The Velvet Hammer -

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?

Clark Instructions to Jury.pdf

Here are the jury instructions from the Clark v. WA case.

The 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.

I sent my voir dire booklet to all the judges in our state.  Here is the email from one of them.

I just finished reading your SKWC “Voir Dire” article.  It was excellent, I learned a lot.  Although I believe the MacDonald’s case was from New Mexico and not California. 

I agree with some of your concerns on the judicial approach to voir dire.  The rehabilitation by the judge should not be conducted or at least kept to the very minimum.  I’m trying to figure out a balance between allowing counsel as much time as they would like and a juror mutiny as you discussed or not having enough jurors to proceed.  Also, on a multiple week trial it is very difficult to get jurors past hardship in the first place.  However, few attorneys are as passionate about juror selection as you are. 

Twice, I have had attorneys get into the MacDonald case on voir dire and their clients did well with the jury.  “How many of you know the Plaintiff was a 70 year old Grandmother whose nylon/polyester underwear melted into her private parts?”  She had three surgeries, 700 complaints, that MacDonalds deemed those complaints not worthy of consideration, etc.?  And probably a little bit of questions on punitive damages.

Most cases I hear result in what I would consider a favorable verdict for the defense (less than the defense offered prior to trial).  Your article hits on what may be some of the reasons. 

It is good to have dialogue with our judges.  Thanks Your Honor.

Judge Gonzales' courtroom has electronic sound recording.  This excerpt is of the voir dire done in 2010 in a medical malpractice trial.   It was described in the first diary entry of the Voir Dire Booklet published in 2010 (also known as the "clicking red pointed nail" entry).

Some judges permit you to address jurors by name.  Judge Gonzales  does not.  The jurors are called by their numbers.

To access the recording click here.  It is in two parts.  

 http://karenkoehler.com/diaries-excerpts.html

Unlike 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.

Every 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.” 

By now you know, I love Oprah.  I'm actually in somewhat of a tizzy as we count down her final season.  Who will keep me company those late nights on the treadmill.  Oh Oprah - I will miss you so.

Here is an excerpt from my trial diary on closing earlier this month.  I am also posting the first ten minutes of the argument.  I taped this with my flip.  It is very funny as my head is completely cut off.  You can watch my torso give closing argument. 

I’ve been thinking about closing since the day Steve invited me to try the case.  They are not concrete thoughts.  I don’t write them down.  They are just thoughts that I let wander in and out as they will.  Last night, after getting back from the hospital, I eat left over phad kee mao.  Talk to my kids mainly about my mother.  Around 8:30 go to the gym.  Get on the treadmill and start running.  The clock hits 9:00.  It is the moment I’ve been waiting for.  Oprah  (channel 6 replays the show which is on in the daytime).  She has something big to tell us.  Her mother secretly had a baby and gave it up for adoption.  Oprah just learned she has a half sister, niece and nephew.   It is a wonderful show.  I’m choking up periodically which is a bit challenging when you are running.  You actually kind of hyperventilate because you can’t catch your breath if you’re sobbing.  And there in the gym, on the treadmill watching t.v. and crying, it comes to me.  The way to begin closing. 

In my opinion trial lawyers put too much faith that they can learn the craft by reading lawyer books and going to seminars. We also tend to over think.  All the lawyerish theoretical data we collect clogs up our brains.  There’s no room left for intuition and the human elements to roam freely.  The synapses become stunted. 

My parents used to shake their heads at some of the things that interested me.  Actually, they still do.   I read more popular novels than intellectual ones.  Devour the gossip rags and other mindless magazines at the gym.  Sorry, but I don’t watch the discovery channel even if I’m on a treadmill.   I’d rather watch a bad romantic comedy than see a movie about Afghanistan.  And (gasp) sometimes the national news bores me.  My natural plebian tendencies are helpful when it comes to connecting with juries.  Trial lawyers do not belong in ivory towers.

 I tell Judge H closing will take 45 minutes.  Finish one minute early.     I should go ahead and recount it for you.  You would enjoy it.  But I just can’t.  I’m always drained after closing.  Like Halle Berry in X-Men after she’s created a gigantic storm.  Totally whooped.  When it is over.  It is simply over.  No regrets.  No additional thoughts.  Just zen-like serenity. 

“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 (4^th 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).

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 7^th 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.

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.