Greg Trotter entered the stairwell of a commercial building in Lithia, Florida, and he said, "There's been a fire here." Everyone else seemed puzzled. "You can smell it," he said. No one else could. With a little digging, he discovered there had indeed been a kitchen fire in the building a year before, but he didn't need a paper trail to prove what his nose already knew.

As an expert witness in civil litigation involving real estate and construction disputes, Greg uses his decades of construction and inspection experience to create detailed, comprehensive reports for his clients. What's more important than his expert reports, however, is his ability to communicate his findings and conclusions in a tangible, visceral way.

"The people doing an assessment of a building have five senses," Greg says, "and you have to use all five." Greg explains how simply rapping your knuckles on a wall can reveal if there is concrete behind it. Listening to someone walking in high heels can indicate the construction of the subfloor. Finding dots of light above the ceiling means water can get in. You can smell evidence of mold and smoke—if you're attuned to detecting it.

If it sounds deceptively simple to hear how Greg approaches inspections, it is only because he's been working on buildings since the age of 15. Back then, his neighbor bought an abandoned warehouse as a hobby project and recruited Greg to help him on weekends. Since then, Greg has restored old 19th-century farmhouses, built structures, moved structures, supervised the erection of multi-million dollar towers, and represented owners in complicated construction projects.

For more than 50 years, Greg has developed a nose for buildings, and it has allowed him to reduce complicated construction issues to simple, common-sense explanations. A core principle of Advocate Craft is that jurors have trouble grappling with esoteric facts or figures, but the experience they have when exploring evidence can leave a lasting impact. Greg Trotter helps laymen experience the story of a building by evoking all five senses.

I talked to Greg about all of this and more. Check out my interview with Greg Trotter, the building whisperer:

Here’s how to reach out to Greg. Let him know I sent you!

Greg Trotter
Commercial Building Consultants
407-447-5881
theCBCteam.com

When speaking to someone who has endured unimaginable loss, simple questions can evoke complicated responses. I once met a woman who lost all her children in a freak, catastrophic disaster. Several weeks had passed since the tragedy, and the tone of her voice indicated she had worked through the initial shock. A lawyer joined the conversation and asked, “How ya doin’?”

A procession of microexpressions swarmed across her face. At first, she seemed annoyed; I sensed she considered saying “fine,” but the word failed to materialize. Instead, her eyes widened as grief poured into her open heart, which she abruptly closed. Then, momentarily enraged, she opened her mouth. I expected her to say that her soul has fractured, joy has died, and each day mocks the hope she had as a mother when her children were alive, which now feels like the shadow of a dream. But she swallowed her words like a round glass marble, lifted her head, and said, “It’s been hard.”

No kidding.

Personal injury lawyers work with survivors of life-altering catastrophes or the families of those who have died horribly. That means dealing with people whose worlds have been shattered. You don’t need to ask how they are doing. They’re doing bad.

When you ask someone in trauma how they are doing, you’re asking them to think specifically about their grief, make an assessment, and then decide whether to burden you with an uncomfortably honest answer or to lie for the sake of polite conversation.

Most people aren’t sincere when they ask, “How ya doin'?” Have you ever asked someone “How ya doin’?” and they offered an incongruent answer to a different question and said “Not much.” It’s just a thing to say, social babble, a generic greeting. It’s a very low-context question that often doesn’t warrant a coherent response. A good advocate, however, is not interested in having a low-context relationship with the families they represent. There are better ways to break the ice when speaking with a trauma survivor.

One lawyer I admire simply says “I’m glad to talk to you today” when beginning a conversation with a client. It acknowledges and honors their presence and conveys genuine interest in what they have to say. Most of all, it relieves the client of any pressure to formulate a sophisticated response. They can simply say “thank you.”

It is entirely appropriate to ask specific questions to engage and build rapport. If they were recently visited by family, by all means, ask how the visit went. If you know they had a specific appointment with a doctor, that’s fair game and relevant to the case. The important thing is that the question is sincere and doesn’t prompt them to revisit their trauma. If we are going to lead them back to the tragedy, it should be done strategically and deliberately to serve the case. Moreover, we should ensure they’re mentally prepared to speak about it.

There is a time and place to explore trauma. As a litigation consultant, I produce mediation documentaries that examine how a catastrophic injury or death has impacted the families we serve. While recording interviews, I ask each family member to talk about their experience. I ask them to remember the worst day of their lives. As part of our practice, we schedule these sessions well in advance. We record in their home or another place where they feel comfortable. We give ourselves plenty of time, and they have family nearby for support. People are grateful for the opportunity to open up and discuss their pain in a context where they don’t feel they are burdening the listener. They find it cathartic.

When the recording ends and I switch off the camera, I notice them relax. Although they appear exhausted from the emotional and psychological effort, a wave of relief washes over them. I’ve just been through a very painful personal journey with them. They’ve shared things with me that they’ve probably never spoken out loud. At that point, I want to make sure they are alright. Because my question is specific to their current state, sincere, and grounded in context—and because I’ve earned it—I’ll ask: “How ya doin’?”

Before sending a jury to deliberate, a judge instructs the panel that they can decide how to assess the credibility of testimony and how much weight to give to evidence. Each juror goes about the process uniquely, drawing on life experiences to inform their conclusions. As a result, individual jurors may hear the same testimony, examine the same evidence, and yet arrive at widely divergent verdicts because each juror has a unique process for deciding what to believe.

Jurors understand verdicts have enduring consequences, whether condemning a defendant to prison (or even death) or deciding the compensation an injured plaintiff deserves, if any. In everyday life, most people are rarely tasked to make such consequential decisions. Decisions with minor consequences can be made blithely without a strong degree of confidence in the strength of the underlying facts. However, when decisions bear extreme consequences, as they do in a trial, the facts forming the basis of a verdict deserve scrutiny.

I call the process of scrutinizing facts “authentication.” Authentication describes how we decide whether something is true. When people encounter a proposition—a claim or fact being evaluated—they rarely accept it at face value. Instead, they test it against their own knowledge and experiences, compare it to what they’ve seen before, and consider the opinions of people they trust (such as a parent, a pastor, or a public figure). Some trust their eyes; others trust their gut. When someone reaches a point where they believe a claim is true—or at least true enough to act upon—that’s authentication in action.

Dr. Daniel Kahneman and his colleague Amos Tversky coined the term “prospect theory” in 1979 to describe how people make decisions when faced with uncertainty and risk. In his book Thinking Fast and Slow, Kahneman explains that the human brain has developed a system of heuristics—mental shortcuts—used to evaluate novel or difficult problems. He describes “intuitive heuristics” like this: “When faced with a difficult question, we often answer an easier one instead, usually without noticing the substitution.” The “affect heuristic” is “Where judgments and decisions are guided directly by feelings of liking and disliking, with little deliberation or reasoning.”

It works like this: All my life, I’ve heard conflicting data about whether coffee is healthy. But in the end, I know my grandmother drank several cups a day and lived into her nineties. Since I enjoy drinking coffee and my grandmother lived a long life drinking it, I let personal experience override conflicting scientific studies. This same intuitive process plays out in the courtroom.

If we believe Dr. Kahneman, it means jurors often substitute what they know from their own life when judging evidence at trial, and they evaluate testimony based on the charisma of the witness. Perhaps you agree with this proposition because it conforms to your own courtroom experiences.

I believe that people have a healthy skepticism of facts but trust personal experiences. When someone faced with a proposition engages in authentication, that process becomes a new experience. When they’ve completed the process, they might believe the proposition, but they certainly know the experience they had was true. In time, facts fade, but experience leaves a lasting impression.

The button-like symbol in the Advocate Craft logo illustrates the authentication process. At its center, the black dot symbolizes a proposition. The white dot represents an alternative perspective or opposing idea. The black circle around the dots symbolizes the authentication process. In the end, the dots in the middle disappear, leaving just the black ring—the enduring experience of the authentication process.

For civil litigators, understanding the authentication process means recognizing that a trial is more than just a presentation of facts—it is an experience of justice. Jurors don’t merely absorb evidence; they engage with it, filter it through their own lives, and authenticate it based on their personal beliefs and experiences. Judges discourage jurors from taking too many notes, fearing it will distract them from the testimony. As a result, what jurors take into the deliberation room is not a compilation of facts, but a residual impression of their justice experience. A trial lawyer who guides the jury through this “experience” with respect, clarity, and persuasive storytelling is far more likely to earn their trust—and their verdict.

My favorite nonfiction writer, John McPhee, has written long-form features for The New Yorker on topics as varied as the history of oranges, New Jersey’s Pine Barrens, and the United States Merchant Marine. In each case, McPhee immersed himself in his subject matter, paring down his vast research into a relatively thin volume that is dense yet easy to read thanks to his well-structured, character-filled narratives. John McPhee is a master storyteller.

Great trial lawyers are master storytellers, too. An effective litigator can delve into a complicated subject and craft a narrative that is thorough yet accessible to a jury. In contrast to writers, however, trial lawyers face an adversary—an advocate on the opposing side who is crafting a counter-narrative using roughly the same set of facts. In this light, the courtroom becomes an arena for a high-stakes contest of competitive creative nonfiction.

Late in his storied career, McPhee wrote Draft No. 4, a book on creative nonfiction writing. His insight into the writing process includes lessons that translate nicely to the art of trial advocacy. Nonfiction writers, like trial lawyers, are confined to the facts. The opportunity for creativity emerges from their discretion over which facts they stress, determining the order in which those facts are presented, and choosing the context in which the facts are shown. “Creative nonfiction is not making something up,” McPhee writes, “but making the most of what you have.”

The process for both writers and litigators begins with discovery, or what a writer colloquially calls “research.” When McPhee launched his exploration into the citrus industry for his 1966 series Oranges, he visited a University of Florida “citrus experiment station” where he found “a citrus library of a hundred thousand titles,” including papers from scientific journals, six thousand books, and hundreds of doctoral theses. He realized he had much more to explore than he first imagined. Before he completed his research, McPhee visited several orange groves, toured an orange juice concentrate plant, and skimmed the treetops in a helicopter with legendary orange baron Ben Hill Griffin Jr.

As any plaintiff ultimately learns, the discovery process can take a long time. At the beginning of the process, you don’t know what you don’t know. As McPhee discovered when he arrived at the citrus experiment station, there might be far more to your subject than you anticipated. McPhee’s editor at The New Yorker, the legendary William Shawn, understood this. He afforded his writers considerable grace during this “discovery” process. “It takes as long as it takes,” Mr. Shawn said. With diligent perseverance, when all the threads have been followed, the process begins to wind down. McPhee references sentiments from writers such as Mark Singer and Brock Brower when he writes, “You know you have enough material when you meet yourself coming the other way.”

Next comes the task of culling through discovery, tossing useless information, and focusing on key documents relevant to the final product—whether it’s a trial, an article in The New Yorker, or a lowly Substack post. “Writing,” McPhee suggests, “is selection.” That means “pairing away the extraneous, reducing and refining until all that was left was what was needed.”

Key to the process is physically writing or typing out the notes that survived the selection process. “The note typing could take many weeks,” McPhee writes, “but it collected everything in one legible place, and it ran all the raw material in some concentration through the mind.”

Having all the notes typed up means you can print them out, categorize, and reorganize them. McPhee describes how he would “go at a copied set [of notes] with scissors, cutting each sheet into slivers of varying size.”

“One after another, in the course of writing,” McPhee writes, “I would spill out the sets of slivers, arrange them ladder-like on a card table, and refer to them as I manipulated the Underwood.” The process helps reveal a new structure for your arguments, presenting key facts thematically. This is the creative aspect of nonfiction writing: developing the theme by crafting a narrative structure with the facts on hand. What you keep in, what you leave out, and the order in which you present it makes a big difference in how the audience receives your story.

At trial, this narrative structure comes to life through the opening statements and closing arguments. The opening statement, if executed well, provides the jury with a road map for how to interpret the testimony and evidence. The closing argument will collect the best of the evidence as it came out during the trial, reorder it back into the structure proposed in the opening statements, and conclude with an appeal and call to action. In some of the best closing arguments I’ve seen, the trial lawyer reminds the jury that they have the unique opportunity to write the conclusion to the drama that unfolded before them over the previous days or weeks. They hold the power to decide how the story ends.

It’s a well-known trope that at trial, the side with the best story wins. While having good facts certainly helps, the way those facts are organized into a cohesive narrative can have an outsized impact on how the jury assigns weight and credibility to the testimony and the evidence.

The story the lawyer presents in closing arguments may need to change depending on how the trial unfolds, what the witnesses say on the stand, and what evidence is ultimately introduced. If they're any good, the advocate on the other side will have spun a counter-narrative, which may impact how their opponent's story must be told. There is an element of improvisation demanded by trial, and this is where all the preparation—all the copying, selecting, reducing, refining, ordering, and restructuring—really pays off.

McPhee quotes a passage from Ernest Hemingway's 1932 non-fiction account of bullfighting, Death in the Afternoon, which suggests, “If a writer of prose knows enough about what he is writing about, he may omit things that he knows and the reader, if the writer is writing truly enough, will have a feeling of those things as strongly as though the writer had stated them.” Hemingway sometimes called this the “theory of omission.” What it means for the lawyer is they don’t have to get everything perfect. A detail can be dropped here and there, but if the narrative is strong and apparent, the thesis will shine through, providing the jury with a clear structure to guide their deliberations.

I’ve always been amused that we call the process of crafting narratives “writing.” Writing is merely the physical act of putting words on a page, and it hides all the work that led up to that point. In Nothing Like It in the World, historian Stephen Ambrose writes about the creation of the Transcontinental Railroad, describing all the efforts made before workers placed the first length of rail: surveying the routes, securing financing, acquiring the land, cutting through forests, tunneling through mountains, building bridges, and making the grade. An author can only write after all the other work is done, and a lawyer can only try a case after the matter has been properly worked up. Properly working up a case requires a lawyer to craft a good story that incorporates the facts of the case. While the facts may be immutable, as John McPhee demonstrates, there are boundless creative opportunities to make the most of what you have.

The essay that once appeared on this page was originally called Cognitive Ease Wiz, a playful book report on Dr. Daniel Kahneman’s influential work, Thinking Fast and Slow. While the essay was not completely off-brand for Advocate Craft, it was meant for another passion project of mine: The Unknowable Truth. The essay explores the psychology that describes how people decide what to believe. While that’s a relevant topic for legal advocates—especially trial attorneys—the tone of the article was more lively than I prefer to cultivate here. If you read it, you’ll understand. I have several Substack channels, and I published Cognitive Ease Wiz here by accident.

I made a mistake.

As a litigation consultant for civil plaintiff lawyers, a big part of my job is fighting to ensure big corporations acknowledge their mistakes and take accountability for them. But corporations are run by people, and people don’t like admitting their mistakes—they certainly don’t like paying for them. However, anyone who refuses to recognize a blunder cannot learn from their error and is doomed to repeat it. The most satisfying victories in civil plaintiff law usually come from settlements that include a commitment from the defendant to make meaningful changes that will prevent a similar catastrophe in the future.

Those meaningful reforms usually involve creating new policies and safety protocols, often called “best practices.” I once encountered a hospital group struggling with post-operation infections. A comprehensive review revealed that not everyone entering the operating rooms was washing their hands. These individuals would handle something the surgeon would touch, leading to post-operation infections. 

To address this, hospital administrators instituted a best practice requiring everyone who entered an operating room at any time—for any reason—to wash their hands. Once, while giving a facilities tour, the host doctors, by force of habit, washed their hands before entering an empty operating room. Curious, the visiting doctors asked why. The hosts replied, “Because it slashes our post-infection rate, and it saves lives.”

In my business, I often distribute sensitive litigation-related press notices. Every message must conform to ABA Rule 3.6 on trial publicity, and I must be extra careful not to ever send confidential information. (I’ve never made this mistake, but an opposing party did, and I swore it would never happen to me). Mishandling extra-judicial press in high-stakes litigation can have catastrophic consequences. To keep the chance of error as close to zero as possible, I’ve established a series of best practices. 

With every press notice, I scrutinize each sentence to judge whether it conforms with trial publicity rules. I quote directly from public documents as often as I can. I keep separate drives for confidential materials and public records. Whenever I can, I send public records obtained directly from the court clerk rather than distributing an internal copy. I never send documents or on-the-record statements without a specific green light from my client. I actually make clients write the words “GREEN LIGHT” in the email so there is no ambiguity. Finally, I send each message individually rather than using mass emails. This approach allows us to catch and fix any overlooked errors, such as typos, and the mistake is not multiplied by all the people on the mailing list.

Substack automatically sends emails to subscribers, so I don’t have the option of sending them one at a time—nor would it be practical. Substack does, however, have the option of sending a test email before publishing—so I’ll be doing that from now on. I’ll also add “Are you posting to the right Substack channel?” to my publication checklist. I won’t make this mistake again.

I don’t trust people who don’t own their mistakes. Charley Munger, cofounder of Berkshire Hathaway, once had an employee come to him to admit they made a $200,000 mistake. The employee explained why the mistake happened and how they would keep it from happening in the future. Munger gave the man a promotion.

Ray Dalio, founder and Chief Investment Officer of the hedge fund operator Bridgewater Associates established a communal error log in his company. If an employee made an error that cost money and recorded the mistake in the log, they wouldn’t be fired. However, if the company discovered an unreported error—that was unforgivable.

Like Charley Munger and Ray Dalio, catastrophic injury attorneys operate in a high-stakes field where millions—and sometimes billions—of dollars are at stake. Mistakes are expensive. Yet, mistakes are inevitable. If associates and paralegals (and even partners) are too terrified to admit their mistakes, they may be inclined to ignore and conceal them, which will only cause the mistakes to compound. Successful teams cultivate an atmosphere that allows people to make errors—as long as they own up to their mistakes and take measures to ensure they don’t happen again.

The first time I spent a full day in court, I was astonished during noon recess to find that no one had considered lunch plans. Consequently, we spent most of the hour and fifteen minutes the judge allotted scrambling to accommodate everyone’s preferences and dietary restrictions rather than focusing on the afternoon’s arguments. No one enjoyed the meal.

The next time I spent a day in court, I placed our lunch order in advance and brought easy-to-eat snacks — which came in handy when our morning session ran long.

I call this “trial hospitality.” While it might seem like a frivolity, accommodating creature comforts on busy court days makes a big difference. A little treat can have an outsized impact on your mood. Once I got a Diet Pepsi for a friend in the middle of a grueling evidentiary hearing. The look that fell upon his face when he took the first sip was one of the most profound expressions of relief I have ever seen.

A plaintiffs lawyer I admire knows one key to keeping his team focused is ensuring they are fed and refreshed. For big trials, he books a conference room at a hotel near the courthouse and transforms it into a war room stocked with retail boxes of snacks and beverages from Costco. The place looks like a bodega. There is always a ridiculous supply of Red Bull. Everyone helps themselves to whatever they need as they work around the clock.

These days, when I go to trial, I bring hospitality boxes for the team. It's filled with an assortment of nonperishable snacks that are good for a pick-me-up: beef jerky for protein, chocolate-covered almonds for quick energy, mints to refresh, and Advil for enduring a long afternoon in hard wooden chairs. We’ve nicknamed this hodgepodge of portable comfort foods and headache relievers “Trial Mix.”

We devote countless hours to preparing for trial: printing exhibits, ensuring the tech works, orchestrating travel for experts, organizing trial binders – the list goes on. All these tasks are important, but none is more critical than keeping your trial team from getting cranky and running out of gas during marathon days in court. It doesn’t take much effort to improve the trial experience and energize your entire team when they need to be at their best.

Fighting for justice often feels like a losing battle. Each case brings unrelenting challenges, and after every hard-fought victory, there’s always another injustice to confront. Every week, I encounter a new complaint that describes a family’s suffering at the hands of a negligent corporation, and every day, I encounter another obstacle in the way of helping them. Some defendants escape justice by structuring shell companies to avoid liability. Sometimes judges stretch the letter of the law to unravel a just verdict. All too often, the law doesn’t provide a pathway to recovery. If it feels like there will never be an end to injustice, perhaps it’s because there never will be. It can be frustrating and disheartening.

When I feel frustrated and disheartened, I am often reminded of my visit to the Holocaust Galleries at the Imperial War Museum in London more than twenty years ago. After exploring the labyrinthine hallways filled with exhibits detailing the horrors of the holocaust, I felt overwhelmed, disgusted, and hopeless. The last thing I saw before exiting the museum was a floor-to-ceiling plaque that read, “All that is necessary for evil to triumph is for good men to do nothing.” Injustice flourishes when witnesses and bystanders remain silent and refuse to fight against it.

Some time ago, I attended a community theater production of “A Christmas Carol.” Near the end of the play, after Ebenezer Scrooge encountered the Ghost of Christmas Future and begged for a second chance at life, the stage fell silent and the theater went dark for dramatic effect. Just then, some buffoon in the audience decided to check his cell phone, which basked his face in light and shattered the emotional continuity of the scene. A single light can defeat the darkness.

I met a young plaintiff’s attorney not long after he opened his law firm. A family came to him because the oldest son suffered a life-altering traumatic brain injury. Liability was clear, but no one wanted the case because the defendant was a municipality, and sovereign immunity capped damages at a tragically low sum. Even if this lawyer could get the case to trial, and even if he won, he would have to lobby the state legislature to pay just a fraction of a jury award. He took the case. Five years later, he won a remarkable eight-figure verdict, and he has a good shot at getting lawmakers to authorize a payment well in excess of the sovereign immunity caps. A single light can defeat the darkness.

The universe, as I understand it, is mostly dark, yet the night sky is punctuated by specs of light from stars trillions of miles away. I once stood on a ranch in Nebraska on a cloudless, moonless night, and once my eyes adjusted to the darkness, the entire sky seemed to glow. The world, as I understand it, is filled with injustice, but I’m lucky to keep company with a constellation of advocates – legal and otherwise – who fight back. Advocacy means refusing to be a bystander; our duty is to fight. We may never eradicate injustice, but as long as advocates refuse to stand by and do nothing, injustice will never prevail.

Wes Taulbee spent much of his career as a hometown lawyer in Statesboro, Georgia where he enjoyed a broad legal practice. A couple of years ago, Wes joined forces with an old college buddy and formed a civil plaintiff's practice where he prosecutes multi-million dollar litigation for survivors of catastrophic injuries and the families of violent crime victims. The key to enjoying the practice of law, Wes says, is understanding your strengths and weaknesses and being part of a team that complements your litigation style.

What’s the value of a human life? It’s an impossible question to answer definitively, yet each week, lawyers gather in courtrooms across the country to select twelve strangers off the street and demand that they come to a figure. In my experience, it’s often between $5 million and $25 million. If the death was heinous or the defendant’s behavior egregious, I’ve seen nine-figure verdicts – before punitive damages. Fear of those verdicts often compels pretrial settlements. Whether it’s a settlement or a verdict, the answer to the question of the value of a human life is always expressed in dollars.

We understand, of course, that the value of a human life is incalculable. We call the money lawyers win for families in wrongful death cases “compensatory,” although we know that no amount could ever compensate for the loss of a son or a sister, a father or a wife. In the book “Debt: The First 5,000 Years,” anthropologist David Graeber writes, “In a human economy, each person is unique, and of incomparable value, because each is a unique nexus of relations with others.” You cannot replace my son with your son. Because a person cannot be replaced, taking a life, whether by malice or negligence, is to assume a debt that cannot be repaid. When a debt cannot be repaid, the only alternative is to negotiate terms for forgiving the debt.

David Graeber also explores the ancient tradition of paying “weregeld” or “blood wealth,” which he describes as “money presented to the family of a murder victim so as to prevent or resolve a blood feud.” He writes: “At best, those paying blood wealth, by admitting the existence of the debt and insisting that they wish they could pay it, even though they know this is impossible, can allow the matter to be placed on permanent hold.” Damages awarded in a civil death case are not just to compensate the bereaved; they are to buy forgiveness of an unpayable debt.

Mediating a death case is, at least partially, about negotiating the price of the plaintiff’s forgiveness of that debt. In my experience, plaintiffs do best when they can demonstrate the value of the life lost in the terms Graeber defined – by communicating what made that person unique and defining the roles that person played within their “nexus of relations with others.” Defendants often do best when they honor the ancient intent of “weregeld” (“geld” is the etymological root of the word “guilt”) and as Graeber says, offer “... a regretful confession of the crime with a petition of forgiveness.” A little contrition can go a long way.

When settlement negotiations stall, it can be worth taking a step back and reframing the goal of the justice process. A settlement in a civil matter is a squaring of accounts. Graeber says, “Squaring accounts means that the two parties have the ability to walk away from each other.” I have found that plaintiffs can have a hard time during the settlement process because they don’t feel comfortable putting a price on the person they lost. If they understand settlement funds are not meant just to compensate for their loss but also to establish terms to forgive an unpayable debt, then they may find more satisfaction in accepting a good offer and moving on with their lives. When defendants can come around to looking at a settlement as a business transaction that allows them to square an account and walk away from an unpayable debt, they may be more inclined to embrace the rare opportunity.

A bad jury research report is worse than no report at all if it is confusing, cumbersome, and complicates the jury selection process. Someone who has never picked a jury would be shocked at how quickly lawyers must decide who to keep and who to strike. In the most generous circumstances, I’ve seen judges allow up to an hour for a trial team to compare notes and confer – more commonly it’s only 15-20 minutes. No matter how much time the judge allows, decisions must ultimately be made in a matter of seconds during a process that carries the energy and urgency of a live auction. There is no time to stop and pore through a comprehensive, text-heavy dossier on each potential juror. That’s why less is more when compiling a jury report. A good report should contain only information relevant to strike decisions. It must be easy to read with just a glance and should fit on a single page. If a picture is worth a thousand words, an effective jury report should contain mostly images.

The most important data points for supporting quick decisions during jury selection are a profile photo, a street-view image of the juror’s home, and the juror’s political party affiliation. The profile photo is particularly valuable, if for no other reason than it helps a lawyer remember who the juror is. Unless the lawyer has a photographic memory, they may find it difficult to match the notes scribbled on a jury grid with the corresponding face. The jury report solves this. A street-view image of the juror’s home may provide the single best snapshot for encapsulating the juror’s socioeconomic conditions. While someone's political affiliations might not provide a window to their soul, knowing whether a potential juror is Republican, Democrat, or Independent might sway a crucial decision for a lawyer who is on the fence about using a preemptory strike.

The next most important data points for a potential juror are education and employment. Whether they attended college, and what they studied (and where), can provide insights into how a juror will approach the information they receive throughout trial testimony. During voir dire or in questionnaires, a potential juror may only reference their highest level of education. However, on LinkedIn, a Ph.D. engineer might reveal they studied philosophy as an undergraduate, or an accountant might share they served a tour as a Marine in Afghanistan. Like education, a juror’s occupation may suggest how they approach trial testimony. Their occupation also provides a clue into the juror's experience with money and finance, which is especially important when the lawyer asks them to award a significant amount for damages.

Beyond these key data points, the most important information comes from photos and memes that reveal the potential juror’s political, economic, and religious worldview. Do they post political opinions? If so, are they conservative or liberal? Do they post vacation photos? If so, did they hike to Machu Picchu? Or did they take a Carnival cruise? Are they religious? If so, do they play bass guitar with a tabernacle choir? Or do they post passages from the Old Testament? While much of this information may not be actionable on its own, when combined with what we’ve learned about a juror from voir dire, it helps create a broad impression that can support or refute a lawyer’s gut feeling about someone.

Now and again, we discover information that is directly relevant to the theme and theory of the case at hand. If a relative died in an automobile crash, we will share that, especially in a trucking case. When a husband is sponsoring a GoFundMe to pay his wife’s medical bills, we want to know, especially in a case that includes a life care plan. If a juror’s spouse works for the defendant, we definitely want to include that on the report. Aside from criminal history or prior involvement in a civil matter, most other information in the public record is trivia – and there is no place for trivial information on a jury report.

We live in a world awash with too much information. To function in this information age, we have learned to filter out the noise. However, as anyone who has missed an important email because it got buried by spam can tell you, there’s a cost to filtering out too much. That’s why most lawyers rely on a trusted paralegal or legal secretary to triage emails so they receive the important information without being burdened by unnecessary noise. That sort of information triage is even more important in court. A strategically crafted jury report, curated by a trusted consultant, can cut through the noise and deliver only the relevant information at a glance, making a crucial difference in a fast-paced, high-stakes trial environment.

Plaintiff attorney Steven Lawrence works with clients suffering from catastrophic injuries, life-altering disabilities, and disfigurement. Steven says "dealing with the emotions of people who have been horribly hurt" is something most lawyers aren't prepared for, and he suggests legal teams should have dedicated advocates who can work with clients in crisis. He also encourages lawyers to find healthy ways to deal with secondary trauma, including speaking with a mental health counselor.

The Kansas City Chiefs won Super Bowl LVIII. Another way to say that is that the San Francisco 49ers lost. In the final moments, the 49ers’ offense sat helplessly on the sidelines, hoping the Chief’s make-or-break overtime drive would fail – but those hopes fizzled when Patrick Mahomes tossed a short touchdown pass that brought the game to an abrupt end. While the Chiefs celebrated, television cameras focused on the shell-shocked faces of the 49ers, shoulders slumped, despondent as they absorbed the finality of their defeat. One player sat motionless, stirring only to shake off the celebratory confetti that had rested on his head.

Losing sucks.

Being a litigator means opening yourself to the prospect of losing. While I’ve been on winning teams far more often than losing teams, that doesn’t mean I have never seen cases tossed out on summary judgment or monster verdicts obliterated on appeal. I’ve suffered adverse verdicts, and I’m not sure which is more heartbreaking: watching a convicted defendant be shackled and led off to prison or seeing a family realize that they’ll receive no compensation for a catastrophic injury they’ve suffered. (It’s probably the latter).

But there are other kinds of losing. When a plaintiff’s case settles for less than it is worth – for less than a client needs and deserves – that is a loss. When an innocent criminal defendant takes a plea to avoid the risk of a long prison sentence, that is a loss, too. Make no mistake, a good settlement is a win, but anyone who has accepted a less-than-just settlement for fear of losing at trial can’t truly consider themselves “undefeated.”

Sometimes, a less-than-just settlement is the best possible result – especially after an adverse ruling or when a bad fact emerges during discovery. A great trial lawyer once told me, “I tend to win cases when I have good facts, and sometimes I lose when I have bad facts.” It takes confidence to admit defeat, but it shows he had enough courage to take on tough fights. Real defeat comes only when we walk away from a fight for fear of losing.

Legendary investor Charlie Munger, Warren Buffet's longtime partner, was a competitive player of the card game contract bridge. Charlie didn’t like to lose, but when he did, he didn’t get upset as long as he knew he was “properly playing the hand.” In the book “Poor Charlie’s Almanac,” the editor explains, “Charlie scores himself not so much on whether he won the hand but rather how well he played it.” It’s sound wisdom, but poor consolation when the stakes are high.

I once sat with a trial lawyer during jury deliberations at a high-stakes trial. Liability hinged on the jury’s interpretation of a very specific legal nuance. Because of that, the defense never mustered a realistic offer. The insurance company lawyers hoped the substantial risk of losing would cause the plaintiffs to take a lowball deal. While we waited, I assured the trial lawyer that he had presented a great case, and we could be proud knowing we did everything we could, even if we lost. He said, “That may be true – but it’s better to win.” A few hours later the verdict came down in our favor.

Winning is definitely better, and it is all the sweeter when the stakes are high, the odds are long, and the cause is just. Once we’ve suffered a loss and learned we can endure it and move on, we become more willing to risk losing in the future, especially when a case deserves to be fought all the way to trial. To win big, you must risk losing. If you risk losing enough, eventually you will lose. However, it’s better to be beaten than to be afraid of the fight.

Many of my best friends are lawyers – surprise. When we get together with our spouses, often the conversation drifts to law talk. If the conversation wanders too far afield, our partners might either feign interest or roll their eyes. One friend’s husband once pulled out his phone and said, “Let me know when you’re done talking about lawyer shit.”

So, we try not to talk shop too much at dinner parties and happy hours. However, we recognized that we all had a desire for an informal social outlet where we felt comfortable discussing legal matters without burdening our wives and husbands, so we established a tradition called “Lawyer Shit Lunch” or L.S.L. for short.

L.S.L. is often, but not always, on a Friday afternoon, usually starting at 2 P.M. — after the lunch crowd has filtered out of our favorite restaurant patio. You are allowed to be late to L.S.L., and you can take client calls unapologetically. Most importantly, you can talk shop as much as you want.

Our core L.S.L. crew includes a family law attorney, a criminal defense lawyer, and myself, a civil plaintiff’s litigation consultant. Occasionally, we are joined by other lawyers, paralegals, and consulting experts. It’s nice to be able to workshop a litigation theme or theory with professionals from a different practice area or point of view. This aligns with the cross-disciplinary approach we promote with Advocate Craft.

Lawyers, paralegals, and consulting experts have, for the most part, all seen some shocking and traumatic things. A lawyer friend, Karen Barth Menzies, recently taught me about the term “secondary trauma” (we talk about it on an Advocate Craft podcast). It’s the psychological impact of vicariously experiencing the trauma of another. If we care about the people we serve, then repeated exposure to their pain can create compassion fatigue.

If you don’t talk about this vicarious trauma from time to time, it can build up and manifest in unhealthy ways. To address secondary trauma, you can talk to a psychiatrist … or you can have an L.S.L. with colleagues who understand and won’t cringe at your description of a car filled with blood spray, burn injuries, or gunshot wounds.

L.S.L. is also great for networking. You might pick up insights about a judge you’ve never appeared before. You might receive a lead for a reputable consulting expert, or a tip about relevant case law. It provides an opportunity to maintain your referral sources.

Conferences, Bar events, Inns of Court, and CLEs offer similar benefits, but there's a unique comfort in a relaxed afternoon spent enjoying your preferred beverage, grazing on snacks with friends, and dishing about the intricacies of legal topics that are either inappropriate for casual company or too boring for laypeople.

If “L.S.L” seems too colloquial – or too frivolous for serious consideration – then I encourage you to call it a “Mastermind Luncheon” and schedule one regardless. You likely have an event similar to L.S.L. in your life already, but assigning it a name and recognizing the value of gathering legal minds from different disciplines illuminates its value. Or call it therapy. You’ll be glad to have unloaded some of the trauma of practicing this challenging profession of advocacy.

Advocacy is often about poring through volumes of information – much of it useless – to identify the hidden gems that could make or break a case. The system I use to wrap my mind around a complicated legal matter – or any significant interest in life – is to read about it, think about it, talk about it, and then write about it. It involves eliminating irrelevant information and forming what’s left into a cohesive idea. Call it information refining. It’s a process, and for the person going through the process, it’s an experience – the experience of understanding.  

I read with a highlighter. When I encounter something remotely interesting, I cover it in orange (of course, I prefer orange highlighters). I use the highlighter liberally, and if I do it right, I might not need to re-read the entire document (handy for 400-page deposition transcripts). Later, when I review my highlights, I copy any passage I still find significant into a Moleskine notebook. 

I write by hand. My daughter taught me that copying a text manually is equivalent to reading it seven times. My goal is to work solely from my notes and never have to refer to the original document, so I copy a little more than necessary. Somehow, the pain of writing out a passage by hand is eclipsed by the thought of rooting through a fat document searching for a quote that I vaguely recall reading. 

As I copy the passage, I contemplate why it’s important enough to take the effort. Spending time with the words helps fix them in my brain, embedding them with context and purpose. I copy the passages into the right page of my notebook only. The left page is reserved for my thoughts. It’s where I note connections and themes as I review the passages later. Here, my highlighters may re-emerge – big ideas in orange, key terms in blue, and key people and dates in green.

Then I put the pens and paper away, and it is time to think. For me, thinking is like trying to fit puzzle pieces together. It’s about creating order from chaos and finding a structure that holds all the components together. I prefer to do my thinking during walks, over a leisurely lunch alone, or on a long drive if I’m traveling for business.

I had an associate who liked to do her thinking while swimming laps. She called it “soak time.” Another colleague of mine recommended the book “Stranger in a Strange Land,” a 1960s sci-fi classic about a boy, raised by Martians, reintegrating into human society. When he encountered a new human concept, he would curl up into a ball – sometimes while at the bottom of a pool – until he understood the concept so well that it became a part of who he was. The process is called “grokking.” To grok is to understand profoundly and intuitively.

Without the benefit of a Martian upbringing, I am unable to grok a concept simply by curling up into a ball and thinking about it. For me, it requires a little more work, so the next step is talking.

Many of the ideas that emerge from my “soak time” are soggy – soft and not fully formed. This is when it is good to have a conversation with an associate or confidant. The challenge of articulating a concept to a third party helps firm up the ideas. My conversation partner often asks questions that expose holes in my thinking. Sometimes they reveal something from their own experience that fills in some of the gaps, illuminates a new connection, or forces me to look at things from a different perspective. If the other person already has some knowledge of the subject, I can add their informed insights to my understanding. Often, a good conversation will reference a book or a relevant document, which may send me back to the reading part of the process. A good conversation challenges, reframes, and supplements my understanding of a concept, while also allowing me to practice articulating my ideas to others.

When appropriate, I like to record conversations (with the other party’s enthusiastic consent, of course). It may be an informal interview meant only for my personal use, or it may be intended for use in a podcast. Either way, I like to imagine there is an audience for the conversation, which means, as the host, I must provide context and structure to the conversation so a hypothetical audience can follow and enjoy the discussion. The transcripts of these conversations become valuable texts for me to review, which, once again, leads me back to the reading part of the process.

After I have read, thought, and talked – and reread and discussed some more – I  find myself repeatedly returning to the same core concepts. Gradually, a set of conclusions begins to form. At this stage of the process, I am intimately familiar with my source material. I’ve developed a cohesive argument that has been challenged and tested by respected peers, and I have had some practice communicating my thoughts to interested third parties. Finally, I’m ready to write about it.

I find it interesting that we call the process of drafting a composition “writing.” The physical act of putting words on a page (or typing them onto a screen) is just the final step in a long process that is referred to by the deceptively simplified term “writing.” It’s as if the man who drove the spike into the rail on the last section of the Transcontinental Railroad took credit for building the whole thing, discounting the people who conceived of it; the surveyors who mapped the route; the workers who made the grade, building bridges and carving tunnels — not to mention the politicking, diplomacy, finance, and industry that made such a feat possible. 

Writing may not be as difficult as building the Transcontinental Railroad, but by the time you’ve labored through all the work required to draft a cohesive composition, you reach a deep understanding of the subject matter. Whether or not anyone ever reads your manuscript, if you’ve gone through the information-refining process of reading, thinking, talking, and writing, then you have undergone a substantial experience related to your subject. 

Who are we if not the product of all of our experiences? As advocates, I believe, it’s not enough to simply understand our arguments. To be compelling to the opposing counsel, a judge, or a jury, we have to become our arguments. We must believe so that others can believe. After you have gone through the process of reading, thinking, talking, and writing, that experience becomes part of who you are. It’s the closest a non-Martian can come to “grokking.”

In civil litigation, knowing whether someone is telling the truth can be worth millions. In his book “Why We Lie,” author David Livingstone Smith, explores “the evolutionary roots of deception and the unconscious mind.” He suggests that, regardless of what a person communicates verbally, their physical expressions unknowingly reveal what they believe on a subconscious level. It means that when what we say is contrary to what we subconsciously believe, our expressions may betray us – but when our message aligns with our core beliefs, it can be deeply compelling. 

Early humans thrived thanks largely to their ability to cooperate. Language helped. It allowed the formation of societies. Navigating a tangled network of social relationships became more important for reaching reproductive age (and finding a mate) than outrunning predators. Smith writes, “Sheer social complexity compelled our prehuman ancestors to become progressively more intelligent, and as they did so, they became adept at social gamesmanship; the wheeling, dealing, bluffing and conniving that I call ‘social poker.’”

What the author calls “social poker” sounds similar to the process of litigating a civil lawsuit, and any good poker player knows that bluffing is a crucial part of the game. It’s not that lying should be part of trial law, but bluffing is not so much about lying, but rather about concealing our true intentions. Before you conclude there is something nefarious – or even unethical – about concealing our true intentions, remember that the simple act of being polite often means withholding our unvarnished thoughts. In most social interactions, we call this “tact,” and it’s a trait we’re taught to admire. Smith writes, “Although we claim to value truth above all else, we are also at least dimly aware that there is something anti-social about too much honesty.”

Talk is cheap. Evolution favors activities that conserve energy, and compared to fleeing a predator – or even chewing meat – telling a lie takes little effort, and if done properly (and not too often), it can yield great benefits. If lying provides evolutionary advantages, then so does the ability to detect when others are lying. A good poker player can sense when another is bluffing. They pick up on subtle physical signs: narrowing pupils, an itchy nose. These are called “tells,” and they’re difficult to conceal.

Smith writes, “Words, therefore, are only credible when backed up by biologically costly actions or other signs of honest engagement.” Our bodies betray us when we consciously try to conceal our true intentions. Evolution, Smith argues, has concocted an ingenious workaround for these biological tells: self-deception. Most of our mental responses operate beyond our conscious awareness, he says. “Evolutionary biology implies that there is a region of our mind devoted to our dealings with other people that never divulges its secrets to conscious awareness.”

“If the evolutionary theory of self-deception is correct, we deceive ourselves to deceive others,” Smith writes. “There is a side of ourselves that we are not evolved to know.” It’s our secret self. 

Again, I’m not trying to make the case that trial lawyers should learn to be good liars, but I am suggesting that, if a lawyer doesn’t truly believe on a deep-down subconscious level in their case, then what they say to opposing counsel – or a jury – will be betrayed by subconscious tells. If we can deceive ourselves to deceive others, then we can also convince ourselves to convince others.

One of my all-time favorite trial consultants, Robert Hirschhorn, signs all his emails with the entreaty “Believe in your case & yourself.” I agree. When I work on a case, I’m not trying to convince the opposing counsel of the value of the case, I’m trying to reinforce the convictions of my client’s secret self. When their subconscious mind is resolved, then their bodies will exude physical “signs of honest engagement.” 

Justice is subjective. I’ve seen four mock juries watch the same presentation, and then, in separate breakout rooms, come to radically different conclusions about identical facts and deliver valuations differing by tens of millions of dollars. In a court of law, each verdict would have been valid. 

When the truth is subjective, we can decide what we believe – but our conscious minds and our subconscious minds must be in alignment. If we cannot convince our secret selves, then we can’t expect to convince anyone else, but when we are in alignment, our expressions, our gestures, the timbre of our voice, and the look in our eyes will make our conviction unimpeachable.

When Jimmy Buffett sang about an affable degenerate wallowing in a beach town, he created a mystical place called Margaritaville. It's not a real place, of course, but whenever two or more gather in the name of cheeseburgers, tropical cocktails, or pencil-thin mustaches, then the spirit of Margaritaville springs to life as a shared experience. 

In 1985, Buffett opened the first Margaritaville shop. Later came restaurants, resorts, and retirement communities – each branded with the Margaritaville name, each promising the Margaritaville experience. Margaritaville is now a registered trademark, a legal fiction that exists only because it is recognized by the courts and the law. All of law, by the way, like the Margaritaville trademark, is a work of fiction, made real thanks only to a shared belief in its legitimacy. 

We often think of justice as a result produced by the legal system – something we "get." But just as Margaritaville is more of an experience than a place, justice is more of an experience than a result. We don't really "get" justice; we experience it. Through the experience of justice, I've seen corporate defense attorneys become resigned to their client's liability. I've seen criminal defendants confront their culpability. I've seen juries moved to tears. 

Results, obviously, are important, but a result is the product of a process, and going through that process – for the plaintiffs, the defendants, the litigators, the mediators, the judge, and the jury – is an experience, and that experience is called justice. As litigators and advocates, we have the opportunity to help shape that experience for all parties involved, and the experience we provide will ultimately impact the result. 

The song Margaritaville, like the legal process, is about accountability. Through a series of dubious experiences – a heel injury, a mysterious tattooing, a perfunctory search for a salt shaker – the plaintiff (or is he the defendant?) comes to realize, after all, "It's my own damn fault." It's an experience most of us can relate to. It resonated with millions, and it has allowed Jimmy Buffett to leave behind a billion-dollar legacy. Not a bad result. 

"Are you a lawyer?" It's a question I'm frequently asked, and it's not entirely foolish. The last time I heard the question, I was at a restaurant, accidentally dripping hot sauce on a civil complaint. My usual response is, "No, but I am an advocate." If a lawyer asks the question, I may quip, "No, I had the good sense not to go to law school." It's usually met with nodding approval. Most lawyers agree there are already plenty of lawyers — but the world could always use more zealous advocates.

Consulting experts, expert witnesses, witness coaches, mediation documentarians, media managers, focus group moderators, investigators, and jury consultants: these are all advocates who work with lawyers in the pursuit of justice.

Advocate Craft is dedicated to recognizing and exploring the spectrum of disciplines that complement the practice of law. Advocate Craft will feature podcasts and articles highlighting lawyers and experts who have developed extra-judicial skills that have proven beneficial in achieving justice for clients. It celebrates the creativity made possible by a cross-disciplinary approach to legal advocacy. We approach this exploration with reverence for the attorneys who provide the frontline defense of law and order and who stand for our rights and liberties.