is an article for the trial lawyer and those who know that we are
all trial lawyers each and every day. How we think as advocates
is the absolute key to success both in jury trial and in life. And
learning to think as advocates is a process which flows one step
at a time with a few steps back to help us learn from our mistakes.
And we do learn.
we learn that there is a way to think and act in jury trial that
not only gives us an infinitely greater chance for success for our
client, but also allows us to express the very depth of who we are.
To one who knows the secret, trial is an art form. It is done from
the heart and from the right side of the brain. I call right-brained
jury trial the nuclear power of advocacy. Once you feel it, you
will never go back. It is too powerful.
good news is that the process can be taught - and it can be learned.
I know, I have done both. And now I am here to pass it on.
before we get started, we need to be sure that we are on the same
wave length. What is a right-brained lawyer and why do we want to
go there? As Ms. Read's website so clearly teaches, there is an
actual observable and measurable difference between the right and
the left halves of the human brain.
usually think of the left side of the brain as the computer side.
It is the language of organization and communication. It is logical.
It is mathematical. It is verbal. The left side serves a function
without which there would be no exchange of information as we know
it. Without the left side, the Enchanted Mind puzzles, even the
right-brain puzzles, would be simply impossible to solve. In fact,
there have been actual cases of injury to the left side of the brain
in which the patient can apparently take in information and formulate
feelings on the abstract but loses the word based thought process,
and of course, speech. As functioning humans, we very much need
the structure of the left side of the brain.
right side of the brain is something entirely different. It's function
is what it is really about to be traveling on this spaceship called
Earth. It observes. It feels. It loves. It holds the true integrity
and the power. Through the right side of the brain flows the poem
of life. It is the artistic side which sends out messages which
go deep into the soul and change the world from the inside out.
When the right side of the brain hears the baby's cry, it doesn't
just register as an unhappy baby. It hears the tears of humanity
from birth to death. It hears compassion. It hears love. It hears
the sound of the stars on their journey through space. Injury to
the right side of the brain leaves the patient speaking in a monotone,
a bit like Hal the computer. But through the healthy right brain
flows the mystery and the passion of life. And it is what moves
juries to understand our clients in their moment of crisis.
trial lawyers I have witnessed in action, do it from the left side.
When we, as trial lawyers hold a stake in the outcome, emotional
or otherwise, it can get away from us. It happens sooner or later
to most everyone. The experience can be quite frightening. Jury
trial is living on the edge. When we become afraid, we freeze and
fall back on the notes we made the night before or the comfortable
structure of never asking "why?" on cross-examination
because someone in law school told us not to do that. We have found
that structure is something we can hide behind when we feel the
bullets whizzing by our ears. So we think in terms of pulling in
rather than letting go. That pulling in is done on the left side
of the brain. It makes us anal retentive and turns our paintings
into the wall decorations at a Motel 6. And our juries often lose
how do we become poets? How do we do jury trial as an art form?
How do we say what is really going down and do it in a way that
our meaning sinks deep into the jury's very soul? How do we use
both sides of the brain?
number one: We do whatever we do for the right reasons.
When I was a senior trial lawyer for the Office of the Federal
Public Defender in Sacramento, a young attorney came to me with
the request that I help him to prepare a cross-examination of
a police officer at a pending suppression hearing. I began with
the basics. "Why are you doing it?" His answers ranged
from "saving his client" to "saving the world
from lieing cops." Finally, after a grilling, he followed
his thinking down: "to find the truth because our freedom
from unreasonable police intrusion is so sacrosanct that we
must do absolutely everything we can to protect it." He
had started his right-brained journey - and a cross-examination
number two: The right reasons are not about the self. We
think of ourselves as separate from one another, for only by
such thinking can we become a king or queen. Without separation,
there could be no kingdom. There would be no heros. No worshipers.
No pats on the back. So we think about the self. How am I doing?
How am I looking? Where am I going? My chest feels really good
puffed out like this.
thinking comes with a heavy price tag. We get a "stake in
the outcome." When that happens we are vulnerable. Winning
and losing becomes about us. We know that we can die in the courtroom
so we arm ourselves. We withdraw into doing trial by the book,
from the left side. And we forget that we are painting a picture
or whispering a poem.
number three: We are here to make things better. An easy
way to know the "right reasons" is to remember that
we are here to be an influence for "good" whatever
that means to us. As attorneys, we do it for our clients, but
we can move mountains in the process, just by being who we are.
We can change the world inch by inch, word by word. When we
can do it as a poem, to make things better, with no stake in
the outcome, we cannot be hurt. So we allow our true selves
to flow through like water through a firehose, from the right
side of the brain.
number four: Our credibility as a lawyer is central to the
jury. This is our mindset. From the physics of what we do and
how we do it, putting our credibility first is the whole ball
of wax. The evidence will take care of itself, as the trial
unfolds. But it is our awareness that the jury needs to believe
in us, which is central to our presentation. What type of lawyer
would you believe in? Who would you trust? Would the lawyer
be antagonistic toward the other lawyer or the witnesses? Would
the lawyer be strong and firm but at the same time gentle and
kind? Would the lawyer have dignity and class?. Would the lawyer
bore anyone? What would he or she look like? How would he or
she dress? Wasn't Gregory Peck good as Atticus Finch in "To
kill a Mockingbird?" How would Atticus do it? The jury
is watching. Sometimes a gentle word or gesture, from the heart,
can move mountains. Maybe a poetic, right brained painting on
cross-examination would be better than the sledge hammer. You
want to be able to turn to the jury at the end and say from
the heart, "trust me." Keep that "trust me"
in mind from the beginning to the end. Each of us does it differently.
But each one of us has the capacity to move mountains. We need
only show a reason to believe in us. It is our credibility which
must always be in the forefront of every move we make and every
word which passes our lips.
number five: We throw away our notes. I love watching lawyers.
I especially love watching really good trial lawyers - the trial
lawyers who move juries. While each one is different, they usually
have at least two elements in common. First, the lawyers I'm
speaking of are inevitably right-brained. Second, they don't
use notes, at least not during their presentation. When we use
notes, the notes become our focus, our lifeline. They tie our
hands and limit our presentation to thoughts we had in the past.
The jury doesn't feel the flow of our thought process because
it is broken down by our glancing at a piece of paper between
each thought. Notes not only keep us from the poetic side, but
they keep the jury from going there as well. The simple truth
is, we don't need our notes. Take the plunge. Trust. You can
do it. If you are afraid, there are ways of giving up the notes
in a gentle fashion which still gives us some structure. We'll
talk about that another time.
number six: We practice. This is the preparation of the
right-brain lawyer. I practice all the time - when I'm driving,
when I'm jogging, when I'm working in the yard. I practice,
in my mind, any time, any place. I see myself cross-examining
a difficult witness, or doing a final argument. What do I say
when the witness says X? What if the judge screams at me? What
do I say when my pants rip down the back? How do I handle the
best and the worst situations that I can envision? Make it specific
and as real as you possibly can. I have even gotten a clerk
to open up an empty courtroom so that I can feel what it feels
like. Practice doing it perfectly. In your practice sessions
you are the perfect lawyer. You are confident, at ease, balanced,
compassionate, brilliant, modest, powerful, and most of all,
you are doing it for the right reasons with all the credibility
of Atticus Finch. Practice being a courtroom poet and a peaceful
warrior doing what we do to make this world a better place to
live and grow.
are as many ways of doing a jury trial as there are people doing
it. It all boils down to who we are and how we want to deal with
one another. If you haven't taken it yet, learning to do it from
the heart, from the right side of the brain, is the next step. Best
wishes in your travels. And remember, when times get tough, you
are not alone.