Taking the case and being successful.

Most trial lawyers have all but exhausted themselves in the never-ending search for the elements of success at trial. We have all purchased tapes, attended seminars, and networked with great trial lawyers in an attempt to learn the secrets of success with jurors. Sometimes, we become so involved in the nuts and bolts of office administration that our ability to be persuasive gets lost in the shuffle.

Here is a collection of principles common to all great trial advocates. The first ones are mechanical in nature and deal with the basics of effective representation. The ones in the second section of the article, however, focus on the psychological aspects necessary for repeated success in our adversary system.

Keep learning. Trial advocacy is a journey, not a destination. The development of trial skills will not have an ending during our careers. We will always be in a state of constant becoming. To be effective, attend seminars, network with other lawyers, take advantage of the information disseminated by litigation groups, and keep abreast of the recent technological developments relevant to your work.

The best way to benefit from seminar attendance is to try to take at least three new ideas from each seminar and incorporate them into the preparation of your cases within 10 days of attending. If you fail to implement new ideas in a relatively short period of time, you will likely forget the suggestions once you place the seminar materials on the shelves of your library.

Prepare for trial While it is true that most litigation ends in settlement, preparing for trial is the only effective way to prepare for settlement. Insurance companies for defendants evaluate risk. The better you prepare the case, the more likely you will dramatize the risks of litigation to the insurer. Appreciation of a heightened risk facilitates settlement.

Communicate effectively. Many of us feel that because we have a college education, we are effective communicators. However, after attending law school and beginning the practice of law, many lawyers revert from everyday English to wordy legalese. We begin to think in terms of "subsequent" instead of after," "motor vehicle" Instead of "automobile," and "discomfort" instead of "pain." Some of us even become so removed from English, we refer to a client as the "plaintiff."

We need to identify what we want to tell jurors and find the simplest terms and demonstrative evidence to convey those thoughts. While appearing sophisticated and knowledgeable about complex issues may be good for our egos, it is not good for our practice when we are turning to effectively relay our concepts of liability and damages to jurors.

Never oversell the damages. Every case has a value. Every case has an amount that a reasonable juror feels comfortable with. The numbers should be based on a factual relationship between the injuries suffered and the amount requested. Jurors easily recognize an oversell and will then appropriately withhold damages from the plaintiff.

Signs of overselling include making comments in the opening statement and closing argument not substantiated by, the evidence. Raising ancillary issues also detracts from the core liability and damage theories. Recovery is enhanced only if the jury believes your case. No one believes an overly aggressive salesperson. No one wants to be conned.

It's All in Your Mind

Perhaps the most important element in winning is the psychological component. We must visualize the success we hope to experience. In essence, we must be psychologically conditioned to win.

Be proactive. Passivity has no place in trial advocacy. We must pursue our cause of action. Do this by preparing a comprehensive case plan with target deadlines within 30 days of initiation of suit. Dictate the pace of discovery, the motion practice, and, to the extent possible, the request for trial setting. By initiating investigation, discovery, md motion practice, we not only communicate an air of seriousness to defense counsel, but we also let the court know we are serious about the case we filed.

Generate credibility from "inside out." Do you always believe in the cause of action that you are trying, or do you merely walk through the motions while presenting evidence that even you find weak? Belief in the theories of liability and damages must be generated from the "inside" and then presented "out," that is, to the trier of fact. Great trial lawyers recognize that jurors can neither be tricked into rendering the desired results, nor can they be fooled by showmanship and emotion.

Personalize your practice. Many lawyers view their practices as assembly lines based on concepts of mass production and volume output. This impersonal approach robs us of valuable information that would shed fight on the impact an injury has had on our client's life. We are unable to "get into their skin" because we fail to get enough information about them as human beings.

We must return our practices to the personal level. To personalize our practices means to spend time in the first interview with clients, to return telephone calls, to provide status reports, and to otherwise make clients feel they and their cases are important.

Find your philosophical foundation. Know why you choose to represent plaintiffs. If you lack this knowledge, which forms your personal philosophical foundation for your work, you will use the trial lawyer associations, both state and national, as merely trade associations. To be distinguished from the actions of trade association members, our actions as advocates and as officers of the court must be motivated by something much greater than making money.

Because of the special nature of the contingent fee contract, we trial lawyers are tied as partners to our clients and rise and fall with their fate. When they lose, we deservedly lose. When they win, we are compensated.

If the acquisition of money is your prime motivating factor for going to the office every day, your motivation is hollow and shortsighted.

Become a plaintiffs' lawyer, not a lawyer doing plaintiffs' work. A lawyer doing plaintiffs' work is merely a person with a license to practice law who takes clients on a contingent fee basis without feeling any further obligation to prevent injury or develop tort law. For this person, the job is done at 5 p.m. on Fridays provided he or she has met the overhead and takes home enough money to care for the family. A true plaintiffs' lawyer, a real winner, is much more.

Plaintiffs' lawyers understand that reverence for our system of justice merely begins with the representation of a client. We understand why we must be committed to legal political action committee drives and to state and national trial lawyer associations. We understand the essence of political activism and commitment to "the struggle."

It is the plaintiffs' lawyer who realizes that the right to trial by, jury is a fundamental cornerstone of our democracy, equal to the rights to vote and free association. In the end, the plaintiffs' lawyer is the good steward of the civil justice system that has served U.S. society so ably, for more than 200 years.