Tuesday, December 22, 2009

Merry Christmas, Happy Hanukkah, Happy New Year

This says it all. Check out the video.

I'm still here

I admit it's been awhile. Work, travel, life. But I'm back. So, what do we want to talk about?
I was reently interviewed by The Wisconsin Law Journal about lawyers who do house calls. An odd topic, until I connected the dots. There is a lawyer here in Milwaukee who has spent a lot of money on TV ads, touting that he does house calls. Like, what's the big deal? I have been doing them for 31 years. But it must be a big deal, as why would he spend so much money on that issue?
My guess is some advertising mogul did a bunch of focus groups and found this was a hot button with potential clients. In our Internet age, we are used to having things "delivered" to us at our homes. Why not legal services?
I have copied the article below, I would appreciate your thoughts.

Attorneys making house calls

ImageClients aren’t counseled at the brick-and-mortar office of southwestern Minnesota firm Pluto Legal PLLC, although that building serves as the workplace for three staff members and attorney Lisa K. Pluto when she’s not working from her home.

Pluto is an estate planning and elder law attorney who travels to all her clients, making her a “house call attorney.”

“[I] meet with clients all over the state of Minnesota. We have clients from Luverne to Ely and everywhere in between,” she says. “We meet with them in the comfort of their own homes, at care facilities, at their advisor’s office or wherever they prefer.”

Pluto says there are many advantages to client house calls.

Near the top of her list is that it’s been a huge boost for her bottom line.

“It was the business model — sort of — of a previous firm I worked for,” she says. “They had about five offices all over the state. We decided that cost was not worth it and it was easier to just make house calls.

“Since we started three years ago, I have been booked out at least four weeks in advance.”

Pluto had concerns that clients wouldn’t be comfortable with the fact that her only traditional “land office” is at least 200 miles away. But no one has had a problem with it. Making herself accessible by giving out her cell number has helped in that regard.

She says, “My clients appreciate me coming to them. Many would not get the opportunity to do the planning if we didn’t make house calls.”

Steven B. Goff is a plaintiffs’ personal injury lawyer who’s been making house calls for 30 years — although some clients want to come to his office, and he’s fine with that.

Goff, of Bye, Goff & Rohde Ltd. in River Falls, says that early on in his practice a mentor told him, “If you’re not good enough to meet with clients on their turf, you’re not good enough to take their case.”

“It shows clients that they have a lawyer who cares enough to come to them,” he says. “You get that back with the level of cooperation, for example when you need them to get you documents or respond to interrogatories. I’ve found that long term, it makes the relationship better.”

Making a comeback

Plaintiffs’ attorney Paul J. Scoptur, of Aiken & Scoptur SC, (http://plaintiffslaw.com/) has 31 years’ experience as a house call attorney.

House calls are nothing new, but they’re making a comeback in popularity, he says.

Scoptur learned about their value as a new lawyer, when a prospective client in East Troy told him he had an appointment with another lawyer on Monday, but if Scoptur could get to him sooner he’d consider changing his mind.

Scoptur left his Milwaukee office immediately and signed the client.

It’s simple, from his perspective: “We’re in a service profession.”

JD Haas, a Bloomington, Minn.-based lawyer, says his bankruptcy clients are especially impressed that he’s willing to come to them.

House calls are not unusual for cases involving the catastrophically injured, but they’re rare for clients seeking debt relief.

Haas says he’s happy to make the trip: It gives him an idea of clients’ actual day-to-day circumstances and it shows a level of respect and dignity they might not get elsewhere.

The downside

House calls might not work if you’re in a law firm that’s driven solely by the bottom line, because they can be expensive.

Pluto, Scoptur, Haas and Goff don’t bill their clients for mileage or directly charge for the visit, although Pluto’s car is a company car and all costs associated with it are expensed to her firm.

Sometimes a house call won’t produce any revenue, acknowledges Pluto.

“But I always look at it as positive marketing. Sometimes I may drive 100 miles to tell someone they don’t need to hire us. If they had a good experience, they may tell two friends, who tell two friends — it’s like the Breck commercial from the 1980s,” she says.

You also need to be willing to spend a lot of time in the car.

While Pluto enjoys the variety of destinations and puts her time behind the wheel to productive use returning calls, some people definitely wouldn’t like all that driving.

And she noted the unpredictable driving conditions from November to April in the upper Midwest — although she’s rarely had to cancel a meeting due to inclement conditions.

One last issue to consider is safety.

Goff says attorneys from his firm typically visit in pairs if it’s a first-time visit, while Scoptur notes there are neighborhoods in Milwaukee that should probably be avoided after dark.

Wednesday, November 25, 2009

Boys will be boys

Well, another interesting day here in Wisconsin. Two of the biggest advertisers in the personal injury field here in Milwaukee are facing up against each other in court. The reason? Apparently Avis, that being the firm of Cannon & Dunphy, has been sued by Hertz, that being Habush, Habush & Rottier. The reason? Seems like the Cannon firm bought the key search words "Habush" & "Rottier" on Google, so that whenever someone types in either of those search terms when looking for a lawyer, the Cannon firm's website link pops up first. At first Bill Cannon denied knowledge of the whole thing, then later, according to the Associated Press, he acknowledged paying for the keywords but denied any wrongdoing, saying it was following a legal business strategy.
Legal, maybe.
But as I said when interviewed about the lawsuit,
“If someone is looking for me, I’d hope I’d be near the top of the list. If you can’t have your own name, what can you have?”

Tuesday, November 24, 2009

Another useful tool from Google

Google is now offering FREE access to a huge amount of U.S. law through Google Scholar.

Why is this a big deal? Because historically law firms have had to pay incredibly high rates to gain access to online case law via services such as WestLaw and Lexis. Many law firms pay thousands of dollars each year for legal research through these services, dollars hopefully that can be saved in the near future.

Google Scholar is a freely-accessible Web search engine that indexes the full text of scholarly literature. The beta version was launched in late 2004, and now the Google Scholar index includes most peer-reviewed online journals from many of the world's scholarly publishers.

Here's the official Google Blog post, "Finding the laws that govern us," regarding their new service.

http://googleblog.blogspot.com/2009/11/finding-laws-that-govern-us.html

Go to the Google Scholar home page and select the radio button for Legal opinions and journals. You can search by the names of the parties in a particular case or the type of decision. Not only will Google Scholar return the results for a specific case you are looking into, it will offer links to associated cases for your further research.

While Google's current offerings don't match all the features of Lexis yet, it is only a matter of time until we can accomplish all we need to do for FREE.

And that's the way it should be – information wants to be free.

Saturday, November 21, 2009

The New Jury Expert is out

The American Society of Trial Consultants has a great publication called The Jury Expert. The new edition is out, check it out!

Monday, October 26, 2009

Very Off- Topic

I flew back from Las Vegas today, did a presentation at the AAJ Mega Seminar on Overcoming Juror Bias, Rules of the Road and Damages. Anyways, its a long flight. I recently downloaded all of the new, remastered Beatles songs and put them on my iPod. First of all, the new sound is incredible. Clear, crisp, sounds great.

However, the point of this post is that Ringo Starr, aka Richard Starkey, is the best drummer in rock history. Not flashy like Keith Moon, not gonzo like John Henry "Bonzo" Bonham, but listening to these remasters, it is clear that he was the backbone of all the great Beatles songs, he knew just what each song needed.

As George Harrison said, Ringo had "the best backbeat in the business."

Take a listen. Now back to the law business.

Thursday, October 1, 2009

Anatomy of a medical malpractice verdict

I came across an interesting law review article with this title. It is written by 3 trial consultants and discusses a lot of the psychology that jurors bring to the table. It is 70 Mont. L. Rev. 57. I can't attach it or a link to the blog, but if you want a copy, sent me an email and I will send it to you.

Wednesday, September 30, 2009

The Jury Expert

The American Society of Trial Consultants, under the direction of editor Rita Handrich, has an outstanding publication: The Jury Expert. Each issue is full of interesting articles that benefits trial lawyers and consultants alike. Check out the current issue at http://www.astcweb.org/public/publication/.

There is an article on , with commentary by yours truly.

Let Rita know what you think. She can be contacted at rhandrich@keenetrial.com.
(Rita loves positive reinforcements:-)

Sunday, September 27, 2009

Words

Words. It’s what we use to communicate. Meaning comes from various sources, but words are what we use every day to communicate with each other. However, it’s not what you say, it’s what people hear.

Frank Luntz is a Republican consultant. He was instrumental in developing the Contract with America that Newt Gingress made famous. He has written a book, Words That Work, which is essential reading for any lawyer.

His key point is simple: It’s not what you say, it’s what people hear. And as a lawyer, that is a key concept in communications. I recently was picking a jury in a brain injury case. I asked one of my standard questions, dealing with money. “ At the end of this case, I will be required to ask you for money for my client. How do you feel about that?”

A young man raised his hand. He said “ Let me make sure I understand. At the end of the case, you are going to ask us to give money to your client.” I said “yes.” He replied, “Well, I don’t have a lot of money.”

It was about what he heard, not what I said. He thought it was his money that was going to my client. I didn’t communicate very well to this juror.

There are some rules for effective communications with jurors.

Rule #1: KISS (keep it simple stupid)

Simplicity is good. Small words work better than large ones. We want to talk like lawyers, rather than people. John Kerry included this in one of his speeches while campaigning for President:

“A bold progressive internationalism that stands in stark contrast to the too often belligerent and myopic unilateralism of the Bush Administration.”

Huh?

Madison Avenue has mastered the use of words in advertising. The following are examples of KISS.

Mac vs Macintosh
Fed Ex vs Federal Express
IBM vs International Business Machines
KFC vs Kentucky Fried Chicken
DQ vs Dairy Queen

So how do we use this in our practice? Well, look at some terms we use.

Preponderance of the evidence. What does that mean to the average juror? Nothing. What does it really mean? More likely right than wrong.

The greater weight of the credible evidence. What does that mean to the average juror? Nothing. What does that really mean? More likely right than wrong.

Deviation from the standard of care. What does that really mean to the average juror? Nothing. What does it really mean? Not following the rules.

We need to use language that connects with jurors on an everyday level. Don’t be lawyer man and lawyer woman. Be every man and every woman.


OK, time for Rule #2: Use Short Sentences

Brevity is good. Sometimes we have a desire to do lawyer speak. Don’t. Think about some of the best slogans of our generation.

“Just Do It”
“I Like Ike”
“JFK, All The Way”
“It’s the real thing.”

These simple phrases say a lot. When we try to convey rules to the jury, we also need keep them brief. Remember, simple is good, complex is bad. One of the keys to cross examination is one fact, one question.
Remember My Cousin Vinny? Vinny crossed the eyewitness about what he saw. Bushes, trees, screens, he walks him through his view, using pictures. And asking one fact/question. Very effective. Our best tool on cross is asking one fact, one question. Watch the scene from the movie, it is very instructive. And funny.

Rule #3: Establish Credibility

I know it seems simple, but we need to create positive messages. So often we spend time tearing down the other side, we lose track of what is really important: establishing the credibility of our client. You can have the best case in the world, but if the jury doesn't like your client, if the jury doesn't believe you client is credible, you will lose. So, how do we do this?

We need to show several things. First of all, we need to show that the plaintiff is deserving. Deserving of the empathy of the jury. Don't seek sympathy, seek empathy. Sympathy is where the jury feels sorry for your client. Empathy is where the jury is motivated to help your client. And that help will only come if your client is deserving of their help.

Personal responsibility is still the dominant juror attitude. Usually the defense uses this against us. Turn the tables and make this your issue, not theirs. Show that your client accepts responsibility for their health. All the therapy visits, all the trips to the doctor. Show she accepts responsibility for the missed appointments because she had to piick up the kids from school. In a recent trial, the defense lawyer attacked my client for missing 6 weeks of therapy. It turns out that she was caring for her grandchildren during that time. She said she knew she needed therapy but her family came first. She accepted responsibility for missing the appointments and the jury understood why.

I have a hard and fast rule: I will not represent anyone who doesn't have a job. Paraplegics and quadraplegics have jobs and contribute to society in many ways. Certainly someone with a back injury can as well. It can be a part time job, it doesn't matter. But the plaintiff needs to have a job. That shows that the plaintiff is accepting responsibilty and is trying to help his family as best as he can. Again, it establishes the credibility of your client.

The case isn't about money for nothing. Instead, frame the case as money in exchange for health, The plaintiff has already paid with her health. Now it's time for both sides to pay.

Rule #4: Be Consistent

It's important to create a trial theme and stick with it. Jurors develop a trial story early on and based on what you give them. There is something called the Availability Bias. Information made available early frames how the evidence is received. You want the jury to create a favorable trial story, so you need to make the bad conduct of the defendant available to them first. It used to be that we would talk about the plaintiff first. Bad idea. Start with the bad conduct of the defendant, the choices he made and how those choices led to the harm. The Availability Bias is powerful. Use it to create a consistent story that is adopted by the jury.

Rule #5: Be Novel, Be Different.

Words frame our message. Death tax vs. estate tax. Gaming vs. gambling. The words we use are important. For example:
Its not chiropractic and massage therapy, its complementary medicine

Its not doctor shopping, its a second opinion
Its not an accident, its a collision

Its not compensation, its payment for health

Its not defenses, its excuses

Its not a soft tissue injury, its a non-surgical back/neck injury

Its not failures, its choices

Its not pain and suffering, its harms & losses

Use words to frame your case. Remember, its YOUR case, not the defendants case. Framing the case helps establish the trial story that you want the jury to adopt as theirs.

Rule #6: Sound and Texture Matter
There are certain rules regarding sound and texture that have to be kept in mind when communicating. Katherine James and Alan Blumenthal are actors and trial consultants in California. They help lawyers talk. Yes, that sounds odd, lawyers talk too much, but Katherine and Alan emphasize inflections. Rising and falling inflections at the end of a question. A lot of meaning can be delivered by a rising or falling inflection.
The Rule of Threes.This is a long recognized method of conveying sound and texture. It is used often in songs. I was driving today and happened upon a Kinks song (yes Im dating myself), All Day and All of the Night. Classic example of the rule of threes. The refrain was sung 3 times, several times.

In speech, we see it as well. "We came, we saw, we conquered." " By land, by sea and by air." And my favorites, "Yabba, Dabba, Doo" and "Snap, Crackle and Pop." Use words that convey texture and sound.

Rule #7: Make the Case Bigger

It's not this case where this rule was broken. It's bigger than this case. A broken safety rule can affect anyone, even a juror or her family. Make the case bigger than just your client so the jury feels they are deciding something important. Make the case bigger than just your client so the jury understands that breaking a safety rule can impact them next time. Focus on the industry, not the event. It’s about big medicine, big business, big nursing home chains. Framing the case around the industry makes jurors think it can happen to them. And they don't want to be next in line. The tentacles of danger can spread far and wide. Let the jurors know they can spread to them and their families and the only wasy to stop it from happening is to bring in a verdict for the plaintiff. Use words to create the frame for that concept.

Friday, September 18, 2009

Jobs

We all have jobs. Whether it's work, being a parent, teaching Sunday School, coaching sports, we all have jobs. That's why I ask about jobs at depositions. One of my favorite deposition questions is "What qualifies you to do your job?" Most of the time, you will find that the person is at least marginally qualified to do the job that they are doing. But sometimes, they are not.
Check out the deposition clip of the safety director at a major manufacturer here in Wisconsin. My client, a delivery man, was hurt due to unsafe practices at the plant. This is one of Eric Oliver's favorite deposition clips. Watch the non-verbal aspects of the clip, they are almost better than the answers.
Remember, ask about jobs.

video

Stuff does happen after all.

Last night, I thought I posted an entry, complete with video. Clearly it is no longer here. So, stuff does happen after all. Now, if I can only remember what I thought I had posted...

Friday, August 28, 2009

Stuff happens? I don't think so

I did several focus groups this week and of course, there were the "stuff (shit) happens" jurors in the groups. In one group, the 57 year old conservative male, who by the way, when asked 3 people he admired jotted down George Bush, Rush Limbaugh and Sarah Palin, started out the deliberation by saying, "well, you know, I say this a polite way but sometimes, stuff happens." Another lady chimed in a few minutes later saying this shoulder dystocia injury was "God's will."
By the way, she could not be swayed to find the doctor negligent under any circumstances. I asked her "what if the doctor was drunk?" It was still "God's will."

Anyways, the "stuff happens" jurors were met by resistance from the most unlikely of sources: a 22 year old male who listed himself on the questionaire as "very conservative." Lately I have found that the 25 and under age group is generally not good for plaintiffs so I was a bit surprised when he challenged the "stuff happens" members of the focus group. He said "stuff doesn't just happen. Stuff happens when someone is negligent, stuff happens when someone isn't careful, stuff happens when someone isn't paying attention. Stuff just doesn't happen."

It was a stirring rebuttal, one that I will probably use in trial at some point.

Here is a short article titled "Accidents Just Don't Happen." I hope you enjoy it.

ACCIDENTS DON’T ‘JUST HAPPEN’

Whenever there’s an accident, whether the result is a fatality or a broken plate or anything in between, someone is sure to ask: "How did it happen?"
The answer should always be the same: "It didn’t happen; it was caused." And it’s almost always
possible to trace it back to somebody—or several somebodies—who fell down on their job
somewhere along the line. Either they did something they shouldn’t have done, or they failed to do something they should have done.

Let’s suppose, just to illustrate what I’m talking about, that you fall on the stairs at home and break a leg. That accident didn’t "just happen"; there was no evil spirit putting the hex on you or lurking in the shadows to trip you. No, there was at least one quite tangible cause.
The odds are that the fall was your own fault—that some act of yours (or failure to act) was to blame. Maybe you were in a hurry and took the stairs faster than usual—faster than was safe. Maybe you were carrying an awkward load that put you off balance and kept you from grabbing the railing to steady yourself. Maybe you forgot to turn on the light over the staircase. Maybe your eyesight has been playing tricks on you, but you’ve put off seeing an eye doctor and getting proper glasses. There are probably dozens of other "maybes" that boil down to your being the cause of your own fall.

On the other hand, maybe there was someone else involved: one of the children left a toy on the step, or whoever discovered the stair light burnt out failed to replace the bulb. There could even be a combination of causes: You were in a hurry and didn’t turn on the light, so you didn’t see the toy that someone else left there, against the rules.

Accidents on the job don’t "just happen," either. They are caused by the actions or inactions of one or more people.

Now for the good news. Just as people cause accidents to happen, they can prevent them from
happening. That’s the reason for the safe work practices we have established and the posted list of safety rules. It’s why we have regular training sessions to inform and remind you of ways to keep yourselves and your co-workers safe. It’s the reason we provide personal protective equipment that can help keep a potential hazard from causing actual harm.
But no work practices, rules, training, or equipment can prevent an accident from happening. You do that. You follow the lockout-tagout procedure; you leave machine guards in place; you tag and report a damaged tool or wire; you wear your safety glasses or bump cap.

Some of us have special responsibilities that have an effect on everyone’s safety. A maintenance
supervisor, for example, has to do his or her job correctly or mechanical failures could be followed by accidents. The safety committee chairperson must be sure to post any change in evacuation procedure.

And so on. But for the most part, your own safe behavior is your own greatest safeguard. Remember that when you’re tempted to take a shortcut or break the safety rule "just this once" or "just for a minute." That one minute could be exactly when the accident doesn’t "happen" but is caused.

Saturday, August 22, 2009

SpongeBob?

Well, tort reform has hit SpongeBob Squarepants. Saw this on TV the other day, yes, I watch cartoons. I have seen all the I Love Lucy reruns, so cartoons it is. Anyways, it appears as if the tort reformers are starting to poison the kindergarten class. Watch out for the next generation.

Actually, I have found in focus groups that the 25 and under group are not very plaintiff friendly. They tend to be the "stuff happens" juror, the one that finds any reason not to find for the plaintiff. I am not big on stereotypes when selecting jurors, but I am wary of that age group.
My daughter was on a jury when she was 19, PI case, car crash. She, as well as the others, found for the defendant. My daughter, her father a PI lawyer!

They are poisoning the next generation

video

Sunday, August 16, 2009

Depositions

I love depositions. They can be so much fun. I just posted one of my favorite deposition clips. She was the Director of Nursing at a nursing home that I sued. I won't tell you the facts, I'm sure you will be able to figure it out when you watch the clip.

Lessons? First, stay on your path. You have a line of questioning you want to follow, don't let the witness knock you off your line.

Second, don't be afraid to ask about the standard of care. If you can establish the rule from the other side, it is very powerful. More powerful than if just your experts say what the rule is.

Third, video tape all depositions. Watch her body language, it is as valuable as the testimony she gives.

I hope you enjoy the clip and learn something from it!

One of my favorite deposition moments

video

Friday, August 14, 2009

Interesting revelation today

I was a panelist today at a conference of defense lawyers here in Wisconsin. The topics included pre-trial and trial issues that both sides of the Bar encounter. One panelist, a defense lawyer, started talking about a case where the plaintiffs' lawyer said, in voir dire, that he would be asking for $5,000,000 at the end of the case. His question, for us plaintiff guys, was why did he do that?
I, being the quiet one, blurted out "anchoring." He looked puzzled, but moved on. Later, the discussion turned to a situation he recently had where the plaintiff didn't put in the medical bills. I asked what they were, he told me, they were under $2,000. he asked us plaintiff guys why he would do that, as he found it odd. I again blurted out "anchoring." I then related a story of how a friend of mine recently tried a case and didn't put in the medical bills, which were significant, but not eye opening significant. The jury returned a verdict of $22,000,000. he told me that he didn't put in the bills because he didn't want to anchor the verdict too low. Good move, Jim.
Anyways, defense lawyer, who has been around close to 40 years, turns to me and says "where can I find out more about this anchoring stuff?"
What's the point? The point is, I think those of you who come to AAJ programs, learn about juror bias, learn about juror attitudes, learn about the psychology of jurors and do focus groups, are way ahead of our defense brothers and sisters.
Have a good weekend.

Thursday, August 13, 2009

Good book about persuasion

I recently read this book and found it to be a fascinating explanation on how we can influence others to act. It is called:

Influence: The Psychology of Persuasion
by Robert B. Cialdini

Below is a review, which I concur with. Pick it up, its easy to read and the author describes some interesting studies and tests which support his conclusions.

Another interesting read, this time about the psychology of persuasion. Here is one reader’s review, which I agree with.
Cialdini believes that influence is a science. This idea attracted me. As a rhetorician, I have always thought of persuasion as more of an art. Cialdini, however, makes a first-rate case for the science point of view. But maybe most importantly, he makes his case in a well-written, intelligent, and entertaining manner. Not only is this an important book to read, it is a fun book to read too.

He introduces you to six principles of ethical persuasion: reciprocity, scarcity, liking, authority, social proof, and commitment/consistency. A chapter is devoted to each and you quickly see why Cialdini looks at influence as a science. Each principle is backed by social scientific testing and restesting. Each chapter is also filled with interesting examples that help you see how each principle can be applied. By the end of the book, I had little doubt that these are six important dimensions of human interaction.

I highly recommend this book to all professionals. It does not matter if you are a manager, sales person, pastor, or non-profit volunteer. The ideas in this book, once applied, will make it easier for you to accomplish your goals. In a video featuring the author, Professor Cialdini even goes so far as to promise that these principles can help you influence the most resistant of all audiences–your children.

With a claim like that, who wouldn’t be intrigued?

Tuesday, August 11, 2009

September 2nd teleseminar

On Wednesday September 2nd, Phillip Miller and I will be doing a teleseminar for Trialsmith on using strategic case planning to maximize recovery in your cases. You can sign up at https://www.trialsmith.com/TS/index.cfm?showfullpage=1&event=showAppPage&pg=semwebCatalog&panel=showLive&seminarid=1682.

Why does strategic case planning work?

When we work with a trial team to prepare a strategic case plan, one of the primary reasons for success is the amount of focus that is brought to bear on the case. Our uninterrupted work sessions can last 2 days without interruptions of any kind. They are done away from your office. There are no appointments, depositions, phone conferences, or other distractions during our work sessions. We spend every minute of each day focusing on the one case that you have selected. At the end of a work session, we guarantee it will be the most intensive case preparation you have ever experienced, short of final trial prep.

Strategic Case Planning allows you to shape a trial story and case presentation that incorporates what we know about juror learning, juror bias, memory, and decision-making. It identifies the case critical points for your case, and the opposition case, and it serves as a guide to development of relevant visuals that are tightly integrated with both your case, and the case you are rebutting.

Strategic case planning is valuable at any point in litigation, but the sooner the case planning is conducted, the greater its potential benefit. Strategic case planning is most powerful as a tool if it is used before discovery, or at least before case critical depositions are taken. When done before discovery begins gives, you will expose how every aspect of the opposition’s case, along with juror biases and other negative non-evidentiary inferences, will be perceived by the fact-finders and shape deliberations. More importantly you will begin discovery with a detailed plan that allows you to rebut all the landmines that favor the opposition, and a plan of what you need to elicit from opposition witnesses that will give you evidence that you need to prevail. From that earliest point, to preparation of your own client, preparations of your experts, depositions of defendants and their experts, jury selection and case presentation, strategic case planning helps to shape and guide trial strategy and presentation.

By focused discovery that rebuts the landmines in a case, you can change the nature of the case and the opposition’s perception of their risks. This can provide a tactical advantage that can be decisively exploited during settlement. Numerous clients who have completed early case planning report that they are able to use what they learned in case planning to better hit their opponent’s weak points during discovery and maximize their client’s recovery in mediation.

Here are some of the specific benefits that early strategic case planning can provide for you and your clients.

1. Identify problems in the case early, so you will have time to fix them
Looking at a case through the lens of a plaintiff gives a different view than what the jury will hear and see, and things get missed. There are “blind spots” in our ability to anticipate what the opposition is doing/will do, and what the jury will think is true. Inevitably when “Blind spots” are discovered they involve evidence that is serious enough to affect case value and outcome. Late discovery of these problems provides no time to develop effective rebuttal proof. Instead, the attorney is limited to what he/she can argue and hope that the jury puts more weight on the argument than they do the evidence. One of the main benefits of doing strategic case planning early is that, by finding such blind spots, you have time to rebut the landmine created by the blind spot, and potentially expose blind spots of the opposition as we. Every time we do strategic case planning we are able to expose landmines and blind spots that were completely unanticipated and would be outcome determinative if un-rebutted.

2. Anticipates the questions jurors will ask during deliberations.
Any statement by an attorney that is not clearly supported by facts has little chance of survival during deliberations. Questions like: How do you know that? Why is that true? Why is that important? What does that have to do with this case? are integrated into the process of strategic case planning so that your evidence answers the questions the jurors want to ask, which is much different than shaping evidence to prove a prima facie case. Successfully anticipating and answering juror questions is the path to victory.

3. Creates discovery that is focused, efficient, and effective.
If strategic case planning is begun before discovery, you will gain insights about areas of inquiry that you never would have anticipated. The strategic case plan will clearly point to which witnesses your will need to depose. Those witnesses are often different that what you might have thought of if you had “made a list” because they are necessary to respond to case landmines and rebuttals that would not have been otherwise obvious. The plan will also show what experts you will or will not need, and provide guidance on how to potentially eliminate 1 or more experts through your rebuttal.

4. Prepares you for efficient, reliable focus group research.
Strategic case planning produces a detailed presentation plan for anyone who will be representing the opposition in focus group testing and mock trials. Too often focus groups hear a weaker, less persuasive presentation than they will from the opposition lawyers at trial, lessening the reliability of the information you receive. Focus group research that does not present the opposition case gives you little of value. Just as importantly, strategic case planning provides specific rebuttals to the opposition case that are honed, refined and reduced to writing. When the focus group exercise is conducted, the strength of those specific rebuttals can be measured-not just generalities.

5. Provides guidance on the graphics to be used
Strategic case planning forces the early identification of key points that constitute the rebuttal to landmines, and the case-in-chief. These key points, and the facts that support them, form the plan for the visual strategy in the case. Early in the case is it possible to see what the visual strategy willl look like, incorporate elements into the discovery, andx test early drafts of the visuals with focus groups.

Please join us on this teleseminar, it will benefit both you and your clients.

Monday, August 10, 2009

Memory and Marathons

The Neurocritic has a fascinating summary of a recent paper investigating different types of memory in marathon runners. Why marathoners? Because completing a 26.2 mile race is an insanely arduous exercise, and leads to the massive release of stress hormones such as cortisol. Here are the scientists:

Indeed, cortisol levels recorded 30 min after completion of a marathon rival those reported in military training and interrogation (Taylor et al., 2007), rape victims being treated acutely (Resnick, Yehuda, Pitman, & Foy, 1995), severe burn injury patients (Norbury, Herndon, Branski, Chinkes, & Jeschke, 2008), and first-time parachute jumpers (Aloe et al., 1994).

But before we get back to the marathoners, a quick discussion of human memory. There are two distinct types of memory, which rely on different pathways in the brain. Explicit memory involves the recollection of discrete facts, events, names, faces, etc. It's a conscious process and is largely modulated by the hippocampus. (This was first discovered by studying patients with hippocampal lesions who turned into amnesiacs.) The second type of memory is implicit, largely unconscious and allows us to act based on previous experiences without taking the time to recall discrete memories. Think, for instance, of riding a bicycle. You have an implicit, procedural memory of the motor movements required to balance on two skinny wheels. As a result, you don't have to relearn the movements, or even consciously consider them, every time you go for a ride.

It has long been known that stress disrupts explicit memory, which is why it's not good to be too stressed when taking a test. The scientists hypothesized that finishing a marathon would wreak havoc on our explicit memory system, while leaving implicit memory largely intact. (There are probably good evolutionary reasons for this. It's not useful to forget how to throw a Pleistocene spear when being chased by a bear; if stress disrupted our procedural memory, we'd all be dead by now.)

The experiment itself was straightforward: 261 marathoners running in either the New York City Marathon or the Boston Marathon were given two different verbal memory tests, targeting the different memory pathways. 141 of the runners were tested within 30 min of finishing the race (when their cortex was still flush with cortisol) while the other 120 were tested 1-3 days before the race (this was the control group).

The end result? The group that had just finished the marathon showed a significant decline in explicit memory. They were less able to consciously recall a series of words that they had been shown only a few minutes earlier. However, after running 26.2 miles the marathoners actually showed a large improvement in implicit memory. In other words, the extreme stress and utter physical exhaustion sharpened their ability to act on information stored in their unconscious.

Sunday, August 9, 2009

Dead By Mistake

That was the "above the fold" headline on the front page of today's Albany Times-Union. It headlined a series of stories that detailed the 2,000,000 deaths that have occurred during the past 10 years as a result of preventable medical errors. Because this was a national investigative piece by Hearst newspapers, similar headlines appeared in all of its 14 daily papers, including the all-important San Francisco Chronicle (Speaker Pelosi's hometown paper). The articles are comprehensive, compelling and contain no anti-lawsuit, anti-lawyer or anti-consumer bias or inuendo. I believe that they are the most helpful national articles that ever been written about medical errors and their impact that have ever been written.

As part of the series, Hearst has even created a webpage www.deadbymistake.com

Check it out, very interesting.
Ok, been a while. Busy summer, son's wedding, married a fellow PI lawyers' daughter. Anyways, I am trying to catch up and post meaningful things here. Just got back from speaking to the Colorado Trial Lawyers Association, yes, they haven't changed their name! I became a member, since I have spoken there so often.
I spoke on damages and Using the Rules in Opening. You can download my powerpoint presentations at www.paulscoptur.com. Free, to boot!

I have been doing quite a bit of consulting and focus groups lately, and one thing that seems a constant is that the youngest generation, the 25 and under group, are not very good for plaintiffs. I really don't generalize or stereotype as to jury selection, but I have consistently found that no matter the location, Idaho, Wisconsin, Colorado, this age group is not very plaintiff friendly as a whole.

I'm wondering what your experience is with this age juror?

For example, my 23 year old daughter, raised in a family of what I would consider to be more liberal than conservative, recently announced that she was leaning Republican. And she lives in Madison!

Anyways, when picking a jury, keep that in mind.

Sunday, June 7, 2009

Social networking

This is a big thing now. Facebook, MySpace, Twitter. But my question is how does this help the legal profession?
My daughter is the Marketing Director of a large law firm. She is a social networking genius. So, she gets the "old farts", like myself, to buy into the social networking thing. what happens? New clients come through the door.
Now, I'm not sure that it works for everyone, but I suspect there is something to this social networking thing. So, go to Facebook, set up an account and "friend" me!

Saturday, June 6, 2009

Starting my blog

Ok, I have too much time on my hands, so it's time to start a blog. Was at the American Society of Trial Consultants conference this week. I presented on focus groups and how they can be used to frame your case. Anyways, listened in on a few of the other speakers and came across David Matsumoto. David is an expert on microexpressions. That is the science of reading emotions from very quick facial expressions, often 1/30th of a second. It was fascinating!
There are seven basic human emotions: fear, sadness, contempt, disgust, happiness, surprise and anger. After 3 hours of training, I was able to ascertain these emotions with amazing accuracy!
Well, my first attempt netted about 30% but after the training, it approached 80%.
Anyways, check David out, it is pretty cool.