Step Five: Get Some Perspective

Almost every client I've ever worked with has viewed his or her “facts" as conclusive, unassailable and irrefutable, and they've viewed the “facts" of their opponent as unreliable, fanciful or outright lies. It's a grave mistake for a client or a lawyer to arrive at such conclusions because doing so leaves the client and lawyer at a distinct disadvantage. Both client and counsel must decide that the facts in the quiver of opposing counsel and client have the potential to be as potent as the facts in his or her own quiver.

“If you know yourself but not the enemy, for every victory gained you will also suffer a defeat." Sun Tzu, The Art of War

If you or your lawyer view the facts the other guys want to defeat you with as inferior in some way to yours, you will both spend too little time building bulwarks and strategies to repel, thwart or circumvent them.

Mad Is an Expensive Emotion

Lawsuits make people mad. Everybody gets mad. It starts when someone feels (or is) aggrieved, and gets mad enough to sue. He hires a lawyer, and in their first meeting, the man filing suit, Mr. Black, does his best to justify his anger in an effort to make sure the lawyer he's hiring gets as mad as he is.

When the person getting sued, Mr. White, receives the complaint outlining why he's been sued, he gets mad and hires a lawyer who he wants to be equally mad.

So now everyone is mad.

Quite often, the complaint written by Black's lawyer is full of misrepresentations, hyperbole, a few touches of sarcasm, some outright lies, and some very real and factual justifications for filing the suit. When White and his lawyers read the misrepresentations, hyperbole, sarcasm and lies in the complaint, they get really, really mad. So White's lawyer (if he's not a good lawyer) constructs a reply brief that contains an equal number of the elements above. Curt or biting emails and phone calls go back and forth, filled with sarcastic or false claims. Black and White's clients may be (naïvely) happy to see and hear about communications such as these, but communications such as these transform anger into rage — for the clients and the lawyers.

The fire builds unabated until Black and White find themselves across a table from each other in a court-ordered mediation, which for extremely angry clients like Black and White is quite often a waste of time and money because they are now so angry that they can hardly look at each other. Plus, both lawyers are preening for their clients to prove that they are the meanest Rottweiler in the room. After ninety minutes or five hours of absurdity, low settlement offers are angrily rejected. Everyone leaves, having done nothing more than to stoke Black and White's anger and cost them hundreds or thousands of dollars.

The scenarios I've just described make lousy lawyers happy and great lawyers unhappy. Great lawyers don't like to see their clients waste money.

To explain why nice is more effective and economical than mean, we'll start in the most expensive arena to resolve any legal matter — a courtroom, specifically in a jury trial. Now, I'm not going to walk you through all the reasons why jury trials are so expensive. Instead, I'm going to focus on the emotions of the jurors who will be deciding your case.

Should you decide to take our video course Client and Witness Prep: The Art and Science of Trust, you’ll learn that judges and jurors will decide to trust or distrust you within seconds of seeing you for the first time. Long before they’ve heard you or your lawyer say a word in court, they’ll have decided who looks more likely to be telling the truth — you or those opposing you. They'll also decide who is the most honest, warm, empathetic, competent and likable — also within seconds. That concept is hard to grasp; so, in our online course, we detail the neuroscientific studies that support every assertion we make. We detail neuroscientific studies that bolster every skill we teach.⁽²⁾

(You can view a video regarding this section in our online version of this handbook at http://JurisPerfect.com, within Step Number Five: Get Some Perspective.)

One of the most important aspects of a jury trial is voir dire, which is the process by which jury members are selected or rejected. It’s where potential jurors will see you for the first time and make those instantaneous judgments about you. You’ll be sitting in the courtroom at a table with your lawyers, and the person opposing you will be at another table with his lawyers. Dozens of potential jurors will be escorted into the courtroom. Most will be shy at first, just taking furtive glances toward the clients and lawyers. But during those glances, they will unconsciously decide which lawyer and client are the most trustworthy.⁽³⁾ These nearly instantaneous judgments take place in decision-making areas of the brain collectively called the Limbic System. Then a different, much slower decision-making region of their brains, the cerebral cortex, will confirm the judgment of their far faster and dominant limbic system.⁽⁴⁾⁽⁵⁾

Let's say for example that both you and your lawyer look angry, and the client and lawyer at the other table also look angry. In this scenario, you've both made the juror's job harder, and you've simultaneously made the jurors unhappier than they already were. They didn't want to be there in the first place. If they look toward the front of the room and see two tables full of people who look angry, they're suddenly made doubly unhappy. Who wants to spend days or weeks looking at and listening to a bunch of angry people arguing about things he or she (the juror) couldn't care less about?

What if, on the other hand, the potential jurors walk in and look toward the front of the room and see you and your lawyer having a very quiet, pleasant-looking conversation including smiles, and then they look at the other table and see people sitting there with angry expressions on their faces? At this point, they know nothing about your case, but their lightning fast limbic systems just gave them a great deal of information about your character and that of your lawyer.

Which client and lawyer will most people instinctually trust? Neuroscience tells us that they're going to instinctually trust the people who look nicer ... period. Additionally, neuroscientific studies have shown that we make snap judgments about strangers without even realizing we've made those judgments.

It's important to note that these jurors may be right or wrong about your character and your level of trustworthiness. They are judging you (as a book) by the cover they are seeing. You may be the most trustworthy person on the planet, but if you don't look trustworthy, it makes no difference.

Every client I’ve ever worked with has been convinced that once judges and jurors hear their side of the story, they will believe it without question and decide in their favor. This assumption or assertion is belied by the nature of trust. Neuroscientific studies underscore this assertion: We’re not inclined to believe or disbelieve a story during its telling or at its conclusion, but rather before the story is told.

Of course, judges and jurors change their minds regarding in whose favor they will decide. Instinctually they may have decided that Mr. Black was the good guy, and Mr. White was the bad guy. But a preponderance of evidence and testimony presented during the trial may have convinced their cerebral cortexes to override the gut judgments made by their limbic systems. So, they change their minds and conclude that Mr. White is the good guy and Mr. Black is the bad guy.

However, sometimes it is not the evidence or testimony that induces the jurors to change their minds. Even if you did everything right to get them to instinctually trust you in the first seconds they saw you; you can blow it with your behavior during the course of the litigation. This happens all the time. Since 2002, I’ve watched jurors change their minds during trials when they see how clients react to things (in the trial) that don’t go their way.

The two most common mistakes clients make are how they react when they are testifying during cross-examination by opposing counsel, and how they react when they hear opposing clients or witnesses lie. One of the most valuable things people learn in our video course, Client and Witness Prep: The Art and Science of Trust, is how to handle both situations effectively during an arbitration or trial.