Blog

by Professor Frank B. Cross 

Tort law requires: (1) a duty which is breached and (2) a legally protected interest.

  Everyone has a duty to behave as a “reasonable person,” though some people have a higher duty of care (e.g., a doctor) and others have a lower standard (e.g., children and the mentally impaired).

  Even if you have breached a duty, you are only liable for a person that has a legally protected interest (e.g., you can sue for someone intentionally breaking your arm, but you cannot sue someone who has broken your heart).

3 main categories of torts:

·       Intentional torts

·       Negligence; a

·       Strict Liability (i.e., you are strictly liable for the harm you have caused even though you have not breached a duty).

“Intent follows the bullet.” – Intentional tort b/c you intended to shoot the person or you would not have pulled the trigger.

Intentional torts:

Assault (salt): Is putting someone in fear of harm without actually causing the harm.

Battery (pepper): Is actually causing them harm. Can be any unwanted conduct (e.g., an unwanted kiss).

False imprisonment: Is where you restrict someone from allowing them their ordinary freedom to move.  EXCEPTION FOR RETAILERS: Most states have anti-shoplifting laws to protect business owners from financial harm. These laws permit business owners to temporarily detain someone from leaving if they do it in a reasonable manner, for a reasonable time, and they have reason to believe the detained person was shoplifting.  NB: The business owner must strictly meet all these requirements in order for them to be immunized from suit.

Negligence is where you hurt someone out of either carelessness or stupidity/ignorance. This is the cause of action most often alleged and brings forth the greatest damage awards ($) for Plaintiffs.

Strict liability is where you have to pay someone for causing harm even if you did nothing wrong.

 It is infrequent that anything happens to trigger a lawsuit in these trades/professions because of strict, safety protocols. But, when something bad happens, it has disastrous, resulting consequences. Applies to businesses which engage in ultrahazardous activities or substances.

 Examples: demolition contractors, hazardous waste operators, and product manufacturers.

General duty owed under tort law – reasonable person standard.

Specific duties:

Special relationships – Impose higher duties on those of greater power in a special relationship and may indeed create a duty to act [e.g., doctor-patient relationship, to wit: surgery(duty)/malpractice(breach of duty)].

Legal responsibilities: If you break the law, you are negligent. Failure to conform w/ the law is a breach of duty under the law automatically. There are some minimal exceptions (e.g., If you are driving with expired tags and another vehicle rear-ends you, you are not negligent in the accident under the law b/c tags are a fundraising mechanism of the state, though technically a law).

Custom: In business, a practice or custom will create a duty to behave in a certain, specific way in order to conform with that practice or custom.

Duty to Act: Under American law, you have no duty to act except in special circumstances.

o   This is contrary to most countries in the World.

o   You have no duty to rescue anyone in peril.

o   NB: In some states, laws have been passed requiring their citizens or visitors to their state “to render assistance.”

So, if you saw a child drowning, you don’t necessarily have to jump in to save her, but you would have to call for an ambulance immediately.  CA is, of course, the exception. A man tried to use the phone at a bar, and the bar owner refused because the man was not a patron. A person died as a result. The bar owner was held liable in tort for refusing the person rendering assistance to use the telephone.

Negligent mental suffering is not a tort.  EXCEPTIONS: If one person causes great, physical harm to another, that injured person may suffer with PTSD consequently. Both the intentional tort (harm) and the negligent mental suffering caused thereby (PTSD) are compensable.  The Plaintiff can recover because there was physical harm. If the Defendant, however, did not commit an intentional tort, there is no recovery for negligent mental suffering.  Otherwise, people could sue one another for ridiculous reasons – “She was being rude to me.”

INDEPENDENT TORT DOCTRINE: If parties are in privity of contract, contract (K) law controls the issue, not tort law. However, if some K-related activity causes harm, the injured party can file suit under both contract law and tort law. Res ipsa loquitur: “The thing speaks for itself.”

A grand piano does not leap out of a 10-story apartment on its own and kill/injure person(s) on the street below. It is logical: There must be one or more people involved who either intentionally or negligently dropped it out the window.

·       Duty of landowners:

o   Main point of controversy: duty owed to trespassers. Example of freak instance where liability found: Burglar was severely injured while breaking into a home, sued and won millions. As a rule, landowners do not have a duty to trespassers.

Exceptions: 

Killing/trapping a trespasser (except in some states by law).

Known trespasser to you:

EXAMPLE: Child neighbor cuts across your property every day on his/her way to/from his/her house, you owe that child trespasser a duty not to get injured on your property.

Attractive nuisance: E.g., Swimming pool in a backyard that the homeowner(s) do(es) not fence in/enclose.

Licensee(s): A person who is on your land by your invitation but lacking a business purpose (e.g., social visitors). NB: You have a duty to warn them of dangerous conditions on your property.

Invitee(s): Someone who has been invited onto your land to conduct business. NB: You have an even higher duty than you owe to licensee(s): (1) to warn them of dangerous conditions on your property of which you are aware and (2) you have a duty to inspect your property to ensure that there are no known hazardous conditions on your property of which you need to warn the invitee(s).

Lessee(s): Person(s) renting your property.

·       Required to do proper repairs.

·       Required to provide adequate security.

·       Common areas – most responsibility there.

·       Private areas – less responsibility there b/c landlord has no control.

·       This duty extends to your lessee(s)’ guest(s).

Proximate Cause: You are not liable in negligence actions if you were not the proximate cause of the harm.

Elements required:

·       Causation in fact – a.k.a., “but for” causation. If you did not cause the harm, you are not responsible for it.

·       Legally close connection – foreseeability of the harm. You are only liable for the harms that are reasonably foreseeable to you, but the precise chain of events need not be. Example: If you leave a loaded gun in a children’s playground, you are liable to whomever gets hurt, even though you did not pull the trigger.

Intervening, superseding causes break the chain of proximate cause.

·       EXAMPLE: You leave your car running while you double park in front of a store to pick up your food. A car thief jumps in your car and runs over a third party. The thief’s intervening act broke the chain of proximate cause so you are not liable for the harm done to the third party. CAVEAT: If this was reasonably foreseeable to occur (e.g., incident happened in a high crime area), then you are liable because it was foreseeable that your car would be stolen.

Persuasive Skills For Lawyers In Trials, Appeals, Arbitrations And Motions

by Brian K. Johnson and Marsha Hunter.

Opening Statement And Closing Argument:

 This is the only time where you memorize and recite 1-3 sentences to start. If you try to rely upon being spontaneous, you will fail. Your brain needs this to jump start.

  An open position of the body makes people trust you. A closed position means you are argumentative. Closing argument is merely a strong recitation of your theory of the case to the JURY. Intonation refers to the up-and-down movement of the musical pitch of your voice. Cf. Monotone. When your voice goes high-pitched or low-pitched as you speak, you create audible punctuation – the sound of a period, comma, question mark, or exclamation mark. “That is amazing!” Or “You did what?”  Practice walking your voice up and down the steps of your pitch.

The more frequently you practice, the better you will be. So, don’t set aside, e.g., two all day practice sessions. Instead, set aside many, shorter sessions to practice. Solitary and mindful (alone and aloud) practice is absolutely essential. Practicing alone makes you feel more comfortable and, by being comfortable, you will plod along, make mistakes and correct them. When you finally feel comfortable enough with your approach privately, practice in front of colleagues. Your brain knows how things are supposed to be done. Your body has to be trained. For example, Steph Curry has, no doubt, read and been taught how to shoot a free throw. He had to train his body to approach each shot the exact same way and execute. With the decreasing number of trials, even the most experienced advocates have to practice more frequently. Forget perfection. Your goal in practice is only to make yourself better. Besides the JURY wants to see you human. Your humanity makes you credible. The most important reason to practice is to rid yourself of your consciousness. The last thing you want to do is to practice in front of a mirror, unless you are practicing certain facial movements as you speak aloud.

  If you want to assess your gestures, place a piece of copy paper over your face in the mirror and rehearse your opening, e.g. You will see and tweak them. Practicing helps you become your true and natural self when the pressure is on. It does not make you appear less credible to the jury. Once you practice enough, it will feel, appear and be natural. Feeling silly? Well, would you rather feel silly alone or completely and utterly embarrassed in front of the jury and your client. Look at it through the eyes of a client: Would you rather have an attorney who is unwilling to practice before trying your lawsuit or would you rather have an attorney who is constantly practicing?

  Be patient with yourself as your practice, for progression comes in small steps. As you practice your advocacy skills over time, your progression will be: novice > competent > proficient > expert.

Set a meaningful and deliberate pace to your presentation. When practicing, speak first and write second. After you practice various points of your presentation, jot down notes of what you did well, need to improve upon and what points of your presentation need emphasis, and how you will accomplish placing emphasis on these points, whether through gestures or speaking with different inflection. If you like a particular phrase, practice it over and over again until it becomes second nature. Don’t waste time and avoid meaningless filler, e.g., “Thank you, ladies and gentlemen of the jury, for your service.” In particular, practice and perfect (as best as possible) your opening and closing due to primacy and recency. If you feel compelled to thank the JURY, wait to do so until the commencement of your closing argument. It lets the JURY know that you are reaching a conclusion. End each DX or XX with something memorable which enhances your case.

  Practice transition moving you from topic-to-topic and headlines for each new topic. “Ms. Wang, we have explored your educational background. [ending/transition] Now, let us discuss your employment history [headline].”  If you tell the Jury where you have been and what you are going to do next, the JURY will know where you are in your presentation and follow it. When you obtain an admission on XX, pause and allow silence to serve as a way for the JURY to process the importance of what has just been said. Three seconds, while feeling like a long time, is not. Count silently in your head. When you must read from a document or a deposition transcript, practice.

Technique:

• Pick up the document and hold it up
• Read it one phrase at a time emphasizing key words in each phrase
• Read the meaning of the words, not just the words themselves
• Mark up the document to assist your reading (put slash marks where you intend to pause between phrases and underline the key words in each phrase that clarify the meaning

  Practice pronouncing difficult words until you become proficient and comfortable. When writing notes, print largely and legibly so that you can see them from a distance away. If you are going to be writing on a flip chart, practice writing largely, legibly and carefully. Generally, jumbo-sized markers work best.  If you are going to use the Elmo or any other visual aid, practice using it in advance. But, be sure at all times to point your toes toward the Jury. If you face the Elmo, e.g., you will have your body turned away from the Jury.  

When pointing to the visual aid, use your arm closest to the visual aid. 3 Ts:

• Touch
• Turn
• Talk

 Always tell the JURY what they are looking at, where to look at on the visual aid, and then pause, allowing the JURY to read. If you speak, the JURY will be forced to either lose track of what you are saying by reading the visual or follow your speech and ignore the visual aid. The JURY cannot do both concurrently.

• Practicing asking foundational questions (e.g., when trying to introduce business records into evidence) in the proper order until they become automatic.
• MAKE A VIDEO: There is no impact more valuable than actually seeing and hearing yourself give a presentation. Do this while practicing. But do not speak to the camera. Place the video where the JURY will be sitting and then ignore it as you practice. Tally the things that work well and be specific.
• Emphasize one key word with each phrase. Use emphatic gestures as you do.
• When doing your opening, stand in one location of the courtroom while discussing your clients and your clients’ position in the lawsuit and then stand in another location of the courtroom while discussing your opposing party and your opposing party’s position in the lawsuit. This creates a subtle contrast between the two theories of the case. When you go to conclude, move to a third area of the courtroom.
• Instead of speaking nonsense word-fillers/thinking-noises such as “um”, remain silent.
• Focus on your Judge/JURY prior to speaking every time.
• Explain the burden of proof and complex legal concepts in your case carefully to the JURY.
• Eliminate “OKAY” from the start of every follow-up question, which is unfortunately a natural habit. You MUST overcome this urge by inhaling deeply prior to asking your next question in its place.
• It is also a bad habit to say the word “AND” prior to asking the next question. Instead, inhale deeply and just ask the question itself without the “AND.”
• I AM SO BORING: Tackle this problem by videotaping yourself and looking to see if your face is like stone or if your voice is monotone.
• The default advocacy attitude appears austere, solemn and somber, i.e., “Lawyer Gothic.” This is not a compelling attitude. Instead, pick and attitude to suit your tactics for each portion of the case wherein it is appropriate. For example, in a PI case, use a positive attitude when describing what life was like for the victim pre-accident and use a somber attitude when describing what life is like for the victim post-accident/now. On DX, appear curious so that the JURY will listen more attentively. On XX, adopt an attitude of skepticism which will make the JURY question the credibility of the adverse witness.
• Drive time offers a great opportunity to practice your speech uninhibited. Practice speaking while taking a walk. Abraham Lincoln did this routinely.

Mental Preparation

Finding your rituals, developing a solid technique and relying upon good speaking habits all go along way to help prepare you for trial. Pump yourself up as athletes do before the big game. If you typically speak too quickly, break each sentence down into sentence fragments with a pause in between.

Jury Selection

Make a positive impression during jury selection. Select the tone, attitude and demeanor you will use. Be loose in your posture. Gesture immediately as you introduce yourself. This will help you loosen up. Rehearse your opening remarks so that your brain can start flowing.

• Announce a topic relevant to the case
• Suggest a wide range of feelings relevant to that topic
• Ask for individual responses
• Use open-ended questions to learn more from each potential juror and ask repeatedly if others feel likewise for each topic raised
• Pose leading questions to conclude

Find out in advance how jury selection works in that particular Judge’s courtroom.

Opening Statement

  To present a clear OS, understand the difference between stating a fact and arguing a conclusion. You state what you expect the facts will be during the trial. Never argue inferences and/or conclusions based upon those facts. If an inference/conclusion, it belongs in Closing Argument. Furthermore, never invoke the golden rule – placing the Jury in the position of your client(s). Stick to the facts. Avoid starting your OS with the cliché “Opening statement is like a roadmap” or “Opening statement is like a table of contents.” As you proceed through your OS, be careful on how many times you say “The evidence will show.” It is tiresome for the jury to hear this unnecessary phrase repeatedly. Exhibit one attitude when talking about your clients/your case and a different attitude when talking about your opposing party/their case. Pick the attitude that fits the party. Variety of delivery is essential to holding the jury’s attention. Say key facts in a way that signifies their importance. Pause briefly after a vital fact to let it sink in the jury’s minds. Don’t waste time thanking the jury for their service. It sounds canned and insincere. If you must do so, do it at the very conclusion of your OS. Brevity is a virtue. It is better to be too short than too long.

  You must act and sound curious. Embrace an attitude reflecting same. Emphasize key words in your questions. For example, “What time did you get there?”, “Who ELSE was at the meeting?” Limit the timeframe of the question so that the W knows to provide a short answer and then move on to the next question, thereby having the attorney always in control. When a W speaks in a narrative, not only is it objectionable, the attorney has lost all control and is entirely dependent upon the W. Look at the Jury when you ask important questions. You want to make the W the star. The attorney is the director who takes charge and makes the star look good. Make sure the W is talking more, and you are talking less. During important points, stop using open-ended questions and give commands like: “Please describe”, “Please explain”, “Tell Us”, etc. This is particularly important with exws. Always make sure the answer comes from the W and not from the attorney’s question. Formatting the right questions is naturally uncomfortable because you have to form each question with proper grammar, semantics, and syntax all at the same time prior to talking. Practice aloud repeatedly prior to entering the courtroom. A good direct does a great job of headlining each line of questioning. Frame the topic prior to asking the first question in the next line of questioning by saying, e.g., “Now let’s discuss your employment history.”

Do not object to the opposing party’s DX when doing so is not necessary and the case is moving along with the presentation of non-critical, stipulated facts. The lawyer is the star on cross. The focus is on the attorney. Never read your questions. Raise your volume and talk authoritatively at the W, through the W and to the Jury. Have the appropriate attitude to different lines of questioning on XX. Do not default to hostility and aggression. The Jury will naturally feel sorry for the W. If you want the W to agree, sound agreeable. Start agreeably and become more aggressive (as needed) to get your points across to the Jury from that W. Control your pace. A rapid fire pace will cause the Jury to not understand your questions, which is the whole point. Speak slowly, loudly and clearly in sentence fragments, not whole sentences, as you deliver the key questions. Remember that your questions are forming entirely new facts for the JURY to consider. So slow down and make sure they can digest what is happening. Leading questions are really only statements to the Jury of information they had not previously received and now will have to digest and remember. Leading questions should string one fact together at a time. Elicit one fact per question. Never ignore the jury during XX but rather turn to the jury and look at them during key questions.

Closing Argument:

  Closing argument is about connecting the dots, making inferences from the evidence, and drawing conclusions as to why your client(s) should prevail. This is not the time to retell the story. The jury knows what has happened and want to return home to their families. you will be wasting their time. argue: (1) why your client(s) should win; and (2) what each, key piece of evidence means. repeat the theme from your os. it will help the jury remember the promises you made on OS, how you proved them with the evidence, and thus why your client should win. Be a good teacher as you argue. Adopt a pace that is in sync with the complexity of your case. Use the legal language from the jury instructions and insert that legal language in in your CA. the jury will remember when the jury returns to the jury room. End strong! Know exactly what you are going to say at the end and say it with conviction.

Persuasive Skills For Lawyers In Trials, Appeals, Arbitrations And Motions

by Brian K. Johnson and Marsha Hunter.

Move with a sense of purpose

  If the Judge allows you the freedom to move, only do so with a purpose, your movement in the courtroom is at the complete discretion of the Judge. Know what your Judge will allow and adjust your behavior accordingly. A purposeful move is motivated by and connected to your words and ideas. A purposeful move occurs when you walk to a new location, finish your line of argument/line of questioning, start a new topic and slowly walk to another area of the courtroom, thus distinguishing your two arguments/lines of questioning as being independent of one another for the jury, who may be struggling to understand difficult concepts in your case being laypersons. Movement from stasis attracts the jury’s attention, so you must employ it where possible/necessary. but, please note that constant movement is only distracting and only diminishes your presentation. it becomes like watching a ball at a tennis match. it eventually gets tiring, and the jury stops paying attention. it is literally visual monotony. so, only move purposefully.

Always face the jury. never have your back to the jury. Sustained eye contact is the key element of persuasive style. Movement, though, does not make you more or less of a trial attorney. it only helps enforce your point(s). it is a stylistic choice. remember, you must be your authentic self. if movement is unnatural for you and disrupts your flow, then learn to present your case from the lectern in an equally effective way.

  Tactical breathing: breathe consciously. the way you breathe is directly connected with the way you feel, think and speak. Once you learn to control your breathing, it will help you:

• Calm down;
• Project your voice; and
• Oxygenate your brain.

  Deep breaths have a calming effect. So, take longer inhalations and longer exhalations. Fast, shallow breathing brings anxiety, fear, panic, negative emotion, etc. You breathe like you feel, and you feel like you breathe. When you take long, deep breaths, your body reverts to its natural state of breathing when you are calm. Low, deliberate breathing brings great comfort and diminishes anxiety. When you are breathing naturally, your respiratory system is controlled by your autonomic nervous system. This is the same system that regulates your beating heart, blinking eyes and other vital functions. But, you can override your autonomic nervous system at any time. When you do so, your conscious breathing calms you down and you feel better.

LOWER TORSO: Your lungs are located in your upper torso, protected by your rib cage. The diaphragm is a dome-shaped muscle located underneath the lungs and atop the vital organs. When you draw a breath into your lungs, your diaphragm muscle flattens out toward your waist, creating a partial vacuum that pulls air into your lungs. When the diaphragm moves down, the abdominal wall protrudes, and the intercostal muscles pull the rib cage outward slightly. As your lungs fill with air, your internal organs are pushed down and forward as your diaphragm flattens. This is why deep breathing happens in your lower torso. It is your abdominal wall/belly which moves forward during deep breathing. So, take deep breaths feeling your belly touching your belt/waist band. This is not a large movement. It is very subtle, so no one will notice. By contrast, breathing through your upper torso causes your shoulders and arms to move, which is quite obvious to a casual observer. Learning to breathe in this manner 24/7/365 will eventually become second-nature, and you will have tapped into potential which most people never discover. But, in the interim, at all points in trial where you are going to initiate performance of a new task, as opposing counsel is finishing up DX, for example, take 2-3 deep breaths before standing. Visit the courtroom (more than once, if possible) prior to your trial, sit and observe the judge and his/her courtroom procedures/rules.

Athletes are trained to breathe deeply. The amount of air in your lungs is what enables you to project your voice throughout the courtroom. More air = more sound. Breathe in > speak out. Start speaking when your lungs are full of air and then slowly exhale through your speech. The more deeply you breathe, the more air which is in your lungs. The oxygen then enters into your bloodstream and circulates around your body, including and especially your brain. Your brain needs at least 20% of the oxygen in your bloodstream. Hence, your breath helps you to think quickly and clearly.

How To Get Adrenaline To Flow Properly Out Of Your Body When You Have “Butterflies” – Hand Gestures:

It is a historic belief that hand gestures distract the Jury. This is false. It is not only necessary to do so in order to be an effective advocate, but also absolutely unnatural for a person not to do so. Everyone uses hand gestures in conversation, especially when trying to persuade someone. Hand gestures enhance the message you are advocating and release the adrenaline in your body. Hand gestures are controlled by instinct. Start paying attention to your own hand gestures. Then, notice how often your hands move. Then ask yourself:

• How often do I make hand gestures while speaking? Are they distracting?
• When/why do I make hand gestures when I am speaking? Are they distracting?
• How large are my hand gestures? Are they distracting?
• How frequent are my hand gestures? Are they distracting?
• How long do my hand gestures last? Are they distracting?

  Children who were born blind were studied, and it was discovered that blind children from birth used hand gestures just as frequently as sighted children. There is some causal connection in our brains between hand gestures and the free flow of speech. The more rapidly your hands gesture, the more rapid your speech. Hand gestures help people understand what is being said.

  In a study, people were found to learn what was said in conversation twice as well when hand gestures were used as when they were not used. In other words, using hand gestures will help the Jury remember what you said. Hand gestures give the Jury/Judge notice of your intent and your point-of-view, which is statistically proven to help the Jury/Judge follow, remember, and be persuaded by your argument. Hand gesturing assists both word-retrieval and memory by 20%. Because gesturing is critically important, it is important to practice your hand gestures as you practice your argument prior to trial. At the same time, start gesturing purposefully and consciously in your real life in normal conversations. Eventually, it will become second-nature and will enhance your credibility. Occasionally, your gesture will use both arms. Use this only for key moments. Make sure your gestures are not tight and constricted. This is counter-intuitive and makes your credibility questionable by the Judge/Jury. Be careful not to clinch your fist. Purposefully trying not to gesture will cause your bodily to naturally impulse, causing a twitch in your forearm or some other part of your arms which draws negative attention to yourself. Furthermore, when your gestures are restrained, you tend to speak in a monotone fashion.

  No one gestures all the time. It is done so only purposefully. When not gesturing, your hands must be loosely touching at waist height, not tightly pressing against the abdomen but loosely above it. This is the ready position. It is statistically proven that your hands are then virtually invisible. Why? Because people naturally focus on a person’s eyes when they are speaking. When you lean your hands on the lectern, you are extremely unlikely to use any hand gestures because it is then unnatural for your body to leave their position in rest. Similarly, do not interlace the fingers of your hands as it does the same thing. Simply place your right hand over your left hand but do not interlace your fingers. Do not always gesture with both hands. Gesture with your left hand and keep your right arm hanging slack. Then, gesture with your right hand and keep your left arm hanging slack.

4 Steps Of Gesturing:

1. Hands in ready position
2. Gesturing with both hands/arms
3. Gesturing with the left hand/arm only
4. Gesturing with right hand/arm only

The “give gesture”, when used in a courtroom, is very effective on important points of your dxs because it appears like you are handing a non-offensive, gentle question to the witness who then answers it in the manner which advances your case.

The “chop gesture” is an emphatic, important tool (when properly used) on: (1) XX and (2) closing argument. The “chop gesture” accompanies and intensifies a verbal ST.

The “show gesture” [thumb pressed firmly on top of your loosely-clenched hand] is a literal reenactment of your words. It is like a visual aid to the Jury/Judge which shows what message you are trying to convey to the Judge/Jury from the evidence.

Common gesture format: “On the one hand…” – gesture with the left hand. “On the other hand” – gesture with the right hand. Doing so highlights the contrast between the two ideas so the Jury/Judge can see the issue and your version of how it should be resolved. Never use your middle finger in any gesture. Repetitive gestures become monotonous and annoying to the Judge/Jury. Avoid pointing with your index finger. Also, do not give the thumbs up like President Bill Clinton. It makes you lose credibility with the Judge/Jury. Do not hold a pen/pencil. Put it down. It is only for writing, not speaking. The pen/pencil will distract and annoy your Judge/Jury.

Persuasive Skills For Lawyers In Trials, Appeals, Arbitrations And Motions

by Brian K. Johnson and Marsha Hunter.

“The amount of mental content in an interval determines its subjective duration.” – Robert E. Ornstein

Posture And Alignment:

  Posture refers to the position/bearing of the body. The body must be upright and erect with the head held high. Observe a dancer on stage. Your entire spine must be perfectly aligned. Realign your head and neck so that they are properly atop your torso. Remember not to pull your shoulders back and your chest forward, for your head and neck is naturally not on an even plane with the torso but rather ahead of the torso.

Eye Contact:

Everyone focuses on your eyes while you speak. You thus must be aware of your demeanor as you speak. Practice what you have to say in front of a mirror repeatedly to adjust your demeanor for your presentation. Ultimately, it comes down to: “Can you look me in the eye and tell me that is the truth?” If your eyes are fixed on your notes instead of the Judge/Jury, you miss important events that are transpiring in the courtroom. While making eye contact is very difficult while talking under pressure, you must practice it until it becomes second-nature. If you don’t maintain eye contact, you will appear to the Judge/Jury as distracted, absent-minded, or simply stumped. The secret to eye contact is to keep your attention at all times on people, not things. Never begin speaking until your eyes are locked on another person, e.g., your witness. Expect the Judge/Jury to be stoic and stone-faced at all times. Resist the urge to look away and maintain eye contact. When you are not in action, your face must remain in neutral attention.

 Never furrow your brow. It makes you look scowling and negative. To alleviate the tension, lift both eyebrows and then return them to their proper position. This instantly relieves the tension. When speaking to a jury, look at the front left of your jury box, then the right rear, then the right front and then the left rear. By doing so, it will appear to the jury that you are making proper eye contact without staring. When you need to look at your notes, do so occasionally and STOP talking. Judges/juries hate to be read to but do expect that an attorney will look periodically at notes.

Adrenaline profoundly effects your brain as well as your muscles. It is imperative that you understand the impact it has upon your cognitive processes and that you learn how to control and channel its power. Adrenaline alters how your brain experiences the passage of time, causing you to lose sense of whether you are speaking too quickly/slowly/loudly/softly. Adrenaline creates the illusion of a time warp. In your mind, time appears to move more slowly causing you to accelerate the pace of your speech. But talking too fast makes the brains of both the speaker and the Judge/jury unable to process all the information that is being conveyed. Use adrenaline in such situations to gather your thoughts, explore your options and make the best choice before proceeding. It is the same experience as a person who is in actually fear for their life. Train yourself to channel and exploit the “time warp.” When you are having a good time, time seems to flow by. Conversely, when you are bored, time seems to slow to a crawl. The same holds true for the Judge/jury. When adrenaline is flowing to your brain, your brain processes information at an unusually high rate.

In other words, if your brain is processing increased amounts of information due to adrenaline, as it must in a life-or-death situation or while advocating, you may subjectively experience time as slowing down.

“With more beats in an interval, time experience lengthens.” – Robert E. Ornstein

With adrenaline, your heart beats twice as much as it does at rest. Athletes like Tom Brady, Michael Jordan and Babe Ruth learned to use and exploit this “time warp” and typically refer to it as “being in the zone.” That is how they can function so well under tremendous pressure. An excellent advocate always uses silence to their advantage. Most attorneys erroneously believe that they must speak throughout the trial, or they aren’t earning their fee. But, that is counter-intuitive. The witnesses need to be the focal point throughout most of the trial, not you. Let the witnesses speak and speak sparingly and purposefully.

NB: You have lived with your case and know it backwards and forwards. However, the Judge/JURY are learning about your case for the first time. The Judge/jury need to be brought up to speed on what has transpired and lead logically but slowly and patiently to your position. Give the Judge/jury time to think and process what you are saying and then form an opinion.

ECHO MEMORY:

When a person speaks, the listener actually hears it twice. First, the listener hears it come from the speaker’s lips. Then, the listener instinctively repeat what was said in their mind to help them remember. It is why you repeat a person’s phone number until you can get to your cellphone and input their information. Echo memory helps the brain remember. So, if the Judge/jury is to be lead to your position, they must hear at purposeful but regular intervals your theory of the case and the evidence which leads the Judge/jury to render a decision in your favor. Echo memory also happens when the jury takes notes of what you are saying. the jury needs time to digest and understand what you are saying. Never read from your notes. While you may be tempted to do so, you will only appear boring. Furthermore, you will not maintain eye contact with the Judge/JURY and will, thereby, lose credibility. Never recite. Recitation is a highly specialized skill. This is why there are many actors/actresses but few excellent actors/actresses. So, don’t attempt to memorize your presentation. It will not work.

 SOLUTION: Structured improvisation. In advance, you structure the organization of topics you plan to talk about in your motion, appeal, opening, closing or examinations. You improvise word-by-word. Your brain is quite adept at this form of conversation as it is commonplace in normal conversation. Using sports again as an analogy, NFL players train and master a playbook. However, they must be able to adjust to the situation on the field and call an audible as necessary.

Never read and talk simultaneously. Do not create notes with prose paragraphs that must be read. The more words you write, the less effective your presentation will be. The written word is processed in a different part of the brain than the spoken word. When given the option, your brain will naturally elect to read what you have written than to speak spontaneously. It is perfectly fine to reference your notes. Just do not read from them. The shorter your notes, the better.

Good visual aids/notes provide a structure around which your speech can be improvised. Use a large font so that they are able to be read easily. Do not use handwritten notes. Type them. Keep notes simple. Less is more. Fewer words are more useful. Use as few words as possible to trigger a train of thought. Avoid prose sentences. Use bullet points and trigger words. The Judge/Jury does not mind you looking at your notes. It offers the Judge/Jury a break to absorb the information you have just relayed. When looking at your notes, really pause, read your notes and then speak when ready. The Judge/Jury will listen more attentively then. You will occasionally lose your train of thought during your presentation. Be prepared for when this occurs. The transitional utterance, “Let’s move on”, is a good way to take a break, look at your notes, and stop talking. Trust silence and be comfortable with it. Alternatively, you can be forthright and say, “Excuse me. I have lost my train of thought. Please give me a moment.” The Judge/Jury will appreciate your candor. If writing feels like a natural part of your style of presentation, do not fight it. Rather, write out your argument in full sentences and then slowly shrink it down into bullet-pointed sentence fragments to help jar your memory. You do not write in the same style with which you speak. Do not use legalese with a JURY. It sounds artificial and unbelievable.

Chunking: The human brain prefers to receive information in chunks. It likes to aggregate many bits of information into chunks so that there are fewer things to remember. One way to have the Judge/JURY follow your presentation’s structure is to indicate clearly when one topic or line of discussion is ending when another is beginning.

Primacy and recency: Judges/Juries pay most attention to the beginning and ending of arguments or presentations. Minds often wander in the middle as attention and retention drops. You have a small window of opportunity to grasp their attention. You must start strong with your strongest points and hold their attention throughout. Do not begin with meaningless fillers, e.g., “How are you today, Mr. Smith?” Or “This is a simple case…” No one listens attentively all the time. Attention rises and falls. Your job is to continuously find ways/opportunities to grasp the Judge/Jury’s attention. Group the various topics of your presentation into a chunk-like structure that the Judge/Jury can follow and pay attention to. When you behave nervously, you make the Jury feel nervous. Conversely, when you are comfortable and confident, the Jury will be at ease with you.

Demonstratives/Exhibits:

When using a demonstrative/exhibit, you want the JURY to be able to (1) focus on what information is most important in the demonstrative/exhibit, (2) read that portion and (3) understand that demonstrative/exhibit’s significance. Use targeted silence to your advantage. Remember that humans cannot read and listen simultaneously. Additionally, tell the JURY what they are looking at and precisely where to look. Remember: When you are in the adrenaline “time warp”, you interrupt that silence too quickly. Be cognizant of this. The JURY needs time to be able to read and understand. Be sure to explain your “pull-outs” and highlighted portions and explain why you are doing so. Read out loud the deeper meaning you intend to convey. Do not use demonstratives/exhibits that are dense with text. Do not project your outline for opening or closing. Outlines are boring. Do not use them as ppts in your argument. Consider carefully what words you wish to project. Be sure to project your case theory. Turn the Elmo/projector off periodically to redirect the JURY’s attention so as to have their full attention on you. Lingering slides are a distraction. Timing is critical. Save slides for the proper moments in your presentation.

Practice and learn to speak persuasively and audibly for extended periods of time. This makes your voice sound authoritative. You must become reliably fluent and articulate when the Judge instructs you to proceed. Improving your voice requires you to record yourself and work to improve upon it. Listening to yourself will not be sufficient. When you do so, you tend to think you speak nasally when that is not actually true. Your voice must be able to project clearly throughout the courtroom. You must be able to project your voice loudly and for long periods of time. See, e.g., an opera singer. All big voices are powered by muscle and practice. Only consistent breath control makes every word audible. When your breath wears out while speaking, your voice trails off and becomes inaudible. When examining witnesses, end each question with a strong voice so as to project properly. Pause between sentences and breathe deeply. The more air that passes through your vocal chords, the louder your voice will be. Your jaw, lips and tongue articulate your ideas. Taste/savor every consonant. Always annunciate vigorously. Speaking clearly so as to be understood requires precision. Thus, warm up your voice prior to entering the courtroom like an athlete warms up before partaking in a sporting event. In order to warm up your voice, say “nimminy, pimminy”, “butta, gutta”, “girl gargoyle, guy gargoyle”, “Swiss wrist watches” and “statistically significant” over and over again out loud. It works the different areas of your mouth and increases blood flow to the necessary areas of the body for public speaking. Over articulate and increase your speed as you go. In order to be persuasive, you must control the pace and tempo at which you speak. Persuasive speech requires more energy than casual conversation. Speak in phrases, not in whole sentences. Example: “I pledge allegiance”… “to the flag”… “of the United States of America.” OR “Ask not what your country can do for you”… “but what you can do for your country.” Use audible punctuation to delineate between different chunks of information you are trying to convey to the Judge/Jury. This gives your brain sufficient time to gather itself and keep your presentation focused. This gives the Judge/JURY time to process those verbal chunks. Use your pace to set forth and emphasize the significant points of your presentation to the Judge/Jury. Vary your pace throughout so as to not be boring. Your first few sentences frame your presentation. So, state your theme clearly and upfront.

Make your points by constantly adjusting your volume, pitch and duration. Achieve emphasis with duration by lengthening the word spoken. Dr. Martin Luther King, Jr.  was excellent at elongating vowels during his speech to emphasize certain words. The more time you take to drag each word out of your mouth, the greater your ability to emphasis key words, consonants and/or vowels.

When you do not emphasize key words, all the words seem to run together in a train. Hence, no point is conveyed as the brain only processes information in chunks, not in one, long stream. When practicing your opening and closing, pick which words, vowels or consonants need to be emphasized to make your speech most impactful and practice doing so.

Why Reading Is Bad In A Courtroom

We all read constantly. When we do so, we are normally alone, reading in quiet. In such circumstances, our brain reads the words much, much faster than a normal conversation. That is why when words are near, it is natural to gravitate to them and read aloud out of instinct. Resist the urge. When we read aloud, we tend naturally to read the words as quickly as we do when we are reading alone, making it impossible for the Judge/JURY to follow your presentation. Your voice will also be monotone and, thus, be boring. Additionally, your writing style is different from your speaking style. You neither speak the way you write nor write the way you speak. Thus, reading sounds stilted and overly formal. When you absolutely must read aloud in a courtroom, e.g., from a deposition transcript, read in phrases, slowly, deliberately, one phrase at a time. Adopt a slow, deliberate pace and highlight/underline key words you wish to emphasize. When you speak in phrases, your brain and your mouth are in sync.