By Mike Maxwell, Trial Attorney, Michael Maxwell Graham Injury Attorneys
I credit Jesse Wilson with helping me settle a personal injury case for $16,600,000. If you want to hear how Jesse did that, read through this piece to the end. I’ve tried to figure out why Jesse’s Tell the Winning Story method works so well. I’m not sure that I’m correct, but here is my best effort to describe it. Jesse’s secret sauce can be broken down into three parts:
One, Jesse preaches that your injured client is a “victor, and not a victim.” Jesse believes that most plaintiffs’ lawyers make the mistake of portraying their clients as victims to put them in a sympathetic light. This portrayal is often successful in that it elicits sympathy from the jury, and results in a low verdict. Why? Because sympathy is a low activator emotion. We pity victims, but we don’t root for them.
Who do we root for? The answer can be found in underdog movies such as Rocky, SlumDog Millionaire, Home Alone, The Way We Were, and many, many others.
Jesse teaches us to portray our clients in a power moment in which they rise up and confront their own challenges. Seeing the client as a victor, and not a victim, activates high activator emotions. He believes that the high activator emotions include fear, anger, disgust, and hope. We can direct fear, anger, and disgust toward the defendant’s conduct, but the positive, high activation emotion we should use for our clients is hope.
Client Growth and Change
The second ingredient in Jesse’s secret sauce is the concept of change. Jesse challenges the lawyers who take his seminars to create little two- to three-minute scenes which portray their client’s struggles. The scene can depict a true event or surplus reality. In Jesse’s vignette/scene, the protagonist, who is often but not always the client, must want something. There must be some obstacle that prevents the client from getting what they want, and something must change. The vignette must show the protagonist’s transformation from victim to victor, even if this change is small.
The third ingredient is mask work. Yes, you heard me correctly. Jesse works with an old drama school teaching technique using theater masks. To the best of my knowledge, no other trial lawyer instructor incorporates masks in teaching.
Jesse uses two types of mask. The first are animated masks, which are unique to Jesse. The mask leaves the actor’s mouth uncovered, but the head and upper part of the face are transformed by the mask. Jesse challenges the lawyer to create a scene of a fictitious character whose existence is inspired by the mask. This scene must involve the character wanting something, there is an obstacle to getting what the character wants, and then, something changes.
The second kind of mask is a plain, expressionless, simple white plastic mask. Jesse asks his lawyer students to don this mask and stand in front of a full length mirror. Jesse plays beautiful, melancholic music and challenges the lawyers to move slowly and fluidly, as if in a dance. However, it is a dance with a purpose: to communicate our meaning to the audience wordlessly, with our body movement. For many of us, this is a little . . . weird. The purpose of the challenge becomes obvious; we lawyers are uncomfortable in moving our bodies to express ourselves in public.
Why is this mask work so effective? I think the theory is that spoken communication consists of four parts: word content, vocalization, facial expressions, and body language. Communication experts often say that body language is the most important, but most neglected, component of spoken communication. We lawyers are great at content. We spend a lot of time thinking about our words. Often, we have good vocalization, and I’ve worked with an acting coach in the past who helped me project and enunciate better. Our facial expressions may or may not be good, but our body language, frankly, is awful. Why? We are trained in law school to speak publicly as if we are addressing the Supreme Court of the United States in oral argument. Our body language is stiff, formal, boring, and tense.
Jesse likens the lawyer who addresses the jury to an actor who takes to the stage to act a part. What does the jury/audience want? A show. If the lawyer uses great words, but fails to use their body to express themself, then the jury feels cheated, like it did not see the show it was hoping to see. Instead, it feels like a group of hostages who have had to endure listening to a lawyer who loves to hear themselves talk.
If the lawyer fails to move their body when addressing the jury, what is the result? The result is what the lawyer said was not memorable. However, if the lawyer is willing to use their whole body to express themself, with appropriate arm movements, pacing, eye contact, and breathing, then the result will be a much more memorable presentation. The jurors will vote for the story that makes the most lasting, indelible impression
Techniques in Action: Tanya’s Story
At the age of 23, Tanya was a young mother who was driving to day care where she would drop off her two baby daughters. The older girl was three years old and the younger girl was a six month old infant. Tanya’s van struck a patch of ice, flew off an embankment, struck a tree, and caught fire. Tanya suffered horrible burns and bone fractures and was pulled from the van by good Samaritans moments before burning to death. The good Samaritans tried to rescue the girls, but were too late. The good Samaritans burned their hands when they touched the car seats which were already on fire. Tanya watched as her babies burned to death. We sued the local county on a road defect theory. The plaintiffs included Tanya, the estates of the dead babies, the father of the dead babies, and one of the good Samaritans.
I worked on a vignette for a long time. The vignette started with an idea, and then evolved and changed, and changed again, and again. I finally had the final product, or so I thought. I showed it to Jesse, and Jesse suggested a change. I thought it was final. But Jesse changed it again. And again. I kept thinking “Jesus Christ, Jesse, quit changing this thing! It’s good enough!” But Jesse kept making suggestions. We would try something, then abandon it, and try something else, modify it, and try it again. I finally arrived at the product, and what a product it was.
Our final scene featured Tanya in her home shortly after being released from the hospital. She is sitting in a wheelchair in her living room, and is still wearing bandages to cover her burns. Tanya asks her husband, Phil, to put photographs of the girls on the living room wall. Tanya watches Phil climb the ladder to put the photos up. She tells him to move them to a different location. She then directs Phil to put a photo away and replace it with another. She keeps telling Phil to make changes. No matter what Phil does, Tanya does not like it and tells Phil to change it. Phil starts getting frustrated because nothing he does is good enough for Tanya’s liking. Finally, Tanya stops directing Phil and stares at the wall, silently.
Tanya slowly draws in a breath and tells Phil quietly, “take them down. All of them. Take them down now.”
Phil reaches for each photo that he has so painstakingly placed on the wall and removes the photos one by one. Tanya encourages him: “Yes, that one. And that one too. All of them.”
Tanya then stares at the empty wall. Tanya is silent. Then, Tanya directs Phil to put one, and only one photo of the girls on the wall. This is a photo of the family at a Christmas tree farm.
While the rest of this scene is surplus reality, there is a real photograph of the lovely, happy family at a Christmas tree farm which was taken two days before the death of the girls. I have been to the home of Tanya and Phil, and I have seen the wall where the family photos were hung. That wall was the inspiration for the scene.
What does Tanya want? She does not know. She thinks that she wants to see the photos of the girls to honor their memory, but when she sees the photos, she is reminded of her pain and grief.
What is the obstacle to Tanya getting what she wants? The obstacle is Tanya’s need to overcome her own indecision and decide the healthiest way to look at the wall, and by extension, to honor the memory of her children.
What changes? Tanya realizes that all the photos are too much, but no photo is too little. She takes control of her own surroundings by asking that one, and only one meaningful photograph be hung on the wall to honor the memory of her children. This empowers Tanya, and starts the transformation of Tanya, in the words of Jesse, from victim to victor.
Reflection on the work
How did this change me? Before working with Jesse, I viewed Tanya as a victim of horrible circumstances. My plan was to say to the jury something like, “She’s screwed. Therefore, you should award her lots of money.” That, in retrospect, is the worst possible reason for a jury to award money to an injury victim. It is a direct appeal to sympathy and a guaranteed way of producing a low verdict. And many lawyers would try the case in that fashion; they would portray Tanya as a victim and would appeal to the jury’s sympathy.
The day I worked with Jesse, my view of Tanya changed. I started viewing her as a victor who was committed to reclaiming what was left of her life. Every time I met her—at her home, in my office, at a doctor’s office—I started paying attention to the steps she was taking to regain her life. In my mind, I saw her as a hero, not a victim. And I told her that she was strong enough to endure a trial and live with the result, no matter what it might be.
Tanya found the courage within herself to endure the stress of litigation. She prepared herself to try the case. As a result, we refused the many requests of the defense to mediate and we told the defense attorney that this case would be tried, no matter what. Shortly before trial we relaxed this hard stance and agreed to mediate. As you know from the title of this review, the defense offered $16,600,000 to settle all claims for all parties at mediation, and the parties settled. Tanya is very happy and relieved that the case is over, and that she did not have to face a jury in the courtroom and relive what happened.
Now, let’s be real for a moment. Is Jesse solely responsible for this excellent outcome? No, of course not. There were many factors, including an excellent liability case and damages. But Jesse’s seminar was a personal turning point for me when I stopped viewing my lovely, broken client as a victim, and started seeing her for who she truly is, a strong woman and a victor.
I will go work with Jesse anytime, anywhere. It’s the best professional development I’ve ever done, and I encourage any plaintiffs lawyer to give his Tell The Winning Story seminar a try.
-Mike Maxwell, Trial Attorney, Michael Maxwell Graham Injury Attorneys