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Yes, and …

August 16, 2018

By Michael Leizerman

Yes, and… is a helpful attitude when talking with the judge and jury. I was recently in a hearing to approve attorney fees and costs. The judge had relayed his concern about the fee and some of the costs before the hearing. We met in his chambers. He started by saying that he customarily approved only a 25 percent contingent fee in cases involving minors. My answer was “yes, your honor, I certainly appreciate you looking out for the minor’s interest. I believe our contract for one-third was proper, but I will consent to 25 percent. If you believe that’s the proper percentage, I will not contest it.” By the time we left his chambers and he heard all the work I had put in, he voluntarily said he would permit a one-third fee. I believe that had I contested his reduction from the start, he likely wouldn’t have allowed the fee.

This is a basic premise of persuasion—say yes to almost everything. One of our activities in The Zen Lawyer & Advocacy live CLE was practicing this during jury selection. How do you say yes when a potential juror says all lawyers are greedy or that nobody should profit from another’s death? The response—in your body, voice, and words—is critical. We practiced responding to seemingly troublesome responses from potential jurors using communications skills taught by Joshua Karton, Aikido, and Zen grounding instruction from Jay Rinsen Weik, and my courtroom experience.

“Yes, and…” also works with defense counsel. I try to stipulate to as much as possible with the defense. In my last trial, our expert worked up my client’s economic loss at $1.2 million. The defense experts claimed it was $988,000. With the client’s permission, I consented to the defense figure. My response when the defense says there is $988,000 in economic loss is “yes, and the noneconomic loss—my client’s pride that was taken from him because he can no longer work and provide for his family—is much greater than the economic loss.”

Many good things happen when you say “yes, and….” First, you take the issue out of the jury’s consideration. My client receives a larger verdict when the jurors are discussing the value of a man’s lost pride than when they are quibbling over which is right—the defense expert’s growth and discount rates or my expert’s offset theory of economics (yawn). Second, you streamline the trial. The simpler a trial, the better for the plaintiff. And it also results in larger verdicts. In the case I’ve described above, in which my client had multiple surgeries for herniated discs and couldn’t return to work as a truck driver, the jury returned a verdict of $10,988,000. I was happy to stipulate to the $988,000 so the jury could focus on the noneconomic numbers I requested.

In The Zen Lawyer & Advocacy live CLE, we discussed this case and others. The workshop helped attendees learn to incorporate “yes, and…” into their cases and trials. It helped them reduce their cases to five core truths that they can return to throughout their cases and use to guide opening, direct, cross-examinations, and closing argument.

This entry was posted on Thursday, August 16th, 2018 at 10:20 am. You can follow our News & Press RSS 2.0 feed via through your favorite RSS reader.