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The Litigator Prepares for “Meet the Press” (Part III)

September 10th, 2012|

    Communicating with the Media   Style   In part II, (see Sept. 5 post) I discussed things the attorney should consider when preparing subject matter content for immediate interview.   In part III, I will focus on style rather than substance.     Interview Forum   Over the years, I have been interviewed over the phone, on radio, at the courthouse, and on TV. In most circumstances, I was able to take time to prepare beforehand.   Generally speaking, so to speak...   In all contexts, the following tips apply: It is almost never appropriate to be defensive

The Litigator Prepares to “Meet the Press” (Part II)

September 5th, 2012|

  "I am not a crook." Communicating with the Media   Preparing Content   In my previous post, Part I, (see Aug. 27 post) I discussed (a) how the Rules of Professional Conduct limit what an attorney can say to the media, and (b) how to deal with a telephone inquiry from a journalist. This post focuses on some things the attorney should consider in preparing content for a media interview.   Preparing for a media interview has a great deal in common with preparing case themes for opening statement at trial, as well as working with fact and lay

The Litigator Prepares for “Meet the Press” (Part I)

August 28th, 2012|

  Communicating with the Media   Rules of Professional Conduct   The Washington State Bar Association's Rules of Professional Conduct (RPC Rule 3.6) discusses the limits of attorney involvement in trial publicity.     Washington Bar Rules of Professional Conduct    Although I have not researched the rules of other Bar Associations, my guess is that there is some similarity.   Prejudicial Commentary versus Free Speech  (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated

Preparing a Challenging Witness

August 19th, 2012|

Preparing a Challenging Witness    The strength of key witness testimony at deposition can make a significant difference in attorney confidence as he or she approaches settlement negotiation or mediation. At trial, the abilities of the key witness to communicate effectively to jurors can determine how the evidence of the case will be interpreted and can seriously impact the ultimate outcome.   Every trial attorney has at one time or another faced the dilemma of having an excellent case with just one problem-- the key witness does not come across as a very likable, credible or effective presenter.   The

Why Litigators Hope Opposing Counsel Suffers from the Dunning-Kruger Effect

August 8th, 2012|

Narcissistic Self-delusion   The successful litigator possesses insight into his or her strengths and deficiencies.   Some people, however, demonstrate exquisite unawareness, or denial, of their skills and deficits. David Dunning and Justin Kruger have been studying this phenomenon or narcissistic self-delusion since the late nineties.   Litigators may hope that opposing counsel suffers from the Dunning-Kruger Effect.   Meta Ignorance The Dunning-Kruger effect reflects "meta-ignorance," in which some inadequate performers are ignorant of their own ignorance or lack of expertise. Instead, these unskilled individuals suffer from illusory superiority.   Dunning-Krugerians seem incapable of realistically placing their abilities into a

The Litigator Knows When to Strategically Delay

July 31st, 2012|

 When Delay Is Good    Frank Partnoy, Professor of Law and Finance and director of the Center on Corporate and Securities Law at the University of San Diego, is a frequent commentator on CNBC and other business channels.   His most recent book is WAIT: The Art and Science of Delay was published in June 2012, and is about the virtue of delaying decision-making in many situations.   Media teasers promoting this book mischaracterize Professor Partnoy as arguing that "procrastination" is a good thing.   Partly, this misinterpretation results from Partnoy wanting to appear as a contrarian to the notion

The Litigator Considers the Older Juror

July 23rd, 2012|

Are Older Jurors a Plus or a Minus? Memory versus Maturity   There is a reality to the decline of memory with age. Starting in middle-age the mental hard drive starts to fill up with enough "stuff" to make it harder-to-reach the archives. A dinner party of over 50 somethings may need the entire group to recall the star of a movie they all saw two years before.    If being a juror was equivalent to playing a game of Trivial Pursuit, perhaps older jurors would be a problem for the jury. But litigation is not Trivial Pursuit.   Despite

The Litigator Views TED for Presentation Ideas

July 16th, 2012|

  The Litigator Views TED for Presentation Ideas   The litigator should attend to storytelling style and structure, from the simplest advertising blurb to the most complicated multi-volume narrative.     The TED talks provide the litigator with access to a wide variety of presenter techniques that may stimulate ideas for the presentation of opening statements and closing arguments-- or even CLE talks.     In the July 9/16 issue of the New Yorker, Nathan Heller describes the TED talks as "...a four-day conference of research lectures, technology, demonstrations, arts performances and self-described world-changing ideas has become in recent years

Bias against the Overweight Client or Key Witness

July 11th, 2012|

Bias against the Overweight Client or Key Witness   Anti-Fat Bias Anti-fat bias refers to prejudicial attributions of personality characteristics (such as "lazy", "stupid", "slow", or "unmotivated") based on perceived obesity and may carry with it an unconscious reaction of disgust.      In the courtroom, litigators face the reality that jurors may be significantly prejudiced against clients, fact and expert witnesses who are significantly overweight.      Anti-fat Bias in Litigation During my 19 years as a trial consultant I have consistently observed juror prejudice against the obese.   For personal injury cases, in both mock juror research and at

The Litigator Listens to Song Lyrics

June 25th, 2012|

The Litigator Listens to Song Lyrics   What can the litigator learn from song lyrics?   I recently attended the annual American Society of Trial Consultants conference in New Orleans where attorney Tom McCarthy gave a talk and musical performance demonstrating how Nashville style song lyrics can inform the creation of trial themes. He was a delight.   "Hooks" in song lyrics have a lot in common with "themes" in litigation.   From the time I was a teenager, I have been writing songs. My late sixties "mod squad" singing group, the Common Ground, had a short-lived contract with Columbia