Host: Hey guys, we are going to do a fun bonus episode. It’s going to be a shorter one for our third episode. This is just a little bonus we want to drop, and since this is our third episode, we’re going to kind of play off of that a little bit and we’re going to talk to you about the rule of threes.
This is kind of a psychological weapon that you can use in the law very effectively, mainly through communication in a lot of different aspects. When we, as defense attorneys for our clients, communicate — and remember, our widget is not only our time but also our effectiveness in how we’re communicating with others to bring your case to a good resolution — we frequently find ourselves using the rule of threes.
That really comes down to how we’re talking to others, whether it is our clients, whether it is prosecutors, whether it is juries and judges. So we’re each going to unpack the rule of threes a little bit in a different way and how we use that to communicate. But what I’d like to impart on you is that with the rule of threes, what is important to remember is that the human mind remembers things in sets of threes far better than they do two things or four things or five things. And also, I have heard and I believe the statistics show that a human being who hears something that they are not too familiar with three different times is far more likely to remember it than if they hear it once or twice.
Communicating With Clients
Host: So what we’re going to start with here is the part about communicating with our clients. Tim, I’d like to talk to you about that a little bit. When we communicate with our clients in our initial meetings with them, what we’re doing in those initial meetings is we are trying to impart knowledge and direction and ideas to our clients to help motivate them to do things that are going to help us fix their case. So how can we more effectively, or most effectively, use that rule of threes when we’re actually sitting in those very first meetings with our clients?
Tim: So the first thing that we do when we do these meetings is what we call an intake process. Some of that is I have to get information from the individual, and the way that I break that information down helps me. I separate it into generally three types of information:
- Basic information about the person — sort of identity information
- Information about them as a person — their background, whether they’re married, their family life, where they’re living, their educational background, if they’re involved in schools or sports or community service
- Information about the incident that they’re coming to us with — what happened
All three of those come together, I think, for us to be able to paint a picture with negotiations and to a judge.
When we’re giving information to defendants and to clients, what we are giving them is information on how to show that they’re taking accountability, whether it’s through treatment or through compliance with pre-trial supervision. We want to be able to show stability to the judge or to the prosecutor — to show that they’ve got stable housing, stable employment, they’ve got a good support system around them. And we also want to show them that they’re engaging with treatment if treatment is necessary — that they’re proactive with it, that they’re involved in counseling. Maybe that’s outpatient treatment, or maybe it’s some kind of mental health assessment, or they’re taking a course of some kind to address the issue, the conduct. And then those three things feed together. We can talk to the prosecutor and show a more complete package.
Host: Yeah. And you know, again, we’ve said this on other episodes — we are defense attorneys. We want to get you the best outcome that we can. And part of that, like you said, sometimes is taking accountability for something that you may have done wrong. That does not mean you’re coming to us and sitting down and we’re saying, “You’re guilty. You’re a bad person. You did something wrong.” Quite the opposite. We understand people make mistakes. That is human nature. Sometimes these mistakes are bigger than others. Sometimes there were life circumstances that brought them to that situation. We want to work with them. We want to help them. And we want to guide them to the best outcome we can get you — whether that’s through doing a trial and running it through, if you are innocent of a crime, fixing it that way. But most times we really have to figure out how we can build a case for you, put the most ammunition we can in our corner to negotiate.
Negotiating With Prosecutors
Host: So I’m going to go back to myself here and talk a little bit about the rule of threes as it relates to how we use what you were just talking about, Tim, to actually effectively negotiate and mitigate when we’re dealing with prosecutors.
We have to understand, when unpacking this, that when you are negotiating as a defense attorney with a prosecutor, this is in a way one of the most important things we do for you. Putting the prosecutor in a position to essentially make a decision about your case that we want them to make — but they feel like they are making that decision or coming to that conclusion on their own as the right thing to do — is more powerful than anything we could possibly do. You all know that in your lives, if you come to a decision on your own, that’s a decision you made. You own it. You like it a lot better than someone else telling you what you should do or what you should decide. So this isn’t mind control, but this is putting them in a position that they’re comfortable making a decision that we want them to make, to be effective for our clients and getting that type of outcome.
So to what you were saying, Tim, and setting our clients up appropriately, there’s really three things that I think a prosecutor is really looking at when they’re making these decisions — when they’re thinking about making plea offers or dropping charges or reducing things. What are they looking at and how do they want to feel?
1. Treatment. As you said, Tim, doing treatment, engaging early in that treatment, and doing it well — with gusto and with a smile on your face — and trying to actually get something out of it. That is one of the most powerful weapons in our arsenal for you. That is what will get us to the most effective result. But it’s not just doing the treatment. It’s not just showing up. It’s not showing up and maybe being a bump on a log. Like I said, you’ve got to do it with gusto. You’ve got to get something out of it, or at least have that appearance that you got something out of it at the very least. But I don’t even like that. I like the person to actually get better — to actually help them in their life.
2. Accountability. That kind of dovetails into the second thing, which is showing that accountability. So how do you show accountability? Well, maybe there’s restitution you owe somebody in a case, and you say to a prosecutor, “My client is willing to make that person whole financially — to pay that restitution. We’re willing to do community service because my client recognizes the harm on society that they caused and they would like to make amends for that.” And they’re compliant with their own individual engagements, whether it’s counseling or therapy or what have you.
3. Stability. The third thing is that stability that you mentioned, Tim. Stability — housing, employment, having a job, being in school — essentially operating in society in a stable, “I’m not worried about you” way.
Really, as a prosecutor, understanding that they’re sitting in that prosecutorial role, we want to show measurable change for our client. We want to reduce the fear for that prosecutor of this person committing a crime again — that’s called recidivism, doing something over and over again. And how do we make them feel comfortable that that isn’t going to happen here? And we also want to give them justification for leniency.
So, you see what I did there? Three things. So again, this is memorable. The prosecutor — it’s hitting home more with them because we are using that rule of threes to kind of get our point across and to make it more memorable and effective for them. And I promise you, if you use it that way and you give us the ammunition to be effective in that way for you, we will get you a good result and you will be far better off for it.
In Court — Talking to Judges and Juries
Host: So a third way we use this — and Justin, I’m going to kick it to you for this — is when we’re actually in court and we’re litigating, and we’re actually having to talk to a jury or a judge and we’re having those conversations. Which again, as we said on prior episodes, that’s not always reality. That’s kind of theater. But part of theater is how memorable is it to the juror or the jurist that is hearing what we’re saying as they’re making their decision as to whether or not our client is guilty or not guilty of the crime. So how can we use the rule of threes to make things memorable, to be effective in that scenario?
Judges
Justin: Absolutely. I’ll start with judges first, just because I think juries and judges can go together, but you can also have your judge essentially at the time that you’re looking to resolve your case without a trial. So when you’re presenting a plea agreement to a judge — and maybe you’ve come to the agreement with the prosecutor and both sides are in agreement — say you had a pretty egregious case. Your client did a lot of stuff, a lot of treatment, a lot of good things to ultimately have the prosecutor agree to a greatly reduced sentence or charges. Sometimes we have to convince the judge to take that plea.
Host: Yeah, that happens a lot. So you are in scenarios — and it’s important to understand — when you are getting a good plea deal and you’re in court to finalize your case and you love that deal and you want that deal, the judge has to bless it. The judge has to agree to it. It isn’t just you and the prosecutor in the sandbox. The judge has to ultimately say, “That’s appropriate. I will take that.” And remember, the position of a judge is they’re kind of like society’s last line from chaos. So the judge has to be comfortable that this is a good outcome. So being effective and using that rule of threes can be really, really powerful in these scenarios where you’re kind of having to convince — or at least convey — why a judge should accept that deal. So tell me about that.
Justin: Absolutely. And it goes back to what both of you guys talked about: accountability, stability, and — what was the third one? I’m sorry.
Host: Treatment. Doing treatment.
Justin: Yeah, which kind of goes into accountability. But how I look at it with the judge is we want to show all three of those things. Obviously, we want to explain to them what happened, why it happened — and that’s where the treatment, stability, etc. goes in — and then how they are responsible, in the sense of they’re here taking accountability for what they did. So going through all of those things with the judge and hitting on all three — what happened, why it happened, how they’re responsible — and again, it goes back to the stability, treatment, and accountability. Those three things, if we can convey to the judge in an effective way, makes them much more likely to ultimately approve the plea.
Host: Yeah. It’s kind of the difference between putting up a nice big old fluffy pillow and saying to the judge, “Hey judge, this is a tough case. This is a very, very egregious situation, but here’s why you can feel comfortable putting your head and laying your head on this pillow and taking this deal.”
Justin: Yes.
Host: Whereas if that pillow’s flat, you ain’t getting your deal.
Justin: No. And a judge can turn it down, and then you just did all that effective negotiation. You got a really great plea offer, and boom — you’re not getting your deal because the judge is turning it down because you did not effectively communicate why it’s appropriate. And we can use that rule of threes to hit that home with the judge as we’re talking to them.
Obviously, talking to a judge, it’s always important to be very respectful, understand the positions of everybody in the courtroom and things like that. But more effectively than that is just the way it’s explained — putting the judge in that comfortable position to accept the outcome of that case and think it’s good for society, and that your client has kind of earned the ability to get that great outcome that they might not otherwise — that most people don’t usually get in that scenario.
Juries
Justin: And then, I think it definitely works for judges as well, but when we’re talking about juries specifically, we have to remember it’s 12 random people from York County or whatever county we’re in doing that trial. And like we’ve talked about, hearing something three times, you’re much more likely to remember it. A rule of three for juries, I think, is there’s really three main parts of a trial:
- Opening statements
- Witness examination
- Closing argument
You need to be effective in all three of those, whether you’re a prosecutor or defense attorney. Because — maybe this isn’t the best way to put it — but I think a lot of times juries will side with you if they like you more than the other person.
Host: And I think that, too, just has to come down to believability.
Justin: Yes.
Host: I mean, somebody who is a good communicator and drives the right things home and isn’t just haphazard and all over the place and saying all sorts of stuff and not organized — because again, the rule of threes, it’s kind of a tool of organization.
Justin: Yes, it’s organization for the mind, and using their minds to essentially remember the points you want to make. If you’re saying 10 different things, it gets lost in the noise.
Host: Yes, it really just does. And if you get lost in the noise, you’ve lost the jury. You haven’t engaged properly with them, and you’re probably not going to get the right outcome. And so much of what we do is just this effective communication. Like, it’s just being able to be comfortable in that and be effective and hammer those points home so those people feel, first of all, “I’m comfortable with this person. They don’t weird me out.” Because, like you said, if the jury really finds you to be odd or doesn’t enjoy being around you or hearing from you, they’re probably not going to — human nature — believe you. And you need to be believable. You need to be credible. And usually if you’re real, if you’re genuine, and you’re effective in your communication, you’re going to be believable.
Justin: Absolutely. One of the first things that I heard from a very seasoned defense attorney here in York County, after my first jury trial in the DA’s office — I hadn’t done a ton of trials at that point. I was still pretty young in my career. And I think that I made a lot of mistakes and I tried to be somebody that I wasn’t, and it was apparent. And so when he pulled me aside and had a conversation with me, he’s like, “You know, you can be good at this, but you need to be yourself. Because if you come across as inauthentic, or that you’re trying too hard, or trying to be somebody you’re not, the jury’s going to pick up on that immediately, and you’re essentially digging yourself a hole.”
So I think, going through a number of trials at this point and having done a number on both sides, you really need to weed out what the issues are — what the issues are that you want to present to the jury and have them remember when they’re deliberating. That is very important. And again, rule of threes — take the three biggest ones and hammer those home.
Closing
Host: Great. All right, guys. Well, again, thanks for watching our bonus episode — our third bonus episode here during our third episode. And again, play on words there. Rule of threes. We thought it was a good time to bring that up.
And again, you guys can use that in your own lives when you’re talking to people — to be effective and to have them remember what you’re discussing with them. It’s a very, very powerful tool.
So again, thanks for watching the Now We Defend podcast.
