“The teachers we honor today have demonstrated uncommon skill and devotion in the classroom, nurturing the young minds of tomorrow’s science and math leaders. . . America’s competitiveness rests on the excellence of our citizens in technical fields, and we owe these teachers a debt of gratitude for strengthening America’s prosperity.” -President Barack Obama

At Gwilliam, Ivary, Chiosso, Cavalli, & Brewer we take pride in our employees’ accomplishments, encourage their work in our community, and support the accomplishments of their family members. We are very pleased and honored to announce that Kathleen McCarthy, the wife of partner Randall Strauss, is one of the 85 recipients of the 2010 Presidential Award for Excellence in Mathematics and Science Teaching.

From the White House April 28, 2011, President Obama named 85 math and science teachers as recipients of the very prestigious Presidential Award for Excellence in Mathematics and Science Teaching. Kathleen McCarthy was one of two California teachers honored; the educators will receive their awards in a ceremony in Washington D.C. later this year.

Presidential Award for Excellence in Mathematics and Science Teaching

• Awarded Annually: to outstanding K-12 science and mathematics teachers from across the country
• Winners Selected: by a panel of distinguished scientists, mathematicians, and educators following an initial selection process done at the state level
• Format: each year the award alternates between teachers teaching kindergarten through 6th grade and those teaching 7th through 12th grades.  The 2010 awardees teach kindergarten through 6th grade
• National Science Foundation: winners of this Presidential honor receive a $10,000 award from the National Science Foundation to be used at their discretion. They also receive an expense-paid trip to Washington, D.C., for an awards ceremony and several days of educational and celebratory events, including visits with members of Congress and the Administration.

Kathleen McCarthy

“The Presidential Award celebrates and recognizes effective mathematics teaching. It validates those who go above and beyond the call of duty inside and outside the classroom. I am honored and proud to belong to such an esteemed group of outstanding educators. This award reaffirms my dedication to working with students who have been traditionally underserved in public schools. I am thankful for my colleagues, students, and their families for helping me become the teacher I am today.” -Kathleen McCarthy

Kathleen McCarty has taught second grade bilingual classes at Washington Elementary School in the San Leandro Unified School District for the last 6 years. Previously she taught in the Hayward and Oakland Unified School Districts. Kathleen has been a bilingual classroom teacher for the past 8 years. “Katy’s passion for fostering a linguistically and mathematically rich learning environment is immediately apparent upon entering her classroom. She thrives on the challenges of teaching children whose home language is Spanish.”

• B.A. in child development from Mills College
• Certified bilingual elementary teacher
• National Board Certified in English as a new language

Being a trial lawyer nowadays is tough work. The law is a conflict-ridden profession. We are constantly fighting with each other and trying to outdo each other.
So how do I deal with this situation in the courtroom? I have to remember that I am not in control, to stay centered, and to not let distractions keep us from our goal.

9 Ideas That Help Me In The Courtroom

• Breathing: breathe from your belly to stay relaxed. Take a few deep breathes before you enter the courtroom
• Remain Relaxed: be aware of the tension that fills a courtroom. Staying loose will help your muscles stay relaxed which is so important in dealing with stress filled situations
• Stay Centered: we need to think of the trunk of our body as it’s center. Breathing helps us stay centered. We need to stay aware of our center. This is similar to what is taught in the martial arts. Be aware of your body posture so as not to be knocked off balance metaphorically
• Let Go of Fear: we need to stay in touch with whatever spiritual contact we have- meditation, prayer, or other forms of belief. By putting ourselves into this frame of mind before we get into a trial “battle”, we will perform better. Let go of the fear of losing
• Do Not React: it is so easy to turn on the defense attorney and argue after he or she makes an objection- especially if things get personal. But by staying focused on what we are looking to accomplish, we can not be thrown off track by our adversary
• Maintain Concentration: this is similar to focus but you have to keep your mind directly on what you are doing. You can’t let your mind wander. Do not think of what is going on at the office, what is happening in your personal life. Concentrate on what you are doing
• Stay In The Moment: this is similar to maintaining concentration but with a slight difference. Lawyers often get ahead of themselves and want to start asking questions anticipating what is going to happen in the next few minutes. This is not good. Stay in the present; this will increase your concentration and listening skills which will make you a better advocate
• Listen Carefully: if you get wrapped up in your own thoughts you could miss what the witness or the judge is saying. Listen carefully so that you can follow the meaning of the words. You cannot focus on two things at once, although we often times try to do it by bouncing rapidly from one subject to another. This gets us in trouble.
• All Things Happen For a Reason: this is the guiding principle of my life. Once I recognize I am not in control, I can roll with the punches and go with the flow. Stay in touch with the principle that things are happening for a reason. This keeps us centered in the present moment, so we are relaxed and unafraid

The proliferation of mediators and mediations is obvious. Any case that doesn’t settle is a “failure.” The pressure to settle cases is so intense that there is almost a sense of guilt when we have to go to trial. Yet, we continue to evaluate plaintiffs’ PI and employment cases on the basis of what a jury will award.

How can we make such an evaluation if there are so few trials anymore?

4 Factors In Going To Trial or Not

• Mediation: are we trial lawyers, or are we simply becoming negotiators? And this negotiation, is it like poker? Is bluffing one’s way through a mediation with misstatements and outright lies the way we properly resolve cases? I sometimes tell mediators that some cases need to be tried and there is nothing wrong with a mediation that ends with a decision to proceed to trial. Rarely does a mediator agree with this. They “failed” because we are going to have a jury trial to resolve the case.
• Expense of Trial: the increasing expense of trial is well-known. Trial requires expert testimony, and experts are becoming increasingly expensive and are often treated with hostility by judges who see them as nothing more than paid advocates. In addition to experts, lawyers now bear the expenses of court costs including reporters’ fees and other fees that traditionally were borne by the courts
• Advertising: advertising is a deterrent especially when it leads to treating the law as a business and not a profession. Lawyers who are in the “personal injury business” for the sole purpose of making money will never step foot in the courtroom. If we judge our success solely by how much money we make, then who cares about a trial? We are perhaps more interested in how much money we make than whether we’re doing right by our clients or even chasing that elusive concept of “justice.”
• Politics: politics, particularly the advent of tort reform, has become an increasingly serious problem for plaintiffs’ lawyers. It’s become worse in the last 10 years. Conservative court rulings and the failure to make fundamental changes in our medial malpractice laws make it increasingly difficult to try cases: it is outrageous that we haven’t changed the medical malpractice tort reform laws passed 35 years ago. With a $250,000 MICRA cap on general damages and a cap on our attorneys.

In a 1999 article for the American Board of Trial Advocates Journal I wrote:

“I sometimes feel like I am a dying breed – soon to become extinct. I am a trial lawyer who has spent 37 years in the courtroom. I  have tried over 150 jury trials to verdict. I have been in ABOTA since 1976 when I certified that I tried 100 jury trials after about 15 years of practice

But times are changing. Good trial lawyers today who have been in practice for as long as twenty or twenty-five years will have tried significantly less cases than those of us who started our practices in the 60s and early 70s.”

Why Fewer Jury Trials?

1. Opportunities: there are simply less jury trials being tried
2. Arbitration: more cases are being arbitrated
3. Mediation: everything goes to mediation.
4. Skill Sets: our negotiation skills are becoming more important than our trial skills

10 Years Later: Concerns Are More Acute Now

With a lack of trial experience comes a lack of ability to easily and competently try a case before a jury. Judges complain frequently that lawyers are not only inexperienced, but frankly ineffective and sometimes woefully inept in the courtroom.

Younger Lawyers Lack of Experience

A byproduct of this problem is the lack of civility between lawyers. One factor in this civility problem is that younger lawyers don’t have the experience of really understanding what a jury trial is like and hence have a great fear of going to trial.

Ultimately, they mask this fear by aggressive litigation tactics in the hope that they can bluff their way out of actually going to trial.

Are trial lawyers preparing for battle or stage when they go to trial? Many fine trial lawyers still envision trial as battle. I am guilty of talking about “still having a few rounds left in me” at this late stage of my career. If you are going into battle you have to be ready: Energized, fired up, ready to throw a few punches and take a few hits.

Q: Isn’t that a good way to prepare for trial? Or is it stressful and counterproductive?

Trial as Sport: Stress and Conflict

• Stress and Conflict: we are in a conflicted profession full of stress and conflict and this wears us down
• Drain: constant stress and conflict takes away our energy
• Health: loss of energy through this conflict compromises our immune systems
• Ultimate Conflict: if you visualize yourself as bruised and battered after each round, then trials become exhausting and you don’t perform at your peak

Trial as Art: Resolution Through Relaxation

• Resolution: is possible by deciding the best and most effective way to try a case
• Relaxation: if you are more relaxed and at ease, your energy will stay strong
• Fear: you also have less fear and that is very important to effective trial practice. Actors don’t need to fear being bruised as boxers do
• Efficiency: by changing your thinking from “trial as sport” to “trial as art” you are more efficient, less fearful and ultimately more successful
• Enjoyment: looking at trial as a art form is a lot of fun

The lawyer’s goal, in a trial, is to present the client’s case as a cohesive story that will grip the audience’s attention. The “audience” is small, consisting of only 12 people: the members of the jury. If the trial is thought of as a stage play, as posited in part 1, then what is the most interesting difference between the theatre and jury trial?

Competing Plays: Reaching The Audience

Unlike the theatre where only one play is on stage at a time, the lawyer’s “play” competes with another play taking place at the same time and on the same stage.

The “Other Play”

• Staged by another director (the defense attorney)
• The theme is different
• Another set of “actors” the defense attorney’s witnesses

Audience Decision

The “audience”, our 12 member jury, must then decide which play they like best.  Their “reviews” of the lawyer’s work are in the form of a jury verdict which tells who won and who lost.

“American Idol” : The Judge

What about the judge? Think of the popular TV program, “American Idol.” It’s no stretch to think of it as theatre. The “audience” ultimately chooses the winner but judges:

• Handle the tryouts (pretrial motions)
• This determines if the contest even makes it to the “show” (the trial)
• And their (judge’s) very vocal opinions during the show (bench rulings) can influence the “audience”

For most of my career I considered a jury trial akin to a boxing match. Mano a Mano.  I could score a knockout or get a decision, or I could go down for the count. Somebody was going to win and somebody was going to lose.

However, I began to change my mind about trials. Instead I began to see trials as ways of communication as opposed to violent conflict. I began to think of trial as art; as a creative expression.

Trial As A Stage Play

A trial may best be envisioned as a stage play with the following roles:

• Producer: the trial lawyer is the producer who puts up the money (case costs) and decides which play (case) will go on stage (to trial)
• Director: the trial lawyer is also the director who decides how the play is to be presented
• Cast: while the directors cast of characters consists of actors, the trial lawyers cast of characters consists of parties and witnesses

The Production: Telling The Story

Instead of actors speaking their lines from a script, the witnesses give their testimony based on the truth.  The following are the elements of “The Production”:

• Testimony: the way actors speak their lines is an important part of the production, just as the manner which the witnesses testify is an important part of the trial
• Story: by speaking their lines, the actors tell a story,  just like the witnesses tell a story through their testimony
• The Production: the director (the lawyer) decides which themes to emphasize and the order in which actors (witnesses) will be on stage (on the stand)
• Director and Lawyer: like the director who stars in his own movie, the lawyer is also an actor who is on stage during the entire trial

In part one of our series “Visibility For Plaintiffs’ Lawyers In The New Millennium: Back In The Day” ,I outlined the methods used to market lawyers and law firms up to the late 1970s. Then things began to change for the better.

1977 United States Supreme Court Case Bates vs. Arizona

It was this bombshell case that provided lawyers the constitutional right to advertise! Over the next ten years, the yellow pages were flooded with flashy trial lawyers advertising their wares. Newspaper, magazines, and billboards advertised personal injury lawyers.

Then came the television and radio ads. PI lawyers used this media to solicit victims of every possible injury, especially auto accidents. Still, advertising by lawyers remained controversial and many trial lawyers did not believe in it.

The Web Changes Everything

Fast-forward to the beginning of the new millennium. Something was happening that would dwarf all of the legal advertising of the past 20 years: the Internet was upon us! People were finding lawyers— particularly plaintiffs’ lawyers—by surfing the Net.

Large law firms and some progressive Plaintiffs’ lawyers utilized the following tools to bring clients into their firms:

• New flashy websites
• Findlaw
• West Group
• Lexis

Welcome To The World of Social Media: 6 Ways To Connect

Now, after a decade or so of eye-catching websites, we are beginning to find a new way to promote ourselves on the Web through:

Blogging: Creating written, audio, and video content that is informative and helpful to peers and prospective clients. Utilizing my blog to deliver my content to multiple social networks.

Facebook: Leveraging Facebook to network, chat with friends and colleagues, broadcast events and news, and provide feedback to my growing network via my profile or J Gary Gwilliam page.

LinkedIn: Providing a comprehensive online resume of my work, delivering content through updates to my network,  networking, and prospecting  for opportunities within our legal community.

Lawlink: Producing documents, blog articles, and content aimed at networking on one of the most powerful social networks for the legal community.

Newsletter: delivering information to my list of contacts announcing events, broadcasting news, or providing expert insight into legal issues of the day.

Plaintiff Magazine: as a columnist, Plaintiff magazine provides the opportunity to connect with people who prefer to read their news via a print publication.

Recently I wrote an article entitled “Old Warriors” in the August, 2009, Plaintiff Magazine where I interviewed some of the top plaintiffs lawyers in our State. I found that they consistently stayed abreast of new communication strategies, technology and trial strategies that we have learned in recent years.

I would like to follow up on this theme and address how we can promote our work, our law firms, and ourselves in an ethical, tasteful and effective way in the new millennium?  In other words, how we can stay visible in this blizzard of new information bombarding us on the super highway of new information.

Before we can examine today’s opportunities, let us take a look at what we have done (and still do) to promote ourselves and our work.

A History of Trial Lawyer Business Development: The Beginning

When I first started practicing plaintiff’s trial law in the 60s and 70s, there was no such thing as advertising.  We promoted ourselves in the following ways:

• Yellow Pages: we placed our addresses in the yellow pages and got recognition the old fashion way
• Public Speaking: we gave talks at Bar associations
• Lunch Is On Me: we took prospective clients and referring lawyers to lunches
• Mailers: occasionally we mailed (hard copy) out information about our law firms
• Newsletters: some of the more progressive plaintiffs firms began to have (hard copy) newsletters that they would send out periodically

Courtesy MichaelJacksonTalkRadio.com

The following is a radio broadcast of my interview on the Michael Jackson Talk show on Los Angeles News/Talk radio channel 1260 KGIL. In this interview, I reveal many of the challenges I faced in my life. I chronicle my high school gang activities, my struggle with alcoholism, and my hedonistic approach to my life in earlier years. Please tell me how you believe the challenges in your life have effected you. The link to the show: The Michael Jackson Show

Benefits of Losing

In addition, I discuss the importance of recognizing how to benefit from the experience of losing, how to learn from your losses, and the taboo surrounding the subject of losing.

Sir Michael Asks

At one point, Michael Jackson asked me to explain the title to chapter 23 in my book, “Getting a Winning Verdict In My Personal Life: A Trial Lawyer Finds His Soul”: First, Let’s Kill All The Lawyers. As Shakespeare noted in his play, if they get rid of the lawyers, they can establish a dictatorship. It’s the lawyers who are going to prevent that from happening; rule by people not by laws would be the status quo.

The message in the chapter is:

• Aspire to “high professional standards”
• “Willingness to fight for what is right and fair”
• Commitment as “lawyers of conscience”