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Friday, March 28, 2014

Judge McGahey on Dramatic Trial Lawyers

Judge Robert McGahey of Denver, Colorado, is a frequent guest blogger. He is also a NITA faculty member and an adjunct professor at Denver University's Sturm College of Law. Prior to ascending the bench, Judge McGahey was a trial lawyer. And as a movie buff with an encyclopedic knowledge of movies about the law, he knows a thing or two about drama.

Why are trial lawyers so dramatic?
  • We’re all roosters; we think the sun comes up because we crow. If you look at what we do, it takes a fair amount of ego. Our job is to convince six or twelve people that we’re never going to see again that what we are telling them is the truth – and then getting them to act on that truth. That requires a substantial level of self-possession and self-confidence. The danger comes when we forget that this isn’t about us; it’s about our clients. Far too many of us lose sight of that. When we do, we lose that “genuineness” or “authenticity” that others have remarked on. 
  • Because law (especially courtroom stuff) is perceived as dramatic, Hollywood is constantly churning out lawyer shows and lawyer movies. And there is some truth to this. Think of how a criminal case is captioned: “The People of the State of Colorado v. John Doe.” Damn! Everybody against one guy! But I often tell my students that contrary to the perceived wisdom of some law professors, jurors usually have excellent bullshit detectors – that is, they can see insincerity or inauthentic behavior. Even if jurors are fans of TV shows and movies about law, they (more so than many lawyers) recognize that real law takes place in a courtroom, not a studio. Too many lawyers fall into the trap that because jurors watch “Law and Order” or “The Goodwife,” those jurors want us to behave like those TV folks. I’ve talked to enough jurors after trials to know that isn’t true. I remember the words of Richard Greene, a long-deceased Colorado district judge, who, if a juror mentioned that they liked to watch “Perry Mason” or “Judd for the Defense,” would smile and say: “Everyone realizes that no one in this courtroom is in the entertainment business, right?”
  • To try and remind them where to aim, my students are encouraged to remove the words “I” and “me” from their presentations as much as possible, and to substitute “we” and “us.” (For those of us who have raised children, think of those discussions with adolescents where we said “It’s not about you.”) 
  • I also work on what Tom Leggans calls “true voice.” When discussing storytelling in Basic Trial Practice, I first have my students tell a three minute story about themselves, at the end of which they have to ask for something. The story doesn’t have to be true. After each story, the rest of the class votes on whether the story is or isn’t true, which leads to some interesting results (The all-time best was the student who convinced everyone – including me – the she had attended Clown College between undergraduate and law school. Not true.) In the very next class, I have them tell a three minute story about one of the case files we’re using. I encourage them to tell the story in “real” language, as if they were telling the story to a non-lawyer friend in a bar or their Aunt Martha at a family reunion. They are told that this story should not sound like an opening statement or a closing argument, even though they have to ask for something at the end. I’m sure you can predict the results: most of the case file stories are full of “lawyer-ese,” are stilted and formalistic, and sound phony. After that, we work on bringing the enthusiasm and truthy-ness of their first story to the case file story.
  • A last thought: Remember that “advocate” comes from the Latin “to be called to speak for.” That is a heavy responsibility, but if we remember that, our focus will be directed where it should be: speaking for our clients, not showing how cool we are.
Oh, yeah: props to Tom Leggans for the Al Pacino reference! “I’m out of order?!?!”)

--Bob McGahey

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