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Law Teller

General Discussion  - 
 
 
SC: 'RELATIVES CANNOT BE IN EMPLOYER EMPLOYEE RELATIONSHIP' - NO SUCH LAW EXISTS  

The operative part of the judgement read as under : 

The Commissioner for Workmen's Compensation had, in the case at hand, appraised the evidence adduced before him and recorded a finding of fact that the deceased was indeed employed as a driver by the owner of the vehicle no matter the owner happened to be his brother. That finding could not be lightly interfered with or reversed by the High Court. The High Court overlooked the fact that the respondent-owner of the vehicle had appeared as a witness and clearly stated that the deceased as his younger brother, but was working as a paid driver under him. 

The only reason which the High Court has given to upset the finding of the Commissioner is that the Commissioner could not blindly accept the oral evidence without analyzing the documentary evidence on record. We fail to appreciate as to what was the documentary evidence which the High Court (Commissioner?) had failed to appreciate and what was the contradiction, if any, between such documents and the version given by the witnesses examined before the Commissioner. The High Court could not have, without adverting to the documents vaguely referred to, by it have upset the finding of fact which the Commissioner was entitled to record. 

The High Court has neither referred to nor determined any question of law much less a substantial question of law existence whereof was a condition precedent for the maintainability of any appeal under Section 30. Inasmuch as the High Court remained oblivious of the basic requirement of law for the maintainability of an appeal before it and inasmuch as it treated the appeal to be one on facts it committed an error which needs to be corrected. 

Reference : Supreme Court. Smt. T.S. Shylaja v. Oriental Insurance Co. & Anr., civil appeal no. 51 of 2014. 

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Mitch Jackson
owner

Direct Examination  - 
 
“How to Avoid a Gunfight in the Courtroom”
by Elliott Wilcox

If you were in the police academy, one of the most important things you would learn is how to keep safe when you're out on the street.  To stay safe, you'd want to learn how to prevent verbal confrontations from escalating into physical fights, and how to prevent physical fights from escalating into knifefights or gunfights.  As it turns out, one of the easiest ways to prevent situations from escalating to the next level is by keeping your emotional level lower than the perp's emotional level.  (One of the other things you learn in police academy is how to use cool words like "perp.")

For simplicity's sake, let's assume that the scale for emotional levels runs between 0 and 10.  At level 0, you've got the Dalai Lama on quaaludes.  You're calm, cool, and collected, and nothing in the world can upset you.  At the other end of the spectrum, imagine Bill O'Reilly and Keith Olberman battling for control of the country's political mindset in a winner-takes-all steel cage death match battle royale.  At this level, you're angry that you can't get angrier -- everything upsets you.

So let's say that you're a rookie cop out on the street dealing with someone at level 5.  To prevent the situation from becoming more violent, you'd want to keep your emotional level lower than theirs, preferably at least 2 levels lower.  By talking slower, being quieter, and acting calmer than the other person, you can hopefully defuse the situation by bringing the other person's emotional level down to yours.

But what if you decided to approach the person on the same emotional level, or even worse, at a higher level?  When you're at a more intense level, then the other person will usually rise to the challenge and increase their emotional level, too.  For example, if the other person is calm, but you start yelling at them, they'll ratchet up their emotional level and start yelling at you.  In return, you'll get angrier, and start yelling louder or more profanely.  Before long, if one of you doesn't step back, you'll find yourself in a physical confrontation (or worse).

That's why good police officers are able to avoid physical confrontations, because they know how to keep themselves "below" the other person's level, and ensure that the situation is resolved peacefully.

But here's the funny thing about police officers...

Despite all of their training about de-escalating confrontations with people out in the streets and avoiding violence by keeping their emotional level below the antagonist's level, many of them seem to do the exact opposite when they walk into a courtroom!

Have you ever witnessed a defense attorney cross-examine a police officer?  It often sounds like this:

Defense lawyer: Good morning, officer.  I'd like to ask you some questions about your report.

Police officer: !@%$#%@ you, I want to punch you in the face.
Okay, that's a bit of an exaggeration.  But if you've spent much time in the courtroom, chances are you've seen a witness fall apart during cross-examination by letting their emotions get the best of them.  It's not just police officers -- expert witnesses, corporate officers, lay witnesses -- anyone can lost their cool in the courtroom. 

Unfortunately, when your witnesses lose their temper during cross-examination, jurors lose respect for the witness.  In an instant, your witness can move from "trusted observer" to "biased jerk," forcing the jury to discount everything he says.  (It's not just witnesses, either.  If you lose your temper with a witness, even when the witness deserves it, you'll sacrifice your credibility with the jury.)

So how can you prevent emotions from taking control in the courtroom?  How do you ensure that your witnesses come out on top by keeping their emotional level lower than the cross-examiner's?

The first thing to do is to help your witnesses understand how untrustworthy they look when they lose their cool.  Videotape the witnesses during your mock cross-examinations back in the office, and make them watch the videotape.  Often, nothing needs to be said.  For many witnesses, this is the first time they've ever seen themselves on video, and once they see how undignified they look when they get upset, they'll understand why you want them to monitor their emotional level.

After they've seen how they look when they get upset, the next step is to help them understand what is triggering their anger.  Is it a specific factual topic?  The examiner's tone?  An implied (or explicit) accusation?  By identifying the triggers, you'll prepare your witness to anticipate when they'll get upset during cross-examination, and help them avoid the confrontation.

You'll also want to teach your witness which tactics your opponent uses to get under people's skin and trigger their anger.  Many attorneys are one trick ponies.  Rather than using solid cross-examination skills, these lawyers will rely on raising their voice, rapid-fire questions, attacking integrity, misstating the witness's name or rank, forcing the witness into "I don't know" responses, staring down the witness, or other "tricks" that anger the witness.  If your witness is prepared, they'll know to expect the lawyer's trick so they won't be taken by surprise and can maintain their calm exterior.

Finally, you'll want to prepare your witnesses for what they should do when they recognize that they're starting to lose their cool.  Remind them to slow down, take a breath, and pause before answering.  Whatever it takes, they need to keep their emotional level lower than the cross-examiner's.  If they can't, the jury will ignore what they say, and their testimony will be worthless.

____________
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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Julie Brook

Direct Examination  - 
 
Witnesses often forget facts while testifying, but you can use almost anything to refresh their recollection. Here's how.
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2 comments
 
Thanks, +Mitch Jackson !
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Paul Porvaznik

Post Trial/ Appeal  - 
 
Article on Enforcing Settlement Agreements in Federal Court (Babysitting Is Frowned Upon!)
So you filed a lawsuit in Federal court against an individual defendant for violating a Federal statute (such as Computer Fraud Act, Trademark Act, Section 1983, etc).  The defendant was nearly impossible to serve and once you finally got him in the case, he fought you tooth and nail for several months.  You finally reach a settlement with him (hallelujah!!) which …
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Thanks Mitch - I tried to file it in the "post-judgment" section.  I will make sure my posts are true trial trips (I have some) going forward.  Thanks for the nice feedback!
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Michael DeBlis

General Discussion  - 
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For those interested in Part II of Mike's Storytelling article, here it is...

http://www.deblislaw.com/storytelling-in-the-courtroom-part-ii.html
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Brian Wilson

General Discussion  - 
 
Fantastic site Mitch.  Would like your thoughts on a paradox I believe to be true, especially in my last few trials: the more our clients toil to minimize their harms and losses, the more the jury values and rewards their efforts...
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+Brian Wilson- When it comes to trying a case, we're all our own unique artist. Love your approach, thought process and what your doing. The fact that we're even talking about this issues is what is important. Also what needs to be shared with new trial lawyers. Keep up the great work!
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Julie Brook

General Discussion  - 
 
Have limited resources? Here’s a priority order to help you triage depositions.
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Mitch Jackson
owner

General Discussion  - 
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Good stuff!
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Mitch Jackson
owner

General Discussion  - 
 
Monday Afternoon Google Hangout re Tort Reform

I'll be joining this panel of superstars to talk about "Tort Reform"

Hope you can join us next Monday at 4:00 p.m. ET!

https://plus.google.com/u/0/events/ctq1itb592et8osjorpecu2tdk0
*Tort Reform: Where Do You Stand?!* *What Do You Think About Tort Reform?* Last week we discussed the McDonald's Hot Coffee case.  Many do not realize that case was the impetus for tort reform, which over time has come to include many legislative and political movements.  We believe tort reform is one of the most pressing justice issues of our generation, so we really hope everyone will join to discuss and share. *Featuring Superb Personal Inj...
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About this community

*Welcome to our Trial Lawyer Tips Google Plus Community!* This is the link to our community. Please share it with other trial lawyers who help consumers... http://TrialLawyerTips.com Please enjoy the excellent trial tips. Please also share your tips here. This community is for plaintiff consumer attorneys and anyone else interested in litigation and trials (you don't have to be a lawyer to be part of our community. Having said that, this community is NOT for insurance defense attorneys or insurance claims adjusters. _______________ 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 or 800.661.7044

Mitch Jackson
owner

General Discussion  - 
 
From our friends at A2L Consulting... The Top 14 Litigation Consulting Articles You Loved from Q1-2014

http://www.a2lc.com/blog/bid/70882/the-top-14-litigation-consulting-articles-you-loved-from-q1-2014
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Mitch Jackson
owner

General Discussion  - 
 
Discussion | The "King of Torts" Joe Jamail
http://youtu.be/9Y21Fi65M00

Unless you’re representing clients for all the right reasons, all the “trial tips” in the world are not going to help you be the very best trial lawyer you can be and win your client’s case.

Watch and listen to Joe. Digest the concepts and principles he shares.
Stand up for what you believe in and don’t be afraid to state your opinion. Some may disagree with your words and others may cringe a bit with what you have to say and how you say it. But that’s OK. Be yourself and share your opinion.

Follow Joe’s advice and be the best lawyer, the best trial lawyer, you can be. Do this and everything else will fall into place.
http://youtu.be/9Y21Fi65M00

#law   #lawyer   #triallawyer   #justice  
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Yea, this is an awesome lecture.  
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Paul Porvaznik

Evidence Related  - 
 
Getting Business Records Into Evidence At Trial: IL Law
The specter of not being able to get a key document into evidence at a breach of contract trial elicits feelings of both panic and embarrassment.  I’ve learned from painful experience to always have evidentiary foundation and authenticity considerations at the forefront of my trial preparation plan.  I’ve also found that having a working knowledge of Illinois Supreme Court Rule …
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Great tips Paul. Thanks for sharing!
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Mitch Jackson
owner

Voir Dire  - 
 ·  Translate
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Mitch Jackson
owner

General Discussion  - 
 
“Steal These Million Dollar Themes”
by Elliott Wilcox

Your case theme can have a major impact on the jury.  When you develop a powerful case theme, you give the jurors a lens through which they will view the evidence in your case.  For example, in a rape case, one side might frame the case as the story of "a controlling man who refused to take 'No' for an answer and forcibly raped a young woman" while the other side says the case is about "a woman overcome by remorse and regret after a consensual one night stand."

Depending on which case theme the jurors adopt, they will start looking for evidence that supports that viewpoint.  That's why it's so important to invest time developing your themes.  The better your theme "hooks" the jurors, the more likely you are to win. 

Unfortunately, many trial lawyers never create strong themes for their cases.  They know they're supposed to use themes, but they have no idea how to develop them, or even where to start looking for ideas, and so they never use them.  In this article, you'll discover a great resource for developing case themes. 

If you go to the movies on a regular basis, you probably see dozens of movie posters every year advertising the upcoming attractions.  Using splashy graphics, powerful images, and the draw of seeing your favorite celebrity, Hollywood does its best to grab your attention, spark your interest, and arouse your desire to go see the movie.  In addition to the imagery, however, they also use another powerful technique to promote the movie.  That technique is the use of a tagline.

A tagline is simply a short phrase or two that helps explain the movie.  A good tagline will resonate with the moviegoer, sticking in his head even after he walks away from the poster, and subtly push him to go see the movie.  Every once in a while, however, someone writes a great tagline, and it jumps to the forefront of our collective conscience.  Here are a few examples of great taglines:

"In space, no one can hear you scream." (Alien)
"You'll believe a man can fly."  (Superman)
"We are not alone."  (Close Encounters of the Third Kind)
These types of taglines don't write themselves.  Every year, Hollywood spends millions and millions of dollars promoting their films, hiring some of the best copywriters available to develop great taglines.  That's great news for you, because you can develop some of these taglines into incredibly powerful case themes, without having to spend millions of dollars developing them.

In this article, you'll find dozens of different taglines taken from movie posters and promotional pieces.  Read through them (or, better yet, read them aloud) while thinking about your case.  They're not arranged in any particular order, and they're not necessarily the best (or the worst) movies ever created, but they'll serve as a great jumping-off point for writing your own themes.

"The first casualty of war is innocence."  (Platoon)
"With great power comes great responsibility."  (Spiderman)
"Revenge is a dish best served cold."  (Kill Bill)
"Get ready to root for the bad guy."  (Payback)
"If Nancy doesn't wake up screaming, she won't wake up at all." (Nightmare on Elm St.)
"Being the adventures of a young man whose principal interests are rape, ultra-violence and Beethoven."  (A Clockwork Orange)
"If you can't be famous... Be infamous."  (Chicago)
"His whole life was a million-to-one shot."  (Rocky)
"His triumph changed the world forever."  (Gandhi)
"This time he's fighting for his life."  (First Blood)
"He's having the worst day of his life... over, and over..." (Groundhog Day)
"It was the Deltas against the rules... the rules lost!" (Animal House)
"There's everything you've ever known about adventure, and then there's The Abyss."  (The Abyss)
"The snobs against the slobs."  (Caddyshack)
"Every man dies.  Not every man really lives."  (Braveheart)
"If adventure has a name...  It must be Indiana Jones." (Indiana Jones and the Temple of Doom)
"Get in.  Get out.  Get even."  (The Italian Job)
"Just because they serve you doesn't mean they like you." (Clerks)
"Somewhere, somehow, someone's going to pay."  (Commando) 
[Feel the alliteration?  Can you use similar repetitive word sounds?]
"The truth is out there."  (The X-Files)
"There are degrees of truth."  (Basic)
"Lie.  Cheat.  Steal.  Rinse.  Repeat." (Matchstick Men)
"Four friends made a mistake that changed their lives forever." (Sleepers)
"When friendship runs deeper than blood." (Sleepers)
"Fifty million people watched, but no one saw a thing."  (Quiz Show)
"When he said 'I do,' he never said what he did."  (True Lies)
"Fear can hold you prisoner. Hope can set you free."  (Shawshank Redemption)
"Seen from a distance, it's perfect."  (Life as a House)
"Not that it matters, but most of it is true."  (Butch Cassidy and the Sundance Kid)
"Their only crime was curiosity."  (Hackers)
"His story will touch you, even though he can't."  (Edward Scissorhands)
"There's a good reason some talent remains undiscovered." (Waiting for Guffman)
"Everybody loved him...  Everybody disappeared."  (Jerry Maguire)
"He was never in time for his classes...  He wasn't in time for his dinner...  Then one day he wasn't in his time at all." (Back to the Future)  
[Do you feel the power of the "3-peat"?  Is there a phrase you could repeat occasionally throughout your opening?]
"Don't answer the phone.  Don't open the door.  Don't try to escape."  (Scream) 
"No one stays at the top forever."  (Casino)
"It's a hot summer.  Ned Racine is waiting for something special to happen.  And when it does...  He won't be ready for the consequences."  (Body Heat)
"Freedom is not given.  It is our right at birth.  But there are some moments when it must be taken."  (Amistad)
"United by hate, divided by truth."  (American History X)
"An outrageous story of greed, lust and vanity in America." (Bonfire of the Vanities)
"In the heat of passion two things can happen. The second is murder."  (The Postman Always Rings Twice)
"Every dream has a price."  (Wall St.)
"It's not who he is underneath but what he does that defines him."  (Batman Begins)
"He didn't come looking for trouble, but trouble came looking for him."  (El Mariachi)
"He's out to prove he's got nothing to prove."  (Napoleon Dynamite)
Here are some more taglines pulled from lawyer movies:

"The truth can be adjusted."  (Michael Clayton)
"Justice has its price."  (A Civil Action)
"Sooner or later a man who wears two faces forgets which one is real."  (Primal Fear)
"There have been many courtroom dramas that have glorified The Great American Legal System.  This is not one of them." (My Cousin Vinny)
"Power can be murder to resist."  (The Firm)
"They made him an offer he should have refused."  (The Firm)
"A district attorney out for a conviction.  A new lawyer out of her league.  A young boy who knew too much."  (The Client)
"No one would take on his case... until one man was willing to take on the system."  (Philadelphia)
"In the heart of the nation's capital, in a courthouse of the U.S. government, one man will stop at nothing to keep his honor, and one will stop at nothing to find the truth."  (A Few Good Men)
"This man needs the best lawyer in town. But the problem is... he is the best lawyer in town."   (...And Justice for All)
"Sometimes it's dangerous to presume."  (Presumed Innocent)
"Some people would kill for love."  (Presumed Innocent)
"The story of what four men did to a girl... And what the town did to them!"  (Town Without Pity)
"Some people will do anything for money."  (The Fortune Cookie)
"Some people will do anything for $249,000.92."  (The Fortune Cookie)
[The first phrase is a common theme that all of your jurors have heard before, but the second phrase is more specific.  Does it feel more powerful hearing the actual number?]
"Nothing matters more than winning.  Not even what you believe in."  (The Candidate)
"There are two sides of this mystery.  Murder...And Passion."  (Jagged Edge)
"An act of love, or an act of murder?"  (Body of Evidence)
"This is the murder weapon. Her name is Rebecca."  (Body of Evidence)
"They locked him up. They crushed his spirit. But they couldn't hide the truth."  (Murder in the First)
"You may not like what he does, but are you prepared to give up his right to do it?"  (People vs. Larry Flynt)
"In a world of lies, nothing is more dangerous than the Truth." (Shadow of Doubt)
"The first scream was for help.  The second is for justice."  (The Accused)
"Suppose you picked up this morning's newspaper and your life was a front page headline... And everything they said was accurate... But none of it was true."  (Absence of Malice) 
[This is obviously an improper Golden Rule argument, but you could re-write it to focus the attention on your client]
"On the other side of drinks, dinner and a one night stand, lies a terrifying love story."  (Fatal Attraction)
"Trials are too important to be decided by juries."  (The Runaway Jury) [PLEASE don't use this one in court!!!]
Taglines, catch-phrases, and themes have a powerful persuasive effect in the courtroom.  Invest some time developing your case theme, and then try it out in public.  Don't just tell your colleagues and assistants about the theme.  Share the theme with your friends and family.  Ask the checkout clerk at the grocery store what she thinks about it.  Ask your mechanic if the theme makes sense to him.  Tell it to your bartender or the person on the barstool next to you.  The important point is to refine your theme until it captures the essence of your case, giving the jurors a compelling lens through which to view the trial.  Continue refining your theme, and you'll soon become the most persuasive trial lawyer in the courtroom!

_______________

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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Julie Brook

Voir Dire  - 
 
If the judge permits it, take the opportunity to address prospective jurors before the oral questioning phase of the voir dire has begun.
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3 comments
 
Great post and always enjoy supporting one of California's finest. TGIF and enjoy the weekend +Julie Brook :-)
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Mitch Jackson
owner

General Discussion  - 
 
As consumer trial lawyers, I want to share +Tina Willis *"30 Day Tort Reform Social Media Challenge"* with you. I'm all in and have already posted today. Are you?

https://plus.google.com/110859590166083797997/posts/dmz7jLHM2xM
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Thanks very much +Mitch Jackson!  I'm going to count my original post as my post for the day!  :)
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Mitch Jackson
owner

General Discussion  - 
 
Another good tip from Elliott Wilcox...

“DON'T READ THIS ARTICLE!!!”

Did you know that there are special words your jurors, judges, and clients are unable to hear?

I stumbled upon these secret words while talking with my research assistant.

We were sitting in my office, discussing important issues, when he suddenly reached across my desk and pulled my Costco-size jar of Jelly-Belly jellybeans towards him.

With a big smile, he exclaimed, “Jelly beans!” and opened the jar.

(Oh, I may have forgotten to mention that he’s only 3 years old!)

I quickly told him, “Don’t eat the jelly beans.”

He smiled as if to say, “I hear you loud and clear,” then reached inside the jar.

Repeating myself, I said, “Don’t eat the jelly beans!”

With an even bigger smile on his face, he stretched his fingers wide to grab as many jelly beans as his little hand could hold.

With extra emphasis, I warned him, “Don’t eat the jelly beans!”

If you have kids (or have ever been a kid), you already know what happened next.

He paused for a moment, looked me square in the eyes, and then... Stuffed the entire handful of jellybeans into his mouth.

But why? Why would he so deliberately ignore me and do the exact opposite of what I said?

Well, the first reasons are obvious… Jelly Belly jellybeans are delicious, and, for goodness sake, he’s only 3 years old.

But the second (and more important) reason why he ignored me is because he never heard the word “don’t.”

Let me explain.

Your brain works in pictures. If I ask you to think about Cookie Monster chugging a can of Dr Pepper while sitting atop a Clydesdale horse in the shallow end of your pool, your brain won’t process those concepts as words or theoretical constructs.

Instead, your brain creates pictures to process information. As you read that paragraph, your brain develops the bizarre picture of Cookie Monster astride a Clydesdale.

That’s why you might have a difficult time remembering someone’s name (ex. “Larry Baker”) just minutes after meeting him, because your mind doesn’t easily process the name and convert it to an image.

But, if you learn that he bakes for a living, you’ll probably remember that fact hours, days, or even weeks later.

Even though it’s the same word (“Baker”), your brain does a much better job with processing the second version. That’s because your brain creates a vivid picture (probably with a big chef’s hat and flour on his clothes) that makes it easy to process. (It’s the same reason why Rosetta Stone works so well for learning the fundamentals of a new language, because it uses pictures to cement the new vocabulary into your mind.)

But here’s the critical limitation with how that entire process works: Your brain only creates positive images. You only “see” what’s described and what’s supposed to be there. Your mind doesn’t see an inverted version of the picture or create a redacted version with blacked-out elements.

Here’s why that’s important. If I ask you not to think about Cookie Monster chugging a can of Dr Pepper while sitting atop a Clydesdale horse in the shallow end of your pool, your brain probably creates the exact same image as it did before.

Yes, your eyes see the word “not” written on the page, but since your brain doesn’t know how to create a visual image for that concept, it skips it, and then proceeds to draw the rest of the picture.

The result is that both requests create the same pictures in your mind, even though they are 180° opposite from each other.

That’s probably why my son jammed a fistful of jellybeans into his mouth, because, in his mind, Daddy kept insisting, “Eat the jellybeans.” (And when Daddy demands that you eat a fistful of jellybeans, well, what choice do you really have?)

But there’s another problem with telling people what “not” to do. The reason why using negative words like “don’t” and “not” causes problems is because many people never actually hear the words in the first place.

Unless you have the voice of James Earl Jones and the looks of [fill in your own favorite here], chances are, most people you’re speaking with won’t be listening to you with 100% rapt attention, hanging on your every word.

For most people, their attention drifts in and out, depending on what else is going on with their lives and how much they can piece together from the context of your conversation. So not only do they have trouble processing the “don’t” command in your sentence, they probably never heard the modifier in the first place!

Here’s the solution. If you want people to do what you say, minimize your use of negative modifiers like “don’t,” “not,” and “stop.”

Instead, tell them what you want them to do.

Rather than telling your jurors, “Don’t find him Guilty,” ask for what you want: “Return a verdict of Not-Guilty.”

Rather than endorsing a colleague online by writing, “I would not hesitate to recommend this lawyer,” write what you really mean: “I wholeheartedly recommend this lawyer.”

Rather than telling the judge, “Don’t send my client to prison,” tell her what you really mean, “Give him probation so he can keep working and pay my fee.”

Once you start creating positive images and telling people what you want them to do, they’ll “see” what you want them to see and hopefully, do what you ask.

Who knows, you may even be able to convince them to leave your jellybeans alone!

________

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
owner

General Discussion  - 
 
“Should You Call the Witness a 'Liar'?”
by Elliott Wilcox

Have you ever dreamt of conducting a "perfect" impeachment during cross-examination?  You know, the type of cross-examination that usually only happens in the movies,  impeaching the witness by pinning down their in-court testimony, and then calling them a "liar" when you confront them with undisputed proof that shows their statement is false? 

Almost every lawyer I know salivates at the prospect of impeaching a witness like that.  But before you start calling the witness a "liar," let me share with you a lesson I learned from a Jedi Knight.

Just in case you're one of the four people on the planet who's never seen the Star Wars trilogy, let me give you a little background.  Our story starts "a long time ago, in a galaxy far, far away..."  In the first movie, Luke Skywalker is asking the Jedi Knight, Obi Wan Kenobi, about his father:

Luke Skywalker: How did my father die?

Obi Wan Kenobi: A young Jedi named Darth Vader, who was a pupil of mine, was seduced by the Dark Side of the Force.  He betrayed and murdered your father.

A clear and simple explanation, right?  But in the next movie, The Empire Strikes Back, Luke confronts Darth Vader.  During their light saber battle, they have this exchange:

Darth Vader: "Obi Wan never told you what happened to your father."

Luke Skywalker: "He told me enough.  He told me you killed him."

Darth Vader: "No -- I am your father."

So which is it?  Did Vader kill Luke's father?  Or is he Luke's father?  (I can't believe you don't know this stuff already.  It's a heck of a lot more important than what happened to Mrs. Palsgraff!)  Luckily, our story doesn't end there, and in the third movie, Return of the Jedi, Luke gets the answer to his question.  He returns to finish his Jedi training and asks Yoda if Vader is his father.  After Yoda confirms that Darth Vader is Luke's father, Luke has this conversation with Obi Wan:

Luke Skywalker: Why didn't you tell me?  You told me Vader betrayed and murdered my father.

Obi Wan Kenobi: Your father was seduced by the Dark Side of the Force.  He ceased to be Anakin Skywalker, and became Darth Vader.  When that happened, the good man who was your father was destroyed.  So what I told you was true.  From a certain point of view.

Luke Skywalker: A certain point of view?

Obi Wan Kenobi: Luke, you're going to find that many of the truths we cling to depend greatly on our own point of view.

And that statement brings us to a valuable cross-examination lesson.  Just because the witness says something that you can prove is false, does that mean the witness is lying?  Maybe, maybe not.  But even if he is, before you bring out the heavy ammunition, ask yourself if you really want to drop the "L" word on your jury.

You don't necessarily need the jurors to think the witness is lying, do you?  All you really need is for them to disregard his testimony, right?  It doesn't matter why they disregard it, just so long as they do.  So why take on an extra burden for yourself?  And that's why Obi Wan's statement is so valuable.  If you can come up with a comfortable way for them to disbelieve his testimony, that's all you need to do. 

What Obi Wan is saying is that you don't need to prove that the witness lied to the jurors, all you need to do is show that the witness was mistaken.  If you can show the jurors that this witness's "truth" is based on his own point of view, and his point of view differs from what really happened, the jurors can disregard the witness's testimony, without being put in the uncomfortable position of having to call him a "liar."

You probably already know that most jurors don't like to think that witnesses are lying to them.  Most jurors have a difficult time believing that a witness can take the stand, raise his right hand, promise to "tell the truth, the whole truth, and nothing but the truth," but then look the jurors square in the eye and lie to them.

Because we're lawyers, we don't have any problems believing that someone will take the stand and lie to us.  But jurors don't think like that.  Maybe they're more optimistic than we are, or maybe they don't get lied to as often as we do, but most jurors I've met prefer to think that any witness who takes the stand is going to be honest with them.  (Yes, they even expect 10x convicted felons to tell the truth.)  If you attack a witness's testimony by calling him a liar, you're going to need to prove that he lied.  If you can't prove that he lied, you face an uphill battle trying to get the jury to disbelieve his testimony.

Before you plan your next cross-examination, ask yourself if you need to prove the witness is lying.  Is there an easier way to discredit his testimony?  Can you show the jury that his point of view conflicts with reality?  If so, consider making things easier for your jurors.  They may still decide to call him a "liar" in the deliberation room, but they won't need to do it.  Just show them that they can disregard the witness's testimony without calling him a liar, and you'll make it easier for them to return the verdict you deserve.

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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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Julie Brook

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No matter what opposing party or counsel say or do, keep your cool and stay above the fray.
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I really can't think of any exception to the rule that counsel should always treat others with respect and in a professional fashion. Amazing and almost unbelievable examples you shared in the post.
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