Have you had a case where discovering the story changed the entire outcome?
The first case of discovering the story that I did at my firm was a case that we had kind of pigeon-holed into what we call a “bleed out case”. It’s where the patient had some sort of procedure and something was nicked and they bled out. The overall feeling was “look, we have done this kind of case before, we’ve got this handled.” What was really bothering me was we had no reason for a jury to be angry with the nurse that missed it. After my training at the Trial Lawyers College, I decided to do a recreation of the day that the man died with his wife to see if we could find “the juice.” After we did this work up, we realized that the reason that the nurse missed the diagnosis was because she had given what should have been an overdose of insulin to the patient. The amount given was mentioned in the records, but what we didn’t know was that he had not eaten for 48 hours. The complexion of the case changed so dramatically after this exercise that my law partner looked at me and said “it would be legal malpractice not to do this on every case we have.” We had all become so comfortable only doing what we are comfortable with, that we tried to pigeon-hole our client’s case into something that was within our comfort zone. That was a real eye opener for me because that case doubled in value that day. It gave us the true reason why the nurse missed the symptoms of the patient’s internal bleeding. Clearly, the jury would have seen the same gaping hole in the original story that I saw. Reenactment gave me what I needed to connect the dots.
Gerry always says, “A trial is nothing more than telling the story and the power of your ability to tell that story is dependent upon you being able to have a jury identify with your client”. . Until you have discovered the true story, you can’t really tell it, and you’ll surely never sell it. Once a lawyer has discovered the story in first person with that person, you can throw away your legal pad, you can throw away your notes. The story you tell will now be one that you actually saw, and instead of memorized facts from your head it will be coming from your heart.
Tell us more about “discovering the story.” Is it all for preparation or can you use it in trials?
Absolutely, you can use it in trial. I have seen so many eye opening, aha moments in during discovering the story workups where lead counsel says “Oh my God, I never knew about that (fact), I never heard that, why didn’t you tell me that”. There’s just something about that moment that you, as their trial lawyer, are not going to see or learn any other way, you’re just not. After using the method in preparation, you use that information in every phase of the trial. I’ve even used it in mediation.
So even the client may not know what you need to know?
Not at first. They just know the story they remember Sometimes they have re-told the story many times before coming to you. Once you start re-enacting the set of facts, and you quit having them talk about it, it shift from the head to the heart. You can literally “see” what happened, and the client can see it — and can explain details or events they didn’t realize the importance of. What you learn through Discovering the Story is something that sticks in you emotionally. Not just a fact that you read on piece of paper or something a person may have told you that really wasn’t part of an experience you’ve had.
How does discovering the story and opening statement work together in this seminar?
Well, an effective Opening Statement is what you get after you’ve fully discovered the story. I mean, knowing the true story you are going to tell to the jury — which is unlike the closing argument, which is the story of the trial itself. A trial lawyer can’t give a compelling opening statement until they have worked with their client and fully discovered the story of the case, of the client, of the witnesses, of the judge — there are lots of stories to discover when you are preparing a case long before you roll it out to jury. Honestly, you really don’t know what you’re talking about if you haven’t discovered the story. You simply have no foundation. I’ll say it again, until you have “seen” the story, and you know it inside and out, you can’t really tell it, you certainly can’t sell it, and you’re going to run into a problem if you try to. You are going to run into a huge problem if you try to sell the jury a story that is not the true story of the case. They’re going to see straight through that. There is a whole level of contagiousness that a jury sees whenever you are connected with your client. It’s palpable. In the inverse, it’s very clear when you don’t give a damn about your client and you haven’t done that work with them. They see that too.
What is your biggest goal for the students who attend this Regional?
My goal as a Faculty Leader and a teacher is to see every one of the students I work with have their light go on and see them ask, “Wow, I’ve got to have some more of this. Where do I get more of this?” It’s powerful. My goal is to make students do this in their daily practice. I want it to be their standard fare, not their appetizer, not their dessert; I want it to be their entrée every day…with every case.
Is this the right seminar for an experienced lawyer to attend who has already had a lot of success?
Absolutely. At the Trial Lawyers College, it’s all about reconnecting and feeling the energy that comes from truth and see a community fighting for justice. If a student has already attended another Regional or two, this seminar will be about helping them to build more on the foundation that they’ve already started and pick up some more of the tools. If this is their first TLC Seminar, this is the best place to start (other than Psychodrama, of course), because every lawyer needs to start with discovering the story. I mean, this is the key that opens the lock to everything we teach at TLC.
About Paula Estefan:
Paula Estefan practices medical malpractice at Elliott & Little in Conroe, Texas. She graduated from TLC in 2006 and has been on faculty since 2011. “TLC has given me a family of at least 1000 closely-connected friends that lend support and assistance to me on cases and just about any other matter at the drop of a hat. I love this group!”
Come join Paula and the rest of the TLC faculty team at the Texas Regional Seminar: Texas Regional Seminar: Discovering the Story & Opening Statement April 14-17! Learn More HERE
We had the chance to sit down and talk with this seminar’s Faculty Co-Leader, Greg Westfall from Fort Worth, TX about his years with TLC and specifically why criminal defense lawyers should come to the new week-long criminal defense seminar, In Defense of the Damned: Murder, Capital Murder and other serious felonies.”The first thing that comes to my mind is, “To help you win trials. This course is going to help you win trials. Period.”
Criminal defense lawyers, and I’m one of them, are a traumatized lot and those who fight the death penalty are the most traumatized of any lawyers that I know. Eventually, in death penalty work, you face a choice: you can either quit, or stop caring. And ultimately you have to do one of those things or it will kill you. You find yourself standing next to a human being who stands a pretty good chance of disappearing at the end of this trial. If you play by the rules that everyone has come up with, the very last words in the rule book are: “this defendant goes to the penitentiary until he dies”. As an effective criminal defense lawyer, you have to figure out a way to not play by the rules. It’s not an under-statement to say you will win trials after going to this course. That is the number one thing that I want people to know: You don’t have to lose these cases. You can win your trials.”
– See more at: http://www.triallawyerscollege.org/BlogPost.aspx?g=5ea11b44-38d7-4531-b0d6-96196896033d#sthash.gYR6bqoZ.dpuf