Transcript for Trial Lawyer Talk, Episode 16, with Joshua Karton


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Scott Glovsky: Welcome to Trial Lawyer Talk. I am Scott Glovsky and I am your host for this podcast, where we speak with some of the best trial lawyers in the United States. Today we have a very special treat; we have Joshua Karton with us. Joshua is a Communications Consultant and a Communications expert who trained in the theater and brings his theater background to help trial lawyers communicate emotionally, honestly, and effectively with juries. Joshua has been teaching lawyers at part of Trial Lawyers College for many years. He has taught the JAG Corps, he has taught in every major law school around the country, and is truly a spectacular teacher and has a lot of great gifts to share with us today. If you have never seen Joshua, I would also recommend that you Google his name, ‘Joshua Karton,’ and look at a video on YouTube of Joshua in action. Let’s get started.

I am very happy to be sitting with Joshua Karton, who is a phenomenal human being, who has done amazing things in the field of communication, who has done more to help lawyers authentically and genuinely communicate the truth of their cases and the truth of themselves than anyone I know. I often embarrass Joshua by calling him ‘the magic man’ because that is my sincere characterization of the work that I have seen him do and the transformation that I have seen him create in lawyers telling their stories. Josh, thank you for being with us.

Joshua Karton: You are welcome. [Laughs] I am nervous in front of a microphone.

SG: Yes, that makes two of us. Josh, this is a storytelling podcast. I know that you received a tremendous honor at a law school not long ago and I wonder if I could ask you to tell the story that you told when you were receiving this wonderful award.

JK: They announced it the year before. It is a program at Stetson Law School. I met the fellow who runs the place when I was teaching for the JAG Corps. His name is Charlie Rose and he is larger than life. He is not the journalist Charlie Rose, but he is somebody who will say, “How is loving you today?” and means it. Really brilliant. From the time he left the military– and it was only Criminal Defense, that was the department– and went to Stetson, he has really had a vision and they have, I guess, the number one trial team and he made the place a center. The other people who had won this Lifetime Achievement Award were all people who worked in that field. There was nobody who was not an academician or part of that world. Some of them were also trial lawyers, but certainly nobody with my background.

When they first announced it the year before, in a reaction of such graciousness I said “No!” because– I had sat at these banquets, Scott, and by the time you would get it, everybody has had a lot of alcohol. I appreciated the honor deeply, but I see myself as such an outsider. There were years when somebody used the term actor and immediately you are a tumbler, a juggler, a clown, and you are going to teach people how to be false and theatrical and it is the reverse. I am sure Gerry Spence’s name has come up in these interviews before and he said good lawyers are good actors, but good acting is telling the truth, it is revealing to the audience the truth about the person whose role the actor is playing, as what you just said. I know something about how to incinerate through stage fright by having a story to tell, but that story has to be about something. To have it be about me was just harrowing, the idea that I was going to stand up– I knew I had to do something that scared me because otherwise it was just going to be a speech. I loved sitting there with other people every year. I had this idea; one of the things about song is that because it is extended speech more feeling is communicated because the vowels are extended. It is the difference between saying ‘no’ and saying ‘nooo.’ That is what song can do.

There is an exercise sometimes that we will do where somebody takes a song that has been hackneyed– that everybody knows through some version of it, whether it was defined by Springsteen or Sinatra– and learns how to re-sing it and tell an original, personal truth through it.  You can do that with anything, like the Gettysburg Address. It becomes clichéd, but I actually believe that ‘we are engaged in a great Civil War, testing whether this nation, or any nation so conceived and so dedicated, can long endure’– where you are using that language to tell a personal truth. It hit me that I was going to sing. [Laughs] What I was going to sing, I spent a long time looking for. When they say my name and there is that nice applause and I come up and I am standing on a dais now above where the group is and I know I cannot stay there. I am either going to have to go down amongst these tables or something. I start to lift the microphone off of the lectern and it begins to screech. Everybody is laughing and I decide I am not going to panic, I am just going to do this very slowly and methodically. When I finally stopped, everybody started applauding again, which was interesting because I thought did they think I was waiting for– no, I was just trying to pull myself together, but it also was, okay, however, this is going to go, it is going to go differently than I had expected so that was a good thing. I waited and I made sure that I looked people in the eye– I saw when I stole a glance at your notes, the discussion of eye contact and what that is about will be something you will want to talk about– and I just waited and then what came out of my mouth was [sings] ‘I believe in doing what I can, crying when I must, laughing when I choose, hey, ho, if love were all, I should be lonely, I believe that since my life began, the most I have had is just a talent to amuse, hey, ho, if love were all.’

Of course as one goes about one’s life, you discover that love, in its way, is all, but it comes to us dressed in costumes that your mother would not have even let you leave the house in. How did I get from this talent to amuse to standing here being honored by you all? That melody and those lyrics were written by Noel Coward and while I would not dare to presume that I had anything like his extraordinary talent, what I do know is similar was a love of language and I had that. My brother had a teacher who said, ‘Mr. Karton, the goal is to go from life into literature and come back again.’ That was a lesson that I had to learn when I started acting as a kid which was that the script, no matter how brilliant, could not be the performance. Because I had to understand that, it became useful in working with trial lawyers because all of the early training for the trial lawyer is as a writer and any personal interpretation from the beginning in law school you are shamed out of, we do not care how you feel, that is not what it is about, and are you getting the words right. But I had to learn for myself that getting the words right– I mean, nobody leaves the theater going ‘My God, the way he remembered every word of that script perfectly, that has changed my life.’ So, that was one thing. The other thing about Noel Coward is that I think he knew a lot about shame. When I was a boy in the ’50s, I had no real hand-eye coordination so I grew up hearing myself called spaz and fairy and all these things and I had to find something that could incinerate through that stage fright and the shame. I came to understand that it would be a story that I had to tell because of an injustice I could not bear. I could not proceed unless there was something that I needed to say. Now, that could be a Neil Simon comedy, that could be Shakespeare, but I would have to find a reason why I had to say it.

This fulcrum of actor/lawyer was something that, when I got invited to work with trial lawyers, was very useful because that is the one you operate on, but all the early training is as the writer and then what do you need to stand up and make a human connection with the people that are in front of you. The stage fright is enormous and for good reason; somebody’s freedom or their future is in your hands. I think law school operates on shame. I talked about that in the talk and then it went on from there, but I hope I am not rambling entirely incoherently…

SG: No, not at all. Joshua, when you work with lawyers, what is it that you are really doing?

JK: The greatest compliment; somebody said, ‘What does he do?’ and my beloved friend– who is gone now and she taught at Cal Western and she had all these advance legal degrees and she pioneered this program for textiles for Middle Eastern women, using the original dyes and brought them over and got rid of the middle man and one day said to me, ‘I got a real job at a rug store,’ at the same time that she is getting that. Anyway, they asked Janine Cooper what is it that he does and she said ‘Oh, he helps people pan for the gold inside themselves.’

Oh, I am still grateful and blushing at that one. If you are speaking from a place deeper inside yourself than the one that is worried about making a mistake, worried about the judge not liking you, worried about being vulnerable to opposing counsel, but from a deeply human place– even if you are using the most legal language and you are saying it to at that deeper place in the listener, a lot of the other stuff takes care of itself. One tells the story better. One speaks– often tells the story in the present tense because that is how we naturally do it. You say, ‘So, Scott, what happened today?’ You do not say, ‘Well, I was departing the elevator, I was exiting the conveyance, at which time a prior– No. You say, ‘Alright, I am coming out of the elevator, the doors open, and I am looking at this face and I know it, but–‘ You are speaking in a present tense, your voice has its own natural cadences and cataracts.

In law school, I will be teaching a third-year student and they will begin weeping and they will say, ‘What is going on? Why am I crying?’ I have come to see that it is because for the first time they are hearing their own voice in the legal stuff and they realize that they have been buried alive. They are hearing the sound, the music, the cadences, the inflections, of how they talk to their friends in the hallway. I think a real mourning rises when they realize they have been sealed off from who they are and they begin to weep. Then they move through it, I mean they are not left crying. I am trying to help the person plug themselves back in to what they are doing. The folks that I admire the most who use the law to make a better world. You are one of them. When you ask people, ‘What do you do?’– which, by the way, in other countries is not polite, but in this country you are allowed to say, ‘What do you do?’ People say, ‘Oh, I am a bookkeeper,’ ‘I am an attorney,’ I am superintendent,’ and one day it hit me, I did not ask you what you are, I asked you what you do. Somebody said to me, ‘Oh, well, what is it you do?’ and I thought, ‘I had better think fast and true,’ because I had not thought to answer it myself– otherwise it is going to sound like I am being snotty– and luckily it came to me and I said, ‘Oh, I mostly rage and cower, that is what I do.’ The guy said, ‘Oh, I see. I coach my kid’s soccer team.’

That person who is using the law to make something better, when the jurors know that they are in the presence of that person– I am not saying it solves everything, but it solves a lot and words line up in ways that are organic and persuasive and deeply felt and you are not thinking, ‘Oh, am I being dramatic?’ ‘Oh, am I making a gesture?’ ‘Oh, am I–‘ It just can pour out. Now, there is a huge amount of preparation that is necessary to be in that place, so it is not about winging it, but it is about allowing oneself to be seen unprotected.

SG: How can a lawyer get there? What are the ingredients?

JK: [Laughs] I am thinking. A healthy diet, exercise– How do you do it in your life? I do not mean for that to be glib. My stomach is gurgling– are you hearing it? Is it picking it up on the mic, I wonder.

SG: No, I have got these big headphones on–

JK: Oh, so you cannot hear it.

SG: How do you get there? We can talk– one of the ingredients may be–

JK: You do not get there by imitating anybody else. That I know. There are some trial consultants at the moment– by the way, from the very beginning when I started this, the people who were trial consultants, they were jury consultants, they were about picking a jury. In the theater, which is where I came out of, you do not have control over who is in the audience. The scripts that we wrote for the plays or television things I worked on, they had to work for an audience that you had no control over. I was never about picking a jury. I have great respect for those that bring that knowledge.

What I was starting to say was that you have somebody like David Ball’s work, which has been a game changer, but I will come and start working with a lawyer on a seminar and they will say, ‘A blank may not needlessly harm a blank and if they do, they are responsible…’ and so I am hearing David’s template, but the person is not present in what they are saying and they are hoping that if they recite this text that it is like a magic lantern and the genie will come out. Helping them own what they are saying often takes a while and then these words are their worn. That is certainly an actor’s task. If you see somebody reciting Hamlet, that is not good. In fact, it is really no good if you see an actor playing Hamlet. What you have to see and be present with is a young man struggling to figure out what the hell is needed of him and what he is going to do. Then it is not Hamlet; it is the truth of this young man in this moment of his life and decision. So, how do you do it?

There are sometimes very simple things like, take a section of an opening that is falling flat and simply change the name and instead of the name of the client who you now feel a little betrayed by and pissy about, put in the name of your dearest friend. As you are preparing it, I do not mean in court. Suddenly, it is a very different score because your nervous system is hearing a cue in that proper noun of something you truly, deeply care about. There are techniques for helping yourself to it.

SG: Let’s talk about the physicality. I have watched you brilliantly have someone whom English is their second language give an opening statement in their native language so that everyone in the audience who speaks English has no understanding of their words, but yet, you require them to communicate the story in their native language. Can you talk about that?

JK: You bet I can. At first, they will work in the language that no one understands, which means that they cannot presume that saying the words communicates it. Then, what we do is say okay, now nobody understands it, but people immediately do want to participate and say, ‘Yes, but she is so interesting now and she is so animated.’ Diane Wiley, who is a brilliant, one of the original founders of trial consulting says she teaches English as a second language to lawyers.

You are already speaking two languages, English and Legalese. You take away the assumption that saying the words is the communication. Then we add, okay now, people who are listening– people in the seminar or the group– have to tell you back what you are saying or you cannot go on. That is how you get permission to go forward. Then there is this usual ‘What?” They do not understand; it will not work. Please. I do not want to say trust me, but please. What will happen is that the person will say, ‘Is this supposed to be charades?’ Now we have already demeaned it, we have mocked it, we have put it in quotes. I said, ‘Call it whatever you want, but until they tell you back in English…’ The person begins to work with their whole being to be understood and there is a global commitment to communicating and not just to the broadcasting but to the responsibility of the receiver getting it. Everything gets sharper and people start to lean forward in their seats because they are seeing an effort, a need to be understood. This makes them want to participate which does not diminish when the person goes back to English.

There is all this collateral awareness of what it is that really makes jurors lean forward in their seats and care. It is because they are seeing a commitment not just to getting the information out, but to their getting it from the communicator. Then we flip them back into English and sometimes the person immediately goes dead again and everybody in the group laughs because it is obvious what has happened, which is the assumption that the words do it. We go back and forth until the motor that is turning when they are communicating now past the words, through the words, stays when the language shifts into the English. Then it becomes a kind of music. Now sometimes people say ‘Can we just do this with mime?’ Well, yes, you could and it is very eloquent and it also simplifies it because it stops– I mean, if you cannot communicate it physically, it may be because you are balancing on stilts of legal theory and you are really not communicating with jurors, you are communicating with your law school professors and it is not really what is needed.

The other thing is that you do have to speak; you do have to make sound. By working in a foreign language, that is already going. The other thing is– and again, in law school, this will happen– anybody who comes from another country, there is usually enormous trauma and struggle in the family to get here. You have a lawyer who is Vietnamese, and what their parents went through to get here. The language that they were suckled in, that they were held in, that they dreamt in, has been one that they have to hide because they have to be able to pass, to function. It is even more compounded, the shame release. Those students, sometimes, will just break down and if you can keep it safe for them, which is my job, so that they understand that what is being released is a suppression. Then in the wake of that, I am really bathed in those tears of held intimacy. When they now start speaking English, it is with a power; it is very beautiful to see.

SG: You mentioned having a safe space. Can we talk for a moment about that?

JK: [Laughs] Yes. Um. Um; that is a syllable that a communications person should avoid, is it not? Um. [Pause] You have been with me enough when I am working that… would you ask me a question about it to take us a little more specifically into it?

SG: Sure. I recall you mentioning on one occasion, just about being in a courtroom, that if you like chocolate, you can take a little piece of chocolate and stick it at both ends of the jury box to–

JK: –Well, even one. And on the ground. And I recently did a program where a very experienced lawyer heard that and walked out; that that was just frivolous and this is a serious position. He was profoundly offended. Was I offended? Yes, I was offended at his being offended because it comes from understanding what people need.

There is a Supreme Court case that I got to work on that meant a great deal to me because it was the first thing from Guantanamo Bay when the President of the United States, who had been basically crowned in the Florida decision by the Supreme Court, we were now addressing the Supreme Court to limit executive action and could habeas corpus be suspended. This was Hamdan v. Rumsfeld. The lawyer who was bringing it to the Supreme Court– this is what you want, stories, right? He was not a trial lawyer and he was a brilliant fellow and he knew that if all we did was massage case references, the loudest sound you were going to hear in that Supreme Court Chamber was Scalia opening his zipper to pee on this whole thing. [Laughs] Yet anything that smacked of acting would also be deadly. He was angry at those Justices because of what was happening and that anger was not going to be helpful. It was also the beginning of my understanding that appellate work is most like voir dire in that when people talk and ask questions, it cannot be felt as an interruption because if you were going to say the lawyer was any hint of ‘No!’ or ‘I will get to that,’ it does not work. To really welcome that– and by the way, that is where improv and its rule of always accepting the offer proves so useful.

I know in Seattle, you have a group of lawyers who are doing professional improv so that you are welcoming that input, whether it is for voir dire or appellate work. Anyway, he was angry and we knew we had to find something that would let him experience a kind of unconditional love. I know that sounds Oprah-esque, but yes. He had three boys under the age of, at that time, five and my understanding was that he could come back from Guantanamo Bay and handle that, but if he had solo childcare, calls from the White House were not taken; the devotion to those kids. I thought, ‘Okay, where does he know a place where no matter how much they irritate him, he does not react with anger, but with patience and appreciation and the desire to help?’ I thought, ‘Well, it is going to be that nursery.’ We chose a stuffed animal from his kids’ nursery for every one of the Supreme Court Justices, not that he was hallucinating Eeyore, but he said that is exactly what he used; the animals. Actually, I got a call and he said, ‘I did it. I was in tears.’ I said, ‘I know.’ He said, ‘No, the animals. The animals.’

We have in us a volume of selves and the self that is our bookmark is just that. I was working with a lawyer the other day and she was going through something where she was explaining that somebody was mocking her in the voir dire. She said it froze her, she was angry. She has raised three kids, the last two are still in their teenage years. When I started to roleplay that person, she would stay, even if she tried not to– this was afterwards and we were going through, slowing it down, going through it, trying to find a way to move through it where she felt safe and could handle it with an agility that she has in real life. Still ‘Well, is that okay?’ was how she was ending it until I finally go, ‘Mom! It is not fair! I hate you!” and she said, ‘Well, look, you cannot do it and I will do my best..’ and suddenly her eyes are sparkling because she knows herself, as a mom, how to ride through that. It is not a question of being anybody other than yourself; it is finding which one of the selves you have access to, but you have not thought about bringing it into the courtroom. It is interesting because as I am talking through this with you, yes, it is about a safe place, but it is also about the self you let yourself be in that place and how portable that is.

SG: How about making the listener feel safe? I know one of the wonderful quotes that you decorate the rooms within which you work. One of the quotes that you put up is ‘If the story is not about the hearer, he will not listen,’ by John Steinbeck.

JK: Yes, in East of Eden.

SG: Can you talk a little bit about that?

JK: No, I cannot talk a little bit, I can talk for hours about that because it goes back to the thing about are there magic words and do I take this thing from what some of the great trial consultants in their books say this script, this snippet, this approach… More and more, I am feeling that we are in a time right now that is frightening for a lot of us because the discourse has really degraded to something nasty, name calling, so the assumptions of some basic, common agreements, it seems like we are getting so polarized that we cannot even do that. Nobody seems, at the moment, to be suggesting that they are going to vote for somebody, but they are vehemently voting against somebody else.

When two people are communicating live and somehow they feel that the other person is unguarded and wanting to know what they think and feel and respecting it, something happens between them and when that happens a lot of the slogans and the clichés and the assumptions and the brittlenesses and the hostilities somehow seem far away because right here, right now, there is something good. In acting class, you learn that any two-person scene is ultimately either a fight scene or a love scene or sometimes both. When someone feels truly seen, truly heard, truly listened to, and they feel that the other person is not gaming them, it still seems possible for them both to acknowledge and appreciate their place of agreement and that, in this case, a juror could be enlisted to do the right thing. Now, yes, do they need to feel that that right thing is going to be beneficial to them? Yes. Do certain principles of what is being called the reptile, are they a part of it? Yes. But there is an aspect of– well, I want to say it– it is love. It is that that person cares about you and I have seen enormous things be possible when that happens. There was a lawyer recently– we were having a voir dire seminar and I got a call– he had been in a case and it had to do with an accusation of child abuse. I am going to name him. His name is John Colvin and I am very impressed with what he told me. He is a fine fellow. Do you know him?

SG: Yes.

JK: It has to do with an accusation of some sexual abuse and if you work in those you know that they are harrowing and that the accusation ruins lives even if it turns out that it is not true, it is too late. There is a very nicely dressed woman for Shorthand Junior League, beautifully dressed, groomed hair of a certain shade of ash blond and she is questioned and talks. Eventually, as the conversation moved to other potential jurors, he senses that she is sobbing.

I should not be telling his story; we are going to have to check with him that this is okay or cut this. He becomes aware of it and he does not know what to do, but he does know what to do and not because it is a strategy or a technique or he has permission. What comes out of his mouth is he says to her. ‘I see you. How can I help? ‘ and he opens the gate and he says something about would you like me to– I do not even know that he finishes or talks to the Judge or… He also describes where he asks her– I do not even know if he does it verbally, but ‘Come,’ and he is going to escort her and his hand is right behind the small of her back to help support her. She is not collapsing, but dare he touch her, should he. Then he stops thinking about that and just gently helps. That ‘I see you’ just thrilled me. [Laughs] I see you. Oh! He said, after that, within a few moments, the venire panel exploded in stories and self-revelations at a level that it had not approached before.

SG: That is a beautiful story.

JK: Is that not? You will do one with him. [Laughs]

SG: There is another quote of yours that you put out. ‘The place that seems most dangerous is exactly where safety lies.’

JK: That is Barbara Cook, who was the great coloratura and soprano– it was always the silvery soprano of Barbara Cook– and she created some roles in the musical theater and is considered a great teacher, said that. You probably are going to have to explain where these quotes come from and what all that is about.

SG: Please do.

JK: That is just everything that we are afraid of saying that it will damage the case, that it will poison the jury. It does not, but what people sense is that you are being held back, you are holding yourself back, you are suppressing something. Things that the other side… you fear that they are going to try to use to humiliate your client or that it is a negative thing when you own it. It does not take it away, but it neutralizes the negative aspect of it and sometimes it is a very positive thing.

It is like Jean Valjean– yes, he stole a loaf of bread. Why? Because a child was hungry. And Les Mis has been quite a success and the book Les Miserables. Kids read that, in the old days, in school in ways they do not now. We are afraid that if the jury finds out that he had a conviction, a conviction, for theft. Yet, when they find out, yes, he did, he stole a loaf of bread because a child was hungry. Now we see him as heroic and having courage. This is the great stuff the Rick Freedman has done in polarizing the case, taking what they are trying to make you afraid of having revealed. That is part of what he is doing, not the whole thing, but yes.

I also think it is because all you have is the truth and I think the only way you can speak with that unfettered passion is because you are not hiding anything. Yes, please, come in. Which is why the idea of letting each juror, no matter how quickly, look into your eyes before you ask them to start being responsible for spoken information. Now, in order to do that, sometimes you have to spend a long time in training looking so that you are not trying to flinch or get it over with or run away or get to the words. In the training part, as you are building the muscle, people can feel ‘oh, this is so awkward. Nobody wants to be stared down.’ No, of course not, but we are not saying that in the end, you are going to be looking at somebody that long before you talk. What you are learning how to do is be able to stand up in front of people unprotected by language or arguments or training or education or personality and just be there. You remember looking into your boys’ eyes when they were pre-verbal, when they were in that crib, and the glory of that and they were not afraid of you and they certainly were not afraid of looking. Yes.

SG: That seems to relate, in a way, to creating a safe space. What I referred to earlier is when you work with a group of lawyers or folks, before they walk in, you spend a tremendous amount of time writing out beautiful and meaningful quotes and decorating–

JK: –Standing up on 12-foot ladders and in hotels, negotiating with their catering staff who are concerned about liability and all that, yes, so that people walk into a room where something has been made for them. It helps me with my stage fright, that I have made a space. Then it came to me, at one point, to have them tour silently because we are asking them to take a risk and I cannot ask them to do that if I am not going to be doing something like that. What is riskier than asking a group of attorneys to not talk and to move through that space quietly, just reading them all. I always worry that when people have been to a seminar before that, okay, they have done this and the response is always no. It is not ‘been there, done that.’ It is a rediscovery of what it is to be allowed to just be there and receive something and then gather in the silence and then begin with language out of already a communal experience having happened.

I am sounding so spiritual; I don’t know who’s talking. [Laughs]

SG: It does seem to, in some ways, all boil down to what you mentioned earlier, to love, to caring about the other person. And honoring them and acknowledging them and being vulnerable, sharing, unabashedly, who you are.

JK: Yes, and that does not mean talking about it. It is a non-verbal. Eric Oliver says, ‘Rapport is not a verbal phenomenon.’ My father, when I was little, used to say, ‘Clichés are the encapsulating wisdom of the ages. I live by clichés,’ and I thought, ‘Ugh, how can you say that? I live by clichés– that is terrible,’ but I find that I am spending a lot of time with quotes and these quotations are wisdoms and gathering them all– when people ask me to send them, I am happy to.

SG: Joshua, what advice to you have for listeners out there that want to get to this place where they can be open and vulnerable and communicate naturally with eye contact? What tools are there out there, or exercises, or books? What words of wisdom or advice do you have for people who want to get there?

JK: I realize there was something that I was going to say before and it was another quote and then I lost it which is this great acting teacher and she said ‘Great moments on stage, like great moments in life, happen when who you are talking to suddenly becomes more real to you than what you would come on stage thinking you needed to say.’ That is true with jurors, that it is not that you abandon the script, but that, in terms of priorities, who you are actually talking to is your priority. You are bringing this information to them and sometimes the language has to be exact and memorized, you know, if you play Shakespeare, you cannot change it. You cannot even change a pause because the– [laughs] a pause– because the pauses bespeak, in that writing, the state of mind of the speaker. Letting who you are talking to trump retrieving the text exactly can be done in exercise work. You have to come to a place where you are willing, in exercise work, to forget your lines and hang with the person, your partner.

There are a lot of ways we do that with shaking the hand– widely imitated, that technique. Some people will want to dart their eyes away, retrieve a script, because standing here with another person in physical contact, not armed with acceptable language, can be harrowing. Once I have tolerated that, I realize that I can always go back to the table and get the words, but if the listener feels that I am more concerned about the words than about them, that is a primary loyalty– a primary priority– what is the word I am looking for the– hierarchy. At the top of the hierarchy has to be my understanding as the attorney that I cannot do it without you. Even if I have been betrayed in the past, even if I am terrified of you, I need you. If you sense that I see you as a necessary inconvenience, a caption, an afterthought, a postscript, to all of my preparation, I am losing the one thing I need which is that you feel that none of this can happen without you. That is the truth of it; that is the genius of what they did. They replaced the king with the jurors and that I am here serving this jury so that they can do the right thing.

It takes an enormous amount of preparation to feel free to forget your lines so they will come to you in the moment based on who you are really talking to. Then the listener knows that it will never be reproduced the same way again for anybody else than it is being heard right now because of who I see you are. It is the magic– oh, God, I swore I would never use that word– but the thrill of falling in love right now, right here. Whatever the fears the juror came in with of being tricked or of going against certain assumptions– when we fall in love, that is when we are willing to bypass those because it feels like there is a truth here now that I did not know I could have and I do not want to be without you. You are going to bring me something that nobody else can because of how you feel about me.

SG: That is just beautiful. Joshua, thank you so much–

JK: Oh, we are done? [Laughs]

SG: No, we do not have to be done. We do not have to be done.

JK: We can be done. Do you want to look down there and see if there is anything else? We did it all? You know this from the workshops, I am throwing up before it starts and then, oh, four hours are over? But, but, but we are not done, yet, are we?

SG: What else would you like to share?

JK: My gratitude to the extraordinary courage of trial lawyers and the ones who protect and the ones who risk. My profound gratitude.

SG: Let me echo that gratitude. Joshua, you have done more to help great lawyers and by helping great lawyers, helping thousands of clients, thousands of people out there who needed justice or needed not to be imprisoned. Thanks to your wonderful gifts, you have made a lot of peoples’ lives much better. I know it is embarrassing to you, but I am going to continue to call you the ‘Magic Man’ because that is what you are and the gifts you bring are tremendous. On behalf of myself personally, on behalf of all of your students around the country and all of the great clients that you have helped, thank you.

Thank you for joining us today for Trial Lawyer Talk. If you like the show, I would really appreciate it if you could give us a good review on iTunes and I would love to get your feedback. You can reach me at That is I would 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 is 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 and we will talk to you in the next episode.

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