The insurance company hires two defense doctors to testify.  They don't examine the patient.  Just read the records and come up with opinions.  A nice way for a couch doctor to earn $750 to $1000 per hour.

I take their depositions one after the other.  Dr. 1 is taken at 2:00 and lasts for an hour.  The next is set to start at 3:30.  So what do you think.  Will Dr. 1 and Dr. 2 try to get their story straight in the 15 minutes between the two depositions.  Read on.

11
 7   Q    Did you speak with Dr. 1?
 8   A    Yes.
 9   Q    When?
10   A    Not very long ago.  It must have been after his
11        deposition.  He called me before his deposition, and we
12        talked extremely briefly, and then he called me back
13        for -- I was in my car, actually -- for perhaps eight
14        minutes.
15   Q    So I just took his deposition, and then you talked to
16        him before your deposition in the car.  So what did he
17        have to say?
18   A    Well, I had formed some opinions, and he confirmed, you
19        know, my thoughts, so we seemed to be in concordance, if
20        I understood him correctly.
21   Q    In concordance or in cahoots?
22                     MR. CROWELL:  Object.
23   A    That wasn't necessary, ma'am.
24   Q    (By Ms. Koehler)  How often do you try to talk to
25        somebody after their deposition that is right before
                            12
 1        your deposition to make sure that your testimony is the
 2        same as theirs?
 3   A    Well, the way you asked that question no matter what I
 4        answer I'm going to be a crook, so I'm not going to
 5        answer your question, because I can't.

Tip for Attorneys:  Ask the defense experts about their conversations not only with defense lawyers, but the other expert witnesses.

Here are Judy's top suggestions for more effective speaking:

Ten Voice Essentials to Remember:

1.      Keep your weight on both feet

(when you move – move deliberately and land on both feet)

2.      Keep your hands relaxed at your sides

(when you have the impulse to gesture – let your hands help you; when you don’t – let them just relax. Don’t hold your hands behind you or in front of you – what are you hiding?) 

3.      Allow your first breath and others may follow

Relax your outer belly muscles (leave the control top panty hose at home) and allow the breath in. Each new thought begins with a breath – thus the word, “inspiration”.

Practice whispering “huh”

 Now voice it – “huh”

 Now say “hey”, “hi”, “hello”, “how are you?”

(can you feel your middle responding?)

 Now, much stronger, “HOW DARE YOU?” The “h” will connect you with your diaphragm. 

4.      Vocal Energy is what carries your words out to all in the courtroom.

In a jury trial, everything you say is for the benefit of the jury, whether it’s opening, closing or examining a witness. If you had a volume dial from 1-10, you should be between 4 and 6 during the trial. 

5.      Speak at the speed of your thinking

If you speak too fast, you leave the jury behind you – speak too slowly, and they are way ahead. Your speed will shift, depending on your thinking: example – “The prosecution is trying to make you believe that the circumstances are enough to convict my client in this case; but, after examining the evidence, I believe you will do the right thing and find Mr. Smith – innocent!” The first part of the sentence wants to move quicker, whereas you want the jury to stay with you for the important words: evidence, right thing, and innocent. 

6.      Employ vocal highlighting

This is something we do naturally when we are expressing something important, but sometimes we forget when we’re under pressure and everything flattens out to sound the same.

Practice emphasizing different words with the simple sentence:

Billy Button bought a bunch of beautiful bananas.

Notice how each new emphasis changes the meaning. Now try with this one:

Mr. Smith never entered the house on Elm Street at 9:00 pm on December 5^th, because witnesses identified him at the same time at the George St. Tavern across town. So, he never had the opportunity to murder Sarah Jones. 

7.      Pitch is thought

Human beings use pitch as a way to inflect their thinking and make it more expressive. Pitch is also an emotional response.

As lawyers, you can use pitch to be more authorative, understanding, ironic, humorous, friendly or factual, for example.

Your voice getting stuck on one pitch is like serving the jury the same meal every day or telling the same, predictable joke. Women tend to get stuck on the higher end and men, on the lower end, but either way is deadly.

8.  Timing is everything

Never underestimate the power of rhythm in speaking. Good writers are really aware of it, good actors can accomplish it and good lawyers should take advantage of it. Vary your rhythm as much as possible. Slow down to make a point – use mono syllables when something’s really important. Shakespeare did it:

“that but this blow must be the be all and the end all….here.”

9.“Words are the boats that travel on the river of sound”

This saying is from Kristin Linklater, an internationally renowned voice teacher. In essence, your intention must always be going forward towards the people you are speaking to. If your voice is swallowed or nasal, we are not receiving you.

Practice fluttering your lips: bbrrrreee, bbrrrrrrey, bbrrrrah

or trilling your r’s: rrrrrrreeeeeeeee, rrrrrrrrrrey, rrrrrrrrah

Or practice tossing a ball with someone while you are speaking. Let the final word in your sentence land as the other person catches the ball.

10. There is drama in the room

This may be obvious, but knowing when the light is on you and you are the center of attention is a very important tool. Sensing when to move and when to stay still, when to look directly at someone and when to avoid them, when to be expressive or when to be factual are important tools to have. Playing an intention puts you in charge. For example: are you trying to: educate, inform, entertain, shock, warn, mock, protect, reveal, plead,demand, instruct (or any other intention).  This will inform your way of speaking and ultimately how you get through.

Lawyers cannot take communication for granted. The art of persuasiveness can only be finessed with practice. There is always room for improvement.  It is wise to periodically to reexamine your modes of expressing yourself: your body language, vocal quality, pacing, clarity, phrasing and intentionality.

Cartoon:  By Jay Flynn (c)  2010

Inside, am gnashing teeth. Mumbling non-swear words.  Like Elmer Fudd aims at Bugs Bunny.

Outside,  do nothing.  Other than email one word to staff:  Lame.  Then go about business as if nothing is ticking me off at all.

I could have argued back.  Will feel way better if I vent.  Way Way Better.  But a quick (impassioned) assessment backs me down.  This isn't about feeling better.  This is about helping the client win. 

So I zip my lips.  Suppress the urge to immediately fight back.  And make a strategic move.  That involves silence.

Now, am not saying that we should always keep our mouths shut.  But here are examples of when we should at least consider it:

1. The judge frowns and says - counsel I will not tell you again, I have made my ruling
2. The other lawyer has escalated to the point where their yelling includes the spraying of spittle (there are  a few exceptions)
3. The witness is furiously chasing you around the conference room trying to "get you" (true story)
4. To interject the element of time

The first three should be fairly apparent.  Once we push aside the adrenaline. 

We want immediate action.  If someone throws a punch, we intuitively want to block it and strike back.  We don't want to feel the pain of being hit.  And we equate losing the battles with losing the war.

Number four is the toughest one.  It is amorphous.

Silence does not mean inaction.  Silence does not mean being fatalistic.  Silence can buy time.  And sometimes time is what can change a case result from a loss to a win.

We are equal opportunity OCD rule creators.  We even create rules to govern ourselves.  Some of them are breathtakenly overbroad and impossible to humanly adhere to. 

Enter Rule for Professional Conduct 1.6:  "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph b."

This language is based on the newest model rule.   This goes way beyond what I learned in law school.  We were taught never to divulge confidences or secrets.  Well, that is only the half of it.

The Washington State Bar Association recently published an article written by Jamila Johnson.  She explained if a technical reading of the rule is correct, lawyers cannot mention anything about a case to anyone.   

I've attended many continuing legal education programs put on by bar associations.  All of them feature lawyers talking about cases.  So I guess they better stop having CLEs.  Or change this rule.

Until then, here is a form letter I am sending to each and every one of my clients now and in the future.

Form:  clientsecretsletter.pdf

Table - from the WSBA news article:  http://wsba.org/News-and-Events/Publications-Newsletters-Brochures/~/media/Files/News_Events/Publications/Bar%20News/2012%20Full%20Issues/201211NovemberBarNews.ashx#page=13of64

Mom:  I want to bring my friend Ed.  He is really bright.  He is an attorney and a palm reader and I share my energy with him.

Me: Mom, I have already set the tables for 27.  We do not have room.  I don't have any plates left and had to get extra silverware from the office.

Mom:  (guilt tripping me) I never bring anyone.   He doesn't have anywhere else to go. 

Me:  (guilt tripped yet again) Ok mom, that's fine.  But tell him no palm reading.

Ed shows up late.  With a suspicious looking briefcase and a box of chocolates.  We have already finished our dinner.  Mom makes him a plate.  He is a nice, jovial fellow.  As soon as he's done eating, he starts reading people's little fingers.

I'm trying to ignore all this.  Am in another room.  Noelle comes in and says that he has declared that Ben (my 6 year old nephew) has paranormal capabilities.  Oh great.

Mom corners me.  He really wants to give you a reading Karen. 

I'm busy mom.

She bides her time.  Corners me 15 minutes later.  I sigh.  Walk to the living room. 

Okay Ed, I say with a smile.  Read away.

Sit down on the couch next to him.  Mom perches on the chair across from us.  With a flourish he whips open the briefcase.  Pulls out a magnifying glass just like the Pink Panther uses.  Puts on a large pair of spectacles.  Holds my little finger under the glass.  Shines a flashlight (where did that come from).  Quite the show.

You are very very honest, he says admiringly.

Well, that's good, I say.

He is studying my little finger.  Turning it this way and that.  Hmming and Hawing. 

Yes, you are very honest.  You also...

He looks intently into my eyes.

You also live in the moment...you aren't a planner.

I smile.  Well, actually Ed, I do live in the moment but I am also a planner.

Hmmm.  He says.   Let me see your little finger again...

Ed is actually quite wrong.  Trial lawyers are planners.  Our ability to act in the moment stems from our painstaking preparation. 

Preparation isn't optional.  It is essential.  In Washington we have fairly strict pretrial discovery rules.  If we don't disclose witnesses, evidence, and opinions on time, we can be barred from using them in trial.  This may vary  depending upon the judge.  But why take the risk.

Here is the most current version of my trial checklist.  

• Court paperwork
  • Trial brief
  • Jury instructions uncited emailed and hard copy
  • Jury instructions cited emailed and hard copy
  • Anticipated pocket briefs
  • Joint statement of evidence
  • Evidence notebooks
  • General voir dire

• Voir dire
  • Neutral statement of the case
  • Tracking chart
  • Key topic outline
  • Key points  from focus group
  • If possible – heads up juror information
  • Scissors (recommended when re-seating jurors during preemptory process)

• Liability
  • Incident reports
  • Incident documentation
  • Standards, rules, codes
  • Written witness statements
  • Recorded witness statements
  • Photos
  • Video
  • Animations
  • Story boards/Visualizations
  • Poster boards of key visual evidence
  • Models
  • Physical evidence
  • 30b6 deposition designations
  • Party deposition designations
  • Original depositions for filing
  • Perpetuation deposition videos with edits per court’s rulings on objections
  • Identify all lay witnesses who will be testifying
  • Identify all expert witnesses who will be testifying and their opinions
  • Impeachment material

• Damages
  • Photos/video of plaintiff before incident
  • Photos/video of plaintiff after incident
  • Relevant preincident medical records
  • Relevant post incident medical records
  • Medical bills and Medical bill summary
  • Xrays, MRI, CT films
  • Medical animations
  • Medical Diagrams and charts
  • Wage loss documentation
  • Life care plan report
  • Economic report
  • Life expectancy analysis
  • Poster boards of key visual evidence
  • Physical evidence
  • Original depositions for filing
  • Perpetuation deposition videos with edits per court’s rulings on objections
  • Identify all lay witnesses who will be testifying
  • Identify all expert witnesses who will be testifying and their opinions
  • Impeachment material

• Equipment
  • Projector and screen (get preapproval from Bailiff)
  • Projector stand
  • Ipad loaded with all exhibits and deposition transcripts via an app
  • Laptop
  • Laptop stand
  • Remote Clicker for laptop
  • elmo
  • speaker
  • computer cords
  • Post its
  • Easel
  • Butcher paper
  • Pointer or laser pointer (if using television instead of projector need old fashioned pointer)
  • Powerstrip
  • Painters tape
  • Permanent marker pens in several colors
  • Thumb drive

 Photo:  John setting up trial equipment in King County Superior Court September 2012.

But occasionally there are times when we need to help make sure the record is straight.  Here are some examples:

• When the defense lawyer cuts off the answer, the witness should be given opportunity to respond fully.
• When the defense lawyer bullies and confuses the witness, the witness should be given opportunity to revisit and clarify if needed
• When the defense lawyer refuses to allow the witness to refer to notes or other records, the witness should be permitted to refresh their memory to ensure accuracy

Another example occurs mainly with expert witnesses.  The defense does not want the expert to testify about anything that is harmful to the defense case.  Instead the defense focuses only on trying to poke holes in the expert's opinions.  Under the discovery rules of almost all states, the expert's entire opinion and the basis for the opinion must be fully disclosed before trial deadlines.  Unless all of the expert's opinions are in a written report or disclosed in deposition, they will be excluded.  This means, if the defense does not ask about all the favorable opinions the expert has, the plaintiff attorney needs to do this on the record.

Lastly, if a case can or should be settled, sometimes questions should be asked to show the insurance adjusters the strength of the case.    The defense lawyers usually focus on the trying to tear apart different issues.  So it is up to the plaintiff to point out the strong points.  For example:

• asking plaintiffs how they have been impacted by the injury
• having doctors discuss future risk factors and implications
• requesting lay witnesses to tell stories that illustrate the loss
• having eye witnesses pound home where blame really lies

The decision of whether to ask questions must be well thought out.  Asking bad questions of your own witnesses can be worse than asking no questions at all.

 Photo:  Deposition in our lovely conference room.

Some of the richest doctors no longer practice medicine.  Instead they make up to half a million dollars a year, working for insurance companies.  Their assignment:  examine injured plaintiffs with a jaundiced eye.  Then proclaim they should be cured in 60 to 90 days.  Sometimes a little longer.

About five years ago, there was a mean retired neurosurgeon who said a  mother was paralyzed and in a wheelchair because she made up the injury in her mind.  He called it "hysterical paralysis."   Made for a good defense.  Of course in reality, she's still paralyzed today.  Apparently the hysteria hasn't ended.

Defense exams should not always be agreed to.  "Good cause" must first be shown by the defense.  Schlangenhauf v. Holder, 379 U.S. 104 (1964).

Justice Tom Chamber’s  concurrence In re Detention of Williams, 147 Wn.2d 476 (2002), lays out the constitutional concerns but also talks about the realities:

Aside from the constitutional concerns, an examination by an expert hired by the opposition is rarely a desirable experience. Examinations can be financially, physically, and emotionally demanding. Parties are often required to take considerable time away from work or other activities, to travel inconvenient distances to the expert's office, and to wait significant amounts of time to be subjected to questions and questionnaires posed by experts suspicious of their answers and motives. Examinations often involve unwanted touching, poking, and twisting, causing discomfort and indignity. All done pursuant to a written order of a judge vested with the authority of the State. Such extreme exercise of judicial power should only happen upon a most stringent showing of necessity. Id. at 498.

When I started practicing, I worked for Justice Chambers who was then simply "Tom".  He routinely made me go down to the courthouse and fight against all defense medical exam requests.  I usually lost.  But almost always succeeded in having the court impose conditions.

Over the years my list of conditions has changed as the examiners have become even more sophisticated, jaded and mean (the truth will set you free).  Defense lawyers would rather not have to bring motions and so they tend to agree with this extremely, reasonable, nice, kind and proper agreement.

Here is the standard stipulation letter for a defense medical exam: DME Ltr form k3.pdf

Photo:  Clip from the Preparing your Client for a DME Exam DVD 2012 Trial Guides.  Co-Produced by Guenther Prod and Yours Truly.  Patient - my friend, lawyer Ed Moore.  Doctor - my friend, lawyer and chiropractor Aaron DeShaw. 

Look at these tips from C.S. Lewis (he of The Chronicles of Narnia fame).  This is taken from a letter he wrote to a young Fan in 1956.

What really matters is:–

1. Always try to use the language so as to make quite clear what you mean and make sure your sentence couldn't mean anything else.

2. Always prefer the plain direct word to the long, vague one. Don't implement promises, but keep them.

3. Never use abstract nouns when concrete ones will do. If you mean "More people died" don't say "Mortality rose."

4. In writing. Don't use adjectives which merely tell us how you want us to feel about the thing you are describing. I mean, instead of telling us a thing was "terrible," describe it so that we'll be terrified. Don't say it was "delightful"; make us say "delightful" when we've read the description. You see, all those words (horrifying, wonderful, hideous, exquisite) are only like saying to your readers, "Please will you do my job for me."

5. Don't use words too big for the subject. Don't say "infinitely" when you mean "very"; otherwise you'll have no word left when you want to talk about something really infinite.

This is pretty good advice.

Photo from C.S. Lewis Wikipedia

These tips from Kurt Vonnegut may not be exhaustive but they ring true.  I've simply substituted the word "juror" for "reader".  Here is the actual youtube list.  http://www.youtube.com/watch?v=nmVcIhnvSx8.

1.  Treat the juror's time as a resource - do not waste it.

2.  Give the jury a character to root for.

3.  Every character should want something - even if only a glass of water.

4.  Every sentence must reveal the character or advance the action.

5.  Start as close to the end as possible.

6.  No matter how sweet and innocent your leading characters, make bad things happen to them so the jury can see what they are made of.

7.  Aim to please just one person.  If you open a window and make love to the world, your story will get pneumonia.

8.  Give the jurors as much information as possible as soon as possible.  To hell with suspence.  Jurors should have such complete understanding of what is going on, where and why, that they could finish the story themselves.

This article is derived from The Atlantic - Kurt Vonnegut's 8 Tips on How to Wrige a Great Story by Maria Popova.  http://www.theatlantic.com/entertainment/archive/2012/04/kurt-vonneguts-8-tips-on-how-to-write-a-great-story/255401/

Photo from www.Kurtvonnegut.com

The lawyer is incensed.

Has come up to the podium to speak to me following a CLE presentation to the WSBA (state bar association). 

I can't believe any defense lawyer would ever let you show a PPT like that in court!  He is practically gasping for breath.  So angry.

What's the big deal.  What's so awful about showing as well as telling.  Well, he doesn't like the "Where's the beef" slide.  When popped little granny up on the screen, simply smiled at the jury.  Then they mouthed the famous words for me.

How! Dare! You!  He stomps off.

Actually wish more defense attorneys would emerge from the stone age.  Give technology a try. It would make trial more interesting for everyone involved. 

This is the closing argument from a basic motor vehicle collision case I tried on a week's notice.  Imbedded the PPT slides into the transcript so you can get a feel for how it flowed.   

Perezclosingstatement.pdf

Outlines serve a purpose.  They just shouldn't be relied upon to the exclusion of the rest of what is going on in a courtroom.

This general outline has been in my repertoire for 20 years.  My former boss, Tom Chambers, developed it.  I have barely changed it.  I use it as a reminder.  As a guide.  Not as a script.

Sample.  Outline direct examination treating health care provider (mix and match order)

Background

• Name
• Address
• Occupation
• CV

First visit

•   Date
• What is your understanding of treatment  plaintiff received following the incident and before s/he saw you
  • Did you perform an exam
  • What were significant findings
  • Initial diagnosis
  • Definition injury
  • History of incident
  • Development of pain/disability

   Course of care

• Reasonable
• Necessary
• Improve with care
• When was last appointment

Mechanics of injury and causation

• How did the incident cause injury
• After trauma can injury cause:
  • Physical limitations
  • Degenerative changes
  • Susceptibility to future problems in area
  • After last appointment what was prognosis in terms of reasonable medical probability
  • Reasonable to expect plaintiff would suffer continuing symptoms requiring continuing treatment to this day on a more probable than not basis from acc.

Pre-existing condition

• If plaintiff had previously injured ____, but had not had medical care or symptoms for almost __ yrs before the incident, would it be fair to say that the injuries were caused by the incident

Medical expenses

•   Are you familiar with the costs of health care in this community

• Show bills:  Have you had a previous opportunity to review the medical expenses.  

• Were the health care services provided to plaintiff reasonable

• Were they necessary

• Were the health care bills charged for those services reasonable and customary in the medical community

• In terms of reasonable medical probably, do you have an opinion as to whether or not the medical conditions and symptoms of plaintiff which you have testified about today were caused by the incident?

• Wage loss

  • I’d like you to assume that immediately following this incident, plaintiff missed work for ____ (or was unable to return to work).
  • Would you have an opinion as to whether or not the time off work (or inability to return to work) that I just described is a reasonable period of convalescence for plaintiff as a result of the incident.

• Future losses

  • Can you detail the future medical care that plaintiff will require?
  • What is the cost of that care?

  • Can you describe future limitations of plaintiff

    • Daily life activities
    • Need for care or assistance
    • Recreational
    • Work
    • Emotional and interpersonal
  • Have you met with NAME, vocational counselor/life care planner
  • Did you provide information to that individual to assist in creation of a life care plan
  • Did you review the completed report – do you agree with the medical portions of that report
  • Future medical risk factors or complications
  • Loss of life expectancy

Final opinion re causation

In terms of reasonable medical probability, do you have an opinion as to whether or not the plaintiff's medical conditions and symptoms were caused by the incident of DATE?

Pull self into smelly dirty diesel.  Am wearing jeans so doesn't matter.  All good.

They are being very kind.  Charming.  Yucking it up with me.  Hoping I'll be sweet and kind during deposition.  Yuck it up right back.  Arrive at the office of friend lawyer, Jay Flynn.  We're going to conduct the depositions there.

Our client, Candelario is a quadriplegic.   He fell on a job site in the middle of nowhere.  There was no safety anything in place at all.  To make matters worse, he lay on the ground for hours waiting to be rescued.   These fellas bid a job, subcontracted it out, and thought all they had to do was rake in the profit.  Didn't realize that under the Stute case, they actually had an obligation to make sure the work site was safe.

Here are some excerpts from a deposition that proves yet again - honey works better than vinegar.

safetydepo.pdf

It isn't good enough to simply submit your instructions.  You have to argue for them. And if you lose, you have to create a record in the event of appeal. 

Here is the transcript of the instruction argument from a trial I handled with my law partner Kevin Coluccio.

Click here for argueinstructions.pdf.

Excellent question, though few people seem to be interested in the answers or even think about them.  So thanks for asking it.  The questioner was quite perceptive.

I've looked into this in some depth and over a period of years.  There are different reasons people sue -- reasons which plaintiffs are consciously aware of only to an extremely limited extent.  The most common of the reasons tend to combine with each other. In rough approximate order of occurrence, they are:

1.  First is the need for some kind of completion.  After any kind of wrongdoing is done to them, humans need to know that the other shoe has dropped-- by means of an apology or remorse from the wrongdoer that the wronged person can believe (think Yom Kippur -- or a murderer's remorse, the latter of which usually gets a capital to impose a life instead of death sentence), or revenge, or punishment, or compensation, or something.  One reason Jesus made such a big deal about turning the other cheek is that letting go is unnatural: so turning the other cheek is almost impossible and thus leaves the other shoe dropping up to the wrongdoer, which in Jesus's time -- not to mention ours -- was extremely unlikely for the wrongdoer to take care of; in societies of starkly unequal levels of power, the powerful never need to apologize.  Result: unavoidable anguish of incompletion for the victim, which JC wanted to alleviate.  The drive for the other shoe to drop is one of the strongest human drives we have -- because it is a survival necessity.  Lineages that did not share the drive for the other shoe to drop were unlikely to survive the forces of evolution.  If you wrong me and I do nothing about it, I am in greater danger of you wronging me again. "Other shoe dropping" means that there's less likely you'll wrong me again.  Eons ago, "wronging me" meant harming my survival chances by taking food, mate,  shelter, whatever, since that's all there was.  The drive for other-shoe-dropping is usually driven by anger, but can also be driven by a desire to begin the healing process (which often cannot start until the other shoe drops).  Needing the other shoe to drop is common to all human beings, and hence common to almost everyone who sues.  (For more on this, and one way to use it in trial, see pps. 82- 85 in Reptile.)

2.  Second is to try to make something good come out of something bad.  "I don't want this to happen to anyone else."  It is a way for victims to deal with loss or irreparable harm.  It makes the harm seem less of a loss.  A basic human drive -- one that is deeply inbred over the eons of evolution -- is that we have an automatic, unconscious, and almost irresistible drive to turn catastrophe into something good (the Phoenix rising from the ashes -- Katrina -- 9/11 new buildings -- "the only thing wrong with being knocked down is not getting up again" -- "turn adversity to advantage" -- etc.).  This drive follows every great community/national calamity, and many people feel it as they recover and look back on individual disasters.  Suing to prevent the same harm to others is one of the only ways individuals can do it when only an individual is the victim.  This drive is astonishingly common among plaintiffs; it's one reason that so many plaintiffs resist confidential settlements -- though they will usually do so for enough money.  (For more on this drive and one way to use it in trial, see pps. 85 - 87 in Reptile.)

3.  Third is the need for money for the victim to support himself or his family -- meds, money to live on, etc., depending on the case.

4.  Fourth is opportunism.  Not as rare as we might want.

5. Fifth: The plaintiff's need for the community -- in the form of a jury, the legal system, a judge, whatever -- to acknowledge that the plaintiff was wronged.  This is almost the same as #1, and can be impossible to distinguish from it, though there are differences.  

6.  Sixth is a desire for importance -- people see in movies, books, TV shows how much attention a plaintiff can get.  This is probably not enough on its own, but certainly accompanies the other reasons.  On the other hand, it may well be a lot more intertwined with some of the earlier reasons than we think. 

7.  Something to occupy the time.  When injuries take away much of  a person's ability to occupy herself with things she used to do to fill in her life, a lawsuit becomes a pursuit per se -- a passion, almost like a serious hobby, an artistic pursuit, or some other passion-driven activity.

8.  Obsession.

Obviously all these have strategy and moral ramifications for trial lawyers. 

Obviously indeed.

Give me an obnoxious opposing counsel or difficult witness any time. At least the deposition will be lively and fun.

Today, ten of us are in my firm’s conference room. The videographer is at one end of the conference table. At the other sits the witness. In back of him is a neutral screen. It blocks out the angels frolicking on the old antique sideboard that usually dominates that end of the room. The camera is pinned on his face. He will become the ultimate talking head. A jury will hear but never see the rest of us.

A doctor is being questioned by the defense on videotape. They are trying to impeach him. Or to find any dirt they can to use against my client.

The main defense attorney today is very business-like. He is wearing black laced shoes, buffed so there are no scuff marks. Black socks. Dark grey pinstripe suit. Four buttons on each cuff. A purple tie with blue diamonds and hash marks. A little microphone is clipped onto it. White shirt hugs his neck too tight. Can’t see the top of his collar as his chin hangs over it.

He is armed with a prepared detailed outline of questions. He has a plastic blue pen in his right hand that he plays with. He touches it to the paper with the questions. But doesn’t write anything down. He goes through the outline. Question by question. In a measured monotone. He looks over his spectacles as the soft spoken witness gives each answer.

The lawyer to my right is most likely sleeping. His eyes are closed and his shoulder just twitched. Actually it twitched so hard that it woke him up. He definitely was sleeping. Don’t blame him.

An hour passes. I manage to avoid passing out. The defense lawyers are now exchanging microphones so the next one can ask questions.

The second attorney is usually the one who goes first. He’s letting the other defense lawyers take first whack at some of the less important witnesses in the case. His shoes are identical to number one. Same black socks too. But he’s wearing chinos and a light pink shirt. His cashmere jacket is hanging off the back of his chair. And his specs are GQ appropriate. He’s wearing a tie but can’t tell what it looks like because am sitting next to but slightly behind him. Don’t feel like being elbow to elbow.

He asks questions that jab and insinuate. He’s wiley and obnoxious. Half an hour passes in a swirl of objections and all the stuff that gets the blood flowing nicely. Bless his soul.

Here are tips on how to stay awake during a boring deposition.

• Fill glass with liquid, sip til done, refill, repeat
• Sit facing window and look for anything that moves
• Do not rest head on hands
• Do not close eyes
• Do not think of closing eyes
• Do not let eyes close
• Pinch side of thigh
• Apply hand lotion
• Read the exhibits
• Mark up the exhibits
• Apply lipstick
• There's a reason why lawyers drink coffee. If you don't drink coffee (like me) then keep reading this list
• Do isometrics with shoulder blades
• Wiggle toes
• Send an internal email asking staff to turn up the air conditioner
• Volunteer to make photocopies of exhibits
• Hold breath and count to ten or longer
• Dress in layers so you can take off jacket, sweater or whatever in order to get as cold as possible.
• Write down questions you may or may not ask
• Write down questions you wish the other lawyer would ask
• If notice eyes are not open and mouth has gone slack.....WAKE UP!

In deposition, the accepted school of thought says – non-party witnesses should never write anything down when preparing for their testimony.  There is no attorney-client relationship.  So the notes will be discoverable by the other side.  The defense lawyer will study them.  The notes will be used against the witness and/or the plaintiff.

I was trained to follow this "rule."  The first time I broke it, my clients were Chinese.  English was their second language.  They were quite fearful they wouldn’t remember everything during the stress of deposition.   Their anxiety was probably going to impact their testimony.  So we decided they should go ahead and write notes.  During deposition, when the defense lawyer asked for the pages, they handed them over.  He couldn’t read Mandarin so that was that.

Today the witness has written four pages of notes (in English).   A timeline of events tracing what happened two years ago.  The defense attorney takes a break and reads them.  Now, they are an exhibit to the deposition.

The deposition is being videotaped.  The witness has her pages of notes laid out nicely on the table in front of her.  She doesn’t have to glance at them often.  But when she does, it seems normal and natural.  She is calm.  The notes give her confidence.  She is doing a fine job.

Here are some tips when allowing a witness to use timelines in deposition:

• First meet with and prepare the witness for their deposition
• Determine whether a timeline will be helpful
• Determine whether the witness will be capable of making a usable timeline
• Weight the risk of whether a timeline will be more helpful than not
• Advise the witness of the option to write a timeline
• Instruct the witness to base the timeline only on their own recollections
  • Except a witness can use documents that refresh their memory (like their own witness statement to a police officer)
• Instruct the witness they must not interview or ask other people for information when making timelines
  • Especially not the plaintiff
• A simple timeline is best:  date and event
• Determine whether any further details should be added to to the timeline
• Assume the other side will get the document
• Assess each witness on an individual basis
• Read the timeline ahead of time to make sure there are no surprises.
• If there are surprises, deal with them

Our civil justice system was created because of the belief that the wrongdoer defendant should take “personal responsibility” for causing injury and damage.  But lately, the message of “personal responsibility” has been flipped around.  No longer do jurors focus on the defendant’s accountability.  Instead, they scrutinize the plaintiff. 

In trial, we can't expect jurors to take what we say at face value.  Suspicions are high.   This grid illustrates how our intent to communicate positive messaging may lead to the opposite result if heard by a skeptical juror.

 In trial, we can't simply speak the truth.  We also have to explain and prove why it is true.   

On top of this, there is an awareness that someone may have caused this death.  Your loved one was killed not because of war or because of an Act of God.  Death came too soon because someone did something either negligently or on purpose.   And it is not right.

You are not a greedy person.  You do not want to "make money" off your beloved's death.  But you want whomever is responsible, to be held accountable.  You want the world to say:  your loved one's death was not in vain.  Your loved one was not invisible.  Your loved on was worthy of being treated with dignity, respect according to the law.  And so you come to see a lawyer.

Here are some tips for conducting the first meeting with a potential new client in a wrongful death case:

• Do not start off the meeting by saying:  "I'm sorry for your loss" and then immediately start talking about the incident.
• Do not take copious notes during the meeting
• Notice who comes to the meeting - is there a family support structure in place
• If family or trusted friends come, learn their roles and connect equally with them
• Connect to the survivor by being a human being. 
• Figure out what is going on emotionally to your best ability
• Do not judge the survivor based upon how they present this first meeting.  Most are still heavily grieving and highly anxious.
• Use discretion on whether to ask routine intake questions.  There's no rule that says the first meeting needs to be the only meeting with a new client.
• Do not create anxiety.  For example, I often tell the survivor not to worry about signing a retainer agreement that same day.  To take it home, read it and then call with any questions or feel to come back to the office.
• Do not start talking about the facts of the incident or anything unless the survivor wants to talk about it or hear you talk about it.
• Discuss the eventual need for a probate and personal representative - not in great detail, but so the survivor can decide if they would like a dual role in the event of litigation
• Ask to see a photo of the deceased so you can get to know them
• Do not let family members see autopsy photos ever - even if they think they want to.  If they've seen them before contacting you, encourage them to get counseling
• Do not try to act as a mental health counselor.  Don't tell them what they should or shouldn't be doing in the grieving process. 
• Ask them to provide all bills so you can deal with any debt collectors or insurance issues
• If criminal proceedings are ongoing, get the name of the prosecutor and any victim's advocate to follow up with later. 
• Do not make them fill out a detailed intake form on the spot.  Let them take it home if they wish.
• Do not start talking about complex legal issues - particularly those related to convoluted wrongful death statutes (Washington State has nasty archaic wrongful death laws).
• Do not place a monetary values on the loss of life.  There's a time and place for everything.  This is never the right time.
• Take your cues from the survivor.  Some will want to stay for a long time and talk in great detail.  That's okay.  Oblige them.  But don't expect them to remember what you say.  Be prepared to later go through everything again.   Others won't be able to stay longer than half an hour.  That's okay too.

In trial, the clerk is in charge of the physical trial exhibits and court documents.  The bailiff takes care of the jury and courtroom set up.

Attorneys who stomp around the courtroom and act rudely to court staff create bad karma.  You know the feeling.  If someone is rude and disrespectful towards you, the response is to either tune them out or become hostile.   Both are natural human defense mechanisms.  Jury trials in negative energy courtrooms aren't real fun.  Here are some tips on dealing with court staff:

• Learn their names and address them properly
• Always say please and thank you
• Don't walk up to the bench and expect they are there to serve you instantly.  Wait until they are finished with their task and ready to help you
• If they ask you to do something do it
• If you need clarification, ask for it
• Always say please and thank you
• Do not rearrange any furniture in the courtroom without first getting the bailiff's permission
• Do not set up equipment without first getting the bailiff's permission
• Do not create any trip or other hazards.  If you need to tape down extension cords bring your own painter's tape (not duct tape)
• It's okay to talk to staff during recess about life, so long as they want to talk
• Do not try to hand anything directly to the judge.  All things must be passed through the clerk
• Always say please and thank you
• Do not bang on the courtroom door trying to get in at the begining of the day or after recess.  Staff will let you back in when it is time
• Do not hang around the courtroom after the court excuses everyone for lunch or at the end of the day.  Get out of there so staff can go on break or leave.
• When the Judge is off the bench, don't act as if staff are invisible. They can see and hear even if they are being quiet.
• In emails, always say please and thank you

And perhaps the most important of all - don't eat everything in the candy dish (unless you replenish it occasionally).

Photo:  The Hon. Michael Heavey's clerk during the trial January 2011

The insurance companies have figured this out.  Companies like Allstate keep stables of "in-house" lawyers on their payroll.  Though some of them are skilled.  Most of them are not.  But don't take it from me.

After trial, one of the jurors who did not make it onto the panel contacted me.  He worked for Microsoft and asked if I would have breakfast with him.  He wanted to know why I didn't choose him to sit as a juror.  We talked for an hour about his thoughts on voir dire.  He admitted it was probably good for my side that I did not select him.  He also said:  “On one hand I wanted to be on the jury.  But I was concerned because I didn’t want to sit through a trial with a defense lawyer who was so poor.  I couldn’t bear the thought of having to listen to that.    I felt that I might overcompensate for her, feel sorry for the defendant, and that in an attempt to give him a fair shot I would lean over to his side too much.”

That's right.  This juror was worried he would rule for the defense to make up for the defense lawyer being so awful.  And indeed she was.  Halted, mumbled, disjointed words would softly fall out of her mouth onto the floor.  Simply excruciating.  But at the end of the day the jurors didn't hold her performance against her.   She was so terrible she became credible.

Photo:  This look may work for a 70s disco party - but not for trial.