Law Tips: The Art of Telling the Story Well in the Courtroom

“A trial is a highly prepared, precise operation…. It is critical that impressions are managed and stories are clear.”

It’s my pleasure to welcome back David Mann, The Professional Education Group, Minneapolis, MN, who is sharing his expertise on the importance of storytelling for litigators. In case you missed his interesting discussions earlier on persuasion and managing rhetorical delivery, I’ll include links below. Now he delves further into constructing the story and engaging the mind:

It is often said that a case is a story. The idea is if you can tell the story well, you stand a much better chance of winning. Within the case, there are several opportunities to tell stories: the opening statement, the summation, and at various points in the trial proceedings as witnesses articulate their points of view. But despite the fact that it’s unquestionably part of a successful case, the skill of telling a story well is often underdeveloped. It is a true art which, when done well, appears effortless.

The first step is getting clear about what a story is, and what it is not. The word “story” is used liberally, but it’s not just a catch-all term for a list of facts or events. Likewise, a story isn’t complete if it only consists of a highly-charged event or interesting character. And of course, a clinical essay with a well-shaped argument doesn’t equal a story. It is important to think of it as a specific type of entity. An engaging story has these foundational elements:

  1. A good story engages the mind and emotions at the same time.

A story must be logical and coherent (mind) so that the drama and intrigue (emotions) function effectively. Clearly, these principles apply to stories told for entertainment and artistic purposes, but the same rules apply for persuasive stories used in the courtroom. Stories that tilt to far in either direction are ineffective. A narrative that covers the correct series of events may be logically sound, but it won’t capture the imagination. Likewise, a story that relies too heavily on mood and sentiment will seem spineless and soft. It’s the balance of both elements that grabs a listener and keeps them engaged.

  1. A good story allows us to see the events through the eyes of a human. We engage in a story when we can identify with the protagonist – even if the protagonist is a person who doesn’t share our values. All great stories have an engaging central character or two, because without that it’s simply a setting and a plot. Humans like to hear about other humans, and painting those characters vividly is vital to the persuasiveness of a story.
  2. A good story has a before-during-after shape. We need to know what happened, even if the events are told out of chronological order. By the time the listener hears the end of the story, they need to be able to think of it as having a logical order of events that is crystal clear. Too much “during” without enough “before and after” will reduce the sense that something important happened. The contrast makes the story come alive. A story with a clear narrative, engaging characters, and mind/emotion appeal stands the best chance of being highly persuasive.

Preference for Incomplete Information
Although it is counter-intuitive to a logical attorney, humans actually prefer to have less information. Our brains have developed over time to adapt to having incomplete information from which to make decisions. Our ancestors had to deal with potential adversaries like wild animals and neighboring tribes, and often there simply wasn’t enough time in the heat of the moment to gather sufficient information to make a logical decision. Was the animal running toward you or away from something else? Was the gathering horde approaching to make war or ask for help? Our brains made as much sense as they could of the situation, filled in the missing information based on assumptions and prior experience, then promptly acted according to that pieced-together assessment. We still do it every day.

Consider these two sentences: John felt hungry. He got into his car.

There is nothing tying those two ideas together, yet a connection is made. John must be going to get food, right? But John could just as easily be looking for a book he left in his car. He could be late for an appointment. He could be doing hundreds of other things by getting into his car, only one of which would be going to get food. Consider how often that leap of logic happens when speaking to a jury, and consider how to use it to your advantage.

Constructing a Story
Here is the quick guide for constructing an effective story for use in the courtroom.

  1. Use your case themes to anchor your story
  2. Find the story moment you want to depict and decide on a story structure
  3. Include and elaborate on important details- eliminate unimportant details
  4. Develop the story arc for drama
  5. Use rhetorical devices from the list (see link below)
  6. Choose wording for clarity and impact

I thank David Mann for his contributions. Hopefully his storytelling expertise assists you in sharpening your skills. Click on the links below for his earlier blogs. If you are interested in learning more, ICLEF’s seminar presented by Mr. Mann, Advanced Skills of Storytelling and Persuasion for Litigators, is available for an On Demand showing or by video replay in your neighborhood. Click Here to setup that CLE at your convenience.

Here are the links to other Law Tips articles on Storytelling For Litigators:
A Professional’s Advice on Clarity, Compassion and Confidence in the Courtroom
A Professional’s Advice on Clarity, Compassion and Confidence in the Courtroom – Managing Your Voice
A Professional’s Advice on Clarity, Compassion and Confidence in the Courtroom – Great Speeches

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About our Law Tips faculty participant:
David Mann is a speaker, trainer, and professional actor/director. He has a specialized focus on persuasive presentation for lawyers, and he is on the faculty of NITA (National Institute for Trial Advocacy) and Loyola School of Law. A professional theater artist for over two decades, David has performed or directed for many recognized theatre companies. He has written and performed five critically acclaimed one-man shows, and he is a recipient of a Bush Artist Fellowship for Storytelling. David is a graduate of Northwestern University, and the London Academy of Music and Dramatic Art. If you have questions for David or would like to inquire about his coaching, contact him at david@davidcmann.com. For speaking engagements go to the Professional Education Group at proedgroup.com.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Legal Weapons To Combat Improper Competitive Conduct by Former Employees – Part 2

Welcome back as we continue Scott Morrisson’s insights into protecting your clients from a former employee’s wrongful competition. Scott noted last week that “Not all is lost if an employer does not have an enforceable agreement with its employees.” Those relative comments and an overview of The Indiana Uniform Trade Secrets Act appear at the bottom of this article. This week Mr. Morrisson shares a sampling of current legal actions pertaining to that improper competitive conduct:

Examples of Common Law and Other Claims

Breach of Fiduciary Duty
An employer/employee relationship is an agency relationship. The employee, as agent, owes the employer, as principal, a fiduciary duty. See, e.g., Potts v. Review Bd. of Ind. Emp. Sec. Div., 475 N.E.2d 708, 711-12 (Ind. Ct. App. 1985). Some courts have characterized this fiduciary obligation as a duty of loyalty. See, e.g., SJS Refractory Co., LLC v. Empire Refractory Sales, Inc., 952 N.E.2d 758 (Ind. Ct. App. 2011); Kopka, Landau & Pinkus v. Hansen, 874 N.E.2d 1065, 1070 (Ind. Ct. App. 2007); Davis v. Eagle Products, Inc., 501 N.E.2d 1099, 1104 (Ind. Ct. App. 1986). Regardless of the nomenclature, this common law fiduciary obligation prohibits the employee from competing with his employer prematurely or otherwise competing in breach of his duty to the former employer.

Computer Trespass and Tampering
A departing employee may expose himself to potential civil and criminal liability under Indiana statutory law by unauthorized retrieval or deletion of the employer’s computer data. An employee who knowingly or intentionally retrieves information from the employer’s computer system or network without the employer’s consent commits computer trespass, a Class A misdemeanor. Ind. Code§ 35-43-2-3. 1

Likewise, an employee “who knowingly or intentionally alters or damages a computer program or data, which comprises a part of a computer system or computer network without the consent of the owner of the computer system or computer network commits computer tampering, a Class D felony.” Ind. Code§ 35-43-1-4. See also Meridian Financial Advisors, 763 F. Supp. 2d at 1061 (observing that given the dearth of Indiana cases interpreting the computer tampering statute, it is unclear whether Indiana courts would construe such statute so broadly to include the deletion of email).

Given the ubiquity of computers in the modem workplace and the natural temptation for soon-to-be-departing employees to retrieve and/or delete useful computer data, employers should be mindful of the computer trespass and computer tampering statutes because they can provide a basis for civil recovery. Like criminal conversion, computer trespass (Ind. Code§ 35-43-2-3) and computer tampering (Ind. Code§ 35-43-1-4) are among the class of property crimes that may serve as a basis for a claim under the Indiana Crime Victim Relief Act, Indiana Code § 34-24-3-1. Thus, treble damages and attorneys’ fees may be recoverable.

Computer Fraud and Abuse Act
An employee or former employee who illicitly retrieves or deletes data from the employer’s computer may be subject to criminal penalties and civil liability under the federal Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. Although the CFAA is primarily a criminal law intended to address computer hacking and other malicious interferences with computer systems, civil actions are authorized under certain instances. 18 U.S.C. § 1030(g).

The CFAA enumerates seven types of criminal activity relating to computers, including theft of computer data (18 U.S.C. § 1030(a)(2)), unauthorized access with intent to defraud (18 U.S.C. § 1030(a)(4), and unauthorized access resulting in damage to computer (18 U.S.C. § 1030(a)(5)). The civil action provision of CFAA, which allows for the recovery of “compensatory damages and injunctive relief or other equitable relief,” establishes a $5,000 minimum damages requirement as a jurisdictional threshold for most applicable violations. 18 U.S.C. § 1030(g); See also Meridian Financial Advisors, 763 F. Supp. 2d at 1061.

Claims under the CFAA often hinge on whether the employee’s access was unauthorized or exceeded applicable authorization. See, e.g., LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009); Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7’h Cir. 2006); Black & Decker, Inc. v. Smith, 568 F. Supp. 2d 929 (W.D. Tenn. 2008).

Civil Conspiracy
“A civil conspiracy is a combination of two or more persons who engage in a concerted action to accomplish an unlawful purpose or to accomplish some lawful purpose by unlawful means.” Boyle v. Anderson Fire Fighters Assn Local 1262, AFL-CIO, 497 N.E.2d 1073, 1079 (Ind. Ct. App. 1986). Lawful acts may thus become a conspiracy when they are committed in concert for an illegal purpose. Id. Indiana recognizes that “[t]here can be no doubt in this state that it is an actionable wrong to interfere, either directly or indirectly, with the business of another without cause or justification and that all parties to such combination are liable for the acts illegally done in pursuance of such conspiracy and for the consequent loss sustained, whether they be active participants or not.” Fort Wayne Cleaners & Dyers Assn v. Price, 137 N.E.2d 739, 742 (Ind. Ct. App. 1956). While a party cannot be liable for tortuously interfering with its own contract, the party can be held liable for conspiring with another to tortuously interfere with the contract. Allison v. Union Hosp., 883 N.E.2d 113, 118 (Ind. Ct. App. 2008). One often sees civil conspiracy claims brought when two or more employees leave, and on occasion, when claims are made against the departing employee and new employer.

Conclusion
An employer should not rely on the Indiana Uniform Trade Secrets Act or common law rights to the exclusion of a contractual covenant not to compete or other contractual agreements. The best way to prevent harmful competition by ex-employees is to utilize well-drafted noncompetition and related agreements. In those instances where a noncompetition agreement does not exist or is impossible to obtain (i.e., employee refuses to sign covenant not to compete), the Act, the common law, and certain Indiana statutes provide an employer with a limited measure of protection from competition by former employees, as well as additional potential remedies. Although these noncontractual claims may be more difficult for an employer to establish, they can, in certain instances, provide an employer with effective weapons to combat wrongful competitive conduct by former employees.

1 Indiana Code § 35-43-2-3 provides:
(a) As used in this section:
“Access” means to:
(1) Approach;
(2) Instruct;
(3) Communicate with;
(4) Store data in;
(5) Retrieve data from; or
(6) Make use of resources of;

a computer, computer system, or computer network. “Computer network” means the interconnection of communication lines or wireless telecommunications with a computer or wireless telecommunication device through:
(1) remote terminals;
(2) a complex consisting of two (2) or more interconnected computers; or
(3) a worldwide collection of interconnected networks operating as the Internet

Thank you to Scott Morrisson for his valuable input on non-competition agreements and claims. For a comprehensive educational session in this area, register for the Covenants Not To Compete & Trade Secrets seminar. This CLE program is available either through as a Video Replay Seminar in your area or by watching an On Demand Seminar at your own computer. Click Here to make your choice of the version you prefer.

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About our Law Tips faculty participant:
Scott S. Morrisson, Partner, Kreig DeVault, LLP, Carmel, IN – Mr. Morrisson’s main area of practice is civil litigation and litigation analysis involving a wide range of civil litigation matters. Particular areas of focus include employment, insurance, business, corporate, construction, trademark, tort, and ESOP litigation. He also focuses on arbitration and mediation. Mr. Morrisson has served as lead counsel on numerous jury trials, bench trials, preliminary injunction hearings, court hearings, and arbitrations in state and federal courts of Indiana and throughout the country. Additionally, he represents individuals and employers in negotiating, drafting, and evaluating Employment, Non-Compete, and related agreements.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Tips, News0 Comments

Law Tips: Legal Weapons To Combat Improper Competitive Conduct By Former Employees

Many employers have their employees sign covenants not to compete or confidentiality agreements that generally prohibit an employee from working for a competitor or from using the employer’s confidential information. But, what if the employer did not secure such an agreement with its employees? In those cases, there are ways to combat improper competitive conduct by former employees. Scott Morrisson, from Kreig DeVault LLP, Carmel, Indiana, joins us at Law Tips to help identify and respond to that behavior:

Not all is lost if an employer does not have an enforceable agreement with its employees. The Indiana Uniform Trade Secrets Act may provide the employer with a mechanism to curtail a former employee’s wrongful competition. The employer also may be able to avail itself of certain common law claims against former employees to prohibit or recover for activities in derogation of the employee’s common law duties, including breach of fiduciary duty, conversion, tortious interference with contractual or business relationships, and other claims. Statutes addressing improper use of computer systems may also provide the basis for civil claims against a former employee. While these noncontractual claims may be more difficult to establish, they do provide the employer with potential weapons to combat wrongful competition and use of confidential information by an ex-employee.

Indiana Uniform Trade Secrets Act
Indiana is one of the majority of states that have adopted the Uniform Trade Secrets Act (the “Uniform Act”). Uniform Trade Secrets Act, 14 U.L.A. 529 (2005). Indiana’s version of the Uniform Act was adopted in 1982. It is substantially similar to the Uniform Act, and is codified at Indiana Code Sections 24-2-3-1 to 24-2-3-8 (the “Act”). Amoco Production Co. v. Laird, 622 N.E.2d 912, 917 (Ind. 1993). Section 24-2-3-1 makes clear that the Act “displaces all conflicting law of this state pertaining to the misappropriation of trade secrets, except contract law and criminal law.” Ind. Code § 24-2-3-1. (emphasis added) 1 The policies underlying the Act are essentially twofold: “[1] the maintenance of standards of commercial ethics and [2] the encouragement of invention.” Amoco Production Co., 622 N.E.2d at 921 (quoting Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470,481,94 S. Ct. 1879, 1886,40 L. Ed.2d 315,325 (1974)).

The essence of the Act is the following: The Act prohibits the misappropriation of trade secrets and provides civil remedies, including injunctive relief, for violations or threatened violations. The Act’s basic proscriptions are contained in the definitional section of the Act, Section 24-2-3-2. This definitional section is substantive in nature and sets forth the elements of a violation through definitions of “improper use,” “misappropriation,” “person” and “trade secret.” Ind. Code § 24-2-3-2; accord Amoco Production Co., 622 N.E.2d at 915, n.1.

An employee who is privy to his employer’s trade secrets is liable for misappropriation under the Act if he discloses the trade secret information to a third party (i.e., his new employer) in breach of a duty to maintain secrecy. This is true even though the employee did not use “improper means” to acquire the information originally.

What Constitutes A Trade Secret
This is the critical question. Every client will tell you that their information is confidential trade secret information. Sometimes it is, sometimes it is not, and sometimes it is not clear. Whether a client classifies certain information as a trade secret is not controlling. Franke v. Honeywell, Inc., 516 N.E.2d 1090, 1093 (Ind. Ct. App. 1987). It is important for the attorney to “drill down” on this topic and press the client for all information about the alleged trade secret.

As the Supreme Court of Indiana has aptly observed, “‘trade secret’ is ‘one of the most elusive and difficult concepts in the law to define.” Amoco, 622 N.E.2d at 916. Whether the information at issue constitutes a trade secret is often the most critical and hard fought aspect of a misappropriation of trade secrets case. The definition of “trade secret” under the Act is by no means precise: “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

(1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Ind. Code § 24-2-3-2.

Under this definition, a trade secret has four characteristics: (1) information; (2) which derives independent economic value; (3) is not generally known, or readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and ( 4) is the subject of efforts reasonable under the circumstances to maintain its secrecy. E.g., Bridgestone Americas Holding, Inc. v. Mayberry, 854 N.E. 2d 355, 362 (Ind. Ct. App. 2006); US. Land Services, Inc. v. US. Surveyor, Inc., 826 N.E.2d 49, 63 (Ind. Ct. App. 2005); Hydraulic Exchange and Repair, Inc. v. KM Specialty Pumps, Inc., 690 N.E.2d 782,785- 86 (Ind. Ct. App. 1998); See also CDW LLC v. NETech Corp., 722 F. Supp. 2d 1052, 1063 (S.D. Ind. 2010).

The specific categories of information referred to in the statutory definition-” formula, pattern, compilation, program, device, method, technique, or process” –are merely examples of the type of information that may comprise a trade secret. They are not an exhaustive list of qualifying categories. Ackerman v. Kimball Int’l., Inc., 634 N.E.2d 778, 783 (Ind. Ct. App. 1994), vacated in part, adopted in part, 652 N.E.2d 507 (Ind. 1995). Whether a particular item of information is a trade secret is very fact-specific. Consequently, the same information may qualify as a trade secret under one particular factual context, but may not qualify for protection under a different set of facts. Amoco, 622 N.E.2d at 916; US. Land Services, Inc., 826 N.E.2d at 63. Yet, “[T]he question of what constitutes proprietary or trade secret information is a determination for the court to make as a matter of law.” Coleman v. Vukovich, 825 N.E. 2d 397,405 (Ind. Ct. App. 2005) (quoting Franke v. Honeywell, Inc., 516 N.E.2d 1090, 1093 (Ind. Ct. App. 1987)). The burden of proof is on the party asserting the trade secret to show that the information at issue qualifies as a trade secret. Amoco, 622 N.E.2d at 920; US. Land Services, Inc., 826 N.E.2d at 63.

1 In a recent case, Indiana held that the Act preempted a company’s claim of idea misappropriation based on Ind. Code §24-2-3-1. HDNET, LLC v. North American Boxing Council, 972 N.E.2d 920 (Ind. Ct. App. 2012). HDNET contains an excellent discussion of the preemption issue. On the other hand, given the “criminal law” exception, Indiana has held that civil RICO claims are not preempted. AGS Capital Corp. v. Prod. Action, Int’l, LLC, 884 N.E.2d 294, 306-8 (Ind. Ct. App. 2008).

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We’ll take a short break now in Scott’s interesting discussion. Be sure to return to Law Tips next week as he completes the picture with his insights into non-compete claims, such as breach of fiduciary duty, computer trespass and other current issues.

Meanwhile for an in-depth discussion of trade secrets, pertinent case law, non-compete agreements, etc. from our expert panel that includes Scott Morrisson, you may register for the Covenants Not To Compete & Trade Secrets seminar. This CLE program is available either through a video replay in your locale or by setting up an On Demand online session at your own computer. Click Here to make your choice of the version you prefer.

_________________________________________________________________________________

About our Law Tips faculty participant:
Scott S. Morrisson, Partner, Kreig DeVault, LLP, Carmel, IN – Mr. Morrisson’s main area of practice is civil litigation and litigation analysis involving a wide range of civil litigation matters. Particular areas of focus include employment, insurance, business, corporate, construction, trademark, tort, and ESOP litigation. He also focuses on arbitration and mediation. Mr. Morrisson has served as lead counsel on numerous jury trials, bench trials, preliminary injunction hearings, court hearings, and arbitrations in state and federal courts of Indiana and throughout the country. Additionally, he represents individuals and employers in negotiating, drafting, and evaluating Employment, Non-Compete, and related agreements.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Elder Law: A Rock Steady Approach to Clients Challenged by Progressive Disease

Your approach to a client with age or disability challenges is crucial to their peace of mind. During ICLEF’s recent Elder Law Institute this subject received a unique type of attention. Attendees learned of Indiana’s Rock Steady Boxing program where people fight their disease with vigor. Our expert Elder Law faculty member, Scott Severns, offers candid impressions of his encounter with The Rock Steady Approach and his Top Three Aha’s:

As Elder Law Attorneys, we help our clients face a variety of challenges from disability and aging. We devise sophisticated trusts and draft other documents to enable family members to legally accomplish the important goals of and for the person in need of care. We guide clients through baffling Medicaid law and an even more baffling bureaucracy.

The way that we approach our work with a client and family can have major impact on the choices they make. When we are at our best, we strengthen the ability of the individual and family care givers to meet the challenges successfully together, preserving the values most dear to them.

Every once-in-a-while, we encounter something that startles us to a new understanding of effective help. For me, the Rock Steady Boxing program for people with Parkinson’s Disease has been such a startling–and inspiring–encounter.

Here are some questions to ask yourself as you watch the video and hear the description of this program (below). I will follow up with Severns’ Top Three Aha’s from the Rock Steady Approach.

  • Is this just another form of therapy or exercise?   What’s different about it?
  • What is the primary focus of the coaches?
  • At Rock Steady, boxers work out with others who are engaged in the same battle. How important is the “common cause?”
  • What most surprised you about Rock Steady?
  • What client(s) in your case load might benefit from a program like Rock Steady?
  • Are there aspects to the Rock Steady approach that could improve the way we counsel, represent, strategize with our clients?

Joyce B. Johnson, Executive Director, Rock Steady Boxing, offers this video with an insightful message:
Purdue Parkinson’s Disease Research and Rock Steady Gym

Severns’ Top Three Aha’s from the Rock Steady approach:
Boxers engage with their disease as a challenge, not a death sentence. By coming together with others facing similar challenge to fight back, boxers overcome isolation and depression. No boxer is written off or permitted to give up. They collaborate; they don’t commiserate.

How do we as lawyers encourage clients to engage rather than to become passive or succumb? I’m aware that I am tempted to be the “man with the answers” or even a rescuer. My most rewarding client relationships, however, are those where I’m in the client’s corner as the client meets hers or his challenge.

I have often witnessed the spiral toward isolation and depression that often accompanies a chronic degenerative disease, so I listen for what relationships and activities are and have been most meaningful in the client’s life. I can then explore how those can be maintained, enhanced or re-cast in a new setting. Staying independent and alone at home is not the ultimate goal for everyone and certainly entry to a facility that treats residents as problems is not the right alternative, either. I must be aware of the trajectory that Medicaid planning, for instance, creates. I must help family care givers to become effective advocates when facility practices or staff hit below the belt.

Boxers are “boxers,” not “Parkinson’s victims.” Family members and friends are “corner-men” rather than guardians, spokespersons or even care givers.

In counseling, what words do I use to refer to and describe my client? My client’s corner-men? Can the documents I draft be better-worded to enhance self-image of the client and the “better angels” of family members’ character?

Coaches are encouragers, accommodating each boxer’s limitations while focusing on their strengths. Coaches help each boxer discover and enhance capacities that the boxer may not have even known s/he had.

When we meet with clients with diminished capacity, how well do we accommodate limitations without emphasizing them, and help the client recognize and build upon what is strong in him/her? Even more challenging, we’ve all had experiences where family members’ manner of speaking treats the client with mental or physical impairment as a problem, rather than a person with deep values and strengths. I have to remind myself at times not to talk over a client with dementia, to ask questions scaled to the client’s capacity-to involve the client in decisions to the extent possible. Sometimes I simply keep my eyes focused on the client and ignore the interruption of a family-member who seeks to take over the conversation from the client.

By modeling deference and true concern for the views of the client with an impairment, we can sometimes help everyone discover the right relationship to meet their challenges together.

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I appreciate the support of Law Tips from Scott Severns and Joyce Johnson. Their Rock Steady Approach is definitely inspirational. You may hear their CLE presentation by registering for the Elder Law Institute at your convenience through ICLEF’s On Demand programming. Also available is our 2015 Advanced Elder Law Seminar,  a Masters Series Seminar, August 14-15 at the Canyon Inn at McCormick’s Creek State Park in beautiful southern Indiana.

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About our Law Tips faculty participants:
Scott R. Severns, Partner, Severns Associates, P.C., Indianapolis
Known by many in Indiana as the “Father of Elder Law,” Scott Severns is a founding member and Past President of the National Academy of Elder Law Attorneys. His professional career has focused on legal and health care issues that confront older adults and people with disabilities. A Past President of the National Citizens’ Coalition for Nursing Home Reform and a former policy analyst for United Senior Action, he has successfully lobbied for nursing home reform laws and was a primary architect of Indiana’s home health care legislation known as the CHOICE program. He is a regular faculty member for the Indiana Continuing Legal Education Forum, the American Bar Association, and the National Academy of Elder Law Attorneys.

Joyce B. Johnson, Executive Director, Rock Steady Boxing, Indianapolis
Joyce Johnson leads the RSB team as its Executive Director. She has more than 30 years experience managing organizational change and growth. Johnson was Vice-President of the Greater Educational Opportunities Foundation. She is the editor of “Key Things Parents Should Know about Education in Indiana,” published in 2004.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Blog, Law Tips, News0 Comments

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