In this episode of Trial Lawyer Talk, Marjorie Russell, a wise, thoughtful, and highly strategic trial lawyer consultant, shares a methodology for how to take the weakest aspects of your case, the ones that keep you up at night, the ones that you’re scared of in your voir dire, and turn them into part of a winning trial story.
About Marjorie Russell
Marjorie Russell of MARJury Consulting lives in Michigan. She specializes in holistic case development; client, witness, and lawyer preparation; and jury selection. Marjorie has been a law professor for many years. She graduated from Gerry Spence’s first Trial Lawyers College (TLC) class over 25 years ago. Marjorie has been on the faculty of TLC ever since training some of the best lawyers in the country.
About this case
Marjorie discusses a case of a 19-year old man named David who got into a car accident causing two broken wrists and neck and lower back problems. Four years later, he had undergone surgery and his hands were still injured and he was in pain. David was unemployed, living in his parents’ home, and drinking heavily. In depositions, he seemed lazy, greedy, and like he was waiting for a large payout from the accident. David’s lawyer felt the jury would reject him because he could not get David “to talk about himself in a way where he didn’t validate the picture that the defense lawyers wanted to paint.” He called Marjorie to help.
Marjorie tells the story of how she helped turn the situation around for the trial. She says, “I think my best help is connecting with people and helping them feel comfortable fully being themselves, especially about the things that people want to attack them for.” In reality, David was a good person who “had reached a point of hopelessness.” They turned the story around from David as a “bad, irresponsible, horrible person” into a story of David suffering because so much had been taken away from him. In the end, it was a winning trial and “a story of redemption” for David.
Marjorie ends Trial Lawyer Talk with, “That’s my reward. When I see the healing and when I see the confidence. When I know that the lawyer has been able to take what we’ve discovered and make magic with it – that the jurors are lighting up with recognition. They know what that’s about. They understand that kind of struggle and that he did become a hero in his own life. And that is the bottom line for me. I want to know how has the person were helping become a hero in their own life, and how can we show that story?”
Transcript of Episode 61, with Marj Russell
Welcome to Trial Lawyer Talk. I’m Scott Glovsky. I’m your host for this podcast where we speak with some of the best lawyers in the country. Today, we have a real treat. We have one of the wisest, most thoughtful, and most strategic trial lawyers and trial consultants that I know. Marj Russell is from Michigan. She graduated from the first class of Trial Lawyers College and has been around TLC and teaching ever since.
That’s more than 25 years of honing, discovering the story, connecting with your clients, and really refining the skills that make us credible, genuine, and authentic. Today, Marj is going to share with us really a methodology for how to take the weakest aspects of your case, the ones that keep you up at night, the ones that you’re scared of, and voir dire, and turn those into part of our trial story.
Marj goes into aspects of discovering the story, of connecting with the client, of going to those places that seem the most dangerous, the most scary, and working through those and integrating those into the heart of our case, and then taking those issues and using them in voir dire.
You’re really going to enjoy this episode. There’s a lot of richness and a lot of lessons that Marj provides. So enjoy. And don’t forget, please subscribe to the podcast, I would really appreciate it. And if you could go on iTunes or wherever you get your podcasts and give us a good rating, because I really want other people to know about what we’re doing because I think these lessons are good for all of us. Let’s get going.
I’m very pleased and humbled and honored to be sitting with Marj Russell. We have a lot of brilliant folks on Trial Lawyer Talk. Marj is absolutely a genius. Marj is a trial consultant who has been a law professor for many years and has trained some of the best lawyers in the United States and is an absolute genius of trial strategy. Thanks for being with us, Marj.
Thanks for having me.
Marj, can you share with us a story of a case that had a profound impact on you?
The one I’ve been thinking about is a trial that we did recently within the last several months, and it came to mind because I think it really illustrates for people what I do. I get asked a lot. “What is it that you really do?” And because I work in case development, not just jury selection, it’s really hard for me to figure out how to answer that question. I always feel on the spot.
This case kind of crystallized for me a way to talk about it. I was able to see what really happens with how I approach things. The story is a simple case. A 19-year-old guy gets into a car wreck, and what a plaintiff’s lawyers don’t like to hear and defense lawyers like to say low-impact, or a a minor impact. What does MISD stand for?
Soft tissue. Okay. It actually wasn’t really soft tissue. He got broken up worse than that. Both of his wrists were broken and he had neck and lower back problems right away, so all of that did show. Ended up having to have surgery on one of his hands. It’d taken really a long time to kind of get through stages of recovery.
The story of how I get involved in cases most often is that a lawyer will call me and say, I’m really having trouble connecting with this client, or I feel like this client has some really bad stuff in either his behavior or in his history, and I don’t know how to handle it. I can’t quite get the stories out of them. Maybe jurors are going to hate him for it. I don’t know how to put this together in what legally is a good case, and as a matter of the damages is a good case. These things about this guy, or some little aspect of the story, make me afraid that the jurors are just going to get on that and not really see where justices is.
By the time they took depositions in this case, David had reached a low point, and it was about two years after the wreck. He had already had the surgery on his hand and he wasn’t working. He was living at his parents’ house with his girlfriend. He was drinking to excess, seriously to excess, and had reached a point of hopelessness. That’s the plaintiff that the defense lawyer met.
That’s what the plaintiff’s lawyer expected the defense to focus on. We’ve got a kid who got in a wreck and then just decided to go live in mom and dad’s basement, not work, wait for a payday. He wants to hit the lottery, and make him look like he was lazy and greedy and all those things. From what is actually in the deposition record, he looks like that. He really does.
So, when the lawyer called me, he just said, I don’t know what to do because I love this guy, and he’s amazing. He makes himself look bad. I can’t get him to talk about himself in a way where he doesn’t validate the picture that I know the defense lawyers want to paint. So, it’s not just what’s going to happen in cross-examination. It’s what’s going to happen. Even during direct exam. The jurors aren’t going to like him. I’m afraid they’re going to reject him for the things that have happened, and I don’t know what to do because he’s really badly hurt and there’s serious damages. He needs treatments and surgery. They found out that his discs in his lower back were actually torn and it hadn’t been diagnosed properly, or they hadn’t gotten to that stage of things. There wasn’t any error by the doctors. So, we have to take care of him.
We knew that on liability, even though they still hadn’t admitted it, that really was an easy case. Their driver was coming out of a parking lot, trying to cross six lanes of traffic to continue, it was a T-road, to continue on that road. He could see David coming and just went anyway, and David had no way of avoiding hitting him.
Fault was clear. We weren’t worried at all about that part of it. It was really the way we felt jurors would reject him, or at least the lawyer did and said, please, come help. What I’ve discovered is this, it’s kind of the essence of where I think my best help is in the before trial part is connecting with people and helping them feel comfortable, fully being themselves, especially about the things that people want to attack them for.
When they can get to a place where instead of wanting to deny being a forceful woman, for example, they can say, yeah, I am the kind of person that doesn’t want you ordering me around unless you’re my boss. I don’t see anything wrong with that. Instead of going well, I don’t know what you mean, or, you answering back or trying to deny it. If they can relax into it and own it as part of themselves or a piece of behavior. Own it as part of themselves that then when they believe that when they start realizing they don’t have to act like someone else they can actually say yes to everything that’s true about them without having to explain it away, without trying to explain it away, or defend against it. The lawyer sees it then the lawyer relaxes into the idea that we can tell the story that way, and it won’t backfire on us.
Sometimes that’s the harder project. That what’s been happening, is for instance, in this case, the lawyer is afraid of how they’re going to throw dirt at him because there is some truth in it. It’s true that he was living in his parents’ house and not working and drinking to excess, and his girlfriend was living there too. He didn’t get surgery or continue on with physical therapy. It all sounds and looks ugly and it’s all true.
The lawyer wants to find a way to kind of make it not true or avoid having to talk about it. My philosophy is, no, the essence of the story must be in there somewhere. What looks like the worst place, if you embrace it and try to say yes, that is true, and it’s important to know because when we know that then we’re going to understand some of the “why,” then we can find where the truth is.
So, I work with the client or the witness to get them to where they can say, yep, that’s true. Yes, I was doing that. Yes, that did happen. I’m okay with or maybe I’m ashamed of it now looking back and here’s what’s different today.
So how did you do that in this case?
With David, first, we just met together and actually got together with the lawyer and David and the woman who is now his wife and was his girlfriend then, and we just had a meal together. Just talked about things. Got to know each other. Didn’t really get into anything related to the case. Learned about his family a little bit.
Then when we sat down, that was dinner when I had come into town, when we sat down to work the next day, the first thing that I tell people when we’re working this way is I’m there to really help them by being the voice of our enemies and not just opposing counsel or the defendant, but also the people who could potentially be jurors and would hate us.
It doesn’t mean that I believe these things and still they have to be said aloud. We have to find out how you respond and react when these things are brought up and we have to find the real truth of them, so we can tell a true story, and so that you can be comfortable being honest in court. It’s not going to be pleasant. I may get you really angry. I’ve had people storm out of the room. I’ve had people refuse to continue working and have to be lured back the next day.
I tell him, it’s okay if at the end you don’t like me very much because it’s for you and your lawyer so that you can get justice. I’m on the team, but I don’t have to be your friend. I think we will be friends at the end. I think we’re going to be really happy with how this happens, but it doesn’t have to go that way. Okay?
I’m going to poke you with some sharp sticks, and we will find how to get justice through doing that. I began going through the list of things that the lawyer had given me that were the danger points. The things that the defense was going to poke at and say, well, let’s talk about this, not working, about the living at your parents, about the drinking, and what we learned in the end was that for David, this really had been the low point and the mid point in what was now a four year recovery period since the crash.
That was when the defense lawyers had met him. So by going all the way back in time to right after the crash and finding out how he felt then first, what I learned was he really was someone who had risen to the occasion at the beginning. A week after the crash, he got a new job and he got promoted three times at that job.
The problem was, it was at the gym where he used to work out before he got hurt. He ended up being the manager of the place. It was also the thing that sent him into the bottle because every day, and this is that part. This is the part that I’m not sure I’m always very good at describing how we get there, but somehow by just talking about things like, what’s it like on an ordinary day at work? Put yourself behind that front desk where you stand for most of your shift watching what’s going on in the gym, keeping track of your employees, greeting people when they come in, what are you thinking?
Turn around and look into the gym and what do you see in there? How do you feel when you look at that? What we discovered was that he was torturing himself. He had been this guy before the crash, who worked out all the time, who prided himself on his physical fitness. He was going to school. It was a big part of his life.
The reason they hired him at that gym was he had lived there, and it was a slap in the face every day. I can’t do that anymore. I might not ever be able to do that again. Look at my body. My muscles are going away. I started to get fat. My hand doesn’t work well. I’ll never be able to lift again because they did the surgery on my hand and it still doesn’t work.
That was where he lost hope and started drinking. He quit the job technically, and he would say it that way. I technically quit, but they would’ve fired me. I deserved it. I was coming drunk on the job. I quit school. My girlfriend was pissed off at me. I’m lying in my bed in my parents’ house drinking all day long. That was my lowest point.
As we continued on, we take just points in time on the calendar and say, well, let’s go forward to here. What’s the next thing that happens? Well, the next thing that happened is my girlfriend put her foot down and she said, do you want me to stay with you? If you do, you got to stop this stuff. You got to quit drinking. You have to get serious about trying to get well. This isn’t okay. I did because what happened was for some reason and right now, I need to pause for a second and think because I don’t think it was his girlfriend that brought this to me, I think it might’ve been his dad.
Yes. His dad had always been kind of a disapproving guy. One of the funny jokes we had. I digress here for a minute. One of the funny jokes we had among the trial team and with David and his wife was one of the things the defense lawyers like to beat on was that he wouldn’t even help by mowing the grass when he was at his parents’ house. He’s like, if I ever tried to touch my father’s lawnmower, he’d throw me out of the house. He’s serious, obsessive compulsive. He is a military guy. He would not let anybody ever do that. Oh no, I did help with things. I did this, and he went on to other stuff, but it was one of our jokes about our lazy ass.
But what happened was his drinking got so bad, he landed himself in the hospital. He and his girlfriend had gone to the grocery store and he was super depressed. She will tell us now, I was enabling him. I would take him if he wanted to go buy something to drink. He bought what they call a handle. It’s one of those big bottles and drank the whole thing before they got home, and ended up being hospitalized from alcohol poisoning.
When he came home, the story we learned, and see some of this just gets complicated because we have to follow the little rabbit trails. The story we learned was that when he came back to his parents’ house from the hospital, he walked in the door and his mom and his dad were standing there right inside the doorway. I asked him, what did they do? What did they say? Show us what they didn’t say.
I was fully expecting having heard the stories about his dad and how rigid he was, and he would yell, and not let you use his lawnmower, I was expecting that he was going to get a lecture. That this was going to be, you need to hear this lesson buddy, and straighten your life out, and that it was going to be a sermon. Instead, it’s going to make me cry, thinking about it. It made David cry when I asked the question. He just started crying and I went, can you tell us? He said, my mom didn’t move. My dad rushed toward me and threw his arms around me and started crying and said, I’m so glad you’re safe. I love you. He had never done that before.
Then David said, in that moment, “I realized the effect my behavior was having on everyone else. I saw my mom’s suffering. I realized how much my dad loved me and cared about me and wanted me to get better. I quit drinking. I went back to physical therapy. I got a job and I’m registered for school next semester.”
So, what started as a how do we deal with a guy who just has not taken care of himself? And the defense has a right to point their finger at some of how he’s behaved during these four years, turned into a story of redemption. Of how much more devastated, how much more suffering came to him from this crash. His suffering expanded from us being able to say yes to the story because your pain is your bodily pain.
Your pain is your bodily pain. Your suffering is what’s been taken from you. It’s emotional. In that period, when he lost his sen of self that was what was taken from him. He suffered in that job every day because he wasn’t the same David anymore. When we could tell the story as part of the suffering that was inflicted by the crash, and what did he do with it When he realized his effect on other people? It became a story of redemption. There was no way the defense could ever break that story.
That led us, well, first of all, one of the amazing things, and this is part of what I love about what I do and how I find my ways to connect with people is the lawyer never heard the story about his dad hugging and kissing him and crying. He had never heard it before. Of course, when he heard it, he knew it was going to be a key. It was also the key that opened David up to being able to sit back and relax and say, yeah, I drank really, really bad for a while. He came out of it because he became unselfish.
Then you see it allowed us in the trial to not only have David not be a bad, irresponsible, horrible person, it allowed us to expand damages. If you’re in trial for that, we need to worry about it. It also gave him a different kind of credibility because he was a generous person, not a greedy person.
It took away the ability of the defense to call him a greedy person, to call him a lazy person, to call him someone who was just waiting for the jurors to pay him. All of that came from saying, yes, I quit the world for about nine months and I’m ashamed of it. It was horrible. My now wife almost left me over it.
When he could do that, the whole world opened up for us. Then we knew what to do with his wife and what to ask her about and what stories she could tell from the stand about when she reached a point of despair, and do I stand by him, or do I leave when she was still his girlfriend. When you meet her and see what a wonderful person she is then you start saying to yourself, that quality woman stands by him there’s got to be something good about him.
The jurors saw all of it and went beyond what the lawyer asks for in their verdict. That’s the story of David and the piece for me about my work that it really crystallized was that cycle of helping the client or the witness to be comfortable with themselves, helping them to be able to say yes to everything that’s true. Then that somehow opens the story into the thing that will save us.
I’ve learned that over and over and over again. Josh Carton, one of our great teachers uses a quote about that, and it’s I think the place that seems most dangerous is exactly where safety lies. I think Barbara Cook is the author. I can remember it now. I use that as a touchstone a lot. Go toward that danger because if we say yes to the true part of it, we’ll find a way out of that darkness and that it really somehow holds the key. It can make friends of the people who are most likely to be our worst enemies in the courtroom.
That’s pretty darn cool. The ones who even might see yeah, a liability sign, but I’m going to drive your damages down because I don’t like him very much. That person can become a friend when we find that honesty. Somehow this is the piece that I hadn’t realized before, but I saw vividly in this case, the lawyer really was the one who had to be convinced that when we went toward that truth, it would be okay and it wouldn’t backfire on us and they wouldn’t end up with more ammunition.
Once he saw David transform then he could feel confident going into the courtroom and saying yes to all of those things and looking the jurors in the eyes and not being worried about it. It’s kind of being able to be in the position with the defense of going, thank you, sir, may I have another?
And wanting them to come out with all that stuff. Sometimes what happens that defense starts to crumble. They come out with that bat in their hand and they start trying to wack you with it, and they see that it’s going the other way. They start getting up pieces of their case because they’ve gotten the backfire.
Every way it goes. It weakens their side and it strengthens ours. It gives us the way to find the bonds with the jurors. He has a loyal girlfriend and wife, he’s generous because he sees he’s hurting his parents and he wants to do something selfless to ease their pain. Those are the things that when the jurors find them, makes them love the person who needs help, and makes them step forward to do it.
It seems that you’re integrating the heart of the defense case into your trial story and making it part of the story and taking the power out of it?
Yeah. That is what it is. I think lawyers get oriented to, and law schools train us poorly for this. They get oriented to either trying to put lipstick on a pig, if you will. Make it look pretty if we can, or finding a way to keep it out of the case. Sometimes you can keep some things out. That’s fine.
What I started realizing over the years was that the problem is the reason we’re afraid of it is because there’s some truth in there somewhere. There’s some truth in there somewhere. There may be a whole bunch of it that’s not. There may be a whole bunch of it that comes from bias or prejudice or bigotry, and that the defense wants to play on those things. They’re seizing on a fact before they seize on that, and then they want attach the two things together.
That’s what we really fear is that they will be able to say, see, here’s the record. He skipped four medical appointments. We know that fear. You and I share that one about a case. That’s what makes the lawyers sort of close into lawyer mode about it.
Fear, and an orientation from their training to either try to keep it out or to try and make it prettier. What I’ve learned from Trial Lawyers College training and psychodrama training is that if you lean toward it and say yes to the truth, and let me learn more about that truth and where it comes from and why and how it happened that I am going to find in there the crack that lets the light in where we can not only not run from it, but cling to it.
When you find that, it takes all the power out of the other side. It takes all the power. Then when we turn to jury selection, we go back to validating the defense premise. They’re going to tell you, two years after this crash happened, he’s living in his parents’ basement, he’s not working, he’s drinking to excess, his girlfriend’s thinking about leaving him. Doesn’t it seem like he’s just waiting for somebody to give him a payday? Through that discussion we find the jurors who are firmly fixed in the belief that anybody who sues after a car crash and anybody who’s not working at any point in time after a car crash is lazy and just want somebody to pay for living. Give them a big bonus.
Those are our enemies who probably can’t be brought around even with a great story. Those are the ones that we’re going to exclude from the tribe. Everyone else is going to have a neutral conversation about what happens to people when they’re badly hurt, and who gets to say how you rise to the occasion? Who gets to say how quickly you need to rise to the occasion? Who gets to say how fast you rehabilitate yourself? Who gets to say when you should be saying yes to your surgery?
Because we had a defense lawyer who wanted to point the finger at David and say, he should have already gotten surgery. He wants to sit here and pile on with you guys because he’s letting himself get worse. He wanted to point it at him and say, he’s a young man. He was young and strong. He should have risen to the occasion. He should have done better.
Well, if you stop and think about it, ordinary people know a whole lot about being told you shouldn’t be grieving anymore by other people. When are you going to get over this? When are you going to stop being so sad that your husband died? When are you going to be through with all of that laying around in your chair because you’re hurt you. You haven’t gotten out of your depression quick enough. People know lots of stories about that kind of judgment. We were pretty sure that judgment wasn’t going to sit well with most people.
That some would really feel that way. Get up off your butt, get yourself some treatment, be serious about it and get to work or school or both. They weren’t going to have any room for ups and downs in that process, so we wanted to find the people who had either been told that they didn’t rise up to fight their cancer well enough, or they should have gotten a surgery sooner than they did things like that, or who felt bad themselves for having said to somebody, you shouldn’t still grieving. Because we knew in the end then they would be able to see his journey and how he did in his own time find the way home.
Wow. What a story. The insight that you’ve provided is spectacular because our colleagues out there are scared of the weaknesses in their case. It caused them anxiety, caused them to lose sleep, it causes them not to be present in the courtroom, and you found a magical way to empower them to find the real story and to take the anxiety and fear to a large extent out of their case. In fact, take them out of their lawyer heads and put them in a story as well.
I don’t like to use the word magical because I don’t think there’s magic to it. It’s about tuning into people. Opening your heart and being able to reverse roles with them and imagine how they might feel. Seeing David on the witness stand and how amazing he was when he testified and how relaxed and his best self with his smile on, it was hard to get him to smile even when he was in a good mood.
He’s not a smiley guy, but he could get his smile on and that he could relax around his eyes and his jaw not be all tensed up, that reward mattered more to me really then the verdict did in the end. It was seeing him feeling so comfortable with himself and so good about the journey and not feeling ashamed anymore that part of it had been really hard.
There was a moment during cross examination when the defense attorney was being pretty darn hard on him. He just sat back in his chair and he turned toward the jurors and he paused for a long moment, and he said, I’ve thought about that a lot. You’re probably right. He didn’t say anything more. The defense attorney stopped that line of questioning.
That’s my rewards. When I see that healing, when I see that confidence, when I know that the lawyer has been able to take what we’ve discovered and make magic with it there. That the jurors are lighting up with recognition. They know what that’s about. They understand that kind of struggle and that he did become a hero in his own life. That is the bottom line for me. I want to know how has the person we’re helping become a hero in their own life, and how can we show that story? That’s where we go.
Simply brilliant. Marj, thank you so much for joining us and sharing your wisdom. There’s so much insight that I know we’re going to have lots of folks reaching out to me to have you come back. Will you come back another time?
Thank you so much.
Joining us today for Trial Lawyers Talk. If you like the show, I’d really appreciate if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s S-C-O-T-T G-L-O-V-S-K-Y.com.
I’d love to hear your feedback. You can also check out the book that I published called, “Fighting Health Insurance Denials, A Primer for Lawyers” that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people, and it provides a general outline of how to fight health insurance denials. Have a great week. We’ll talk to you in the next episode.