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Real Advocacy Lessons from Fiction

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TomThe award winning attorneys at GRGB are regularly sought out to provide professional insight and even write the occasional article. Below is one such article that was written by our very own Tom Brown for the National Business Institute Continuing Legal Education Blog. Tom serves as a faculty member for the NBI, and teaches seminars throughout the year to help attorneys stay fresh in their legal practice.

Too Many Jack McCoys - Not Enough Sonny Seilers

Law & Order's Jack McCoy never took a deposition. Can you imagine McCoy's self-important image convincing any plaintiff or defendant that he should relax and tell his story? A deposition that would normally take two hours is now destined to take all day. Instead, McCoy should take a page out of Sonny Seiler's book...

Who is Sonny Seiler? Jim Williams' attorney in Midnight in the Garden of Good and Evil. Sonny appears to be just a good ole boy that tends to focus more on the efforts of the football team for the University of Georgia, than he does on his case. But does Sonny win his case? Of course he does. Imagine the impossible . . . that an attorney would actually want to attend a college football game . . . when his client is in jail . . . (Note: Sonny Seiler actually appeared in the movie in the role of Judge White, the presiding judge at the trial).

In contrast, A Civil Action reflects what goes wrong when an attorney focuses on the need for a win - and an apology - instead of reading the body language of his opponent and getting a good settlement. Although the movie was spectacular in finally explaining how the groundwater got contaminated, it was not so good in pointing out that sometimes the hows and whys of litigation do not matter, if you lose everything and get lost in the details.

Honesty - Can Be the Best Policy

Sadly, something that too few attorneys are prepared for is the honest - "I'm telling you like it is" attorney. My Cousin Vinny is a perfect example of a day wasted in subterfuge when honesty would have worked better. Vinny spends the day with the prosecutor in a painful outdoor outing in the belief and hope that he can persuade the prosecutor to share discovery with him. Upon Vinny's return to the hotel, his girlfriend played by Marisa Tomei, explains that she has read the trial rules (imagine that) and that Vinny is entitled to discovery as long as he just asks for what he wants.

On the other hand, Vinny was great at reading body language. He could walk around the courtroom as a non-threatening form and ask enough questions - albeit poorly worded - sputtering and stuttering along - until he could figure out the weaknesses in the witnesses' testimony. Vinny had no difficulties with others smirking and laughing at him, he was new to the courtroom, he did make some humorous mistakes, but he was there to represent his client(s), not to feed his ego.

Above all, always be honest with the jury. Never promise what you can't deliver.

How to Talk to Clients Without Really Telling Them Anything

In Anatomy of a Murder, small town lawyer Jimmy Stewart represents Ben Gazzara, who is arrested for the murder of a man that raped Ben's wife, Lee Remick. The problem is that more than an hour passed between the time Ben learns of the rape and the time he kills the man. In their initial interview, Jimmy explains to Ben - before Ben tells him his story - that if . . . just if . . . Ben was in such a state of mental distress because of the rape that he was unable to control himself - he just might have an insanity defense of "irresistible impulse." But that would only apply if Ben heard about the rape, saw that his wife had been beaten, and then everything went black. But, if that was not the case, then sadly, Ben is going to go to jail for the rest of his life. Now Ben . . . you tell me what happened.

Employing Sociolinguistics to Persuade

Sociolinguistics is the study of the effect of any and all aspects of society, including cultural norms, expectations, and context, on the way language is used, and the effects of language use on society. Writers, directors, actors, all get the advantage of rewording and rewriting their lines even while filming the final product. Litigation attorneys get none of those advantages.

One of the best movies reflecting sociolinguistics is the judge (Paul Winfield) in Presumed Innocent when he speaks the name of the Prosecutor Nico Della Guardia and continually pronounces it "Deelay Guardia." Further, defense lawyer Sandy Stern (Raul Julia) gives the best "let me phrase it this way" pre-trial courtroom discussions on film which lets the judge know - without ever saying a word - what the case is really, really about.

Utilizing the correct words or phrases, other than . . . "like" . . . "you know" . . . "I mean" . . . and "they told me to" . . . give not only information to your listener, but emotion. As an attorney, your goal is not simply to inform others, but to bring them into the world of your client in which they view the world through his or her eyes.

In order to do that, you must use precise words with precise meanings, not the short sweet sound bites or text phrases commonly used in today's communication. Movies and television shows are not impromptu means of communication. Every word, every gesture has been revised, rewritten, and rehearsed.

Starting with the initial interview, give your client the use of those words. Then, they become his or her words when testifying in front of the jury two years later. That means, as the attorney, you only have to provide half the emotional words at trial because your client is not doing part of the work.

The problem arises when you have a client who, for whatever reason, cannot use those emotional words. We attorneys (who have the reputation for being just a bit verbose) then have a tendency to want to testify for our clients. The movie Suspect was a perfect example of an attorney who needed to set the stage for her case, but was unable to, at least initially, because her client wasn't talking. The same problem arose in the movie The Verdict in which the client was a comatose patient on life support.

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