Law Tips: Trying Cases in a World of Media Overload: Adapting to the Audience’s Expectations

Welcome back to our Law Tips discussion by Tony Paganelli on issues a trial lawyer can encounter in today’s world of media overload.  In this week’s blog Tony takes the case to the judge and jury. Mr. Paganelli believes that even though TV and movies create an image removed from real life litigation, there are ways a trial lawyer can adapt successfully in the courtroom. I’m pleased to provide to our Law Tips readers his insights on adapting to the audience’s expectations:

Although a lawyer can (hopefully) communicate in advance with a client in such a way as to condition him or her to understand that lawsuits in real life are far removed from what they see in the movies or on TV, a lawyer has no such opportunity with a judge or jury. To a large extent, a lawyer must adapt to meet those expectations as much as possible in hopes of winning a case. Put simply, Johnnie Cochran and the cast of CSI have ruined it for the rest of us. Fortunately, there are many ways to create a polished and sophisticated impression without breaking the bank or distracting from the message that you want to convey on your client’s behalf. The two main areas where these issues come into play are courtroom visuals and “theatrical” performances of counsel.

First, lawyers must decide whether theirs is a case that lends itself well to multimedia presentations, and whether their judge and courtroom are good candidates for such presentations. If the answers to these questions are “yes,” then it is worth considering using these tools to enhance a courtroom performance.

While certain courtroom animations and computerized visual effects can be cost-prohibitive for many lawyers, and in addition to being complicated to use in a courtroom and temperamental to the point of being unreliable, recent advances in technology have made impressive-looking presentations both easier to use and less expensive than in the recent past. In fact, Microsoft PowerPoint, that staple of meetings and conferences, is both powerful and flexible enough to allow lawyers to quickly and easily create impressive visuals to use in a courtroom, either to project and emphasize exhibits, or to emphasize key points made in oral arguments. Most lawyers already own the software as part of the Microsoft Office suite that they use daily as they run Word, Excel, and Outlook. The hardware is almost equally accessible. Most lawyers either have or can borrow a laptop computer. Similarly, most law firms have a projector and screen and, if not, they can be rented inexpensively or purchased in many cases for a onetime investment of less than $1,000.00. Several books are available to help. Lawyers use these tools to create polished and impressive (and persuasive) visuals, including Cliff Atkinson’s Beyond Bullet Points, Jerry Weissman’s Presenting to Win, Christopher Ritter’s Creating Winning Trial Strategies and Graphics, and Slide:ology by Nancy Duarte.

In the area of courtroom demeanor, the solution is equally achievable. Contrary to popular belief, judges and juries do not expect (or want) lawyers to be blow hards or bullies. Rather, studies show that jurors sympathize with witnesses who are badgered and are put off by arrogant and pretentious trial lawyers. What they want you to show, however, is sincere passion for your client’s case and poised, polished presentation. Standing at counsel table and reading your examination questions or your closing argument in a monotone from your legal pad places you in a stark (and unfavorable) contrast from the actors and actresses they see going through the same motions in the movies, and from the celebrity lawyers whose cases are covered on the news.

Even in an era where jurors have seen hundreds of fictional closing arguments and cross-examinations, their expectations of how a lawyer should act in a courtroom will be met by a well-dressed and groomed (but not flashy) lawyer who appears prepared, organized, and confident, who advocates passionately and confidently (but not obnoxiously) for his or her client’s cause.

Here, like in most aspects of litigation, there is no substitute for simple preparation. A well-prepared lawyer will naturally be confident-and therefore appear confident-as he or she presents a client’s case. Argue with passion and conviction, but don’t pound the table theatrically or turn on the crocodile tears. You won’t be perceived as a movie star, but rather as a bad actor. Put another way, don’t bury your emotions-they can be a powerful tool for communicating your client’s message. But at the same time, don’t manufacture emotions because you think that’s what your audience wants to see. That insincerity will backfire every time.

Movie stars and famous lawyers with unlimited budgets have certainly made it harder for the rest of us to look good in comparison. But with some planning it’s still possible to manage your client’s expectations of what a lawsuit looks like and how a trial lawyer acts so that you won’t fall short in your client’s eyes when your case takes longer than 44 minutes (not counting commercials) to get from first meeting to trial. At the same time, with just a little work you can put on a case that’s (almost) worthy of a Hollywood production without compromising your client’s interests or blowing your litigation budget.

Break a leg!

_________________________________________________________________________________

About our Law Tips faculty participant:
Tony Paganelli is the principal of the Paganelli Law Group, Indianapolis. Before leaving to found his own law firm in 2013, Tony was a litigation partner for several years with one of the largest law firms in the United States. Tony is an experienced trial lawyer with nearly 20 years of experience representing people and companies of all sizes in courtrooms across the United States. He also advises businesses on a wide range of issues, including employee relations, contracts and transactions, regulatory compliance, and intellectual property issues.

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: Pet Trusts – Client Friendly FAQ’s

Dogs, cats, parrots, and other pet animals play extremely significant roles in the lives of many individuals. Research indicates that pet ownership positively impacts the owner’s life by lowering blood pressure, reducing stress and depression, lowering the risk of heart disease, shortening the recovery time after a hospitalization, and improving concentration and mental attitude.1

The love owners have for their pets transcends death as documented by studies revealing that between 12% and 27% of pet owners include their pets in their wills. The popular media frequently reports cases that involve pet owners who have a strong desire to care for their beloved companions.2

Our Law Tips faculty participant, Professor Gerry Beyer, is here to share his professional insights into estate planning for pets. During his CLE instruction at the Midwest Estate, Tax and Business Planning Institute, he raises questions that often spring into a client’s mind when they begin to make provisions in their will for their pets’ care. Here’s a sample of Prof. Beyer’s “Client Friendly” Frequently Asked Questions:

What is a “pet trust”?
A pet trust is a legal technique you may use to be sure your pet receives proper care after you die or in the event of your disability.

How does a pet trust work?
You (the “settlor”) give your pet and enough money or other property to a trusted person or bank (the “trustee”) with the duty to make arrangements for the proper care of your pet according to your instructions. The trustee will deliver the pet to your designated caregiver (the “beneficiary”) and then use the property you transferred to the trust to pay for your pet’s expenses.

What are the main types of pet trusts?
There are two main types of pet trusts.

The first type, called a “traditional pet trust,” is effective in all states. You tell the trustee to help the person who is providing care to your pet after you die (the beneficiary) by paying for the pet’s expenses according to your directions as long as the beneficiary takes proper care of your pet. Many pet owners will prefer the traditional pet trust because it provides the pet owner with the ability to have tremendous control over the pet’s care.

The second type of pet trust, called a “statutory pet trust,” is authorized in almost 40 states. A statutory pet trust is a basic plan and does not require the pet owner to make as many decisions regarding the terms of the trust. The state law “fills in the gaps” and thus a simple provision in a will such as, “I leave $1,000 in trust for the care of my dog, Rover” may be effective.

How much property do I need to fund my pet trust?
You need to consider many factors in deciding how much money or other property to transfer to your pet trust. These factors include the type of animal, the animal’s life expectancy (especially important in case of long-lived animals), the standard of living you wish to provide for the animal, the need for potentially expensive medical treatment, and whether the trustee is to be paid for his or her services. Adequate funds should also be included to provide the animal with proper care, be it an animal-sitter or a professional boarding business, when the caretaker is on vacation, out-of-town on business, receiving care in a hospital, or is otherwise temporarily unable personally to provide for the animal.

The size of your estate must also be considered. If your estate is relatively large, you could transfer sufficient property so the trustee could make payments primarily from the income and use the principal only for emergencies. On the other hand, if your estate is small, you may wish to transfer a lesser amount and anticipate that the trustee will supplement trust income with principal invasions as necessary.

You should avoid transferring an unreasonably large amount of money or other property to your pet trust because such a gift is likely to encourage your heirs and beneficiaries to contest the trust. If the amount of property left to the trust is unreasonably large, the court may reduce the amount to what it considers to be a reasonable amount.

How do I fund my pet trust?
Direct transfers: If you create your trust while you are alive, you need to transfer money or other property to the trustee. You need to be certain to document the transfer and follow the appropriate steps based on the type of property. For example, If you create the trust in your will, you should include a provision in the property distribution section of your will that transfers both your pet and the assets to care for your pet to the trust. For example, “I leave [description of pet] and [amount of money and/or description of property] to the trustee, in trust, under the tenus of the [name of pet trust] created under Article [number] of this will.”

Pour over will provision: If you create your pet trust while you are alive, you may add property (a “pour over”) from your estate to the trust.

Life insurance: You may fund both inter vivos and testamentary pet trusts by naming the trustee of the trust, in trust, as the beneficiary of a life insurance policy. This policy may be one you take out just to fund your pet trust or you may have a certain portion of an existing policy payable to your pet trust. This technique is particularly useful if you do not have or anticipate having sufficient property to transfer for your pet’s care.

Pay on death accounts, annuities, retirement plans, and other contracts: You may have money in the bank, an annuity, a retirement plan, or other contractual arrangement that permits you to name a person to receive the property after you die. You may use these assets to fund both inter vivos and testamentary trusts by naming the

trustee of your pet trust as the recipient of a designated portion or amount of these assets. There may be income tax consequences to your estate when retirement plans are used in this way.

Who should be the trustee of my pet trust?
The trustee needs to be an individual or corporation that you trust to manage your property prudently and make sure the beneficiary is doing a good job taking care of your pet. A family member or friend may be willing to take on these responsibilities at little or no cost. However, it may be a better choice to select a professional trustee or corporation that has experience in managing trusts even though a trustee fee will need to be paid.

In closing, Professor Beyer sums up thusly:
Estate planning provides a method to provide for those whom we want to comfort after we die and to those who have comforted us. It is not surprising that a pet owner often wants to assure that his or her trusted companion is well-cared for after the owner’s death. By using a properly constructed traditional trust or a statutory pet trust, you may carry out your client’s intent to protect his or her non-human family members.

  1.  See A Dog’s Life (or Cat ‘s) Could Benefit Your Own, SAN ANTONIO EXPRESS-NEWS, May 18, 1998, at lB (explaining how some insurance companies lower life insurance rates for older owners of pets).
  2.  See Anne R. Carey & Marcy E. Mullins, USA Snapshots- Man’s Best Friend?, USA TODAY, Dec. 2, 1999, at lB (12%); Elys A. McLean, USA Snapshots – Fat Cats-and Dogs, USA TODAY, June 28, 1993, at lD (27%); Vital Statistics, HEALTH, Oct. 1998, at 16 (18%).

_________________________________________________________________________________

About our Law Tips faculty participant:
Professor Gerry W. Beyer joined the faculty of the Texas Tech University School of Law in June 2005 as the first holder of the Governor Preston E. Smith Regents Professorship. Previously, Prof. Beyer taught at St. Mary’s University and has served as a visiting professor at several other law schools including Boston College, The Ohio State University, Southern Methodist University, the University of New Mexico, Santa Clara University, and La Trobe University (Australia). Prof. Beyer was the recipient of the 2012-2013 Outstanding Researcher Award from the Texas Tech School of Law. As a state and nationally recognized expert in estate planning, Prof. Beyer is a highly sought after lecturer.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Tips, News0 Comments

Negotiation Blog: See Value of Face-to-Face Meetings

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

“Why should we negotiate face-to-face? Isn’t it more efficient to text, e-mail or even pick up the phone?”

I get asked this a lot. And I often end up recommending a face-to-face meeting. Why? Here are my Top 5 Reasons to Negotiate Face-to-Face.

1: Easier to get a “yes”
It’s much easier to say “no” by text or e-mail or even the phone than it is in person. If you want a “yes,” meet face-to-face.

Sophisticated sales professionals know that if they can get a face-to-face meeting with a prospect, it’s a big deal. It doesn’t guarantee a “yes,” but it moves you strongly in the right direction.

2: Better at building rapport and relationships
Some can masterfully build rapport and relationships online through texts, e-mail and social media. Doing this is a real art.

More folks, however, excel at relationship and rapport-building in person. For most, it’s just easier to build relationships face-to-face than electronically.

Of course, this may be generational. Kids today are growing up with an intravenous connection to their smart phones. So this might be changing.

But for the business professional now, you can’t duplicate the rapport and relationship-building opportunity of a face-to-face meeting, especially early in a negotiation.

3: More effectively read non-verbal signals
Researchers estimate the human face can project more than 250,000 different expressions.

Non-verbal signals like facial expressions and body language, plus tone, and even elements of sincerity and truthfulness, can only be evaluated in person or, to a lesser degree, by phone.

In a recent New York Times article M.I.T. professor Sherry Turkle, author of “Reclaiming Conversation: The Power of Talk in the Digital Age,” notes that technology was a significant factor in research finding a “40 percent decline in empathy among college students, with most of the decline taking place after 2000.”

Effectively exhibiting empathy and accurately reading the non-verbal signals of others are crucial skills in most negotiations – and don’t really take place except in face-to-face settings.

4: Lessens likelihood of miscommunication
How many of us have jumped to inaccurate conclusions about another’s intent or position based on a text or e-mail? It’s easy to do this.

If we were in a face-to-face meeting and weren’t sure of a person’s meaning, many naturally would ask “what do you mean?”

This immediate interactivity and ability to instantaneously explore a person’s meaning or fundamental interests can be crucial in negotiations. Yet this is often lost or less likely to occur when communicating electronically.

5: Increase efficiency
Finally, e-mail and text inherently seem more efficient than meeting in person. Just write and send, right?

Yet sometimes we go back and forth with e-mails and written offers and counters, sometimes taking weeks to narrow the gaps and resolve the issues.

That same back-and-forth process can often be accelerated and more efficiently conducted in person, which is a major benefit of mediation (an in person negotiation with an independent third party mediator who effectively manages the process.)

Now don’t get me wrong – I am a big fan of texting, e-mail and the extraordinary benefits of new technology (check out my column next month on my Top Five Reasons to Negotiate through Technology).

But there’s a time and a place to negotiate through technology, and a time and a place to meet in person.

Latz’s Lesson: Next time you start typing a significant e-mail to your counterpart, consider instead an in-person meeting. You might just grab that next flight out.

______________________________________________________________________

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Negotiation/Mediation Blog, News0 Comments

Law Tips: Expert Input on Estate Planning for Digital Assets – With Forms!

It’s my pleasure to share with you a timely pointer from John O’Drobinak, ICLEF Estate Planning faculty member. Mr. O’Drobinak reminds fellow practitioners of the importance of assisting clients with a plan for their digital assets. Getting to the heart of the matter, he’s also providing the forms he uses in his practice.

Digital assets are becoming commonplace in estates and trusts. The fiduciaries charged with the valuation and access to the Decedent’s assets now face a new challenge. This challenge is not one traditionally encountered.

Digital assets consist of information that is electronically stored or accessed on an electronic device. It can be stored on hardware or in online accounts. This could be for social networking and media sites, blogs, cloud storage, banking services, and investment services. Even if the fiduciary knows that these are digital assets, accessing them may still be a problem.

The only way to insure against this is for the Decedent to prepare a list of digital assets and passwords. Needless to say, this must remain confidential, and needs to be updated from time to time.

To access the forms that Jack utilizes to insure his clients digital assets are handled per their wishes and efficiently click here: Confidential Record of Digital Assets-Passwords

_________________________________________________________________________________

Gather more beneficial pointers from our expert panel during the 120 Hot Tips in Estate, Trust and Probate Practice CLE. This program is available on our Video Replay calendar or as an On Demand CLE option.

_________________________________________________________________________________

About our Law Tips faculty participants:
John M. O’Drobinak, O’Drobinak & Nowaczyk, P.C., Schererville, IN
Mr. O’Drobinak has practiced law in Lake County, Indiana, since 1960. He graduated cum laude from the University of Notre Dame in 1957 and received his Juris Doctor Degree from Indiana University in 1960. An attorney with a broad range of experience, Jack’s areas of concentration include estate planning, guardianships, trusts and probate. A widely sought speaker and seminar leader, Mr. O’Drobinak frequently makes presentations in the fields of estate planning, probate and pre-disability planning

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, News1 Comment

Having trouble logging in?Visit our Support section.

Subscribe

Contact Us

ICLEF
230 East Ohio Street
Suite #300
Indianapolis, Indiana 46204
Phone: 317-637-9102
Fax: 317-633-8780
E-mail: iclef@iclef.org