Archive for the ‘Skills’ Category

Why Are You Here?

Saturday, February 9th, 2013

The other day, the Charleston School of Law was kind enough to invite me to speak to its student body as part of its Professionalism lecture series. My theme was, of course, professionalism in the law. But in the context of why we practice law. If you’re interested, have a look:

 

 

P.S. – If you want to skip the dean’s kind introduction, just go to the 5-minute mark.

Better Criminal Lawyering through Smart Risk-Taking

Wednesday, March 28th, 2012

Judgment is the criminal lawyer’s stock-in-trade. The ability to assess the risks of a situation, and choose the better course of action, is the value that lawyers bring to the criminal justice system. It doesn’t matter if they’re defense attorneys negotiating a deal or fighting it out at trial, or if they’re prosecutors deciding whether and what to charge — their value is their judgment. The better the judgment, the better the lawyer.

It’s therefore critical that criminal lawyers have some understanding of how and why people take risks. In advising a client inclined to take a bad risk, the lawyer can’t really change that perception without knowing what’s causing it. And such an understanding also helps one spot one’s own inclinations to error before it’s too late.

This is not common sense. (In fact, common sense is usually the enemy here.) It’s insight. The ability to see how people act, and realize — aha! — why.

Fortunately for the rest of us, there are amazingly smart people out there who do that all day. When you find one with real insights about why people take the risks they do, you’re probably gonna want to listen.

That’s why we’re taking a moment to point you to Danny Kahneman (that’s his picture up there).

Who is Danny Kahneman, you ask. You’re not alone. If you’re not an economist, you can be forgiven for not knowing he won the Nobel Prize for basically inventing the field of Behavioral Economics. If you’re not a psychologist, you can be forgiven for not knowing he’s considered “one of the most influential psychologists in history, and certainly the most important psychologist alive today.” If you’re not a foreign-policy wonk, you can be forgiven for not knowing of his significant ideas on the evaluation of risks in wartime. He’s one of the most insightful and relevant people nobody’s ever heard of.

As it happens, a lot of his insights are directly relevant to the practice of criminal law. Trying to decide the likely outcome of that trial? You’re probably (more…)

Straight Talk

Tuesday, August 30th, 2011

 

“Why didn’t you tell me that before?”

This is not something you want your lawyer to be asking you in the middle of trial.  Or worse yet, in the cells after you’ve lost your trial.  And yet it is a perpetual ostenato heard in every criminal courthouse.  The head-shaking lament of lawyers whose own clients deprived them of the very information that could have changed the outcome of the case.

It is only human nature, of course, to minimize one’s own culpability.  Each one of us is the hero in our own story, not the villain.  If bad things are happening to you, it’s not because you did something wrong, but because you are the victim of a misunderstanding, of a vindictive lying accuser, of an overzealous prosecutor.  People start rationalizing their conduct before it even happens.  It’s just the way our brains work.  When speaking to another human being about something that might get you in trouble, it takes an almost inhuman amount of trust to be completely frank.  Even when speaking to an ally.  Even when you know that this ally needs to understand what really happened before he can help.  The urge to shade the truth, to make things sound more innocent than they really are, is always there.

It’s a simple truth.  So only a foolish lawyer ignores it.

A wise lawyer with sound judgment — the kind you want defending you — is going to be skeptical of what you tell him.  No offense.  Whether it’s your first meeting or your fiftieth, his bullshit meter is going to be turned on.

That’s because what wins cases is preparation.  Knowing the facts (and applicable law) better than the other guy.  Knowing better what happened.  Not having a more innocent-sounding story.  Facts.

When your lawyer defends you, he assesses the data in front of him to see if there are any legal arguments that might help.  He analyzes the data to see what the actual risks and opportunities are.  He bases his strategies and arguments on that data.  At trial, he weaves his stories and persuades juries with that same data.  The more — and more accurate — the data, the more he has to work with, and the more he can do for you.

This is the case even if the truth is ugly.  In fact, especially when the truth is ugly.  The more (more…)

How to Win Friends and Influence People in the Digital Age

Friday, February 4th, 2011

Enchantment: The Art of Changing Hearts, Minds, and Actions

Guy Kawasaki

Portfolio/Penguin, coming March 2011, 211 pages, $26.95

As a rule, we don’t much care for books for business-types.  They’re like a print version of a cable-channel documentary — five pages of useful information, padded out with a couple hundred pages of anecdotes, rehashing, jargon and foofaraw.  Nevertheless, when the folks at Penguin asked us to review Guy Kawasaki’s latest, we kept an open mind.

We were pleasantly surprised.  It’s still a book for business-types, but this one has about 150 pages of useful information, presented with simple on-point anecdotes and only a little jargon.  Kawasaki has a fluid writing style that makes for fast reading and easy comprehension.  And as we read through it, we couldn’t help thinking it could help out the occasional trial lawyer, as well.

That’s because the book is a manual of persuasion.  Ignore the repetition of the word “enchantment” and absurd concepts like “delighting” customers.  This is a how-to book for getting people to make the decision you want them to make.  Although it’s written for marketing types, Kawasaki’s observations apply to pretty much any situation where person A is trying to get person B to see things his way.  (At least for most of the book, anyway.  The last third or so really is just for those in a corporate setting.)

He does a pretty good job of it.  The lessons are concise, but not glib.  The observations are clear and easy to accept.  His pointers and techniques make sense.

The book starts off by (more…)

Cross-Examining the He-Said/She-Said Witness: 3 Simple Steps

Tuesday, December 7th, 2010

 

Plenty of us are familiar with the basic skills of cross-examination: Always lead, Don’t ask that one last question that lets the witness deny the conclusion you want to draw, Don’t ask a question if you’re not pretty sure of the answer, Don’t let the witness explain, Take it one fact at a time, Have a goal, etc.  They’re good rules to follow in pretty much every case.  But they’re not really a blueprint to follow for crafting a useful cross.  Every case is different, and each witness requires a different strategy.

One of the most challenging types of cross-examination comes in the he-said/she-said situation.  That’s not just domestic disputes, but any situation where there are only two people who really know what happened, and one of them is testifying against you.  Maybe it’s a purported victim, telling a story about a date rape that your client insists was consensual.  Maybe you’re a prosecutor in an undercover buy-and-bust, and the defendant is testifying to a story completely different from what your undercover is saying.  It happens in all kinds of cases, to all kinds of lawyers.

The he-said/she-said is especially tough when the other side’s witness is telling a cogent story that makes sense on its face.  Taken at face value, it rings true — though that doesn’t mean it is true.  A false story can be concocted out of pretty much any factual situation, and a lie that fits a juror’s worldview can be more believable than the truth.  A lying witness has lived just like anyone else, and has just as many experiences to test the believability of their stories against.  By the time the witness is testifying, there’s been plenty of opportunity to hone and perfect that story.  (And, of course, they might just be the one telling the truth, or at least the version closest to it.)  It’s hard to even prepare for such a cross.

If all you’ve got to challenge them with is your own side of the story, you’re not going to have a very effective cross-examination.  Q: “Are you telling this jury that my client’s story is wrong?” A: “Yup” — that’s not how to win a case.  But lots of the time, that is all you’ve got.  What can you do?

Well, when all else fails, there are three simple steps to a basic but effective cross-examination here.  When all else fails, and you’ve got nothing else to go with, you can always do these three things.  It may not guarantee you a victory, but if you do these three things, you will have at the very least done a workmanlike job of it.  And often enough, it gets results.

STEP 1: LOCK IN THE STORY

The first thing you do is (more…)