ZMF Litigation Consultants

As a jury consultant, I am often asked to assess the credibility of potential expert witnesses. Recently, the subject has been raised of what to do about an expert who has been excluded from testifying in a prior case(s) due to Daubert v. Merrell Dow Pharmaceuticals. 

  First, what is the downside of hiring an expert witness who has been excluded from testifying in whole or in part for a previous case? Probably none. As long as the expert has a more extensive list of cases for which he or she has been qualified as an expert, there should be little to no concern in retaining such a person. If the opposing side manages to put in front of the jury the cases in which the expert was not allowed to testify on a particular subject, it certainly means that the expert, in response, gets to trot out all of the courts where such testimony has been qualified. In fact, if you have the expert with a much longer in than out list, you may want to keep still when the other side persists with its motion to allow the jury to hear the outcome of previous Daubert rulings. A jury is more likely to focus on the number of times the witness testified, than when they did not. In mock deliberations and post-trial interviews, a typical response when asked about similar situations is, “The times he didn’t get to testify was because of some technicality. He was clearly an expert. We could all see that.”

  Second, should previous rulings be raised in the cross-examination of opposing experts? We say no. Unless the witness has lied or was found not credible for some dubious reason, it is either a non-issue (see above) for jurors, or a cheap shot. In either situation, it is a waste of precious court time.

  From a lawyer’s perspective, one knows that Daubert challenges have become near universal in certain areas of the law, such as patent damages. Decisions by courts are inconsistent on any given issue, method or fact pattern. Most highly-experienced experts will find some aspect of their opinions limited over a period of time. Motions in limiting or restricting cross-examination of all experts on Daubert rulings in unrelated cases have generally been accepted by the courts.

  But if not…there is little to fear. If you want to hire experience, it is going to come with some bruises. A bad Daubert ruling should be the least of your concerns. What should you be stressing about? Come back another time to find out. 

Congratulations to Jo Ellen, Eliza, Bill and Elizabeth for once again going above and beyond for one of our clients.  See comments below from the lead partner on the case.

There's an app(ellate court) for that! This week, we discussed #lawandtech.

Got a legal pad handy? A Princeton University study shows that lawyers retain more information when they take notes by hand. #lawandtech

Is your client data safe? ABA Journal recommends encryption tools like self-encrypting hard drives to protect confidential info. #lawandtech

Did you know ZMF is equipped with top-of-the-line technology from iPads to note-taking software to help your case? #lawandtech

Does your firm have rules against cybertheft? Alan Raul of Sidley Austin suggests formalizing rules to promote whistleblowing. #lawandtech

Debate: Does a good lawyer need to always be connected? #lawandtech

Do you know how a basketball court holds up in a court of law? This week, we discussed #SportsLaw.

Did you know that #SportsLaw deals with not only #LaborLaw disputes, but also #IPR and #liability claims?

The line b/w amateur and pro athletes is blurred by teams like Northwestern Football, who sought to form the 1st union for college athletes #SportsLaw

The #EdOBannon case is a judge trial, but the NCAA wanted a jury. Let @ZMF_LLC help you choose the best jurors for your #SportsLaw case.

Did you know in order to host this year’s #WorldCup, Brazil ratified a law permitting the sale of alcohol to appease #FIFA and corporate sponsors? #SportsLaw

Debate: Should #LiabilityWaivers for adventure sports like toughmudder be enforceable when participants are injured or killed? #SportsLaw

Can you lawfully take selfies in court? This week, we discussed #CamerasInTheCourtroom.

Did you know in IL, 14 Circuits allow media coverage in their courts? The full list of camera-friendly courts is at http://ow.ly/ybhL0

Did you know witnesses cannot be compelled to testify in IL courts if their testimony will be broadcast or televised? #CamerasInTheCourtroom

Jurors are forbidden from taking photos in court. We can help you create meaningful visuals that jurors will remember #CamerasInTheCourtroom

Did you know Utah is considering requiring anyone wishing to videotape divorce proceedings to submit justification? #CamerasInTheCourtroom

Debate: Do #CamerasInTheCourtroom help the public understand the legal system, or do they jeopardize effective court proceedings?

This week, we discussed jury mistakes and the importance of careful jury selection.

In June a hung jury acquitted a defendant by filling out a Not Guilty form by mistake. Defendant was killed 1hr after release. #JuryMistakes

Did you know a murder jury in 2006 gave a guilty verdict when they meant to say the defendant was only guilty of manslaughter? #JuryMistakes

Did you know we offer expert Jury selection services to avoid #JuryMistakes? Our Voir Dire and Influencer Model help us pick perfect jurors.

Did you know Darrell Williams’ case was thrown out b/c of #JuryMistakes? Jurors made visits to the crime scene and discussed observations.

Judge Hamlin of Fresno cautions against selecting a "June jury" made up of college students. Do you think younger jurors pose a greater risk of #JuryMistakes?

I once believed that when being deposed, the best strategy was to answer the question as tersely as possible. After all, the purpose of the deposition is to know what the other side knows. But then, it all changed. Along came the camera. Moving pictures — the legal field’s version of Hollywood.

It is an attempt to level the information playing field. You get to see inside their file cabinet, and they get to see inside yours. There was no need to wear a suit, sit up straight or be polite. Each side just hunkered down for a few hours or a few days; one side digging and the other side dribbling until it came time to switch roles.

The prep sessions back in the day were not all that difficult. Sitting down with the witness, showing him or her the documents that might be launched at them, reminding them to tell the truth and replaying the metaphor — “If they ask you what time it is, give them the time, but don’t tell them how to build a watch” — was the common strategy. We reminded the witness that the opposing counsel is not a friend, to listen to the question, to allow time for an objection, etc. But then, it all changed.

Along came the camera. Moving pictures — the legal field’s version of Hollywood.

Precisely when video first got introduced into the deposition arena is unclear. I do recall video while working with witnesses in the MCI v. AT&T trials around 1984. So the legal industry has had no less than 30 years to perfect the technique for video deposition. Yet in only the last month, in big — no, huge — lawsuits, have video depositions been produced with no apparent consideration that the witness was onstage. Most of the time, it is done well. But why is it not done well at all times?

The rules for a good video deposition are pretty simple:

1. This is the witness’ testimony. In most courtrooms, the jury will be allowed to view parts, if not all, of the deposition. A video-recorded deposition is not a warm-up. It is the real deal.

2. People have an expectation for what is viewed on a screen. The bar is high. When a witness does not meet that expectation, the witness fails. This could reference performance or technology. Meet the expectations of quality visuals and clear audio.

3. In a deposition transcript, the record does not show who the witness is speaking to through either tone or posture. This is not true for video. A few ordinary citizens giving up time in their own lives to solve the conflict that the litigants are unable to resolve themselves are going to pass judgment on that person in that video. The audience is the jury.

4. Video exaggerates everything that is bad. Suddenly, a tight frame is around the witness, boxing in every bad, quirky and micro behavior. Leaning back in the chair adds 20 pounds to the witness and gives the air of disinterest. Ordinary eye movement becomes “shifty eyes” when occurring side-to-side. This list goes on and on. Any verbal or non-verbal behavior that is sometimes nothing more than a common imperfection becomes a giant, distracting fly crawling across the 10-by-10-foot screen as it is being played in the courtroom.

5. “Yes,” “no” and “I don’t know” are not responses that give an air of cooperation. A favorite instruction of mine is to advise the witness to say as little as possible and yet be truthful. Some believe that, while this may not be good courtroom testimony, the teaching can be undone when and if it is needed. Nope. That uncooperative-appearing “yes,” “no” or “I don’t know” all too frequently ends up making an important witness look unknowledgeable or untruthful to the observer of the video. It is difficult to change an impression once it is locked into my 45 minutes of face time.

6. Pay attention to what a witness wears. Men are generally easy. They should simply dress as if they were testifying in court — the exception being the necessity of a necktie. Uniforms and work clothes might also work in certain situations. Women have more choices and thus more potential for error. Part of the video pretest should cover how the witness appears, visually, before he or she even begins to speak.

7. Practice in front of a camera. Some people freeze when the red light starts blinking; others forget it is on. Neither is the best strategy. A witness should be relaxed, but not so much so that there are shots of repetitive scenes of guzzling out of a water bottle, head scratching, nose tweaking, etc. Ideally, the witness is engaged, using hand and head gestures while being cognizant that they are making a movie.

8. Check camera angles. Most videographers understand that filming the witness’ ear is not good camera positioning. It takes but a moment to make sure.

9. Watch a witness on video before proffering standard advice. For example, we recently watched a witness who had either been told to pause and count to two or was given some direction that caused so much pregnant pause between the question and the answer that all viewers were physically leaning forward in their chairs as if to help the witness deliver. After only 20 minutes, the whole room was laughing at this man’s expense.

No deposition is perfect. But it is better to have to deal with content alone than have the additional burden of poor presentation which could have been easily avoided.

Have you heard about Illinois’ new "Cupcake Law"? This week ZMF talked about laws surrounding #SmallBusiness.

Did you know that IL home cooks can sell their goods for up to $1,000/month without regulation? What dish could you sell?

According to wsj, #SmallBusiness employers in 18 states only have to offer employees one health plan choice under the Affordable Care Act.

Did you know patent claims rose 12.4% in 2013? wsj reports more states are rewriting laws to protect #SmallBusiness from #PatentTrolls.

For #SmallBusiness, Dept of Labor restrictions can make an unpaid intern more of a burden than a boon. What do you think?

Debate: What will the minimum wage hike do for small business in Seattle?

Theresa Zagnoli PR Insider July 2014

First comes the accusation: an employee is claiming discrimination, a customer has died allegedly due to a product, there has been a large public incident with injury to people and Mother Earth, or an ongoing patent dispute is getting close to trial.

There are three basic strategies one can employ:

No comment (anyone in today’s world of connectivity still saying ‘no comment’ to questions about litigation is providing a petri dish for public disdain);

Deny all allegations; or

Speak with a level of transparency that is genuine, but non-argumentative.

It is the latter that makes most C-suites begin to sweat and likely for good reason. There have been more damaging statements then helpful ones over the years. For example, recall the CEO of a major pharmaceutical company being quoted on the front page of The Wall Street Journal in response to allegations that a widely-used drug was showing life-threatening side effects, igniting hundreds of lawsuits. He said, “It is not always about safety.” What he really should have said is that, “All medicines have some level of danger associated with them, and sometimes the risk of taking a medicine is a better choice than leaving a disease of conditions untreated.” This would also have given him the benefit of the doubt that he did not believe that his company should be producing unsafe products.

The following tips will help keep the damaging statements at bay and protect the company name:

Attitude is everything. The specific language used will be different for every type of litigation, but the attitude is the same. The company is problem-solving, investigating, and preparing its courtroom presentation, all with a smile on its face. Never show anger or contempt that the company is involved in litigation. Be a hero, not a victim.

Defend the brand, but acknowledge that sometimes mistakes are made. Either way the company will get to the heart of the problem if there is one and implement a remedy if one is needed.

Consider all of the population segments that are listening. Too many companies are most concerned about Wall Street. But often, the investor message is too harsh or too defensive for customers, suppliers, a potential jury pool and employees. A consumer brand such as Kraft would need to address both its stockholders and its customers. One group wants to hear that their investments are safe, and the other wants to hear that their children can still safely eat macaroni and cheese.

Plan to be in court. Even if there is a strong belief that the litigation will be solved without a jury or bench trial, consider the feelings every statement is going to provoke when it is blown up on a 10’ x 10’ screen in a courtroom.

Speak only to your own motivations and not that of the other party. A company can be “understanding,” presently uninformed (a condition you promise to change), disappointed, empathetic, concerned, etc. It cannot be accusatory nor belittle the opponent.

Choose a spokesperson carefully and vet the statement with different segments of the company. Verbal and non-verbal skills matter more than the position. If the CEO is not made for television, then do not let him or her near the podium. If the head of PR has never dealt with a public crisis or litigation, it is unsafe to assume he will present the company’s case well.

Utilize the internet. Report when something good happens, and get on the offense if something negative occurs. The statements should be short and direct.

Be sensitive to employee perceptions. Most company litigation means that there will be employees who will need to testify. This causes angst. People are getting notices to be deposed, others are being called into conference rooms for day-long meetings. They are asked to travel, and think and speak in degrees that are foreign to them. If the case has public attention, they are also reading negative remarks about their employer.

Be inclusive. Have department or team meetings to assure the troops that the accusations are being investigated, and you need their help. In the beginning, ask people to come forward if they have information. As the months – and sometimes years – go by, provide regular status reports even if the case is dormant. The less information people have, the more stories they make up.

Words must match actions. Incongruence makes people psychologically uncomfortable, resulting in doubt as to whether what they are hearing and seeing is the truth.

Practice empathy. Walk in the shoes of those being spoken to, and the appropriate words will follow.

Companies that take the time to employ some or all of the strategies outlined above increase their chances in bouncing back from highly publicized litigation and win back the public.

Theresa Zagnoli, founding partner and CEO of Zagnoli McEvoy Foley LLC, is a leader in the field of communication consulting and has been providing practical trial consulting and communication solutions to attorneys and business leaders for over 20 years. Her knowledge of the American juror has made her one of the most sought-after trial consultants in the nation. Follow her: @tzagnoli.

Theresa Zagnoli PR Insider June 2014

We are less than 50% correct in judging our own image.  Alarming? Yes, but equally alarming is that a good portion of that failure isn’t caused by the words that come out of our mouths, but rather on our ability to communication non-verbally.  Simply put, non-verbal communication is the part of us that communicates through body position, posture, facial expression, handwriting, scent, artifacts, tension leakage, hair, nails, clothing choices, etc., and it can influence our ability communicate effectively (some argue by up to 70%).  

  There are two sides to non-verbal communication: sending and receiving.  Thus, as a leader within your organization, you must be cognizant and skillful at both.  In order to truly enhance your communication success, you must learn to communicate non-verbally as well as interpret non-verbal messages from others. 

  Below is what I refer to as the “Big Four”.  Learn to use, identify, and manage these non-verbal’s and you will put yourself ahead of the rest.  

    1.     Sitting Position

What YOU should do - Take up space to communicate that you are in control.  Put your bag on one chair and your coat on another.  Do not cross your legs or arms, keep your shoulders back and your head up.  Taking up space shows confidence, arrogance, and gives the impression that this is your turf. 

  What to look for in THEM – Context here is KEY (non-verbal interpretations context is required and yet it is rarely available).  For example, space may not relevant during a computer programming job interview.  However, change the job or context to a meeting with your right-hand person and the “reading” of the non-verbal behavior becomes meaningful.

    2.      Eye contact

What YOU should do - Force yourself to make eye contact with whomever you are talking to. Make it while you are speaking and while you are listening. Most are better at the latter than the former. Eye contact is so important because the meaning of making it and not making it is misread constantly. Shy can be misinterpreted as aloof or uninterested. A downward gaze, while one might be simply thinking, is incorrectly thought to be a sign of deceit.

  What to look for in THEM - Watch for a different gaze during different parts of the conversation. Whether the person is making eye-contact is less important than what they are saying while making or avoiding a direct look.

    3.     Artifacts

This category includes handbags, jewelry, wall paper, furniture. Too big to describe in full here.  Just think big or little.

  What YOU should do – Big and bold or little and precise depends entirely on perception and your audience.  For example, women who wear big, bold scarves, sizable and colorful necklaces, and/or large brooches are usually said to be trying to set themselves apart.  However, depending on the audience, some may think this is really just someone trying too hard to get noticed.  On the other hand, woman that wear little, pointy, hardly visible artifacts are said to be sending a message of preciseness, shyness and/or one reared with a puritan view of proper.   Big hair, big desk, big handbag, big diamonds vs. the opposite of each.

  What to look for in THEM - Look for extremes and consistency (remember, one day of smallness or bigness does not constitute a pattern). Do they appear to have different sized artifacts depending on the task for the day? Pay attention as you will learn a lot about a person if you take the time to match up the size of the artifact and the context of the situation.

  4.     Touch

What YOU should do - A tricky subject in today’s environment.  But are you a toucher or not?  Touchers, and those who appreciate touch, are more open to ideas, said to be better-adjusted socially, and of course, beloved by most. Gestures like back slapping exist for a reason and are strong shows of appreciation.  Touch things around you to make them more noticeable to the observer and when appropriate provide a pat on the back – literally.

  What to look for in THEM - Be wary of someone who stiffens or recoils from a hug or a lingering handshake – there is likely more to this than meets the eye. While it might be a philosophy, an experience, or a drive to stick to the [no-touch] rules, in any event, be aware that this person is absolutely sending a message by withdrawing from appropriate touch.

  As with all communication, verbal and non-verbal, context matters.  That said, my parting advice: if the room is cold, don’t take away anything from someone sitting with their arms crossed.

Theresa Zagnoli American Management Association June 2014

One of the psyche’s greatest fears is rejection. Ask for a raise; get turned down, ergo, rejection. It is often easier on the ego to wait for the annual handout, if there is one. There are many theories regarding asking for a raise. There are also as many variables determining whether you will be given a raise. The number one variable is likely who you must negotiate with. So, instead of telling you how to ask for a raise, this is how to minimize the chances of being told no. At least by me.

In today’s economy, raises are not being handed out on a regular basis, or they amount to less money and benefits than one would hope. Do not despair. While there is no magic to it, you are more likely to get consideration for your request for more compensation if you at least don’t bumble it.

Timing, timing, timing is everything. Realize that asking for a raise when unexpected by management causes conflict with your manager, his manager, and so on. For those of us determining compensation, people asking for raises out-of-turn wreaks havoc on the budget. We are more likely to just say no, rather than go find money. Thus, the first step is to have some understanding of the company finances, the fiscal year, how salaries are determined, the bonus plan, etc.  Is the company on budget, losing money, or rolling in dough?  Are there any plans in the near future for large capital expenditures? Have there been layoffs? If your company is not well-structured or does not communicate these details to its managers, then ask. You need this information to formulate your plan.

Next, put your raise profile together. Dust off your job description and figure out if you have been doing the tasks listed, and more importantly, doing them well. If it says at the bottom of the page that “any and all other needs to make the company run smoothly and look good” and you recently refused to stay late to help support staff on a large project, or walked past a dead plant for a month without saying or doing anything, reassess your job fulfillment. Esprit de corpse. My favorite passive-aggressive example of this is the employee who has her coat on but stops by my office on her way out to ask if there is anything I need. Duh. This is not team play. There is nothing that feels better than to reward someone who is company-centric. Everyone benefits from such an employee. Make these efforts visible and add them to your raise profile.  

Determine what you have contributed to the company since the last look at your salary. Have you taken on on more responsibility with or without a raise the last go around? Recommend what more you can do. If you have not been offered more money, it is likely that (unless there are severe financial reasons within the company) you are being paid what someone believes is the correct compensation for your current contribution.

Once you have profiled yourself on paper, write an email to the person you want to meet with. Ask for a meeting to discuss a salary increase. Attach the major points you intend to discuss. The reason for this is that most individuals do not determine salaries on their own – even if they have the authority to do so, they will want to confer with others. With your memo in hand, your request can be discussed with the necessary people. It saves a step. The benefit comes when you meet, the manager is able to say something other than “I will look into it and get back to you”. Remember that this is a negotiation – you want to do everything you can to stay at the table.

Like most CEOs, I want to pay a person as much as I am able to. Reduce the chance for rejection by avoiding the following ten mistakes:

Ignoring the importance of timing. This is crucial. The number one reason I do not respond positively to a raise request is because people choose the wrong moment in the day, the week or the year. If the company is scraping money together to build new software, every penny counts. If the banker has just left the building, test the air. If you just screwed up a project or made a noticeable mistake, even if not a deadly error—forget about it.

Not quantifying your contribution – it’s all about the money. In a public company, there is an obligation to the stockholders. They make money first and everyone else makes money second. In a private organization, even under a benevolent dictatorship, money does not flow freely. The smaller the company, the less cash flow. The less cash flow, the more difficult it is to dip into the compensation budget and give a raise. If you are doing something or intend to do something to increase that cash flow and can show it, a raise is much more likely.

Not coming prepared – do your homework, write the memo, be able to talk about the company, not just yourself and what you do and how much money you want.

Asking the wrong person hoping he or she will deliver the message for you – they won’t.

Apologizing. A raise is not a hand out. It can be a win for both you and the employer. Again, if you are an asset to the business, then I want you to have as much money as possible. Sit tall in your chair, wear your best outfit, and show up big.

Thinking you “deserve” more money – you don’t.

Mentioning your needs: a bigger home, better car, etc. – I don’t care if you live in a cave.

Talking about what someone else earns – not only bad taste, but dangerous.

Threaten to quit – you won’t, or if you do, I won’t care.

Complaining about your workload – try mine for a week.

Check out our social media recap from this week about email security featured from The Philadelphia Lawyer.

@ZMF_LLC discusses whether your email is secure & confidential when sending through #Gmail, #Yahoo, #Hotmail. #ThePhillyLawyerMag @danieljsiegel

Lawyers can no longer claim #techignorance in ref to #emailsecurity #RulesofProfessionalConduct says  #ThePhillyLawyerMag #emailsecurity

Did you know Google’s Terms of Service they can read your confidential client emails? #Privacy #Noconfidentiality #ThePhillyLawyerMag

Avoid #techignorance tip 1: Take precaution to prevent hackers tapping into your office network. #Useprofessionals #ThePhillyLawyerMag

Avoid #techignorance tip 2: Use only secure and ethical services to store client info in the cloud. #ThePhillyLawyerMag

Avoid #techignorance tip 3: Before sending email to #Gmail, #Yahoo, #Hotmail accounts, read and reread the terms and conditions. #beinformed

Check out our social media recap from this week about ethics and professionalism in social media featured from ABA Journal.

Monday: #Lawyers CAN look up info on jurors via social media but CANNOT connect or friend them says @ABAJournal . Agree? #SMLaw

Tuesday: According to @ABAJournal, network setting notification to the juror saying that a #lawyer has viewed their info is NOT a violation #SMLaw

Wednesday: Debate – Do you believe a #lawyer should be able to hire a company to investigate juror’s #socialmedia profiles prior to trial? #SMLaw

Thursday: #Judges should advise jurors that their backgrounds and social media profiles might be investigated by #lawyers. @ABAJournal #SMLaw

Friday: #Lawyers must take action if they discover criminal or fraud conduct via #socialmedia by a juror related to the proceeding per abajournal

Theresa Zagnoli Chicago Lawyer Magazine May 2014

Ah, the art of sarcasm. To some, it is the lowest form of base humor. To others, it is a tool honed to a razor’s edge.

And in the middle are those who try, sometimes unsurely, to hit the target on occasion but mostly fail due to malice, poor timing or using the overused.

The English are indubitably sarcastic and proud of it. In America, it is likened to a form of bullying, yet it remains pervasive in our culture.

In an India Times article, sarcasm was said to be “better than killing people.”

Even the medical community has an opinion on sarcasm. Listening to sarcasm makes the brain work hard, and an inability to understand sarcasm may be early signs of brain disease. Poor Dr. Sheldon Cooper.

It has been written that if you give up sarcasm, you will be in a better mood. But the same has been said about wearing a ponytail. And there are plenty of sulking ponytail wearers out there.

If you are a fan or have ever watched “Family Guy,” there is enough sarcasm to fill a website, which is exactly what people have done.

You can go online and find an entire site dedicated to “Family Guy” sarcastic quotes. Most of these lines are mean, sexist, racist, homophobic or just flat out in bad taste and cannot be printed here.

They fall nicely into the bullying category, but the show has millions of doting disciples. The same goes for most adult cartoons. Anyone see “South Park” lately or any time over the past 10 years?

But sarcasm is not limited to characters in animation. During almost every episode of “Big Bang Theory,” there was a nod to teaching Sheldon sarcasm. He was just not wired to grasp it.

So should we or shouldn’t we? Is it funny or isn’t it?

The word “sarcasm” is a derivative of a Greek word meaning “to tear the flesh from.” Ouch.

That should be enough to support those who say sarcasm is nothing more than hostility trying to hide behind a failed attempt at humor. But then, what happened to all those old Groucho Marx movies?

He was actually thought to be the all-time master of sarcasm. His attack was direct — it was meant to make the other person look foolish and the audience laugh.

For example, “I have had a perfectly wonderful evening, but this wasn’t it.”

Oscar Wilde was another skilled sarcastic person and was generally less exact in his target. As in this arrow that shot not at a person but a whole generation: “I am not young enough to know everything.”

Then there is tired sarcasm that we hear almost every day: yeah right, big deal, aren’t you special, nice job, yuh think, really.

Surely we can do better than the tired and the mean but still find a place for a witty yet biting remark now and then.

If you are by nature a sarcastic person, know that there are many, many people who don’t get you or don’t appreciate you. In spite of there being a Sarcastic Society, the greater weight of the evidence falls into the use-it-sparingly category.

To strangers, you appear to be unkind; to those close to you (even if they are familiar with your humor style), it makes them laugh. But on some days, they may think you are being callous or appear to be in a bad mood. A steady stream of sarcasm will not win you friends or influence people. Too much of a bad thing.

Sarcasm, irony, cynicism, mockery and scorn do not translate well to paper, across socioeconomic levels, over geographical differences, to different cultures or even between genders and age groups. That leaves you with a pretty thin receptive audience. Or as a sarcastic person would say, that leaves you with such a vast audience. Never use it in the courtroom, in marketing, when meeting your future in-laws or if your real intent is to be cruel and not funny.

So then when on Earth can we use sarcasm and not be flicked into the dregs of society and be cast as an anti-social outcast?

Do use sarcasm against a bigger older sibling, who you can only attack with words, infrequently and to make a point by stating the opposite.

Then of course, maybe your big brother can’t handle it and may not be able to survive such hard sarcastic vitriol … bazinga!

Theresa Zagnoli Chicago Lawyer Magazine March 2014

Is being a lawyer a hindrance to one’s ability to communicate? This is counterintuitive to what most believe to be true. Yet, the sentiment keeps popping up from within and around the profession. To investigate further, I sought empirical evidence to support or refute the critical comments being made.

The well-known Meyers Briggs test results, published in 1993, found that both male and female lawyers fall into one category, INTJ, fives times more often than the general population. Female lawyers as a group of their own were seven times more likely to be attributed with these leadership styles. INTJ stands for Introverted, Intuitive, Thinking, Judgmental.

  Hildebrandt Baker Robins, a legal consulting firm, conducted the second most widely published lawyer personality test. According to the Hildebrandt study, lawyers are:

High scorers on learning, "suggesting that they value education and enjoy academic activities";

Self-critical and temperamental;

Lousy on interpersonal sensitivity. They are task-oriented and speak their minds, coming across as "cold, critical, and argumentative";

Easily excitable, "becoming tense and overly critical";

Cautious to the extent they have a hard time taking risks and making decisions; and

Resistant to authority and skeptical of others.

  Of all those factors, lawyers scored particularly poorly on interpersonal sensitivity, says Larry Richard, a former Hildebrandt psychologist who conducted the research along with psychologists Jeff Foster, Mark Sirkin, and Lisa Rohrer. Dr. Richard notes that "They [lawyers] always argue with me about it [the findings], and they do it in insensitive ways, like, 'Oh, this is so stupid'.” Are you getting the idea as to why lawyers might not be the best communicators in light of their own personal assessment?

A number of years ago, we conducted our own a poll asking lawyers who considered themselves to be active courtroom lawyers (an n of about 1600), to rate themselves and other lawyers as to their respective abilities to communicate. Nearly all of the lawyers thought themselves to be “excellent” communicators while they rated those lawyers around them to be good or average. These results are a solid endorsement for my oft-quoted statement “you are only 50% correct at knowing your own image.”

  A lawyer who is planning to run for Congress for the first time is cautioned not to be “too lawyerly”. For example, lawyers, by the nature of their jobs, are keepers of secrets. Secret people are off-putting. They show they don’t trust you, which discourages you to trust them. Surely you have sat in the conference room and watched as one member of a trial team gives the sideways glance to another, or the whisper meant for one set of ears only, or the obvious removal of the conversation into the hall, and the most offensive, asking persons to leave so the conversation might be continue into ‘secret’ topics.

  Lawyers find this standard practice because of confidentiality needs of the profession. It also has significance because when an associate rises to the level of being the one not getting kicked from the table, it means her or his stock has increased. Unfortunately, these actions become communication habits even when not necessary. To be persuasive, one must self-disclose, which is the opposite of keeping your own counsel or confidentiality. If Hildebrandt is correct in concluding that lawyers are cautious to the extent that they are “skeptical of others,” and the MBTI accurately labels lawyers as introverted, these traits could be what drives resistance to self-disclosure and inclusivity. This particular lawyer/candidate will need to learn to ignore his natural instincts and use the self-disclosure tool aggressively if he expects to bond with his constituency and win an election.

  What makes a lawyer a less-than-desirable jury trial witness? This has been a long-held criticism of members of the legal profession. The judgmental and argumentative behaviors, as cited above, are two attributes not suited for the witness stand. Students of the law love to argue, especially those with a trial practice. It is sport, it is intellectual exercise, and it is the lifeblood of their success. In the arena of persuasive communication, these traits are eschewed and not valued.

  Dogged, dog with a bone, persistent, tenacious, and determined are all descriptors of the lawyer you want in your corner, whether when making a business transaction or facing down an adversary in court. The disconnect between this lawyer and successful communication is that none of these descriptors lend themselves to embracing the tools of persuasion and good communication. Instead, they are translated into obstinate and stubborn.

  The moral of the story here is to be aware that what drew you to the legal profession may eventually deter from your success as situations call for the use of flexibility, sensitivity, openness and self-disclosure, among other implements of persuasion.