by Dale Carnegie
First published in 1937, this classic text is still relevant today. More importantly for you, it has important lessons to teach trial lawyers. I try to re-read this book every year or so, but this time I read it with the goal of applying its lessons to my trial advocacy skills. There are probably dozens of lessons this book can teach you about persuasion and courtroom advocacy, but I'm going to take just one lesson from each section of the book.
The first section is entitled "Six Ways to Make People Like You." Although these lessons apply equally to your dealings with judges, clients, witnesses, or opposing counsel, they may be most relevant to your interactions with potential jurors. Here are the six methods Carnegie discusses:
How can you apply these lessons to your jury selection? Let's start with the last word in the rules: sincerely. Throughout the book, Carnegie discusses the importance of sincerity. If you aren't sincerely interested in others, this book won't work for you. These aren't magic tips that you can apply to mystically persuade people - you must be sincere in your approach.
We can't discuss how all of these rules apply to jury selection, but let's hit two highlights. First, you must abide by Rule #1. If you intend to succeed as a trial lawyer, you must develop a genuine interest in other people. I'm sure you're familiar with the old guideline for sales and marketing: "People buy from people they know, like, and trust." These potential jurors are no different. If they sense that you're a phony or that you think, "I can put one over on these people," they will immediately distrust you, and your client will suffer. When you develop a genuine interest in other people, you will ask better questions, receive better answers, and cultivate a better relationship with your jurors.
The most important rule is Rule #4. Many lawyers do not listen very well during jury selection. These lawyers think that jury selection is an opportunity to tell jurors what to think. They spend all of their allotted time telling jurors to put aside certain emotions or asking close-ended questions. You've heard these attorneys asking questions like, "You won't hold it against my client if he doesn't testify, will you?" or "If the case called for it, would you be able to award a large damages amount?"
These types of questions don't help your case. Re-read Rule #4. Listen. More importantly, encourage jurors to talk about themselves. Ask open-ended questions that get the jurors talking about how they think and feel. The more they talk, the more you will know about them. The more you know about them, the more intelligently you can use your peremptory strikes.
In the next section, Carnegie outlines twelve ways to win people to your way of thinking:
How many different aspects of your trials would from the application of these rules? This section alone should encourage you to buy the book and add it to your library shelf. Here they are - the secrets of persuading people to your way of thinking. Don't you wish this had been required reading in law school?
I can't count the number of trial skills lessons we can take from this section, so let me illustrate just one. Let's discuss how Rule #4 applies to your cross-examination skills. Many attorneys feel the need to do a "cross" cross-examination. They want to draw blood during cross. They forget that there are two guidelines for cross-examination:
1) Hurt your opponent's case
2) Help your case.
We all know about the first guideline. We dream of that perfect cross-examination, the one where the witness breaks down and cries, "I'm sorry! I admit it - I lied! I LIED!" Most of us forget about that second guideline. The average cross-examination is ripe with opportunities to help your case. Opposing witnesses can establish elements of your case, buttress defenses, or minimize damages. Rule #4 will help you organize your cross-examination to elicit those confessions.
If you organize your cross-examination properly, you can get concessions and impeach the witness. If you don't organize it correctly, you won't get the concessions. Examine this (admittedly awful) example: You can rub a dog's belly and get him to chase a frisbee for you, and then kick him. But you can't kick him, and then ask to rub his belly or expect him to chase frisbees. Once he's been kicked, he'll be skittish and won't trust you.
The same is true with witnesses.
In your next trial, if you intend to do a concession-based cross-examination, you must begin in a friendly way. Obtain your concessions first. If you don't obtain them first, but rather impeach the witness with a prior inconsistent statement or evidence of bias, the witness will become skittish. The witness won't be as willing to answer your questions. The witness certainly won't volunteer any information. Begin in a friendly way and you'll get far more valuable concessions from the witness.
In the final section, Carnegie shows the reader nine ways to change people without giving offense or arousing resentment. Once again, his teachings apply to almost every portion of trial work, but let's discuss how they apply to your pre-trial negotiations and interactions with opposing counsel. Here are the nine methods:
Fortunately, most people don't apply these rules to their daily lives. Why do I say "fortunately?" Because if they did, we'd probably be unemployed. Most disagreements could be settled and most lawsuits avoided if they used these techniques. But they don't, so trial lawyers continue to prosper.
Once we're involved, however, we would be smart to apply these rules to our negotiations with opposing counsel. For example, let's examine Rule #5. How can we help the other side save face? Before we answer that, some of you may be asking, "Why would I want to let the other side save face?" That answer should be obvious. If you back your opponent into a corner, they have no choice but to fight. Even the smallest opponent can cause considerable damage when backed into a corner and fighting for his life. Don't let it come to that.
Instead, propose a settlement that allows your opponent to save face, yet still produces the result that matters most to your client. We've all heard of lawsuits where the plaintiff received an "undisclosed" sum of money as part of a confidential agreement. Why? Because the plaintiff was allowing the defendant to save face. The plaintiff got what he wanted - compensation for his injuries. Does it matter whether the world knows how much? Does it matter whether the defendant publicly admits wrongdoing?
Negotiations don't have to be "all or nothing" battles. Give your opponent a way out. Let them save face, and your negotiations will be more successful.
Overall, this book contains dozens of tips that will improve your trial practice. Give it a space on your library shelf, but make sure you pull it down periodically to review the lessons and refresh your skills. Click HERE to order your copy today.
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