Recently I was helping a friend draft a cover letter.  If you’ve ever spent much time reading resumes and cover letters, you know that most of them say something along the lines of, “Me!  Me!  Me!  I’m awesome!  I’m amazing!  I’m the best!”

But here’s the problem…  Employers don’t care about you.

They don’t care how awesome you are, how smart you are, or how skilled you are.

What they really care about is what you can do for them.  They want to know if you can successfully handle the job, whether you can help make them more profitable, or solve the problem that they need fixed.

That’s why good letters start off by entering the discussion that’s already going on in the employer’s mind, and position the prospect as the solution to the employer’s problem.  For example, here’s something you might want to read if you were hiring a receptionist:

“When you hire a new receptionist, one of the biggest concerns you have is whether or not that person is qualified to handle your QX-4700 AT&T phone system.  Dropped transfers and misrouted calls are not only annoying, they cost you business.  That’s why you want a receptionist who is an expert on the QX-4700.  For the past 7 years, I’ve worked exclusively with the QX-4700 and have trained 14 new attorneys how to set-up their voicemail and use the QX-4700 system.  My experience with the QX-4700 will ensure that your calls are routed properly and that your business operates at peak efficiency.”

That letter will probably generate a lot more interest than the typical, “I’m awesome, you should hire me” cover letter that most prospects send out.  More importantly, the better that the prospective receptionist can define the employer’s problem, the more likely he is to hire her.  If he picks up her letter and thinks, “Wow, she really understands the problems my office is facing,” then he’s probably going to assume that she’s the perfect solution to his problem.

The same technique applies when you’re trying to persuade jurors and win trials.

If you can get inside their heads and understand what they’re thinking about, you’ll do a much better job of structuring your closing argument and addressing their needs.  To persuade jurors, you need to enter the conversation that’s already going on in their minds.  So ask yourself,

• “What are they thinking about?”
• “What concerns do they have about the case?”
• “What’s going through their minds when I stand up to deliver my closing argument?”

If you can answer those questions, your closing will be more valuable to your jurors.  They’ll see you as the guide they can trust, the person who will help them understand the evidence, and the person they can rely upon to help them through the case.

Some jurors will feel offended if you presume to know what they’re thinking, so rather than assuming that you know what they want, you might want to preface your arguments with a statement like, “One question that a lot of jurors ask is…” and then asking the question on behalf of your jurors.  For example:

“One question a lot of jurors ask is, ‘How am I supposed to fill out the verdict form?’  Here’s how you fill it out:  One of you will be selected as the foreperson.  You’ll be responsible for signing and dating the form.  At the end, that person will sign their name [here] and print the date [here].  You’ll also check the verdict form [here], finding the defendant not liable for Ms. Jones’ injuries.”

“One question that we often hear is, ‘I’ve heard all of the testimony and seen all of the exhibits, but what am I supposed to with it?’  That’s why the judge is going to read you special instructions about the law.  He’ll tell you exactly how to apply the facts you’ve heard to the law.  One of the instructions he’s going to read you will talk about the issue of expert witnesses.  Here’s what he’ll say…”

“One thing that you might be talking about in the deliberation room is, ‘What do we do if we think both parties are partly responsible?’  Here’s how to answer that question…”

Regardless of whether you’re applying for a job, talking to a judge, or addressing a jury, it’s important to get inside the mind of the person you’re addressing and enter the conversation that’s already taking place inside their minds.  If you can define the problem they’re facing and provide the solution, you’ll be far more persuasive than anyone else in the room, and you’ll be the person they can trust when it comes time to make their final decision.  Good luck!

It’s one of the worst feelings in the world…

You’ve finished your re-direct examination, and the witness is stepping down from the witness stand to walk out of the courtroom.  Then the judge turns to you and says, "Call your next witness." 

Your stomach tightens and your palms start to sweat as you realize: You don’t have anyone waiting in the hall.  Maybe your witness’s testimony went faster than expected, maybe your opponent did a lousy job of cross-examination, or maybe your next witness got caught in traffic.  But whatever the reason, it doesn’t matter.  You’re stuck without a witness, your judge is getting impatient, and you need a solution.  Like they said in the movie Speed: "Pop quiz, hot shot.  What do you do?  What do you do?"

1. Avoid the situation if you can.  First, and most importantly, let’s try to avoid the situation.  It begins by telling your witnesses to get to the courthouse early and ensuring that your witnesses are there well before they’re actually scheduled to testify. 

If you want your witnesses to get to the courthouse on time, you’ll need some help from your support staff.  Make sure that each witness receives written directions on how to get to the courthouse, where to park, and what they should (and shouldn’t) bring with them.  Get them to program your office’s phone number into their cell phones and make sure that you’ve got someone in your office who will answer the phone (no voicemail!) all day long.  Your office person needs to be able to give directions, so make sure that they know how to use Google Maps or whatever online mapping program you prefer, so they can give your witness accurate directions. 

This coordinator will also want to get cell phone numbers, text message numbers, office numbers, and email addresses for each witness, so they can reach everyone 24 hours a day during the length of your trial.  It may sound like overkill, but you can be assured that you’ll be kicking yourself if you don’t know how to reach a witness in the middle of your next trial.

2. Have a filler witness ready to go.  Maybe you only need 30 min to fill, so have someone on standby.  I’m not advocating having all of your witnesses sitting in the hallway throughout the length of your trial, because that’s a colossal waste of time.  However, it’s better to waste an hour of the witness’s time than even 10 seconds of the jury’s time, so plan to overlap your witnesses and tell them to come early and prepare to wait.  Even if it’s the CEO of the company, he should be prepared to get there early and wait to be called.  "But I’m the CEO and I’m too important to waste time here at the courthouse."  "Oh, I’m sorry, I thought you wanted us to win this case.  If so, then you’ll need to give me what I need.  In this case, that means I need you waiting outside the courtroom so that you can testify as soon as you’re called."

Early in my career, I tried to be nice and space out the witnesses to respect their time as much as possible and minimize how much time they wasted in the courthouse, but then I realized it’s safer to waste a little bit of their time than to face an empty chair in the courtroom.  I still try to respect their time as much as possible, but now I tell them to bring a book and be prepared to wait.  As a side tip, you might want to put a few crossword or Soduko books in your briefcase, or a non-descript book that includes tips for testifying ("Sit up straight; Look at the jury; Tell the truth, even if you think it hurts the case") to help minimize their pain of waiting.

3. Take the heat. Let’s assume that you didn’t follow steps 1 or 2 before the trial, and now you’re facing an empty chair.  What can you do?  Don’t try to dance around and shift the blame to your witness.  You’re in control of the trial, so if the witness isn’t there on time, it’s your fault, not the witness’s.  You need to fall on the sword and tell the judge why you’re not prepared.  Your judge probably doesn’t care why there’s no one in the witness stand, all she cares about is that you’re wasting her time and the jury’s time.  Rather than focusing on why the witness isn’t there, the important question you need to address is, "How long until the situation is fixed?"

Hopefully, you know how long it will take your witness to get to the courtroom (always remembering to factor in time for parking, metal detectors, and elevators), so you can candidly tell the judge how much longer it will be until you can put a witness in the witness stand.  If it’s only going to be 5 or 10 minutes, the judge may be accomodating.  If it’s going to be 30 or 40 minutes, you should be prepared for a tongue lashing.  Whatever the reason, accept responsibility and be prepared to take the heat.

4. Ask for a break.  Once you’ve accepted responsibility and told the judge how much more time you need, you need to figure out what to do in the meantime.  The easiest thing to do, especially if you only need 10-15 minutes, is to ask for a break.  If your jurors smoke or have weak bladders, they’ll appreciate the opportunity to stand up, stretch their legs, and go take care of their business, but don’t make a regular habit of asking for breaks.  Your jurors are taking time out of their lives to come decide your case, and they don’t want to waste it wandering around the courthouse while you try to get your case together. 

5. Work on the jury instructions.  Maybe the judge isn’t inclined to take a break merely for the sake of taking a break, so you’ll need to find a more valuable way to fill the time.  One good way to make use of the empty time is to finalize your jury instructions.  Jury instructions always need to be tweaked before they can be read to the jury, so use this time to finalize the instructions.  This still has the (huge) disadvantage of wasting the jury’s time, but at least you make use of the valuable court time.

6. Read stipulations.  One of the best ways you can use this downtime is by introducing stipulations into evidence.  Now is a great time to read the agreements that you’ve made with opposing counsel, or to introduce the photos that both parties have stipulated into evidence.  Ideally, you want to introduce those stipulations at their most opportune time, but since desperate times call for desperate measures, now might be the best time to introduce them into evidence.

7. Settle the case.  This is the last suggestion, because it’s the worst.  But let’s face it — you don’t have a witness, how good can your case be?  Now might be the time for you to strike a deal, before your case completely falls apart.

Obviously, you want to avoid having an empty witness stand, but sometimes, you simply can’t avoid it.  Hopefully these tips will help ensure that you always have a witness present, but in case you don’t, at least you’ll be able to minimize the damage.  Good luck in trial!

I’ve got a confession to make.  It’s embarrassing, but one of my guilty pleasure is to watch the reality TV show, Cheaters.

Cheaters is one of those stupid TV shows that hooks you with the human drama and won’t let you go, even though you’re embarrassed to tell your friends that you watched it.

Sure, it’s trash TV, but it’s also watched by nearly 2 million people every week, especially 18-34 year olds, many of whom will get called to jury duty.  And since good trial lawyers watch what their jurors watch and read what their jurors read, you’ll want to watch a few episodes of the show.  While you’re watching, look for these five cross-examination lessons that you’ll learn from Cheaters:

1. Have a gameplan. Every episode of Cheaters follows a similar formula.  First, the faithful spouse describes the relationship and why they suspect infidelity.  In the second scene, the Cheaters investigators document the infidelity through controlled phone calls to catch the cheater lying, photographing the couple ducking into a cheap hotel room, or even using concealed cameras in the faithful spouse’s bedroom to catch the unfaithful spouse in flagrante delicto (and you thought that the Latin you learned in law school would never be useful!)

In the third scene, the Cheaters host, Joey Greco, shows the proof of infidelity to the faithful spouse, and then asks if he or she would like to confront the cheater.  This is where the show gets good. At this point, they swoop in with 6 or 7 cameras to pounce on the cheater and his mistress.  Joey usually says something snarky, like “Hello, I’m Joey Greco from Cheaters. I don’t need to introduce you to your wife, do I?”  Then all hell breaks loose as the faithful spouse confronts the cheater.  There’s yelling and screaming, tearful outbursts, and sometimes, the scene descends into mayhem as scorned lovers attack their unfaithful spouses.  This is why millions of people tune in every week — they love to watch the confrontations.

But here’s the secret of why they’re able to successfully duplicate the drama every week: All of those steps are scripted beforehand to get the noisest confrontation possible and ensure some good TV.

The same is true for successful cross-examination.  You can’t successfully cross-examine a witness if your entire plan consists of hoping that you’ll be struck with a flash of brilliant inspiration in the courtroom when you rise to cross-examine the witness.  Your deadliest cross-examinations will be crafted in your office or in the library, long before you ever walk into the courtroom.  Invest the time to craft your cross-examination gameplan before you go to court, and you’ll dramatically improve your chances of success.

2. Have the goods. Cheaters never confronts anyone armed with only a “hunch” or a “bad vibe.”  Instead, they videotape the indiscretions so that there’s visual proof of infidelity.  That way, they have their facts straight before they approach the suspect, eliminating any potential wiggle room and preventing him from avoiding the truth.

Before you cross-examine a witness, you need to make sure that you’ve got your facts straight, too.  Depending on the type of case you’re handling, “getting the goods” might mean hiring a good investigator, visiting the scene to photograph the area, locking someone’s story down in deposition, performing a background check, or it might mean plowing through millions of pages of documents.  Whatever it takes, you need to have the goods in hand before you attempt to cross-examine.

3. Believe it or not, people sometimes lie.  On the show, whenever a cheating spouse is confronted, they’ll often deny that anything improper is going on.  “That wasn’t me,” ”I didn’t do anything,” and “She’s just a friend” are all standard denials that you’ll hear on every episode.

(WARNING: Skip this paragraph if you’re prudish — it’s racy!) One of the funniest denials on the show involved a standard “ambush” scene.  As the cameras rushed up to the suspect’s car, you could see him sitting in the driver seat with his pants unbuckled, while the topless woman in his passenger seat bobbed her head up and down in his lap.  His response, when confronted by his wife?  “This isn’t what it looks like!”

Even when caught in the act, people will still deny any wrongdoing.  If you’ve spent any time in a courtroom, you know that his denial isn’t that uncommon.  Witnesses will evade, deny, and even lie.  Your job is to expose those lies for the jury.  Fortunately, when you’ve got “the goods,” you can confront them with the truth.  But if you want to win, you must ensure that you’ve got your ammunition tabbed and ready to go so that you can find it immediately. It doesn’t do you any good to have a smoking gun document if you can’t find it in the heat of trial.  There are dozens of different systems and software programs out there to help you organize your case.  Pick one and use it.  It doesn’t matter which system you use, just so long as you’re comfortable with it and can keep the impeachment materials at your fingertips for immediate access.

4.  Stick to your story. Another common tactic that cheating spouses will employ is to shift the story away from their actions.  As the man buttoned up his pants, he didn’t say, “I’m sorry” or “I’m an idiot.”  Instead, he said something like, “You’re embarrassing everyone – why did you bring all of these cameras instead of confronting me in private?”

When someone has been caught (literally) with their pants down, they won’t want to talk about that. Instead, they’ll try to shift the attention towards another topic, preferably something that either focuses on the accuser’s shortcomings, or shifts blame someplace else.

Wiggling witnesses will try to do the same thing to you.  Unless you can control the cross-examination to maintain focus on the wrongdoing, the witness will attempt to shift blame towards someone or something else.  Don’t let him redirect your cross-examination.  You’ve got to stay on target and avoid distractions.  Don’t let the witness lead you down a rabbit trail of irrelevant facts, or worse yet, goad you into arguing about the rightness or wrongness of his actions.  You’re never going convince him that he did something wrong, and you’re not going to convince him to change his story.  What you’re trying to do is convince the fact-finder that his story isn’t true.  Instead of debating him or wandering away from your pre-planned topics, stick to cross-examining him about the facts, and you’ll maintain control of your cross.

5.  Know your escape route. Okay, so maybe it didn’t work the time Joey got stabbed. (http://www.youtube.com/watch?v=NyACPmeFBRQ), but most of the time, the show ensures everyone’s safety by having a security team present and a van waiting nearby.  If anything goes wrong (and it often does), the security guards can move into place to stop people from attacking each other, and the host can move the client into the van so they can escape to “Cheaters HQ” or wherever their safe location is hidden.

If your cross-examination goes off the hinges, you’ll need a safe escape, too.  Have three well-scripted, bullet-proof (aka “Objection Proof” and “Wiggle Proof”) questions that will let you end on a high note.  These questions don’t need to be too dramatic, they just need to let you get three quick “Yes’s” in a row so that you finish your examination looking like you’re in charge of the situation.

Sure, it’s trash TV, and yes, it’s probably going to look out of place on your TiVo list next to whatever “intelligent” TV shows you normally watch, but watch a few episodes of Cheaters and you’ll learn more about the human drama than you can learn in any law book, as well as a few valuable lessons about cross-examination.  Enjoy!

When I speak to law school students about how to successfully try cases, they usually have lots of questions.  One of the most common questions I’m asked is, “What should you do when a juror gives you a bad answer?”

Usually, I’ll pause for a moment before replying, because the question perplexes me.  Typically, my response is something along the lines of, “I don’t know what you mean — there’s no such thing as a ‘bad answer’ during jury selection.”

The students always seem a bit surprised at my answer.  “What do you mean there’s no such thing as a ‘bad answer’ during jury selection?  What about when a potential juror says something that poisons the whole panel?  How do you handle it?”

“I never have to ‘handle it,’” I’ll reply, “because it’s almost impossible to poison a jury panel.”

From the looks on their faces, you can tell that they think I’m completely out of my mind, so I have to explain my philosophy about jury selection.  In a nutshell, here’s what I say:

I have a different view of jury selection from many other lawyers.  I believe that it’s almost impossible to poison a jury panel.  It doesn’t matter what a potential juror says — I think that every answer is a good answer.

Let me explain…

Jurors have spent their entire lives developing their beliefs, their life experiences, and their worldviews.  It’s the height of arrogance (or stupidity) for us to think that we can change those views or convince them to ignore an entire lifetime of experiences during the pitiful amount of time we have to conduct jury selection.

Don’t believe me?  Let’s use your beliefs, life experiences, and worldviews about police enforcement officers as an example.  At this point in your life, you’ve established some fixed beliefs and views about police officers.  You may believe they’re inherently good people, you may think they’re inherently dishonest, or your beliefs may fall somewhere in between the two ends of the spectrum.  For sake of argument, let’s assume that you believe police officers are 100% honest and would never do anything dishonest or improper.  Now let’s drop you into the jury pool for a criminal trial where the credibility of police officers is central to the case, and let you listen as the prosecutor begins questioning the man seated next to you:

Prosecutor: “Mr. Wallace, do you believe that police officers are automatically more credible or less credible than any other witnesses?”

Mr. Wallace: “They’re definitely less credible.  I don’t trust cops.  They’ll all lie, cheat, or steal to get what they want.  I remember this one time back in band camp when I was stopped by a cop for no good reason at all.  When I dared to question his authority, he punched me in the stomach, tasered me, shot me in the leg, and then sprinkled crack cocaine all over my unconscious body and inside my car.  I was framed with false evidence, and went to prison for something I didn’t do.  I spent two years in prison before I was released.”

That seems to be a pretty terrible response for the prosecutor, doesn’t it?  Many lawyers would be terrified of eliciting a negative statement like that, because they think it “poisons” the entire jury panel.  They’re afraid that the other jurors will start thinking, “Wow, that’s awful!  Maybe police officers are dishonest, and we shouldn’t trust any of them…”

But the truth of the matter is, this juror’s comments won’t change any of the other jurors’ beliefs about police officers.  If a juror already believes that police officers are dishonest, this juror’s statement simply reinforces their view of the world.  Like we said before, let’s assume that you believe all police officers are 100% honest and would never do anything dishonest or improper.  If you strongly held that belief, would this juror’s comments suddenly make you believe that all police officers are dishonest?  No, you’d probably think, “This guy can’t be telling the entire truth…  There’s something else to the story.  Even if what he’s saying is true, that’s just an isolated incident with a rogue police officer — it doesn’t mean that the police officers in this case are dishonest.”

If your jurors have any convictions at all, a single isolated comment like that won’t change their beliefs, life experiences, or world views.  The only time a jury panel can be “poisoned” is when a juror has specific knowledge about the facts of your case.  For example, if a juror said, “Your star witness is Bill Smith?  I can’t trust that guy.  He’s a liar, a cheat, and a thief.  He steals money from orphans, spits on the flag, and clubs baby seals for fun,” a statement like that can poison your jury panel, because the jurors don’t have any pre-established beliefs about Bill Smith.  They’ve never met him before, so this statement will form their first impression about him and will color everything else they learn about him.  (Experiences like that are few and far between, and easily handled by asking the witness to approach the bench before divulging his personal knowledge about the facts of the case.)

When jurors talk about their beliefs, their life experiences, or their worldviews, it’s impossible for them to poison the panel.  No matter what they say, regardless of how extreme or negative it may be, you should be thankful for their response.

“Wait a minute,” you’re thinking, “I should be thankful?  A juror goes out of his way to attack my case and I should be thankful?!? You’re nuts!”

Yes, regardless of how negative their comments are, you should be thankful for their honest response.  Why?  Because this juror has a heartfelt belief that is harmful to your case.  Nothing you’re going to say or do during jury selection will change their beliefs, so wouldn’t you rather know about that poisonous belief now, before they take it with them back into the jury deliberation room to scuttle your case?  By exposing the belief now, during jury selection, you get the opportunity to intelligently exercise your peremptory strikes or ask the judge to strike the juror for cause.  More importantly, you also get the opportunity to use this juror’s views to shine a light on the rest of your panel and discover who shares similar beliefs.

The next time you’re picking a jury, don’t be afraid of what jurors might say and ask about the issues that scare you the most.  After all, what’s the worst that could happen?  They might stand up and say, “I hate your case!  I hate your client!  And I hate you!”

Your perfect response?  “Great!  Who else feels that  way?”

It’s better to discover those dangerous beliefs before they harm your case.  Regardless of what a juror says, always remember: There’s no such thing as a bad answer during jury selection.

There’s something strange about how our brains work.  For some reason, our brains don’t seem to comprehend the word “Don’t” very well.  In fact, our brains have the power to completely ignore that single word while still hearing every other word in the statement.  It happens on a subconscious level.  When we hear the word “Don’t,” we ignore that word and follow the rest of the command.  If you’ve ever coached sports, you probably noticed the difference between telling an athlete, “Don’t miss this shot” vs. “You’re going to make this shot.”  When you tell players, “Don’t miss this shot,” they’re more likely to miss.  For some reason, “Don’t” gets lost in the shuffle, leaving only the command: “MISS THIS SHOT!”

The reason that happens is because our minds latch onto the strongest image available.  You use words to create verbal images.  The verbal images you create determine whether jurors focus on what you’re asking for, or if they focus on the complete opposite of what you’re asking them to do.  Here are some other examples of how words can affect imagery and outcomes:

Do you feel the difference between the right picture and the wrong picture?  You know that when you tell a guest, “These are our most expensive wineglasses — whatever you do, don’t drop them” that the glass will soon shatter on the floor.  But when you phrase the same request positively, it completely changes the picture you create in someone’s minds.  Changing the image changes the outcome.

As a trial lawyer, you’re a wordsmith.  It’s your responsibility to craft words with care and precision, creating verbal pictures that achieve your desired results.  You have an obligation to your clients to maximize the persuasive impact of your messages.  One simple technique you can apply to achieve that goal is to create the right pictures in your jury’s mind.  You can do that by phrasing your language in the form of positive images, rather than negative images.

Unfortunately, lawyers are notorious for using negative language.  Think about criminal defense attorneys, for example.  They don’t want their jurors to focus on the fact that their client isn’t testifying, because they’re afraid the jurors will think the defendant isn’t testifying because he’s guilty.  But what do these attorneys do?  They tell the jury, “Don’t hold it against my client if he doesn’t testify.”  Translation?  “If he doesn’t testify, you should hold it against him.”

Prosecutors and plaintiff’s lawyers make the same mistake.  They regularly ask the jury, “Don’t hold us to a higher burden of proof than required by law.”  What do you think the jury is going to do after they hear that?

Judges aren’t exempt, either: “Objection sustained.  The jury must disregard that statement.  Don’t pay any attention to that evidence.”  If you had all day to think about it, you couldn’t come up with a better way to highlight that statement for the jury.

Your goal this week is to find a better, more positive way, to illustrate your points during trial.  Spend a few moments thinking about your last trial and review how you asked the jury to think about your most important points.  How did you phrase your language?  Did you phrase your requests positively or negatively?  Did you ask for things you didn’t want?  The picture that you paint in the jurors’ minds is likely to be fulfilled.  What types of images are you creating?   Focus on creating positive images in your jurors heads, and the persuasive impact of your courtroom presentations will improve immediately.