Personal Development

After more than four years, evidence continues to trickle in supporting long-theorized concerns about the COVID-19 pandemic’s effect on students’ learning progress. The battle to claw back this lost education has even led to lawsuits alleging that states like California failed to provide adequate support to already underserved students. For their part, teachers have had to learn the ins and outs of online or hybrid classrooms and also relearn how to approach students of various ages in their delayed stages of educational development. The silver lining? Adapting to students’ needs, whatever those may be, has always been a hallmark of great teaching. But what does being a trial attorney have to do with being a teacher? Before becoming a jury consultant, I was a lawyer, and when I stopped practicing law to teach math, everyone around me had that exact same question. To some extent, I did too. I mostly just knew I wanted to teach. When I entered the classroom each new school year, I became responsible for teaching a group of strangers who may not have wanted to be there, about a subject that they may not have wanted to learn and were largely ill-equipped to understand. This easily could be considered the job description of a trial attorney. They are tasked with presenting complex information to a panel of jurors, many of whom would rather not serve and are completely unfamiliar with the issues at the heart of the litigation. Even the busiest trial attorneys have limited opportunities to present to jurors, but teachers do this kind of work with students every day. As I developed my teaching skills—with no shortage of learning through my mistakes—I came to the realization that not only do teachers and attorneys share many similar goals, but that my treasured time in law school could have prepared me much better for the role of trying a case to jurors. The connection between my passions, I discovered, lay in the skills successful teachers have that allow them to brave even the insanity of a post-pandemic catchup: their ability to meet every student where they are. So, without further ado, here are five lessons I learned as a teacher that can help you be a better trial attorney: 1. If You Want to Be There, So Will They When we are confronted with an audience whose interest we fear is lukewarm, it is easy to fall back on self-deprecation. Lawyers trying dry or complex cases may find it tempting to apologize up front: “I’m sorry this is boring” or “I’m sorry this is complicated” or “You’ll have to bear with me.” But the moment you suggest to jurors that even you do not believe in the value and appeal of the subject matter, you have given them a free pass to check out or take the easiest cognitive path. That typically means buying into the plaintiff’s often simpler, easier-to-understand story. Instead, try emphasizing how passionate you are to be there and represent your client. If the matter is complex, you might acknowledge the complexity while assuring jurors that you had to learn some new things to try this case, and they will need to do the same to decide it. Express your confidence in their ability to do just that; show them that you are with them and equally invested in the importance of this experience. One good example of this technique comes from a defense attorney I heard explain to jurors during his opening (in a criminal tax case), “You may find the tax code overwhelming or intimidating, but I am confident that by the time this case ends, you will feel differently. In fact, justice requires that you understand and fairly apply the tax code.” Jurors want an attorney excited by their client’s case and excited to share it with them. They also want to be assured that you will provide them with everything they need to reach a fair and just outcome, which leads to my next point. 2. Jurors Will Learn What You Teach Them Upon grading the very first assessment I gave my students, I was horrified to see that 90% of them failed. I sat in shock, lamenting all the effort I had put in and wondering why my students had been unwilling to do the same. My teaching coach then reminded me that “if they have not learned it, you have not taught it.” The mismatch could not be placed solely on their shoulders. The same can be said about jurors. So often, attorneys bemoan the outcomes that jurors reach, stunned at how they can get it so “wrong.” However, having spent hundreds of hours listening to and interviewing jurors, I can say with certainty that the vast majority of jurors want attorneys to tell them how to reach the right outcome. They want the tools to make the correct decision and are relying on the attorneys to lead them to a just result. So, if you know the evidence was strong in your favor, the mismatch may have occurred in the way the case story was presented to them. It may take a trip back to the drawing board. How do you know if you are on track to “teach” the jury? Try your material out on colleagues in another practice area, on a mock jury, or even on your partner or child. If your teen, partner, or colleague does not understand the complex parts of your case or what outcome you want them to reach, a jury likely will not either. 3. Meet Jurors Where They Are On my first day in the classroom, I was both over-prepared when it came to the subject matter I was teaching and woefully unprepared when it came to dealing with students. Armed with knowledge, enthusiasm, and confidence that I could connect with my class, I began working through a problem involving discounted prices. At the end of my 10-minute tutorial, a student raised her hand and asked me, “What is that weird picture you keep drawing next to the numbers?” Caught off guard, I stopped and scanned the board. I slowly realized that she was asking about the percent symbol. And when I turned back to see her fellow students nodding, sharing her bewilderment, I quickly understood my first-day lesson: Falsely assuming my students and I shared the same language meant my attempts to teach them had created more questions than answers. Attorneys often make the same mistake. Both law school and the practice of law involve regular use of a vocabulary that, while customary in the field, is not common anywhere else. Even the proper application of terms like “reasonable,” “consideration,” “duty,” or “causation”—the building blocks of any first-year law student’s vocabulary—is entirely foreign to most jurors. Consider the following example from a recent mock trial. During presentations regarding a lawsuit brought by the family of a man involved in a lethal auto accident, attorneys frequently and casually referenced the “estate” of the deceased. Simple, straightforward stuff for a lawyer. Come deliberations, however, we discovered that most of the jurors believed “estate” referred to extensive assets—home, car, savings, investments, etc.—due to how the word is often used colloquially. Their (faulty) conclusion was that the deceased was a considerably well-to-do man. Thus, they argued, his surviving children had little need for a damages award. Again, this is when your partner, colleagues, or children make great collaborators. Give them a five-minute summary of your case and ask, “What concepts were confusing?” In addition, reread your own opening and closing, and highlight every word you learned in law school. Those will need further explanation for a jury. Some of the most skilled attorneys I know are acutely aware of speaking “legalese” and consistently provide jurors with the context and understanding they need to navigate legal terms. One of the places where jurors struggle the most is on verdict forms and jury instructions. Use your time during closing to walk jurors through the key terms they need to understand and apply to side with your client. 4. Framing Comes First Teaching is a lot like helping students build a house. You start them with a solid foundation, construct the essentials, and, if time and budget allow, add the finishing touches. One of the first things teachers learn in graduate school is to begin lessons with a learning objective, e.g., “Students will be able to multiply fractions” or “Students will be able to balance a checkbook by adding and subtracting with decimals.” The idea here is that when students know exactly what is expected of them and why it is important, they can begin to activate their prior knowledge and become engaged in the learning process. This technique is called “framing,” and it is equally important in the courtroom. After months or maybe even years of living with a case, attorneys can forget to build the foundation for jurors; they do not frame the trial story. Jurors want to understand why they are there, know how to get it right, and feel that their service matters. Mock jurors’ deliberations over a recent antitrust case offer one such illustration. As they were analyzing relevant markets and debating what constituted anticompetitive behavior, a juror asked, “What laws were even broken here?” Not a single juror could answer her question. No one had framed the case for them. While it does take time to give jurors the framing they need, it is time well spent. Only after appropriate framing can they understand the relevance of the evidence and—most vital of all—appreciate what actions you are asking them to take on the verdict form. You may have worked countless hours to build a strong case through heaps of documents and deposition tape, but make sure you take the time to frame the case so jurors know how to use all that evidence appropriately. For example, in the antitrust case mentioned above, spending a few minutes during opening to explain the background and purpose of antitrust laws would go a long way to frame the case for jurors. You have now set the stage for jurors to filter the testimony for evidence of harm to competition, increased prices, or lower supply. In the absence of framing, this testimony runs the risk of falling on deaf ears—or, more accurately, ears that have not been primed to receive and process how the evidence relates to their task. 5. Incorporate Multiple Learning Styles Great teachers and great lessons tend to incorporate several different “styles” to engage all types of learners. Learning styles are the methods that best allow us—as unique individuals—to understand, express, and remember information. According to one popular education-psychology model, there are four basic learning styles: Visual, Auditory, Reading/Writing, and Kinesthetic. Most of us benefit from a mixed approach but have one dominant style—e.g., you may love reading your favorite novel, someone else might go for the audiobook version, and another person might understand the story best by acting it out. And while research is hazy on whether people achieve at higher levels when taught in their preferred style, there is no doubt that they are more engaged. You will likely have learners of multiple styles sitting on your jury; to sway those jurors, you must first engage them. One of the most effective teachers I ever observed was a master in appealing to these learning styles. She was teaching photosynthesis, a process I had long forgotten. But over the course of the lesson, students were rapping about photosynthesis (auditory learning), illustrating the cycle of photosynthesis (visual learning), using a mnemonic device to write out the steps of photosynthesis (read/write learning), and using choreographed body and hand motions to act out photosynthesis (kinesthetic learning). What might this look like in a trial? Auditory learners. The courtroom setting defaults to appeal to auditory learners. Witnesses give oral testimony, lawyers argue aloud, and the judge rules audibly—all so an accurate record is maintained. Only around a third of people, however, are auditory learners. So, if you are not engaging in a multimedia approach, you are likely missing the mark with most of your jury. Visual learners. Most people are visual learners, increasingly so in a world full of quick imagery on social media and the internet. To the maximum extent possible, make your case visually. I often hear attorneys say that their case is too complicated for a graphic; I would argue that it is the complicated cases that need graphics the most. The right graphics team can do astounding work to break down and simplify concepts into jury-friendly pieces. Read/write learners. Likewise, appeal to those read/write learners by using PowerPoint slides with short and simple language that does not distract from the speaker. Avoid full sentences, blocks of text, and visually “busy” slides when possible. A flipchart on an easel also remains a tried-and-true option to this day, offering a visual exclamation point and a bit of variety from your standard slide deck. Jurors can watch you write down that critical theme, and you can even leave it up on display as you continue. Kinesthetic learners. Thankfully, kinesthetic learners tend to be the rarest among the general population, as they are the most challenging to reach in a courtroom setting. If your case involves a product or device, you may consider using your hands to demonstrate how it works or was misused, in the hopes they might recreate those motions. Of course, in an ideal world, the judge allows the product or device into the courtroom for jurors to interact with directly. The secondary benefit of accounting for various learning styles is that it encourages variety in your presentation methods. Keeping jurors on their toes with new types of media encourages engagement during long days when mental fatigue threatens to set in. In Conclusion When thinking about trying a case to a jury, put yourself in the jurors’ shoes. Think of your least favorite class in middle school. Remember how it felt to be in a place you did not want to be but had an obligation to be, or a place where all the information was unfamiliar and overwhelming. Now remember your favorite class or teacher. What made the difference? Odds are your best memories came from a teacher who used the techniques above to engage you in the learning process. Viewing jurors as learners—individuals willing and able to learn your case if given the proper shot—lends a fresh perspective to addressing them, and one that might make all the difference in your next case. 

The last few days I’ve been harping a bit on the importance of “knowing your numbers.” Yesterday, I said that the “Key” numbers for the owner of a solo or small law firm to be on top of are as follows: Budget Budget Variance Report Cash Flow Projection (6 weeks rolling) Aged A/R by Account WIP Cash Position (Operating & Trust) In response, a few lawyers asked me to explain why Balance Sheet is not on my “short list.” A couple more thought their YTD revenues should make my top six list. They all made very nice arguments that I’m not going to distract you with here. Instead, here’s the explanation to each of these questions, so you don’t let yourself get distracted… Balance Sheet Financial accountants love balance sheets. So do book keepers. Management CFO’s aren’t nearly as impressed with the balance sheet, however. There are two principal reasons for this big difference in who cares more about what. First, the balance sheet for solo & small law firms is mostly fictitious. In other words, the assets don’t really matter. Assets don’t pay bills. Cash flow does. Assets don’t hire staff or fund marketing campaigns. Cash flow does. Balance sheets, which are driven by the estimated value of assets against the estimated total of liabilities, tell you how much “equity” you have in your law firm. So what? Who cares? Would you rather own a law firm with one million dollars of “equity” and flat, anemic or even negative cash flow; or a law firm with half as much equity but twice as much positive cash flow? THAT is why Management CFO’s of law firms don’t worry too much about balance sheets. Because cash flow (which is driven by the 6 key numbers) is what really makes a difference in how you manage a small law firm. YTD Revenues Year-to-date revenues are nice to know about. This number helps put everything into perspective. It’s a great way to pat yourself on your back and congratulate yourself for a job well done. I look at my YTD revenue every month and every year I look forward to “Breaking The 7 Barrier” earlier and earlier in the year. But YTD revenues don’t drive forward-looking decisions. YTD revenues are like looking in your rear-view mirror or at a line on your GPS screen that tells you where you have been. YTD numbers are good for nostalgia and filing your tax returns. But they don’t drive ongoing, forward-looking management, marketing, sales, staffing or any other of the critical decisions that management of the law firm must make on an ongoing basis to ensure profitability and a balanced lifestyle. If this is all news to you, don’t worry. You’re not alone. None of this is anything they teach any of us in law school. If you “know” this stuff but you’re not making monthly management decisions based on what your six key numbers are telling you, then I absolutely promise you that you are NOT coming close to having the most profitable, predictable and/or the most professionally-satisfying law firm that you COULD be enjoying. There is a reason why the MOST successful law firms in the country have a CFO on their team too. You can be your own CFO. It just might be a thousand times harder for you to be your own CFO than to get some outside help. And way more expensive for you to try and be your own CFO too. But not as expensive as NO-ONE being the CFO of your business. That’s REALLY expensive!

Among neutrals in the alternative dispute resolution (ADR) arena, there is often a conversation (or dilemma) about whether to work as an arbitrator, a mediator, or both. Many neutrals prefer to choose one or the other for a multitude of reasons. Some prefer the lack of deadlines and stress found in the mediation setting. Others are concerned that their rulings in arbitrations may alienate their client base—the attorneys. Some simply have a natural preference for one form of dispute resolution versus another. After wrangling with this issue for years, I ultimately made a conscious decision several years ago: to do both. Arbitration and Mediation: a Natural Symbiosis The way I see it, mediation and arbitration share a symbiotic relationship of sorts. There are tasks and functions that you perform as an arbitrator that, in my opinion, make you a better mediator and vice versa. Take subject matter expertise for example. During my fifteen years as an employment law and business law litigator, I was one of the rare (or perhaps odd) individuals who truly enjoyed legal research and writing. It was also that part of my practice that taught me the most about the legal issues I was working through and forced me to stay current on the law. After working as a full-time mediator for about ten years, it was that aspect of litigation that I realized I missed the most. Arbitration reintroduced the research and writing component into my practice. As an arbitrator, it is incredibly important for me to feel confident that I reach the correct conclusion. The best way for me to feel confident that I have in fact achieved this goal is to research. This involves not just reviewing the cases cited by the parties, but also doing my own independent research and verifying my conclusions. Not only does my research ensure that my rulings in my arbitration cases are solid and well-reasoned, but it also provides me with an even more solid foundation and deep expertise from which to draw in my mediation cases. Recent “new” issues that have arisen in my arbitrations, such as vaccine mandate cases, Federal Trade Commission (FTC) restrictive covenant issues, artificial intelligence (AI) in employment issues, and in-depth damages analyses force me to take deep dives into the ever-evolving law on these issues. This growing familiarity with these forefront issues has broadened my knowledge base so that I am a much more effective mediator in cases where these issues are at play. When I am very familiar with the statutes and case law at issue, I have more context when considering and evaluating the allegations made by the parties. This knowledge also gives me a strong foundation for “reality testing” with both sides and intelligently and confidently discussing possible legal outcomes and litigation strategies. Finally, possessing an in-depth understanding of the underlying law undoubtedly gives a mediator more credibility with the attorneys, which in turn increases the likelihood of resolution. Arbitrating Makes Me a More Effective Mediator On the flip side, as an evaluative mediator, it is critical that I listen to both sides, always considering and reconsidering each side’s positions. Mediation requires much patience and most importantly, excellent listening skills. The daily circular reasoning that is required of all mediators translates well to arbitration. It trains the arbitrator to sit as an open-minded decision-maker and to refrain from making a decision until the last post-hearing brief is filed. Jumping to conclusions is not a trait that anyone looks for in an arbitrator. Working as a full-time mediator helps prevent this from happening. A mediator’s brain is trained to listen, evaluate, discuss, and then “rinse and repeat” all day long. Having a mediator who also works as an arbitrator all but ensures that your mediator will be trained to carefully, and without any bias, evaluate the merits of each side’s case, not just from the position of the parties or attorneys, but also through the lens of a potential decision-maker. I will sometimes warn a party in a mediation that an argument or set of facts that they are advancing would cause my “spidey senses” to tingle if I heard it as an arbitrator. This allows the parties and attorneys to consider yet another possible way that a third party might view their case. As neutrals, it is critical that we continue to learn and to grow and to constantly hone our listening and communication skills. As Albert Einstein noted, “Intellectual growth should commence at birth and cease only at death.” This is so very true of continued growth as a mediator and arbitrator. I of course recognize that many attorneys do find that choosing to only mediate or arbitrate is the right fit for them. For me, however, the challenge of working as both a mediator and arbitrator helps me perform better at both roles, and provides me with a rich collection of experiences from which to draw when serving in either role. I absolutely believe that doing both makes me a more effective neutral.

I will admit up front that the title for this one might sound like someone trying to weasel out of something: Trying to gain the psychological benefit of “stepping up” without the legal liability that many might see as going along with that. And, it must be said, there’s a real risk that a jury will see it as such. At the same time, there is an important distinction to be made. Legal liability is a narrow concept, and that is intentional. The broader notion of “responsibility” is not the same thing in all situations. For that reason, civil defendants might want to devote some thought and craft some language focusing on what that distinction could mean in the context of a specific case. In the book Nuclear Verdicts: Defending Justice for All, attorney Robert Tyson emphasizes the need to address a jury’s motivation to “send a message” through a large damages award, and that this message often requires credibly presenting oneself as the party that embraces relevant responsibility rather than ducking it. But the finer point is that this means asking jurors to distinguish between the broad responsibility in using what power you have to avoid or address bad outcomes and the narrower legal liability that is tied to the instructions. In this article, my goal is to play out that dissection in a few contexts and to share some ways to make it clearer for jurors. If you’ve watched a few mock trials, you may know that it is very common for mock jurors to miss the nuance, with a “They admitted it!” reaction potentially being tied to any acknowledgment from the defense side, or even to a conditional argument on an alternate damages amount. The message needs to be delivered not just once, but repeatedly as part of a trial theme. That is why it helps for defendants to have a comprehensive and tested message. The success of any message will depend on the specifics of your case and venue, but in the remaining sections of this post, I’ll suggest four types of message, or levers to draw a distinction—all efforts to say we’re responsible “for this, but not that.” The Control Lever (Responsibility for What You Can Control, Not for What You Can’t) The first common way to distinguish between a responsibility (that you are accepting) and a liability (that you are denying) is to focus on what is within your power, and to appeal to the commonsense notion that you embrace the ability to control what is in your sphere, but that the factors that the plaintiff is trying to turn into liability are outside that sphere: When Smithco designs a product like this, we take responsibility for a vast array of factors: testing, design, manufacture, quality control, and more. We know we will be held responsible for all of those factors, and we want that responsibility. But there is one thing we cannot fully control, and that is the choices that an individual makes when using this product improperly. The Time Lever (Responsibility for What We Know Now, Not for What We Didn’t Know Then) A second lever of distinction is to focus on time. While disabusing jurors of hindsight can be notoriously difficult to do, in some cases the effort to separate past from present knowledge is essential to the liability defense. To reinforce the difference, a defendant can embrace what is known now through hindsight, while separating that from the constructive knowledge at the time that would have created legal liability: At this point, we know what illness Ms. Johnson had, and we know that due to the benefit of one thing: hindsight. And, of course, we will use that knowledge when it comes to her continuing care. We will even use that knowledge when it comes to the care of other patients, and when it comes to looking at our practices going forward. But one thing we can’t use that present knowledge for is a decision in the past. Limited to what was known then, we can responsibly only order the tests that are indicated by the symptoms at the time, and not the tests that we only now know might have helped. The Legal Lever (Responsibility for a Practical Error, Not for Legal Liability) A third lever appeals to the notion that not every mistake, and not every wish to have done something differently translates into liability since the legal standard for civil liability is purposefully narrow. Defendants can agree with what might be the inescapable conclusion that “we could have done better” without necessarily conceding specific liability: When we entered a contract with Bigco, we weren’t blind to the risks. We knew that we had to ask for strict guarantees, and we did. In hindsight, we were still too trusting, and some of those who negotiated the deal for us still let personal relationships overpower legal considerations. We could have done a better job of protecting ourselves. We acknowledge that, and you can bet the company will take greater care in the future. But none of that changes the fact that Bigco was the party who breached first—by the time we left the deal, there was no contract left to breach. The Policy Lever (Responsibility for Policies, Not Necessarily for Personnel) While in some cases the concept of agency locks in the legal conclusion that the responsibilities of personnel are absorbed by the company, in other cases that won’t be true. Where there are grounds to distinguish, companies may need to emphasize that the systems the company set up do work, but unfortunately individual irresponsibility caused those systems to not be followed in this case: This school is committed to creating a safe environment for kids. That means comprehensive background checks for all adults coming in contact with kids. That means clear policies forbidding inappropriate contact and referring issues to law enforcement. That means clear requirements for adults to be mandated reporters whenever they see something legitimately suspicious. The school takes responsibility for all of that, and it is a big responsibility. We don’t shy away from that responsibility, we embrace it. What the school can’t take responsibility for, though, is when a person chooses to commit a crime, and when that person unfortunately succeeds in keeping their crime a secret. These are a few of the most essential ways of separating responsibility from liability, but there are surely others. There may even be ways of drawing that distinction that are completely unique to your case. Based on the traditions and training of many defense attorneys, the reaction to some of these messages might be, “Why admit anything?” That tack might appeal to a logical motivation to make the target on your back as small as possible. But increasingly in an age of nuclear verdicts, an “admit nothing” approach does not appeal to jurors’ psychological motivation to reward good behavior and to punish bad behavior. To avoid being on the latter end of that stick, defendants should devote serious thought to what levels of responsibility they can safely adopt in the context of a specific case. n Ken Broda-Bahm, Ph.D. is a Senior Litigation Consultant at Holland & Hart in charge of assisting plaintiffs and defendants seeking to maximize their message effectiveness in jury trial, bench trial, arbitration, and mediation settings by providing strategic advice, messaging, opening statement assistance, witness preparation, demonstrative exhibit advice, jury selection, mock trial and focus group research. Learn more at www.hollandhart.com.

A recent survey conducted by Chief Sales Officer Insights—a survey about achieving revenue goals—determined that a vast majority of companies are still flying by the seat of their pants when it comes to formalizing, reviewing, and measuring their sales processes. The survey did not even cover the law firm vertical, where the phrase “sales process” is virtually unheard of. Is that a problem? Maybe. “If you can’t describe what you are doing as a process,” said quality and efficiency guru W. Edwards Deming, “you don’t know what you’re doing.” I would never contend that law firms don’t know what they are doing. They are populated with brilliant individuals who solve unimaginably complex client issues. And they generate large, profitable revenue streams. Like all industry verticals, they have their flaws, but for most of them, not having a formal process does not mean that they don’t know how to sell. More likely, they have not yet seen the benefit of analyzing what works, documenting it, and replicating it. Should they do so? If they’d like to outperform peers, yes. The survey mentioned above concluded that a business with a formal sales process that is defined in writing and regularly reviewed delivers substantially better performance than those with ad hoc or informal sales processes. For law firms, crafting a sales process need not be complex. We have written frequently on the topic of how to do so. Basically, it involves capturing and analyzing case studies of how today’s key clients progressed from unawareness of the firm to awareness, interest, consideration, engagement, expansion, and finally—the most-desired stage of the process—to strategic, institutional clients. Implementing and sustaining a sales process is more challenging than arriving at one in the first place. We’ll cover that topic in a future INSIGHTS article. Meantime, here are seven good reasons for a law firm to start building one now. A sales process: Helps a firm focus. A good sales process defines with great specificity the client base of the future and the steps required to acquire that client base. Elevates brand. A firm’s sales approach can be a valuable part of its reputation in the marketplace. Think “The McKinsey Way.” Facilitates management’s ability to track and measure performance. This includes monitoring key performance indicators (KPIs), analyzing conversion rates, accurately predicting revenue, and identifying areas for improvement. Promotes efficiency. A well-constructed sales process defines the role of each function or participant, ensuring that the steps are taken in the right sequence, completely, and at the right time. Reduces stress on the part of professionals for whom sales is not the first choice of tasks. A sales process is little more than a business ‘to-do’ list, which only remotely resembles the “salesly stuff” that so many disdain. Facilitates integration of marketing and sales (not to mention other departments). A sales process begins with professionals who help make prospective clients aware of the firm and its offerings and extends through client service professionals delivering a deeply satisfying experience. Every function in a client development department—indeed in the whole firm—plays a vital role in the successful execution of the whole sales process. Runs on its own. Lawyers and staff professionals alike often are amazed when a sales process delivers a new client or additional high-value work for an existing client…almost by magic. Sometimes, just taking the steps results in a client getting to “yes” with virtually no selling in the sense that many people construe it.

As we all gaze into our crystal balls and try to predict what will happen in 2024 with any degree of certainty, our views are pretty hazy. Think back to this time last year, which was filled with much hand wringing, nervousness, and qualifiers/fine print in our presented budgets. Now, fast forward 12 months to a time where much economic uncertainty remains (per the NASDAQ.com headline “2024 Recession Odds: America’s CEOs Forecast 84% While Fed Officials Insist 0%”) AND the industry- and life-changing topic of AI was foisted upon us all AND we’re going into a major election year. Additionally—and tragically—there is now a second war. When thinking about the future of the legal industry, which impacts and is impacted by these broader contexts, I find it helpful to focus on things we can control. As planners, we need to ‘move the needle’ as much as we can within any planning period and with finite resources of time and money. As such, balance is required, and we need to always focus on some combination of longer- and shorter-term issues to create the optimal strategic advancement of the law firm. Each partnership’s list of priorities is, of course, unique. At a higher level, below are a few needle-moving, shorter-term, and recurring challenges/opportunities for your planning consideration. Admissions into the Equity Partnership are, perhaps, the most important decisions that this group makes every year. This ownership group should be viewed as an elite team, with membership being a) difficult to achieve, b) guaranteed for no one, and c) a really big deal. This is not just another promotion because a Partner’s ability to directly participate in the profits of the firm needs to be earned and maintained every year. Worst case scenario— Any partnership is also known for its weakest link/member. The introduction of “this is my Partner” conveys trust and confidence in this person to any third party. Those sentiments need to be truthful. You need to understand—and be able to describe—your firm’s culture at a deep and (hopefully) emotional level that really connects with your talent…and (hopefully) your clients too. All law firms are groups of potential free agents who choose to re-assemble each day. Why does this happen and what is so special about your firm’s culture? It must be so much more than being ‘collaborative’ or ‘entrepreneurial.’ Those descriptors are nearly universally applied, which means they are not differentiating at all. What is your glue? Is it a set of core values that defines your firm? Generally accepted behavioral norms? You have a unique story. Find the words. Worst case scenario— Another way of evaluating your culture is to assess it through a negative lens. If your culture is defined by the worst behavior that you tolerate, how are you doing now? Overall work ethic and pace within many firms is slipping materially. In our post-pandemic world wherein a) remote working is viable and b) most firms had some of their best financial years ever, even more lawyers across all generations were reminded that one can make a very fine living as a lawyer for a more than reasonable work commitment and pace. Furthermore, in some firms that rely heavily on production/hours-based bonus programs, an increasing number of younger lawyers self-selected a pace that a) works nicely for that lawyer, b) frustrates the Boomers to no end, and c) sends a message to everyone that ‘pace’ is unilaterally set by the individual lawyers. While that sounds great, there is one important group that is directly and negatively impacted by all of these—the clients. Law firms operate in a very simple supply/demand (of time) business and if firms don’t have control of the supply side of the equation—and clients are impacted…they will take their demand elsewhere. Re-education about what a reasonable pace represents is required in many firms. For example, if one agrees that a 50-hour work week is a reasonable pace, then that same person needs to know that 50 hours per week with four weeks off is a 2,400-hour total annual commitment to the firm (billable plus investment time). The pace doesn’t stop at some much lower billable hours achievement, which is the current thinking of many lawyers. Where is the rest of that time going? Vaporizing because the Partners don’t see any value in non-billable time? Within many firms, it’s time for an agreement/reset on what a reasonable overall pace is. Worst case scenario— A young lawyer who chooses to forego working toward any bonus and, basically, stops once a billable hour requirement for a base salary is achieved will attract others toward that model and attitude. All leaders (firm-wide, practice level, office level, etc.) must understand that if they don’t start developing their successor on Day 1 of their appointment/election, it won’t happen on time. Job #1 of any leader is to identify and develop candidates to take over some day, yet far too many leaders shy away from this task because it may expose personal weaknesses or create someone who is actually better suited for the position. If optimization and/or self-improvement are goals, then these outcomes should be welcome. Unfortunately, reputation-guarding and self-preservation usually win out. Furthermore, most don’t recognize that it takes years to develop successors…not months. Far too many wait until the last year in their position and then simply identify the best available or most popular candidate, rather than handing the position to a well-trained successor. This lack of process and accountability makes little sense. Worst case scenario— A key competitor figures this out, formalizes succession planning, and steadily takes market share due to stronger leadership. Financial success is not about revenue, it’s about profits. People in other industries laugh at our maniacal focus on top-line revenue, even though our owners are paid directly from the profit pool at the bottom of the P&L statement. Furthermore, far (far) too many Partner compensation systems are still driven largely by the book of business…with little regard to the profits generated from the book. Any two Partners who generate the same revenue and are paid the same amount are not generating the same amount of profits. If the delta between the two profit contributions is small, then a similar compensation amount is justified. If this delta is material, then there is a remuneration challenge that, admittedly, can take years to fix. Profitability reporting can wreck a nice firm’s culture if mishandled and developed poorly, so let’s handle it properly and develop it well. We all know where the dangers lurk. Worst case scenario— From the example above, the Partner who generates more profits is lured away by a competitor who understands all of this and is willing to pay more for the book. Keep pushing on billing rates. Yes, we’ve been talking about the death of the billable hour since before I started in this industry (1988!). While I think AI, combined with new perspectives on ‘value’ from non-Boomers steadily taking over as the economic buyers of legal services, will likely push us to this place at some point, we aren’t there yet. Therefore, staying at an appropriate market-driven level on rates remains the most important driver of profitability under our immediate control. It also pushes the value of all services to an appropriately high level if (when?) fixed fees really take broad-based root. Worst case scenario— The psychology of pricing is alive and well among clients of law firms, who regularly tell us that billing rates convey to them the lawyers’ perceptions of the true value of their own time. Keeping rates artificially low (“for the benefit of our long-standing clients”) may actually drive some of them into the open arms of competitors. Be aggressive in your planning and budgeting. Lawyers are trained to never fail at anything. Businesspeople know that it is far better to come up 10% short against aggressive goals than to sail past modest goals. When dealing with the business of law, be businesspeople…not lawyers. Worst case scenario— A competitor figures this out, generates more profits, and then uses those profits to lure your talent away. Of course, there are other examples. Balancing the weight of broader problems and challenges with the shorter-term, basic planning needs of the firm is quite difficult in these odd and uncertain times. The good news is that there is an appropriate list of planning priorities for each firm. Make your educated guesses on the broader economic context and set your priorities—including AI—against that forecast, however murky it may be. Best wishes for a prosperous, safe, and peaceful 2024.

In the world of litigation, where the battle for justice is fought through words and evidence, the importance of effective communication cannot be overstated. Trial attorneys play a crucial role in persuading judges and juries to see the facts from their perspective. One powerful tool that has gained significant prominence in recent years is storyboard visuals. These visual aids provide attorneys with the means to convey complex information, engage their audience, and build a compelling narrative. In this article, we will explore what storyboard visuals are and why they are essential for trial attorneys seeking success in the courtroom. First of All, “What Are Storyboard Visuals?” Storyboard visuals are a method of organizing and presenting information in a visual format, typically a sequence of images or slides, which convey a narrative. They are often used in trial arguments to help attorneys present their case in a clear and compelling manner. Storyboard visuals can include photographs, diagrams, charts, timelines, and even animations, all designed to support and enhance the attorney’s spoken words. Storyboards should use as few words as possible but, instead, rely on pictures to tell the story. What Benefits Does the Use of Storyboard Visuals Offer in Trial Arguments? Clarity and Comprehension: The courtroom is a complex environment, and legal cases often involve intricate details and technical information. Storyboard visuals can simplify this complexity, making it more accessible to judges and jurors who may not have a legal or technical background. When used effectively, these visuals can clarify complex concepts, making them easier to understand and remember. Engagement: In today’s multimedia world, people are accustomed to processing information through a combination of visual and auditory cues. Storyboard visuals engage the audience, capture their attention, and maintain their interest. They break up the monotony of lengthy verbal arguments and ensure that the audience remains attentive throughout the trial. Persuasion: Visuals have a powerful impact on human cognition and emotion. When an attorney combines compelling visuals with a well-crafted narrative, the case becomes more persuasive. A persuasive storyboard visual can evoke empathy, clarify causation, and influence jurors’ emotions and decisions. Memory Retention: Studies have shown that people tend to remember information better when it is presented visually. Storyboard visuals create memorable associations between the information and the visual elements presented, helping jurors recall the details of a case more accurately during deliberation. Organization: Storyboards force attorneys to structure their arguments and evidence coherently. By planning the sequence of visual aids, attorneys ensure that their arguments follow a logical and persuasive flow. This organization can make a substantial difference in how effectively a case is presented. Time Efficiency: Efficiency is paramount in the courtroom, and trial attorneys often have limited time to present their case. Storyboard visuals can save time by condensing complex information into a concise format. This allows attorneys to focus on key arguments and evidence, rather than drowning the jury in paperwork. Rebuttal and Cross-Examination: Storyboard visuals are equally valuable during cross-examination and rebuttal. Attorneys can use these visuals to challenge opposing witnesses or arguments, dismantling the opposition’s case systematically and convincingly. The Research and A Case Study Empathy is a potent human emotion, one that can drive individuals to action, especially in legal cases. The connection between empathy and the motivation to help others has been extensively studied (Batson et al., 2005; Oceja et al., 2014; Van Lange, 2008). Research has shown that when people feel empathy for someone, they are more inclined to offer assistance. Furthermore, studies have revealed that individuals are more likely to help those who share similar qualities or experiences (Hauser, Preston, & Stansfield, 2014). Limited research has explored the biological basis of emotions and their connection to visual stimuli (Ren et al., 2013). While past research has categorized emotions into discrete types, the link between visuals and emotional responses remains relatively unexplored (Ren et al., 2013). Visual stimuli have the potential to evoke empathy and motivate individuals, and this connection may have significant implications in legal cases. This article delves into the impact of storyboard visuals on empathy and value in legal cases, specifically in the context of medical malpractice trials. The central hypothesis is that storyboard visuals can elicit empathy among jurors, leading to a greater understanding of the damages suffered by the injured party and subsequently influencing the monetary award they receive. The Challenge of Creating Emotional Connections in Courtrooms In the structured setting of a courtroom, establishing an emotional connection between jurors and the injured party can be a formidable challenge. Surprisingly, very little research has investigated the use of visuals in legal decision-making processes (Park & Feigenson, 2013). To address this gap, a quantitative experimental study was conducted to determine the effect of storyboard visuals on emotional connection and monetary value in medical malpractice cases. Research Questions Three main research questions guided this study: Is there a significant difference in the level of emotional connection between study groups (using storyboard visuals vs. not using storyboard visuals)? Is there a significant difference in the determination of the case’s value between study groups? Is there a significant correlation between a juror’s emotional response to an injured client’s case and the monetary damages awarded? Methodology The study was grounded in the Appraisal theory, which suggests that emotional processes result from the evaluation of a situation, including an individual’s ability to cope with it (Blanchette & Caparos, 2013). Questionnaires were used in both control and experimental settings to measure the impact of storyboard visuals on emotional connection with the injured party’s case and monetary value. Participants A total of 108 participants, potential jurors in medical malpractice cases, were recruited online. The control and experimental groups each consisted of 54 participants, equally divided between male and female jurors. Participants’ ages ranged from 21 to 68 years, and demographic analysis confirmed that the two groups were demographically equivalent. Results The analysis of the data revealed significant findings: Emotional Connection: There was a statistically significant difference in the level of emotional connection between the control group (no storyboard visual) and the experimental group (with a storyboard visual). The experimental group demonstrated a higher emotional connection with the injured party. Monetary Value: The experimental group awarded higher monetary damages to the injured party compared to the control group. This difference was statistically significant. Correlation: A strong positive correlation was observed between the emotional response of jurors to the injured client’s case and the monetary damages they awarded. Implications The findings of this study have several implications for the legal field: Enhancing Emotional Connection: Medical malpractice attorneys can use storyboard visuals to establish emotional connections between jurors and injured parties. These visuals can evoke empathy and increase jurors’ motivation to help the injured party. Support for Appraisal Theory: The study supports the Appraisal theory by indicating that empathy is formed after interpreting another person’s situation, as measured through the Empathy Measure Questionnaire. Practical Use of Visuals: While visuals may not provide a direct method for calculating damage amounts, they can create emotional connections that motivate jurors to help the injured party. Visuals offer an effective means of communication with jurors. Future Practices: This study suggests that attorneys should consider incorporating visual storyboards when presenting cases to create emotional bonds between jurors and injured parties. The use of visuals can lead to increased monetary damages awarded to the injured party. Conclusion Storyboard visuals have a powerful impact on empathy and monetary value in legal cases, which this article demonstrates specifically within the context of medical malpractice trials. The study’s findings offer valuable insights for attorneys and legal professionals seeking to enhance juror understanding, empathy, and ultimately, the monetary awards granted to injured parties. As the legal landscape evolves, the incorporation of visuals into legal strategies should be increasingly essential in securing justice for those in need. In the high-stakes arena of litigation, the use of storyboard visuals is no longer a luxury but a necessity. These visual aids offer attorneys a competitive advantage in conveying their arguments persuasively, engaging the audience, and ensuring that the judge and jury fully understand the facts of the case. By leveraging the power of visual storytelling, trial attorneys can not only make their arguments more accessible but also more compelling, improving their chances of securing a favorable outcome for their clients. As technology and communication methods continue to evolve, the strategic use of storyboard visuals will become an increasingly vital skill for the modern trial attorney.

If you only do one thing to improve your attorney bio: fix the first sentence. Why? Because yours is long and boring. What makes an effective attorney bio? Someone reads it. Even better: someone reads it and decides to call you. But it won’t work if they give up before the first comma. Tip 1: Fix the First Sentence In most attorney bios, the first sentence should describe the problems you solve for clients in succinct, plain language. Objection: I can’t reduce my practice to one sentence. Overruled. If you are stuck, or if you have three or more sentences and can’t narrow it down, use my favorite writing tip: Tell it to a friend. Call a friend and tell them what you do. Better yet, tell someone in person. When talking to or looking at someone, we get cues if we are boring them. We get to the point and speak naturally. This is the most important step. You can fix your first sentence, stop there, and trust that you have improved your bio. But for a deeper dive, keep reading. Tip 2: Know Your Audience This writing maxim has become cliché because it is essential: keep your audience in mind for everything you write. Your tone, word choice, and structure will be different for your bio than it would for a client update or for a legal brief. When revising your bio, think about: Who do you want to read your bio? Prospects, clients, opposing counsel, potential colleagues? What question or problem or opportunity has led them to your website? Did someone refer them? If not, how did they find you? How can you potentially help them? Why should they trust you? Objection: My audience is not a monolith. Sustained. It can be difficult to write for a faceless group of readers. Try picturing an actual person when writing—your best client, or your dream client—and write just for them. Tip 3: Include Essential Elements After thinking about who your audience is and how you can help them, keep both in mind while making sure to include the essential elements. Your practice. Your crucial first sentence describes your practice in short and snappy prose. Take another sentence or two to elaborate if needed, but keep it short: less is more. Relevant experience. Relevant is the most important word here. Describe one or two past experiences that are relevant to your current practice, briefly. Representative matters. What matters have been most significant to you in your practice and why? Describe one or two, briefly. Education. List your education and credentials. You don’t need to describe them in sentence form. Something personal. Show readers that you’re human by including something about you: a hobby, a favorite book, a place you like to travel, the names of your children or pets. Objection: I must remain professional at all times. Overruled. You can remain professional while letting people get to know you. Tip 4: Revise All good writing is rewriting. Review and edit your new bio, then share it with someone from the marketing team or a colleague. Cut out anything extraneous. Be ruthless. Objection: I don’t have time to think about my bio. Overruled. Attorney bios are the most viewed pages on law firm websites. Don’t waste the opportunity! Make it easy for people to get to know you. Tip 5: Use ChatGPT to Brainstorm Objection: ChatGPT cannot produce a thoughtful attorney bio. Sustained. As of now, ChatGPT and other generative A.I. platforms cannot write a bio you’d want to use. However, they can give you a jump-start. You could copy and paste your resume into ChatGPT and ask it to write an attorney bio. I tried this. Although the prose was terrible (sounded like a high schooler tossing around legalese), it gave me something to edit. Sometimes that’s all we need to get moving. You could also ask A.I. a question. ed, “What elements should every litigator include in their bio?” and “What do people want to know before hiring an estate planning lawyer?” In response to each question, A.I. generated a list. They weren’t complete, but they gave me some food for thought and helped put me in the shoes of someone looking for legal services, aka the audience. Conclusion I have yet to meet the person who enjoys updating their bio, but hopefully, these tools will guide you through a few simple steps that lead to great results. Remember, even just fixing the first sentence is a huge leap forward.

There are countless articles about why the practice of law is stressful and why lawyers stop practicing law. The top reasons lawyers burn out include stress and work-life balance. The root causes of stress and work-life balance issues are things that can be managed, but that often get ignored or overlooked by members of a high-stakes profession where most participants are high-performing perfectionists focused on winning and the satisfaction of other people, including clients, judges, and even peers. This article is a summary of potential solutions. This list is not exhaustive and likely contains many strategies that lawyers are intellectually aware of but lack the resources or will to engage with. As part of this summary, I will share, anecdotally, how my law firm has implemented some of these solutions in the partly altruistic hope that it can help other lawyers achieve the happiness and joy in the practice of law that many of my law partners and associate attorneys have found at Dunlap, Bennett & Ludwig. Here are several strategies that lawyers should consider using to help themselves alleviate some of the issues related to burnout and stress: 1. Establish boundaries. You hear the work-life balance bandied about by almost every law firm’s recruiting team, but what policies support this? Merely saying a thing does not make it so. While it is crucial for individual lawyers to set limits for working hours and to avoid obscuring the lines between work and personal life, law firms need to step up to support this. An excellent way to start this is to create unplugged time daily where you don’t answer the phone, check email, or do anything related to work. Explicitly communicating specific expectations with bosses, clients, and peers is vital but something many lawyers shy away from without a rational basis. Setting an out-of-office (OOO) notice every day from noon to 1 pm might be enough. Establishing boundaries at work is critical in managing stress, maintaining a healthy work-life balance, and preventing burnout. DBL’s internal mentorship program offers an outlet for more junior attorneys to meet with partners outside their regular working group for advice on communicating. We have found that with a policy of unlimited vacation and telecommuting for our attorneys, the boundary conversation is a two-way street, and a combination of clearly communicated expectations and dialogue has created a successful structure for establishing boundaries. Here are some specific strategies you might employ individually: Set Working Hours: Establish a clear start and end time for your workday. There will always be times when lawyers have to work extra hours; however, having set “office hours” will help maintain a boundary between work and personal life. Research by the Journal of Vocational Behavior found people who set boundaries are more likely to experience work-life balance. Communicate: Most lawyers have dealt with nervous clients who want everything done immediately. Discuss your capacity and availability with bosses, clients, and peers. Often a client has set an artificially short turnaround time on a project. If you have too much on your metaphorical work plate, it’s essential to communicate this effectively and learn to “push back.” 2. Take breaks. Something as simple as taking a break, even for five or ten minutes, can make a massive difference in effectiveness. A study in the journal Cognition found that even brief diversions can dramatically improve focus. According to the Journal of Legal Education, deep breathing, meditation, and yoga can reduce stress and anxiety. Simple techniques like deep breathing can be done sitting at your desk in a very short time. The Mayo Clinic provides easy-to-follow directions for simple techniques like autogenic relaxation and progressive muscle relaxation. 3. Prioritize tasks. Not every task needs to be done immediately. Prioritizing important work based on deadlines and focusing on the most crucial tasks one at a time can help manage workload and reduce stress while simultaneously allowing lawyers to create a better end work product. The Eisenhower Decision Matrix is a simple way to do this. Draw a two-by-two box matrix. The X-axis represents relative “importance,” and the Y-axis represents the “urgency” of a task. For more details, see this great article on the Forbes website. DBL offers internal time management training for attorneys and staff alike. Our CEO is a time management expert certified project manager and advocate. 4. Exercise and eat right. Regular physical activity and a healthy diet can do wonders for stress and anxiety, contributing to a general sense of well-being that will combat stress’s physical toll on the body. According to the Mayo Clinic, exercise increases endorphin production. It can provide a distraction from worries, simultaneously improving sleep and boosting self-confidence. Eating right also plays a serious role in managing stress. The body and brain need fuel to function optimally. When you are stressed, your body needs more energy. Skip the chips! DBL instituted a program of making sure all our offices offer healthy snacks (bananas, vegetable chips, etc., and access to mineral water). Complex carbs like fruits, whole grains, and vegetables release serotonin, a hormone that promotes feelings of well-being and relaxation. Healthy Omega-3 fatty acids found in fish and flaxseed can help reduce stress hormone levels and protect against depression, see, e.g., University of Manchester study. Drinking more water can prevent dehydration, which will otherwise cause fatigue and exacerbate stress. 5. Seek professional help. Lawyers often think because they are high-performing brilliant individuals that they don’t need help. However, confidential therapy and counseling can provide strategies for managing stress and help address any deeper issues contributing to burnout. DBL offers an “on-call” psychiatrist who focuses on the confidential counseling of firm lawyers. 6. Make a change. Some work environments and law firms are toxic. It may be time to seek a more collegial environment that suits your lifestyle better. A considerable number of professionals in the law industry have made this change, seeking out firms that not only talk the talk of work-life balance but walk the walk. Whether you are a partner or associate, often changing how the job is structured can help alleviate stress. DBL does not have specific billable minimums for partners, nor does the firm mandate how lawyers work. For associate attorneys, DBL offers two works paths, a lifestyle track and a partner track, with differing billable requirements. The firm measures success not on “face time” but on production. Not every law firm or lawyer can practically employ every technique immediately. Change takes time and willpower. Making any of the changes above, even once a week or once a month, will ultimately contribute to happier and healthier lawyers who do a better job for their clients, leading to a successful and happy way to practice law.