle to achieve business success in their law practice. While they know the law and are trained to use it to help consumers, the business of practicing law requires a different mind set and skill and we'll be talking about those and how to achieve them.

As part of that lecture series, there will be a special discussion revealing the one unknown secret of economic success that is either unknown or disbelieved by struggling entrepreneurs (and that includes lawyers) everywhere - but it works. After spending more than a decade researching business principles and philosphies, including conversations, meetings, and analyses from a broad spectrum of successful people - including business operators, economists, lawyers, philantropists, doctors - and eventually even a one-on-one meeting with an esteemed neurosurgeon on the applicable brain chemistry and the neuro and medical aspects of business success, we'll explain what it this secret is  and some of the scientific and medical evidence that proves this business secret works.

Other topics at the NACBA conference will include fundamentals, the mortgage mess, the means test, escrow payment issues, BAPCPA's TRAP-C-PA, balancing a business, using technology, and mastering all aspects of the bankruptcy process. The two days of lectures, workshops and discussions will feature speakers from all over the country and will be attended by lawyers from all over the country.

Ron Burdge

www.TheLawCoach.com

Helping lawyers help people, for over 2 years

Managing your online reputation - the first step is the easiest.

In the "lawyer business" reputation is critical to success - perhaps more than any other profession or business venture in these economic times. So, how do you monitor your reputation? It's easy for people to talk about you online - and easy for you to take the first step to monitor what they are saying too.

Check out Google Alert to get free alerts by email whenever your name is mentioned online anywhere. It's easy. You just tell it the email address to send the alerts to along with those phrases that you want to hear about when they show up online.

Obviously, list as many variations of your law practice name and your personal name as you can.

Set the frequency of alerts - daily or less often? And then sit back and wait. Anytime one of your keyward terms is used online, you'll get an email alert from Google that gives you the link to that spot so you can check it out.

Google Alert can also be used to keep tabs on others too, like the opposing counsel in a hotly disputed case - or their client when their name shows up online from asset transfers or sales or any of a hundred financial or business transactions that could affect your case.

Google Alert is the easiest way to monitor anything on the internet that you want to know about - whether it is your own reputation or deeper, background info that may get posted about someone else.

It's the first step to take to protect yourself from unfair and misleading slander and online disparagement - and one that every business professional should take. And when I hit the "return" key in a minute, I'll get an email about this post, too.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers helping clients, for over 30 years.

Communicating with your Jury is critical in closing argument

Use passion

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. Today we'll talk about the importance of the communication that occurs in closing argument.

Your closing argument started to be written with your Intake interview, right? If not, it should have so always do it that way from now on. Making notes along the way is so much easier than waiting until the night before your closing argument occurs. The key facts never change anyway. And your last minute time can be better used directing and finessing what you already had outlined.

Of course, since you started off in opening by telling the jury what you were going to prove, now is the time to tell the jury how you proved it. And, of course, what the other side did not prove.

Replay the opening promises of each side again and contrast where it was met by you and not your opponent. You don't need to harp on every aspect, but you certainly want to pound home your points on the important issues.

And where it is possible, use the defendant’s evidence that favors your side of the case. Point out statements from your opponent's witnesses and inferences from their evidence and direct support for your case that can be found in your opponent's own case.

Consider replaying video testimony from the trial during your closing - it is extremely powerful.

Also, work the jury instructions into your argument. You should have learned what instructions the judge is going to give the jury so fashion points in your argument around key aspects that the judge will instruct on anyway.

And most of all, be passionate as you tell the story of why your client should win and explain the damages question in plain everyday language and tell the jury what you want them to do. There's no point in letting them wonder about just how much it is that you want.

If you get a rebuttal argument, remember that rebuttal is really rebuttal plus another chance at closing argument. So use it wisely and precisely. It is not a time to do it all over again - it is a chance to point out the errors in your opponent's closing that they just heard and to remind them of why your side is right and why your side should win.

Finally, at the end, always thank the jury. What they are doing in your case is what makes the legal system work and they will never be thanked enough for it.

At each stage of the closing, they will be watching everything you do and listening to everything you say. Your communication will occur not just with words but also with your mannerisms, your body language, your style, and your content. Everything matters, so do it right and with passion.

And remember that your communication with the jury starts before you think it does and ends after you thought it already had. Use every moment of it to your advantage.

Ronald L. Burdge

www.TheLawCoach.com

Helping lawyers help clients for over 25 years.

Managing time when time is short, the phone is ringing, and your desk is piled up`

One of the worst problems for busy attorneys is managing their time. It seems that with each day we struggle with emails that never stop, motions that seem to keep coming, phones that ring in the middle of writing that memo or brief that is due tomorrow, and faxes that demand our attention. And somewhere out there is a spouse or significant other who expects to get home on time too. So, how to juggle?

First, each morning you must tackle - and get done - the one thing that is most important to get done that day. With the most important (and often most difficult) task out of the way, the day will only get easier.

Second, block a dedicated time out for your work. And make it the same time frame each day. It doesn’t matter if it first thing in the morning, at the end of the day, or somewhere in between. Block it out and don’t let anything interrupt it. You can’t work efficiently and stay on track to getting a task done if you are constantly being taken off track by every interruption that comes along. It will destroy your concentration, your peace of mind, and ultimately your entire day, if you allow yourself to run from one fire to the next. You are a lawyer, not a fireman.

Third, there are times when you just have to ignore the phone. So ignore it. Let it ring and go to voice mail. You can always pick it up when you get done doing the task that is in front of you. Of course, you can’t ignore it all of the time. Ignore it only when you have to in order to get a task in front of you over and done with. Dealing with telephone interruptions is a balancing act of attending to the business in front of you and attending to the business trying to interrupt you. There is a time and place for the interruption but you should set the time and place. Don’t allow the phone to do it for you. Otherwise, you’ll never get anything done.

And the last thing you should do everyday? Pick the one thing that you absolutely must get done tomorrow. Then pull that file and put it in the middle of your desk so that when you come in the next day, you start right on it and get it done. Of course, you should be prioritizing your work constantly anyway, but at the end of the day you should make the decision on what is the most important thing you need to get done the next day and set it out so that when you come in, there is no thinking, no debating, no effort needed. You can just start right on it and get it done.

More tips are coming in the future, but this will get you on the right track to successfully managing the workload.

Ron Burdge
http://www.thelawcoach.com/

Helping attorneys succeed, every day.

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.