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Fishing for Tuna in a Lake: Persuasion in Trial

A friend asked me, “What is your stock in trade?”

I answered, “Persuasion. Trial lawyers are merchants of persuasion.”  My answer caused me to ponder a great deal on trial lawyers as “merchants of persuasion.”

trust me

Try defining “persuasion” without using the words “persuade” or “convince?”

My Definition of “Persuasion”

I define “persuasion” as  “influencing perception.” The old saw from politics, “perception is reality” applies with a double portion in trial.  The way jurors perceive you or your case, is their reality. Continue Reading →

Internal Conflict: Obstacles Are Opportunities

Jesse Wilson, a reader from Colorado (jessekwilson@gmail.com) uses theater to “transform lives and business.” My recent post on “Story” prompted him to email me about conflict in story.

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Stories: Campfires and Courtrooms

From man’s earliest times, telling stories has been how we entertained each other late at night around the fire, communicated the joy of the hunt, and shared the pain of loss. As trial attorneys, we are the inheritors of the tradition of story.

campfire

Rather than sitting around a campfire, weaving tales late into the night to enthrall our friends, we now stand in the killing pit we call a courtroom and talk to twelve silent, supposedly non-responsive members of the public who are there to do their civic duty.

I fear that by and large, we as lawyers do not value the persuasive power of story. I have seen lawyers in trial say,

“This case concerns a two-car motor vehicle accident that occurred on December 13, 2000, at the corner of Bristol Drive and Anton Parkway in Costa Mesa, California. The Plaintiff was the sole occupant of her vehicle that was at rest awaiting a red light at said intersection. Defendant’s vehicle failed to stop and struck Plaintiff’s vehicle from the rear.”

Can you hear the snores? Imagine how much worse it would be if that attorney was giving the opening statement in a partnership dissolution case, or an easement dispute, or a trust litigation.

Attorneys’ stock in trade is story. If that is our tool, shouldn’t we know what a story is? Shouldn’t we know how to create a story? Aren’t we like the director of a movie painting word pictures with scenery, characters, conflict, drama, and resolution? Until we think of ourselves like that, we will never fully understand how to present compelling trials for our clients. Continue Reading →

Persuading Juries: The Heart vs The Head

I received an interesting response to my blog post, “Three Comments About Losing a Trial.” Tony F. Graf, Jr., Assistant Attorney General, American Samoa, sent me a note about the challenges he has persuading juries in American Samoa. I want to share his comments with you to make a point:

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