The Havener Law Firm, LLC

Insurance 101-Insights for Young Lawyers: Trial Techniques in the Insurance Coverage Context

by Kathleen B. Havener

Ralph Waldo Emerson once wrote, "Nothing astonishes [people] so much as common sense and plain dealing." Emerson was right. And what Emerson said can be applied by trial lawyers to improve their courtroom performance. Indeed, there is not a case in any court in any jurisdiction in the land that cannot be presented with both the passion and the authenticity to keep the judge or jury genuinely engaged, even enthralled, no matter the subject matter. Even an insurance coverage case.

So how do we go about it? How do we captivate a judge or jury with a story that may seem so dull that it can't even hold the attention of your summer associates at an after-work social? How can we carry our audience along with us as we weave the facts and law of a case into a compelling human story that a judge cannot ignore? A true artisan of the craft of lawyering must treat the courtroom as an actor treats the stage, and prepare an argument the way an actor prepares a soliloquy.

The best lawyers understand that every trial is inherently dramatic. While every drama revolves around a central conflict, the trial of an insurance coverage case is more multi-layered: it is inevitably a conflict about a conflict. The subject of the under-lying conflict is an event-an environmental accident, for example, or a "sure bet" investment that turned out to be a Ponzi scheme.

Let us focus on a hypothetical. An officer of George Investments has embezzled funds from some of the customers' accounts and left the country. When the investors discover their losses, they sue the investment management firm. George Investments notifies its carrier of the lawsuits, expecting the insurer to provide a defense and, if necessary, to cover the underlying losses. The carrier quickly decides that it will neither provide a defense nor cover the underlying losses, since the policy language excludes losses directly resulting from willful criminal conduct by an officer of the company.

On a human level, the original event-the theft from the customers of George Investments-sparks feelings of frustration, anger, even the desire for vengeance. Not only do the customers feel betrayed by the investment firm and angry at the remaining officers for allowing their partner to steal the funds, but the remaining officers feel betrayed by their colleague, guilty for not discovering the wrongdoing sooner, and furious at the insurance company for failing to pay for the company's defense or the underlying claims after all the years the company has paid its premiums.

By the time of the trial - the conflict the judge or jury sees -- each side has woven its own story of the event, casting its client as the protagonist, the hero, the good guy, and the other side as the antagonist, the villain, the bad guy. The attorneys for George Investments want to demonstrate that the remaining officers have lost as much or more than their customers; they have lost their credibility, their livelihood, their trusted colleague. The attorneys for the carrier may be tempted to try to keep the focus away from the underlying events and focus solely on the language of the policy. If they are forced to examine the underlying events, it isn't difficult for them to paint the missing embezzler as the wrong-doer. The factfinder observes only the ultimate drama of the trial in which the sides present their two conflicting stories. The judge or jury is called upon to determine which of the stories is true, within the appropriate degree of probability.

The most skilled advocate appreciates that her job is to guide the factfinder by playing her own role in the drama convincingly. During preparation, she conveys that understanding to her clients and witnesses as well, and steers them through their roles in the trial itself in a manner that presents their case in the best possible light. In short, the best courtroom lawyer is already an accomplished actor and director.

Advocates have more in common with actors than first meets the eye. Both professions have been scorned by other elements in society-actors since their profession dawned, lawyers more recently. But lawyers and actors are both viewed as suspect, deceptive, capable of fooling others, characters who use of trickery to make things seem true that are not.

Acting is done in works called "plays." The actor is "playing" a role. The language itself implies unreality, frivolity, even deception. Thespis, the originator of Greek tragic drama, was asked once after a performance, "Aren't you ashamed to be telling so many lies before so many people?" Be-cause he was performing in a role, because the action in the play wasn't "real," his companion believed Thespis was deceiving his audience.

The more important similarities between advocates and actors are less about how actors and trial lawyers are perceived in society and more about what actors and trial lawyers actually do. To be effective, both must be commanding, persuasive, and credible. Both must win over their audiences. And both must accomplish these daunting tasks with the only tools available to them-their voices and their bodies. For . both actors and lawyers, the key to a winning performance is not what they say but how they say it.

Women advocates face different obstacles than men. The very act of standing in front of a group of people and discussing ideas was almost unthinkable for women not so terribly long ago. Many mannerisms "natural" to women - a tilt of the head, a high-pitched voice, a deferential manner - can be liabilities when one must command the attention and respect of a judge or jury. Study after study has confirmed professional women's worst fears: people of both genders listen to men and give them credibility while both genders openly or subtly-and often even unconsciously-discount women.

Because women are the traditional family story-tellers, on the other hand, it may be that they have a different advantage in addition to their disadvantage. But if they are to succeed at all before a judge or jury, women litigators must somehow convince the factfinder to stop seeing the 5'4" freckle-nosed blonde and start hearing the compelling story she has to tell about her client's case. And how can a woman lawyer convey feeling without being seen as "too emotional?" How can she convey forcefulness without being perceived as "strident?"

A male lawyer must also take care. How much emotion is too much? How forcefully can he cross-examine a female witness without appearing to be bullying? The manner in which he treats the judge, his opposing counsel, his colleagues and courtroom personnel will be scrutinized mercilessly by his audience. If he uses mannerisms in the courtroom that he might routinely (and harmlessly) use in the office -signaling his female colleague, for example, by crooking his finger to ask her to come closer-he risks being seen by the judge or jury as disrespectful by treating her like a child and accidentally giving offense.

This article lays out a few skills-physical and vocal tools-that you can implement to transform your next trial, even if may seem utterly mundane or mind-numbingly complex, into a drama that keeps your audience not merely interested, but spellbound. Remember that lawyers first learning and practicing these skills, like fledgling actors, sometimes think that what they need to do in the courtroom is some-thing totally different from "real" behavior. But neither a lawyer's performance nor an actor's can be convincing unless it is wholly real and honest.

The key to great advocacy, like great acting, is authenticity. Drawing from one's own experience is a basic element of the contemporary actor's craft. In "method acting," the actor reads the script with an eye toward understanding the character and then assimilates the character into the actor's own emotional character and life experience. Even though the character and the story are fictional, the actor's performance is based on his or her own truth. It is the truth of the actor's performance that conveys the truth of the story and induces the audience to believe and become involved in it.

So too can a lawyer employ this authentic approach. Trials-regardless of the nature of the issues at stake-always have an emotional component. Lawyers must somehow find ways to appeal to the factfinder on an emotional level. Instead of simulating emotions, though, conveying anger, disappointment, grief, frustration, by playing the "role" of the angry, disappointed, grieving, or frustrated lawyer, a good advocate-like a method actor-can simply choose to be unafraid to allow the jury see that she is a human being who feels what the facts of the case really cause her to feel. Instead of adopting a court-room demeanor, the lawyer recognizes that she is engaged in a real human drama and that the judge or the jurors are real human beings who will react to the evidence as real human beings. Authentically sharing their reaction, or even anticipating it, is effective advocacy.

The real challenge to this technique may simply be allowing oneself to be a person whose feelings are sufficiently invested in the case to be perceptible to the factfinder.

Even an insurance coverage case can be boiled down to its essence and conveyed as the dramatic conflict that it truly is. To a lawyer who represents a policyholder, the conflict is of course in part about the underlying occurrence-usually an event that is the source already of a great deal of emotion, since one's client has inevitably suffered a "loss"-but it is also about the monolithic insurer failing to keep its promises and seeming to be uncaring and dismissive. The job is harder for the lawyer representing the carrier. She would be well-advised never to minimize the underlying loss. But she may also draw on her personal experiences of human greed, of individuals clamoring for payouts as if they were entitlements, of people "wanting something for nothing," to carry her through the trial of her case with just the right recipe of empathy for loss suffered by the insured, sincere regret about the underlying misunderstanding, and just enough suspicion-the true meaning of soupcon-to convey her authentic feelings.

There are no tricks for conveying emotion. Rather, be truthful, and draw on your own experience to deliver the feelings you want to convey. Anyone can adopt this approach, not just lawyers who think they can "act." It depends not on your ability to perform, but rather on your ability to be yourself. The judge and jury must see you as a human being, vulnerable and sincere, with the appropriate amount of personalized emotion, even passion, if you are to tell your client's story authentically.

And, of course, the best lawyers are great storytellers. Couching the trial as a story automatically commands the interest of the jury. Just using the phrase, "Let me tell you a story," is a powerful means of pulling in your audience. Good lawyers, like good storytellers, take disjointed, sometimes inconsistent testimony from a variety of witnesses and transform it into a coherent, persuasive human narrative. The craft of storytelling helps to establish a "theory of the case"-a plausible explanation of the underlying events presented in the light most favorable to the client-in the jurors' minds. Story-telling also develops the "trial theme," the lawyer's mechanism for of adding moral force to the desired outcome, appealing to the jury's sense of right and wrong.

Theory and theme are by no means the same. Your theory is specific-"who did what to whom, and why?" Your themes, on the other hand, are universal-power, greed, envy, revenge, good and evil, loyalty and deception, fear and courage. The themes and subthemes of your case are focal points-flashing signs-that announce, fortify, and remind your audience of what you are communicating.

Storytelling is important in the courtroom because people are accustomed to hearing stories in ordinary conversation, and because arguments are ordinarily made more sensible through storytelling. Let me expand now on our hypothetical by telling you a more complete version of the story.

Mr. George is a respected citizen who runs George Investments with his two grown daughters, Carol and Meryl. One spring morning, Mr. George and Meryl arrive at the office to discover that a number of computer files have been altered and several million dollars of their clients' funds are missing. Sadly, so is Carol.

Carol George has stolen the missing funds and absconded to Brazil. Of course, Mr. George is heart-broken over the disappearance of his daughter. But his anxiety quickens when his customers-his friends and neighbors-begin to discover that their nest-eggs are funding Carol's frolics on the beaches of Rio. The investors soon begin filing lawsuits against George Investments for mismanagement of their funds. Mr. George sends appropriate notices of the losses to his insurance carrier.

The carrier wastes no time in deciding that it has no choice but to deny the claims, since the policy excludes losses caused by the willful criminal actions of the officers of the insured. The insurer's decision has nothing to do with what terrible happenings might have befallen Mr. George and Meryl. Its decision is based entirely on the policy language. If it gave money away for things that the policy did not cover, it would quickly cover its way out of existence. The carrier may sympathize with the Georges from now until the end of time-but it is bound by the four corners of the policy.

You don't tell your story only in your opening statement and closing-you should use jury selection, opening statement, direct and cross examination, and closing argument to thoroughly weave your tale and plant its seeds in the jury's consciousness. In voir dire in particular, you have what is probably your best opportunity to get to know your audience.

The better you are at establishing rapport and credibility with your jury during voir dire, and the more familiar they are with your story before the trial starts, the easier it will be for you to make the story more detailed and interesting during the trial itself.

Winning advocacy depends upon repeating and re-shaping the story as necessary to the circumstances. Imagine, for example, that there were signs before Carol's disappearance that might have clued Mr. George and Meryl into the fact that something was amiss. Instead of attempting to discredit or destroy the Georges on the witness stand, for example, proving that they knew all along what Carol was planning, the carrier's cross-examination can be more an effort to put the their testimony where it belongs. If it fits within the carrier's story, it can be woven into it; where it doesn't fit, help the judge or jury to de-emphasize or even disregard it. What does it matter what the Georges knew or didn't know? The carrier simply wants the policy to cover what the insurer promised to cover, right? The case is not about sympathy. It is about keeping one's promises-but from the carrier's side-only the promises actually made.

The jury wants to feel it is doing the right thing. Telling a believable story and asking the jury for the ending you hope for helps them to feel good about themselves. What techniques that actors use to help them weave believable tales can we as lawyers employ? How can actors teach us to be better lawyers?

First of all, let's just face it. For many of us, even the most experienced, going into court is difficult. In some way and on some level, all of us are tempted to put on "armor" to protect ourselves from the inevitable adverse rulings, occasional, insults, and other vagaries of the courtroom experience. The trouble is that if you're wearing armor, you don't walk, talk, or maybe even think like yourself. A jury can see it. At best your performance will be unnatural. At worst, you will seem untrustworthy. Emerson also wrote, "The only gift is a gift of thyself." You must discard your armor and trust that your ego will survive the jousts and thrusts of your opponent and the judge. You must be your authentic self.

How do you gain someone's confidence? You talk with them. You talk like you talk with your friends in your living room. Here's an example. You're preparing to make an opening argument. Instead of shutting yourself in your office and carefully composing an opening on your yellow legal pad, or even drafting an outline, invite your best friend-your best non-lawyer friend-to lunch. Tell your friend about your case. Pay attention to how you explain your theory of the case and how you buttress your theory with facts. Pay attention to your voice, your tone, your words.

If you represent George Investments, you will tell your friend carefully all that Mr. George and Meryl have lost and how betrayed they feel. If you represent the carrier, you will be equally passionate that your client sells a product and that the product is coverage of particular losses, not any and every bad thing that may befall its insureds.

You'll find that your explanation to your friend isn't boring at all. In fact, it's even kind of thrilling, because your own excitement about the human story comes through. You like your friend. You want her on your side. You communicate all the passion and confidence you really feel about your case, because you want your friend to understand your position. You tell your story with authentic feeling because you're caught up in it and you want her to be caught up in it too.

You will use the right words naturally. And as Mark Twain said, "The right word is to the almost right word as lightning is to the lightning bug." When you tell your friend about your case, your words will flash like lightning. You will own the story and in owning the story, the right words will simply flow out of you. You'll be convincing, and-most important-you'll be yourself.

Congratulations. You've just prepared your opening statement.

Now all you have to do is tell the judge or jury the same story you told your friend. Use the same tone, the same words, the same manner. You want the factfinder to feel your interest, your passion, your comfort with your own position, just as your friend did. The jury doesn't want to listen to you give a speech. They don't want to listen to you reading aloud from your notes. Don't give them a sermon. They want to hear-in words that light up the skies-your story of the case and your feelings about the matter.

If you're talking to a jury, Look at the jurors, each one of them, just like you look at your friend. And don't look at the jury only because it's polite. Look at the jury to watch them. Observe their reactions to what you are saying. Like an actor, pay attention to how the audience is receiving you and adjust your delivery accordingly. As you do at a cocktail party, watch how the people you're talking to receive what you are saying. The subtle signals you pick up from the jurors will tell you what you might need to repeat, what you might need to emphasize, what they're comfortable with, what they like and what they don't, what works and what doesn't. As you would with your friend, or your guests at the cocktail party, adjust your conversation in response to the reactions it creates. This adjustment isn't difficult-it just requires that you relax and let yourself be the person you ordinarily are.

Keep eye contact with the jurors. You want them to feel they're getting to know you. If you don't look the jurors in the eye while you're talking to them, if you look at the wall or the desk or out the window, you'll appear to be afraid. Worse, you'll appear to be guarded or untruthful. After all, you can't be convincing without being confident.

You also need to pay attention to your body language-and not just when you're speaking. People always judge you by your carriage. Your mother was right-you should stand up straight. You don't need to stand at attention like a guard at Buckingham Palace, but you should be attentive. You need to show respect for where you are and what you are doing. You owe your respect not just to the jury and the judge, but to the courtroom itself and your place in it.

Even when you're not speaking, you're not invisible. The judge and the jurors will certainly notice how you're conducting yourself whether you're in the spotlight or not. Sit up straight. Leaning back in your chair looks sloppy and inattentive. Remember the "bad boys" in junior high school who slouched in their desks at the back of the classroom? Somehow they made their languorous physical posture convey haughtiness and superiority. Drooping makes you appear as if you don't care what's going on. Letting your eyes wander doesn't make you look thoughtful, it makes you look bored. If you appear not to be listening to the proceedings, you seem at least disrespectful and perhaps even arrogant. As the day grows longer and your level of fatigue increases, you might have to force yourself to pay particular attention. But if you look like you're bored and fed up with being in court, just think how that makes the jurors feel about being there?

One thing you'll certainly want to do in advance, if you haven't argued there before, is visit the courtroom and get to know your "stage." What are the acoustics? How "grand" is the room? Or how intimate? How far will you be from the jury, from the judge, from the witness box? What are the judge's rules on moving around the courtroom? You'll do a much better job of "owning the room" if you know what it feels like before you get there.

A word of warning: In my experience, the temperature in the courtroom is almost always too cold. When I'm cold, I have a habit of crossing my arms to try to keep warm. But you have to remember that your body language always conveys a message. Folding your arms across your chest looks defensive. It might even make you appear frightened, especially if you're female. It can also make you appear overly

confident and unwilling to listen to another point of view. It definitely puts a barrier between you and everyone else. You're inaccessible and closed off. So don't cross your arms. Another thing about low temperature: it is generally believed that a room that is slightly too cool helps people to stay alert. For me, it has the opposite effect-I become drowsy and have difficulty paying attention. If you've visited the courtroom in advance, you won't have to talk to the jury through chattering teeth and lips turning blue, and if you're like me, you won't have to fight off falling asleep. Instead you'll know to dress appropriately and you'll feel more comfortable.

It's very important to stand or sit still when you should. Shifting your weight from one leg to the other, tapping your foot, tapping a pencil, even shuffling papers can make you look nervous, or even worse, bored. Don't make a single move without a purpose. If you don't have somewhere to go, stay where you are. Be still. Stillness conveys serenity and confidence.

If you do have somewhere to go or you have the urge to gesticulate, if your own enthusiasm spurs you to approach the jury to make better contact (if the judge allows it), or to raise your hand to emphasize a point, by all means, do it. If you're as still as a statue you don't appear serene, you just seem to be made of stone.

Forget any fears about "what do I do with my hands?" Someone who's engaged in a comfortable conversation, whether speaking or listening, doesn't have to worry about what to do with her hands. If you typically use your hands to express yourself, you'll do it in court as well. If you're nervous about your hands, give them something to do. Instruct your hands to remain at your sides. If you're sitting, your hands' job is to remain open and relaxed on the table in front of you. Giving your hands a job to do allows you to forget about them unless they stray from their assignment. As long as your hands are "on task," you can do your own job without even thinking about your hands. And when you forget about your hands altogether, they'll do what they usually do-they will become part of the way you express yourself.

When you're sitting at counsel table, keep your hands on the table, not in your lap. Like cops, observers in the courtroom want to see your hands at all times. And here's a list of what your hands should not do. Don't clasp your hands behind your back or in front of you. It makes you look childish and it guarantees that you won't use your hands to help you make a point. Your hands should never cover your face. Don't even touch your face. Don't touch your ears, your nose, your head. Don't rub your eyes, fiddle with your hair, clean your finger-nails, or worse. Don't do anything in court that your mother taught you not to do in public. (A casual hand in the pocket is OK, but don't overdo it.) Don't tap a pencil, drum your fingers, or god forbid, crack your knuckles. All of these habits are incredibly distracting and some of them are downright disgusting. Keep still.

And stay calm. No one denies that stage fright is real and powerful. It has both emotional and physical components and both can be crippling. It's said that Americans in general fear public speaking more than they fear death or financial ruin. Jerry Seinfeld jokes, "That means to the average person, if you have to be at a funeral, you'd rather be the guy in the casket than the one giving the eulogy!"

Perhaps it may give you some comfort to remember that Cicero, some 2,000 years ago, said: "The better qualified a [person] is to speak, the more [the person] fears the difficulty of speaking." Maybe the more frightened you are to take the lead at trial, the more qualified you really are to try the case.

Even the most experienced actors have to deal with stage fright. Most say that the extra edge of adrenaline improves their stage performance. But if you can't keep it under control, stage fright can seriously impair your performance. It interferes with your concentration. It can make you feel and look incompetent even though you aren't. It can make your voice tremble and your hands shake.

One thing to remember about stage fright is that it only happens when you're concentrating on your-self. Focusing on something outside yourself will banish stage fright, but that trick isn't always easy to accomplish. Fortunately, though, there are simple ways to deal with stage fright, as every actor or musician knows. Here are a few:

• Remember that the judge and jury are more important than you are. Your purpose is to make them feel comfortable and to help them. You really want to assist them in understanding the case in the right way.
• Know that your fear is contrary to your purpose. In fact, it can project such a negative feeling that it could make you seem hostile. Pretend instead that the jurors are your guests. It will help you to forget your own fear if you're trying to make sure they feel welcome and important.
• Breathe as deeply as you can, concentrating on inhaling to a count of 4 and exhaling to a count of 8, for a series of 10 breaths. Consciously relax your shoulders while you breathe. Just the exercise of concentrating and controlling your breathing will really go a long way toward calming your fear. Deep breathing can even lower your blood pressure.
• In addition to relaxing your shoulders, consciously relax your jaw. This will help you to sound normal - especially to yourself - when you begin speaking, which will make you feel more comfortable right away.
• Your presentation isn't a race. Never allow yourself to feel rushed. Express every word that's important to you to express and speak so that the whole room can hear you while you're doing it. If you feel pressured to hurry, deliberately slow yourself down, at least until you feel calmer.
• Think of yourself as a member of the trial team. It will draw your focus away from yourself and remind you that others matter as much or more than you do.
• Believe in your position and believe the story you are telling. When you believe with all your heart that you know the truth and that you are the medium who can convey the truth to the jury, your fear will almost certainly abate. Enthusiasm and conviction are good qualities, not negative ones. Another thing Emerson wrote-"Nothing great was ever achieved without enthusiasm."
• If your fear is directed not to the audience, but to your colleagues - -- if in fact it's fear of failing in front of your colleagues and not really fear of talking in front of strangers - you absolutely must remember that your feelings about the case are meant to be communicated to the jury, not hidden from them. Forget about what your colleagues think. Your colleagues can't deliberate and they can't deliver a verdict. In the courtroom, they are irrelevant.
• Pay attention to your voice. Controlling your vocal inflection helps communicate your ideas and it automatically causes you to control your breathing.

While we're on the subject of your voice, I want to bring up the subject of inflection. The importance of inflection to actors is undeniable since, without it, they would be unable to communicate the real action of the play. "Just remember," said the English classical actor Donald Sinden, "there's many an actor sleeping on the embankment tonight, with no soles to his shoes, for lack of an upward inflection."

Lawyers too need to pay close attention to inflection. It is not simply a trick to make your delivery more interesting. Inflections have meaning in language; indeed, they are buried in the deepest structures of our natural speech. They are as critical to spoken communication as punctuation is to writing. They act as signposts, signaling our intention to continue or to stop speaking, to pause or to yield the floor. Because inflections are directly drawn from natural speech, they are not only authoritative, expressive, and persuasive, they are also real and natural.

In general, in English, falling inflection is used:

• to create a sense of finality. - "Carol disappeared;"
• to complete an idea - "An insurance policy is no more than a promise to pay for what the carrier covers, not more;"
• as a signal to stop listening - "I have nothing else to say."

Rising inflection, by contrast, sometimes indicates a question and at other times makes people want to hear more. Upward inflection can also:

• highlight a key word - "No accident befell George Investments; rather, Carol stole from them."
• instruct the hearer to follow an alternate course - "Don't ignore the language of the policy, enforce it;"
• delineate and articulate a series of statements so as to provide momentum - "First she planned the embezzlement; then she executed her plan; and then she l eft."
• To arouse enthusiasm or stimulate excitement - "It isn't about words on a piece of paper; it's about keeping one's promises."

Finally, sustained inflection can create suspense. It causes listeners to wait for the end of the unfinished story. It defies interruption.

• "She targeted particular investors . . . she stole their money . . . she boarded a plane . . . she vanished."

When you need real power in your speech, forget volume. Utilize instead your rising, falling, and sustained inflections. Try this exercise. Take the following sentence and say it aloud as if it is simple declaratory sentence in an opening argument.

"THAT'S WHAT THE POLICY SAYS."

Speak the sentence first, however, with a rising inflection, then with a falling inflection, and finally with a sustained inflection.

"That's what the policy says." ^

"That's what the policy says." v

"That's what the policy says." >

Feel and understand the difference, and remember it. You will soon understand that it's not the words that matter - it's how they're spoken that give the words power.

Another powerful tool available to you is silence. Use silence before you begin to speak, to get every-one's attention. Use silence instead of "filler words" like "um . ." Before you are about to make a critical point that you want to drive home, pause for an extra long moment. Take a sip of water. (Indeed, having a drink of water nearby is an essential part of any long statement.) If the other side or the gallery is making noise and distracting you - or the jury - stop talking until the room is quiet again. The room is yours, after all. If you make the jury laugh, stop and enjoy the joke along with them. Silence is an extraordinary tool. Remarkably, the more you use it properly, the less anxiety you will feel.

Although you should never write out your arguments, it is critical that you rehearse. Even if your rehearsal consists of telling and retelling the story as you told it to your lunchtime companion-presumably you are doing this to yourself, in the car, in the shower, in the privacy of your office---do practice what you intend to say. If it helps to have an outline so that you don't miss any point you want to make, the outline should consist of single words or short key phrases rather than a "script" of your argument. A "script" is a crutch, and if you have a crutch, the temptation to use it will be almost insurmountable. And if you do use the crutch, you will distract the jury's attention away from what you want them to hear and instead focus their attention on how hard it is for you to say what you are trying to say. Instead of seeming like "recitation"-which you certainly should not do-rehearsal simply makes you more comfortable saying the right words-the words that flash like lightning-which may not be words you are called upon to use every day. Rehearsal of your argument is like a singer doing scales. If one of the investors who lost money with George Investments is named "Pulichino," you'd do well to learn how to say the name before your opening statement, It's practicing what you will require of your voice and articulating what you will require your mouth to express. And while you practice telling your story, pay attention to your body. Try to improve the quality of your physical presence. In this case. familiarity breeds comfort, not. contempt.

In addition to practicing by yourself, deliver your argument to others. One possible audience is your colleagues at your firm. Videotape your presentation to your colleagues for two reasons-first, it will keep them from interrupting you, and second, you can review your own delivery later. Keep in mind, though, that since lawyers (1) tend to be hypercritical, and (2) are a more sophisticated audience than your jury is likely to be, they should never be your only rehearsal audience. Although you should trust them enough to rely on them to give you honest feedback, theirs is not the most important feedback you need. If you can, impose on a couple of your non-lawyer buddies, your teenage children, or (if you're extremely blessed) a patient spouse to listen to you rehearse. From these potential audiences you'll get feedback about whether you're using words that are not easy for the ordinary person to understand, your grammar is a bit off, or your story

raises questions that you should answer while you tell it. If you can afford it, engage an acting or speaking coach to work with you for an hour or two-an investment that can make a huge difference in your confidence and your delivery. In any event, it's true that practice makes perfect.

One invaluable tip I have for you originated when I was taking my first trial practice course in law school. Together, my eldest daughter and I invented what we dubbed "the Nora Rule"-we named it in her honor. Nora was then eight years old. If Nora could not follow my argument, we concluded, it was not appropriate for the courtroom. We practiced until I could make my point in words than Nora under-stood. It's a rule I still follow, although Nora is a grown woman, speaks five languages, and has children of her own. But if I feel that I could not deliver

an opening statement convincingly to a very bright eight-year-old, I must change my opening statement to one that is simpler, more direct, and more openly truthful.

If you intend to use props, prepare a list. Not having the right demonstrative at the right moment makes you look amateurish and disorganized. Just like the props master of a theatrical performance, your trial team needs a careful, detailed, sequential itemized list of everything you will need during trial, from demonstrative evidence boards to photographs to the page of the insurance policy on the screen. Don't forget to add your opponents' props, if you can use them to your advantage, to your own list. Review your list at the beginning of every trial day, and you or an assistant should literally see and touch each item. on the list to ensure that it is present, available, and operative. Nothing is worse than searching for something you need and not finding it, except perhaps to be searching for something you can't find while the judge and jury wait. Check your list of props before each witness takes the stand and before you begin each argument to make sure you have everything you need for whatever you're about to do.

Before the trial, practice with your props. Learn how the easel works. Memorize the demonstrative so that you can articulate what the chart shows and how it flows. Figure out how to set it up and move it without having to stop what you're doing or losing track of what you are saying. You want. the focus to be on what you're trying to convey, not on how precariously the demonstrative is balanced on its stand, or how distracting it is that the chart of all the investment accounts from which Carol stole that you just finished using has been set aside but is positioned upside down.

I have shared just a few of the tools of the actor's trade that you can employ to improve your skills as a trial lawyer. But the most important thing you can learn from this article is that you really do have the power to deliver the very best performance possible, and in so doing, to influence the outcome of your cases.

Jurors care about things that affect the lives of real human beings. They don't care about abstractions, figures, corporate responsibilities, and contractual terms. They care about right and wrong. Jurors don't want to deny George Investments the coverage it deserves. But they don't want to give George Investments coverage that the company never bargained for either. Jurors care about fulfilling their duty. Because only you can boil the complex coverage case down to its essence, only you can guide the jurors through the facts ands figures, abstract concepts, corporate complexities and contractual minutiae to see the human motives and human impacts

that can allow them to determine what really is right or wrong. It is your job to convert the facts and law into a believable and compelling tale that will carry your jury to the right conclusion.

Using the tools discussed here, and with a little practice, you can use "the spellbinding power in words" to persuade juries of the rightness and justice of your cause. All you have to do is play your part.

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Kathleen Havener began her sojourn in the law in 1988 when her daughters were 8, 5, and 4 years old. A 1991 honors graduate of Harvard Law School, Kathleen is convinced that she is the only person ever to have successfully completed her IL year at Harvard while simultaneously serving as Cookie Chairman of a Brownie Troop. A litigation partner in the law firm of Hahn Loeser + Parks LLP in Cleveland, Ohio, where she has been practicing for 10 years (after 6 years of practice in Washington, DC), Kathleen focuses on complex commercial litigation including multi-district litigation, securities fraud, tax controversies, insurance coverage, employment disputes, and appeals. Kathleen is currently Co-Chair of The Woman Advocate.