The following is from an interview of Trial Guides author Patrick Malone on his video set Rules of the Road: Roadmap to a Winning System.
Trial Guides: I wanted to ask you about your new DVD series Rules of the Road: Roadmap to a Winning System with Trial Guides. Tell us a bit about it, and what inspired you to do this.
Patrick Malone: I thought it would be fun to do something for the 10 year anniversary of Rules of the Road. We were on the eve of it when I started thinking about the book and I just kind of had the idea that I’ll do six sessions, I’ll do them a month apart, live audience of my peers in Washington DC, Maryland, and Virginia. I didn’t have a whole set plan for how all six of them would work out, but I had a rough idea and then I just started doing them one at a time.
The fun part was it wasn’t just enjoyable and educational for the other folks there, it was good for me too. It helped me take the Rules of the Road idea to a new level. It helped me update and freshen up my own understanding of why it’s such a powerful technique, why the stuff in the book works, and add some juicy good new material. Hopefully it’s helpful for folks.
Trial Guides: What topics does the DVD series cover?
Patrick Malone: I call it road map to a winning system, playing on the Rules of the Road idea.
The first one is the overview and there we talk about structures of persuasion, different persuasive techniques, I talk about some of the other popular techniques nowadays; Reptile, and Case Framing, and then I segue all the way back 2500 years to Aristotle whose book on rhetoric talked about the key three aspects of persuasion: logos, pathos, and ethos. It really hasn’t changed all that much, but we’ve updated it, so that’s Volume One.
Volume Two I brought in a guest speaker to help me talk about depositions and discovery, Mark Kosieradzki from Minnesota, absolutely brilliant guy. Excellent lawyer.
Volumes 3 and 4 I am doing a preview of my new cross examination book; The Fearless Cross Examiner. I think cross examination is an important enough topic and I couldn’t get it into one hour and ten minute session, so I did two sessions on cross and we decided to do a mock cross on something really important that a lot of plaintiff lawyers in injury cases face, and that is the defense medical examiner, the so-called "independent medical examiner" who’s not so independent. We did a very enjoyable and educational mock cross of a fellow who had submitted to an actual cross. We did that in session three, and in session four we came back to it and I did a critique of myself and showed how I could have done better. I’ll bring home the point, it’s a simple point, but a powerful point, if you practice your cross examinations with other folks in your office and you do it together you can make for much more powerful ultimate cross at trial.
Session Five I brought in another guest speaker, Louise Lipman who is a psycho-dramatist and a practicing license clinical social worker in New York City, she does psychodrama at Gerry Spence's Trial Lawyers College. It’s a really powerful technique for witness preparation. This whole session was about witness preparation. Not just psychodrama, but I try to freshen up on some of the more standard techniques that I think help your witnesses make for much more powerful and persuasive testimony on their own behalf.
In Session Six we tried to wrap it all up and we did opening statements and closing arguments. I had some fun talking about the trial lawyers as storyteller. People talk about the importance of story and how it’s such a fundamental learning tool to human beings. I talk in this video about how most of us trial lawyers are story assassins, not storytellers, why we go wrong, and how we can do it better. So that’s the closing video.
Continuing to Learn as a Lawyer
Trial Guides: Did you learn anything new in the process of preparing this video series?
Patrick Malone: Well one thing I learned, and it’s always important for me to learn the reasons why I think instinctively here’s something I should do now, because if you don’t know why you’re doing something a) you’re not going to do it as effectively and b) you’re going to forget to do it a lot.
So one of the things in closing argument I’ve always tried to do is lift up the jury - elevate them, and get them to see that they are not just arbitrators of some very dry little fact dispute between two parties, but they are participants of democracy in action. Sometimes I quote famous thinkers like Alexis de Tocqueville about how voting in the jury room is just as important part of democracy as voting in the ballot box is. Except actually, it’s more important in the jury room. We go into why. That’s what I’ve always said to juries and I’ve always known instinctively that it is important, but recently I had an insight into why it was important.
I was reading some social psychology literature about the importance of awe in human history and awe is almost an acronym of admiration, wonder, and elevation. Why is it that humankind over the millennia has built giant monuments, and huge cathedrals. It's why we always feel different when we go out into a petrified wood forest and look up, or when we go out into the night sky and look up at thousands of stars. And there’s something in common with all of those. When we think of ourselves as being small in the face of something big, we can get drawn into thinking of ourselves as participants in something that’s very big.
That feeling of awe, social psychologists are starting to discover the power of it, it tends to create empathy. Empathy is what is in critically short supply now in courtrooms across America. You get juries and judges who are sour and self-focused, and not that interested in your case. To lift people up and try to get them to see things from a different perspective that can be really powerful. So that’s something I learned, something old and something new that I brought together for this video series.