Taking the Lawyer out of Lawyering

Some of my law firm's attorneys listed as NJ Super Lawyers for 2016.

One of the adventures I have embarked upon in this "new age" of Lauren is trial consulting.  And hand in hand with helping attorneys navigate their cases and strategize for trial is another role I play and that is as a legal marketing strategic planner.  I have to say, these are two challenging but rewarding areas of the business of practicing law.

As a trial consultant, my job entails teaching other lawyers to do what I do the way I do it. Over the course of my career, the team with which I work has developed a successful method for trying personal injury cases in front of juries in just about any jurisdiction in the country.  Just as a product of our own geography, we tend to face juries in more conservative places. The challenge there is overcoming the notion of "tort reform" that the combined efforts of the insurance industry and politicians who accept donations from the insurance industry have spread to our more right-thinking neighbors. Persuading our juries to recognize that they are the gatekeepers of community safety and helping our permanently injured clients lends itself to this task, has been our approach and job for the past 12 years.

We don't persuade them with a lot of lawyering and words.  Rather, we persuade them with the truth, facts and medicine. Teaching other lawyers, who may have been trying their hand at personal injury cases for many years, that they are the least significant part of their case can be challenging.  Convincing them that what they say does not matter very much at all when a jury is deciding a case and can in fact hurt their chances of success can also be a challenge.

One of the core components of our trial presentation is "taking the lawyer out of the story." Sounds simple enough, right?  What I mean is, framing the case around what the witnesses and experts say about the injured person.  The lawyer's job is more like the host of an interview style talk show.  Ask the questions you need to ask to provide the jury with enough information to make a decision in your client's favor.  

I've had a lawyer ask "you want me to act like Oprah and ask dumbed down questions?" Not exactly.  But this is the trouble with lawyers - they can be arrogant and act like the smartest guys in the room.  Often, they are, but no one likes a smart guy/know-it-all, especially our juries. In fact, our juries typically dislike lawyers, whether they admit it or not. Lawyers are seen as sleazy, tricky, money-hungry liars.  Lovely.  Accepting that most of the people who have to make a decision to help your client hate you, should make "taking the lawyer out of lawyering" a little easier to digest.  

And knowing this, it is not the lawyer's job to try to make the jury like them.  They may in the end, but this isn't about the lawyer.  It's about the permanently injured person that lawyer agreed to try to help.

So in taking ourselves away from center-stage in a trial, one of the things that is crucial is to leave the big words to the doctors and experts.  No one is impressed that a lawyer knows big words that normal people don't know (except lawyers and maybe their moms.).  Speaking "English" is important.  In an opening statement, telling a jury that the injured person has "herniations at 2 levels causing radiculopathy" may sound impressive.  But likely, the jury has no idea what you are saying and will turn off their brain and start worrying about more important things like what to make for dinner, work emails or whether the Giants will focus on an offensive line this year in the draft (like they should, poor Eli).  

But if the lawyer lets the jury know that their client has suffered a "permanent spinal injury causing their right leg to go numb," he might get somewhere.  

Another aspect of taking the lawyer out of lawyering is creating credibility for not just you as the lawyer, but the client.  As much as people hate lawyers, they also tend to dislike people who bring lawsuits to get money.  Of course, this is the only system we have - the law requires that a permanently injured person be compensated for their harms and losses - but the "tort reformers" have decided that this system, which dates back to ancient times, is the reason why our insurance costs are so high. (No, couldn't be the 8-9 figure salaries of insurance executives). The fact that the insurance industry rarely treats its customers with any level of fairness or respect when asked to do the thing people pay the insurance companies to do, pay claims, is a direct cause of why people are forced to file lawsuits. If insurance companies played fair, we wouldn't have to go to court and a lot of us lawyers would probably have to find another line of work.  

​The reason the insurance companies can get away with not playing fair and then blaming people who bring lawsuits for the cost of insurance premiums is 1) they have spent millions of dollars on brainwashing advertising that suggests that no one really gets hurt in car accidents and most people file fraudulent claims; 2) jury verdicts are "out of control" and lawyers are getting rich off of them; 3) in NJ and many other states, the rules do not permit any mention of insurance so juries may falsely believe that the poor old man who ran over the guy on his motorcycle has to pay a verdict out of his retirement fund.  Not true. 4) they tend to win their jury cases (thanks to a lot of 1-3).  

90% of the injury cases that go before a jury are losses for the injured person.  The insurance lawyers have a good track record and the insurance companies know it.  So they don't settle with lawyers who don't have a good handle of what they are doing and they don't settle with lawyers representing clients in certain conservative areas.  However, success at trial forces the insurance companies to pay attention.

With all of this stacked against the lawyer and injured person, credibility goes a long way. In fact, without it, the case goes to the defense/insurance lawyer.  The best way we have found to demonstrate that what the injured client is saying about their injury and its effects is true is through the experts and other witnesses.  As lawyers at trial, statements like "We will prove Sally is injured and will never be able to play golf again" go no where because lawyers have no credibility.  But when Sally's board certified near-radiologist shows the jury where the injury is in her spine and her board certified orthopedic surgeon explains why it's so bad, the jury listens. The jury realizes, this case is not like the cases on those TV commercials and they have an important job to do. And they want to do the best job they can.

​Breaking what I would consider bad habits at trial takes practice.  Accepting that there are effective trial presentation methods out there to learn takes some humility.  But asking for help in honing lawyering skills is imperative in this very important area of the law. There are so many of us happy to help whether through consulting or sharing our methods at legal seminars or workshops. Taking yourself as the lawyer out of the case and focusing on what the jury really needs to know in terms everyone can digest is a difficult but good first step in creating an effective presentation at trial.


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