Finding Hidden Treasure
“All advocacy is, at its core, an exercise in empathy.” ––Samantha Power Standing in another’s shoes implies assuming a point of view different from one’s own. You’re seeing things from another’s frame of reference, from their sense of perspective. The angle of vision, the corridor of approach, the nature and extent of indistinct outline and […]
Producing the Plaintiff
You’re seated next to your client at a large table, opposing counsel on the other side. Testimony that’s accurate, clear, persuasive, and appropriate––that’s at least one of your goals. For the young lawyer, here are some general guidelines: Keep the supply of facts flowing in response to cross-examination questions. Primarily most discovery depositions boil down […]
Connecting the Dots
An opening statement, we are told, is a recitation of the facts, preferably in chronological order, without embellishment, ornamentation, or argument. This probably explains why most opening statements are imprecise, generalized, and not particularly persuasive. Might there be a better way? “Psychological resilience refers to the ability of individuals to successfully respond to major changes, […]
Naïve Realism and Photographic Evidence
Evidence is multipurpose, having both inclusive as well as exclusive components. Photographs. Photographs have at least two purposes. First, to depict the condition of a person, place, instrumentality, or object. That’s their inclusive purpose. But photographs serve another purpose as well––to demonstrate what’s not depicted. That’s their exclusive purpose. What a photograph does not show––this […]
Making Things Clear
Take a piece of fine stemware and examine it for flaws. Hold it up to the light. Look carefully at its shape and texture, its shine and clarity. Someone trained in the art of glassmaking will be able to detect slight imperfections and deformities, some so small and subtle as to be unnoticeable. A craftsman […]
The Analytics of Emotion
Emotion, we are told, has no place in law, lawsuits, or legal analysis. Soft, fuzzy, imprecise––emotion is not only valueless, it’s detrimental, destructive. Just imagine the consequences if emotion were to assume even a small role. There are distinct advantages, we’re assured, to emotionless, analytical thinking: it promotes accuracy; it cuts through the irrelevant, the […]
Reality vs. Appearance of Reality
An attempted yet failed solution to a problem is not harmless. Particularly in the legal, social, or political realms, you have not only the initial problem, but you have a failed solution to the problem which adds complexity, an added variable, to that which previously existed. Now, those grappling with the problem in the future […]
It’s All in the Gaze
What makes a witness trustworthy? Why are some witnesses believed and others not? Standard responses would be: “Someone who has the ability to perceive events accurately.” “Someone who is unbiased.” “Someone who is an authority in their field.” “Someone whose facts and opinions are corroborated by other evidence.” Etc. These are commonly asserted, but there […]
Harnessing Worry’s Insight
We know it’s not a healthy habit, but worry––reflexive, involuntary––implicates both the rational as well as the irrational. A potentially stressful life event looms. Consciously, we react, seeing things as they are; subconsciously, we create, envisioning potential perilous outcomes. Worry hinders accurate decision making, constrains flexibility, compromises effectiveness. A recent article establishes how “worrying is […]
Process and Substance
Contested tort-law cases implicate both process as well as substance. Process. Process encourages fair procedures so that all interested have notice and a right to be heard. Substance. Substance addresses the actual merits of what’s at stake. We navigate this split in all contested proceedings, and there’s some relationship between the two. The Due Process […]
