Dan Berexa's Tennessee Law Blog

In Addition to Civil Procedure and Evidence, know the "Brain Rules" for Best Results in Court.

 In the new book, Brain Rules, Dr. John Medina describes what scientists know about how our brains work. Medina, a molecular biologist, offers 12 "Brain Rules" that business leaders, parents and teachers should know. The great website for the book discusses each of the rules in detail and includes entertaining videos which illustrate the rules. 

How does this relate to trial practice? Well, in the end, it is often a brain, or a group of brains, that are not only our audience, but also the ultimate decision maker, whether it be a judge, jury or arbitrator. Knowing a bit about how the brain receives and processes information can help a lawyer be a more effective strategist, communicator and advocate. Garr Reynolds, presentation guru and publisher of the blog Presentation Zen (and the book by the same name) focuses on the principles from Medina's book that apply to presentations. In a recent post, Reynolds includes a number of links to excerpts from the DVD that accompanies Dr. Medina's book. Reynolds also created the neat little slide-show below which focuses on "The Rules" as they relate to presentations. 

If you have trouble with the far right edge of the slideshow being cut-off, click the "view" button under the slide box.

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Dan Berexa
Nashville, Tennessee

Revisit a Classic - Irving Younger's "The Ten Commandments of Cross-Examination"

Professor Irving Younger has been gone for 20 years. He was a legendary lecturer who drew from his experience as a prosecutor, private practitioner and trial judge. Like many of his lectures "The Ten Commandments of Cross-Examination" is timeless. Younger's wit, intensity and use of examples from well known historical trials provides for an entertaining and memorable lecture on destructive cross-examination. If you try cases, and have never heard Younger's Ten Commandments, you've been missing out (and probably making unnecessary mistakes). Even if you did listen to Younger years ago, track down an audio or video of the lecture. It's a great review for the experienced trial lawyer and I guarantee you will enjoy the time spent with an old friend. DVD's of many of Younger's lectures, including The Ten Commandments, are available through NITA. For a quick review of Younger's commandments, try the Ten Minute Mentor. The presentation is part of a series of quick (and free) on line CLE programs sponsored by the Texas Young Lawyers Association and TexasBarCLE. Clicking this link will lead you to a short video (or audio only) presentation by Texas lawyer Robert Witte. While no substitute for the real thing, it is worth a listen next time you sit to prepare your cross-exam. 

Powerpoint Presentations Can Spice Up a Mediation

A good PowerPoint presentation can be an effective tool at trial, in arbitration or in a mediation. The choice of words, images and design elements such as background color can help tip the scales in your clients favor. Click here for an example of a PowerPoint that was created by Blake Boyd for the mediation of a dispute between a condominium association and it's insurer over payments for storm damage. It would be easy to write a case like this off as a boring dispute over an insurance contract. However, the presentation paints the insuror in a negative light and plays to the viewer's sense of justice. Boyd gives some good pointers for putting together effective PowerPoint presentations and has a number of other examples at his blog The Trial Technologist's View. He also includes examples created with Keynote, the Mac presentation software.

Bluff City Brother Bill Haltom's Last Jury Trial

My last post spoke of the death of the trial. This morning I opened the March 2008 Tennessee Bar Journal.  Bluff City trial lawyer, humorist and past president of the Tennessee Bar Association, Bill Haltom presents the "crusty old geezers" view of what will become of the jury trial in this month's installment of his column But Seriously, Folks! To read Bill's column  Click Here .

The Death of the Jury Trial

The consensus among trial lawyers is that fewer and fewer civil cases are going to trial these days. Lawyers that started their careers 3 or 4 decades ago speak of the days when cases were being tried all the time. A comparison of statistics for the Nashville Metro area serves as evidence of the decline in the number of trials. For years Davidson County Circuit Court Clerk Richard Rooker has been publishing a summary of the number of cases that go to trial in the Rooker Report. In 2000, 266 civil cases went to trial. By comparison, in 2007 only a total of 140 cases were tried. The reasons for the decline in trials are many. The introduction of the discovery rules ultimately led to an increase in the cost of taking cases to trial, Moreover, fifteen years ago mediation was relatively rare. Now it is commonplace and there is certainly a push by the courts toward mediation. In fact, some judges are reluctant to set a case for trial unless it has already been mediated. Arbitration is also more commonplace. Conservative jury verdicts are also a disincentive for plaintiffs' lawyers to allow jurors to price their cases. Insurors also see mediation as a means to resolve claims without the uncertainly and expense of a trial. While mediation is a great tool for resolving disputes, the decrease in the number of cases being tried makes it hard for young lawyers to earn their sea legs.

The truth is, nobody decides to become a litigator because they always dreamed of going to mediation!