Say No To Venting

What happens if everyone is against you? Contrary to popular wisdom, allowing a group to vent is not all that productive. Years of research demonstrate that people believe more strongly in the things they say out loud. As a result, “venters” tend to just get more entrenched in their positions. Moreover, as all people tend to be lazy language-users, you risk that some meeting members will just borrow the arguments of the venters without thinking them through.

Also note that an argument over ideas does not always lead to smarter, sharper, better answers as J.S. Mill thought it did. Indeed, a meeting participant’s hostile charge is not any more likely to be smarter than any other contribution to the meeting! Thus, rather than honing a point, an argument is just as likely to derail the discussion. Similarly, leaders/facilitators also are not often at their best in defensive mode and are therefore less likely to present the smartest other side of the story.

Get Personal

“Hello . . . Hello . . . Hello . . . How are you?” One of the best things you can do as facilitator to set a tone of goodwill is to establish a broader personal relationship with meeting participants before the session begins. Make a point to say hello to as many participants as you can, to greet them warmly and ask a specific question: “What are you working on? How was the weekend?” It may sound corny, but you will reap benefits by reminding the others in the room that there is a broader context to your relationship than the issue on the table.

Not only does this engender goodwill, but participants will also be more likely to speak up if they feel that they have a rapport with you as a result of speaking to you one-on-one. Moreover, meeting participants this way can help quell your own stage fright.

Pull The Sting

As in the courtroom, be the first to raise the tough issues. If you expect that the meeting will prompt adversarial thoughts, say so upfront: “The things we are going to talk about today are not easy, and there may be no single position, no single right answer. That said, I am confident that what I have to present is part of the right answer.” Don’t draw a line in the sand when you don’t have to, and you’ll have less to fight about.

Step Aside

When possible, acknowledge other paths as augmenting, not conflicting with yours. If a participant says, “But we should be doing this . . .,” consider a response such as, “The best risk management comes at the same problem several different ways. I’d like to see us doing all these things.”

Take It Outside

If a participant takes on your points or position directly—“This is stupid . . .”—consider responding with something like, “You have deep thoughts on this already, and I do want to hear them. But I want to get through all my material so that everyone else can assess it themselves. Let’s talk on the next break.”

Take A Seat

Many speech teachers have advocated asking hostile audience members to stand to make their point, in a larger group, at least. The theory is that the participants will be unnerved by the attention they call to themselves by standing. I must say that I don’t like this approach for a couple of reasons. Sometimes, it has the reverse effect, getting these people more invested in their hostile position! It’s also an awkward request, and presenters can look as if they are trying out a trick they learned in speech class.

Leading a hostile group is never fun, but it can be successful. Resist the urge to give in to the venting and try a few of these tips to keep participants engaged and open-minded.

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He could see that I was taken aback and said, “You were expecting maybe Crazy Horse?” I was humbled.

Soon enough we were talking seriously about the plight of Native Americans (the white man has nothing to be proud of), the difficulty of keeping teenagers in school (see “nothing to be proud of”), and finally the Hopi religion. I was especially interested in the kachinas since I had bought a couple of the dolls on a previous trip.

My friend explained that the kachinas were an integral part of Hopi beliefs. They are spirits—there are over 200 different ones—who come down from the mountains in the Four Corners area for six months every year. According to “Rainmakers From The Gods,” an online exhibit (© 1997 President and Fellows of Harvard College), the kachinas are “messengers who accept Hopi gifts and prayers for health, fertility, and rain and carry them back to the gods. Their role as rainmakers is particularly important to the Hopi, whose agriculture in the high, arid desert of northeastern Arizona has always been precarious.”

The Hopi and their traditions have been around since long before the birth of Christ. It stands to reason that the rainmakers must be doing something right or the Hopis would have dropped corn production and tried to develop new recipes for cactus.

The need for rainmakers, Native American or not, hasn’t slacked off. Most Native American cultures have some sort of rainmaking tradition, and we’ve all heard about barnstorming pilots dumping dry ice into clouds hoping to stir up a thunderstorm.

Translate The Hopi Spirit Into Boardroom Decisions

What does all this have to do with the legal profession and rainmaking? I’m certainly not suggesting that your chief business person don a kachina outfit and burst into the local country club. That tends to scare the diners and you wouldn’t want one of them choking on a crumpet. Besides, it might have a tiny tendency to reflect poorly on the firm. Also, rain dances, while certainly entertaining, are distracting in front of your building or outside an office. While I’m not personally aware of such activities, I’m fairly sure reactions from observers wouldn’t be positive.

So what’s the point other than to give you a hint of my interest in Native American culture? I have a great deal of respect for the culture of the Hopis and other tribes. (In Hopi families, by the way, the women own all the land and are the dominant members of the family. So there.) One of the reasons I respect them is their firm commitment to tradition and their patience and resolve in adhering to it.

Those of you who are charged with dragging new clients into the teepee might keep in mind that new clients are looking beyond the networking, sales pitches and snazzy brochures. They want to see who you really are, to see if you can keep a promise, and if they can trust you. They want to know about your traditions and hear your stories. While building a campfire and passing a peace pipe may be going over the edge, being at peace with yourself and transferring that to a new client isn’t.

“”Wisdom comes only when you stop looking for it and start living the life the Creator intended for you.” – Hopi Indian

Now you can go dump some dry ice on the conference room table.

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Recently, I was asked to speak to a legal gathering about eliminating bias in the profession. I was cautioned that the 300 lawyers attending the program did not consider themselves to be biased. In other words, I should speak as if addressing other lawyers’ problems.

Hearing those words I was reminded of a one frame cartoon in The New Yorker magazine. Picture this: an elephant stretched out on a therapist’s couch is saying, “It was a nightmare! There I was in the middle of the room and no one is talking about me.” So, how do we talk about bias?

Let’s start from the beginning. Our word “bias” comes from the Middle French word “biais” meaning “to lean.” From this, we can conclude that bias is a leaning to one particular point of view or ideology. I believe that bias is not in and of itself an evil thing. Our biases inform us about our leanings in all the areas we care about—politics, society, religion, economics, and so on.

Understand The Difference Between Bias And Prejudice

However, prejudice is different. The word itself means to “pre-judge”—to make assumptions and assessments before we have all the facts. Many of our prejudices are formed early in life. I remember hearing my old world Polish grandmother warn me about the “choddneys”—a slang term she used for African Americans. I’m sure that if you look back in your own life, you’ll recall various prejudices that might have been expressed about people from different faiths, cultures, or walks of life. Over time, we learn to see those people as the “Other.”

Here’s a few of the prejudices many of us would recognize in our legal profession: Civil law is better than criminal. Large firms are better than mid-size. Mid-size firms are better than small shops. And everybody is better than a sole practitioner. Men are better than women. But single women are better than married women. And certainly married women are better than mothers. Whites are better than anyone of color. Transactional attorneys are better than litigators. And everybody is better than a public defender. Full-time law students are better than night students. Law Review is better than Moot Court. Attorneys are better than judges. Judges are better than mediators. And everybody is better than jurors.

Prejudice Can Prove Very Destructive

Let me tell you a story. I went to Holy Trinity Grammar School. When a holiday drew near, the children in the younger grades colored a picture celebrating the holiday—a Pilgrim with a turkey in honor of Thanksgiving, for example. For St. Patrick’s Day, everyone in my third grade class got a sheet of paper with the outline of a shamrock and the words Erin Go Braugh in an arch above it. It was time to color! My classmates hunted for various shades of green crayons in their Crayola boxes. I’d been experimenting with colors and discovered that if you colored first with the yellow crayon and then covered it with pink, you would get a color that was not in the box. This was the color I used for my shamrock. When the teacher picked up our papers she put mine on the top of the stack: I thought that meant that mine was special. Then she walked to the front of the room and showed everyone my picture. I held my breath. “Diane Wyzga does not seem to know that shamrocks are green—not this color,” she said. “Diane Wyzga cannot follow rules. Or maybe she’s just stupid.” (Something tells me this was the moment I began a lifetime of breaking rules; but that’s another story.)

When I think back on this story now, I realize that the teacher was right to have certain biases: she wanted her class to behave, to color the picture rather than the desk, to sit quietly rather than running around the room. However, when she singled me out for not coloring my shamrock green, her bias became destructive in terms of its impact on me.

Stories Help Us Become More Tolerant

Stories involve us in the life of the Other. By engaging our natural abilities to hear and tell stories, we begin to understand the Other. We begin to learn where we fit in another’s story, and where we might find some commonality. Stories are about relationships. Inclusive, they illustrate that there is more uniting us than dividing us. Stories evoke compassion for those of us who are different. Different stories can be generated from the same set of facts. If we learn to communicate our positions through our stories and life experiences, we just may see someone else’s point of view. Imagine this: with storytelling and regular potluck dinners, we could get to know our neighbors.

I realize that it’s unlikely that we can eliminate bias entirely. Yet once only free men could vote; women could not get a bank loan without having a cosignatory, or sit on a jury; blacks and whites couldn’t intermarry or drink from the same water fountain; gays couldn’t serve in the military. But, as Bob Dylan sang, “The times they are a changin.”

To shed more of our destructive biases—Why can’t a Muslim kid grow up to be President one day? The best we can do is become aware of our own leanings so we can better accommodate differences, encourage human decency, and create the freedom that will allow each of us to become who we truly are. These efforts must take place both in formal and informal settings—in courtrooms, classrooms, the workplace, and on the playground—all the places where we learn to be tolerant.

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Have you ever heard the expression, “When the dogs are chasing you, whistle?” The goal of a focus group is to gather feedback about the issues from research participants representative of a typical jury in the jurisdiction where the case will be tried so that you can learn how jury members typical of this trial venue would perceive the case, and how those perceptions might drive the findings of liability and damages. As such, focus group outcomes are not intended as a predictive measure but rather as a source of information for understanding juror perceptions, which then allow you to strengthen your case presentation. This is the forum in which you want to lose.

Present Your Case To A Focus Group And Listen

Author Anais Nin reminds us that, “We see things not as they are, but as we are.” Similarly, focus groups help us learn about our case and its deficiencies in ways we would otherwise miss because we are so vested and immersed in it. When we are overly emotionally involved, we are absolutely certain we are on the right track through the forest.

To be sure the path is right, use focus groups—early and often. You can use them first to test whether the causes of action are actually viable in the real world, and to gather some leads for discovery. As the case progresses, use the groups to further your discovery, test your causes of action, and pick apart your evidence and trial story. As you move toward alternative dispute resolution or the trial date, focus groups can test the key elements of your case, including your witnesses. This gives you a huge amount of information about how the trial story will play to a jury.

I don’t advise you to lead or moderate the focus group for your own case. Just as surgeons are dissuaded from operating on relatives, attorneys are too close to their own cases and lack the requisite objectivity and distance to participate in the focus group process. If the case is not large enough to justify the added expense of hiring an experienced trial consultant, work with one who will help organize and structure the focus group. This will free you to watch and listen; you can then analyze the research later on with the help of that experienced consultant.

Pollster Frank Lutz said, “It’s not what we say; it’s what they hear.” As you listen to the participants, your key task is to learn what they hear, which is filtered through their worldview, personal experiences, biases, expectations, and the images they are processing. Recall that we are reptilian brains first: only later do we craft intellectual reasons to support what we feel.

When you listen to the research participants, pay attention to the five critical elements of communication: facts (what is said), emotion (how it’s said), intention (why something is said, whether to persuade, clarify, emphasize, defend), sensation (how something feels to the participant) and association (how things relate in the participant’s world view).

Sort The Information Into Key Elements

The research participants will tell a variety of individual stories based on their understanding of the information they heard. Without fail, the stories will have much in common and shape themselves along several universal stories lines. Typically, the stories will be built upon a triad of integrated parts: content, context and a personal or social value or set of values that ties the content and context together. Listen for the ways in which they construct the stories they are telling, and how those constructs inform a verdict decision. Pay particular attention when participants use phrases like: “This is about….” “All that happened here is….” “I’ve seen/heard this before. It’s….” These phrases indicate that they are sorting out your story to find parallels for how things work or should work in their experience.

If they can’t find an explanation, they will create their own. Listen for phrases like, “What I want to know is….” “How come…?” These comments, no matter how off base they appear, reveal holes in your story, giving you an opportunity to clarify and emphasize the trial story. If you don’t address these concerns, you run the risk that the jurors will fill in the gaps for themselves and come up with a different story.

Often, the research participants tell us the hard facts, raw data, expert testimony or records information they need to settle issues they have with the story they heard. A piece of evidence you may have considered a slam-dunk winner may be so fraught with potential risk that it proves more harmful than helpful. Pay attention to what participants find persuasive or compelling as well as what they want to see or hear—and the reasons to see or hear that thing or person. Then, decide either to provide the evidence or clarify the reason it will not be produced.

Finally, identify out the facts, perceptions, legal jargon, and unsupported conclusions that could lose your case (or a juror) if they play a significant part in the jurors’ stories in deliberation.

Apply The Elements To Trial Story Strategy

Jay O’Callahan, one of my oral storytelling mentors, had a mantra: “Choose, choose, choose.” If you have three images that tell a piece of the story, choose one image. If you have three words to describe something, choose one. Thanks to his training, I can teach lawyers to tell their case story in fifteen seconds. It’s all a matter of learning to choose the information relevant to the decision you want jurors to make and getting rid of the rest.

To choose, ask yourself, for each piece of information, evidence, and witness testimony, “Do I need it or do I want it? What price for understanding am I willing to pay to produce it? What’s the upside of having it? And what’s the downside? What will it gain me to produce this evidence or to answer this question? And what will it lose me?”

Finally, block out your legal story into three parts or acts. Act I doesn’t necessarily begin with the first chronological date of the events of the case. Instead, consciously and deliberately begin the story in a particular place based on what you learned from your focus group participants. During Act II, the proverbial plot thickens: it’s the heart of the story when you relate who did what to whom under what circumstances or because of what motives and toward what ends or consequences. Legal stories always have a special third act because this is when you ask the jury to restore balance to the life of the party you represent.

I guarantee you that when you make the time to focus your cases, you will learn something invaluable that law school did not teach you. The story we tell is not the one the decision-maker hears. However, focus groups are a tool we can use to hear what’s being said about our story so that we can change our message and improve our chance to prevail.

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Yes, yes, you know all that, I am sure. And yet you still find yourself occasionally pulled into conflict that, well, doesn’t much matter, right? More than occasionally? Even when you know better? Here are some of the most common reasons you fight about silly things at work:

Five Reasons You Get Riled And Strategies To Stay Calm

You can’t control your temper. Anger is a natural response to threat, and useful to rev up the energy necessary for a counter-attack. But many times, a counter-attack just isn’t called for. How do you control your temper as you decide whether a fight is worth it? The best answer involves a discussion of anger management, which is outside the scope of this article. But consider this one strategy: never respond in the moment. Do something to break up the anger-creating event and your response. Receive an arrogant voice mail? Wait until after lunch to return the call. Co-worker drop a bomb in a meeting? Revisit it later in the day. Anger does dissipate with time, and by then you’ll be more likely to calmly decide whether the issue is worth addressing.

You haven’t tapped your empathy. Another reason we get drawn into unnecessary battles is because we haven’t taken the time to consider where the other person or group is coming from. The explanation may be simple—the other person is in a lousy mood. But you won’t discover this unless you think through the other person’s frame of reference.

You’ve been publically challenged. We tend to fight more in public places because our ego kicks in to make us want to defend ourselves even more strongly. You don’t want the rest of the team thinking you are an idiot, do you? But just because you have an audience doesn’t mean that you should engage in a fight that otherwise doesn’t make sense. Moreover, most of us are disarmed by public conflict and don’t readily make our most reasoned arguments when others are watching.

This principle applies to fights brewing by email as well. If you receive an antagonistic email, especially one that’s copied to many others, make a point to respond by phone or in person—and alone. Resist the urge to smack-down the other party in a “reply-to-all” email. This may be hard but take the higher road—especially because your email can be so easily forwarded to others and read out of context.

You are taking the easy road. We all tend to focus on little problems at times because we can. It is easier for me to fight with my son over whether his room is tidy (relatively unimportant) than whether he is cultivating a good relationship with his grandparents (really important), just as it’s easier to debate at length the name of a new training program (relatively unimportant) than whether or not the needs analysis was completed well enough to move to instructional planning (really important). Like most people, I’d just rather think about easy stuff. But be on guard against the urge to weigh-in on the things that are “easy” rather than those that are vital.

You want to feel better about yourself. Ouch! But it’s true: most of us, at least from time to time, invest in disagreements so that we can prove ourselves correct or smart. Don’t let this natural urge lead you to fight about things that don’t matter. Being smart about small things is a small thing. As Dale Carnegie famously wrote, “Any fool can criticize, complain, condemn—and most fools do. Picking your battles is impressive and fighting them fairly is essential.”

“Choose your battles wisely”—the sentiment is obvious, the obstacles more subtle. Perhaps this short list helped you identify the hurdles so that your conflicts at work are better chosen, perhaps even chosen wisely.

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You see, the editor of this fine publication told me a while back that he wanted me to write about presentations, and about how attorneys might improve their performances (sorry, that’s what presentations are) in front of their clients and their peers. I do not use the word “performance” in the sense of doing a couple of quick magic tricks before proceeding to a discussion of a client’s impending bankruptcy, or paying a visit to an incarcerated client while wearing a clown nose. (There is something rather charming about that picture, however. Unfortunately, it has been my experience that members of the bar aren’t big on red noses or squirting flowers.)

Hang on. I’ll get to the dogs in a minute.

Performance is a theatrical term. Our friend Mr. Webster allows that performance means, among other things, “the act or style of performing a work or role before an audience.” The theatrical parallels between the stage and the new business pitch or explanation to the partners as to why the Bindle case turned ugly are clear.

To wit:

Performances are always on a stage, real or assumed. If you are playing the lead in “Streetcar Named Desire” at the local community theater, you’ll no doubt be emoting on a stage. Magicians at children’s birthday parties carve out an imaginary space as their stage. Lawyers presenting in a conference room from the head of the table while they flash indecipherable PowerPoint (remember, PowerPoint isn’t the villain; its creator is) are on a stage. Pleading with the Homeowner’s Association to do something about Mr. Templeton’s poodle puts you on stage even if that stage is an armchair upholstered in a wretched elephant motif.

Performers wear costumes befitting their roles. When you take your turn as Stanley Kowalski on the neighborhood stage, the audience’s ability to accept you as Stanley will diminish somewhat if you are in a Brooks Brothers suit. At the same time, when you are in front of a client, you should be more than a little attentive to your attire. But you already knew that, right?

Finally, great performances on any level are the result of seemingly endless rehearsals. I’m not suggesting that you stay up nights rehearsing your compelling argument as to why Gorgonzola Industries should hop over the fence to your firm, but based on my own experience, I know that “winging it” is most often a disaster.

Now, about the dogs.

For many years my wife and I have owned Scottish terriers. It all started when then five year-old Joanna announced that she wanted a white female Scottish terrier whom she would name Rose. That settled that. Don’t ever argue with a five year-old whose mind is made up.

Rose was followed by Hoover and now we have Molly. A word about Scotties. They are very smart, arrogant, and stubborn, and they can be very loving once you realize that they have condescended to let you live in their house.

Molly taught me a lesson about confidence. Good actors have it. They know their lines, they know their characters, they believe in what they are doing.

Here’s what I learned from Molly, and it is a lesson for anybody who steps up on any stage:

Molly has a thing for squirrels. We have a deck on the back of our house, and there is a door from our kitchen to the deck. In the spring and fall, Molly sits at the open door to the deck and waits for the squirrels. She is very patient. Finally, a squirrel will appear, creeping across the deck to pick up bird seed knocked from the feeder. And Molly sits until she thinks that the squirrel has reached the ideal spot for her to pounce.

She races out the door, her stubby legs pumping and her bark piercing. Scotties are very, very fast, but squirrels are faster. To date, Molly has never caught a squirrel although she has chased hundreds of them.

Now for the lesson: after she has given it everything she has, confident she will get the squirrel but failing, she walks back to the door, sits down and waits for the next squirrel. She has completely forgotten her past failures. Her entire being is focused on the next squirrel, which she is confident she will catch. There is no such thing as defeat.

Life on the stage, whether business or the theater, is unpredictable. Sometimes things go exactly as planned, other times they don’t. But what sees the pros through this is confidence—in themselves and in their abilities. More than talent, confidence is the key element in your next performance.

Your audience is waiting.

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The problem is often due to distraction—and not just from other people, but self-distraction. You start to work on a file and then decide to check the stock market report, your personal e-mail file or the weekend’s football scores. Or you call a friend to check in. Or you pick up a magazine and leaf through it. For every minute you’re being distracted, you’re not being productive. But what can you do about it?

A tactic that works well is to play chamber music on a headset. Why chamber music? Consider Mozart. His music often follows a repetitive pattern—that is, it’s composed of different permutations of the same theme. This type of music allows for greater focus as well as greater retention. Any music with a melody or with words won’t work. Why a head set? Because the focusing effect is enhanced by having the sound located directly by your ears rather than coming from across the room.

It’s also useful to look around your office and see what distractions are luring you away from your work. Is your desk facing a window? Move it. Is your desk positioned so that when you’re sitting at it you can see everyone who walks by? Close the door, get blinds or move your desk so it faces a wall.

Have you turned off the “You’ve got mail” ding on your computer? Have you closed down that little e-mail box that pops up when a new message appears? You can’t help but look at it if you’re within a few feet of your computer, so turn it off and read your email at a time of your choosing.

If it’s still really difficult for you to concentrate, then train your assistant to be a “time cop.” Meet with her first thing in the morning and focus on the day’s priorities. When you are ready to do production work (any work that you need to concentrate on), meet with her again to determine exactly what you’ll be working on during that next time period you’ve carved out. Make sure you have only the one file you’re working on at your desk. Let your assistant know when you think you’ll be finished with it and ask her to come in to get it at that time. If you finish earlier, buzz her and ask her to bring the next file. After determining the order of the files you want to work on, let your assistant replace each one you’ve finished with the next. And make it clear that you don’t want any interruptions that aren’t absolutely necessary.

A final thought: Give your assistant permission to bug you when you’re not on task—and then listen to her!

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These comments are typical in a busy firm. But you can reduce miscommunication by using “huddles.”

A huddle is different from a meeting. It’s not about you and your team getting a cup of coffee and sitting around a table with pens and notepads. A huddle is best if everyone is standing around somebody’s desk, a table in the kitchen area or by the water cooler. It’s a brief period carved out of your team’s day when everyone learns who is doing what and when it’s due. It’s a chance to get caught up on anything that’s happened since the last huddle and to learn about issues that affect anyone on the team.

In most firms, huddles are scheduled first thing in the morning, or 5 or 10 minutes after you or other attorneys arrive. If you don’t arrive until after lunch, you may still want your team to huddle without you early in the day to make sure everyone is clear on the day’s priorities.

Huddles are also the time when your staff asks you questions—as opposed to interrupting you whenever an issue arises. If questions aren’t urgent, tell staff members to jot them down and raise them at the next huddle. This frees you to work without interruption.

While some firms prefer only one daily huddle, many schedule several: one in the morning; another just before or after lunch; and the last one close enough to the end of the day to leave time to make a call, send a fax, proof a document, or conduct any other almost-forgotten-but-necessary business before the office closes.

Of course, for huddles to be successful, you must make it your priority to implement them—and to be there!

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Early one June day I was driving to John Wayne/Santa Ana Airport, a route I knew well. I was on autopilot, headlights breaking the dawn. My mind was on the cross-country flight I would be taking from California to Newark Liberty Airport and then on to Westchester, New York to moderate a five day focus group project for an upcoming trial. Cresting a hill I saw the full moon suspended to my left. And to my right was the rising sun. Unexpectedly, I was caught in the embrace of two heavenly bodies that give us light and guidance—only because I chose to look out the window.

Then, with uncanny universal timing, the moment was punctuated by the richly resonant voice of David Whyte, the Welsh poet whose DVD I was half-listening to. He warned me—as if I needed reminding—that there are grave challenges confronting us. And he went on to say that while humans can control some of the challenging events that bring us grief, despair, and heartache, we cannot control them all. We can make choices but even the choices have consequences.

His words echo in my head as I think about the choices we make when we write. We can all choose to imbue our writing with power, passion and precision. And when you choose to tell your stories with such vitality they will follow you home, sit at your table, sleep in your bed. When you choose to tell your client’s story with power, passion and precision you choose to bring a story to life. And today more than ever, we need attorneys to make that bold choice. Why? Because most people are not inclined to care about The Other—the one who is not them—the one whose story is being told.

Begin With Power

One way to tell stories with power is to read them aloud. Words sound so very different when we give them voice. A proven technique to communicate with power is to choose to stand and claim the space from which you will speak. Say you have the opportunity to talk about your client’s case on the telephone to opposing counsel or the insurance adjustor. If you chose to stand up and tell your client’s story as you moved about your office, you would experience the power of striding into the legal story without the boundary of your desk confining you. When you come to the courtroom to litigate your client’s case, deliberately take a stand somewhere in the well. Claim this point as your spot. Return to this point often in delivery, when you question or cross-examine a witness. The jury will expect you to be there. And having a place to claim as your own will ground you with the power of assertion.

Consider the power you have in your body. Someone observing Hillary Clinton’s delivery style commented favorably on her ability to move her body around the message. Use your body like the tool it is. Give it a workout—unlike Al Gore who used his body as a place to hang his suit. There is power in movement. Harness it by taking a deep breath just before you speak and looking around the room. Pause. Focus your eyes on someone and begin to tell him or her the client’s story.

Deliver With Passion

What does it mean to have passion? It’s having conviction for your position, recognizing that you have this one moment in time to tell your client’s story in a way that will make a difference. Passion can be fiery. I think we expect that. And yet how often have we been compelled to lean toward the car radio to hear Garrison Keillor tell us another story from Lake Wobegon, a story told in cool and quiet tones—and yet with undeniable passion.

Here’s a tip: Know your client’s story so well that you can put down the paper you’re reading from, and let go of the lectern—it’s not a life raft. How do you make this happen? Practice. Writing and practicing what you’re going to say doesn’t take the edge off your delivery as some people maintain; rather, it gives you a polished, provocative, passionate delivery. Through practice, you can tell even a mediocre story with rhythm, timing and cadence. And when you are delivering your client’s story with the passion born of conviction and practice, you end up feeling confident. The more you practice, the more you get a chance to hear what you are asking others to listen to. Listen to what you are saying. Hear your own words. Feel them resonate in your chest. And astonish yourself with the passion of the spoken word. Your goal isn’t to memorize your speech. You don’t have to get every single word exactly right every single time. What practice gives you is the clarity of knowing how to get your point across with power and passion.

Practice Precision

Law school trained us to pay attention to what we could see. But human beings have five senses, not one. The devil is in the details of your story. And the details come to life through each of the five senses: sight, sound, smell, taste, and touch. Each of us has a sensory pathway we favor for learning. But when we incorporate all the senses into the client’s story, we encourage listeners to step inside that story so that they’ll remember it. Practice on yourself: describe breakfast in your kitchen using each of the five senses. Then transfer these descriptive skills to your next case. Suppose you have a malpractice case in a hospital. Ask yourself: what does a hospital look like, what are some sounds you might hear, what are the smells you could encounter, is there a particular taste you might associate with a hospital, what about the sensation on your skin as you enter a hospital? If you’re working on a breach of contract issue, ask yourself: what is the bitter taste of betrayal, what is the sound of a broken promise, what is the feel of a gentleman’s handshake that isn’t? And then write your client’s story.

Precision also depends on choosing the right word. Not all words are created equal. Choose words carefully and limit your choices. In days gone by lawyers were paid by the word for their work. Today their legacy is ‘heretofore’ and ‘party of the first part.’ Enough! Lincoln wrote the Gettysburg Address using only 271 words. Imagine that! Read it aloud. Listen to the precision of a message crafted by deliberately choosing each word:

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we cannot dedicate—we cannot consecrate—we cannot hallow—this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work, which they who fought here have thus far so nobly, advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

As my mother would have said, “They just don’t make them like that any more.” Maybe so. But the next time you tell your client’s story, choose to communicate with power, passion and precision. Prove my mother wrong.

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Often, however, our clients write more poorly—and to disastrous consequences. In today’s political climate, truth and disclosure during an investigation can become more important than the alleged crime (just ask a pro baseball player), and sarcasm can become a national event (remember the FEMA Director’s job-compromising line during Hurricane Katrina, “Can I quit now?”).

You can help your clients communicate better—or at least in ways that cause you fewer headaches. As the events above suggest, communication guidance is good legal counsel. We’ll cover five important writing tips below and five in the next issue.

Get It In Writing

All employees with exposure to outside vendors should have a primer in both contract formation and agency. Workers need to know that contracts do not have to be in writing to be binding and, thus, they should be careful about casual verbal statements that could be fairly interpreted as promissory. Moreover, written contracts are much more strategic. Help your clients understand that a tidy contract does more than just protect legal interests in the event of a problem; the formation process also forces everyone to think through the material issues for success. Workers should also understand that in many cases, a verbal change to a written contract will not be enforceable down the road as most contract templates require changes in writing. Last, clients should understand the basic definitions of principle, agent and the fact that, under the right circumstances, even those without formal authority may create binding deals.

Understand “Confidential” and “Privileged”

Even sophisticated clients confuse the terms confidential and privileged, typically assuming they both provide the same comprehensive protection. Make sure that all clients understand that confidential is not a term of art but, practically speaking, decided by the receiver. Some may interpret confidential to mean that absolutely no one else can be told; others may believe that it is fine to pass along the contents to those with a “business reason to know.” Importantly, labeling something confidential may or may not protect the information from dissemination the way your client intends.

Moreover, help clients understand that labeling something confidential certainly does not remove the employer’s responsibility to produce it during a lawsuit or investigation. For that sort of protection, the communication will have to be privileged. Your clients also need to understand that, at most workplaces, very little is privileged. And simply writing “confidential and privileged” or copying you or another attorney on an email will not make it so.

Communication Belongs To The Employer

Clients also need to acknowledge that almost all of their communications at work—phone conversations, email, written work, etc.—are the property of the employer. As such, these communications can be lawfully monitored. Against this backdrop, clients need to understand the risks they run with “personal” communications at work. Ask them how they are going to feel if their emailed love notes end up in an IT audit.

Moreover, during an investigation, these work communications can be used as the employer—not the employee—sees fit. While the employee might desperately want to invoke attorney-client privilege on correspondence with you, the employer will choose what to turn over to regulators.

Keep Anger Off The Page

It is very difficult to express anger at a co-worker, boss or direct report without being discriminatory. Even if you are not motivated by any untoward bias, angry feelings often get expressed in terms of demographics like gender, age, and race. I don’t know why this happens but I see it over and over: an otherwise fair-minded person gets mad and says something that “sounds” awful. Thus, your clients need to know that this sort of slip-up can compromise their ability to discipline or terminate an employee even when they otherwise have a legitimate reason.

Be Earnest And Avoid Sarcasm

Sarcastic emails and phone conversations are the way that smart people screw up. People use it to demonstrate their wit, but it can be deadly. After all, sarcasm requires context for the reader or listener to appreciate the humor. Consider, for example, the safety manager who says on a recorded call, “What does she think? Right, like I never do safety checks. I never do my OSHA reports either. And I typically make sure to dump our toxic emissions into the nearest natural habitat I can find ….” If you hear the voice, the sarcasm is evident. But if these words appeared in a court transcript without the voice, it would be unclear that he is “joking” or “being sarcastic.”  In fact, imagine if just part of the conversation is played during a lawsuit or investigation—especially once you omit the opening words. Moreover, even when clearly understood, sarcasm is going to seem inappropriate or uncaring during crises. Your clients need to understand that, at work, they should communicate earnestly.

These basic tips can help your clients communicate better—and make them easier to defend, as well. Join us next issue when we’ll cover five more vital lessons. In the meantime, if you hear people criticize the way lawyers communicate, remind them that few of us are without sin.

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