Articles Posted in General

A spurned man was recently on trial for posting threats against his ex on FACEBOOK. His defense? The “threats” were just a joke, and she should have known it. To support this claim, he pointed to certain emoticons (a facial glyph, used especially in e-mail and online posts, indicating an emotion or attitude) that accompanied the “threats”. For example, there was one of a face with a tongue sticking out. This emoticon meant the “threats” were in jest, he claimed.

The prosecutor wanted the threatening posts “read” to the jury, but the man’s lawyer – wisely – wanted to bar any open court “reading” of the posts. He wanted the jury to only SEE the posts so they could take into account emoticons. The man’s lawyer argued that it would be unfair to merely read in court the posts because the accompanying emoticons could not be “read” aloud. The jury would hear the “threat” without “hearing” the accompanying (and mitigating) emoticon. The posts had to be SHOWN and only SHOWN to the jury!

The lawyer had a point. Certain forms of writing — like repeated question marks (“???”), distorted words (like “soooo”) and emoticons — can’t be reliably or adequately conveyed orally. To do so distorts the meaning.

A good personal injury trial lawyer is a good story teller. That’s what it takes to win a trial. A trial is really about competing stories. Whichever side tells the best, most compelling, and most believable story, wins.

That’s why a good personal injury trial attorney shuns boring power point presentations with bullet points. Charts, graphs and bullet points are ok to a certain extent. But they had better be quick, colorful, and add to the story.

Why are stories so powerful at persuading juries? That’s just the way us humans evolved. Ever since we learned to speak we have been sitting around the fire telling stories that explain everything: The beginning of the universe, the cause of thunder, the creation of us humans. We are hard-wired that way. Our brains “perk up” when we start to hear a story. We pay attention. We get emotionally involved.

Last Friday I argued an appeal in the Second Circuit Court of Appeals at 40 Centre Street in Foley Square in downtown Manhattan. I had not done that I quite a while (a decade?).

When you are used to arguing appeals in State court, a Federal appeals court is somewhat intimidating and awe inspiring. But what first impressed me was the security. It is much stricter even than an airport. I flashed my attorney I.D. to the guards, fully expecting to avoid having to subject my possessions to scanning via the conveyer belt. I was wrong. My attorney I.D. was worthless in that Courthouse. Worse, I was told I had to leave my I-pad, I-phone or any other electronic device with Security. No exceptions.

My heart raced! I had my Brief, my notes, and even the entire Record on Appeal for my case in my I-pad. Then I remembered I had outlined my arguments the old-fashioned way on a yellow legal pad, too. I checked to make sure the yellow pad was in my brief case. Whew! It was there.