November 11th, 2011

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.


January 24th, 2011

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.


September 28th, 2010

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.


July 22nd, 2010

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


March 24th, 2010

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.