Depostion of a defense doctor - in concordance or in cahoots!

depo.jpg

 

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.

Top 10 Tips from a Voice Coach

speaking.jpgI teach trial advocacy with Judith Shahn who is a voice coach.  Judy has been a senior lecturer at the University of Washington's School of Drama since 1990.

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 5th, 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

When to keep our mouths shut

ziplips.jpgToday, someone does something that really ticks me off.  Actually, two someones do.

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.

Why "Honey I did great in trial today" may violate ethics rules - and what to do about it.

RPC1.6.jpgLawyers love rules.  Lawyers also tend to be OCD.  Rules + OCD = an intricate, layered, never ending monstrous pile of rules that becomes increasingly difficult to navigate.  The legal profession calls this - job security.

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.

Formclientsecretsletter.pdf

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

 

Tips for attorneys - the story of the palm reader and my trial checklist

DSCN2933.JPGMy mother brought a 73 year old palm reader to Thanksgiving dinner. 

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.

 

Tips for attorneys: when to ask deposition questions of your own witness

DSCN2890.JPGUsually I don't question my own witnesses in deposition.  The other side is taking the deposition.  And it's their job to do the asking. 

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.

Form of the day: Defense Medical Exam Agreement

DMEform.jpg

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. 

Tips for attorneys - from a children's novelist

250px-C.s.lewis3.jpgWe are rewarded in school for using sentences so complex, that the reader or listener is virtually tortured by them.  As grown up lawyers this means we tend to spout legalese to normal people.  How as trial lawyers do we shrug off these intellectual habits.  So we can tell a good story.

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

 

Take it from Kurt - 8 (no adjective needed) storytelling tips

vonn.jpgThe quest for the best story is front and center as we prepare for trial.  Data is all good and well.  But stories are the way to connect with real people. 

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 Popovahttp://www.theatlantic.com/entertainment/archive/2012/04/kurt-vonneguts-8-tips-on-how-to-write-a-great-story/255401/

Photo from www.Kurtvonnegut.com

Tips for Attorneys: where's the beef ... closing argument with PPT

beef.png

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

Tips for Attorneys: direct exam of a treating physician

drdep.jpg

 

 

 

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?

Deposition - helping a deponent put foot in mouth

smokesignals.jpgThe plane lands in the Tri Cities.  Am on way to rental car.  Defendants pull up in a work truck.  They are picking up Doug - the defense lawyer.  They motion for me to come on over.  They want to give me a lift.  How sweet is that.

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

Tips for Attorneys: arguing jury instructions

juryinstructions.pngThe jury goes back into the deliberation room with two items:  1)  exhibits; 2) written instructions.

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.

Why do people sue part 2. David Ball's response

274859_631919498_2090340619_n.jpgHave big giant lawyer crush on David Ball.  Have followed him around the country listening to his speeches like a faithful groupie.   So when Cristina stumps me with her question, decide to pose it to him.  Here's what he says.

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.

Tips for Attorneys: how to stay awake during a boring deposition

DSCN1929.JPGSometimes the hardest thing to do in a deposition – is stay awake.

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!

Tips for Attorneys: witness deposition timelines

DSCN1094.JPGWhen we study for tests, we make notes.  When we prepare for oral argument, we write outlines.  There’s something about thinking and writing that helps us better process and remember details. 

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

 

Tips for Attorneys: flippin' it

flipit (2).jpgEverything we say can be turned around and used against our clients.  Lawyers are trained to analyze fact patterns in terms of logical progression.  A leads to B which results in C.  We think if we're logical that's good enough.  But many of members of the public don't believe a thing  lawyers say.  According to various polls, we are one step above or below used car salespeople and politicians (no disrepect intended). 

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.

Lawyer’s thought process

Skeptic's thought process

Defendant broke the rules and injured plaintiff.  Fault is clear, the defendant admits liability and so this part of the case is closed.

It was not intentional, it was an accident.  People shouldn’t be sued because of an accident.  The plaintiff isn’t the victim here, the defendant is.

Plaintiff’s doctor says the injury was caused by the incident so the defendant is liable for causing the injury.

That doctor just wants to help her patient.  She didn’t look at every single medical record.  She just took plaintiff’s word for it.  Something else probably happened but plaintiff wants to blame defendant for all his problems.

Plaintiff suffered pain and disability.

We all have aches and pains, that’s part of life.  The only reason plaintiff is blaming this injury on the accident, is so he can get lots of money.

Fair compensation should be included in the verdict for all the legal elements of damages.

This was an accident.  If we have to award medical bills—then fine we’ll do that.  But plaintiff shouldn’t make any more money off of this.

 

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

Tips for Attorneys: initial meeting with wrongful death survivors

wdeath.jpgYour loved one is killed.  You cannot function.  You cannot stop crying.  You cannot stop thinking about your beloved.  Your world seems like it is ending. 

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.

 

 

Tips for Attorneys: interacting with trial court staff

DSCN0590.JPGMost of us have no idea what the clerk and bailiff actually do.  We suspect the Judge gives them instructions that they carry out.  We tend to mix them up and view them as indistinguishable.  But they are quite different.

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

Tips for Attorneys: tone it down

k3party.jpgUnlike what we see on t.v., silver-tongued, brash, flashy, charismatic lawyers, don't always do well in trial.  Jurors assume we have been trained to manipulate and persuade them.  They guard themselves against us.  By gosh – they aren’t going to fall for those darned lawyer tricks!

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.

Tips for Attorneys: complexity is a friend of the defense

DSCN1179.JPGIn trial, David Ball’s rule is to spend less time on showing fault than proving loss.  His point - we are not going to trial to simply get a verdict of responsibility.    It isn't enough for a jury to tell the defendant "you did it."   The jury needs to make things right.  Our country has decided that isn't done with "an eye for an eye."  Instead, the jury sets a money value that is needed for the plaintiff to get back to even. 

The defense wants to turn the jury's attention away from making things right.  It does this by making the jury's job complex.   The defense will fight even thouse cases where fault should be crystal clear.  

In my last trial, an SUV driven by a 16 year old, unlawfully changed lanes and ran into a moped driver.  There were two independent eye witnesses.  They both testified the SUV driver made an unsafe lane change.  Still the defense lawyer blamed the plaintiff through the whole trial.   Why you ask.

Complexity is a friend of the defense.  The more complex, the more confusion.  The more confusion the more hesitancy.  The more hesitancy the more likely a defense verdict.

In our case the jury didn't buy that.  They ruled in favor of the plaintiff.

Tips for Attorneys: juries don't expect perfect plaintiffs

k48.jpgEvery once in awhile there will be a plaintiff who is almost saintly in their wonderful-ness.  I remember one darling Grandmother.  We all fell in love with her.  When she scrunched up her cute little face and talked about her sadness, jurors weren't the only ones crying.  Mary Anne was as perfect as they come.

With the occasional saintly exception, plaintiffs are human beings like the rest of us.  Jurors don’t expect our clients to be perfect.  When we try to prove they are, we set them up for failure. 

We are living in an age where The Kardashians are our favorite TV family.  Charlie Sheen is becoming even more famous as he unrepentantly unravels in the most public way.  Celebrity Rehab and The Biggest Losers rule the ratings.

Here is a picture of my mom and siblings.  We can't even all look into the camera at the same time.  My hair is a bit frizzy and my jacket is doing something strange.  My mom's last button isn't done.  And Susan's glasses need to be pushed up a little.   No, we aren't perfect.  But we stick together as a family.  That's what counts.

So next time you're in trial remember.  It’s okay for our clients to “be real.” 

Lawyer tips: how to avoid boring your seminar audience

sleeping.jpg

                                                                                                          (c) 2010 Jay Flynn

Cartoon by Jay Flynn, personal injury attorney, artist, friend.

If you are sitting in the audience, watching yourself give a presentation, would you be inspired and eager to hear more?   Let's be frank here. 

There is a tendency to focus on pleasing ourselves when we give a speech.  Maybe it's because we need to do everything possible not to show our fear. Or we are trying to look good and smart.  When we focus on self, we channel our energy and efforts away from our audience.  In return, our audience will go to sleep.

Most lawyers who speak at seminars are very well prepared.  It is not a question of whether they know their stuff.  Instead the question is - can they please be better teachers.  More entertaining.  More interesting.  More engaging. 

JD Schramm, Director of the Mastery in Communication Initiative at Stanford’s Graduate School of Business, suggests that we start by writing down the “heart of our content.  How will we shape it?  What flow makes sense?  What matters most to my audience?  What aspects must be included and what elements are optional if time allows.”

Another strategy is to first figure out the opening line.  The grabber.   Then let the flow unfold in a way that will hold attention.

Do not start off by re-introducing yourself and explaining the background of what you are about to do.  Delve right into your speech.  Start off with a story (but please avoid war stories – these generate the most complaints).  Pose a provocative question.  Use a great visual image.  Begin with something funny.  But beware.  Jokes are often very difficult to pull off unless they come to you second nature.

Here is a list of suggestions to help optimize your presentation:

  • Look at the audience.  Really look and relate to them.
  • Ramp up your personality.
  • Don't stand at the podium.  Ask for a cordless microphone and prowl the stage
  • If you find yourself speaking in a monotone - snap out of it
  • Don't speak in a monotone
  • Don't speak too quickly in attempt to cram everything into your time slot
  • Ask the audience questions and interact with them
  • Don't fuss around with equipment.  Either know how to use it, find someone else to do it for you, or don't use it
  • If you have been given a boring topic to speak on - get permission to change it
  • Don't read aloud case names and legal citations or other extreme details.  Those should be in your paper.
  • To ground the speech, choose a theme. 
  • Consider a metaphor or other linguistic construct.  (i.e.  I have a dream…)
  • Don't try to model yourself after MLK or anyone else.  Be the best version of yourself.
  • Jazz up the order of the speech.  Don’t be overly logical.
  • The audience’s time is precious.  Make every word count.
  • We are conditioned from a young age to make sense of the world through story telling.  So tell a story. (Without beating your drum).
  • Speaking some legalese is fine with a lawyer audience, but it can become toneless and boring.  Use vivid, concrete, emotive language. 
  • If possible perform a demonstration.  Choose someone from the audience to assist.  Or do a solo act.  Kinetic, interactive, demonstrations are audience favorites.
  • Use Powerpoint the right way
  • Do not read your outline or paper
  • Practice makes as perfect as it can be.  There is no substitute for preparation.

Tips for Attorneys: Direct exam of a medical expert

20101104-tows-dr-oz-1-300x205.jpgI'm on the treadmill watching Oprah.  She is interviewing Dr. Oz.   Their theme "5 lifesaving numbers."  He gives vivid easy to understand verbal answers.  He uses a video recreation.  He has a demonstrative aid.  I like it when he punches the plaque out of the artery.   It is really super.   Oprah is a phenomenal interviewer.  She channels the audience.  She “is” the audience in the moment.  Her goal is to educate and impress upon the audience, the importance of understanding and following Dr. Oz’s medical advice.

Really when you think about how we deal with our own experts – sometimes (in my opinion) we have an over inflated opinion of what we add to the equation.  A really great expert needs to be showcased like Dr. Oz.  We need to ask questions to avoid objection that it is a narrative.  Also, we don’t really want a narrative because that will put jurors to sleep.   But aside from the risks of boredom, I find a lively spontaneous chatty back and forth dialogue to be the most engaging.   So my best plan on how to do direct of an already good testifying expert – is to be Oprah.  I “am” the jury.   

Tips for Attorneys: Quick List of Objections

“Objection your Honor – counsel is badgering the witness!”   The days of speaking objections during jury trials may well be numbered.  Most judges now specifically instruct counsel only to object “as to form."   Some judges permit a brief statement of the basis of the objection such as “leading.”  Sidebars outside the presence of the jury are used to address the details.  The problem with sidebars is that they occur off the record.  At the next available recess, make sure to restate the details of the objection on the record.   

Here is a quick reference list of objections for your trial notebook.

 

  •  Counsel conduct 
    • Coaching the witness - State ex rel. Means v. King, 205 W.Va. 708, 520 S.E.2d 875 (1999).
    • Cutting off witness answers -  State v. Fukusaku, 85 Hawai'i 462, 946 P.2d 32 (1997).  
    •  Gestures or signals to witness or jury - Greenberg v. United States, 280 F.2d 472 (1st Cir. 1960).
    • Harassing the witness - Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, (1931).
  • Form of the question – Evidence Rule 611.
    • Ambiguous - Boyd v. University of Maryland Medical System, 173 F.R.D. 143, 38 Fed.R.Serv.3d 1030 (1997). 
    • Argumentative –  Boyd
    • Asked and answered - Boyd
    • Assumes a fact not in evidence – ER 103.  McCormick on Evidence § 7 (4th ed. 1992). Ramirez v. State, 815 S.W.2d 636 (1991)
    • Compound - Cook v. State, 734 N.E.2d 563 (2000)
    • Confusing or unintelligible - St. Luke's Episcopal Hosp. v. Garcia, 928 S.W.2d 307, 309 (1996).
    • Improper hypothetical - Friese v. Mallon, 940 S.W.2d 37 (Mo.App. E.D. 1997)
    • Leading - U.S. v. DeFiore, 720 F.2d 757, (2nd Cir.(N.Y.)1983).
    • Misquotes a witness or exhibit - St. Luke's Episcopal Hosp. v. Garcia, 928 S.W.2d 307, 309 (1996).
    • Overly broad - Boyd v. University of Maryland Medical System, 173 F.R.D. 143, 38 Fed.R.Serv.3d 1030 (1997). 
    • Calls for speculation – State v. McDonald, 98 Wn.2d 521, 656 P.2d 1043 (1983); Kirk v. Union Pacific R.R., 514 N.W.2d 734 (, 1994) (Accident reconstructionist excluded from testifying due to conjecture and speculation not helpful to jury),
  • Testimony/Exhibits
    • Lack of authentication – Evidence Rule 901
    • Collateral Matter – Evidence Rule 403
    • Cumulative – Evidence Rule 403.
    • Irrelevant – Evidence Rule 401 and 402
    • Incompetent - U. S. v. Frazier, 584 F.2d 790 (6th Cir. 1978)
    • Nonresponsive answer - U.S. v. Carr, 5 F.3d 986 (6th Cir. 1993)
    • Lack of foundation - Stouffer v. Reynolds, 168 F.3d 1155, 1999 CJ C.A.R. 601 (10th Cir.1999)
    • Hearsay – Evidence Rule 801

(Note:  This list was excerpted from the jury trial section of the WSBA Motor Vehicle Accident Deskbook (c) 2009, that I wrote).

Tips for Attorneys: Rebuttal Pizzazz

The temptation of rebuttal is to make absolutely positively sure the jury is told the right version of the case.  To have the last word and correct the defense.  But the jury wants to get going.  They are ready to start deliberation.  They’ve listened to the lawyers for long enough.  They don’t want to hear a rehash of what they already have been told.

Here are some of the mistakes lawyers make in rebuttal.

  1. Take notes of everything the defense is saying.  If you have someone to help you, fine.  But if you are taking verbatim notes, you are missing the bigger picture of what is going on in the courtroom.  How is the jury reacting.  Do they look happy and pleased with the defense.  Are they withdrawn.    Plus what are you going to do with all your notes.  You don’t have time to analyze them.  As soon as closing is done, you are going to have to make your rebuttal. 
  2. Act busy and disinterested during the defense closing.  Perhaps you are whispering with your co-counsel or client.  You rattle papers or start packing up the files.  The jurors are fine with a battle, but they don’t want you to be rude and disrespectful.  Plus it isn’t fair – they have to quietly sit there.  They expect you to do the same.
  3. Use a line item approach.   You address each ridiculous, rude or incorrect statement by the defense.  You restate the case facts to reiterate that you are on the right side.  By now the jurors have heard it from plaintiff’s side in opening, during testimony, and during closing.  Hearing it for the fourth time isn’t going to make a difference.   Will this redundancy hurt the case?  Perhaps not.  But do you want to the jury to walk into the jury room thinking how boring and repetitive you were?  Not exactly a big positive motivator.
  4. Attack the defense lawyer personally.  Yes, it is hard to resist the urge especially if they are cruel or lie.  And there are always exceptions.  But generally, ad hominem attacks will only make the jury disgusted with you.
  5. Spend too much time.   The jurors have heard closing and have just about made up their minds.  Unless you are a great magician – there’s not much you can do to change them.  The last thing you want to do is drone on in a rambling unfocused manner. 

Really, once closings are over the only thing that will now move jurors are other jurors in the deliberation room.  This is your last chance to empower the jurors who are on your side.  You want them to fight hard for your client’s case.  The best thing you can do is to help give them momentum, energy, and passion. 

Here’s how I do this.  I sit quite still during the defense closing.  I completely concentrate on the lawyer and the jury.  I will have a small two inch sticky pad.  I will occasionally write a word or phrase on it.  As the closing continues I will replace the note with a winnowed version of the note and so on until I end up with at most five points.  I then will reduce it to three points.  Usually I can then reduce it further to one point but I don’t sweat it if I end up with two or three.

The defense lawyer will often say a line like this:  “Now comes the hardest part of the case.  I have to sit down and the plaintiff attorney gets to speak to you one more time.  I don’t get to say anything after that.  This is because the plaintiff bears the burden of proof.  They get to go first and end last because they are the ones who have to prove their case.   The plaintiff attorney will come up here and tell you point by point why my closing is wrong.  And I can’t correct them.  But that is how our system works.  Thank you for your attention.”

My mind is not cluttered with yards of notes and lists of specific points to address.  I focus internally.   It feels like a laser is slicing through the jumble of thoughts that are seeking to distract me from the essence of the message that needs to be made.   I breathe.  Usually briefly close my eyes.  Get up and then speak from the heart.

I know, I know.  This isn’t really explaining how to do it.  But there is no formula.  There is no outline that can be prepared in advance.  The art of rebuttal stems in the ability to come up with a powerful rejoinder on the fly.  By the end of a trial – you know everything there is to know.  And this is the final moment you have to trust yourself to say the best thing that can be said.

Attached is an example of one of my rebuttals from a recent case.

Tips for Attorneys: On being in the moment

My favorite time to go to the gym is 8:00 at night.  It gets dark now at 4:30.  Plus it’s cold, rainy and windy.  Even if I felt like running outside, I would have talked myself out of it.   There’s hardly anyone in the gym this late.  I have a favorite treadmill.  Right in front of the television.  A little too close.  It is mounted from the ceiling and so I have to tilt my head back a little bit to look up at it.    But it is near the window which I crack open.  Ah, precious breeze.   I always look at tvguide.com before I head out to the gym.  I want to know what channel to turn to.  This is another reason I like to go when the gym is empty.  I want to hog the tv.   

Tonight I’m a little late because I went to the lovely SGB firm holiday party at Fare Start at 7th and Virginia.  It was crammed full of lawyers, judges and other people who help us do what we do.    I go to my favorite spot and turn the tv to channel 6.  This channel re-plays the shows that were on earlier during the day on channel 5.    In this case Oprah.  I adjust my ipod, open my water bottle, and off I go.

This is the only time I will watch tv.  Sitting still and watching tv – for me – is a horrid thought.  I can’t bear just sitting there.  I like it if I’m moving on a treadmill.  I watch it and read the subtitles.  I’m listening to my Madonna playlist.  I love Madonna. 

Tonight The Judds are on.  This is Oprah’s farewell year.  She has 130 shows left.  The Judds have been on Oprah 17 times over her career.  She adores them.  Mother, two daughters, famous as can be.  And they have laid bare their souls and bickered with each other regularly for the past couple of decades on the show.  They are some of her most beloved celebrity guests, because they lay it all out there.  They don’t try to be perfect.

Today they talk about their family drama, tools they’ve learned over the years to deal with each other,  and say hi to their therapist who is in the audience.  At one point, Wynona talks about being in the moment.  Oprah jumps on that.  She says on the elevator ride from her dressing room down to the show, she centers herself.  When the doors open, she is ready to concentrate on feeling the love from every person who is in the audience.  She is determined not to think of anything other than the show, her audience, her guests.  She wants to be fully and completely right there in the moment. 

I have been loping along for about half an hour.  I am sweating.  Madonna is bopping.  I am reading Oprah’s words.  And despite my busy physical body, I feel my energy reach out and into that tv set.  I am feeling all things Oprah and my breath catches.

Being in the moment is a subject that trial lawyers analyze, talk about and practice.  I’ve seen people try to teach it.  And I suppose there are steps that can be taken to approach it.  But truly being in the moment, doesn’t involve application of a technique.    It involves a state of being.  It requires surrender. 

Okay, don’t worry.  I’m not going to get philosophical or spiritual on you.  But here’s the deal.  To be in the moment in trial, means to clear away everything other than that which is directly before you.  And that can be very scary and leave you feeling vulnerable.

If you have notes that you are following, you can’t be in the moment.  If you have a plan that you are sticking to, you can’t be in the moment.  If you are worried about why the jury is frowning at you, you can’t be in the moment.  If you are thinking about the next witness, you can’t be in the moment.

We are four or five years old.  We have been riding our big girl or boy bicycle now for several weeks.  We don’t go real fast, because our bikes still have training wheels.  But who cares.  We like riding our bikes and it feels very fun.  One day, our parents take off the training wheels and we are not happy about that at all.  It was totally fine.  We don’t care that we can’t go that fast… Oh, our little bodies are shaking and trembling.  The wheels on our bikes are jerking around in harmony with our panic.   Don’t let me go, hold on I’m scared!  We shout.  And then with a little shove, our parents push us and…  well…Usually we fall and scrape our knees and it is a terrible thing.  But we get back up, crying probably, and get pushed off again and again until.  Wait – we’re doing it.  We’re going and not falling and….Yippeee!!!

Being in the moment in trial is a big gigantic adrenaline rush that gets honed down and channeled through us.    We feel utterly free yet completely engaged.  It can be magical.  And I can’t wait to feel it again.

Voir dire mistakes

The jurors are the ones who are supposed to “speak the truth” in voir dire.  This is not a time for attorneys to dazzle the jury with brilliant manipulative dialogue.

Of what use is eloquence?  He who engages in fluency of words to control men often finds himself hated by them - Confucius

Voir dire is interactive.  It is the “hello, nice to meet you, are you the right person to sit in judgment” part of the case.   Yet, for many attorneys voir dire is torture.  We need to think like a lawyer but communicate like a good neighbor to a large group of people we know almost nothing about.  The approach needed is wholly different from any other type of legal proceeding.  Here are some of the bad habits attorneys have when doing voir dire:

First, we talk too much. “Thank you for coming…we know how little you get paid for your service… it is your civic duty… isn’t the weather great…”  These statements waste time.  They are patronizing.  We look like we are procrastinating.  Add to this our love of speeches.  Drawn out stories about our children, friends or great aunt Sally.  Lectures about the Constitution or some other artificial construct through which we hope to send a subliminal message.  The more we talk, the more we don’t hear.  The less we hear, the less we learn about the jurors. 

Second, we don’t know how to act.   We are in suits.  They are dressed casually.  We stand.  They sit.  The lawyer in us wants to grill each juror.  To flip them inside out, to make sure they aren’t biased and will be fair.  They know we want to do this to them so they erect a wall.  They find power in their numbers.  The great divide must be breached and it is up to us.  We have to go over to the other side.  We have to do it extremely quickly. People form impressions within one-tenth of a second. We need to be every day people kind of lawyers.  This means that we have to lighten up.  Instead of scowling we need to smile.  Instead of trying to impress everyone with our vast knowledge, we need to show humility.  Our language needs to be from the current decade.  We need to be real.  And we need to focus all of our energy on connecting.

Third, we are hoarders.  We love data, details and, outlines.  We collect, organize, analyze and scrutinize every single little bit of information we can find.  Since time is not on our side, the more junk we collect, the greater the likelihood that we will never be able to see the jurors clearly.   “What bumper sticker is on your car…what television shows do you watch… …what magazines do you read…”   These questions are generally a waste of time.  Quality not quantity is absolutely the best policy in voir dire.

Fourth, we are scared.  We tip toe around the edges of a delicate subject.  We don’t want to contaminate the jury by raising a negative issue.   But this wholly defeats the purpose of voir dire.   If there are concerns, voice them.  If there are worries, share them.   Better to find out who cannot be fair now, rather than later

Fifth, we want to be right.  We are impassioned advocates taking up the gauntlet on behalf of our deserving clients.  We are the way the truth and the light.  And when a juror doesn’t agree with us, that does not sit well.  We may begin to argue with them.  We may exhibit negative even aggressive body language.  We may want to educate them.  Take the McDonalds case that almost always comes up during a tort trial.  “Stella was not driving when she pulled the lid off the coffee...Her grandson was driving and had pulled over so she could add cream and sugar...  Liquids at 180-190 degrees can cause third degree burns in two to seven seconds...Those types of burns require skin grafting, debridement and whirlpool treatments… She had $20,000 in medical bills…California has punitive damages and we don’t.”   What do we gain from being “right” in voir dire – absolutely nothing.   Once you one-up a juror, watch the body language.  The crossed arms across torsos.  The recoil as you approach.  The walls close.  And you are right back where you started, on the other side of a big divide.

Voir dire works best when the attorney and the jury are in the mix together.  See, the blog post "tips for Attorneys: Voir Dire for more thoughts on how to do this right. 


[1] Janine Willis and Alexander Todorov, First Impressions – Making up your mind after a 100-Ms exposure to a face.  Psychological Science.  Princeton University (2006).

Tips for Attorneys: Conducting an initial client intake

Here are some thoughts on the first client interview in a personal injury case.  This approach applies to PI attorneys who do not have "mill" type practices.

  • The interview is a two way street
  • Consider having a staff member attend to get a second "read" on the situation
  • Go to the client if they can’t go to you
  • Be aware of all the details of what you are seeing, hearing, feeling
  • Ask yourself if you “like” the plaintiff then write down your very first impression even if it is not favorable
  • Be conscientious of the human issues and need for privacy
  • Review a detailed questionairre with the prospective client
  • If the quesionairre is not completed, get very particular information at least on these issues
    • what happened exactly
    • insurance
    • pre-existing injuries and conditions
    • pre-existing strengths and weaknesses
    • social media use
    • skeletons in closet
  • Determine who is controlling the decision making process
  • If the incident involves more than one potential plaintiff, figure out possible conflicts of interest before you enter into a retainer with any of them.
  • Don't spend so much time taking notes that you don't have time to observe.
  • Tell the client that they will probably have to go over the facts again with you once you are retained
  • Provide credentials in addition to website
  • Encourage the asking of questions and provide answers
  • Do not put money value on the case even if asked – at most give ranges but don’t provide actual numbers
  • Ask for any documentation that has been collected
  • Find out if the client wants to be very involved in the legal part of the case or not
  • Sense if anything is being withheld or if communication seems strained
  • Consider what is unspoken or not easily volunteered
  • Provide reassurance and comfort
  • Exhibit confidence and competence without chest beating
  • Explain generally how the process works
  • Introduce other members of the team
  • Demonstrate a commitment to personal attention
  • Review the retainer agreement and procure the client’s signature
  • Or use an agreement to investigate form instead
  • Procure signed medical, employment and other record releases
  • In certain cases, run a background check
  • If the client had previous counsel, get a signed note to allow that attorney to fully communicate with you and follow through
  • Do not take a case that is too close to the statute of limitations without first talking to another attorney for a second opinion.  If you do take such a case, beware.
  • Turn down any case that "smells wrong"

 

Tips for Attorneys: Voir Dire

Here are some thoughts on how to immediately and effectively connect with a jury:

  • Stand and face the panel
  • Own the courtroom floor, don’t stand still, don’t pace frantically either
  • Maintain proper interpersonal distance, don’t stand too far away, don’t get too close
  • Don’t think of it as rocket science, think of it as chit chat…organized, focused chit chat
  • Pay attention to body language – yours and theirs
  • Uncross your arms
  • Don’t stick your hands in your pocket
  • Don’t hold your hands behind your back
  • Don’t read questions
  • Make sure all the jurors can hear you
  • Give to get
  • Don’t write down answers (there’s not enough time)
  • Speak up
  • Lean in slightly towards the juror you’re speaking with
  • Invite the jurors to speak as a group if the court allows
  • Don’t use a podium unless the court requires it
  • Make eye contact with everyone, somehow, and don’t look like an FBI agent while you’re doing so
  • Be animated, friendly, engaging, interested, open, genuine
  • Use open ended questions
  • Don’t advocate
  • If you feel phony guess what…
  • Encourage the formation of groups
  • Listen to the answers and deal with them
  • Mirror
  • Don’t paraphrase answers
  • Stop talking so much – the jurors are the ones we’re interested in hearing from
  • Give tidbits of information about the case, but don’t make an opening statement – the jurors will see right through you and the judge won’t be too happy either
  • Proactively transition between jurors instead of reactively  jumping around
  • Be polite and respectful to everyone always
  • Don’t call a juror by their first name, instead use Mr, Ms, or Juror number
  • Ask the judge how the jurors should be addressed
  • Relax your face muscles and let them speak too
  • If the jurors are answering “yes” and “no” then wake up and smell the coffee – you’re doing it wrong
  • Don’t point
  • Do gesture palm side up
  • Keep track of the responses somehow and highlight problem or question mark jurors after each round
  • Do not spend more than half your time on liability
  • Unless you have a special knack for keeping track, have someone help you
  • Make sure you have heard from all the jurors
  • Be extremely courteous and deferential to the trial judge
  • Be civil and courteous to the other lawyer
  • Don’t roll your eyes
  • Don’t have your client assist you
  • Don’t spend all of your time on the very last row of jurors unless there is a chance they will make the box
  • Don’t look scared even if you are, but it’s fine to admit to being nervous
  • Embrace the cliché - honey works better than vinegar
  • Embrace a touch of levity whenever appropriate and natural
  • Don’t allow negativity to permeate and overwhelm the proceeding
  • Even when striking jurors, aspire to the positive

 These tips are included in the Voir Dire booklet being published by the SKWC law firm with a release date of December 2010.  If you would like to be on the mailing list, please send me an email.

Tips for Attorneys: Mediation Meanderings

DSCN0232.JPGI don’t like mediations.   Mediators ask me to take back this sentiment.  But I’m not repentant.  It’s not that I don’t like the mediators.  Some of them I absolutely adore.  But I dislike the process.  In an ideal world I would say – hey we will accept X amount.  The insurance company would say – naw, we won’t pay that but we will pay Y amount.  And then we would give a thumbs up or down without further dickering.  But that is not how it works.  It’s all about the dickering.

Regardless of my crabby attitude, mediations are a necessary part of life.   Most courts require it and most insurance companies won’t negotiate without it.    Here is my version of the good, the bad and the ugly.

Picking the mediator can be the most important step.  I used to ask the insurance co.  who they wanted to use and would go with whomever they designated.  I figured it was more important the mediator was someone they trusted so that when I squeezed tight and the mediator said – this is what it will take – they would have enough trust to listen.  If the mediator was someone only I liked, the insurance co. would be distrustful and nothing would get done.  I’ve changed my thoughts on this over time because I can actually be the more difficult one.  There are some mediators whom I’ve never had success with, don’t have confidence in, and so it would be a Waste Of Time and money to agree to them.

The best mediators in general have been around for a long time.  They grow better with age.  They are used to managing major egos and idiosyncrasies.  They have all sorts of ways to move people toward resolution.  They make solid recommendations, don’t make promises they can’t keep, have a good pulse on where people are coming from, communicate well, and know how to broker a deal.  Many of them are deeply touched by the stories they hear and the people they help.  Then there are the others.  Here are some weak mediator traits:

  1. The Messenger.  The mediator simply carries numbers back and forth.  The Messenger says something like this:  Here’s what the other side  has offered…what would you like to do.  And then leaves and goes to the other room and says the same thing.  We’re paying that mediator way too much money for them to be doing this.  It is a Waste Of Time.  Waste Of Time is the worst thing in mediation – it gets no one anywhere.
  2. The Dictator.  There are a few mediators who have their “own special way” of doing things.  You have to abide by their strict rules, otherwise the process won’t work.  We’re not simply talking about taking advice.  We’re talking about an entire way of conducting the mediation.  Some of these mediators actually get the job done.  But me personally, I can’t stand the dictator approach. 
  3. The Guesser.  There comes a point in mediation when the mediator has to know how much one side will come down and how much the other will come up.  Neither side will usually come out and say what their magic number is.  And even if they do, the mediator has to figure out if that is really it.  If the mediator says – if you will go to here, I know they will go to here – and they don’t.  That’s a problem.  You can’t trust the mediator.  They made a promise based on a guess that was wrong.  They broke their promise. 

All personal injury attorneys are not equal in mediation.   Insurance companies settle cases based upon a risk analysis.  The risk they’re looking at is what might a jury do if they believe in the plaintiff.  How big might a verdict be.    They really don’t care how much it will cost to take the case to trial – that expense is built into their business model.  They don’t really care about the feelings of the plaintiff.  It is a bottom line decision.  The unfair but true reality is that two different attorneys could be negotiating on the same case and the insurance company would offer different sums of money.  They are looking at  what risk the attorney presents.  If the attorney does not ever try cases, the insurance company knows they can lowball the offer and the attorney will always accept rather than go to court.  If the attorney tries plenty of cases, this changes the equation and the risk upwards.

Here are some random strategies and thoughts  about mediation.

  • Make sure the insurance company has brought their person with money authority to the mediation (or have them on the phone)
  • Have your client brings reading material and let them leave the room to take frequent breaks
  • Tell your client not to pay any attention to the monopoly money nature of negotiations until you get the other side to the “bite mark”
  • Prepare your client in advance, make sure they see the other side’s materials so expectations are realistic
  • If your client is too seriously injured to attend or lives far away, use skype
  • Always display unity between client and attorney when meeting with the mediator
  • Do not talk disrespectfully or unprofessionally about your client behind their back  to the mediator
  • Joint sessions are not needed except in certain cases
  • If you do a joint session, do not make a presentation that will further polarize/antagonize the other side
  • Ask the mediator to make their recommendation for the next move, then feel free to use or ignore it
  • Know how much money needs to be paid back to health insurers, or the government or L&I liens
  • If you can avoid it, don’t tell the other side what those liens are
  • L&I will most likely want to attend so make sure to invite them
  • Don’t let the mediator tell your client horror stories meant only to scare
  • During the first round, maybe the second, go ahead and talk about the facts.  But after that get to the business of negotiation
  • Talk about the facts for longer if you think the case won’t settle to get a better read on what the other side will do in trial
  • Bring key documents in case the mediation cannot proceed without arguing the facts
  • Be prepared for waste of time and deal with it.
  • Don’t ever think that you can offer the fair and right number and it will be accepted at face value
  • The whole thing about adding up the offer and counter and dividing them in half to see where you might get to – is just a big guessing exercise
  • Remember each move you make sends a signal
  • Don’t move too much hoping they will match
  • If they say last and final offer, no more money.  Make them prove it.  Don’t believe them.  Make them make a call.  Don’t believe them.
  • If they offer a bracket, almost never accept it.  Counter with a different one.  You can negotiate brackets.  Or disregard them.
  • Avoid the candy dishes – the highs, the lows, the pounds!
  • If the other side brings an annuity broker, figure out if you want to even see a proposal but the best thing is to just negotiate for present dollars
  • Have a different annuity broker available by phone for a second opinion if it comes to that
  • Put on poker face
  • Be willing to walk out
  • When the process is ended and there’s nothing left to be gained, walk out
  • If you don’t walk out when you should, you send a signal
  • Mediations can extend beyond the day of mediation – in fact they often do.
  • If the case settles, don’t leave until a basic agreement has been signed by all sides
  • Don’t be embarrassed to ask the other side to pay your half of the mediation fee as part of the settlement  particularly in a smaller case where every dollar counts

Tips for Attorneys: Quick List of Opening Statement Do's & Dont's

  • Do take a breath and center yourself before you begin.
  • Do speak at thinking speed which usually means slow down.
  • Do stand at a distance that is not too far away yet not too close to the jury. 
  • Do avoid podiums except in Federal Court where you have no choice but to stand behind them.
  • Don’t block the jury’s view if you are using Powerpoint or showing things.
  • Do use Powerpoint and show things
  • Don’t use legalese.
  • Don’t start out with a long irrelevant introduction.
  • Do show proper decorum at all times.
  • Don’t read your notes.  If you must use notes, put them where you can glance at them.
  • Don’t clasp your hands in back of you.
  • Don’t clasp your hands in front of you.
  • Do stand with your feet planted firmly, hands resting at your sides to begin with.
  • Do allow your hands to move when you speak.
  • Do project your voice appropriately.
  • Do inflect your voice appropriately
  • Do make eye contact.
  • Don't stare down the jurors
  • Do take a risk in favor of creativity every now and then
  • Don’t focus on how to deliver an objection-free opening
  • Do use the present tense
  • Do use theme(s)
  • Do tell a story
  • Don’t assume you’re doing a good job because you think so
  • Do watch and relate to the jurors' body language
  • Do move on if the judge sustains an objection
  • Don’t be intimidated if an objection is lodged against you
  • Don’t try to be amazingly persuasive
  • Do focus on establishing credibility
  • Do anticipate the other sides' arguments
  • Do give thought to how you are going to sequence opening
  • Don’t explain the law
  • Do explain the facts
  • Do focus on being helpful
  • Do make promises you will keep
  • Don’t make promises that you can’t keep

Tips for Attorneys: Show and Tell with Powerpoint®

If you speak it and don’t show it; the auditory learners will get it, the kinetic learners might get it, but the visual learners probably won’t.  If you speak it and show it – the positive impact on understanding and retention is dramatic.

Picture1.jpg

 

The Dual Coding Theory of memory was initially proposed by Paivio (1971). The core idea is  the human mind operates with two distinct classes of mental “codes”:  verbal representations and mental images.  Human memory thus comprises two functionally independent (although interacting) systems: verbal memory and image memory. Imagery potentiates recall of verbal material because when a word evokes an associated image (either spontaneously, or through deliberate effort) two separate but linked memory traces are laid down, one in each of the memory stores. Obviously the chances that a memory will be retained and retrieved are much greater if it is stored in two distinct functional locations rather than in just one.  See, Nigel J.T. Thomas in the Stanford Encyclopdia of Philosophyhttp://bit.ly/9e3HCo.

To use less scientific terminology:  seeing is believing.

Consider what types of visual aids you will be using and why they will help.  Make sure they match to the presentation.  They should not be too cutsie.  They should add rather than detract from your message.

Do not show visuals filled with words.

Please repeat.

Do not show visuals filled with words.

If you show a visual filled with words, then Paivio’s dual processing channels cross wires.  While you are speaking, the audience will be reading.  They will have to tune you out to read.  Or they will have to ignore the printing to listen to what you are saying.  Comprehension and retention will significantly decrease.  It is actually better to show no visual, than to show one filled with words.

Cliff Atkinson is the author of Beyond Bullet Points:  Using Microsoft PowerPoint to Create Presentations that Inform, Motivate, and Inspire. © 2005 Cliff Atkinson. Microsoft Press He suggests ways to structure slides so that they are not filled with bullet points.  He recommends dispensing with templates and using blank slide formats.  He has a website filled with free materials and helpful advice.  www.beyondbulletpoints.com.

Here are some suggestions for using Powerpoint® visuals during your presentation:

  1. Check out the courtroom ahead of time and figure out where the screen and projector should go.
  2. Get advance permission from the bailiff for the set up.
  3. Use a projector that's bright enough so you don't have to dim the lights (jurors will fall asleep if you do that)
  4. Use a remote mouse
  5. The mouse should have a "black screen" button
  6. Having the screen black focuses the attention on you and should be used periodically to drive points home.
  7. Situate the laptop screen in front of you off to the side so you can glance at it w/o having to turn your head back to look at the screen
  8. Always have a backup plan.
  9. If it takes longer than two minutes to fix a glitch and a recess isn’t available, go to that other plan. 
  10. Don’t talk to the screen.
  11. Some people stand in front of the screen (not obstructing it but in front of it newscaster style) and never look at the screen.  Other people interact with the screen.  There is no rule governing this other than – don’t talk to the screen.
  12. There is a “notes” view that allows you to view your notes on the computer monitor so you don’t need to talk to the screen or shuffler paper notes. 
  13. The slides should match up with what you are talking about without using the same words
  14. If you show a document, blow up and highlight the important part of it
  15. Words must be big enough for the audience to read
  16. Don't use all capitals. 
  17. The general rule is no more than three to four chunks of data per slide
  18. Avoid more than one photo per slide unless you are comparing pictures
  19. Crop photos
  20. Don’t use templates
  21. Headlines should be short complete sentences
  22. Rarely use headlines
  23. Don't interact with every slide
  24. Interact with some of the slides
  25. Contrast should be bright and clear
  26. If you are trying to color code slides - remember, men in particular may be colorblind
  27. Special effects should rarely be used
  28. Same for clip art
  29. Get photos and images of real things from the case file and from the internet
  30. If it is too cute or basic, it will be seen as condescending
  31. If you modify a photo to make a point, type out a disclaimer at the bottom of the slide, i.e. "This photo has been altered"
  32. Pause before/after presenting a dramatic/humorous slide; or risk the audience forgetting what else you say
  33. Try out the slide show on others before you show it to a judge/jury
  34. Use more than a few, but not too many slides.  A couple per minute.
  35. If the judge requires you to show the other side your slides, then make sure you do so.  There won't be a problem if you are simply showing evidence or things you disclosed prior to trial.  Other images may require a bit of discussion, negotiation, or motion practice. 

 

Tips for Attorneys: Big Bad Wolf Proofing your Closing Argument

Once upon a time, there were three little lawyers  They were sent out into the world to fight for justice for people unfairly injured.  Shoulders back, heads held high, arms swinging, feet marching. They were filled with a sense of righteousness and faith in the Seventh Amendment.  Optimism permeated their beings as they set up their houses.  They couldn’t wait to get to trial.  The ultimate tribunal of truth.  Oh the joy!

The House Of Straw.69894_wolf-hut_md.gif

The first little lawyer had a great voice.  It was mellifluous in a most magnificent way.  It would bounce around the edges of a room and seep into the very pores of the listener.  It was a voice meant for storytelling around a campfire.  Dressed up it could have held its own in any theater.   It was a voice that could entrance and enthrall.  And what it needed to do one fine Thursday afternoon, was to convince a jury that an injured person deserved a fair shake.

The case had strong points and not so strong points.  The  lawyer figured – why bother talking about the weaknesses when the strengths were so much more interesting and beneficial.  The jury instructions were…well, they were boring jury instructions.  So the lawyer decided not to waste a moment with those.    The plan was simple and straight forward.  Talk about the good things in the most wonderful way and the jury will vote for the plaintiff.  Yay!

 

 "Little pig, little pig, let me in!"
"Not by the hair on my chinny-chin-chin!"
"Then I'll huff, and I'll puff, and I'll blow your house down!

The case though prettily presented, was nothing but straw.  The cynical jurors didn’t believe the truth was remotely close to that espoused by the plaintiff lawyer.   Just a few puny puffs from the Big Bad Wolf was all it took.  Heck the Big Bad Wolf could have probably just leaned against the house and it would have fallen down. 

Moral of the story so far: 

  1. Don’t believe that your personal presentation strengths alone can overcome a jury’s skepticism.  You are not seen as the truth, the light and the way.  You are seen as manipulative and self serving. 
  2. Avoiding tough issues highlights the holes in the case and proves to a jury that you are not credible and have no answers. 
  3. Good closing arguments don’t equal a linear rehash of your favorite parts of a case.  The only person who is persuaded by such an approach, will be you.

 The House of Twigs

The second little  lawyer had an exquisite eye for detail.  Every possible tidbit of information was discovered, retrieved, summarized, itemized and buffed to perfection.  A glorious mountain of data was amassed with meticulous precision.  Every fact and nuance of the case was accounted for with specificity.  The  lawyer left nothing to chance, confident that the jury would surely be impressed by such utter thoroughness.

In trial, logic reigned supreme as fact after precious fact was laid out before the jury.  The  lawyer started from the beginning – the date of plaintiff’s birth to be exact.  Family members recalled lovely memories of the plaintiff’s childhood, adolescence, college, marriage, the birth of two children.  Coworkers described every job held peppered with anecdotes.  Neighbors commented on gardening and daily activities they had seen for a decade.  Witnesses described the injury incident for a full day.  A parade of healthcare providers and experts went over every chart note, every item of damage, every single piece of everything.  The crowning moment of glory though, was saved for the plaintiff.  Just in case the jury didn’t get it the first time, the lawyer had the plaintiff start at the beginning and tell their whole life story again.

Now the  lawyer had heard that repetition was the key to persuasion and the number three was golden.   The lawyer worked all night to create the perfect closing masterpiece.  The next morning every single fact was recited and every strength and weakness analyzed. 

  

"Little pig, little pig, let me in!"
"Not by the hair on my chinny-chin-chin!"
"Then I'll huff, and I'll puff, and I'll blow your house down!"

The case though fastidiously presented, was nothing but twigs, albeit a lot of twigs tightly woven together.  The jurors did not have the interest or energy to try to absorb the mass of data presented.  They agreed the lawyer was very prepared.  But they gave up trying to sort through the evidence.  The Big Bad Wolf had to blow a bit harder this time.  Little puffs wouldn’t do.  Still, without breaking a sweat, the wolf clapped with glee as the house came a tumblin’ down.

Moral of the story so far:

  1. Preparation is good, but it alone won’t win the day. 
  2. Simple is almost always better even though we have been trained to obsess over complexities and details.  The more we crowd into our arguments, the harder it becomes to convey a message.
  3. Good closing arguments don’t equal a rehash of every case element and argument.  The only person who is persuaded by such an approach, will be you.

The House of Bricks

The third little lawyer had been watching the Big Bad Wolf’s carnage.  Humbled, nervous and frankly frightened, the lawyer spent every spare moment devising techniques to deal with the beast.  Determine best personal presentation attributes – check.  Learn and prepare case details – check.  But there had to be more.

At first the lawyer thought there might be a failsafe technique that once perfected would always work.  If sequencing always occurred just so… if the plaintiff always presented the same admirable traits…if the theme tied everything together... if rules were shown to be broken… if the defendant was exposed as a danger to society.   But the formula never worked the same way in all circumstances.  Plus the wolf was wily. 

The quest for the holy grail of trial advocacy was an exhausting process.  One day, tired of searching for the key to it all, the lawyer fell asleep and dreamed about Kindergarten.  Upon awakening, the lawyer recalled the dream and had an “aha” moment.  Mrs. Pasco, had been the lawyer’s Kindergarten teacher.  She had blond hair that flipped upwards in a perfect “U” at her shoulders and groovy black rimmed cat-eye glasses.  The two best times of the day (other than recess) were: story corner and show and tell. The worst time was having to lie down and pretend to take a nap.  The lawyer recalled a popular book that was called “All I really need to know, I learned in Kindergarten.” (Robert Fulghum 1986).  The lawyer figured if it was good enough to stay on the New York Times best seller list for two years, it was worth trying out.

The case went fairly well.  Nothing was perfect, but the lawyer was prepared, practiced deep breathing, and used many different trial techniques.  There were details, but set in the clear context of a big picture.  There were many witnesses, but they did not repeat the same testimony.  The plaintiff testified but not overly long.  Tying everything together was a case story that began in voir dire and culminated in closing.  There was a moral to the story, a cast of characters, and action involving a dramatic conflict that needed resolution.    During closing the lawyer showed as well as told by using visual aids.  Statements were objectified and supported with proof. 

The jurors listened intently because the storyline helped so they could follow along with interest.  They stayed awake because the pictures kept the story alive.  They appreciated not being patronized.   They were moved.

“Little pig, little pig, let me in!"
"Not by the hair on my chinny-chin-chin!"

"Then I'll huff, and I'll puff, and I'll blow your house down!"

Well, you know the rest.  The Big Bad Wolf came a calling.  He huffed and he puffed.  He puffed and he huffed.  He pushed, kicked, pounded and blew as hard as he could.  But nothing fell down.  He threw a ladder up against the house and scrambled down the chimney. But the plaintiff’s lawyer was ready with a fine and honed rebuttal.  The wolf fell into the boiling pot of water, howling as he jumped out and rushed away.  As he limped off, his big ugly mouth sneered into an evil smile.  For this was only a temporary setback.  There were after all enough houses of straw and twigs to keep him busy for a lifetime.

Moral of the story:

 

  1. Humility and hard work create strength.
  2. Tell a story
  3. Show and tell
  4. By using your personal attributes, preparing well, and devising a good plan that helps the jury see, hear, feel and smell the case, you can stave off the Big Bad Wolf;
  5. Even if the Big Bad Wolf can’t blow your house down, there are still hurricanes, floods and earthquakes to consider.

 THE END

 

 

POSTSCRIPT

Once upon a time, I worked in a 50 person firm that handled insurance defense.  My first win was a defense verdict in a premises liability case.  Nine years later my last win, was strong arming a little old lady and her son into accepting a small sum of money mid trial in a wrongful death case.  I was a big bad wolf. Mix and match some of these strategies for an effective closing argument

 

  • Tell a story, but not if it is exactly the same one you used in opening
  • A jury will not punish you for putting creativity and passion into your presentation
  • A jury will punish you for exaggerating or overselling your client's case
  • Use quotations, song lyrics, poetry to communicate on a deeper level
  • A short civics lesson can inspire
  • Use a literary theme involving a universal aspect of the human condition
  • Show visual images, but not if you are doing so in the same manner and for the same reasons that you previously showed them
  • Do not say these words: “you heard from witness X that …”
  • Take enough time to explain key jury instructions but that does not mean re-reading them to the jury
  • Show and tell
  • If you are using PowerPoint and find yourself facing the screen, you’re doing it wrong
  • Almost no lawyer talks too slowly
  • Use analogies or other helpful modalities to convey messages
  • Remember this is argument
  • Unless you are providing information that will help the jury do its job, you will be tuned out especially the longer you go
  • Almost no lawyer talks too little
  • Demonstrate something
  • Make sense of the evidence
  • Don’t shy away from negative issues – embrace and own them
  • Look at and speak to  each member of the jury at various times in a natural fashion
  • Charts and diagrams can be helpful
  • Do not read from a script

 

Tips for Attorneys: Oral motions argument

Once upon a time, it was normal for trial lawyers to argue motions several times a week.   We used to sit in courtrooms for hours, drinking in the atmosphere, listening to our colleagues and adversaries present their positions, waiting for our cases to be called.  We learned which tactics worked, and which did not. 

We came to know judges without having tried a case in front of them. Some were easy to read.  A raised eyebrow meant get on track.  A grimace meant cut to the chase.  Others perfected the art of stone face.  Or in some cases acted the opposite of how they felt - smiling as they prepared to pulverize you.  

The most common motions involved discovery fights - who could get what document, what where why when and how.   Judges came to despise most of those motions because they so often generated into mindless bickering.  This was too bad because especially in cases against big corporations, there was real stonewalling and hiding of documents going on.  Luckily the judges for the most part, could tell the squabblers apart from the cases that deserved a strong ruling.

 When I worked for Tom Chambers (now Justice Chambers of our Supreme Court), I was in court every week.   Tom's assistant Sheila (Jeff called her Sheeera Princes of Power), would take Cristina in her baby carrier, sit it down in her little alcove, and watch her for me until I got back.  Anytime the defense wanted our client to be examined by a medical defense doctor, it was my job to resist it on constitutional grounds.  I don't think I ever won one of those motions.  But I believed that Tom was right and was happy to argue them as a matter of the principle.

Nowadays, in the larger county courts, about the only motions that are orally argued are those that can result in a case getting dismissed.  The stakes are higher and everything becomes more nerve wracking.  

I created the following list of tips several years ago.  It was published in our trial lawyer news paper.  I'm pretty sure it is a good list, because I saw photocopies posted on the walls in certain judge's courtrooms.  Here you go:


  • Pay homage with a formal greeting and introduction

  • Before launching into argument, ask the court if there are any particular questions it would like addressed.  If so, answer those questions before you do anything else.

  • Be courteous and respectful to all participants

  • Don't interrupt anyone

  • Be direct

  • Listen closely to and take cues from any comments made by the judge

  • Don't ramble, yell, or say mean things to adverse counsel

  • Maintain eye contact with the judge

  • Put the motion materials in a separate file/binder and leave everything else at counsel's table

  • Make some sort of outline

  • Have a law reference cheat sheet available

  • Speak persuasively

  • Obey time requirements

  • Reserve time for rebuttal

  • Don't roll your eyes when it's the other side's turn

  • Bring your client if they would like to come and introduce them to the court

  • If it helps, use strong demonstrative aids

  • Take one of those little paper cups of water with you to sip just in case your tongue gets tied and you need a moment to gather your wits

  • Don't read your motion

  • Find a way to lighten the atmosphere while not making light of it

  • Appear confident and look your professional best

  • Enthusiasm will help

  • Beat the adverse party to the punch - deflate its best arguments

  • Don't argue the kitchen sink

  • Don't argue with the judge


If you have another tip, let me know and I'll add it to this list.