November 15th, 2019

Impeachment and the Art of Direct Exam

I caught a few minutes of the the impeachment proceedings and wanted to discuss one small point, because it relates to trial practice for a personal injury case.

OK, maybe you didn’t see that coming. But here I am.

Since this isn’t a political blog (except insofar as it takes on personal injury issues) I won’t get into the details of the inquiry, as I would likely never emerge from them.

No, instead I wanted to focus — for just a moment — on a trial tactic. And it came in the form of a direct exam of Ambassador Yovanovitch by Democratic counsel Daniel Goldman.

Direct exam. Few talk about it. It seems so boring. Cross is where it’s at! And summation! That’t the kind of exciting stuff that Hollywood likes and that law students dream of.

But in direct, the questions are short and simple, and designed to draw out two different things from a fact witness: Tell us the facts of what happened, and (sometimes) tell us how you felt about it.

Goldman shows the art of the direct in particular when asking Ambassador Yovanovitch about how she felt about intimidated and the smear campaign against her.

Forget the answers that she gave, for the purposes of this piece, and listen to the questions.

The idea is to get her to talk about an uncomfortable topic. Kinda, sorta, what personal injury lawyers do when they try to get their own clients to talk about how injury x affected their lives. (Because mental anguish is part of the damages.)

The questions are understated. There is no legalese. The questioner virtually disappears with the type of simple questions that it seems like an inquisitive and uninhibited middle school kid might ask.

On the tape, starting at 2:27, are these questions regarding the ambassador’s physical safety, that start with Goldman trying to pull out facts:

What did the Director General tell you? What happened next? Did she explain in any more detail what she meant about concerns for your security? Did she explain what the urgency was for you to come home on the next flight?

Then later on he tries to pull emotional testimony from her:

At 8:45 — So, just like that, you had to leave Ukraine as soon as possible? How did that make you feel?

13:37 — What was your reaction when you heard the President of the United States refer to you as “bad news?”

14:24 — What did you think when you heard President Trump had told President Zelensky that you were “going to go through some things.” What were you concerned about? Did you feel threatened? How so?

One might easily argue that if this was an actual trial these questions about her emotions would be objectionable since they don’t go to the facts of Trump asking a foreign government to interfere in our elections for his personal benefit, or using official acts to “persuade” that foreign government to do it.

But the comparison to a personal injury trial were unmistakable to my ear. Because the emotional fallout does matter. And therefore the questions were, in their essence, simplistically superb.

Make no mistake about this: This might look easy but it is hard work since it requires a mastery of the facts and hard preparation to gently guide witnesses along the path that you want them to go, without making it look like you are guiding the witness down any particular path. That work wouldn’t be obvious (and shouldn’t be obvious).

And if all goes according to plan, the witness is the star and the jury forgets the questioner is even there. There’s no posturing, or preening, or emotion, or speechifying.

It just sounds like you’re asking the same questions that any curious individual would ask: …And how did you feel about that? If this was a courtroom, Goldman would probably be standing behind the jury, out of their sight, so that the jurors could focus only on the witness.

Any trial advocacy class could use this footage as a demonstration on how to do a direct exam for a witness where such impressions and effects are relevant. It was a delight to watch.

The footage is below:

 

December 29th, 2018

Google Maps Comes to New York – and other legislative stuff

People love to yell and scream about those damn politicians, don’t they? Well, since fair is fair they should get a solid pat on the back for getting stuff right, shouldn’t they?

New York’s Gov. Andrew Cuomo signed a bill Friday that allows satellite-mapping services, such as Google Maps, to be admitted into evidence at trial. It was passed in the waning days of the last legislative session ending in June, and Cuomo just inked it. (Part of CPLR 4511)

I know, that’s a little thing, isn’t it? Especially since federal courts are already doing it.

But it’s one of those little things that oils the wheels of justice so that they creak along just a little bit more efficiently.

The bill summary is here:

“Allows judicial notice of an image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool, when requested by a party to the action, subject to a rebuttable presumption.”

And, of course, there isn’t anything even remotely partisan about it. It just makes it a little bit easier to move things along when you stand in the well of the courtroom.

Last year, for those that remember back that far, there had been several new laws regarding civil justice that improved things in New York, including a terrific change in Supplementary Uninsured/Underinsured Motorist (SUM) insurance, a change in the statute of limitations in medical malpractice cases to add a date of discovery rule for cancer cases, and a modest change in the venue law.

With the both legislative houses now in the hands of one party due to the Blue Wave that swept the country as backlash to Trump there is the opportunity for more progress (and yes, more mischief).

Maybe we will finally see the Grieving Families Act pass for the families of wrongful death victims?

Perhaps we can finally stop the judicially-created law that allows defense lawyers to interview a plaintiff’s doctors — off the record and without plaintiff’s counsel even being notified.

Maybe we will see some anti-SLAPP legislation?

(Hey, maybe, maybe we will even see my pet project, Eric’s Law, move forward to wipe out some of the last vestiges of the idiotic ad damnum clause?)

I’ll be watching, as the coming session has the opportunity to be one of he most significant in many, many years.

 

February 15th, 2017

Trials, Trump and Betrayal

The feeling of betrayal is, perhaps, one of the most powerful of emotions. It comes up in law all the time, and now it comes up in politics with the Flynn-Russia scandal and Trump’s demonstration that making America great is not exactly his first priority.

Before getting to the significance in politics, a quickie look at how often it comes up in the law, always starting with the premise that two people trusted each other. Without trust, of course, there can be no betrayal.

Betrayal appears with regularity in matrimonial actions, in contract disputes between business partners, and in criminal law with snitches.

Betrayal, in the form of treason, is the only crime defined in our Constitution. Yeah, it’s that strong, since it goes to our own sense of morality.

From my practice area, betrayal probably forms the single most common reason that patients contact lawyers about potential medical malpractice actions. People entrust their lives and health to others, and those others don’t do what was expected of them.

That betrayal forms the basis of an anger that results in the phone being picked up to see how, if at all, someone can get their pound of flesh. And it’s the reason  some doctors are counseled to say “I’m sorry” rather than covering up errors.

And because of this very human emotion, it comes up in literature with great frequency.

Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned.  — William Cosgrove

Betrayal is the only truth that sticks. — William Miller
Though those that are betrayed Do feel the treason sharply, yet the traitor Stands in worse case of woe — William Shakespeare

And more, from John Lennon’s son Sean, since it cuts to the heart of what makes for a good story:

There are only really a few stories to tell in the end, and betrayal and the failure of love is one of those good stories to tell.

Since betrayal cuts to the soul, it’s a common theme among trial lawyers that, if used properly, can captivate an audience. It’s a story every judge and juror can relate to. If, at trial, it’s possible to show that one person betrayed the trust of another, you can be 100% certain that a competent trial lawyer will use that theme.

So now we turn to politics and Donald Trump, and bring those trial tactics to a different arena.

It is a given that those who despise Trump will never, ever be disappointed in him. Such people are incapable of being betrayed.

But what of those that believed in him? What of those that bought his hats and shouted his name? Are these not the only ones who can be disappointed, the only ones who can be betrayed?

As the weeks roll on, look to see this concept of betrayal used over and again in the political arena, with the Flynn-Russia scandal, and likely elsewhere. It is one thing for a voter to excuse the conduct of a politician by simply ignoring the boastfulness and hyperbole, but it is altogether different when the hyperbole is supported by conspiring with a foreign power.

Especially when this was the stance of the Trump-Pence administration on February 2nd during a CBS Face the Nation interview:

Look in the future for Trump opponents, be they Democrat or Republican, to pick up this theme, by going directly to Trump’s base of support.

Hell may have no greater fury like a Trump supporter scorned.

 

July 28th, 2016

Trial Lawyer Tips From Politicians

Watergate jury, by John Hart. The original hangs in my office.

Watergate jury, by John Hart. The original hangs in my office.

I’ve been watching the political conventions off and on these past two weeks, and it occurs to me that there are a couple good tips in there for trial lawyers.

Two speeches stood out to me as good lessons.

The first was Bill Clinton. Why? Because he is a master story-teller. This isn’t about whether you agree or disagree with his politics, but the manner in which he engaged listeners with stories. He wasted no time in starting with a good old-fashioned boy-meets-girl story and kept coming back to it.

Once upon a time — September 2007, which is 63 years ago in dog years and 200 years ago in internet years —  I quoted Mark Twain on this subject, in discussing the need for the trial lawyer to engage the jurors and tell a story. And the most important thing to do is make sure the listener doesn’t fall asleep. You need to engage the listeners.

The second was that of Mike Bloomberg, who I think gave the best speech so far. How can that be when he stands where Bill Clinton just stood as well as both Obamas?

Because he bluntly stated that he wasn’t speaking to the people in the hall and that he often disagreed with Hillary Clinton. That is enough to make any viewer sit up and take notice (and to get many boos from those in attendance).

The fact that he wasn’t a typical cheerleader, and has supported both Republican and Democratic candidates, gave him credibility to address Trump supporters. He wasn’t there to simply yell Rah, Rah, Hillary. He audience was, perhaps, the most important one of all: The undecideds. That meant there was no reason at all to pander to those seated in front of him.

There is a powerful point here for those that stand in the well of the courtroom. When you give up issues to the other side (that you know you will likely lose anyway) your other arguments gain credibility with judges and juries. If you are respected, your arguments are more likely to find a receptive ear.

But not everything works. Because, for many parts of many speeches, people were merely preaching to the choir. Rousing up the folks in the convention halls. While this may be good to motivate those in attendance to work hard over the next few months, they do little to reach the critical undecided vote.

Tim Kaine was also important, but for altogether different reasons. He started out waving his hands around over his head and wasted all of his initial time with shout outs to his friends.

And that is an awful idea. The moments that people are most likely to listen to you, and most likely to remember, are the opening couple minutes of your remarks. And the closing ones. This is the concept of primacy and recency. The most important moments that should never be wasted are the very start and the very end.

After a few minutes of listening, he lost me, and I went upstairs to write this post. I heard later that the middle of the speech was amusing with his parody of Donald Trump, but I never heard it live.

Given that so much time, money and effort is put forward for these conventions to communicate, it’s worth sitting up to take notice of not just what they say, but how they say it. And to remember that when trying to persuade a judge or jury.

 

February 12th, 2016

Time is On My Side

The AOL 2.0 floppy disk that I use as a drink coaster. Photo credit: me.

The AOL 2.0 floppy disk that I use as a drink coaster. Photo credit: me.

Yesterday, I listened to a livestream of a suicidal and paranoid member of the Bundy gang surrender in Oregon. He said he was holding a gun to his head as supporters frantically tried to reason with him as he stumbled through a slew of conspiracy theories.

Think about that —  I’m in New York City listening in on a phone call with an armed and suicidal insurrectionist in a remote part of Oregon. What would Benjamin Franklin think? How long would it take for him just to comprehend such a concept?

What a short, strange trip this whole Internet thingy has been.

I first connected via Prodigy, circa 1992. When AOL took the world by storm with its proprietary site in 1993, I was 33. Using their instant messages, you could talk with someone from Prague, in real time, as if that person was sitting in your own building. It was amazing. Revolutionary.

I knew this was going to be huge when hourly charges for dial-up service went to unlimited in 1994, and the site was so overwhelmed that folks couldn’t connect. I still have an AOL 2.0 floppy disk. I use it as a drink coaster.

The World Wide Web followed shortly thereafter.

A huge milestone in its development was the 1998 release to the web by Ken Starr that dealt, in part, with the infamous cigar that Pres. Bill Clinton shared with Monica Lewinsky. I, and countless others, read it online immediately after its release. There was no need to wait a day for the newspapers to print it and distribute it for people to start having intense discussions.

Any semblance of the 24-hour news cycle that Ted Turner‘s CNN and its progeny hadn’t already taken down, was now gone for good.

My first crude website went up in 1999, and this blog followed in 2006. YouTube, Facebook, Instagram, Twitter, Snapchat and more all followed. Again, what would Ben Franklin think?

When I felt my midtown Manhattan building rumble in 2011 as I was sitting at my desk, I turned to Twitter, searched #earthquake, and knew within 30 seconds of the end of the quake that it had been felt from Georgia to Canada. Amazing.

We no longer wait, it seems, for anything.

Except for the law.

Much of what I do, I do the old fashioned way. It is slow and sometimes ponderous. It is the nature of litigation and trial. The world may move ever faster and faster with the explosion of technology, but the pace of the practice of law doesn’t really change.

There might be tinkering around the edges, but fundamentally it is the same today as when I started. Sure, I no longer need to bring a roll of quarters with me to the courthouse while on trial, I can electronically file complaints and motions, and I can bring my entire file to court with me on an iPad. That’s nice; it’s convenient.  Of course, as Keith Lee wrote yesterday at Above the Law, technology is just a tool.

But while the expectations of jurors may change — something that law and order TV shows also contribute to — the reality is that the lawyer’s work hasn’t.

You still have to tell the story. And to do that you need to find the witnesses, do the investigations and plow through the records. You need to lay foundations for evidence, build your examinations upon important points, and know what it is you need to do, and where it is you need to go.

There may be a straight line that gets you from Point A to Point B, but just as often it is otherwise, rambling around from here to there to get to where you want to go.

Telling that story usually takes time. Time that jurors, especially younger ones, may not be attuned to.

What to do about this internal conflict between today’s expectations and old-fashioned lawyering? Relish the concept when you finally get to meet your jurors. Welcome them back to another era, and another pace, when things moved slower. If you want to get the job done. (Because you have no other choice.)

Back in September, 2007,  I used an obscure quote by Mark Twain to describe the process of slowly telling the story.  Given Twain’s mastery of storytelling, I figured he would be a good source.

And so, as the world races faster and faster in making raw information available, we turn back to Twain on the art and flow of storytelling:

Narrative is a difficult art; narrative should flow as flows the brook down through the hills and the leafy woodlands, its course changed by every bowlder it comes across and by every grass-clad gravelly spur that projects into its path; its surface broken, but its course not stayed by rocks and gravel on the bottom in the shoal places; a brook that never goes straight for a minute, but goes, and goes briskly, sometimes ungrammatically, and sometimes fetching a horseshoe three-quarters of a mile around, and at the end of the circuit flowing within a yard of the path it traversed an hour before; but always going, and always following at least one law, always loyal to that law, the law of narrative, which has no law. Nothing to do but make the trip; the how of it is not important, so that the trip is made.

That difference in the expectations of people also came into sharp view in the Oregon standoff, where I started this piece. There were some folks who wanted the buildings that the Bundy gang took over to be immediately stormed. Now! Now! Quicker! Faster!

The Department of Justice, however, took its sweet time. Because time was on its side. And it was a highly successful strategy.

Sometimes we need to move fast. But not always, and fast should not be the default. No matter what kind of technology comes spinning our way.

OK, cue up some Stones to close — though lord only knows what Ben Franklin would think of Mick: