Jurors are usually skeptical. Judges are regularly unsympathetic. Lawyers need to recognize these facts and learn to adapt in the modern courtroom.
I did my undergraduate work in communications, specifically radio and television. If there was anything that experience taught me it was that in order to convince people that your cause is the one that should prevail, you have to connect with them so that your message isn’t lost in the courtroom clutter.
What do I mean by “courtroom clutter.” Well, it’s part and parcel to the public justice system process, which forces us to pursue claims and seek justice in a rigid, formalistic fashion that is admittedly imperfect but, like American democracy, still represents the best that mankind has come up with to date.
The system requires us to pursue our causes according to a formula that applies difference legal processes, known as “civil procedure,” to analyze facts supported by evidence according to legal rules and principals, what are generally referred to as “substantive law.”
The formula dictates that we uncover facts through a process called “discovery.” When we need the court to act on our behalf or rule on how the law and facts interact, we submit our requests in the form of written or oral motions. We argue most things in briefs with strict page limits and argue orally at the counsel table with even stricter time limits. In the few cases that go to trial (since 90+ percent of matters settle), we do that traditional dance called “trial,” where everything is rigid and regulated, sometimes for good purpose, sometimes because it’s good for the judge, sometimes because special interests that lobbied the politicians to make sure we do it a certain way and sometimes because that’s how grandpa did it and good enough for him, good enough for us.
Each of these processes has its strengths and weaknesses and there are legions of dedicated, creative judges and lawyers continuously tweaking the system.
Even so, the justice system is structured in such a way that the process can other get in the way when we’re trying to communicate what’s important about our cases. That’s courtroom clutter. We need to find ways to cut through it. We must learn how to better connect with decision makers in a courtroom setting.
Thinking about this reality, I have come to believe that, while there are various advocacy techniques and tricks of the trade taught in classrooms and seminars across the country, lawyers rarely step back and view the justice process in an integrated, holistic fashion.
The problem starts in our law schools. The traditional approach to trial practice is to chop up the system into pieces and teach them all separately. So, a lawyer might learn about trial through a moot court or trial advocacy program, but they won’t learn how to gather the evidence they use at trial. Or, a class might teach basic tools like deposition taking or negotiating towards settlement, but they won’t connect those processes with the trial process.
The problem continues when we begin practice. The process of justice is so expensive that most of the training we provide new lawyers is dictated purely by what cases are on the docket that need immediate attention. Depending on the quality of cases a young lawyer work on, they may receive broad training applicable to a wide range of legal problems, or they may only see a narrow sliver of the justice system and find themselves ill-equipped to venture outside their specialized world. Not so good for the clients, since human problems are rarely crafted by cookie cutters.
So, I have concluded that the first step in better connecting in the modern courtroom requires adopting an integrated approach to problem solving in a civil justice system. It means considering how to best connect the dots from beginning to end without neglecting any steps. That means beginning with a means of keeping skills current, then case evaluation, selection and intake, investigation and evidence gathering, organizing and interpreting evidence for use in the proceedings, law and motion practice, optimizing mediation and settlement opportunities, trial preparation and advocacy and appellate proceedings.
More on this in future entries.
Trial lawyers are in the truth-seeking business and any tool we can use to help us in that endeavor are welcome.
Researcher Paul Ekman is a pioneer in the field of recognizing emotions from facial expressions. I’m reading his book, Unmasking the Face as a sort of personal introduction into his work. You can find Mr. Ekman on the web at www.paulekman.com. Ekman and his co-author, Wallace Friesen, teach at the University of California Medical School in San Francisco.
Ekman writes: “The trial lawyer often can’t trust the words of a witness or client. He needs another source, such as the face, to tell him how the person really feels.”
The book focuses on facial expressions that reveal six basic emotions — happiness, sadness, surprise, fear, anger and disgust. Relying on the scientific method and hard research, Ekman documents a wide range of facial expressions that are universal among mankind. He also provides a series of exercises that you can use to help practice recognizing and interpreting the expressions he documents.
Just as interesting, Ekman’s work seems to have found its way onto television, in the form of the Fox television show, Lie to Me. I’m going to watch an episode for fun. Can’t be all about work!