Archive for the ‘Trial Practice’ Category

Will Video Testimony Be Misleading? (The Future of Law?)

Apple Insider Image

Apple Insider image of how the patent would work to morph past images in with the present ones for transmission.

Video testimony has been held by many to be a big improvement over a paper transcript. You can see facial expressions, assess the tone of voice, and evaluate delays in answering. Bill Gates learned that lesson years ago with his much-maligned video deposition with the “long pauses before [he] answered the simplest of queries…[and] the hint of contempt in his voice.”

But the “what you see is what you get” belief that we have in video may change, if the testimony is electronically transmitted.  Video testimony in the coming years might not be quite as reliable as we’d like to think.

Will it be our eyes that are deceiving us? No. It may be technology. Is this the future of law?

As per Apple Insider, in discussing a new patent issued today regarding video transmission over low-bandwidth, we may be in for a subtle but significant change. This is the problem that Apple seeks to fix:

Currently, video communication over cellular data is spotty in many areas due to bandwidth restrictions and existing wireless technology. In some cases, features like Apple’s FaceTime are nearly unusable due to dropped frames, extremely low-resolution images and poor audio quality.

How does Apple want to deal with that? By taking sample frames from the call that had been used previously and morphing them into the live conversation, to give the illusion of a constant video stream. In other words — and this is the part that would interest lawyers and judges — the visual cues from the speakers’ faces may not match with the words that are actually being used.

Again, as per Apple Insider:

The U.S. Patent and Trademark Office on Thursday published an Apple invention that replaces frames dropped during a low-bandwidth FaceTime call with pre-recorded or doctored images, thereby creating the illusion of a seamless feed.

Sometimes we see problems in movies and shows where the “sound is off” — as a fraction of a second misalignment messes with our brains. But in the Apple solution, they will simply morph old frames in so that it becomes seamless. The facial expressions you see might be for a different set of words that were previously used.

Is this a problem today? No. Will it be in five years? Check back with me then.

Apple, Expectations and Trial Strategy

Apple 5sA week ago Apple unveiled its new iPhone 5s and some Apple-bashers had a field day criticizing it for only being incrementally better than the one released a year earlier, the iPhone 5.

And this morning Apple released blockbuster sales of over 9 million iPhones sold since the actual release three days ago.

Why the sharp difference between initial reviews and blockbuster sales. And why is this important to jury trials?

Because those that were bashing were comparing it to the model released just one year ago. But most folks buy two-year contracts when they get an iPhone. Thus, the target audience for the phones was those that bought phones two years or more ago, not the few who want to upgrade every year.

And since there is a huge difference between the one two years ago and the just released, it has tapped a substantial market.

This is all about figuring out where to set the comparison bar when deciding if something is good or bad.

If at trial you want to compare an injury to normal, you have to first figure out what that normal is and set that bar firmly in place.

Last week at trial, a defense expert decided to move the “normal” bar on the range of motion, so that when he showed plaintiff’s injuries to the jury, they didn’t look as bad as they actually were. (I hope to blog on that testimony in the future.)

Firmly forcing a witness to declare what normal is, and locking the person in who is going to give that opinion, is a critical and often overlooked piece of the puzzle that constitutes evidence. It is all about expectation and doing a proper comparison.

My two rupees on your trial tip for the day.

The Wrong Lawyers for the Job? (BigLaw Trial Attorneys Get Bench Slapped) – Updated

Dow is the defendant. But if the jurors fell asleep during plaintiff’s opening, Dow will win regardless of what they did, or did not, do.

Really, you just don’t see this too often. Lawyers do get called out for incompetence sometimes by judges, but it doesn’t really happen too often right after opening statements, and with BigLaw coming in from out-of-state to play on the field.

But sometimes you just might not have the right lawyer for the job. And in the well of the courtroom, in front of the jury, the right lawyer for the job is the one that can tell a coherent story. Not put the jury to sleep.

And these guys put them to sleep. Literally. In the first inning of the game.

The playing field of this dispute is federal court in Kansas City. The issue involves, according to the  Kansas City Business Journal that broke the story, alleged conspiracies to fix the prices of urethane chemical products known as polyether polyols that are used to make a variety of consumer goods.

The sides in this dispute must have felt that local attorneys didn’t know how to tell a story about price fixing, so they brought in the out-of-state big guns.

For the plaintiffs was Michael Guzman of Washington-based Kellogg Huber Hansen Todd Evans & Figel. This is an 83-attorney firm that one website comically calls a “boutique.”

The firm must be good, because, as per the firm’s website, they are absolutely awesome. The roster of attorneys:

includes former Assistant United States Attorneys, Assistants to the Solicitor General, and attorneys who have held senior positions in the White House, Federal Communications Commission, and the Department of Justice, including a former Assistant Attorney General and Counselor to the Attorney General. Almost all of our lawyers have served as law clerks to federal judges, and nearly one-third have clerked for Supreme Court justices.

Hey! I’m impressed!  OK?

On the other side, for the mighty Dow Chemical was David Bernickof mighty New York-based Boies Schiller & Flexner.  Are they impressive? You bet…just read their website copy:

While best known for landmark cases such as United States v. MicrosoftBush v. Gore, and In re Vitamins, we represent some of the largest and most sophisticated organizations in the world when the results matter most. In less than a decade, we have won and saved our clients billions of dollars in trials, arbitrations, and settlements. We have been described by The Wall Street Journal as a “national litigation pow­er­­house” and by the National Law Journal as “unafraid to venture into controversial” and “high risk” matters.

OK, OK, you are all now just as suitably impressed as I am.

First Guzman made “a lengthy opening statement for the plaintiffs.”  Then Bernick spoke for half an hour, handed it off to his colleague Hamilton Loeb of D.C. firm Paul Hastings (800+ lawyers) for another half-hour, then returned to Bernick for another 30 minutes.

Since I wasn’t in the courtroom I will defer to U.S. District Judge John Lungstrum who was, and who presumably has seen his fair share of trials. Was he as impressed with the lawyers as I was after reading their magnificent website copy? Would I be writing this piece if the jurors were enthralled with the legal skills on display?

OK Judge, take it away…and tell us how quickly the jurors lost interest in the story and fell asleep:

“Honestly, if I had to do it over again, I’d give you each half as much time as I did. I told you all again this is your case, you guys do it however you think you want to do it, but you have people at the beginning of opening statements who are taking notes, who were engaged and who were interested. About halfway through the plaintiffs’ opening statement, those people tuned out. Other people literally went to sleep for a while. I did not call them on it because that’s not evidence; it’s not the law.

Ouch. Not kind to plaintiff’s counsel at all. But don’t worry, he had words for defense counsel also:

“It’s the responsibility of counsel, if you want people to hear your opening statement, to present it to them in a way that keeps their attention. Defendants’ opening statement rambled all over the ballpark. I suspect nobody on the jury’s got any idea what they think the evidence is going to be except it’s going to be vaguely different from what the plaintiffs have in mind.

“Now I’m saying this to you all going forward, you owe to your clients and to this jury not to just do everything you possibly can do because somebody says you can, and I really regret giving you an hour and a half each for opening. … The closing arguments in this case will be considerably shorter than what I originally thought would have been the case because neither side evidenced the ability to focus themselves on what they’re supposed to be doing.”

I’m willing to bet that Kansas City has a lot of very fine trial lawyers, and I bet that many of them know how to tell a story without putting people to sleep or rambling all over the place.

I know nothing at all about this case, but this: If jurors fall asleep during plaintiff’s opening then the plaintiff loses. End of story; the case is already over. That shouldn’t happen in the first inning of a ballgame.

The plaintiff has the burden, and if the jurors don’t care about the case, then that burden will be impossible to meet.

Updated, 2/24/13 — Well, now about that? Despite being ripped by the judge for putting the jurors to sleep and rambling in opening, the jury returned a $400M verdict against Dow Chemical (out of one billion dollars in damages sought).

And that means I was wrong. So if I saw a judge rip lawyers in a similar fashion, I would hedge my bet, right? No, I wouldn’t.  As once was said, the race does not always go to the swiftest or the battle to the strongest, but that’s the way to bet.

Mitt, My Dad and Witness Prep

Romney at Daytona 500, February, 2012 (Rainier Ehrhardt/AP)

When I was a puppy lawyer my father gave me this advice about witness preparation: Never tell a client what not to say. Our conversation went like this:

Dad: If you tell a witness what not to say, the witness will blurt it out.

Me: Huh?

Dad: If you tell the witness, “Under no circumstances should you ever say Rumpelstiltskin” then the deposition will go like this: What’s your name? Rumpelstiltskin.

As Mitt Romney can attest, my dad was waaaay ahead of his time. In an article by Liz Goodwin on Yahoo! News (Why Mitt Romney can’t shut up about his money) she finds Romney has the same problem that my dad focused on when it comes to talk of wealth. Romney’s obviously been told, again and again, not to discuss it. And out it comes, time and again:

Over the space of a few months, private equity millionaire Mitt Romney has cavalierly bet a Republican rival $10,000 during a debate, enthused about the joys of “being able to fire people who provide services to me,” told Detroit voters that his wife drives “a couple of Cadillacs,” and said at the Daytona 500 that while he is not an ardent fan of the sport, he does have “some great friends that are NASCAR team owners.”

Goodwin delves into similar cases, from literature to baseball, about individuals stridently trying to avoid saying/doing something, and the problems inherent on focusing the mind that way.

This matters, of course, in the context of litigation if a lawyer tries to over-prepare witnesses by telling them what to say or not say, as opposed to finding out what happened and dealing with that. The witness, in the uncomfortable spot of a court proceeding and directed to do something that might not come naturally, will sometimes blurt out what the lawyer tried ever-so-hard to stop them from saying.

Goodwin explains:

This is because our brain is always helpfully looking around for the very worst things we could do or say in any given situation, and then actively trying to suppress them with other, more appropriate thoughts and actions. The process has two parts–the unconscious, automatic monitoring of our forbidden thoughts, and the conscious, effortful way in which we distract ourselves from it. So when a person is trying not to think or talk about something–say, to pick an example at random, his personal wealth–he needs to both monitor the forbidden thought and distract his mind with other thoughts. This is called the “ironic process,” and it usually works, otherwise we would always be blurting out our secrets and insulting our loved ones.

Thus, today’s lesson in law: Beware the danger of trying to demanding a witness say or not say something, as opposed to finding out what happened. That, of course, is in addition to the ethical issues of having a witness fail to tell the truth.

There’s a lot more in the article, and it has strong relevance to the subject of witness preparation.


Trial Prep and Twitter

Last week I was on trial — at three days it was the shortest one I ever had — and my trial prep included this: Deleting any Twitter messages that were political. My first post on Twitter was thee years ago, January 29, 2009. Since then I have made about 800+ posts.

So the few tweets on politics that I’ve made were taken down. None were overboard on anything — regular readers know that ad hominem attack isn’t exactly the way I write — but why take the chance?

The problem is that no matter how many times a juror is told to avoid looking up the people involved, some folks can’t help themselves. They might look up the lawyer. They might see the Twitter stream.

Despite what people think of New York as a bastion of liberalism, we have plenty of conservatives. Our recent past had Rudy Giuliani as NYC mayor and George Pataki as Governor. It doesn’t really matter if you are on the left or right of the political aisle, it is guarnateed that out of a jury pool some will have differing opinions.

And if you are the party with the burden of proof in a personal injury case (me) then you can’t afford to piss anyone off. This is particularly true in a presidential election year when politics dominates the news more so than at other times.

The same problem exists for web sites, of course.  I’ve always cognizant of this (see, I Hate My Website from 2009) and try to govern myself accordingly. While there are some folks who take down their websites and replace them when on trial (or so I have heard) that isn’t something I’ve ever done.

Since no one generally cares about any tweet that is more than 10 nanoseconds old, this isn’t really an issue. But one person might care, that being the juror. So down they come.

Of course, the opposite might be true for criminal defense lawyers. With the burden on the prosecution, they need only convince that one lonely holdout. They may have a completely different view of keeping contentious political commentary up in place.

Rick Perry, Brain Farts, and Trial Lawyers

There was something deeply troubling about the reaction to Texas Gov. Rick Perry’s brain fart the other night during the Republican presidential debate. He said he wanted to whack three different federal agencies — Education, Commerce and Energy, but couldn’t remember Energy in the glare of the lights and pressure of the moment. He froze, and people have been yapping about the freeze ever since.

In chattering about the freeze, of course, commentators mostly missed the opportunity to talk about the substance of what he was proposing. The superficial trumped the substance. Yes, I know this happens all the time in politics, as it is easy for everyone to talk about a brain freeze while it might take some real thinking to discuss substance.

I felt bad for Perry, even though he isn’t my cup of tea. Anyone who talks in public — and trial lawyers do this so that is where I am going with this post — knows that this can happen. That’s why we work from notes.

But working from notes necessitates striking a balance. Because you never want to read to a jury or an appellate bench, unless you have to exactly quote something. If you put your nose in your notes, you lose the attention of the listener. So more notes means less likely to forget something, but also the danger of losing your audience. And vice versa.  This is Trial Practice 101.

So we try to strike that happy balance. For me, when I open to a jury or make an appellate argument I try hard  to use a rough outline that does not exceed one page, 14 point type. I use it to glance at.  Summations are similar, except that I will read a few trial transcript bits to the extent I think critical. And I always apologize to the jury for reading.

In cross-examination, of course, you have to wrestle not only with what you want to bring out to the jury, but with what the witness is trying to do. Notes become even harder to use in that situation. And it is easy to lose a train of thought and suffer the dreaded brain fart when dealing with the subject matter, the witness, the form of and the question. You need to focus on the big picture and the nitty gritty at the same time, as well as the next line of questioning that you want to lead the witness to. Yeah, that takes practice.

Which brings me back to Perry. When you walk on a high wire those kinds of flubs can happen. But I wouldn’t want a juror to judge my case if it happened to me, and I don’t think folks should judge Perry based  on his. Critique the substance, not the style.

Of course, if the points are really, really important, you might want to follow the Sarah Palin method, and write them down on your hand.

I think I’ll file this one under Trial Practice.

Ten Commandments of Winning Trial Advocacy

A guest blog today, from Judge Ralph Adam Fine, who has been sitting on Wisconsin’s Court of Appeals since 1988, and was a trial judge for 10 years before that. (And who hails from New York.) He’s the author of  the How to Win Trial Manual, a lecturer on trial techniques, and an author of books on evidence, both federal and Wisconsin.

I asked him to pen this after a conversation I had with a federal court clerk, who told me that he continues to be stunned at the cluelessness of many lawyers that step into the well of the courtroom to try a case (often those from larger firms).

The skills below, of course, are things that Avvo is incapable of quantifiying.

And now, without further ado, a very short course on winning trial techniques…


The most important thing to remember when you’re trying to persuade a jury or a bench-trial judge is that you must make them see that you really believe in your client’s case—that justice is on your client’s side, whether your client is a person or an entity. Everything else, to paraphrase Rabbi Hillel’s observation about the golden rule, “is commentary”—as are these ten “commandments” and my book, The How-To-Win Trial Manual (Juris 5th rev. ed 2011). As Winston Churchill wrote when he was a young man, to persuade others, you, yourself, must believe, and that belief must shine out!

    1. Your theme must resonate with what the jurors (or judge) knows from life; it must “ring true.

    2. Give the jurors a simple solution and eschew law-school-instilled hyper-complexity. Jurors will apply Occam’s Razor to your case; do it for them with your theme, and you will win!

    3. Do not argue inconsistent theories (I did not stab him but if I did it was self-defense) or present theories that are consistent so that they seem to be inconsistent (Wrong: She was not negligent, but even if she was, the defendant has overstated his injures. Right: She was not negligent, and, moreover, the defendant has overstated his injures.) Lesson: never use the phrase “but even if”!

    4. Do not use your direct-examination witnesses (whether fact or “expert”) to elicit information or opinions. Rather, you must frame and ask your questions so that the jury (or judge) knows the answer before the witness responds. This way, the jury (or judge) will see the “truth” in your argument from the get-go and not have to rely on their assessment of the witness’s credibility—even a liar can say true things.

    5. Do not use a lectern. You do not want to have anything between you and the persons to whom you are speaking, either the jury or judge. Yes, I know, some judges will not let you roam. If that’s the case in your trial, stand next to the lectern, but not behind it.

    6. Do not read. The jury (or judge) must see you as the “truth-giver” in your trial. Truth-givers speak from their heart; they do not read. If you doubt this, consider whether you would read a prepared script when discussing something important with your significant other even though a missed phrase could be lethal. The jury (or judge) must see that you believe in what you’re saying and reading from a script, or relying on notes too much, prevents that.

    7. Do not object in front of the jury either to the admission of evidence or to a question asked by your adversary. Truth-givers do not object because the truth cannot possible hurt them. If you cannot keep out evidence using a motion in limine, then you will have to deal with that evidence and make it work for you as a positive part of your proof! Trust me, this is not hard, as I show in my book and demonstrate in my workshops.

    8. When arguing a matter before the judge (whether in front of the jury or when the jury is not there) never say that you are doing something “for the Record.” First, it is insulting to the judge because you are already telling the judge that you will be appealing. Second, and this is crucial, whenever you say “for the Record” the judge (or the jury if the jury is there) sees that you are just going through the motions and that you really do not believe in what you’re saying. Indeed, during my nine years as a trial judge, a little voice in me said “deny” whenever I heard a lawyer say that he or she was doing something “for the Record.” Other judges tell me they have similar reactions.

    9. Do not rely on the burden of proof in your opening statement. First, the burden of proof in civil cases is essentially meaningless—a zillionth of an ounce on one side of an equally balanced scale is a “preponderance,” but no one would ever make a decision based on that difference. For lay people, something is either true or not true. In criminal cases, although the burden of proof is significant in closing argument, using it in your opening statement is counterproductive; when the jury hears that your client sits there “presumed” to be innocent and is “cloaked” by the constitution, most of them will see this as a concession that your client really did the things the prosecutor says your client did.

    10. Finally (for this list), your “opening statement” must be an opening argument and can be so without being “argumentative.” Thus, you must put your personal credibility behind your client’s cause every time you speak to the jury, and no time is more important than in the beginning because if the jurors see from the get-go that truth and justice is on your side, they will root for you, and, using the tools of denial and rationalization, shunt aside your adversary’s evidence. Thus, instead of the bland and neutral, “the evidence will show” x and y, you must say something like, “I will prove” x and y. That is not “argumentative” because you could have just as easily used the less-persuasive “evidence will show.” Something is “argumentative” when you cannot make that substitution, as in “send them a message” or some such exhortation.

Trial Tactics and Race Planning

I looked in my RSS feed and saw 4,000 unread posts. Yeah, I know that’s a lot.  If the blogosphere thinks I fell off the face of the earth because my posts are a bit less frequent lately, I assure you that those in my community know otherwise.

For this Sunday is the Paine to Pain Trail Half Marathon, which I founded and for which I’m the Race Director. And as we come down the home stretch in planning, I find myself sorting through a thousand details and talking with a thousand people to get those details nailed down.

In other words, it resembles, to some extent, planning for a trial. Trial lawyers love to talk about tactics and fancy cross-exams, and who hasn’t fantasized about the perfect summation?

But in reality, a trial is the culmination of a thousand different details dealing with subpoenas, medical and employment records, documents, diagrams and demonstrative evidence, difficult evidentiary matters, lists, lists and more lists, and the godawful misery of trying to work around the schedules of the experts.

And lists and details are what I also deal with regarding the race.  I have hundreds of people showing up from 12 states, and I need my finishers medals, shirts, sponsor stuff, food, water, timers, medical personnel, 100 volunteers, and 13 miles of little flags laid through the woods, all in the right place at the right time. Details, details, details.

They ought to give a class in law school called “event planning.” It would have a thousand different applications both in law and life.

When I wrote about this race two weeks ago, I noted that:

I’ve met a lot of people. Not the meet as in I’m-following-you-on-Twitter meet, but as in hundreds of  real people in my own community knowing me as a person.  I didn’t create the race as a form of networking, of course, but when people get involved in community events it is a natural by-product.

So on Sunday, I’ll have followers. This will be in the literal sense to the extent I can move my feet faster than they can move theirs, and in the figurative sense to the extent I’m showing them a new trail system.

I won’t get a single new Twitter follower as a result of this race. But I do hope to have hundreds of exhausted and happy faces at the finish line who have become new friends and acquaintances.

George Bush. A Boat. And a Point About Trial Tactics.

The Associated Press reported on a boating accident last week involving the elder George Bush. This is the way the AP phrased it:

KENNEBUNK, Maine — Former President George H.W. Bush’s fishing boat ended up high and dry on a beach near his Maine home after it ran aground in thick fog.

Now what is so wrong about that that it inspires a blog post? I’ll tell you. The boat didn’t just run aground. Someone most likely caused it to run aground.

Let’s take that language now into the courtroom, and consider an accident at an intersection. This is the way two skilled trial lawyers will try to present it:

Defendant: The accident happened.

Plaintiff: The Defendant caused this car wreck.

For the most part, accidents don’t just happen. I dealt with this back in May when Kentucky Republican Senate candidate Rand Paul seemed willing to give a free pass to BP and its friends who dumped so much oil into the Gulf of Mexico. He wasn’t happy that President Obama criticized BP:

“And I think it’s part of this sort of blame-game society in the sense that it’s always got to be somebody’s fault instead of the fact that maybe sometimes accidents happen,” Paul said, who is a darling of the Tea Party movement.

It’s true that acts of nature may take over, such as the lightening strike that fells a tree right into the path of a car. One might argue that acts of nature are even more likely at sea, given waves and fog, but it is just those types of foreseeable risks that a captain must consider. Only something unexpected would allow the act of nature defense to come into play.

Acts of nature are not how most accidents occur. Returning to former President Bush, the article goes on to give this explanation:

[Bush spokesman Jim] Appleby says Bush was close to shore in low visibility when a wave pushed his boat onto the beach.

It seems to me that if he was running his boat in low visibility it really isn’t fair to blame the boat (“it ran aground”).

And that type of passive language is just the thing that plaintiffs’ lawyers should be on the look out for and ready to counteract. “It” didn’t just happen. Someone most likely made it happen.

Photo credit: jcfmbost, via Flickr

Can Jury Consider All Damages, if Only Some Meet the No-Fault Threshold?

Today’s case solves a quirk in New York’s No-Fault law regarding the “serious injury” threshold that must be met in order to bring a lawsuit. That threshold was established in the ’70s in order to cut back on the number of personal injury cases that resulted from car accidents.

So here’s the question: If the threshold is met under one category of injury, can other categories of injuries be considered by the jury? For example, if the jury finds the threshold has been met with a fracture of the finger (#4 below) but that the back injuries didn’t qualify as a “Significant limitation of use of a body function or system” (# 8 below), can the back injuries be considered by the jury in assessing damages?

These are the categories that the legislature says define “serious injury” under New York’s miserable No-Fault law:

  1. A personal injury that results in death;
  2. Dismemberment;
  3. A significant disfigurement;
  4. A fracture;
  5. The loss of a fetus;
  6. Permanent loss of use of a body organ, member, function or system;
  7. Permanent consequential limitation of use of a body organ or member;
  8. Significant limitation of use of a body function or system; or
  9. A medically determined injury or impairment of a non- permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment”.

This issue arose in Rubin v. SMS Taxi, decided yesterday by the Appellate Division (First Department). Defendant had moved for summary judgment claiming that the plaintiff didn’t meet the No-Fault threshold. The lower court granted the motion for all injuries except for the significant disfigurement that the plaintiff suffered. The court then denied plaintiff’s motion for clarification or reconsideration,wherein he wanted to know if, having met threshold in one category, he could proceed to argue all the injuries.

And the First Department reversed with respect to the motion to clarify, and held unambiguously that

“once a jury determines plaintiff has met the threshold for serious injury, the jury may award damages for all of plaintiff’s injuries causally related to the accident, even those not meeting the serious injury threshold.”

In its decision, the court also cited to a Second Department case (Marte v. New York City Transit Auth.) as support.

Without question, it’s an important principle to remember for all practitioners: You only need to prove one of the categories falls within the serious injury threshold to then proceed for an assessment for all of the injuries that were causally related to the accident.

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