So how accurate are these trial diaries...
You be the judge.
Youtube Video: http://youtu.be/U7bUKzGIER0
So how accurate are these trial diaries...
You be the judge.
Youtube Video: http://youtu.be/U7bUKzGIER0
We break for lunch.
I’m out in the hall. Meeting the parade of C’s own health care providers that Nick is calling to testify in the defense case against her.
At 1:00 a prisoner in shackles is marched in. The courtroom fills. Cristina comes out to the hall about half an hour later. She looks flustered. What happened. I’d told her to stay and watch as it would be interesting.
Well, it is apparently a bit brutal. A sentencing hearing. The guy beat his girlfriend with a metal pipe. First fracturing her hands and wrists as she held them up to shield her head; then fracturing her skull. She’s alive so it isn’t a murder charge.
Judge W comes rushing out to go take a break before we resume. Looks just as upset as Cristina. Says – I gave him the maximum possible sentence 28 years. And strides out the door.
The prisoner comes through next. Flanked by five officers. Apparently he assaulted someone in jail. Not a nice fellow. Followed out of the courtroom by the woman and her family. All crying.
We start trial about 20 minutes late.
Nick is calling a physician’s assistant and three physical therapists. It is never a good sign when the defense calls the plaintiff’s own treating providers. Here, the reason is that C was told she needed to wear a large brace on her left leg to assist with foot drop and hyperextension of the knee. But she never followed through. Over and over again they tried to get her to do it. But she didn’t. Plus he wants to pull out paragraphs here and there to show how good she was performing on certain tests.
That is his goal. And that is what he does. But the story isn’t over. Because we get to cross. Which doesn’t mean that we are trying to impeach or contradict these witness. Au contraire.
Witness number one: the physician’s assistant. Nick trots him through carefully selected portions of his medical records. Gets him to admit C didn’t wear her brace.
Cross time. I am fiddling with the video (to show some speech therapy). Get tangled in cords. Realize I need the speaker. And apparently begin to drive Nick nuts. I then pull out exhibit 30, the famous brace. Objection. Overruled. I decide to put it on. Need a chair. Am boxed in. As I try to figure out what to do, Nick offers me his chair. Why thank you Mr. Scarpelli. Sit down. Take off my shoes. This takes a while because I have little ankle straps. Begin to strap on the brace. The jurors stand up. Smiling. Trying to get a good look at what I'm doing.
Limp over to the PA witness, but he’s not real familiar with how this contraption is going to work. Says I should ask the physical therapist. Good idea.
Limp back to chair. Take off brace. Ask the court for permission to publish it to the jury. Nick objects. Argues - waste of time. What he’s really saying is – are you freakin’ kidding me, this woman drives me crazy. Objection overruled. The jury passes it around as I slowly buckle my shoes back on.
Witness number two: the first physical therapist. Nick takes her through the paragraphs of her chart. Gets her to say C didn’t follow through with her brace.
Cross time. I am showing her a video of C walking two months ago. She comes up to the tv. Uses my pointer. (Did I tell you that I misplaced my pointer, but Anne pulled one off an old boom box. It is duct taped. The judge loves it and always makes a comment about the old chevy it must have come from). The therapist points at C’s moving image with it. This brings to life the problem we’ve heard described and pretended to understand. But really haven’t until now. I look at her with a smile and ask what size shoe she wears. Perfect!
Basically I can hear a groan or snort or some sort of gasp for air from Nick’s direction.
Can you put this brace on and show the jury how it works.
Sure she says.
But before she can put it on, Nick loses it. A major meltdown moment. In a loud voice he accuses me of wasting time and basically of being a bad lawyer.
This is of course the moment that I’ve been waiting for. Never thinking it would actually come. Because lawyers know that no matter how much we may argue, we must always be professional. Especially in front of a judge, clerk, 14 jurors, 3 lawyers, 1 paralegal, 1 tech guy, my daughter, and several other observers.
Apparently I’ve gotten under Nick’s skin.
When Nick is done berating me, I ask with limpid eyes, in a sweet, soft, hurt voice: why are you being so mean to me, I’ve been nothing but nice to you.
This does not calm him down.
Judge W and the jurors would surely like to break out the popcorn.
He objects to having the therapist put on the brace. I respond in the same soft, sweet puzzled voice. But Mr. Scarpelli, the last witness said I should ask this question of PT and that’s what I’m doing. Objection overruled.
The witness puts on the brace. The jury stands up to look. Just like they did for me. And learns something new.
Photo: Nick unsuccessfully objecting to my cross demonstration with the blasted brace.
I 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
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.
Photo: John setting up trial equipment in King County Superior Court September 2012.
The jury expects trial lawyers to be jerks. So it doesn’t really bother them when a lawyer goes for the jugular. In fact, have a confession to make. Have gone for the jugular many times before. Mostly in the past. But every once in a while it just feels too good to resist. Have talked to jurors later who have said they were cheering me on as I ripped into the other side. Trial can be a spectator sport.
So as observe Adam (the defense lawyer) from my Pollyanna haze of serenity, am not for one minute thinking that if the jury doesn’t like him then we win.
Even so, I take extraordinary delight each time he steps into poo poo. Yesterday my favorite moment was when Judge E sustained the objection as Adam tried to improperly impeach Dr. McE by reading to him from his own deposition. Adam didn’t get why he couldn’t do that. The judge realized Adam was not being belligerent but was truly obtuse. Patiently explained to him (in front of the jury) that first the witness had to give an answer that was inconsistent with deposition testimony; then he could impeach him with the document. Oh. Said Adam.
Well, today comes the second lesson from Judge E and it is even better (from my perspective).
Adam is crossing a mom who volunteers at the school and is friends with Ms. Sh. She has straight blonde hair, clear blue eyes and is cute as can be. On direct, we are talking about how competitive it is to be chosen as room parent in kindergarten on the Sammamish plateau (a high end suburb). Because there is such a high parent participation rate. How she and Mrs. Sh cheered their kids at various sporting events. And other such darling topics.
Now remember, Adam comes from the school of thought that you cross everyone as hard as possible as a matter of principle. So he tries to whack her. Here’s the question that starts him down a path of personal doom: If Dr. H testified that blah blah blah, then how can you say, blah blah blah.
Adam pauses. Blinks. Can’t quite figure out what to do. So instead begins to ask the same question again.
Judge E says, counsel I sustained the objection.
But… says Adam. And he begins to argue with the court. Actually interrupts the judge.
I’m sitting still as can be in my roller chair. Cheering loudly in my mind. Go Adam Go!
You know what’s coming. You know what happens when you get in the face of a judge presiding over a jury trial. You know. I know. And soon Adam will know.
COUNSEL! Oh so stern. Judge E has a deep booming voice to begin with. It is now being used with full effect. I HAVE MADE MY RULING. YOUR QUESTION IS IMPROPER!
The room literally rings with the melody of Judge E’s castigation.
Nala is an alpha female. So undersized for her breed, that people still think she’s a puppy. When I run her around the neighborhood, I have to bribe her not to charge after every dog we pass. Chihuahua or Lab. It doesn’t matter how big they are. She is the alpha. A few months ago, a german shepherd was off leash. It rushed us. Nala froze. She then tried to hide behind me but wasn’t quick enough before that bad boy jumped her. I pushed him off her and ultimately skin was not broken. But the rest of the day, Nala was subdued. Ashamed most likely. Conscious that her alpha-ness was only in her own mind.
This is what happens to Adam. His aggressiveness is trimmed down a few notches for the rest of the afternoon.
All in all, today, the jury hears a total of three lay witnesses, two long doctor video depositions, and we have started on the direct of the husband.
An hour after court ends, am running down the hill from my house to pick up Nala. The sun is shining. Am letting my brain wander wherever it wants. And it hits me.
This is the first time in a couple of years, where I haven’t been obsessing and worrying about the jury. Have chosen to be positive Pollyanna. Committed completely to positivity, sweetness and light. We will do this as good as we can, as true as we can, and that’s it.
There is this little song I wrote
I hope you learn it note for note
Like good little children
Don't worry, be happy
Listen to what I say
In your life expect some trouble
But when you worry
You make it double
Don't worry, be happy......
Don't worry don't do it, be happy
Put a smile on your face
Don't bring everybody down like this
Don't worry, it will soon pass
Whatever it is
Don't worry, be happy
Song By Bobby McFerrin
This entry is derived from an excerpt in my trial diary of Sept. 2012.
Photo: "Aunt Sally" the skeleton in Judge Erlich's courtroom
The clerk sends an email on Thursday. Our trial starts Monday. Or it is supposed to. This case has been scheduled for trial for over a year. But SNAP! Just like that. A criminal case pushes its way past us. This happens in November.
Fast forward. We are now set to start the same trial June 4. After a six month delay. Everyone is ready to go. Some of the witnesses have booked flights and hotels. But wait. SNAP! Just like that. We are bumped again. By another criminal case. We are now supposed to start this whole thing over again in October. Supposedly.
Now you may be wondering. So what. A little bit of inconvenience. What's a year in the big scheme of things. Well, let me tell you what has to be done everytime a very large case gets delayed like this. In fact - keep this list. In case this happens to you.
Nala is retching. Grab garbage can to put under her mouth. This does not go well. She's running. I'm chasing her around the office with the garbage can. Trying to be nice but not wanting bad stuff on the carpet. Finally corner her. Substitute her water bowl for the can. Hold it in front of her face. She is heaving. But I'm shocking her at the same time. Tell her - it's okay. Keep waiting for the moment. But just like with the hiccups - I appear to have scared her out of them. The moment passes.
For both of us.
Photo: Nala's face says it all.
What is there to say. They Came. We Saw. They Conquered.
David Ball and Don Keenan put on The Reptile seminar this past week in Seattle.
You all know by now how fidgety, impatient, bored I get. Well, two consecutive days from 8:30 to 5:00, I stayed put. Absolutely enchanted. It was a record.
Am I a convert - sure. Will I do everything they say to do - of course not.
P.S. a special shout out to Nick Lepore, Don's "rules" guy. Sweet as could be and helped me out with a special project.
Photo: Don on the left.
One technique used against plaintiffs, is to paint them as negative whiners. The defense mocks the injured person by saying they are overly focusing on their injury and see the glass as half empty. The logic is - if the person had a better mindset - they would see the glass is half full and everything would be better.
If the glass is half full defense works as planned, the jurors will feel nothing but irritation towards the injured person. Because no one feels compassion for a person who only sees and wants the worst in every situation.
In this trial, a drunk driver hit a man and crushed various bones throughout his body. Defense doctors were hired to testify that his injuries were not really so bad. Bones do heal ...with the help of metal plates and screws okay sure - but they do heal, they said.
In closing, I collected all of the "minimizing" statements of these doctor experts. Used the above photo. And roasted them by co-opting and presenting "Defendant's Glass Half Full List."
• He can walk even if he has to stop (after a few blocks)
• He can write with his left hand (even though he wrote with his right before)
• He can ride and drive in a car (but is still scared of trucks)
• He can travel (though he avoids it and has to move around constantly)
• He can cook to a certain extent
• He has range of motion (though he had to give up being a professional spin instructor and can no longer climb mountains, run, or engage in professional dance)
• He is off of narcotics (but still has pain daily)
and so on.
Co-opt this defense. Show the jury that your client believes that the glass is half full - even though bad things have happened.
Photo: From a PPT slide used in seveal trials last year.
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)
Course of care
Mechanics of injury and causation
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?
Can you describe future limitations of plaintiff
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?
There was one pattern instruction in this set that we didn't like. The problem is - judges love pattern instructions. So it was given. A few months after this trial, that pattern was amended.
Even so, the jury did pretty much the right thing and this young woman received a nice verdict.
Here are the jury instructions from the Clark v. WA case.
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.
The expert witness is making my blood boil. Direct exam is a pre-rehearsed script. The defense attorney reads a question the expert spews back an answer. They don't come right out and say so, but the inference is the client isn't working because either: a) lazy or b) hoping for lawsuit lottery. They don't have to be so nasty.
Hand is on client's arm. Whisper words of kindness from time to time. Keep mask of pleasant person firmly on face. Do not roll eyes. Realize foot is tapping. Become still. Like a falcon.
The judge turns to me and says the magic words: cross examination?
Even though you cannot see what physically is going on, this transcript gives you a sense of the drama of cross examination. The first two battles involve seemingly simple questions. First, want him to tell us how much he charged to work up this case. Second, want to get him out of the witness chair to list the injuries on a white board.
He balks at both simple requests. And off we go.
Click here to read the transcript:
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.
Everything 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.
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.
Most 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:
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
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.
In 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.
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.”
Instead, the coach studies the opponent. Maybe sends out a scout. Watches film. Devises strategies. Has the team practice then implement them.
We've all heard the saying -sometimes, the best offense is a good defense.
Opening statement is similar. We don’t want to spend too much time being defensive. That will give too much credence to the other side.
But we need to anticipate the defense. We need to be upfront and tell the jury about our case weaknesses. To prevent the defense from blowing them out of proportion.
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.
I'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.
“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.
(Note: This list was excerpted from the jury trial section of the WSBA Motor Vehicle Accident Deskbook (c) 2009, that I wrote).
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.
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.
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.
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.
 Janine Willis and Alexander Todorov, First Impressions – Making up your mind after a 100-Ms exposure to a face. Psychological Science. Princeton University (2006).
Here are some thoughts on how to immediately and effectively connect with a jury:
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.