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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Katherine:

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!

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.

Alan:

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.

Katherine:

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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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.

Katherine:

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.

Alan:

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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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
http://www.actofcommunication.com/knowledge_tank.html