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Mitch Jackson
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General Discussion  - 
 
“Want to be 3x More Persuasive”
by Elliott Wilcox

Veni.  Vidi.  Vici.

Friends.  Romans.  Countrymen.

Snap.  Crackle.  Pop.

For whatever reason, your brain is wired to pay more attention when provided with a list of three options.  Your brain will be persuaded more easily when provided with a list of three arguments, and you’re more likely to take action if you’re given three reasons to do something.

For our brains, three is the magic number.  Not two (“Too few!”)  Not four (“Too many!”).  No, three is the perfect number of options, arguments, or reasons to provide to the person you’re trying to persuade.

Let’s call it the Triad of Persuasion.  If you can find a way to provide someone with three options, three arguments, or three reasons to justify their decision, you’ll have a much better chance of persuading them than ever before.

One of the most effective ways to put the Triad of Persuasion to use is when you need to handle an objection from someone you’re trying to persuade.  It could be the judge you need to rule in your client’s favor, the potential client you want to sign, or the senior partner whose permission you need to work on a career-changing project. 

Regardless of whom you’re trying to persuade, unless you’ve got the Force on your side (“These aren’t the droids you’re looking for”) you’re probably going to encounter objections.

For example, let’s take the scenario with your potential client.  You’ve just started your new solo practice and have done such a great job of marketing yourself and improving your legal skills that now you’re sitting face-to-face with a potential client who could potentially need your legal services for years to come.  But then, just as you think you’ve got everything finalized and are ready to ask for the business, she raises an objection: “I’m not sure we should do this…  After all, you’re just a one-person operation.”

This might stump other attorneys, but not you.  After all, since you’re a professional, you’ve already anticipated this objection.  As Dr. Alan Weiss, the author of Million Dollar Consulting says, there aren’t any objections you haven’t heard before.  So if you’re not prepared to respond to an objection, you’re negligent.

But you’re not negligent, that’s why you have not one, not two, but three answers ready for this objection.

Begin by disarming the objection with a confident statement, such as, “That’s exactly why you need me.”

That statement usually creates a pause or gets the client to ask, “What do you mean?”  Either way, take this brief moment to gather your thoughts.  Then launch into your Triad of Persuasion, outlining the benefits of hiring your single-person firm rather than a large, multi-national conglomerate: “First, you’re going to get my complete attention and will be my number one priority.  You’re going to get a faster response because I can adapt quickly to respond to your needs.  Second, you’re going to be dealing with the principal attorney at all times, so your case will never be handed off to somebody else who doesn’t know everything about the case.  You’re never going to walk into court and see some junior attorney who you’ve never met before.  And finally, since I’m a one-person operation, my fees don’t have to support a gigantic overhead or a large staff.”

(Obviously, if you work for a gigantic firm, you’d have three responses prepared for when the client objects and says, “I’m not sure we should do this…  You’re such a large firm, I’m afraid my case won’t be a priority.”)

By preparing three responses to each objection, you become (literally) three times more persuasive.  But actually, you’ll become even more persuasive than that, because the Triad of Persuasion has a multiplier effect.  By stacking the three reasons, you appear more confident and more prepared, and therefore, you also appear more reliable.

But don’t limit your use of the Triad to those situations where you’ve prepared your responses to expected objections.  You can also use the Triad when you’re speaking off the cuff and need to demonstrate your conviction or your confidence.

Let’s imagine a scenario where you’re at a luncheon and the person next to you asks, “You’re a lawyer, right?  Do you think lawyers should advertise on TV?”

Again, start with confidence.  “I’m glad you asked me that.  There are three reasons why lawyers should/shouldn’t advertise on TV.  First, because…”

When you make that statement, you may not know exactly what your three reasons are going to be.  You’ll probably know exactly what your first reason will be, you’ll have some idea of what your second reason will be, but you might not have any idea at all what your third reason is going to be. 

It doesn’t matter.  You should still begin with the same set-up: “I’m glad you asked me that.  There are three reasons why…”  In fact, you should practice that set-up phrase a few times so that it rolls off your tongue.  That way, while you’re delivering the line, you can put your mind into high gear and finalize your thoughts for reasons #2 and #3.

Watch how much more attentive your listeners become when you deliver three reasons for each question or each objection, rather than the customary one (or worse, the half-answer) that they usually receive.

By justifying your arguments with three points, you look more polished and better prepared.  People will assume that you’ve put more thought into your answer, and will also feel that your answer is more believable, simply because you’ve done a better job of justifying it.  By giving three reasons, rather than one, you’ll soon become more persuasive than ever before!

__________
Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com
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Good article!
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Mitch Jackson
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General Discussion  - 
 
How MMA Fighters and Good Trial Lawyers Really Communicate!

The two mixed martial arts fighters stand toe to toe at the center of the octagon. They are fighting for the title. People around the world are watching on TV and the Internet.

Neither fighter says a word. Neither blinks as they stare each other down. The horn hasn’t sounded, but the fight has already started...

[click the link to read the rest of the post]  http://mitchjackson.com/communicating-before-the-bell/
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Mitch Jackson
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Opening Statement  - 
 
“Are You Promising Too Much in Opening Statement?”
by Elliott Wilcox

“Your closest exit may not be the one in front of you.”

“Your seat is a flotation device.”

“If we start hurtling to our deaths, oxygen masks will descend from the ceiling...”

If you've flown more than once, you've probably ignored this exact same message, haven't you?  It's the standard safety video they play before your plane taxies down the runway.  All of these videos sound pretty much the same, and I'd heard the instructions hundreds of times.  But, much to my surprise, this time I was actually paying attention to the video.

I wasn't paying attention because I needed a refresher in safety instruction.  With as many miles as I've flown, I can probably recite those safety instructions word-for-word.  No, I was watching it for a different reason.  But before I tell you why I was paying attention to the video, let me give you a little background history...

This was my fourth flight in less than three days.  Out of my four flights, every single plane had been late.  The couple sitting in front of me hadn't had a single plane depart or arrive on time, either.  The guy sitting next to me?  He'd been on four planes in two days, every one of his flights had been late, and his last flight had been completely cancelled.  They'd given him two options: wait until the next day to fly home, or fly to an airport 140 miles away from home and drive back.  Collectively, our flying experiences had been miserable.

This final flight was no exception.

We'd boarded the plane like cattle, squeezing ourselves into seats designed to comfortably accommodate underfed children.  Our flight was booked solid, so the overhead bins were jammed to overflowing.  Although I was seated in row 11, my bag was halfway to the back of the plane.  We'd been scheduled to leave at 9:35 PM, but here we were, over an hour later, still sitting on the tarmac and waiting to depart. 

Which brings me to the reason why I was paying attention to their safety video.

In addition to telling us the safety instructions, the video was basically serving as a promotional piece to tell us how wonderful the airline was.  The video was filled with smiling faces, and every passenger depicted in the video seemed to have plenty of legroom.  They showed a plane with enough space in the overhead bins to place all of your carryon luggage and a spare briefcase or two.  Finally, they showed a quick view of their departure board, where every plane seemed scheduled to leave on time.

I turned to a woman seated to my left and commented, “What airline are they flying on?  Lots of legroom, plenty of overhead space, and the planes leave on time...  Can I switch to that airline?!?”  (In all fairness, I won't mention the name of the airline that I was traveling with, but if you've flown anywhere in the past decade, regardless of the airline, you've probably had a similar experience).

The problem wasn't that my experience was bad - I could deal with that.  The problem was that I felt like they were lying to me, because my experience was so far removed from the experience they were advertising.  (Which isn't uncommon...  When was the last time you had a fast food burger that looked like the one in the advertisement?)

Don't make the same mistake with your jury.

In your opening statement, you're presenting them an image of what they should expect to experience during your trial.  But many lawyers seem tempted to oversell their cases during opening statements.  They talk about evidence that will “probably” get admitted, about statements they're “pretty sure” will be be admissible, and develop theories of their cases that will “likely” come to fruition.

Don't fall into the trap of overselling your case during opening statement.  What happens when your case doesn't live up to the image you created?  Even though you present a legally sufficient and persuasive case, when you hold yourself up to a higher standard, that's what the jury will expect.  If you don't attain that standard, they won't come back with a verdict in your favor, even if that standard is higher than what the law requires.

For example, imagine a criminal trial where the defense attorney promises to prove his client is “innocent.”  Why do that?  He doesn't need to prove the guy's innocent, he just needs to show why the government is unable to prove their case beyond a reasonable doubt.  When he assumes the extra burden of proving that his client is innocent, the jury will hold him and his case to that higher standard.  If he can't prove the defendant is innocent (even if he proves that there's a reasonable doubt in the case) his jury may vote “guilty” because they think he's failed to prove his case.

Don't make it harder to prove your case than it needs to be.  You're better off underselling your opening statement and letting the jury discover your case is actually stronger than they thought it would be during opening statement.  Unlike the airline message, where the actual experience didn't live up to the hype, you can't afford to present an image you can't live up to or make promises that you can't keep during trial.  Present a strong opening statement, but then overdeliver on your promises during your case in chief.  When your jurors discover that your case has exceeded their expectations, they'll return with the only possible verdict -- the verdict that favors your client.
___________
Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com

 
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Not only must you get to court on time, but everything you need to try the case also has to be there, at your fingertips.
Any trial strategy should incorporate the mundane. Not only must you get to court on time, but everything you need to try the case also has to be there, at your fingertips. Here are four things you...
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Mitch Jackson's profile photoMatthew Greene's profile photo
 
Great tips. Thanks CEB!
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Mitch Jackson
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Voir Dire  - 
 
One Voir Dire Must Do and One Voir Dire Must Never Do

http://www.a2lc.com/blog/one-voir-dire-must-do-and-one-voir-dire-must-never-do
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One voir dire must do and one voir dire never do offered by a top jury consultant who has worked on thousands of cases and more than 400 mock trials.
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Mitch Jackson
owner

Cross Examination  - 
 
The Danger of Being a Natural Born Leader
by Elliott Wilcox

“You ignored the warning labels, didn't you?”

“The posted speed limit was 35 MPH, wasn't it?”

“You told him you would have the contract signed by Thursday, right?”
Leading questions.

When it comes to cross-examination, leading questions are the best types of questions to ask, because they suggest the desired answer to the witness.  Used effectively, leading questions reduce the witness's responses to a mere “Yes” or “No.”  The real power of leading questions is that they allow you, the examiner, to control the witness using short, single-fact “questions” (statements, actually) to tell the jury your client's story and show the jurors why your client deserves to win.

Used properly, leading questions can be very effective.  That may be why so many trial lawyers want to ask leading questions during direct examination, too.  Even though you've been told, “Don't lead on direct,” if you've tried a fair number of cases, you've probably either seen other lawyers ask leading questions during direct examination, or asked them yourself. 

Not that asking leading questions is always improper during direct examination.  It's perfectly appropriate to ask leading questions on preliminary issues, or matters not in contention.  If we weren't allowed to ask some leading questions, trials would drag on forever:

Attorney #1:  “Sir, please introduce yourself to the jury by telling them your name and what you do for a living.”

Attorney #2:  “Objection!  Leading!  By addressing the witness as ‘Sir,’ Counsel has suggested to the witness that the witness is a male.  Furthermore, counsel is suggesting that this witness has a name and evidently is supposed to work somewhere.  I request that this blatantly leading question be stricken from the record!”

Court: “Sustained.  Counsel is admonished to refrain from leading the witness.”

Without some amount of leading, you'd never get to try the case.  But the danger doesn't arise from leading through those preliminary matters.  The danger arises when attorneys ask leading questions about the most important issues in the case.  Take a look at this example:

Attorney: “So, Mr. Hill, as you approached the intersection, you were looking at the traffic light, weren't you?”

Witness: “Yes.”

Attorney: “You saw that the light for traffic heading in your direction of travel was green, wasn't it?”

Witness: “Yes.”

Attorney: “You could see that the light for traffic on Kaley Avenue was red, correct?”

Witness: “Yes.”

Attorney: “But the garnet and gold Humvee traveling westbound on Kaley Avenue didn't stop for the red light, did it?”

Witness: “No.”

Attorney: “It didn't even slow down for the red light.  It darted right into the intersection, didn't it?”

Witness: “Yes.”

Attorney: “Driving at more than twice the posted speed limit of 25 MPH in that school zone, right?”

Witness: “Yes.”

Attorney: “Plowing into the driver's door of your Mini Cooper, sending glass everywhere, and pushing your car into a telephone pole on the northwest corner of the intersection, right?”

Witness: “Yes.”

At this point, you should have a pretty good image of what happened to the witness.  You can probably close your eyes and replay the entire scene.  That's because the attorney did a very good job of telling the story through leading questions.  When he realized that his opponent wasn't objecting to the leading nature of the questions, the attorney piled it on, and lead through the entire direct examination.

Here's the problem with that.  The lawyer isn't the one who's supposed to be testifying.  He's not the one who took the oath and promised to tell “the truth, the whole truth, and nothing but the truth.”

The jurors need to evaluate the testimony, demeanor, and character of the person who witnessed the events.  That person is supposed to be the “witness.”  But by leading through every important detail, the jurors never heard from the real witness.  The only testimony the jurors can really evaluate are those single word “Yes” and “No” responses.  How are they supposed to evaluate that?

The problem will be compounded during closing arguments, when the opposing attorney asks the jurors, “Didn't the attorney trust the witness to tell us what happened?  Maybe it's because the witness doesn't knowwhat really happened.  After all, he had to be led by the nose and told what to say every step of the way.  Plaintiff's counsel could have put a parrot or a bobble head doll in the witness stand and gotten the exact same testimony...”

What should have been a slam-dunk case and a five-minute liability verdict becomes a quagmire of extended deliberations, because the lawyer couldn't resist the desire the lead. 

Why?  Where does this desire to lead during direct examination come from?  It probably comes from every trial lawyer's desire to exercise control over his or her surroundings.  Many trial lawyers are natural born leaders.  They're convinced that they can testify better than their witnesses can, and so they (subconsciously, perhaps) switch to leading questions during the most important issues in their case.

Don't make the same mistake during your next direct examination.  Remember, it's the witness who's under oath, not you.  If you want the jurors to believe that your witness really experienced what he's testifying about, don't succumb to the desire to lead.  Ask the witness questions that start with “Who,” “What,” “Where,” “How,” “When,” or “Why,”  and you'll guarantee that your witness tells the story, not you.
__________

Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com
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Mitch Jackson
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Voir Dire  - 
 
15 Things Everyone Should Know About Jury Selection via +A2L Consulting  

http://www.a2lc.com/blog/15-things-everyone-should-know-about-jury-selection
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Mitch Jackson
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General Discussion  - 
 
The Neuroscience of Storytelling- How Shifting Facts and Focus Can Affect A Trial  http://ow.ly/O2uHZ #law
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Mitch Jackson
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Voir Dire  - 
 ·  Translate
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My Bell County Attorney: Criminal Defense, DUI / DWI, Drug, Killeen, Temple, TX's profile photoMitch Jackson's profile photo
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Because what a potential juror is communicating to you is often times 70% non-verbal, I agree. Excellent point +My Bell County Attorney
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Mitch Jackson
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General Discussion  - 
 
Are You Afraid to Look Jurors on the Eyes?
by Elliott Wilcox

The fewer obstructions between you and your jurors, the more persuasive you will be.  Yet many trial lawyers purposely place an obstacle between themselves and their jurors.  That obstacle?  Their notes.

Here’s the slippery slope your notes create: The more notes you bring with you to the lectern, the more you will depend upon them.  The more you depend on your notes, the less eye contact you will have with your jurors.  The less eye contact you have with the jurors, the less persuasive you will be.

Look at the jurors, not at your notepad. Rather than bring copious notes to the lectern, try to bring no more than a one page outline with you.  Write out the main bullet points of your arguments, rather than word-for-word arguments, and you’ll force yourself to spend more time talking with your jury.  Your goal is to use an outline, not a script.  It’s okay to read quotations, it’s okay to read snippets of testimony, but please, don’t read your argument!

Here are a few tips you can use to minimize the amount of notes you bring to the lectern:

Use visual aids instead of an outline.  If you use posters or computer images to help the jury follow your closing argument, you can embed your notes directly into your presentation.  Let’s say you have three posters for closing argument, one for each of the three elements you need to prove.  You can use the posters to remind you what point you should argue next.

Add secret messages on your flipchart.  If you are using a flipchart, you can write notes to yourself on the flipchart.  If you write the notes in pencil, your jurors will never see your notes.  You can quickly glance at your handwritten note while explaining the flipchart to the jury, and they’ll never know you’re reading from your notes.

Use Presentation Mode in PowerPoint.  In presentation mode, your laptop projects images onto two different monitors: the projection screen and your laptop monitor.  The jury only sees the images projected on the big screen.  You, however, see a completely different image on your laptop screen.  On that screen, you can type in whatever reminders you need, so you appear to be presenting without benefit of notes.

 PowerPoint slide example- Embed secret images into your PowerPoint slides.  You can also add secret to your PowerPoint slides.  In the bottom left hand corner of your slide, create a text box and type a few bullet points.  Use a simple font like Arial, and change the font size to 8 points.  At that size, most jurors won’t even see the text.  Their eyes will be focused on your larger text, and won’t look down at your hidden message.

Use bullet points.  Rather than use an entire script of notes, condense your arguments to single bullet points.  Try to use fewer than 7 words to describe each of your argument points.  With only a few words written for each point, you’ll be forced to take your eyes off the paper and look at your jurors. 

No matter which technique you use, endeavor to become less dependent upon your notes.  Eliminate the barriers between you and your jurors, and you'll make more frequent eye contact with your jurors.  The more eye contact you make with them, the more persuasive you'll be.

------------

Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com
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Good words from a man with years of experience in the courtroom
Once the youngest mayor of New Brunswick, New Jersey, Dick Mulligan now finds himself the oldest lawyer in Jackson.
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“Preparation, preparation, preparation,” he said. “That’s 90 percent of the battle. When you go into a courtroom, that’s what you have to do, is prepare.”
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About this community

Welcome to our Trial Lawyer Tips Google Plus Community! _______________ This community is for all lawyers interested in trial advocacy. It's also for everyone else who is interested in litigation, trials and preserving the right to jury trial. _______________ Below is the link to our community. Please bookmark and share it with other trial lawyers who are interested in sharing good trial tips and raising the bar when it comes to the art of trial. http://TrialLawyerTips.com _______________ Important! Please, NO SOLICITATION, SELF PROMOTION OR ADVERTISING. If your post isn't regarding a trial tip (article, video, podcast, link...) then it will be removed :-) Questions or comments? Contact Mitch Jackson at mitch@jacksonwilson.com | 800.661.7044

Mitch Jackson
owner

General Discussion  - 
 
Repelling the Reptile Trial Strategy as Defense Counsel - Part 2 - 10 Ways to Spot the Reptile in Action by Ken Lopez, Founder/ CEO  

As I discussed in Part 1 of this series, the “reptile” trial strategy is quickly spreading among plaintiffs counsel. Some plaintiffs counsel have, in fact, claimed that the strategy has resulted in verdicts totaling more than $6 billion in the past few years... Click here to read the rest of this excellent article... http://www.a2lc.com/blog/repelling-the-reptile-trial-strategy-as-defense-counsel-part-2-10-ways-to-spot-the-reptile-in-action
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Mitch Jackson
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Voir Dire  - 
 
Use this powerful speaking tip by Craig Valentine during jury selection. Craig calls it the “Speak to One and Look to All" approach.

http://www.craigvalentine.com/speak-to-one-and-look-to-all-a-favorite-secret-to-a-deeper-connection/
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Clearwater Personal Injury Law Firm Dolman Law Group (727) 451-6900's profile photoK. Lawson Wellington's profile photo
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Mitch Jackson
owner

General Discussion  - 
 
“What Does Your Record 'Look' Like?”
by Elliott Wilcox

The depositions were taking longer than expected, and they were some of the most boring depos I'd ever attended.  As we approached 3 o'clock, I could barely keep my eyes open.  Luckily, closing my eyes for a brief moment helped me “see” what  the deposition transcript would “look” like, and helped me understand the differences between talking to a witness, versus talking to “the record.”  Take a look at two sample questions that were asked:

“This blood here, is that from this general area here, or is that from another area?”

“Is this photograph here a photograph of this area here?”
Huh?  Do you have any idea what they're talking about?  Do you know where the blood is?

That's the problem, because neither will anyone else when the attorney tries to impeach the witness using this deposition during trial. 

That's why it's important to clarify what you're referring to during deposition or during trial.  If the attorney had referred to the photograph by exhibit # (“Referring to Plaintiff's Exhibit #15”) or by general description (“We're looking at a contact sheet of photos you took at the scene, specifically, the 2nd photo from the left on the third row, page 7”) then we would have some idea what they were talking about, and our record would be clear. 

Are you paying attention to your record during deposition and during trial?  If not, you may be minimizing the effect of valuable impeachment material or omitting crucial information that the appellate courts need to “see.”  To help you create a better record, take a look at these examples:

Example #1: (BAD)

Q: “So, this is where the shell casings were found?”
A: “Yes, right there where you're pointing.”

When this question was asked during the deposition, it was abundantly clear to the witness and to the attorneys where these shell casings were located, because we were all looking at the same photo.  The image was directly in front of us, and the attorney was using her finger to point out different sections of the photo.  But after reading the transcript, do you have any idea where the shell casings were found?  If the location of the shell casings was in dispute, would you be able to cross-examine the witness using this transcript?

If you're not careful about creating a record, your transcript will be as worthless as this one is.  When no one can “see” what you're talking about, you won't be able to impeach the witness.  Look at this next example to see how the simple act of identifying which document you're referring to can dramatically increase the impeachment value of your transcript:

Example #2: (BETTER)

Q: “Referring to Plaintiff's exhibit #19 -- this is where the shell casings were found?”
A: “Yes, right there where you're pointing.”

Murder scene
Plaintiff's Exhibit #19

This method is better, at least you know what you're supposed to be looking at.  There's still room for improvement, however, because you still don't know which part of the photograph they're referring to.  Take a look at example #3 to see how to make your record crystal clear:

Example #3: (BEST)

Q: “Referring to Plaintiff's exhibit #19 -- this is where the shell casings were found?”
A: “Yes, right there where you're pointing.”
Q: “The cones marked by 'M,' 'N,' 'T,' R,' and 'S' in the photograph?”
A: “Yes.”

Murder scene
Plaintiff's Exhibit #19

Now do you have any questions about where the shell casings were located?  By being specific, the examiner removes all doubt about where the items were found.  If your photo doesn't have cone markings, have the witness use a permanent marker to  distinctly identify the areas you're discussing.

As a trial lawyer, you spend a lot of time in depositions.  If you're going to invest that much time, you want to ensure that your record is clear and that you maximize the value of your impeachment material.  A quick and easy way to do that is to make sure you know what your record “looks” like. Good luck!

-----------------
 Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com
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Mitch Jackson
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General Discussion  - 
 
How to deal with and tame the "Elephant in the Room" during your next trial. Today's #Meerkat (recorded via #katch  on Youtube)  https://youtu.be/GgN3DhWmEJ0
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Larry Bodine

General Discussion  - 
 
Steve Young: How Do Judges and Jurors Really Decide? | Your heart knows what your brain does not - http://ow.ly/Oodeo
By Steve Young Last year 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 ...
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My Bell County Attorney: Criminal Defense, DUI / DWI, Drug, Killeen, Temple, TX's profile photo
 
I agree, lawyers "focus so much on the legalisms."
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Mitch Jackson
owner

General Discussion  - 
 
[New and Free E-Book] The Litigator's Guide to Combating Junk Science - 2nd Edition via +A2L Consulting 

http://www.a2lc.com/blog/new-and-free-e-book-the-litigators-guide-to-combating-junk-science
A2L and ISS have just published the new and revised second Edition of their e-book, The Litigator’s Guide to Combating Junk Science.
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Mitch Jackson
owner

General Discussion  - 
 
Preparing Your Witness for Trial
by Elliott Wilcox

As you get closer to your trial date, your days and nights will be consumed by trial preparation.  An important part of that work is helping your witnesses get ready to testify.  Of course, you know that you can't tell witnesses what to say (not if you want to continue practicing law), but you can help them prepare how they will say it.  Here are some tips to improve your pre-trial witness preparation:

Don't give advice before you see how the witness performs.  If you went to the doctor and the first thing he said was, “Ok, I'm going to give you a prescription for Ritalin that you'll need to take 3 times a day,” you'd run out of the office.  What type of a doctor would make a diagnosis without reviewing your symptoms?  What type of doctor would write a prescription without hearing what was wrong?

Don't make the same mistake with your witness.  Don't prescribe a remedy until you've gotten the chance to see the witness perform on the witness stand.  Put them in the witness stand and start firing away with your questions.  Ask short questions, long questions, open-ended questions, leading questions, and accusatory questions, then watch how the witness performs.  Only then should you make any recommendations. 

As you watch the witness testify, here are some things you can evaluate:

How does the witness sound?  Does he need to speak up?  Or is he so loud that the jury will be blown back in their seats?  Is he making “popping” noises in the microphone?  Speaking too quickly?  Too slowly?  Is he using incomprehensible buzzwords or jargon to explain what happened?  Saying “uh” or “um” too often?  Does he articulate his words, or does he mumble?  Does he fade away at the end of sentences? 

How does the witness look?  Does he slouch in his seat?  Sit ramrod straight?  Lean forward?  Drape himself over the witness chair like a teenager on the phone?  Is he too comfortable?  Too stressed?  Is he looking at the jurors?  Playing with his hair?  Putting his hands in front of his face?  Crossing his arms?  Speaking animatedly with his hands?  Scowling?  Fake smiling?  Grimacing?  Avoiding eye contact?  Making too much (“Stop staring at me, creep!”) eye contact?  Talking to his shirt or towards the floor?  When he responds to questions, does he look at the questioner, or does he speak directly to the jury?  Does he look at all of the jurors, or just one of them?  (Oh crap!  Is he actually flirting with one of the jurors?!?)  Is he dressed too warmly, so that he's sweating?  Gross.  (Also, it makes him look like he got caught doing something dishonest.)

How does the witness act?  Does he become confrontational when you switch to cross-examination?  Does he change his body language based on the questioning style?  Does he get defensive when you switch to certain topic areas?  Does he change the tempo of his answers (sometimes pausing for an extended period before answering, and other times answering immediately) based on topic areas or questioning styles?  Does he interrupt before the question is completed?  Does he try to look at you (“Help me, please!”) during cross-examination?

After you've evaluated the witness's performance, it's time to make recommendations for improvement.  Your recommendations should follow these guidelines:

Limit your initial comments to a few simple improvements.  When I coach trial lawyers about improving their courtroom skills, I try to make only one or two specific comments.  Giving someone a 30 point plan of action for improvement has the same effect as not giving them any guidance for improvement.  30 points are too many -- they'll feel that they can't do anything right, and will just give up.  But if you give them a few, limited areas for improvement, they can do that.  And then next time, you can give them 2 or 3 more things to improve upon.

Be honest.  Don't say something nice just to give false praise.  Only imbeciles are unable to recognize false praise.  Everyone else hates it.  And you'll offend them.  If you can, it's nice to tell them something positive about their performance, but don't lie or B.S. 'em.  If the witness is sincerely interested in improving their performance, they'll appreciate your candor.

Preparing witnesses to testify is one of the most important pre-trial functions a trial lawyer can perform.  Get the most out of the limited time you'll be able to spend with each witness.  Apply these guidelines to your pre-trial preparations and you'll see dramatic improvements in your witnesses' courtroom presentations.
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Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com
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Mary Ann Payonk's profile photoMitch Jackson's profile photoDavid Johnson's profile photo
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Hi +Mary Ann Payonk Mitch Jackson here and I agree. That's why we put together our Google Plus "Trial Lawyer Tips" Community at http://TrialLawyerTips.com and also my communication tips blog "Trial Lawyer Communication Tips for EVERYONE!" http://mitchjackson.com
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Larry Bodine

Closing Arguments  - 
 
In Trial, a Powerpoint Picture Can Be Worth a Million Dollars | Steve Young on The National Trial Lawyers http://ow.ly/NMs4b
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 dol...
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Mitch Jackson
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General Discussion  - 
There is hope for a boring case. There are things any litigator can do to improve things. Litigation consultants can also be very helpful.
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