AN APPEAL TO REASON

No, I haven't abandoned my blog. Even though my practice is almost exclusively devoted to appeals, I have one case, a medical malpractice action, that I have nursed along for years. I managed to salvage it on appeal after the original attorney failed to properly oppose the defendants' motion for summary judgment. I also agreed to assist in preparing the case for trial. Well, it has been a tough road and I have learned even more about the odd coupling of trial and appellate attorneys. It has literally consumed all of my days and nights. Fortunately, we were able to settle the matter last Friday and I can once again hope for better days. And lower blood pressure!

I also spent an incredible weekend in Rancho Mirage attending a workshop put on by two actors, Katherine James and Alan Blumenfeld, owners of Act of Communication and a trial consultant, Elizabeth Foley of Zagnoli McEvoy Foley. Part of my mission was to "cover" the workshop for my magazine, Plaintiff. Of course, I always learn from the subjects I cover. It is a real shame to me that attorneys aren't taught about the fine art of communication in law school. How many cases will you brief by the end of law school but you still aren't taught what to do with your hands during opening statement? Or the effective use of space in the courtroom?

I watched attorneys present an opening statement. They spent the next day working on skills for effective communication. On the last day, the attorneys gave a new version of their opening statement. A little bit of tweaking here and there can make a huge difference. We also had panels of mock jurors and I can report to you that the single most common complaint was that the jurors had an expectation of emotion or passion that was not met by the attorney. Do they want a "show"? Not necessarily. They just want to know that you believe in your case and you are not simply reciting facts.

Well, I suppose if I give you my report here, you will have no need to read my longer version. I hope to give you more tips and observations. Don't think I won't incorporate it into my appellate arguments, although I have a few more rules to abide by: not wandering away from the podium and trying to sound a little more intellectual while not losing my passion. Fine lines for all us. Not enough juice and the jury doesn't buy your client's story. Too much, and you might turn them off. For that reason, I really do think mock juries and focus groups serve an important function. But the real lesson is that the attorney - facial expressions, body movements, and voice - is a tool, just as much as any other type of demonstrative evidence, in achieving success in the courtroom.