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What Sitting Bull Would Teach Those Who Want to Be Trial Lawyers.

Sitting Bull was a Hunkpapa Lakota holy man who led his people as a tribal chief during years of resistance to United States government.

Sitting Bull was a Hunkpapa Lakota holy man who led his people as a tribal chief during years of resistance to United States government.

The Lakota warrior and chief known as Tatanka Iyotake, and as Sitting Bull to the white man, did not display heroism and leadership throughout his life. When he was a young member of the Teton Sioux, he was  awkward and bore the nickname, “Slow.” Despite Slow having killed his first buffalo by age ten, he remained a boy because the Plains society required that he achieve success in battle through a courageous act.

When Slow was fourteen, he watched as his father and others left camp to attack their traditional enemies, the Crow. Slow was still small and too young to be skilled in the use of weapons, but he was anxious to win the respect due to a warrior. Deciding for himself it was time to become a man, Slow mounted a pony and pursued the war party. When he caught up, he announced to his father, “Today I will become a warrior.”

Slow’s father, not wanting to restrain his son’s spirit, welcomed him, instructed him on bravery and wisdom in battle, and handed him a coup stick with which he could strike an enemy and gain honor.

The Sioux set an ambush for the Crow. As the Crow party approached, Slow burst from cover and charged the Crow party. The surprised Crows retreated. Slow overtook the slowest Crow warrior, who dismounted and shot at Slow with his bow and arrow. The warrior missed, and Slow hit him with the coup stick, knocking him over. The rest of the Sioux arrived and killed the Crow warrior and routed the other warriors.

Upon returning to the camp, Slow’s father placed Slow on a strong horse and paraded him through the camp shouting, “My son has struck the enemy! His is brave! I name him Sitting Bull.”

The name was not a coincidence. Sitting Bull’s father had encountered a talking buffalo during a hunt. The buffalo recited the names of the four stages of the buffalo’s life, after which the Plains people modeled their own lives. The sitting bull was the first and youngest stage, and a name of great honor. Slow’s father had taken the name Jumping Bull after the experience. The “new name” bestowed on Slow represented that he had passed from boy to warrior.

I want to suggest to you that law school specifically, and society in general, fail to prepare one to step into the courtroom as a warrior. Unlike the Native American culture where major life changes were celebrated through elaborately staged ceremonies marking rites of passage, we graduate law students barely prepared to attend a bar review course and expect them to know how to try a case. Choruses bemoan that attorneys have lost the skills of the trial lawyer when an attorney, particularly in large firms, rarely goes to trial more than ten times during their entire career.

The rites of passage in Native American culture that marked the emergence of the candidate from training and established challenges to prepare him (it was always males) for rebirth as a new person – possessed of a new status, new wisdom, new identity, and a new name, commemorated the birth of a new member of the culture.

I suggest we adopt a changed vision of what trial is, and how we train people to step into the warfare we call trial. We attend law school with law school professors telling students how to try cases by reciting rules born of fear and the need to control: “Don’t ask a question you don’t know the answer to.” “Ask questions that can only be answered ‘yes’ or ‘no’.” “Always appear strong and in control.”

I call, “Bullshit.” I call “Double Bullshit.”

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The Judge Taught Me How to Tie the Expert’s Hands

Man with hands bound

Have your depositions questions really tied the expert’s hands?

 

Yesterday, I finished a nine-week legal malpractice trial receiving an 8-figure verdict. The judge, before whom I tried the case taught me an important lesson concerning experts when the defense attorney sought to tie the hands of one of my experts.

Near the end of my case, I am arranging exhibits and demonstratives I intend to use with my valuation expert. He is the lynch pin of the damage verdict I obtained against an attorney who ruined a business that was the first to the American market with an organic tequila. My expert has prepared valuation figures for the business to establish the harms and losses the malpractice caused. My opponent is a wily old strategist who over almost 45 years has established not only a formidable reputation for winning impossible cases, but an almost perfect 155 and 3 trial record.

Defendant’s Attack on My Expert

Before the court room attendant ushers the jury into the courtroom, my opponent rises and argues that my expert, who will deliver the big damage testimony for me, should not be allowed to testify because “There is no factual basis to support the opinion.”

I respond, “Your honor, my opponent is mistaken. The expert has spoken with an officer of the company he has identified as a comparable business. He obtained the information confirming the assumptions he made and testified to during his deposition.”

The attack on this most important witness begins when the defense attorney seeks to prevent his reference to the information from the company officer.

The judge asks, “On what basis do you think I should exclude the testimony of the expert?”

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Decisions: How Do Judges and Jurors Really Decide?

Last week I went to trial on a dispute between a young man and his grandparents. I represented the young man. He sued his father and grandparents charging  they had stolen $300,000 from a trust set up to provide funding for tuition, living expenses, room and board while he was in college.

The trust was funded by the young man’s mother through a divorce judgment that specified that part of the money she was paying to equalize the property division (buying dead beat dad out of her businesses) would fund the trust with the father and the grandfather listed as the trustees. She fully funded the account.

“You can’t win this case, Young.”

Everyone told me I couldn’t win the case. “The grandparents are old and sympathetic.” The grandparents pleaded, “We did not know there was a trust. No body told us.”  They claimed they never saw the divorce judgment and thought the money belonged to my client’s father. They said they acted only on the father’s instructions. Finally, after the father had taken all the money, the mother signed an amendment to the judgment in the divorce that provided that the mother waived the trust account and waived any accounting of the account.

Friends said, “Run, Steve. Run. You can’t win this one.”

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In Trial, a Picture is Worth a Million Dollars

DEATH BY POWERPOINT.

Death by PowerPoint is an oft heard complaint against the imprudent practice of putting slides on the screen and reading them to the jury. I reject that use of PowerPoint and I have the Million Dollar verdicts to support my opinion.

I have suffered through attorneys who take their whole close and import it wholesale into PowerPoint, then read the slides to the jury. We know how boring it is to have someone read a talk to us – imagine having someone read a talk that you are able to read faster because it is projected in a screen in front of you.

WHAT’S THE SOLUTION? Continue Reading →

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 →

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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