Monthly Archives: April 2011

Katherine:

Okay.  I’ll admit it.  I didn’t see BLACK SWAN on the big screen.  For some reason the trailer always made me laugh. Every time I saw the part where Natalie Portman as the character Nina turned her back to the mirror and pulled the swan feather out of her shoulder blade and her eyeballs turned red I would whisper to Alan, “God, I HATE when that happens!” Then we would giggle uncontrollably.

But then when Natalie Portman won so many accolades, including The Academy Award, I kept thinking, “I have to see this – I am sure that there is something there I need to write about for the blog!”  Of course, I had no idea that it would be PERFECTIONISM. Nina’s character is driven to extremes by her perfectionism. And I certainly recognized myself in her.

I am such a perfectionist.  It is a horrible quality to have – especially if it overcomes what you are doing well and starts your wheels turning backward so that you start doing poorly by getting in your own way. But I have picked up on the fact that the character of Nina I are not the only ones.  There are lots of people in the theater who are perfectionists as well. There are show business jokes about it.  “A doctor loses a patient on the table, sighs and says, ‘At least I didn’t screw up something important – like an episode of Grey’s Anatomy!’”

I can’t help noticing – it seems that many of the cases I work on and many of the workshops I teach have perfectionists as well.  Lawyers driven to perfection.  When you see BLACK SWAN and ortman’s fascinating portrayal, you may very well see yourself.  The tricky part is, of course, attorneys are caught up in a serious business. Lives and fortunes are saved and lost with your cases.  The importance of what you do can’t be compared to blowing an episode of Grey’s Anatomy.

You know that whenever I work on a case or teach a workshop you hear me quoting Anne Lamott’s words from BIRD BY BIRD, “Perfectionism is the voice of the oppressor.”  That crazy voice inside of you that says to an actress or a lawyer, “You aren’t doing it perfectly so you’d better tighten up.” The character of Thomas Leroy, played by the wonderful Vincent Cassell voices the theme of perfectionism as the oppressor again and again in the film.  Just as the need to be perfect makes the character of Nina’s performance stiff, forced and inauthentic, so does perfectionism for the attorney.  If you are stiff, mannered, flat and act like a robot because you are trying to hard to be perfect in your delivery of your case you will surely fail. You will get in your own way. You won’t remember what comes next. You will alienate the jurors, mediator, arbitrators, judge – whomever you are trying to convince.

When you see BLACK SWAN and see yourself as I saw myself – Hey.  Lighten up. If you don’t think that you deserve it, believe me – your clients do.

TIP: Trust yourself.  You know this case really well. Let go and fly.

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This video below, from http://www.thersa.org/, offers some very encouraging and hopeful evidence for both actors and lawyers.

Much scientific research has been done concerning the mirror neurons. The biological basis for our empathy…briefly in all humans, and many primates, the same areas of the brain are activated whether we experience an emotion or action ourselves or if we observe it in others (that is a simplification, elaborated on in the video below and in much scientific literature on empathy). In other words, we are soft wired for Empathy. Biologically.

Our colleague, Eric Oliver, has studied and written about this.

For actors, this is the basis of the connection between the performer and the audience. This is the link by which storytelling and “play acting”, whether through sage/priests or actors, has flourished and survived since humans have been around. It is a necessity. A human need… to experience together. To seek BELONGING.

For attorneys, this is also very good news indeed. The emotional basis of your case, of your witnesses and clients’ experience is not only an intellectual exercise for judge and jury it is the linchpin which CONNECTS them to your story and theirs. By knowing this, an attorney is empowered to build upon the need of the trier of fact to BELONG to the group. The trick is for YOU to create the group to which we all want to belong.

Watch the video… do more research and weave your stories.

TIP: Make sure that the intellectual, legal basis of your case rests upon a strong emotional through line.

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Over the course of the next five weeks, Katherine is holding the first ACT of COMMUNICATION CLE Video Conference. Each week, she will be working with small group of lawyers from the Oregon Trial Lawyers Association on specific cases. She works with each attorney on refining their case. This is a win win opportunity for the attorneys. Not only, do they improve their skills but they also receive CLE credits.

Attorneys take turn practicing their openings and closings. They are then given pointers and skills to refine their approach. From shifting their focus, reworking the language, prioritizing the order of the story, when to be objective and when to be subjective. To find out more of how Katherine James can help you or set up an video conference workshop email her at info@actofcommunication.com

Katherine:

If you ever made fun of people who thought that French Existentialism made them feel hopeless – and you know as a twenty-something I was the kind of girl who stuck up her nose at the folks who didn’t get the brilliance of that movement– get ready to make fun of me right now.

When I saw the trailer for OF GODS AND MEN I had that response I have to all great trailers: “Wow! I’ve got to see this one!” When this much lauded, award-winning film showed up this week in our local movie theater, I was thrilled to buy a ticket and take a seat. And then… “it” happened.

I recognized “it” from some of my experiences with art – and certainly some of my experiences with the law. How many times have I said to an attorney, “Okay – really, really, really sad. Now, where’s the hope? I mean – a jury isn’t going to give your client any money if there’s no hope.” I find this equally true in business cases, personal injury cases, patent cases – you name it, you gotta make 12 people feel like what they are doing makes a real difference.

Yes, OF GODS AND MEN is one of the most depressing and hopeless films I’ve ever seen. I was reminded of other French experiences I’ve had with art… that circus at the Bastille in which the entire audience sat in rapt attention not breathing and communing with the performers. A production of TARTUFFE at the Comedie-Francaise where that actor almost punched out that kid in the audience who was laughing. Don’t misunderstand me, I’ve had some off the charts amazing experiences with French art as well – but OF GODS AND MEN brought back the ones that made me think, “the French are not like you and me.”

TIP: Make sure your case gives us hope for the future or we won’t vote for you.

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Alan:

WIN WIN is a terrific film and I highly recommend it. This is a human story, with a strong narrative, well told and well acted. The characters are all believable and their struggles are identifiable. It is the kind of film I love.

For the purposes of this post, I want to focus on the non-verbal storytelling. Not only the camera work, but also the interactions between the characters where there is very little or no dialogue. So much is being said without using any words. There are wonderful “who do you like best?” exchanges between the wonderful Paul Giamatti as the down and out lawyer wrestling coach, Mike Flaherty, and the assistant coaches played by Jeffrey Tambor and Bobby Cannavale. There are other exchanges I don’t think we’ve ever seen on screen before between Paul Giamatti and his wife, Jackie Flaherty, played by Amy Ryan. She is such a strong and active presence and, as is typical of “the wife” role, is given only a modest amount of dialogue. You have to watch what she does with it.

But the most telling scenes come toward the end of the film between Paul Giamatti and newcomer, Alex Shaffer, who plays Kyle. Look for the scenes in the basement and then during their brief breakfast together that follows. Almost no words are spoken, and yet so much is being said. So much is accomplished by the actors and film maker, Thomas McCarthy, in terms of their relationship and the story.

As attorneys, I know you have often heard that pauses are powerful. That silence can speak volumes. Well, here are some wonderful examples of just how true that is. Watch the film, and focus on what is happening in between the words.

TIP: Trust the silence. By valuing the pauses and unspoken communication, you can sometimes emphasize your story and the critical moments of your storytelling in ways far more powerful than with all the sturm und drang at your disposal.

Katherine:

Shilpa on our creative team told us that we had to see WIN WIN immediately because it was not only a great movie, but it was about a lawyer and perfect for the blog. I thought, “I wonder what I’ll write about for Legal Stage?” I never dreamed I’d be writing about ethics.

The film is brilliant from an artistic sense – and Alan’s comments begin to address this beautifully. But I was much more struck by the story of a solo practitioner, Mike Flaherty, who is stuck in our current horrible economy. He’s still in the small town he grew up in. His business is going down the tubes fast. He is a soft-hearted guy whose client list is dwindling to the ancient and the dying. We know him. Some of us are him.

Mike is faced with a moral and ethical issue as an attorney and makes a choice that he knows is wrong. Funny, I think of all the folks who do this for great windfalls – or for power – or for some kind of prestige. He just makes a choice that lots of folks who feel like their backs are against some financial wall might be tempted to make. The difference is that he is an attorney. And making this choice violates his duty to his client, the court, to his client’s family…and, ultimately, to all of us.

I must say I came home and looked at myself long and hard in the mirror and made sure that I was doing well by doing good. And I’m not even a lawyer. WIN WIN is now on my list of favorite lawyer movies because I think it deals with a real ethical dilemma, and one lawyer’s journey through it.

TIP: How are you doing on your journey on the straight and narrow pathway today? Feeling the pinch? Inhale, exhale and make the highest choice for the greatest good of everyone involved.

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I had been waiting in the conference room for an hour, looking at a beautiful view of the mountains and hoping for the best. The attorney – who I had met only over the phone but came highly recommended by my good client, Charlie – had popped his head in after the receptionist seated me at 9 a.m., purring, “He’s here, but I just want to go over a few things with him first.”

I cooled my heels knowing the attorney was doing one of two things with the witness: Discussing something that he didn’t want me to know (good news for me – this is a guy who has a healthy respect for privilege) or he was giving the witness what I have come to call The Magic List lecture of do’s and don’ts for deposition. I call these lists magic because lawyers believe that by telling witnesses all these things in a lecture format, it is like sprinkling the fairy dust of knowledge on their heads. The witness will miraculously emerge with The Magic List fully understood, integrated, and ready for the battle ahead.

I have yet to meet a lawyer who does not have a Magic List for deposition. And trial. And arbitration. Magic List lectures sound something like this: “We are now getting ready for your deposition. A deposition is a….blah blah blah…don’t answer if you don’t understand the…blah blah blah…take your time before answering the…blah blah blah…for God’s sake don’t volunteer…blah blah blah…if you don’t know, if you don’t remember just…blah blah blah…one time I had a witness who didn’t listen to me – of course, he is dead now and his wife is in a mental hospital and his children are on welfare…blah blah blah…don’t worry, I’ll be right be- side you the whole time.”

If this attorney was giving The Magic List lecture, I was happy to be out of the room. It is really painful to watch a lawyer hammer a perfectly nice human being into a terrified lump who is bound to fail. Not that most people aren’t going to pick up something from a lecture, but no one really learns best this way – including attorneys. Attorneys were taught to lecture by law professors, mentors, and senior partners who lectured to them, and so they lecture.

To read more about how this witness was saved and useful tactics to use to prepare a witness for a deposition or trial, Visit

Katherine:

There are so many reasons to run, not walk to see JANE EYRE: brilliant storytelling, amazing performances, visually breathtaking, extraordinary score.  An attorney can learn from all of these elements of this fantastic film. I am going to concentrate on yet another one: language.  I think that I learned more about language from this film – specifically – the way that people in crisis speak about their lives – than in any other film I’ve seen in my 59 years.

I don’t know what your relationship is with the novel Jane Eyre. Mine spans several decades. In the summer between 7^th and 8^th grade my friend Jessie Murray said, “Let’s read all of The Brontës and all of Dickens”. We read all of The Brontës and only a couple of Dickens as I recall.  The result is that I have a rather limited and youthful first impression of Jane Eyre, Wuthering Heights, David Copperfield, etc. etc. etc.  I have read Jane Eyre since, and, of course am a big fan of the film from the forties and the most recent British television import.

Again and again, year after year, adaptation after adaptation I was left with the impression of a lot of very suppressed people who are too shut down emotionally to express themselves in words.  Sound familiar?  How often do I work with an attorney whose chief complaint about a witness is, “Won’t talk – I don’t know why.”  Although this can be the case, often I find that witnesses are using all the words that they have to describe their lives and to tell their stories. I also find myself dealing with attorneys who want more – more words, “complete” paragraphs of testimony, perfectly turned phrases and language.

When watching this amazing JANE EYRE, I realized almost immediately that I had been mistaken about the language of the novel and all those films and television shows for more than 45 years. There are no more words.  The characters are not suppressed from a lack of language – they are, each of them, saying all the words that there are in these highly charged emotional moments of their lives.

Is this because the director, Cary Joji Fukunaga brought his Japanese ancestry with him when he shot the film so that the acting lets us know that we need no more words?  Or because the screenwriter, Moira Buffini comes from the tradition of the British theater?  At any rate, I feel like a might really understand haiku as an art form that can be adapted for the stage and screen after seeing this film.

How does this apply to the courtroom? I often say that witnesses speak in poetry and the lawyers try to turn it into some very odd non-fiction narrative form.  JANE EYRE gave this lesson back to me brilliantly.  When you see the film, and you will, think about the “problem” witness you are working with right now.  If you are really daring, you will think about your oral arguments.  Nothing like only having 15 minutes to talk to a judge to keep you writing poetry rather than prose!

Tip: Think “spoken poetry” rather than “narration” when working with language for yourself and your witnesses.

Katherine:

The job of the director in a film is to put us in the world of the film. Creating the time and place of FAIR GAME was a challenge for director Doug Liman and the team he led. Why? They were dealing with “recent history”.

The attorney faces the same challenge – putting the judge, jurors, arbitrators and mediators into the time and place of “recent history”. Recent history is a challenge — two years, five years, seven years, ten years. In a patent case involving technology, for example, this need to put everyone back in the time of the creation of the technology is vital.

Time goes so slowly. Day after day goes by and the changes to our every day lives are subtle. Incremental. And then ten years later you are going to trial. As you watch FAIR GAME you will find yourself over and over again saying to yourself at the start of the film, “Oh, right – that is what it was like…” Why? Everyone has moved forward through all those changes slowly and accepted all the changes as inevitable. Think about your case…you are often trying to get the fact finders to look at just one piece of the whole picture – the technology that is the focus of your case.

FAIR GAME shows attorneys beautifully how you need to make a complete world to take us back in time. As you watch the events of the Wilsons’ lives unfold, you are not seeing them in a vacuum. Every visual clue that you get from the cars to the phones to the costuming to the computers puts you in that world. That world which happened in our minds not that long ago – but definitely in “recent history”.

How to do this practically? I can remember helping to create a visual for an opening statement. It was a trademark infringement case. We built images one by one on the screen to show how things had changed. A cell phone, a changing computer, headlines from the newspaper, the hair styles – everything that I knew an art director would need in order to create a world for a film. The attorney took the jurors through a “remember when” – three whole minutes from the opening (and three minutes is a long time) to put the jurors back in time using the visual. The attorney told me it was amazing to watch the faces of the jurors as one by one they “got it” and were back in time. And he knew he had their attention there and then. And yes, we won.

TIP: Make sure that if putting your trial back in time is important to the case that you take the time and resources to do it.


Alan:

This is certainly not a new film, but we decided to watch it because we hadn’t seen it when it first came out.

Amazing how long ago it all seems. And how intense the run up to the Iraq War was. And how so many of the issues and people in the film seem like ancient history.

I want to focus on the center of the story. The writers and the director decided to make the story an interweaving narrative of the personal and the political….the marriage of Valerie Plame Wilson and her husband, Joe Wilson, as well as the politics and the events leading up to the War in Iraq.

When telling a story, how to structure the narrative, where to throw the focus and how to select what to include and what to omit are the essential decisions facing all storytellers….film makers and lawyers alike.

De-selecting is always the critical issue. You can’t possibly include everything. And you can’t possibly make ALL issues central. In this case, the filmmakers decided to have the emotional impact lie in the personal and to allow the political to ride on top of that.

The questions: Does this decision diminish the political story? Is the marriage of equal weight and interest to the viewer as the political story? And Does it work?

I leave it up to each viewer to determine.

TIP: Weigh carefully where you want the emotional center of your story to reside. Make sure that the emotional basis of your case can comfortable rest on the legal, intellectual basis of your case.





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