Texas Going once, going twice ... sold! What trial lawyers can learn from auctioneers

By Sylvia Hsieh

The Daily Record Newswire

BOSTON, MA -- Growing up as the son of a cattle trader, some of Rafe Foreman's fondest childhood memories were of going to cattle auctions with Dad - the welcoming crowds, the excitement of the event and the anticipation of some good Texas barbeque.

So when Foreman had the opportunity to learn from one of the best auctioneers in the business, Walter Britten, he jumped at the chance.

Thirty years later, Foreman continues to conduct auctions despite his day job as a trial lawyer with the firm Foreman, Lewis & Hutchison in Grapevine, Texas.

He spoke with Sylvia Hsieh on how auctioneering has helped him be a better trial lawyer:

Q: How did you get into auctioneering?

A: It's kind of a cool story. Long before I went to law school, I was a teacher. I had this student named Ricky Britten who stuttered really badly. He would come to my classroom after class and I didn't have any particular skill or training, but I just believed I could help.

He ended up not only giving a speech but ... was later elected to the district office for the Future Farmers of America. His parents and grandparents were so overwhelmed that he learned to stop stuttering that they asked me, 'Is there anything we can do for you?'

Ricky's grandfather, Walter Britten, was the most famous auctioneer in the world, and I always wanted to be an auctioneer, so I said, 'I understand you have an auction school.'

Mr. Britten said, 'I closed it, but I'm going to open it up one time for you.'

He got me and some other students together because it's better to learn in a group. That was before I went to law school, so I've been an auctioneer longer than I've been a lawyer. ... In fact, part of the way I paid for law school was doing auctions.

Q: What are the similarities between auctioneering and lawyering?

A: The number one similarity is being able to read people. I can tell when I look at a crowd when I'm going to be able to get a certain price. I do lots of charity auctions all over the country, and I was doing an auction for a school for autistic children in Grapevine, Texas. Five minutes before I walk on stage, the principal says, 'Man, we sure need a school bus. It costs $105,000. If you could raise us the money to get a school bus, that'd be swell.'

I went ahead and did the auction and we sold all the items for $50,000-$60,000. I looked over at the principal and she wasn't smiling.

So I said, 'Now what we need most is a school bus to haul kids around, and it's going to cost $105,000. And here's the way we're going to do it: It's a 42-passenger bus with 21 kids on each side of the bus, so we're going to sell them a seat at a time.'

I sold one seat, then two ... when four seats were sold, the principal is starting to smile.

The next thing, an elderly woman in the front row is motioning me to come here. So I walk over and she whispers in my ear, 'However many of these you can sell, I'll write you a check for the rest.'

It's the same in a courtroom. I can look at jurors and get the same feeling looking at their faces: their encouraging eyes, friendly smiles, warmth, trust, compassion and righteous indignation.

Q: What if you don't get that energy from a jury?

A: I don't get a different energy. ... There's an intangible atmosphere created by the lawyer. You want people to feel welcome, to feel valued. At an auction, you let people know it's alright if you don't buy anything today. When I was 5 years old what I remember about auctions is they have nice food for you, a nice word for you and whether you buy anything or not, they're just happy to see you.

It's the same with jurors. If the judge lets me do a proper voir dire, I've sold them the goods I'm going to sell them at trial. Voir dire is like the preview at an auction where buyers look around and preview the items. At trial, it's a preview for both of us. I'm selling a story and I get to preview who my buyers are.

It's also a preview for them. They get to see what the issues and storyline are going to be for their consumption in this trial.

If the subject alone is so distasteful that they are not interested in buying it at an auction, they'll leave the auction. In a trial, if they don't think they can sit for a week or however long, or if the subject is so disgusting, they'll raise their hand and say, 'I'm not the right person.'

I've had jurors tell me they are disgusted by me. But that's the greatest gift anybody can give me. I tell them, 'You know, that hurts my feelings because you don't even know me, but it took a lot of courage to stand up and say that, and I honor that. And let me make you feel better, because I'm sure you're not the only one. Now, who else feels like Mr. Smith and hates me too?'

So it's the environment that I learned to create in an auction and what I applied in trials. If you create a safe environment for jurors, they will feel safe enough to stand up and say their biases.

Q: What skills can trial lawyers learn from auctioneers?

A: Momentum is everything in an auction. I get on a roll and the very worst thing a person can do is stop it, or say we're going to take a break. [It's] the same thing in a trial. If you've got momentum miraculous things start to happen.

The auction chant is very authoritative, controlling and tempo-driven. This is critical in cross-examination. When I'm cross-examining an expert who is more educated, more experienced than me and has more talent than I'll ever have, I know I'm not going to beat him on the subject matter. I'm going to get him to take his mind off the facts and get him to say things he would have weaseled out of by controlling him.

Auctioneering also taught me the tempo and cadence of a closing argument. I want people to stomp their feet on the ground, demand that the door of the jury room be open because, by God, they are going to fix this and make somebody pay for it. They're going to do the right thing.

It's the same thing that would make somebody buy something they don't even need -- it's a combination of your credibility and the momentum you sustained.

Q: Is getting the highest bid at an auction like asking jurors for damages?

A: Talk to ten civil trial lawyers and nine out of 10 will say the hardest thing about trials is asking for the money. I think because of my auctioneer training, I have never, never, never had problems asking for the money. As Walter Britten told me, 'Things will sell for what they're worth right now. Not what they sold for yesterday. Not what you think they're worth. Not what they'll sell for tomorrow.'

I tell the jury the damages number in voir dire. I'm not afraid of the number. ... Auction school disabused me of that. It's the same thing in a jury trial. The whole reason you are here is to return some money and you want me to hide that from you? An auctioneer would look at you like you're crazy.

Published: Mon, Sep 5, 2011

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