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Last week I talked about getting clear on want. But knowing what you want is only half the battle. You also have to want the side of shit that comes with your want. In other words, when you pick up one end of the stick, you also pick up the other. Here's what I mean: Every "want" has a shadow side. Want a satisfying relationship with someone? Choosing that means you're also choosing disagreements, not being able to make decisions without taking someone else into consideration, not sleeping with other people and all sorts of other things. Want to have a kick ass body? Choosing that means you're also choosing not eating whatever the hell you want, spending time exercising instead of doing other things, drinking lots of water instead of alcohol, etc. Want to run a business? Choosing that means you're also choosing mundane tasks, managing people, financial ups and downs and lots of other non-sexy things. You have to embrace the shadow side of your work. Opposing counsel that makes every interaction a drawn-out nightmare. Putting up your own money. Clients who make your life miserable.  These are the things that come with the job you've chosen. Seeing this clearly instead of shaking your fist in the air stops unnecessary suffering. You have enough stress in your life. Stop being surprised that this job is hard. Embrace it.
You can, and should, get clear on what you want. But as you do that, also consider that whatever you choose, you're choosing the shadow side too. When you pick up one end of the stick, you pick up the other. Choose wisely. What's getting in your way? Well if you're like most of my clients, I bet it's one of these three things: You Don't Know What You Want What do you want? When I ask clients that, I usually get a blank stare or a confused look. Want feels so...indulgent. So...self-involved. And what the heck does want have to do with anything anyway? Everything. Without want there is no WILL. When things get tough, you've got to have a want that's flashing so brightly in front of your face that you KEEP GOING. It's so easy to wake up one day and realize you're living a life you don't even recognize. Getting clear on what you want not only helps you keep going when things get tough but determines the course of your life. You're Waiting Maybe you know what you want but you're waiting to take action. You've told yourself you don't have enough experience. Or training. Or knowledge. Or preparation. You should wait. It's the prudent thing to do. Here's the truth: you'll never have "enough." You'll never walk into court feeling 100% prepared. You'll never feel you know everything there is to know. (At least I hope not. How boring!) "Enough" doesn't exist. It's a myth. It's a fantasy land you think exists if you'd only patiently wait for it to arrive.  You'll be waiting forever.
Stop waiting. Do it now. Whatever "it" is. You Aren't Willing to Fail What's the real reason you're waiting? Well, if you're like most people, you aren't willing to fail. You tell yourself it's because you aren't "enough,” but the real reason is you don't like failing. Newsflash: no one like to fail! But being willing to fail is the key to moving to the next level of your development. If you want to up your game at trial, you've got to put your fear aside and willingly put yourself out there and give up your excuses. Start wanting. Stop waiting. Be willing to fail. Get out of your own way and watch as your life, and trial practice, transforms before your very eyes. How do you help jurors understand the difference between economic and non-economic damages? On one hand, jurors want a formula, but on the other hand, formulas often backfire. For example, it’s not unusual to watch a mock jury deliberate and hear someone say, “Well, they’re asking for $10,000,000. This guy will live 23 more years according to their experts. So let’s see. Ten million divided by 23 is about $435,000. Divide that by 12 and that's…holy hell that’s over $36,000 a month!” This is dangerous. So how do we navigate this in trial? I firmly believe that you need to tell jurors how to calculate damages. So many attorneys throw up their hands and say, “No one can tell you how to do this, you just have to rely on your judgment.” Uh, big mistake. As David Ball says, if you tell the jury that no one can tell them how to calculate damages, they hear: “it can’t be done.” Here’s how I often suggest handling it... In voir dire, ask jurors about the difference between the price of something versus the value*. For example: "Can something have value even if you paid very little for it?" "What should happen if someone destroys something “priceless?” "How do we, as a society, make it up to that person?" "Why are some things valued very high in our society, say, a Picasso or a basketball player, and other things aren’t?" In opening, tie economic damages to price, and non-economic damages to value. You know jurors will want to use a calculator so tell them when that is appropriate. Say: “Economic damages is where you can get your calculator out. This is where you look at ‘price.’ How much will it cost to get the plaintiff back on his feet? What accommodations will he need? How much will medical care cost? This is the easier part of your job. You just look at the receipts, the bills, the reports and add it all up." You can then continue: "The hard part of your job, however, is non-economic damages. This is where you determine value. You won’t be able to use a calculator here. There is no formula. This is where you have to decide how much value to place on something like no longer being able to walk your daughters down the aisle. Or no longer being able to do simple things like change a lightbulb without asking your neighbor for help.” But don't stop there. In closing say: “Now here’s how we came up with the non-economic number.” Walk the jurors through your process. Tell the jury how you came up with the number but continue to tie it to value and not price.  The minute you start talking about how much things cost, you're in the “price” zone. You've got to get jurors into the “value” zone when discussing non-economic damages.
There’s no perfect way to help the jury with non-economic damages, but I do think jurors need more help than we often give. So help the jury by first, explaining the difference between the two types of damages, and then, helping them understand your reasoning for the non-economic number. *Thank you to John Coletti who, along with Paul Luvera, developed this method and allowed me to share it. What's the first thing you do when you screw up? Well, if you're like most people, you try to forget it as fast as possible. Big mistake. I've talked a lot about failure in this space and on my podcast, but the only way to really learn from your failure and grow as a trial attorney (or anything else) is to feel your way into it. Here's an example: A trial attorney came out to work with me last month. During his opening statement to our mock jury, something went wrong and instead of course correcting, I could see his inner critic take over. The opening got choppier and choppier and when he ended, I could tell he felt badly about his performance. It would have been very easy to try and make him feel better. I could have told him it was fine. I could have reminded him about what a good trial attorney he is. I could have switched gears and done a new activity to build his confidence. Instead I did nothing. I let him feel his failure. I didn't argue with him when he said he felt it went terribly. I just let him be with what he was feeling.  When he was ready, we watched the video of the opening and processed our way through it. We then tried the opening again, and this time, I watched him perform more passionately than I'd ever seen him perform before.
Here's what's important: When the attorney sat with his disappointment, he eventually realized, on his own, that it was his inner critic that caused his opening to go awry. He wasn't broken, ineffective or untalented. He just let his inner critic take over for a moment and, by really feeling what that was like, he decided he never wanted to do that again. Had he ran away from his failure, he wouldn't have recognized what actually happened during his opening. He would have instead told himself to just work harder, when in reality, he didn't need to work harder at all. He just needed to ignore his inner critic the next time it started yapping at him when he made a minor "mistake." When we attempt to run away from our pain, we don't learn. The first step to greatness is to be willing to fail. But merely failing is not enough. You need to feel your way into it. Here's a podcast episode that talks about this in more depth. |
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