Monthly Archives: March 2011

THE RISING INFLECTION. From the mouths of babes to the mouths of lawyers!

30 March 2011


When we teach lawyers how to ask questions using the rising inflection, they sometimes tell us that they “can’t hear it”. Listen to this conversation between twin baby brothers — can you hear that the one on the left is asking the one on the right questions? Do you hear how you know that they are questions even though they are spoken in baby talk? THAT’S THE RISING INFLECTION. From the mouths of babes to the mouths of lawyers!

Preparing The Parents Of The Child Client

28 March 2011

In dealing with a case that is focused around child, whether the child is hurt or killed by a doctor, defective product or any number of ways we have all seen over the years, the parents of a child client are in an extremely emotional and vulnerable state-of-mind.

As an attorney preparing the parents, he/she needs to realize they are working with a bond and/or relationship that has a more complex set of primal instincts. The Rules of Parenting that constitute the reassurance of the survival of the species which include, to protect, to defend, to love, to educate, to provide for , etc… are morphed and clouded as parents prepare for a deposition or trial.

The first job of the lawyer who is representing the child is to figure out which rule or rules have gone awry in this parent (or these parents). Only then can you try to minimize the effect this potentially monstrous hazard. Yes, monstrous. A parent with a deformed rule dominating his or her life can have monstrous consequences to a case and ultimately be hazardous to the future of his or her own child when assuming the role of witness.

In article, I am going to explore these rules and how to recognize the potential monstrous hazards they become in the parents of the children we represent.

To read the full article please visit the ACT Knowledge Tank on our website.

Lincoln Lawyer – Movies For Lawyers – The Act Of Communication Point Of View

24 March 2011


I really wanted to like LINCOLN LAWYER. I usually like Matthew McConaughey and I always like Marisa Tomei and John Leguzamo. And a film about an attorney seemed like a natural for our blob. The film however was a hot mess.

One of the essential elements of any narrative/story is to have someone to root for and to have a strong villain or antagonist. Well, there wasn’t really any hero to root for. McConaughy’s character had no moral center at all, other than an appreciation for the money he could make and the ease with which he could manipulate the system. Especially at this time in our society when Defense Lawyers already seem to have an uphill battle (well, the defendant must be guilty of something, why else would he have been arrested) to portray a Criminal Defense lawyer as only concerned with money is not only unrealistic, but irresponsible.

I really wanted to like him. However, he offered NO real redeeming qualities other than self-preservation and some loyalty to his daughter and his friend, his investigator. These friendships however were not really developed. The set up didn’t offer us anything to root for. What a disappointment.

TIP: Always make sure that you provide a story that has a strong hero, someone to root for with qualities you admire, as well as a clear antagonist to root against.


Okay, I confess. I fell asleep several times during the film. I’d say I saw maybe half of it. Yep, it lost me at “hello”. I guess what scares me is that I just told a lawyer yesterday during a workshop that if a juror falls asleep that the other jurors will discount what that person has to offer in the jury room. “You were asleep! You have no vote!” Of course, that is when the case is active, well done, alive. What if instead of that, the juror who was asleep says to her fellow jurors, “What did I miss?” and they say , “Nothing. Don’t worry. We can fill you in if you really want to know anything.”

TIP: Don’t put them to sleep.

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Taking over when things are already in place….

20 March 2011

I got a call from a good friend. She is a brilliant actor and I hadn’t heard from her in a while. She was in a play and the leading actor had to drop out because of some health issues, would I be interested and available in taking over the role. They had been in rehearsal for almost a month and opening was 13 days away. Well, the play and the role were very interesting; challenging and difficult and remarkable. The theater company had a spectacular reputation and I had just heard the director and producer speak, quite eloquently, at a ceremony where they received several commendations for their company and their work. I was actually looking for a chance to do a play and this seemed like a happy coincidence. Does any of this sound familiar to my lawyer friends out there?

You get a call to take over a case. All the pieces seem to fit very well with your schedule, your expertise, your experience and your practice. You agree to take it. So, what are the problems?

Well, as I found out all the decisions had been made. The circumstances of the characters, the relationships among the company, on and off stage, were pretty well set. The opportunities for mutual exploration and struggling together to find the world of the play and fill in all the details of the lives of the people and the specifics of their situation were pretty much in place. Sure, I gently elbowed my way in and re-tooled some of the relationships to fit my take on the role, but time was limited. Basically, I was inheriting the work of the other actor, fine as it was, and learning to adjust my process to what was in place. Not that my process or my work is so precious and fragile that I am unable to accommodate but a lot of the fun was gone. Technique and craft would have to replace a lot of the joy of original creativity. Still good work, just different from what I usually do. Sound familiar at all to my lawyer friends?

I just taught for a week with a wonderful, talented woman trial lawyer and she spoke about a very similar situation. She had just taken over a case and found that her usual style and approach would have to adjust entirely. Discovery was done. The case was set. The challenge became how to take someone else’s work and make it her own. How to accommodate her usual approach and make it work using someone else’s way of doing things.

It is certainly do-able. I opened the show to generally excellent reviews and am enjoying the run with a wonderful cast. She won the case and got an excellent result for her client. The lesson seems to be: Be flexible. Embrace the very things that are problems and make them work for you. Not a new lesson I know. But, certainly one worth learning over again….from time to time.

The Next Three Days – Movies For Lawyers – The Act Of Communication Point Of View

16 March 2011


The thing about spending time on the road is you can watch movies in your hotel room that you don’t have time to catch up with in the movie theater because you spend time on the road. Okay, I’ll admit it – I never would have chosen to see THE NEXT THREE DAYS either on the road or in my hotel room…but…I was lucky enough this trip to have Alan in my hotel room.  So we watched it together.

It is a fascinating study for lawyers, I think, on how not to tell a story. What is left out of the plot line makes it difficult to follow – and often what is left in is a bit odd.  I kept thinking about how hard it is to put together a trial story. How hard it is to maintain suspense, not tell all the details, but set the pathway clearly so that the jurors can follow it.

Watching an actor like Russell Crowe acting his brains out and not knowing why is very sobering. Why? Because somewhere in a court right now there is an attorney heavily emotionally invested in a story and a jury who doesn’t know what the heck is going on.

TIP: Check and re-check that your trial story is easily followed, clear, and “hole free” for your jurors.


The film also brought up, for me, the challenge of expectations.

I bought the film because I usually love Paul Haggis, I think his is truly an original, gifted voice. I really like Russell Crowe and from all previews and what I had seen, the film seemed like an action movie with a strong human story. So, I went into this with certain expectations. And mostly, I was left wondering, HUH??!!

It wasn’t a bad experience, and yes some of my expectations were fulfilled. But, overall, I was so disappointed. I wanted more. I EXPECTED more.

When an attorney takes on a certain case, or has established a certain reputation…or when her client has a reputation that creates expectations in the public mind, there is a bar established that must be met.

If the story or the lawyer or the client or the case is somehow incongruent with those expectations, does not rise to that bar, then the jury will translate their disappointment into a decision against you. It’s a tricky and delicate thing.

Tip: Manage the expectations of the jury. Or meet them. Expectations can be resentments waiting to happen.

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Costuming for the Courtroom

15 March 2011

Katherine James of ACT of Communication continues publish excellent articles to educate attorneys on the live communication skills. One of my favorites is her article titled “Costuming for the Courtroom.” In this colorful piece she addresses the issues of WHAT NOT TO WEAR to the courtroom. And working with Katherine and Alan, I have seen firsthand the makeovers they have done to better the attorney and the witness’ presence in the courtroom. Katherine teaches attorneys how to costume just as a costume designer, to help better tell the courtroom who a person is and what a person’s character is.

I know this seems so elementary but when you read her stories and hear of her experiences, you can see why this is so essential. Here is a short clip from her article:

“Oh my God, she looks terrible! Can you help me make her not look like a hooker?” If I had a dollar for every time an attorney said that to me. Or how about, “He says all he owns are T-shirts and cut offs – and he thinks that’s what he should wear to court.

Help!” Then, of course, there is the opposite but equally frightening comment, “I told him to wear a blue suit, white shirt and red tie – after all, I’ve worn the same blue suit to court for the last 25 years and I always have all my clients dress just like I do.”

How do these comments come to me? I have been a trial consultant for the past 30 years specializing in live communication skills for attorneys and their witnesses. But more significantly, I am the first trial consultant to apply theatre to the law. And as such, I am asked to make “courtroom costuming”
comments on a daily basis.

Even though I am not an attorney, I took away tips on color, style, fit, fabric and “persuasive” costuming. She also tackles the issues of judgments, misconceptions and credibility that commonly happen as a result of “poor” costuming. One may not realize the significant effect something so basic has on the jurors, judge etc…

I encourage everyone to read this article, whether you are preparing for a trial, a job interview or meeting the future in-laws she offers some useful pointers.

To read the full article please click here
Plaintiff Magazine Feb 2008

Every Little Step – Movies For Lawyers – The Act Of Communication Point Of View

9 March 2011

Alan’s brilliant blog on coming in second made me think of another thing that actors and lawyers have in common – “auditioning”.

Nowhere is the actor’s audition process explored more thoroughly in film than in the 2008 documentary EVERY LITTLE STEP. It is on movie channels these days and out on DVD.

This award winning film follows the auditions for the revival of the brilliant Broadway Musical A CHORUS LINE. Of course, A CHORUS LINE is a musical whose plot line revolves around the audition process to get into the chorus of a Broadway Musical. This almost “play within a play” aspect to the film makes it a great study of the auditioning process reflected on many levels – almost like a “Dance In The Mirror” of the joy and angst of this process.

When lawyers compare what they do in court to performing before an audience I always say that what they are doing in the process of the actor’s work life is auditioning. Will they accept you? Will they reject you? Will you get the role (leader of the winning team) or will you not get the role (and thus become the leader of the losing team)?

How does an actor go out day after day – “putting himself/herself on the line”? What effect does it have both on the quality of the audition itself and on the emotional life of that actor? Who can do both really, really well? Who ends up either slighting the audition or their emotional life or both?

Sound familiar if you are a lawyer? Oh, yes. That’s why I find it the same. I challenge you to find yourself in this movie. I know you will. Secretly, I know we all think if we are a legacy in the law we are as relaxed as Charlotte D’Amboise (the daughter of the great choreographer Jaques). Or as brilliant as Jason Tam who “nails” the role of Paul right away. But most of us will find ourselves in some other actor’s reality.

We can accept it, work to make our “auditions” and the emotional response to the rejection more measured…but know that this always was and always will be a part of the process we all share.

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Mixed reviews….Coming in second….and Moving forward

7 March 2011

One of the things actors and lawyers share is the sometimes negative feedback from the audience, critic, jury. It’s one thing to not like your work, it’s another for the “not likeness” to be personal. If the critics say, for example, that your not being in the second act was a relief and justified returning after intermission. And if you come in second too often, and if you poll the jury and they just don’t seem to like you or your clients or your cases…..well, what do you do? (more…)

“Control in the Courtroom” NITA Workshop

4 March 2011

Twas the night before the NITA workshop, Katherine James and Alan Blumenfeld, of ACT of Communication are curled up in bed listening to the rain come down.  Katherine does not realize the roof leak in the office directly above her precious computer with all the info for the program.  The next day, her spirits are not crushed,  she and Alan quickly mobilize and put on an outstanding, interactive and educational program for NITA members on “Control in the Courtroom” at the Loyola Law School in Los Angeles. (more…)

MADE IN DAGENHAM – Movies For Lawyers – The Act Of Communication Point Of View

2 March 2011


No one was more flabbergasted than I was not to see a single Oscar nomination for the brilliant British film MADE IN DAGENHAM. I know it is still in some theaters and it certainly is on the menu of the hotel room I am in so I know that you have access to this wonderful film with great insight for attorneys. (more…)