Setting the Stage for Success at Mediation, Act 2: Preparing the Defence

/in /by

Preparation, Preparation, Preparation…

As with all other aspects of litigation, preparation for mediation is the key to a successful result.  It starts as early as choosing the most opportune time for the mediation – when your client’s case will be at it optimum – and selecting the most appropriate mediator for the case.

Selection of the mediator is an oft overlooked potential advantage.  Rather than adhering to any name on a rote list of acceptable mediators, careful consideration of the specific mediator best suited to mediate the unique dispute is a worthwhile exercise.

Do you need a mediator with subject matter expertise-one who will be evaluative and express an opinion on a critical, central legal issue you believe to be favourable to your client?  Or would a facilitative or hybrid mediator (a cross between an evaluative and facilitative mediator), who is knowledgeable and experienced, but who has the personality capable of getting to the bottom of the real interests driving the parties, be better suited?  Would your client benefit from an empathetic mediator who can make a personal connection with your client or with the plaintiff?  Would the age or gender of the mediator make a difference?  These are but a few of the considerations that should factor into your selection of a mediator.

Also remember the importance of instilling in your client confidence in the mediator selected, as this can be invaluable in the course of the mediation when the mediator’s input, views or opinion are being weighed.  Time invested in enhancing the mediator’s authority with your client will pay off many times over when crunch time comes.

Once your mediation has been scheduled maintain open lines of communication with opposing counsel.  Often after a mediation has been scheduled, counsel don’t speak again until the day of mediation.  But thorough preparation entails knowing your opponent.  Stay in touch with counsel; talk about the file and the issues involved- it is to your advantage to understand how opposing counsel views the case and to discern the knowledge, experience and tactics of your opponent.   What better way to know your counterpart than by keeping the lines of communication open and by speaking regularly with them.  As defence counsel, you should ensure that between the time of scheduling the mediation and the actual day of the mediation, that you remain in the best position to settle your client’s case in the most advantageous fashion.

This includes ensuring that you obtain full production of all relevant documentation and information, both from opposing counsel and also from your own client and potential witnesses.  Make sure that you receive all opposing expert opinions in a timely fashion-such that you are in a position to report to your client and to retain a responding expert with sufficient time to author a report in advance of the mediation.

Timely disclosure can be achieved by entering into a timetable for delivery of materials with opposing counsel at the same time as the mediation is scheduled.   Counsel are far more likely to adhere to a schedule which they personally agree to, or to subsequently agree upon a timely cancellation and rescheduling in the event that there is an inability to meet the original timetable.

The next step in the process of preparing for a successful mediation is one of the most important, if not the most critical step-clearly and concisely conveying to your client a detailed analysis of the potential outcomes.

This analysis should include:

  • an assessment of the strengths and weaknesses of your case, both from a legal and evidential perspective;
  • the chances of success or, put another way, the risks associated with proceeding to a trial outcome;
  • the realistic potential range of damages that might be proven and/or awarded;
  • the costs associated with proceeding forward with the case in the absence of a negotiated resolution, including the potential costs payable to the other side if the case is lost as well as the potential recovery of costs if successful;
  • and finally, the range of settlement authority being requested in order to resolve the case.

A very careful analysis of these issues will allow the defence to appreciate the downside risks and to be in a position to mount the best available case, but at the same time, to have sufficient funds to reach a suitable compromise.

This analysis should be prepared and forwarded to your client well in advance of the mediation so that your client is able to obtain the requisite settlement authority.  This may be of particular importance where the client is an insurance professional who will require time to report up the chain of command and to obtain settlement authority.

Typically defence counsel and the client do not meet until the morning of the mediation to discuss the strategy to be employed at the mediation.  However, it is better to have that strategy discussion, at least by telephone, before arriving at the mediation.  The discussion should include:

  1. the approach that will be taken during the opening statements;
  2. whether the client will participate in the opening statements and if so, how best to optimize that participation;
  3. will an apology be effective, will it be made and if so, by whom;
  4. the planned negotiation strategy;
  5. how to best utilize the services of the mediator;
  6. what aspects of the case might be compromised; and
  7. ideally, where the client would like to end up.

Discussing your plan of attack in advance can result in a much more effective negotiation and ultimately a better result.

For the defence, perhaps even more than the plaintiff, engagement in a mediation represents a significant investment of time, funds and legal resources.  To make sure that investment brings the best returns all of the factors above should be developed as thoroughly as possible.  This maximizes your chance for achieving a resolution that satisfies your client.  And at the end of the day isn’t that really what it is all about?

Setting the Stage for Success at Mediation, Act 1: Preparing the Plaintiff

/in /by

Preparing the Plaintiff
Improving the chances of success at a mediation requires special attention to a myriad of details beyond brief preparation and mediation advocacy. Mediation is the one place short of trial where the parties have a chance to be in the same room. It’s important to understand the ways a client can be best prepared for this opportunity.

Managing Plaintiffs’ Expectations
This process starts at the very beginning. What did you tell a client about the outcome of their matter at the time of the first retainer? If you told them that the case could be worth $X you can be sure that is what they will remember. Keeping a plaintiff regularly apprised of the evidentiary changes that impact value is the best way to ensure that they will not arrive at mediation with an unrealistic view of the claim. Doing this in writing acts as an aide memoire for yourself. Keep the client apprised of the weaknesses in their case in writing so they will not be surprised when the words come out of the defence counsel’s mouth in an opening. Explain the deductible and threshold regularly as well as the attendant risks of trial, especially the cost implications of offers and bad results. Educate a client on what their pre-accident clinical notes actually say and the impact on credibility.

Pre-Mediation Meeting

If you have been actively managing expectations with a plaintiff, you will not have to spend much time analyzing the strengths and weaknesses of the case, including threshold and deductible, prior to a mediation. Instead, you can concentrate on the expected range of results, emphasizing that it’s a range. Lawyers don’t have crystal balls, but experience and attention to reported cases guide counsel to a recommended range. Ultimately, the decision to accept a figure that is less than the low end of the range is the client’s prerogative, and they should be aware of this option. A lawyer can never guarantee any outcome at a trial.

Explain what the role of a mediator is to your clients. Mediators are not judges or decision makers, but they have considerable experience in the subject area and a client should listen carefully to the questions a mediator asks and the messages delivered in caucus.

Clients need to understand the physical setting of mediations. They should know that mediations begin in a face-to-face meeting with the other side, and that the opposing lawyer will have an insurance professional with them. The mediator will start with an opening directed largely at the plaintiff. The reason for this is that the plaintiff is likely the only person in the room who has never attended a mediation.

Following the mediator’s opening, plaintiff counsel will make an opening statement. Remind the plaintiff that they will likely agree with everything their own lawyer says but, if they hear something that they don’t agree with, they should wait until they are alone with counsel to discuss it. Following the plaintiff’s opening, the defence lawyer will then share an opening statement. It’s likely that a plaintiff will disagree with nearly everything the defence says, but it is nevertheless important to listen carefully to understand the opposition’s case. Interruptions are not permitted, as everyone must be heard.

After the openings, there is usually the chance for the plaintiff to say a few words, if this is of interest. Unlike discovery, there is no requirement that plaintiffs speak, but this is the only time in the process that they can speak directly to the decision maker on the other side. They should be told that if they want to respond directly to a comment from the other side that they should do so in a calm and sincere manner. Histrionics are rarely persuasive. If the plaintiff chooses to make an opening statement, it should be crafted ahead of time and reviewed with counsel beforehand.

Once the openings are finished, the parties will separate and head for their own rooms where the negotiating begins. At its essence, a lawsuit is a commodity to be sold by a plaintiff to a buyer, who is the insurer. A client needs to understand that the only compensation that the system has to offer is money, which is a poor substitute for health.

The opening figures should be reviewed with the plaintiff before the day of the mediation. A plaintiff must be told not to become attached to the numbers. As in any negotiation, the seller starts high and has nowhere to go but down. The buyer starts low and has nowhere to go but up. Do not let the defence’s opening low offer create undue pessimism. The only number to pay serious attention to is the final one.

A pre-mediation meeting is also an opportune time to remind a plaintiff of the retainer agreement’s terms. One way of doing this is to pick a number and go through the process of breaking down that number to what the client will get “in their pocket.” Go through the calculations with a principled offer that has a breakdown and an all-inclusive number. If you choose a low number to use as an example, then you are reinforcing expectation management. Indicate to the plaintiff that when numbers edge into a range that the client should consider, you will do that breakdown so that they know where they truly stand in terms of outcome after expenses and fees. Review disbursements so those figures are not a surprise when added into the mix.

Finally, it’s helpful to review the documents they will be required to sign if an agreement is reached. An instruction sheet which sets out the settlement figure and the net proceeds to the client should be reviewed. The net proceeds to client is the client’s guarantee. What they get “in their pocket” will never be less than what the instruction sheet says. They should also be reminded of any tax implications of the settlement. Minutes of settlement and/or a final release should be reviewed conceptually so that the client understands that the case is finished and neither side can re-open it.

Most cases are resolved in an alternative resolution setting with mediation acting as the cathartic substitute for the “day in court.” By managing client expectations, including the file value, the facts and issues in dispute, and what is to be expected on the day of the mediation, a plaintiff will be properly equipped to conclude their case.

Improving the chances of success at a mediation requires special attention to a myriad of details beyond brief preparation and mediation advocacy. Mediation is the one place short of trial where the parties have a chance to be in the same room. It’s important to understand the ways a client can be best prepared for this opportunity.

Managing Plaintiffs’ Expectations

This process starts at the very beginning. What did you tell a client about the outcome of their matter at the time of the first retainer? If you told them that the case could be worth $X you can be sure that is what they will remember. Keeping a plaintiff regularly apprised of the evidentiary changes that impact value is the best way to ensure that they will not arrive at mediation with an unrealistic view of the claim. Doing this in writing acts as an aide memoire for yourself. Keep the client apprised of the weaknesses in their case in writing so they will not be surprised when the words come out of the defence counsel’s mouth in an opening. Explain the deductible and threshold regularly as well as the attendant risks of trial, especially the cost implications of offers and bad results. Educate a client on what their pre-accident clinical notes actually say and the impact on credibility.

Pre-Mediation Meeting

If you have been actively managing expectations with a plaintiff, you will not have to spend much time analyzing the strengths and weaknesses of the case, including threshold and deductible, prior to a mediation. Instead, you can concentrate on the expected range of results, emphasizing that it’s a range. Lawyers don’t have crystal balls, but experience and attention to reported cases guide counsel to a recommended range. Ultimately, the decision to accept a figure that is less than the low end of the range is the client’s prerogative, and they should be aware of this option. A lawyer can never guarantee any outcome at a trial.

Explain what the role of a mediator is to your clients. Mediators are not judges or decision makers, but they have considerable experience in the subject area and a client should listen carefully to the questions a mediator asks and the messages delivered in caucus.

Clients need to understand the physical setting of mediations. They should know that mediations begin in a face-to-face meeting with the other side, and that the opposing lawyer will have an insurance professional with them. The mediator will start with an opening directed largely at the plaintiff. The reason for this is that the plaintiff is likely the only person in the room who has never attended a mediation.

Following the mediator’s opening, plaintiff counsel will make an opening statement. Remind the plaintiff that they will likely agree with everything their own lawyer says but, if they hear something that they don’t agree with, they should wait until they are alone with counsel to discuss it. Following the plaintiff’s opening, the defence lawyer will then share an opening statement. It’s likely that a plaintiff will disagree with nearly everything the defence says, but it is nevertheless important to listen carefully to understand the opposition’s case. Interruptions are not permitted, as everyone must be heard.

After the openings, there is usually the chance for the plaintiff to say a few words, if this is of interest. Unlike discovery, there is no requirement that plaintiffs speak, but this is the only time in the process that they can speak directly to the decision maker on the other side. They should be told that if they want to respond directly to a comment from the other side that they should do so in a calm and sincere manner. Histrionics are rarely persuasive. If the plaintiff chooses to make an opening statement, it should be crafted ahead of time and reviewed with counsel beforehand.

Once the openings are finished, the parties will separate and head for their own rooms where the negotiating begins. At its essence, a lawsuit is a commodity to be sold by a plaintiff to a buyer, who is the insurer. A client needs to understand that the only compensation that the system has to offer is money, which is a poor substitute for health.

The opening figures should be reviewed with the plaintiff before the day of the mediation. A plaintiff must be told not to become attached to the numbers. As in any negotiation, the seller starts high and has nowhere to go but down. The buyer starts low and has nowhere to go but up. Do not let the defence’s opening low offer create undue pessimism. The only number to pay serious attention to is the final one.

A pre-mediation meeting is also an opportune time to remind a plaintiff of the retainer agreement’s terms. One way of doing this is to pick a number and go through the process of breaking down that number to what the client will get “in their pocket.” Go through the calculations with a principled offer that has a breakdown and an all-inclusive number. If you choose a low number to use as an example, then you are reinforcing expectation management. Indicate to the plaintiff that when numbers edge into a range that the client should consider, you will do that breakdown so that they know where they truly stand in terms of outcome after expenses and fees. Review disbursements so those figures are not a surprise when added into the mix.

Finally, it’s helpful to review the documents they will be required to sign if an agreement is reached. An instruction sheet which sets out the settlement figure and the net proceeds to the client should be reviewed. The net proceeds to client is the client’s guarantee. What they get “in their pocket” will never be less than what the instruction sheet says. They should also be reminded of any tax implications of the settlement. Minutes of settlement and/or a final release should be reviewed conceptually so that the client understands that the case is finished and neither side can re-open it.

Most cases are resolved in an alternative resolution setting with mediation acting as the cathartic substitute for the “day in court.” By managing client expectations, including the file value, the facts and issues in dispute, and what is to be expected on the day of the mediation, a plaintiff will be properly equipped to conclude their case.

 

Representing Vulnerable Clients

/in /by

 

Every client is unique, and every client’s case has its own particular features.  How you deal with that uniqueness can have a large impact when trying to resolve the case.

By and large, your clients will be adults who are competent and able to give you instructions when needed.  But what about the other segment of the client population, who might be called  “vulnerable” clients?  They come in many forms:  minors, the elderly, those with a physical, mental or intellectual disability, clients with cultural differences, or any combination of these features.  To advocate successfully for these people, it’s important to be mindful of their needs.

 

Clients with Diminished Capacity

Rule 3.2-9 of the Rules of Professional Conduct speaks to your obligations to a client whose ability to make decisions is “impaired because of minority, mental disability, or for some other reason” requiring you to “as far as reasonably possible, maintain a normal lawyer and client relationship” with that client.  Although this may not be possible with a very young child, or a profoundly mentally disabled client, this Rule requires that an effort be made to establish a functional, positive, lawyer/client relationship.

The commentary under the Rule acknowledges that factors such as age, intelligence, experience, and mental and physical health may affect a client’s ability to make decisions and that these factors may change from time to time.  Thus it is always important to have up to date information on your client’s status.

The Rules of Civil Procedure also offer guidance on how to deal with parties under disability. Rule 7 sets out the procedures to be followed, requiring the appointment of a litigation guardian to act on behalf of the person under disability, which includes minors and mentally incapable persons, and mandating court approval of any settlement of that person’s claim. That requirement means that, when mediating settlement of the claim of a party under disability, the need for court approval must be kept in mind. Although the courts usually are prepared to approve a settlement where the litigation guardian and the lawyer acting in the case submit affidavit material supporting the settlement terms, it is not a rubber-stamp exercise and the court will decline to approve the settlement if it feels it is not in the interests of the disabled party.

 

Minors

Note that Rule 7.08 (4) (c) carves out a special category for a minor who is over the age of sixteen years, requiring his or her consent to a proposed settlement.  This is in keeping with other legislation, which allows a sixteen-year-old to drive, give consent to heath care and live independently. You may be retained when the minor is younger, but if they turn sixteen before the mediation and the majority of your client contacts have been with the minor’s litigation guardian (typically, a parent), you risk not having the necessary relationship to get the minor client’s consent when needed.

The best way to avoid this is to include the young person in your discussions throughout the case and especially during a mediation. A teenage client may have their own views about what is important to them, which may not be communicated through the litigation guardian.  This may happen particularly in families where restrictive social norms may otherwise preclude the young person from being included in the decision-making process.  If you have established and maintained a lawyer/client relationship with the person under disability as well as the litigation guardian, you can satisfy the twin obligations of following the instructions of the litigation guardian while ensuring that the minor client’s interests are advanced.

How best to do that?  Establish a line of communication and a pattern of inclusion long before the mediation. Explain fully the obligation to look after the minor’s interests.  Keep your language straightforward and age-appropriate. Avoid legalese.  Encourage questions.  Ask what’s important to them; they may not have a specific view, or they may defer to the litigation guardian, but they’ll appreciate that you asked.

If needed, your mediator can be part of this process.  They will be a new face in the proceeding and may be used as a resource if there are any issues of concern that arise between the minor and the litigation guardian.  The minor might want a chance to make his needs known without expressing them through the litigation guardian.  A skilled mediator can help to ensure that any differences of opinion between the minor client and the litigation guardian are addressed before settlement is concluded.

If it appears that the litigation guardian is not acting in the best interests of the minor, you may need to adjourn the mediation to allow you to determine whether it is necessary to appoint a substitute litigation guardian.  If your mediator has spent some time with your clients, they may be able to give you some insight on the dynamics between the litigation guardian and the minor client, to help you make that decision.

 

Mentally Incapable Persons

With respect to mentally disabled clients, Rule 7 doesn’t contemplate the same involvement in court approval of the settlement, but in all other respects the basic procedure is the same. Outside of the requirements of the Rule, the same principles of client relations apply.  You’ll want to determine to what extent the individual is able to understand what is going on and how much that client’s involvement is appropriate.

Depending on the level of disability, you may still be able to involve the disabled person in the decision-making process. Speak to their level of ability.  Avoid complex explanations and legal jargon. Give them the time necessary to digest the information and make their wishes known. Even if the person isn’t capable of giving instructions, it is their interests you’re advancing and they must be acknowledged as much as possible. As with the minor client, be alert for any indications that the litigation guardian is not acting in the best interests of the disabled party.

Finally, keep in mind that a person’s disability may change over the course of the litigation, for better or for worse. The client’s state of mind at the outset of a case may be quite different by the time you are setting up the mediation.  Given the goal of resolving the case, it’s a good time to reassess whether the disabled client’s condition has changed to allow more or less involvement in the process.  Prepare your client accordingly. Let your mediator know in advance what your assessment is and the extent to which your mentally disabled client can participate.

 

The Elderly

The first question might be, “Who is considered to be elderly”?  At one time, sixty-five was considered an advanced age, but don’t tell a baby-boomer that today!

In this discussion, “the elderly” are those people who are competent, but vulnerable due to the cognitive and physical limitations that may be part of the aging process, social isolation due to physical or mental barriers, or dependency on caregivers for decision-making.  While people in this group may be perfectly capable of making their own decisions, they may be unaccustomed to doing it and intimidated by the litigation process.

In most cases, caregivers are well-meaning, but may intervene in any attempt to have a meaningful discussion with the elder.  In some cases, caregivers may have their own interests at heart, and may need to be sidelined from the decision-making process.  At mediation, the influence of either of these caregiver types may be diminished or removed by having the mediator reinforce the concept that only parties to the litigation are allowed to be privy to the confidential mediation process. Consideration should be given to allow access if the elder person genuinely wants the support of a non-party and your assessment is that it would be in the client’s best interests to do so.

As with other vulnerable clients, the solution is to work to establish a relationship with the elderly client to ensure that they understand the process, know what the possible outcomes might be, and participate in the final resolution of the case.  An elderly client may be more concerned about the passage of time in a case, and want an earlier resolution than family members might want.  Waiting for a trial may not be in their best interests. Scheduling an early mediation might best suit their needs.

Take into account the person’s physical and mental endurance.  A few shorter preparation sessions, perhaps at their residence, may suit them better than a long meeting just before the mediation.  If the client lives in a facility that has meeting rooms, they may be more comfortable if the mediation is held there.

Consider whether a half-day mediation is sufficient or, conversely, whether the client will need a full day to allow for extra time to receive information, digest it, discuss it with anyone attending as a support person, and give instructions. Take breaks when the client seems to be flagging.  Once again, use everyday language, explain the process, be supportive of their needs, and above all, listen to what they have to say.

Your mediator may be more age-adjacent to your client than you are, and your client may be relaxed by seeing some grey hair around the mediation table.  Take advantage of that to help set your client at ease in an unfamiliar setting.

 

Conclusion

Vulnerable clients are entitled to legal representation as much as any other person, but they have special needs. In cases of legal disability, legislation speaks directly to that standing.   All have the right to a lawyer/client relationship, but it is your training and experience that will determine what form that relationship takes. In most cases, the litigation guardian, family member or caregiver assisting the vulnerable person will work for their best interests, but in situations where they don’t, you may have the task of protecting the vulnerable client from those who should be protecting them.

The expression “Don’t judge a book by its cover” is particularly apt.  Each vulnerable person is an individual with unique needs.  Your job is to determine how best to advance that client’s case, taking into account those needs and determining how to make the legal system work best for them.

Mediator Ethics

/in /by

Quality lawyers adhere to multiple layers of ethical and good conduct guidelines as part of their daily practice. Some in the legal field suggest mediators exist in the wild west, with no rules or boundaries governing their work. Nothing could be further from the truth. Mediators who are also lawyers are bound by the same ethical standards as their peers. Those who serve the legal community must conform to their own specific ethical norms to be effective, trusted, and meet regulatory requirements. A careful balancing of interests and adherence to ethical boundaries is mandatory. While there’s no over-arching regulatory body for mediators in Canada, there’s an abundance of guidance offered by the courts and governing professional bodies.

For example, the Ontario chapter of the Canadian Bar Association has produced a Model Code of Conduct based on the five critical pillars of ethical and fair mediation practice. For matters mediated under the Mandatory Mediation Program, this code is binding and failure to adhere to it could result in removal from the Roster. Even for mediators who don’t work in the roster environment, the code offers strong guidance, and mediators ignore it at their own peril.

The first pillar is the Principle of Self-Determination. This mandates that the process belongs to the parties and decisions leading to any possible resolution shall be voluntary and non-coerced. In this context, the parties must clearly understand the non-binding role of the mediator, and the mediator must avoid providing any appearance of legal advice to the parties. When necessary, mediators also have a duty to advise parties to consult other professionals to help them make informed choices.

The second pillar is Impartiality. Suffice it to say that neutrality can never be compromised during the process. Once this happens, mediators can no longer function properly. It’s critical for mediators to identify cases where they may lose impartiality so they can decline those assignments or withdraw from the retainer as early as possible to avoid any disruption or inconvenience for the parties. That said, mediators can form opinions on risks or merits and express these opinions at the correct time. But mediators must remain unbiased between the parties, their interests, and the settlement options everyone wishes to discuss and consider. For further discussion on this issue, read Neutrality of the Mediator, The Coin of the Realm article.

The third pillar is the disclosure of Conflict of Interest. In cases where mediators identify a conflict of interest or a potential conflict of interest, they have a duty to disclose the issue to all parties as soon as possible. After disclosure, the mediator should withdraw from the case unless a fully informed consent for the mediator to continue is obtained from all participating parties. Even then, withdrawal is usually the most prudent choice.

The fourth pillar is Confidentiality. Trust is the foundation for all effective mediations, and it cannot be maintained unless the parties understand their discussions will remain confidential. The mediator cannot share information or documents with anyone who is not part of the process. While there are certain limitations to this duty (consent, order of the court, potential threat to human life), the parties cannot effectively discuss their needs with the mediator if there is a risk that information may reach those outside of the process. Mediators also need to ensure the parties understand the parameters for any information sharing that is revealed in caucuses.

The fifth and final pillar is Quality of the Process. This element covers a number of areas linked to providing a fair and effective session. The mediator must ensure the parties can clearly understand the mediation process and also have a real opportunity to participate in it. This means that linguistic and other barriers to full and voluntary participation in the negotiations must be carefully analysed and overcome before the process goes ahead. In cases where a particular technical or legal background is needed to effectively mediate the matter, the mediator has a duty to ensure they can provide the requisite level of skill and knowledge that the matter deserves.

While there are many other professional guidelines mediators can adopt to enhance the quality of their practice, the CBAO Model Code provides an excellent structure to understand the ethical restrictions that protect the parties from being subjected to an unfair process. Parties who entrust mediators with dispute resolution have a right to expect a serious, disciplined process and they deserve a chance to be fully heard. The CBAO guidelines help ensure those expectations can be met and exceeded. While a just resolution is the goal of any mediation, keeping the process itself firmly within ethical guidelines is equally important.

Storytelling for Advocates

/in /by

Storytelling

Ambitious advocates use every means possible to persuade others to their position.  And while the legal merits of law, logic, and economic advantage never lose their value, one of the most influential tools available remains the ancient art of storytelling.

Storytelling breaks through all barriers, cultures, and languages, offering the most powerful format for delivering messages that will resonate with different audiences.  People use allegories to communicate, learn, and connect with others. Storytelling allows individuals to share knowledge and emotions, identify truths, find themselves and their place in communities, and make sense of the world they live in.  People are virtually programmed to discover stories, patterns or morals— and this process helps them make decisions.

But you can’t become a talented storyteller by accident.  These skills are honed via techniques that have been utilized over centuries.  In this issue of Negotiator’s Edge, we’ll share a few lessons learned from master storytellers that will take your written and oral advocacy to the next level.

 

Theme

Theme is the central idea or message you want to convey to your audience.  It serves as your organizing principle, and your narrative and inspiration must flow into this process.  Having a clear vision of your theme before you craft your argument is paramount, so you can reinforce your theme as you finalize your memos or submissions.  Your theme becomes the touchstone for all of the content in your argument.  If your prose does not support, enhance or amplify your theme, it has no place in your materials or submissions.

Themes must emotionally resonate with your audience’s worldview on several levels.  And keep it simple. If you include more than one or two themes in your submissions, you risk watering down their resonance or, even worse, confusing your audience.  Restrict yourself to one, or at most two themes, and only if they work in harmony.

Many people find it difficult to distill the theme of their argument or story while drafting their submissions.  The simplest way to discover the theme that resonates is to decide what emotion you want to illicit with your prose.  This question should immediately identify a number of themes you can use.

Lawyers are trained in a tradition of stoicism, logic, argument and reasoning—and they may have trepidation about using emotion in their advocacy.  But every human decision is influenced by emotion, often at key moments.  If you don’t embrace sentiment as an advocacy tool, you’re weakening your position.  Advocates need to tastefully embrace emotion to maximize their persuasive power.

 

Examples of effective themes might include:

  1. Mary had overcome her previous alcoholism to become a good mother before this car crash.
  2. The plaintiff has a long history of avoiding workplace responsibility.
  3. The actions of ABC company violated long respected community standards.

 

Powerful Verbs

Verbs are the engines that drive advocacy.  They’re the most important word choices you’ll make when planning arguments.  The correct verb choice can transform a dull opening into a powerful and persuasive rhetoric.  Conversely, the wrong verb choice can sabotage your efforts.

Always include a “verb edit” in written advocacy.  This includes reviewing every verb used in the draft to decide if it’s the best choice.   Avoid common and overused verbs in favour of evocative verbs that paint a clear picture and leave a lasting impression.  Don’t have someone walking or running. Instead, describe how they sprinted, bolted, sauntered, swaggered, staggered or limped.   With an online thesaurus, a focused verb edit doesn’t take much time, but it does pay significant dividends.

After you select the most influential verb, make sure the verb tense is applicable.  Using the wrong tense can leech energy and dynamism, leaving your prose as taut as overcooked spaghetti.  You don’t have to become a grammar maven to avoid this problem, just follow a few simple rules to stay out of trouble.

Avoid the “ing” form of words.  Using them forces you to include supportive verbs, like “was advocating,” and forms of the verb “to be” are passive and lifeless.  Consider the following examples:

 

She is running daily now.
She runs daily now.

 

She was running every morning.
She ran every morning.

 

She will be running tomorrow.
She will run tomorrow.
She runs tomorrow.

 

Similarly, avoid the passive voice, which causes similar problems.  In passive voice, the subject of the sentence is acted upon, while in active voice the subject of the sentence performs the action.

 

For example:

Passive:  The man was bitten by the dog.

Active: The dog bit the man.

 

The most powerful sentences are short, active, and simple.  Strong subject, powerful verb, specific object.  That’s the complete formula for compelling sentences that’ll have the most impact on your audience.

 

Whiplash Pacing

Readers enjoy material that moves quickly and doesn’t get bogged down in flowery language or legalese.  Traditional legal writing is often too dense and technical, losing its persuasive value.  Powerful written advocacy builds momentum as the work progresses, transporting the audience to the desired conclusion.  Whiplash pacing is a skill you should develop.

Try using shorter sentences, as longer sentences can be confusing and slow your pacing.  A good sentence only needs a strong subject, a sizzling verb, and an interesting object.  Clauses and qualifiers drain the energy from your prose and often force the audience to review the sentence more than once.  Not good.  Instead, make your point and move along to the next topic.

Paragraphs should be short.  Readers will be deterred by long unbroken blocks of text.  Their eyes automatically skip through lengthy paragraphs, often missing an important point, bored before they begin.  A page makes a visual impression, and that impression is more inviting when it offers significant amounts of white space.

Even if your material is dense or complex by nature, it’ll be easier for the reader to consume in bite-sized pieces rather than in big chunks.  Paragraph breaks also give readers time to rest before digesting your next point.

Remove material that’s repetitive or states the obvious.  Long diatribes about legal basics or undisputed facts or implications of a fact aren’t helpful.  Readers want to reach their own conclusions rather than be force-fed, and can feel insulted if you include basic material that speaks down to them.

You can’t go wrong with the legendary Elmore Leonard’s writing advice: “Try to leave out the parts that readers tend to skip.”  This means you should read your draft again from the point of view of opposing counsel and remove any material they would skip over.  There’s a reason that the phrase “kill your darlings” is often used by top writers and editors.

 

Characterization

Every good story needs a hero to cheer for or a villain to root against, and it’s your writing that will make the audience experience those emotions.  If you can entice the reader to invest in a certain outcome for your client, you can control their emotions and bias them to act in your favour.

One of the most powerful techniques for creating affinity towards a person or distance someone from an individual is called “psychic distance.”   This term involves the use of names or pronouns for a person, and it can make you feel closer to them—or unconnected to them—on a subconscious level.  The correct use of psychic distance has been proven to produce significant emotional changes in your audience.  Certain names and pronouns impact how readers feel about the subject.  The closest and most intimate of those is simply “he” or “she.” Stay close and use this point of view so that readers connect to the characters in your briefs. After he or she, the next best choice is a nickname, followed by a first name, a last name, a full name, and later—ranks and group associations ranging from the smallest to the largest.

Take thriller author Steve Berry’s character Cotton Malone. His love interest calls Cotton “Pappy”.  In this case, the spectrum would be from closest to most distant: he, Pappy, Cotton, Malone, Cotton Malone, Special Agent, FBI Agent, American.  If you would like the reader to invest in this character, refer to him as he, Cotton, or Pappy as often as possible.  If you want the reader to feel distant or hostile towards him, choose Special Agent or the American.

The same principle should be used for the parties to an action.  If you are trying to build sympathy for an injured person, calling her “the plaintiff” instead of “Lizzie” is undermining your effort.  To really amp up the connections, refer to the person as “he” or “she,” as often as you can, only resorting to their nickname or first name where clarity demands it.

 

Specific Over General

To capture the attention of your audience and sway their emotions, paint an evocative picture with your prose.  While lawyers are trained logically and analytically, the latest studies share that emotion plays a role in almost every decision we make.  Persuasive logic is a dynamic tool, but remains incomplete until it’s combined with an emotional prompt.  This can be achieved by using powerful imagery.  The clearer the image in a reader’s mind, the more impact it’ll have.

Always choose the specific over general when writing.  The term “motor vehicle” is particularly diffuse and powerless.  The “truck” is better.  The “cherry red 1994 Ford F-150 pickup” is even stronger.  Strive to be as specific as possible in your writing.  Even if certain details are not relevant, the impact on readers will serve you well.

 

Conclusion

With fewer cases going to trial and judges becoming busier, strong written advocacy is critical.  In the mediation context, all key parties will be exposed to written advocacy on both sides.  The mediator, your client, opposing counsel, and the opposing party all need to be persuaded by your prose or writing style.  In addition, other interested parties who don’t attend the mediation will be impacted by your memo.  Using these influential storytelling techniques will help make your written materials shine. Advocate using your most persuasive prose and secure your clients the best results.