I think therefore I am. Life is what you make of it. The one thing you can always change is: your mind.
These sayings reflect the famous French philosopher and mathematician René Descartes most well known statement “Cogito ergo sum” translated into english “I think therefore I am”. As Elon Musk recently put it, although not the first to suggest it, we could all be inside a giant computer simulation. Something akin to the Matrix or Plato’s Cave. See Mr. Musk’s interview below:
What does this have to do with the law or personal injury?
On a fundamental level, the idea that we are in a computer simulation, cave or even the Matrix is an idea that conflicts with what we generally accept as our existence. The ability to consider these possibilities, despite evidence to the contrary, is a hallmark of what makes a good lawyer.
A good lawyer recognizes the power having and choosing options. Sometimes those options are in the form of what is reality or sometimes those options are presented in terms of litigation. Do you file suit right away or do you try to negotiate? The ability to think up another solution and present it in terms that everyone can agree on can be critical to resolving a case. But, these ‘third way’ options generally aren’t presented to you, you have to put in the work and time. In other words, it’s up to you (or your lawyer).
A common phrase by lawyers promoting their services is that they will “fight for you.” It could be a figure of speech, but in a case from 1992 out of Texas, the lawyers almost came to blows during a deposition. Click the short video to watch it happen.
Maybe that is just how Texans try cases? But there also is some truth in the phrase to ‘fight for your client’. It is an adversarial system after all. And it is not just plaintiff/prosecution vs the defense. Sometimes, you might have to fight the judge too and it might get caught on camera like it did with this public defender in Florida.
Ok, so there are a few exceptions where lawyers and judges get out of control and resort to fisticuffs, but that doesn’t mean all lawyers are brimming with testosterone itching for a fight, right? Right, in fact, studies have shown that lawyers who have higher levels of testosterone (men and women) are, you guessed it, trial lawyers! On a measurable, physiological level, trial lawyers are different.
Now, a correlation doesn’t prove causation. Maybe these individuals already had high testosterone levels and thats why they became trial lawyers. Or, maybe, there is some unknown factor that selects for trial lawyers with high testosterone. The classic example of correlation does not equal causation is the correlation between sexual assault rates and ice cream sales. They both rise at the same time…in the summer. At this point, we can’t say eating ice cream causes sexual assaults just as we can’t say being a trial lawyer causes increased testosterone.
What I can say is that when you are face to face with someone and they are alleging you have done something wrong, or that you didn’t follow the rules, your heart gets pumping. If you don’t have years of practice managing your emotions, you might be inclined to become incensed and lose your composure. But if you can develop your skill for composure and thinking on your feet, you can take the wind out of an opponents sails. Let me offer an example.
A little background, when I was a prosecutor, there was a defense attorney known for coming right up to the line of harassing a witness during their interview statements. (Think of the video at the top) This statement was no different. After about an hour, the witness had enough and left despite defense claiming they did not finish their questions. The defense made a motion to exclude the witness because they couldn’t complete the statement and during the hearing, alleged my witness smelled of marijuana during the witness statement. I can honestly say I did not smell marijuana and relayed that to the court. Defense response was that I either was not familiar with the smell or that I was being disingenuous (lying) to the court. Instead of becoming upset that I was basically called a liar in open court, I reiterated that I didn’t smell anything, but, perhaps, was not as familiar with the smell of marijuana as the defense attorney was. The judge laughed and denied defense’s motion.
Now an attorney needs to know their audience, and this response might not work with the Supreme Court, but then again, you probably wouldn’t be called a liar by a fellow attorney in the Supreme Court unless there was some pretty good evidence for it. In retrospect, that older attorney was probably trying to get a rise out of me, but it backfired. The only way I was able to keep my calm despite the surging testosterone, was because I had felt that surge before in numerous other hearings and learned how to handle it. In this particular situation the best option was not to fight, but deflect.
So do you want a lawyer who fights or who deflects? Both. You want an attorney who can decide when it is time to push and when it is time to step back and let the opposing side whiff. So be careful of those who want to ‘sue the pants off’ someone else. Overzealous litigation can not only be the wrong approach, but also end up running up the legal bills. Then it might be the client who ends up feeling like the one with their pants down.
Watch the Video and see if you can keep track of how many times the ball is passed before you read on.
What was the result? Not what you expected? Maybe you have seen this video before. But if you haven’t, what a powerful lesson about the unreliability of our own senses the video conveys. If someone told you there was gorilla in the video, you would have said no way. If you were the one who saw it and tried to convince a group of people about what you saw, would you be able to? You might say, “Sure I would, I know what I saw”.
But studies suggest you would probably go with the flow and say there was no gorilla. In the well studied Asch conformity tests, participants were placed in a room with other ‘participants’ who were not really participants but confederates of the researchers. The group was given a line of a given length and then told to identify from a selection of other lines, which one resembled the original line most closely in length. Without going into too much detail, when the group of confederates gave the wrong answer, the participate went along with it most of the time! Even though they could clearly see with their own eyes that the line was not the same length. Does that make you think about what you would do if you think you saw a gorilla, but 11 other people say the didn’t?
What does this have to do with law? Everything. There is the obvious connection to recent research that eyewitness testimony is unreliable. It shows how if a jury focuses on one issue (the bouncing ball) they might completely miss the critical fact that proves your case (the gorilla). But perhaps most importantly it shows how even when presented with evidence beyond a reasonable doubt, a juror might agree with the group and vote against that evidence.
Think of it this way, in any sport there are a thousand different distractions that an athlete could be thinking about. Sometimes you can see those distractions take over when the 5 year old runs off to chase a butterfly instead of playing the game. A trial is no different than a sporting event. Ask anyone who has done one, its mentally and physically exhausting. I speak from experience when I say that a trial exhaustion increases exponentially when it spans over a few days. And when you’re exhausted, your judgment suffers.
The same goes for jurors. They have to listen to witnesses drone on and judges read lengthy, monotonous, technical instructions about something that doesn’t personally affect them instead of being out working or relaxing.
So make sure your attorney doesn’t contribute to the distraction. Find an attorney who can separate the important from the unimportant. Whether they have learned how to do that through experience, or maybe they have a natural ability. What you want is someone who doesn’t put up with any monkey business.
“Whether you think you can or you can’t, you’re right.”- Henry Ford
Henry Ford was on to something when he said those words. Something so powerful there is even a scientific name for it: The Placebo Effect. One of the early scientists to identify the power of placebos was Dr. Henry K. Beecher. In his 1955 publication The Powerful Placebo, Beecher describes how soldiers receiving saline solution instead of morphine still experienced pain releif. He further went on to explain how this effect was observed 35.2% of the time. That is powerful medicine, but what does it have to do with law?
At the end of the day, an attorney has to be able to convince a jury that they are right. More importantly, the attorney must believe in their ability to do that. It is easy to go with the flow and say “that is a crummy case” or give up when pitted against forces that loom large in comparison. But think of Victor E. Frankel, a noted neurologist and psychiatrist who survived the holocaust concentration camps. In his book, Man’s Search for Meaning, Dr. Frankel describes one prisoner who had a vision, in February of liberation on March 30th, but died on March 30th when the liberation did not come. Frankl writes,”to those who know how close the connection is between the state of mind of a man – his courage and hope, or lack of them – and the state of immunity of his body will understand that the sudden loss of hope and courage can have a deadly effect.” Only when the man gave up his belief in liberation did he succumb to sickness and death.
I am not saying all you have to do is believe you have a case or believe you will win and let the money roll in. Certainly there are lawyers who don’t really believe in their case and still win. And actually there is a real need for that in criminal law where a client may confess to their attorney that they are, in fact, guilty of the crime. The lawyer is required to keep that attorney-client communication confidential and make the State prove it’s case. If belief in innocence was needed, then there would be a lot of unrepresented defendants. (Representing individuals attorneys know are guilty in a later post) What I am saying is that an attorney who can sense a wrong, and believes in their ability to fix it has a better chance (maybe 35.2%) at actually fixing it.
I think about that when I take on a case. I did that when I took on one of my first cases in law school. A foreclosure case. I read through close to one thousand pages of security transaction documents to find the one piece of information that helped me right a wrong. I believed in my abilities when I took on domestic violence cases as a prosecutor. Instead of cases being dismissed when it was a male victim, or when the female victim didn’t show, we tried them. Sometimes the defendant was acquitted. But the fact that there was even one conviction of those types of cases was virtually unheard of.
So, find a lawyer that believes in their abilities. Not overconfident, but one that is willing to dig a little deeper before throwing in the towel. Someone that has that american can-do attitude that Henry Ford expressed over 100 years ago. Because even if your attorney doesn’t have those abilities, the placebo effect is real and might help win your case.