In 1993, a martial arts fighter from Brazil named Royce Gracie shocked the world by beating all other competitors in the first annual mixed martial arts championship. Gracie, who weighed only 165 pounds, beat much larger and stronger fighters using a version of jiu jitsu grappling taught at his family’s gym in Brazil. This competition—the Ultimate Fighting Championship—was one of the first contests between combatants using the various martial arts fighting methods. After winning both the first and second championship, the Gracie family claimed that their method was superior to all other schools of martial arts methods.
Soon other fighters began to embrace Gracie’s grappling method and combine it with other fighting styles such as karate, muay thai and kickboxing. Now there is broad consensus that a fighter must be proficient in all methods to become a mixed martial arts champion.
Today there are numerous approaches to trying a civil jury trial on behalf of a plaintiff: the Trial Lawyers College approach taught by Gerry Spence; case framing methods taught by Rodney Jew; presentation and case mapping used by Mark Lanier; the “Bruises” approach taught by Keith Mitnik; “Cause is King” voir dire created by Jay Burke; theater communication arts as taught by Josh Karton — and so many, many others. Some proponents of the various trial advocacy methods claim their method is the best, to the exclusion of the other methods. To me this is reminiscent of the claims made by the Gracie family before and after Royce Gracie won the first UFC championship.
2 years ago I had an epiphany. I sat in the barn on Gerry Spence’s Wyoming ranch on a cold October day and listened to Spence talk about voir dire. Spence taught an approach to jury selection based on the philosophy of creating a tribe by being rea l— and brutally honest — with the jury. “Your job,” Spence said, “is to have no agenda. You must be brutally honest and open with the jury. You must trust them to see the truth of your case. If you do this well, you will never have to exercise a challenge for cause” he said. Well, maybe Gerry didn’t say those exact words, but that’s the gist.
Spence’s approach to voir dire is the exact opposite of the method taught by Jay Burke, a legendary jury consultant from Florida whose methods many of us have used for decades. Burke coined the phrase “Cause is King” and taught how to identify jurors who have bias and how to get them removed for cause. Burke’s method has a clear agenda: develop strikes for cause. Burke’s method is 180° opposite from the method taught by Spence.
Experience proves both methods are effective. Spence has an indisputable track record of success in winning difficult cases. Hundreds of Trial Lawyers College graduates — including some great trial lawyers like Mel Orchard and John Gomez — have won huge verdicts which prove the Spence method works.
The Burke method has also proven effective. Lawyers like Chris Searcy, Willie Gary and Keith Mitnik, who have both worked with Jay Burke and are strong proponents of his approach to voir dire, have equally impressive strings of large verdicts in difficult cases.
After hearing Spence talk and participating in workshops at the College to understand his method, I had a discussion with Joey Lowe, one of the faculty members at the College. After I explained the basics of Burke’s Cause is King method, Joey shook his head.
“That’s crazy and the wrong approach” he said. “If you try to develop challenges for cause, the jury will know you have an agenda, you will not be able to build a tribe and you will never have a chance.”
After coming back to Florida from the Spence Ranch I took my friend Keith Mitnick out to lunch. Keith is one of the best trial lawyers in the country and the author of the book Don’t Eat the Bruises. Keith is a strong advocate of the Burke voir dire method. During lunch I told Keith about the tribe-building method I learned from Spence and how different it was from the Cause is King method we used in Florida.
“I know that Spence is one of the best lawyers on the planet, and I recognize his method works for him. But for me that method won’t work and I think it’s the wrong approach” he said. “If you don’t identify the jurors who are biased against your case, and the judge doesn’t strike them for cause, you will never have a chance.”
After lunch I started to think about Royce Gracie and mixed martial arts. Which raised some questions: would it be possible to combine both the Burke and Spence voir dire methods together? Like the mixing of methods that happened in the fighting world after the early Gracie championships? Could a mixed method approach be used for the rest of a jury trial beyond voir dire that might be superior to using only one method?
I asked Lowe and Mitnik if they would be willing to test both voir dire approaches during a workshop in Orlando. They agreed. We were joined by several other great Trial Lawyers College faculty members from around the country and several trial lawyers from Florida who were advocates of the Jay Burke method. This group spent several days conducting focus groups and testing both the Spence and Burke methods against each other. Although there was no consensus at the end of the workshop, this initial work was promising and proved to everyone who attended that both methods had strengths and weaknesses.
During the last few years since holding that first workshop a group of us continued to collaborate and develop a “hybrid” or mixed method approach to voir dire and trial. We also invited other lawyers and started to share what we learned. As a shorthand, we started calling these meetings “Trial School” and the hybrid approach to voir dire and trial “Mixed Method Advocacy.”
We now have Trial School workshops on a regular basis and continue to use the workshops as a laboratory to collaborate on the Mixed Method Advocacy approach. As of January 2019 there are local Trial School chapters in 6 cities around the country. Local chapters meet on a regular basis. Trial School is open to all lawyers who sign our non-disclosure agreement, who only represent people and who do NOT represent any corporations. Trial School is — and will always be — free for all of our lawyer members.
Trial School’s collaboration works. We have learned from each other how to better try cases. Mixed Method Advocacy, or “MMA,” is a real thing. As Joey Lowe recently told me, shortly after he used the hybrid voir dire approach to win a multi-million-dollar verdict in a difficult trial in California, “I’m a believer. We have built a better weapon.”
Non-Disclosure Agreement and Terms of Confidentiality
This Joint Prosecution and Confidentiality Agreement is made and entered into by and between the Undersigned Trial School Member and the Trial School, Inc. (â€˜Trial Schoolâ€™), acting on behalf of the other Trial School Members who represent plaintiffs in personal injury and wrongful death actions. The Undersigned Member, the Trial School, and all Trial School Members desire to collaborate in the development and perfection of effective trial advocacy methods to better serve their respective clients and better prepare and try their clientsâ€™ cases to verdict.
This Agreement memorializes the Trial Schoolâ€™s purpose and the obligations of each Member. Signing onto this Agreement is a requirement for Membership of the Trial School. Because the core purpose of the Trial School requires that Members share confidential and privileged information with one another, the Undersigned Member recognizes that violations of this Agreement shall be deemed a violation of the applicable attorney ethics codes, including those pertaining to the protection of confidential and privileged information. WHEREAS, the Trial School was organized and operates for the sole purpose of providing training, instruction, and support to its Members handling similar claims in a context in which Members may develop and share work product information without compromising the entitlement to work product protection and other applicable privileges and protections; and WHEREAS, the Undersigned Member, like all other Trial School Members, represents civil plaintiffs in personal injury and wrongful death actions; and WHEREAS, the Trial School Membersâ€™ cases involve many of the same or similar issues as to trial preparation, presentation, technique, tactics, and strategy; and WHEREAS, the Trial School Members must be able to engage in practice sessions and focus groups with other Trial School Members to best hone advocacy skills and apply those skills to their actual cases; and WHEREAS, the Trial School Membersâ€™ cases involve overlapping legal, factual, and practical issues which shape and govern how the Members can effectively advocate on behalf of their similarly situated clients at trial; and WHEREAS, the Trial School Members are confronted with the same or similar arguments, techniques, and strategies from the Civil Defense Bar, including from organizations like the Defense Research Institute, and effectively addressing those arguments, techniques, and strategies is best served through effective cooperation and the sharing of ideas, strategies, tactics, and work product by the Trial School Members; and WHEREAS, the Undersigned Member and all other Trial School Members have a compelling need to obtain access to a collaborative mechanism to fairly and effectively prepare their clientsâ€™ claims for trial and to achieve just resolutions of their clientsâ€™ claims through trial, NOW, in consideration of the mutual promises, undertakings, and obligations provided for herein, the Undersigned Member, the Trial School, and all Trial School Members represent and agree as follows:
Neither the Undersigned Members nor anyone associated with the Undersigned Memberâ€™s law firm: (a) represents any corporations, including but not limited to insurance companies; or (b) practices any type of defense in tort actions.
By virtue of the commonality of the issues involved in effectively trying the Trial School Membersâ€™ cases to verdict, the Undersigned Member and all other Trial School Members believe that they and their clients have a mutuality of interests in, and that their interests will be best served by, a joint and coordinated effort to develop and perfect the best trial advocacy methods for use in their cases.
The Undersigned Member and all other Trial School Members have determined that the mutual interests of their clients and themselves will be best served by sharing and exchanging â€˜Protected Materials,â€™ which in the absence of such sharing would be privileged from disclosure to third parties as a result of the attorney-client privilege, the attorney work-product doctrine, and other applicable privileges and immunities. â€˜Without this kind of privileged exchange, the Undersigned Member and the other Trial School Members would be unable to effectively develop and perfect the best trial advocacy methods for use in their cases. As a result, this Agreement is designed to ensure that any exchange or disclosure of Protected Materials does not act to diminish the confidentiality, immunities, and protections of the Protected Materials in any manner, and does not constitute a waiver of any privilege, immunity, or other protection which would be otherwise applicable.
â€˜Protected Materialsâ€™ refers to documents, information, correspondence, and other materials contained in, presented at, or taken from any Trial School meeting or the Trial School website, or otherwise shared between Trial School Members.
The Undersigned Member agrees to maintain the confidential status of all Protected Materials acquired in furtherance of this Agreement and agrees that all Protected Materials shall be maintained in absolute confidence. To maintain the confidentiality of all Protected Materials, the Undersigned Member:
Will not share, copy, disseminate, summarize, or describe any Protected Materials with or around anyone who is not a Member of the Trial School, or in any setting where the information may be seen, heard, recorded, or copied by individuals who are not Trial School Members;
Will take whatever action (including internal procedures and legal action) that is necessary and appropriate to preserve the work product status and confidentiality of the Protected Materials;
Will not disclose that they have received any Protected Materials from the Trial School;
Will immediately notify the Trial Schoolâ€™s Chief Officer (Rich Newsome) if they have received any type of request for Protected Materials from the Trial School, and shall agree to fully cooperate with the Trial School in order to prevent the disclosure of Protected Materials; and
Will, in the event of receiving an order compelling production of Protected Materials, immediately notify the Trial Schoolâ€™s Chief Officer (Rich Newsome) and move for the entry of a protective order against disclosure of the Protected Materials, or in the alternative, precluding the attorneys in the subject case from disseminating the Protected Materials to anyone (attorneys or non-attorneys) outside the confines of the subject case; the protective order shall further restrict the use of these materials to only the subject litigation in which they were produced and require the return of the original and any copies of the materials at the completion of the case.
In exchange for the promises above, the Trial School agrees to allow the Undersigned Member to participate in Trial School meetings, practice sessions, and focus groups, and to obtain access to the Protected Materials and the Trial School Website.
Any obligation assumed under this Agreement shall survive the dismissal, settlement, or other resolution of any individual claim handled by the Undersigned Member and the termination of the Undersigned Memberâ€™s membership in the Trial School.
Any Protected Materials exchanged pursuant to this Agreement may be used for the purposes outlined in this Agreement and for no other purpose. â€˜However, each Member shall retain the right use Protected Materials that Member himself or herself has provided for any purpose that individual wishes.
To the extent that the Undersigned Member fails to comply with any provision set forth above: (a) the Undersigned Memberâ€™s membership shall be subject to immediate termination; and (b) the Undersigned Member shall be reported to each Bar in which they are licensed for having violated their ethical obligations, including those governing the protection of confidential and privileged materials.
This Agreement itself shall be privileged and confidential, except as may be necessary to enforce its terms or to assert the privileges and immunities protected by the Agreement.