APR/MAY 2009ISSUE 2

E-Discovery Intersects Underwriting, Claims and Litigation

CElEbrity lawyErs

How to ConvinCE a Jury tHat Can’t ask QuEstions

Getting a reporter to Pay attention to you

GEnDEr DiffErEnCEs in tHE Courtroom

markEtinG yoursElf in a nEw EConomy

Meet miCHEllE suskauEr

Husbands and wives and the Practice of law

Michelle Suskauer

3

contentsApril.May 2009

fEaturEs26 Meet the Press: How to Get a Reporter to Pay Attention to YouIt’s not who you know. It’s how you treat them.By Janet Raasch28 How the Electronic Discover y Process Intersects Under w riting, Cla ims a nd Litigation As litigation contin-ues to become more complex , e-discovery is becoming an integral part of the underwrit-ing, claims, han-dling and resolution process.. By Jennifer Rothstein30 The Litigators’ Guide to A lternative Billing Clients no longer ac-cept the billable hour. New fee structures are emerging as lawyers finally realize that change is important to keep good clients. By Allison C. Shields34 Cost-Ef fective Approaches to e-Discover y In a ravaged economy, litigators are pressured to keep costs down. Clients are providing alternative solutions. By Julie Wade37 Ma rketing in a Dow n Economy Get new business in a ravaged recession. By Janet Raasch41 New Pa r tnership A nnouncement42 Gender Dif ferences in the Cour troomWe are far from eliminating bias in the courtroom as expecta-tions of credibility are based on the masculine

style. By Laura Domi-nic and Jill Schmid, Ph.D.48 Persuasion on a One-Way Street: How to Conv ince a Jur y That Ca n’t A sk Questions Lawyers communicate through words but ju-ries are visual learners. How can you tell the story in a manner that they grasp immediate-ly? By Lisa Sanford52 Husba nds a nd Wives a nd the Practice of LawLiving with him is one thing. But working together? These three high-profile, suc-cessful couples have designed a workplace, lifestyle model that works.57 Positive Predictive Va lue How many times have your clients received a “false positive”? By Robin Ballantyne, M.D.58 Dispelling the My ths of Outsourcing The booming LPO industry is a mystery to some. Are you hold-ing back sending work to India because you firmly believe urban legends? By Kunoor Chopra62 Ca n Women Have It A ll? What does that mean, anyway? Are you re-ally expected to be a renowned litigator, Mom of the Year and, oh, yes, look like Miss America? By Kandice Bridge

initio10 Numbers11 Hea lthy Plat terHere’s how not to add unwanted calories »

42GENDER

DIFFERENCE IN THE

COURTROOM

28HOw THE ElECTRONIC DIsCOvERy PROCEss

INTERsECTs UNDERwRITING, ClaIMs aND lITIGaTION

48PERsUasION

ON a ONE-way sTREET

52HUsbaND aND

wIvEs aND THE PRaCTICE

OF law

6

contributors

ClosE look

Contributors

robin ballantynE, m.D.Chief of Radiology at Oregon Medical Center (retired)M.D., University California at San Francisco 1968

kanDiCE k. briDGEsDirector in the Compensation and benefits Practice of alvarez & Marsal Taxand, llC.

kunoor CHoPraCEO and President/General Counsellawscribe, Inc.los angeles, Ca Associate Attorney at Fulbright & Jaworski LLP and Nossaman, Guthner, Knox & Elliott, LLP; Loyola Law School, Loyola Marymount University.

HarriEt CoHEnFounderTraining solutionslos angeles, CaTraining and consulting on performance management, strategic planning, marketing and career development programs.

laura l. DominiCsr. ConsultantTsongas litigation Consulting, Inc.seattle, waTrial consultant for case strategy and witness testimony.

tina m. JoHnsonParalegal, Gray Plant MootyMinneapolis, MNMember, Trust, Estate & Charitable Planning Practice Group Contributing editor, KNOW, The Magazine for Paralegals.

bEtH kinGParalegal, vestas-american wind TechnologyPortland, ORPast Chair, Education Committee, National Federation of Paralegal Associations, Winner Robie Award

JosEPH marCHElEwskilegal Marketing Consultantlos angeles, CaMarketing Director, AmLaw 100 and criminal defense firms, blogger, Website writer, public/media relations »

allison C. sHiElDslegalEase Consulting, inc.new york, ny

Allison works with successful solo practitioners and law firms to establish higher value practices by developing strategies to increase growth and profitability. She has been a practicing lawyer for 12 years, most recently as the Administrative Partner at a 50 attorney New York multi-disciplinary law firm with offices on Long Island and in Manhattan.

linDa a. moniCaattorney at lawPortsmouth, nH

Linda A. Monica (lmonica@monicalaw.com) serves on the Executive Board of the ABA“Women Rainmakers”; Co-chair of The Woman Advocate’s “Rainmaking” Committee and author of “Rainmaking” in The Woman Advocate . Linda works with women attorneys and law firms on business development strategies.

loni morGanElliProfessional support information officeru.s. Corporate team.Herbert smith llPlondon, England

Originally from Boston, Loni now lives and works in London as the Professional Support Information Officer, U.S. Corporate Team, Herbert Smith, LLP. A former paralegal, she has a long history in litigation, specializing in commercial business law. She is a contributing Editor to KNOW, The Magazine for Paralegals.

mEGan J. CamPbEll, ms, rD, lDnHealthier tomorrows, llCChicago, il

Megan J. Campbell, MS, RD, LDN, president of Healthier Tomorrows, LLC, (www.healthiertomorrows.com), a nutrition consulting business specializing in nutrition and lifestyle counseling and corporate wellness programs. She is also the dietitian for Northwestern University, certified personal trainer and cooking enthusiast.

8

Contributors

from the editor

We’re really excited. We’re getting subscribers from all over the country and from various parts of the world: Australia, England, Greece, Israel, Taiwan.

Women litigators everywhere want to be heard, seen and have a voice.

This issue, we concentrate on making your workplace extraordinary. From Gender Differ-

ences to Technology to Sweet Success, Alternative Billing and Marketing, there’s information to make life easier, particularly in this new economy.

We have a special section on high-profile Husband and Wife Attorney Teams who wouldn’t have it any other way. We take you to The Guthrie Theatre in an innovative approach to continuing legal education. We added a new column, The Healthy Platter. Taking care of ourselves is as important as writing the winning brief. It’s a bit like f light attendants, “Put your mask on first before you can help others.”

Don’t miss our column on Michelle Suskauer, criminal defense lawyer and CNN reporter who has chosen an exciting path to pursuing her dynamic career, one that many of us can only fantasize.

In turbulent times and massive layoffs, it’s easy to give up in despair and yell, “I’m not taking this anymore.” Unfortunately, that’s not going to solve any problems. I realize these are hard times – trust me, I do – but by banding together as women and taking one step at a time to improve our lives, personally or professionally, we can face almost anything - even if only in small but important ways.

When things are going well at work, things outside the office go better – and vice versa. So, when going to the gym 5 times a week or cleaning the kids’ room on a daily basis just isn’t going to happen, turn to your professional life and ask, “What can I do to make my work life better?”

None of us know what’s happening tomorrow. It’s the beauty of the Great Unknown. Sticking our heads in the sand and hindering our successes is not the answer. Look forward to the future and keep on moving. The future is yours to create.

lookinG forwarD

JanEt raasCHwriter/blogger for lawyersstrategicwriting and GhostwritingDenver, COJanet Ellen Raasch is a writer, ghostwriter and blogger (www.constantcontentblog.com) working closely with professional services providers – especially lawyers, law firms, legal consultants and legal organizations – to help them achieve name recognition and new business.

lisa sanforDsr. visual strategistZ-axisDenver, COSr. Visual Strategist; trial presentation and courtroom visual strategist specialist.

Jill sCHmiD, PH.D.ConsultantTsongas litigation Consulting, Inc.seattle, waDesigns and analyzes mock trial and focus groups for arbitration, mediation, bench, or jury trials.

JuliE waDEMarketing Consultant, In2itive Technologies, llCPortland, OR15 years experience in complex commercial litigations for Fortune 500 companies at prominent law firms.

Pam wolDowPrincipal, altman weil, Inc.Management consultant to legal organizations

CorrECtion:In our last issue, “Pay it Forward and Pay the Tax Later” by Teddy Snyder should have read: ERISA forbids withdrawal before 59-1/2 and requires withdrawal by age 70-1/2.Someone who withdraws at exactly age 59 will face a large penalty.This was stated correctly on the submission, but incorrectly in the published version.

Ms. Snyder was a practicing attorney for more than 20 years before becoming a full-time structured settlement broker. Her office is in Beverly Hills.

43

Are there differences in the ways men and women communicate? Does gender in the courtroom mat-ter? Scholars and litigators have sought to answer this question for years. Some researchers lean more toward the “Men are from Mars, Women are from Venus” end of the spectrum concluding

that men and women are very different communicators. On the other end are those who conclude that gender accounts for only 1% of the variance between men’s and women’s communication. The most accurate answer, not surprisingly, is somewhere in the middle, and is a qualified “yes.”

That begs the real question: How does gender matter and, more importantly for female litigators, how can a woman lawyer best represent her client in an environment that has been domi-nated by men for hundreds of years? Before digging into the de-tails, keep in mind that regardless of gender, effective commu-nication skills matter most. Whether you win or lose depends not only on the facts, but also on how your message is received by the jury, judge, mediator, or the arbitrators. There are teachable/learnable verbal and nonverbal elements of presentation that drive credibility, and a lawyer’s credibility is a key component in persuading the trier of fact.

When it comes to the masculine and feminine communication behaviors, there are verbal and nonverbal elements that affect credibility. This article addresses the intersection of effective communication and gender communication by analyzing those traits associated with gender that can increase credibility and

make female attorneys more effective advocates for their clients.Understanding the expectations society has about women

and men, and knowing about effective and ineffective commu-nication traits associated with masculine and feminine speech styles, creates an opportunity to take advantage of what you do best, and learn where improvements can be made.

tHEmasCulinE/fEmininE CommuniCation ContinuumCommunication scholars have long relied on a continuum of presentational attributes ranging from “feminine” to “mascu-line.” This should not suggest that one end of the continuum is better. However many masculine communication traits have become associated, rightly or wrongly, with power and cred-ibility because men have traditionally held positions of author-ity and played more dominate roles in society. Communication studies have focused on uncovering behaviors that increase perceptions of credibility and discovered that they are not sim-ply those found at one end of the spectrum. Still, the balance is definitely tipped and audiences’ expectations of credibility are mainly based on the masculine style.

Very generally, the speech patterns on the “feminine” end of the spectrum are considered much more passive, tentative, and subservient than the dominant, aggressive, assertive style at the “masculine” end. Keep in mind that not all men and women fall on their respective gender end of the spectrum. In fact, most female litigators adopt more masculine communication

We are far from eliminating gender bias in the courtroom as audiences’ expectations of credibility are mainly based on the masculine style.

Understanding and Capitalizing on Factors that Impact Credibility

Gender Differences in

the Courtroom:

44

traits. Enough research and everyday observation tells you that girls and boys, and men and women are different, and a quick recap of the nature versus nurture debate will help answer the question: “How did we get to be this way?”

naturE vErsus nurturE: tHE soCialization of boys anD GirlsIt is no surprise that boys and girls are biologically different from the moment their gender is defined. Brain size and func-tion influence how males and females process information, and therefore how that information is communicated. By the time we reach adulthood, men’s brains on average are 10 per-cent bigger than women’s and have four percent more cells. But women’s brains contain more nerve cells and cellular connec-tions, allowing their smaller, more compact brains to be more efficient and effective. Men’s brains tend to perform tasks pre-dominantly with the left side, which is the logical/rational side of the brain. Women, on the other hand, use both sides of their brains because a woman’s brain has a larger corpus callosum, which means women can transfer data between the right and left hemispheres faster than men.

What is more interesting, is how socialization influences our communication patterns and behaviors. Looking at the schoolyard playground, the differences between boys and girls are obvious. The boys are playing in large groups; usually hier-archical groups where one boy makes the rules and the others fight for the right to make the rules. The games the boys play are rule-based with a clear goal (be the first to the finish line, put the ball in the basket, make the spit ball land the farthest, etc.). Boys’ games take up a lot of space and touching is a di-rect result of the activity (e.g., tagging someone out, tackling the ball carrier, etc.) And of course, to spare peer punishment, feelings are not shown when the game is lost.

The girls are playing in small dyads or triads of “best friends.” The discussion of what they are playing is much more important than the play itself, and the goal is to bond, be liked and be part of the group. Girls stand much closer to each other, and even hold hands. When someone is upset, others girls offer the pro-verbial shoulder to cry on as they sympathize and empathize.

As a result of nature and socialization, boys learn to be com-petitive and goal oriented; they learn the rules of a hierarchy and that they must compete for a spot at the top without wor-rying about the feelings of those they climb over to get there. These boys grow up to be men who have learned that it is more important to act than to talk, and that the endgame and the rules are important. The goal is clear: win at all costs.

Girls learn to be egalitarian and relationship-oriented; they learn that getting along is important and that minimizing con-flict is vital to belong. Gaining an advantage as a girl requires a different kind of tactic: it is about learning to sense or feel what is going on. Girls grow up to be less analytical than their male counterparts, and rely on their “women’s intuition”. The goal is clear: maintain the relationship at all costs.

The bottom-line is that much of this doesn’t stop or change when we become adults. The socialization of boys and girls, and the ways men and women communicate and behave, influences the expectations your audience has of you before you even en-ter the courtroom.

tHE imPaCt of GEnDEr on DECision makinG – stErEotyPEs anD sHortCut rEasoninGPersuasion scholars define two routes to persuasion: central and peripheral. When receivers process information through the central route, they engage in a diligent analysis of the mes-sage. When this occurs, the persuasive impact of the message is likely an effect of the strength and quality of the information it-

self. In a trial setting, jurors who use the central route carefully examine the evidence and its probative value on the claims. However, information processing can also occur through the peripheral routes. Peripheral route processing is more likely to take place when decision-makers are not motivated to attend to a message or when there is too much information to process. When the peripheral route is accessed in trial, jurors may make decisions based on extra-legal factors such as the appearance of the lawyer, how similar the lawyer is to the jurors, or simply whether or not the jurors like the lawyer.

When the peripheral route is used when processing evi-dence, jurors are relying on “shortcuts” or “biases.” There are many short cuts that can be used. One well-known shortcut is to make generalizations about people based upon the groups they belong to – what we know as stereotyping.

Biology and society create the ways in which we communi-cate, which in turn creates stereotypes and sets societal expec-tations about how men and women communicate. So, what we have is interplay between how we communicate and how we are perceived.

Think about the power of stereotypes. Referred to by some scholars as “role schema”, stereotypes are created from small kernels of truth that over time become exaggerated as the sole basis for thinking about and interacting with, someone differ-ent. Role schema can be characterized as the file cabinet in your brain, and we all have different files for different ethnicities, occupations, genders, etc. Very generally, stereotypes of men include logical, business like, attention seeking, dominating and frank. Stereotypes of women include friendly, emotional, expressive, gentle, sensitive, and enthusiastic.

We all have stereotypes about attorneys. For some, the “file drawer” is filled with expectations such as hard-working, trust-ed advisor, and competent. For others, the file is filled with all those lawyer jokes – deceitful, slippery, and greedy.

The intersection of our gender and attorney stereotypes can begin to inform us about how society views and what they ex-pect from female attorneys. For some, their attorney schema has a gender expectation, which is most likely male. Just ask someone to fill in the blanks in the following sentences with the missing pronoun and you can see the power of gender expecta-tions when it comes to certain occupations in our society.

The pilot landed the plane and ____ asked for the f light at-tendant to prepare for passenger exit.

The judge made _______ ruling.The doctor told _________ patient the prognosis.The attorney began _________opening statement.The fact that most people will associate the male pronoun

with the lawyer indicates that as a female attorney, there is a built-in expectation violation that occurs nearly every time you walk into a courtroom.

tHE imPaCt of GEnDEr on CrEDibilityStudies that have explored the effect of attorney’s gender on jury decisions have reached conflicting answers. A review of the literature and studies shows that as the number of women in the legal profession increases, the impact of an attorney’s gender on perceptions of credibility decreases. However, we are far from eliminating gender bias in the courtroom. Attorney gender still plays a role in the jury-decision making process.

Being a lawyer was at one time thought of as a man’s profession. Though that is changing, the relatively small number of female at-torneys has contributed to perceptions that women are generally less skilled than men.

Another factor impacting perceptions of women attorneys’ credibil-ity is how she is treated in the courtroom. Many taskforce inquiries, as well as scholarly research, have uncovered disparate treatment toward

45

women in the courtroom. For example, female attorneys report that they are interrupted frequently by men, called by their first names by both opposing counsel and court staff, and judged by their style and appearance more frequently than men. Certainly when these behav-iors occur in front of a jury, credibility is impacted.

Fortunately, these factors have a greater impact on initial per-ceptions of credibility than on terminal, or lasting, impressions. Initial credibility is a measure of how an audience perceives a sender of a message prior to the actual message delivery. Cred-ibility is earned, not assigned. So even if negative initial per-ceptions are formed, we continue to earn (or lose) credibility as we send our message. When our presentation style, which has a greater impact on assessments of credibility than bias and ste-reotypes, is strong, we can overcome initial negative impres-sion. Unfortunately, this creates a double bind for women.

CrEDibility anD walkinG tHE tHin linEA female attorney walks a fine line when finding the most posi-tive and persuasive presentation style. Women must make a special effort to establish credibility. Although the traditional male presentation style is associated with power and credibil-ity, a woman would be doing herself a disservice to adopt a more masculine presentation style. Why? Females, particularly those in traditionally male roles, who fall toward the masculine end

of the spectrum, are generally perceived negatively. We need to look no further than the negative criticism of Hilary Clinton’s campaign style to know this is true. But women are in a double bind because studies show that although we expect women to be pleasant and have a feminine style, those who do, receive lower ratings of credibility.

So what is the solution? The first step is to understand the differences in the masculine and feminine communication style and how those differences impact credibility. The next step is to hone traits that negatively impact credibility and refine those that capitalize on strengths. This is not a perfect prescription for success. Because each of us finds our self at a different place on the continuum, understanding what needs be changed and what should be embraced will vary from person to person.

Though the communication continuum labels certain traits as masculine and feminine, it is inaccurate to focus on whether men or women are more effective speakers. Instead, we should focus on communication behaviors that increase credibility. Each of us can benefit by identifying those traits hindering our credibility, and focusing on changing behaviors that will in-crease our effectiveness.

vErbal CommuniCationVerbal communication embraces both the content and the

context present during commu-nication. Generally, women tend to communicate to understand each other, encourage ongoing dialogue, connect with people, and build relationships. Because women’s discussions tend to in-volve feelings, relationships, and personal issues, they typically use language that expresses sympathy and empathy – “I’ve felt like that myself,” “The same thing happened to me,” and “I can imagine how you must have felt.” This kind of communica-tion is important when building trust with a client or a jury and can also be advantageous during some aspects of negotiations. It becomes a hindrance, how-ever, when one needs to appear strong, decisive, and in charge.

For men, conversation tends to be competitive and task-oriented – “The point is…” “What we need to do is…” or “Listen to me….” Be-cause of this adversarial style, men typically interrupt more frequently and seek to dominate or control conversations. This is effective for pushing through one’s personal agenda and get-ting things done quickly. But it comes at a cost, which can mean the destruction of trust, respect, or a team atmosphere.

Women are also inclined to ask questions that invite the oth-er person to share information – “How did you feel about that?” or “What did you do next?” This communication trait has obvi-

46

ous advantages when taking depositions and conducting voir dire. Men tend to make state-ments and then ask for simple affirmation or denial – “And, then you signed the contract, cor-rect?” This is effective if you want to make sure a specific detail is included or that the witness is not given much leeway, but it can be ineffec-tive if you are trying to get the witness to tell the story in their own words.

The feminine style tends to be more ver-bose, including more filler words, qualifiers, and descriptors – “I think,” “I mean,” “very,” or “well…” Masculine structure tends to be brief, concise, and uses few descriptive words. One problem for women is that credibility is attained with certainty, not with hedges and qualifiers. Clearly, “This is a case about a busi-ness woman who made poor business decisions that ultimately caused her own failure,” is more effective than “I think you’ll find that the evi-dence will clearly show that many of the plain-tiff ’s actions were not very good choices and that some of those really poor choices steered her down the wrong path.”

nonvErbal CommuniCationAristotle defined persuasion as “the good man speaking well”. The modern interpretation is, “What you say is not as impor-tant as how you say it”. Research shows that more than 80% of a messages’ impact is ascertained from the nonverbal com-ponents of the communication. For example, if the strength of the evidence is incongruent with the nonverbal delivery, the message sent through the nonverbal channel will usually win. If someone said to you, “I feel terrific,” with a quiet, sullen tone and their head hung low, you would believe the nonverbal cues over the words themselves.

Men and women display very different nonverbal cues, some of which are controlled more by our biology (e.g., tone and pitch of our voice) than by our socialization. It is important to rec-ognize the credibility assessments people make about you are based on your nonverbal cues. You should make every effort to change those that invite low credibility ratings.

Eye contact: One of the best indicators of credibility is eye contact. When delivering an opening statement or closing ar-gument, making eye contact with every member of the jury will enhance your credibility more dramatically than if you simply scanned the jury box. Typically, women anchor their gaze more on people’s faces than men do, but women are also more likely to break eye contact when confronted. If your objective is to build rapport and credibility, look people in the eye, but not so long as to make them uncomfortable or to appear as if you are challenging them. If your object is to inconspicuously make a witness uncomfortable, then you should make repeated and unwavering eye contact.

Space: People who take up more space are judged as more credible than those who do not. Typically, men take up more space than women, not just because they are bigger in stat-ure, but also because of the way they stand or sit, and the way they use gestures. Picture a man and a woman at a podium in Federal court. A man will typically stand tall, with both arms stretched to either side of the podium, or may even stand to the side of the podium, perhaps with one hand resting on the side. A woman will stand with her arms (usually below and hidden by the podium) closer to her torso. This closed position sends a message of passivity and timidity.

Body Position: Jurors expect to see some assertiveness when

examining a witness. They also expect, demand in fact, that attorneys be polite. Because wom-en’s body position show interest – head nod-ding, forward leans, and mirroring postures – they may be perceived as more polite than men in the courtroom. These behaviors also encour-age one to speak more freely. During more as-sertive cross-examinations, female attorneys may avoid some of the negative feedback we hear from jurors about the unnecessarily ag-gressive male attorney.

Head Position: The nonverbal behavior almost uniquely characteristic of women is the head tilt. Women often sit and speak with heads titled to one side, while men rarely do. The head tilt, along with averted eye contact, is the most commonly associated trait with low credibility as it is a sign of perpetual curiosity or bewilderment.

Voice: Volume is also a strong predictor of credibility. Men have the biological advantage of having voices that fill courtrooms. They also have lower pitch. When some women try to increase their volume their pitch becomes higher, and the rate becomes faster. The vol-ume and pitch factor may explain why judges

and opposing counsel interrupt women more often than they interrupt men.

When it comes to vocal inf lection, women tend to exhibit rising intonation or inf lection at the end of sentences. Many statements sound like questions, thus reducing what should be strong, decisive statements to weak, indecisive questions. This is particularly obvious with many female witnesses. Here is a sentence taken from a witness preparation with a nurse. First, read the sentence as a statement, with a strong voice from beginning to end; then read it with a rising intona-tion at the end.

“Next, I checked the vital signs of the mother and looked at the fetal heart monitoring strip to check on the baby.”

Clearly, the first reading signals to a jury a nurse who knew what she was doing and it makes a much stronger impression on a jury. Stating it as a question only makes the jury question her credibility as they wonder about how much of a patient advocate she was.

Facial Expression: Society has created the expectation that women should look pleasant and receptive, while men should look strong and in control. Consequently, women frequently smile, and show much more emotion in their facial expres-sions. Men tend to show no expression during a conversation or in conf lict. The feminine style can be a disadvantage when trying to negotiate settlements, as the woman could be dis-playing cues as to her true feelings about the case, whereas a person with a more masculine style is giving no clues about how to interpret their words.

ConClusionWhile this is but a short and brief analysis into a much re-searched and debated topic, the bottom-line is that men and women alike can enhance their communication effectiveness by adopting the traits and behaviors associated with higher credibility. Additionally, consider who is receiving the mes-sage (client, judge, jury, opposing counsel, colleagues) and the context of the message (deposition, settlement negotiations, voir dire, examination) to understand if there is a masculine or feminine trait that could increase one’s effectiveness.

By Laura Dominic and Jill Schmid

“The fact that most people associate the male pronoun with the lawyer indicates that as a female attorney, there is an expectation violation that occurs nearly every time you walk into a courtroom.”