20th Annual Litigation Institute & Retreat

Transcription

1 20th Annual Litigation Institute & Retreat Cosponsored by the Litigation Section and endorsed by OTLA and OADC Friday, March 1, 2013, 1 p.m. 5:15 p.m. Saturday, March 2, 2013, 8:30 a.m. Noon Skamania Lodge Stevenson, Washington Oregon: 7.75 General CLE credits Washington: 7.25 General CLE credits

2 20th Annual Litigation Institute & Retreat Institute Planning Committee Chair: Dennis P. Rawlinson, Miller Nash LLP, Portland Kimberly D Aquila, The Confederated Tribes of the Grand Ronde Community of Oregon, Grand Ronde C. Marie Eckert, Miller Nash LLP, Portland Gregory R. Mowe, Stoel Rives LLP, Portland Robert J. Neuberger, Attorney at Law, Portland Melinda Thomas, Bryant Lovlien & Jarvis PC, Bend OREGON StatE BAR Litigation Section EXECUTIVE COMMITTEE Kimberly D Aquila, Chair Melinda Thomas, Chair-Elect Timothy L. Williams, Past Chair John R. Bachofner, Treasurer Yael Livny, Secretary Peter L. Barnhisel Eric L. Dahlin The Honorable Brian C. Dretke Pamela S. Hediger Lindsey H. Hughes Steven T. Lovett Scott C. Lucas Simeon D. (Sim) Rapoport Renee E. Rothauge The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright 2013 OREGON STATE BAR SW Upper Boones Ferry Road P.O. Box Tigard, OR th Annual Litigation Institute & Retreat ii

3 Table of Contents 1. things I Learned During My First Eighteen Months on the Bench That I Wish I Had Known as a Trial Lawyer i the Honorable Michael H. Simon, U.S. District Court, Portland, Oregon 2. a Communications-Training Paradigm for Witness Preparation: Prepping the 30(b)(6) Witness i Allan Campo, AJC, Sandestin, Florida Stuart Simon, AJC, Sun Valley, Idaho 3. Recommended Practices for Civil Jury Trials in Multnomah County Circuit Court i 4A. My Approach to Witness Preparation for Mediation A i William A. Barton, The Barton Law Firm PC, Newport, Oregon 4B. Bibliography and Summaries of Resources for Preparing a Witness B i Chris Kitchel, Stoel Rives LLP, Portland, Oregon 5. the Eight Keys to the Art of Persuasion i the Honorable Mark Drummond, Circuit Court, Eighth Judicial Circuit of Illinois, Quincy, Illinois 20th Annual Litigation Institute & Retreat iii

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5 Schedule Friday, March 1, 2013 Noon Registration 1:00 things I Learned on the Bench That I Wish I Had Known as a Trial Lawyer The Honorable Michael H. Simon, U.S. District Court, Portland 1:30 Prepping the 30(b)(6) Witness 2:30 Break Allan Campo, AJC, Sandestin, Florida 2:45 When You Can t See the Forest Restoring Common Sense and Focus to the Litigation Process The Honorable Marci Warner Adkisson, Klamath County Circuit Court, Klamath Falls The Honorable Henry Kantor, Multnomah County Circuit Court, Portland The Honorable Janice R. Wilson, Multnomah County Circuit Court, Portland 3:45 Sharpening Your Axe: Witness Preparation If I had eight hours to chop down a tree, I d spend six sharpening my axe. President Abraham Lincoln William A. Barton, The Barton Law Firm PC, Newport Chris Kitchel, Stoel Rives LLP, Portland Elden M. Rosenthal, Rosenthal Greene & Devlin PC, Portland 4:45 Courtroom Behavior from a Small County on the Banks of the Mississippi... and Beyond The Honorable Mark Drummond, Circuit Court, Eighth Judicial Circuit of Illinois, Quincy, IL 5:15 adjourn to No-Host Reception 6:30 Dinner and Presentation of the 16th Annual Owen M. Panner Professionalism Award to William A. Barton, The Barton Law Firm PC, Newport Saturday, March 2, :00 Late Registration and Continental Breakfast 8:30 the Eight Keys of the Art of Persuasion The Honorable Mark Drummond, Circuit Court, Eighth Judicial Circuit of Illinois, Quincy, IL 10:30 Break 10:45 the Eight Keys of the Art of Persuasion (continued) Noon Adjourn 20th Annual Litigation Institute & Retreat v

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7 Faculty The Honorable Marci Warner Adkisson, Klamath County Circuit Court, Klamath Falls. Judge Adkisson was reelected to the Klamath County Circuit Court in She previously was a justice of the peace and deputy district attorney for Klamath County. William A. Barton, The Barton Law Firm PC, Newport. Since 1972, Mr. Barton has tried over 500 cases to verdict as part of a national practice, including numerous million-dollar verdicts for medical negligence, child abuse, and insurance bad faith. Mr. Barton is a past president of both the Oregon Trial Lawyers Association and Western Trial Lawyers Association, a Fellow of the International Academy of Trial Lawyers, the American College of Trial Lawyers, and the International Society of Barristers, and a member of the American Board of Trial Advocates. He has served on the board of governors of the Association of Trial Lawyers of America, now the American Association for Justice. Mr. Barton is a recipient of the Oregon Trial Lawyers Distinguished Trial Lawyer Award. He has lectured on trial advocacy over 400 times in 35 states and 4 countries. Allan Campo, AJC, Sandestin, Florida. Mr. Campo is one of the nation s leading consultants to parties involved in litigation and has been providing these services for lawyers and their clients since He was president and principal at the jury research firm American Litigation Analysts (ALA) until early 1998 when ALA became part of DecisionQuest, then the nation s largest trial consulting firm. At that time, Mr. Campo assumed the title of Senior Vice President and became responsible for major DecisionQuest projects nationwide. He held that position until establishing American Jury Centers and AJC Consulting in He is widely known for his work in the analysis of the unique communications issues involved in litigation. Mr. Campo is a past president and current member of the American Society of Trial Consultants and an associate member of the American Bar Association. Mr. Campo is the principal author of Witness Preparation: A Manual for Attorneys (Amazon, 2011) and Hotseat: A Handbook for People Who Have to Answer Tough Questions (Amazon, 2012). He is a frequent speaker at conferences on legal and/or insurance matters. The Honorable Mark Drummond, Circuit Court, Eighth Judicial Circuit of Illinois, Quincy, IL. Judge Drummond was a trial lawyer for 20 years before taking the bench in He has been an instructor with the National Institute for Trial Advocacy since 1986 and is a program director at large. He has taught trial advocacy skills for both large and small firms, corporations, the Attorney General s offices for Illinois and New York, and the Department of the Navy. He writes the column Practice Points for Litigation News, a publication of the American Bar Association Litigation Section. He is the author of The Eight Keys to the Art of Persuasion. Judge Drummond has been asked to train on five continents and traveled to Japan in October 2008 to train attorneys in jury trial advocacy due to the changes in their trial system. He has lectured at Oxford on persuasion techniques for the Professional Negligence Bar Association and has trained counsel in Scotland and Ireland and at the United Nations headquarters in New York. The Honorable Henry Kantor, Multnomah County Circuit Court, Portland. Judge Kantor was appointed to the District Court in 1994, was elected to a six-year District Court term in 1996, became a Circuit Court Judge in 1998, and was elected to six-year Circuit Court terms in 2002 and Prior to taking judicial office, Judge Kantor practiced civil trial and appellate law in Oregon s state and federal courts, emphasizing class actions and other complex litigation, as well as serving as an arbitrator, pro-tem judge, and reference judge. As a trial judge, he presides over civil, criminal, and probate trials and sits on the court s Civil Motion Panel. For several years, he administered the court s Medical Negligence and Asbestos Dockets. From 2004 to 2005, Judge Kantor sat pro tem on the Oregon Court of Appeals. Judge Kantor is a member of the Oregon Judicial Conference, the Oregon Circuit Judges Association, the American Bar Association, the Multnomah Bar Association, the Federal Bar Association, and American Inns of Court. He served as a member of the Oregon State Bar s House of Delegates from 2000 to In 2006, he began serving as a delegate to the ABA Judicial Division. 20th Annual Litigation Institute & Retreat vii

8 Faculty (Continued) Chris Kitchel, Stoel Rives LLP, Portland. Ms. Kitchel, a former CPA, has been a trial lawyer with Stoel Rives for over 30 years. Her practice focuses on management side employment law and physician peer review. Her motto is to prepare, prepare, prepare, and her goal is no surprises. Ms. Kitchel is past president of the Oregon Association of Defense Counsel, a Fellow of the American College of Trial Lawyers, and a member of the American Board of Trial Advocates. She is a frequent speaker on employment, litigation, and peer review issues. Elden M. Rosenthal, Rosenthal Greene & Devlin PC, Portland. Mr. Rosenthal practices plaintiff s personal injury and civil rights law, handling both trials and appeals. He is the recipient of numerous awards, including the 1991 Oregon State Bar Award of Merit and the 2008 Oregon Trial Lawyers Association Distinguished Trial Lawyer Award. He is a Fellow of the American College of Trial Lawyers and an adjunct faculty member of the Lewis & Clark Law School. The Honorable Michael H. Simon, U.S. District Court, Portland. Judge Simon previously was a trial attorney with the United States Department of Justice, Antitrust Division, in Washington, D.C., until 1986, when he and his wife moved to Oregon. In 1986, Judge Simon joined a private law firm in Portland, where he had a trial and appellate practice in federal and state courts, handling a wide variety of business cases and several First Amendment and other constitutional law matters until his confirmation as a federal judge in He is a Fellow of the American College of Trial Lawyers and has been an adjunct professor of law at Lewis and Clark Law School, teaching Antitrust Law. The Honorable Janice R. Wilson, Multnomah County Circuit Court, Portland. Judge Wilson is a Senior Judge. She was a judge on the district and circuit courts in Multnomah County from 1991 until her recent retirement. Before becoming a judge, Judge Wilson practiced with the firms of Lindsay Hart Neil & Weigler and Ater Wynne Hewitt Dodson & Skerritt. Judge Wilson was the chair of the Multnomah County Circuit Court Civil Motion Panel for more than 13 years. She is a frequent CLE speaker and panelist. 20th Annual Litigation Institute & Retreat viii

9 Chapter 1 Things I Learned During My First Eighteen Months on the Bench That I Wish I Had Known as a Trial Lawyer The Honorable Michael H. Simon U.S. District Court Portland, Oregon Contents I. Pathos II. Logos III. Ethos IV. The Alternative Two Systems of Thinking by Everyone

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11 Chapter 1 Things I Learned During My First Eighteen Months on the Bench... My service as a trial court judge began on June 30, By the end of August, I completed the first week of a two-week training program for new federal judges, which is sometimes called baby judge school. The second part of this training is offered only once a year, and I completed that in November. During my first 18 months, I presided over seven trials, ruled on numerous motions and other matters, and served as a settlement judge in more than two dozen cases. I also learned a few things sitting on this side of the bench that I wish I had known back when I was a trial lawyer. To be fair, I probably had heard most of these points before taking the bench, but things just look different when one is serving as a neutral decision-maker under the rule of law rather than as an advocate. A trial judge tries to correctly apply principles of law (some of which are clearer than others) to facts that are often in dispute. Depending upon the specifics of a case, there may or may not be much room left for the exercise of discretion. A trial judge, however, may also be called upon expressly to exercise discretion and is afforded a fair amount of latitude when doing so. In the context of civil litigation, examples include resolving discovery disputes (especially those involving the rule of proportionality under Fed. R. Civ. P. 26(b)(2)(C)(iii)), disagreements over scheduling and extensions, and requests for temporary, preliminary, or permanent injunctive relief where the judge is often required to balance the hardships and equities facing the parties and also consider the public interest. In order to be able to persuade a judge or jury, it is helpful and maybe even critical for the advocate to be able to look at the specific dispute from the perspective of the decision-maker and see things as that person will see them. That is the first thing that I wish I had known (or, at least, fully absorbed) back when I was a trial lawyer. The additional points that I am about to make build on this insight. They are not original or new; in fact, the first three are more than two thousand years old. They go back to Aristotle and his discussion of the three primary modes of persuasion or argument, and they have withstood the test of time. See Aristotle, The Art of Rhetoric (H.C. Lawson-Tancred trans. 1991). For these three points, the only thing that is new (at least to me) is my first-hand confirmation over the past 12 months that Aristotle s advice works. The principles that I have seen succeed during the past year can be remembered with a mnemonic device using the acronym P-L-E-A, which, to a lawyer, refers to an allegation made by a party in support of a cause. To persuade and advocate for a plea is the heart of the work of the trial lawyer, so P-L-E-A should be easy to remember. But I am going to go beyond Aristotle s three ancient principles and add one more from modern learning based on the latest developments in cognitive science, psychology, and behavioral economics. To remember this additional point, it might be easier to remember the word P-L-E-A-S-E. Every trial lawyer needs to be respectful and polite to his or her audience, whether judge or jury, in order to be persuasive. This requires the use of the word please or at least that attitude. Looked at another way, every advocate hopes that his or her argument will please the decision-maker; the classic opening for any legal argument is, after all: May it please the court. P-L-E-A-S-E it is, then. It stands for: Pathos, Logos, Ethos, and the Alternative Systems [of Thinking] by Everyone. I. Pathos Pathos refers to emotion. As used by Aristotle, it means trying to create a certain favorable disposition in the audience. It is a form of argument that appeals to the emotions of the listener or the reader. In a legal case, this can mean different things to different people. Some consider, as I do, pathos to be an appeal to one s sense of justice. It is an argument that seeks to persuade the decision-maker that justice requires, or at least supports, a particular outcome. Some may think that this is inconsistent with a neutral application of the rule of law. Judge Learned Hand tells the story of when he and Justice Oliver Wendell Holmes, Jr., were riding together 20th Annual Litigation Institute & Retreat 1 1

12 Chapter 1 Things I Learned During My First Eighteen Months on the Bench... in a carriage. As they departed from each other s company, Judge Hand said: Well, sir, goodbye. Do justice! Justice Holmes sharply replied, That is not my job. Learned Hand, A Personal Confession, in The Spirit of Liberty 302, (Irving Dilliard ed., 3d ed. 1960). There can be no doubt, however, that at least for certain judicial functions, such as deciding a motion for injunctive relief, the judge is authorized and indeed required to balance equities and consider the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, (9th Cir. 2011). Similar factors are also at play when a judge considers other sorts of civil disputes as well, including discovery motions. Others, however, may consider the pathos mode of argument to urge an appeal to the sympathy of the decision-maker. This is a mistake, in my opinion, at least if it refers to trying to appeal to sympathy in order to avoid a fair, neutral, and principled application of the rule of law to the relevant facts fairly determined. A federal judge s oath requires the judge to administer justice without respect to persons, and do equal right to the poor and to the rich. 28 U.S.C Jurors take a similar oath and are similarly instructed. Based on my observations of jurors and my post-trial conversations with them as a trial judge, jurors take their responsibilities and instructions very seriously. Thus, to the extent that pathos refers to an appeal to the decision-maker s sense of justice, rather than to sympathy, with justice being understood to be a fair and neutral application of the rule of law (including equitable considerations when the rule of law so provides) to specific and relevant facts carefully and impartially determined, it is a powerful tool for persuasion and advocacy. II. Logos Logos refers to logic. It means an argument that persuades through appeal to reasoning and logic, whether deductive or inductive. It is an argument, whether written or oral, that flows clearly and understandably, that is well-organized, easy to follow, and contains no logical fallacies (and perhaps even identifies the logical flaws in the opposing argument). The words chosen are clear, free of ambiguity, used with precision and purpose, and logical. Whether a judge is reading a brief or a judge or jury is listening to oral advocacy, the reader or listener should never have to wonder, What is the point? If a fact or a legal proposition is stated, its role and import should be immediately clear. When a lawyer is writing a brief, every sentence should have a purpose and a clear meaning. It should also be clear why that sentence is where it is and not in some other location (or discarded). All sentences and paragraphs must have a logical and readily apparent organization and flow. This requires editing and rewriting, which takes time, but if a lawyer wants to be persuasive in written advocacy, that time must be invested. In federal court, at least before trial, most advocacy takes place in writing. The primary role of oral argument, at least for me, is to test whether my initial or tentative conclusions based on reading the briefs and exhibits and analyzing the law are sound, are well-developed, and can withstand close scrutiny. Oral argument may also fill in gaps or correct misunderstandings, but the advocate who persuades initially based on the briefs is likely to continue to persuade through the final decision. III. Ethos Ethos refers to the ethical character of the advocate. It is a form of persuasion apart from the immediate merits or logic of an argument that relies upon the fact that people generally tend to believe and give more credit to those whom they trust and respect. And respect is a consequence of ethical character and a reputation that is earned over time. The good character of an advocate cannot alter an adverse legal precedent or change a bad fact, but there are many opportunities where the ethical character of the lawyer may make a difference. Where a judge may have misread or misapplied a precedent, an advocate who has earned a judge s trust may more easily persuade the court that the precedent should be reread or that a conclusion should be reconsidered. If a lawyer has earned the 20th Annual Litigation Institute & Retreat 1 2

13 Chapter 1 Things I Learned During My First Eighteen Months on the Bench... confidence of a judge that the lawyer does not overstate (or misstate) the essential holding or facts of a case, or the contents of certain evidence, or the particulars of a dispute with opposing counsel, that confidence will almost certainly find opportunities where it may make a difference in the outcome of some decision. Trial lawyers know this in spades when it comes to jury trials, which is why it is so important not to overstate in an opening statement what the evidence will show. If the evidence does not show what the lawyer promised it would, it will not be easy for the jury to believe any other propositions that the lawyer may wish to urge during closing argument. So how does a lawyer earn that sort of trust from a judge or jury? There are numerous ways. Some that are quite obvious include not doing anything that would cause such trust to be lost, such as making overstatements or misstatements or failing to accurately and completely disclose that which should be disclosed. But there are other more subtle ways to earn trust and inspire confidence. The law is a noble profession; it is not just a business or a means of earning a living. A lawyer who takes seriously the title officer of the court and recognizes that he or she has a duty to the administration of justice as well as a duty of zealous advocacy on behalf of one s client is well on the way toward earning that trust. 1 A lawyer who treats opposing counsel with respect and dignity (at least respecting the role, if not the specific person) is well on his or her way. The lawyer who is courteous to all counsel and staff, parties, witnesses, jurors, court staff, and judges is well on his or her way and courteousness includes respecting a jury s and a judge s time and attention by not being repetitive, disorganized, or untimely. The lawyer who refrains from arrogance, pomposity, and unnecessary squabbling and disputatiousness is well on his or her way. The lawyer who speaks, stands, and moves with appropriate confidence and presence is well on his or her way. And the lawyer who is well prepared, well organized, and well versed in the applicable rules of procedure (local and otherwise), the applicable substantive rules of law, and the relevant facts of the case is well on his or her way to becoming a lawyer with ethos, who has credibility and is, therefore, more persuasive. New York Times columnist David Brooks wrote a column entitled Suffering Fools Gladly (January 3, 2013). Brooks observes that Edmund Burke wrote, Manners are of more importance than laws. Manners are what vex or soothe, corrupt or purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform, insensible operation, like that of the air we breathe in. Brooks ends his column with the following quotation from G.K. Chesterton about the happy marriage: A man and a woman cannot live together without having against each other a kind of everlasting joke. Each has discovered that the other is a fool, but a great fool. This largeness, this grossness and gorgeousness of folly is the thing which we all find about those with whom we are in intimate contact; and it is the one enduring basis of affection, and even of respect. G. K. Chesterton, Charles Dickens. Showing humility and being able to laugh at oneself seems to be a good formula not only for a happy marriage, but also for developing one s ethos. IV. The Alternative Two Systems of Thinking by EVERYONE As I was preparing for my transition from advocate to trial judge, I came across a law review article with the following startling comment: As we demonstrate below, judges are predominantly intuitive decision makers, and intuitive judgments are often flawed. Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 5 (2007). The authors demonstration persuaded me, and I commend their article to all trial and appellate advocates. I was also persuaded to try to do something to reduce the instances in which my judgments 1 It is interesting to note that the word zeal and the phrase zealous advocacy do not appear in the Oregon Rules of Professional Conduct. See Sylvia Stevens, Whither Zeal? Defining Zealous Representation, Oregon State Bar Bulletin July 2005, also available at 20th Annual Litigation Institute & Retreat 1 3

14 Chapter 1 Things I Learned During My First Eighteen Months on the Bench... would turn out to be flawed. This is a long-term project, and others are probably in a better position to evaluate how it is proceeding. Nevertheless, my search led to me another resource, one that I also commend to all trial and appellate lawyers. In fact, one outstanding trial lawyer with a national reputation, who has been my mentor since 1986, recently read this book at my recommendation; upon finishing it, he told me, he immediately reread it. The book is Daniel Kahneman s Thinking, Fast and Slow (2011). Dr. Kahneman is professor emeritus of psychology and public affairs at the Woodrow Wilson School of Princeton University. A psychologist by training, in 2002 Dr. Kahneman was awarded the Nobel Prize in Economics. His studies include cognition, judgment, and decision-making. Along with his long-time colleague, the late Dr. Amos Tversky, Dr. Kahneman is largely responsible for the creation and development of the field of behavioral economics, which studies the effects of social, cognitive, and emotional factors on the economic decisions of individuals and institutions. As explained in his book, [w]e documented systematic errors in the thinking of normal people, and we traced these errors to the design of the machinery of cognition rather than to the corruption of thought by emotion. Id. at 8. What trial lawyer (or trial judge) would not want to know about this? The book describes decades worth of experiments, analyses, and conclusions and explains the two systems of thinking that are found in all normal people (hence, my use of the word everyone ). These two systems are called System 1 and System 2. System 1 thinking works automatically, quickly, and effortlessly; we are not even conscious of it. System 2 thinking requires effort, conscious mental activity, and energy (which, in the form of glucose, rapidly depletes). 2 System 1 leads us astray and to form erroneous conclusions and judgments. System 2, if and when we make the effort to use it, can correct for the errors caused by System 1. Dr. Kahneman s book describes numerous errors in thinking that occur when System 1 predominates and System 2 takes a rest or at least sits in the backseat and leaves the driving to System 1. Errors can be caused by the simplifying heuristic (overusing a rule of thumb) or by the availability heuristic (drawing conclusions based only on the most available or accessible information and assuming WYSIATI what you see is all there is ), among other causes. Dr. Kahneman also describes hindsight bias (after an unlikely event occurs, the likelihood of such an event occurring appears to be greater than it did before), confirmation bias (one selectively accepts or rejects facts or arguments depending upon whether they confirm already-held beliefs), the priming effect (seeing or hearing a particular word can prompt other words and concepts and even actions and emotions), the anchoring effect (seeing or hearing an early mention of a particular value for an unknown quantity can influence the later estimate of that quantity), the halo effect (similar to ethos, discussed previously), the conjunction fallacy (erroneously inferring the general from the particular), and the fallacy of not understanding regression to the mean (drawing erroneous conclusions from random fluctuations in the quality of a performance). In addition, Dr. Kahneman discusses the relationship between cognitive ease and the illusion of truth (where, for example, the use of repetition can make people believe something that is false simply because familiarity is not easily distinguished from the intuition of truth). Although the book is not written specifically for the legal profession, a trial lawyer can learn many lessons about persuasion and decision-making from Dr. Kahneman. These insights will apply to arguing motions before a trial judge, presenting cases in jury or bench trials, handling appeals, and even negotiating settlements. Dr. Kahneman also discusses another valuable tool, which is already in 2 This may explain, at least in part, the results seen in the study of parole judges in Israel. More paroles were granted shortly after each meal, with the approval rate dropping until the next judicial feeding. According to Dr. Kahneman, [t]he best possible account of the data provides bad news: tired and hungry judges tend to fall back on the easier default position of denying requests for parole. Both fatigue and hunger probably play a role. Id. at 44. Thus, the old realist school adage that a judge s decision depends on what the judge had for breakfast may now need to be modified with the addition of and when he or she ate it. 20th Annual Litigation Institute & Retreat 1 4

15 Chapter 1 Things I Learned During My First Eighteen Months on the Bench... use by some businesses but not yet widely adopted by trial lawyers. It is the premortem. Lawyers and others know that after a project has ended, especially if it has ended poorly, a postmortem analysis may be useful to learn how things can be improved for the next time. Dr. Kahneman s book discusses the idea of engaging in a premortem early in a project as a remedy for the cognitive problem of overconfidence. Id. at Most trial lawyers are confident; some may even say overconfident. And overconfidence may make it more difficult to see and anticipate potential problem areas. The concept of a premortem suggests that reasonably early in the litigation process the trial lawyer should attempt to visualize various negative outcomes and then analyze the likely causes of these negative results. Such a premortem may be useful in identifying potential problem areas that would not otherwise be seen during the course of more traditional preparation. After these problems are identified, potential solutions might be developed or alternative courses of action could be taken. The idea of doing a premortem is certainly worth considering. Dr. Kahneman also explains the circumstances that lead to the development of generally sound and good intuitions, such as those held by grandmasters at chess and by experienced firefighters. He explains, [w]hether professionals have a chance to develop intuitive expertise depends essentially on the quality and speed of feedback, as well as on sufficient opportunity to practice. Id. at 241. Given how few decisions of a trial judge are actually appealed and how long the appellate process often takes, this is not particularly comforting news for a trial judge. There are likely many more good books and articles of which I am not yet aware. Several that I recommend are: Richard A. Posner, How Judges Think (2008); Brian Z. Tamanaha, Beyond the Formalist- Realist Divide: The Role of Politics in Judging (2010); Jonathan Haidt, The Righteous Mind: Why Good People are Divided by Politics and Religion (2012); Nate Silver, The Signal and the Noise: Why So Many Predictions Fail But Some Don t (2012); and Lee Epstein, William M. Landes, and Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (2013). I recognize that there is a lot more to learn. Perhaps in 25 years I might even write an essay entitled: Things that I Wish I Had Known as a New Trial Judge. In the meantime, I will try to avoid the errors that Dr. Kahneman and others describe. 20th Annual Litigation Institute & Retreat 1 5

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17 Chapter 2 A Communications-Training Paradigm for Witness Preparation: Prepping the 30(b)(6) Witness 1 Allan Campo AJC Sandestin, Florida Stuart Simon AJC Sun Valley, Idaho Contents The Core Concept: Developing Testifying Skills The Truth Keep it Short and Simple (K.I.S.S.) Word Selection: Naming and Characterizing Things The Titles Exercise The following material is selected from the book Witness Preparation: A Manual for Attorneys, by Allan Campo with Stuart Simon and Todd Betanzos (Amazon 2011). It is presented to you with the permission of the authors.

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19 Chapter 2 A Communications-Training Paradigm for... Prepping the 30(b)(6) Witness The Core Concept: Developing Testifying Skills F Testifying to the truth relies mostly upon learned communication skills. We tell testifiers that they are not there to rely upon their native ability to tell it like it is, because, ironically, telling it like it is, the way most people do it, anyway, often makes for poor testimony. Witnesses are not at a deposition or at trial to tell something; they are there to answer questions. Telling and answering are different. Explain this to your witness early and remind him/her of it frequently. Here s what is said about testimony in the handbook, Hotseat: Speaking with the discipline required of legal testimony is a unique form of communication. It occurs under conditions unlike any other. Too many people have gone into important communications settings armed with the best of intentions and a determination to just speak the truth, or to just tell it like it is, only to have great difficulty doing it successfully. Their words are misunderstood. They make misstatements. They get confused. They haven t thought systematically about the experiences they ll be asked to address. They are not fully prepared for the careful questioning they encounter. F You will want to establish with your witness very early that mere knowledge of the facts and a commitment to truthfulness is far from sufficient to prepare for giving testimony. Wait, isn t truthfulness the most important thing? Absolutely! Commitment to the truth is the foundation of this training method. Testimony is truthful communication assembled like a model of a ship, all the pieces joined correctly, and the vessel presented in perfect scale to the actual. F It s all about getting your witness to talk through the facts carefully and in detail, and answering your questions. Then doing it again and again. (And a few more times....) Communications experts teach us that repeated telling of a story creates increased efficiency. Speakers start to find better descriptive words, smoother elements of transition, shorter and clearer explanations. F You should work with your witness on finding the right language to communicate key elements of the truth. Of course, you should never tell him what to say, and we trust that you will not. But neither should you abandon him at this critical time. Help him find strong words and encourage him to use them. Witnesses are not trained speakers or writers. Many do not even own a dictionary or a thesaurus. Yet, surely, your witness deserves to have the full power of the English language available to him for making his testimony! He is there to speak the truth and he ought to have the words to do it clearly. F Have a dictionary in the room when you prep with your witness; have a thesaurus available. If his language selection is not clear, ask him to look up meanings of words, search for synonyms, etc. You will love the Aha! look on the face of your witness when he finds the right way to describe something; the words that perfectly capture his sense of the truth of it. F Do not think of this manual as a tool for putting a favorable spin on the truth. If anything, the approach suggested here is anti-spin, because spinning a story usually means telling a version of the story that most favors you, no matter how well or poorly it tracks with the truth. Spinning is selecting words for effect rather than for accuracy. The power of the approach taught here lies in the credibility a witness earns through clear and honest telling of his experience. The potent effect of candor and sincerity itself is all that you or he should seek. F Hearing questions on a topic more than once (many times more than once!) helps a testifier tune his ear to the key elements and/or flag words in the questions, thus helping him recognize traps in those questions and how to answer them. You are teaching your witness as much to listen with precision as to speak with it. Make sure you give him lots of time to learn to listen to and respond to both the style and the substance of questions he will face. 20th Annual Litigation Institute & Retreat 2 1

20 Chapter 2 A Communications-Training Paradigm for... Prepping the 30(b)(6) Witness F You are probably getting the point that the Core Concept is repetition. There should be repeated conversations about the facts and how most clearly to speak to them. There should be repeated opportunities for the witness to answer questions asked in an adverse style. That is the key to success. F Your contacts with any particular witness about his testimony should not follow one immediately upon another. Witness preparation meetings should be scheduled at intervals so that witnesses can digest and think about what they have covered. Further, they will need to organize their recollections and store them efficiently in long-term memory. You can facilitate this process by doing your witness preparation in several half-day meetings with at least one or more days in between. F A popular variation on this interval-learning protocol for witnesses is to prepare two witnesses simultaneously (though usually not in one another s presence), one in the morning and one in the afternoon, on several days. This method also reduces the negative impact of fatigue. F Witness preparation may necessarily involve some last minute cramming into shortterm memory on the eve of deposition or trial testimony. But this type of preparation should be limited to refreshing your witness s recall of the details of documents or strings and that sort of thing not to the key facts and arguments in the case. Keep this important distinction in mind. The Truth Keep it Short and Simple (K.I.S.S.) Word Selection: Naming and Characterizing Things F The first principle we teach with regard to testimony is that speaking the truth requires precise language. Poets and writers of prose will search long and hard for the one word that captures the essence the truth about a flower or a sunrise or a person. You and your witness may need to do the same with her testimony. F It is easier to think about a thing when you have a word for it. It is easier to communicate about it, too. Sometimes we relate this story: I used to tell my kids that nobody ever bought cheeseburgers until somebody gave them a simple name. Why? In a very serious tone I would explain to them that it was very risky to walk into a restaurant and say that you wanted one-of-those-hot-ground-beef-pattiesgrilled-and-then-placed-on-a-round-bun-with-a-slice-of-cheddar-cheese-on-top-andsome-lettuce-and-tomato-and-ketchup-too! It was very easy for the person ordering to get part of that thirty-word formula wrong and end up with who knows what on a sandwich! It was also too easy for the person taking the order to miss one or two words of the order and prepare it incorrectly! Plus, everybody got really tired, just trying to order lunch.... Clearly, there was a need for a single unique word that immediately communicated everything the hungry customer wanted. It would need to be a word that the customer could give to an order-taker who then knew exactly what was being requested. Finally, along came a brilliant child who said, Let s call it a cheeseburger! Ah.... The world became a better place! The kids loved the story and instantly saw the lesson. After all, kids are always asking, What is that, Mom? What do you call that thing over there, Dad? I bet your witness will get it, too. F It is typical in lawsuits to find one or more elements of the case that need to be called something. Sometimes an event is easier to talk about if it is named, given a title, or assigned what we sometimes call a tag. A language expert might say that an important event begs for a nominal. That moment when two key individuals first come into one another s presence? Is it the Introduction, the Encounter, the Discovery, the Meeting, the Confrontation? What title most clearly captures 20th Annual Litigation Institute & Retreat 2 2

21 Chapter 2 A Communications-Training Paradigm for... Prepping the 30(b)(6) Witness the important qualities of the event? Figuring out and introducing useful names for case elements is a very worthwhile exercise for both attorneys and witnesses. These names help witnesses speak to the elements concisely and accurately; but, more importantly, names help listeners. F The terms for nominals are often used interchangeably. We, though, have developed the habit of thinking of nominals as a hierarchy: Titles are for key events or circumstances ( The Baby s Illness ). Names are for lesser events, unique situational dynamics ( Local Rivalry ). Tags are usually reserved for objects (that old favorite: The Accident Vehicle ). F Listeners use titles of events like the titles of chapters in a book; they are tools for organizing the story. The best ones are easy to remember, to carry around. We call this portability. Good titles also pack rich imagery and help listeners recall the associated facts and arguments. We call this capacity. A good title has both portability and capacity. The Titles Exercise Take five minutes and do this no-stress teaching drill with your witness. It will be enjoyable and will help to drive home the importance and utility of titles for situations and events. Ask your witness what comes to mind when these famous event titles are used: The Cold War 9/11 D-Day Notice together the richness of the imagery, how many things you and he can recall simply by bringing up the familiar title of something! Now, ask your witness what comes to mind when he thinks of one of these common life-event names: My Graduation My Wedding My Best Vacation Notice again how much detail and richness of imagery can come up for you simply by invoking the title of an event! F Many lawsuits (and almost all criminal cases) have one or more situations and/or events that would benefit from being named so that attorneys, witnesses, and fact-finders can organize and remember the associated information. F Brainstorm with your witness. What are the key moments in the story of your case? What are the key situations? What are the issues? What are the disagreements? Do these things need to be titled or named? F You add great power to your case if you (in argument) or your witness (in testimony) are the first to assign nominals to things. You will be able to make sure that these titles and names capture the essence of the thing. You will be able to make sure that they are portable and capacious. We say to attorneys and witnesses: If you name it you can tame it. We also say, If you name it you can claim it. F Keep this idea in mind: If neither you nor your witness assign accurate and useful nominals to key events, situations, and objects (and arguments arguments can be named, too!), somebody will. It might be opposing counsel, it might be a witness for the other side, it could be a juror. That name you didn t pick might mischaracterize the truth, unfairly color an event, or distort reality, and it might be a key to persuading a fact-finder. 20th Annual Litigation Institute & Retreat 2 3

22 Chapter 2 A Communications-Training Paradigm for... Prepping the 30(b)(6) Witness F Sometimes one-word titles aren t sufficient to capture the real essence of the thing being named. For example, accident may not be enough. It may take chain-reaction accident or highspeed accident to deliver the full picture. If the essence of the event is not its dynamic so much as its effect, it might more truthfully be expressed as the horrific accident or (much different) that unfortunate accident. Do not be tempted, through the use of such potent modifiers, to try to render a swan from an inescapably ugly duckling. Evocative adjectives and adverbs rarely work very well for listeners unless they help to drive home the truth. If they are used disingenuously, they typically ring sour, like a bad bell. Everybody hears it and everybody grimaces. F Descriptive words in testimony are more effective when they are few in number and have been thoughtfully selected for their capacity to illuminate a point sincerely addressed. When thus used, they sparkle and draw the listener s ear to the speaker s words. There is for the listener a reward: a flash of color, a surge of feeling. 20th Annual Litigation Institute & Retreat 2 4

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25 Chapter 3 Recommended Practices for Civil Jury Trials in Multnomah County Circuit Court Contents Executive Summary Introduction Recommended Practices I. Trial Scheduling II. Exhibits III. Neutral Statement of the Case IV. Deposition Testimony and Objections V. Pre-Trial Conferences VI. Jury Selection VII. Trial Procedures

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47 Chapter 4A My Approach to Witness Preparation for Mediation 1 William A. Barton The Barton Law Firm PC Newport, Oregon 1 My thoughts, as reflected in this brief paper, originate from my experience as a plaintiffs trial lawyer. They necessarily reflect the concerns plaintiffs face in mediation and in the larger context of discovery and trial. I trust other members of the panel, including the highly regarded defense attorney, will bring their own personal experience to the discussion. While this paper focuses on mediation, I believe the approach I discuss is applicable to all aspects of presenting the plaintiff s case. I must acknowledge the insightful help of Elden Rosenthal, who critiqued my thoughts, and Joe Franco, who took time out while on a basketball road trip to watch the Portland State University Vikings play the University of Northern Colorado Bears in Greeley, Colorado, on January 16, to assist me with this project.

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49 Chapter 4A My Approach to Witness Preparation for Mediation My approach to preparing witnesses for mediation is somewhat unorthodox. While most lawyers seek to insulate their clients from most of the litigation process including mediation I do not. To me, to be client-oriented is to be result-oriented. When you re too protective of your clients, you hurt them, even though in your gut you feel it s the right thing to do. Prior to mediation, I have my clients read chapter 89 from Jim McElhaney s Trial Notebook, 4th Edition, at page763, entitled Settlement The Walrus Factor. As McElhaney says, we all dance and prance in a ritual pseudo-fight that helps us decide who would win if we were to fight, which we re not. The actual fight is too expensive and ugly for everyone, so it rarely happens. We decide who will win by assessing each other s performance during this pretrial ritual. The idea asserted by McElhaney that we, the lawyers, are like a bunch of walruses posturing during mediation underscores the importance of this ritual and puts my clients at ease as we do the tough work of preparing them. Prepare your clients for mediation as you would prepare them for an aggressive deposition. Don t try to shelter them, prepare them. When you protect your clients, you externally message that they re weak and don t have the ability or will to actually try the case to a jury. This certainly won t create risk or exposure in the minds of an astute defense counsel and insurance carrier. By protecting instead of preparing, you re often unwittingly acting out your own unconscious feelings of countertransference. I ve spent my career representing emotionally and psychologically injured people. I m keenly aware of the reality that, in a twisted way, defendants are actually rewarded when they injure plaintiffs so badly that they don t later have the capacity to go to court. Of course, rarely does anyone want to go to court, but here I m talking about something different, and that s the capacity. In other words, the more emotionally damaged your client is, the less capacity the plaintiff has to endure the rigors of trial. It s a common and cruel irony I ve witness during my career. I prepare all of my clients to clearly transmit at mediation a number of messages: (1) they believe in the jury system, (2) they re ready, willing, and able to go to court, and (3) they re not frightened of any delays or appeals. These three messages generate the maximum present risk and, thus, settlement value. In some cases, I even go so far as to hire excellent mediators to prepare my clients for mediation. It s not that I can t prepare them myself, and do it well, but sometimes a few hours spent with someone else can be just the right medicine and a real confidence booster. Besides, nobody ever tries anything anymore, so the pregame warm-ups are now the game. Later, during the actual mediation, I m sometimes even comfortable leaving the room and letting the mediator have at it with my clients. Heresy? Abdication? I think not. This is all cleared with my clients ahead of time. They re well prepared and know how to stay on message. No, I don t abandon them; everything is part of a plan with the clients consent. What it shows is just how strong my clients are, or at least appear to be! That s preparation, not protection. That s risk and exposure to the wrongdoer and, thus, money for my client! Protecting your clients definitely addresses your need to be a life raft, but it backfires because, from a plaintiff s perspective, not only do you generate less money, you unwittingly increase the likelihood your clients will actually have to go to court! And this is your idea of protecting your client? Really, stop and think about it for a minute.... At the deepest levels, your behavior isn t about what s best for your clients, although that s certainly what you shout and, yes, violently believe. Most lawyers rationalize this kind of humanistic and protective behavior without much serious introspection. That s your choice; you re the lawyer; you re the professional. However, once you stop making the case about you and your emotional needs, then you can start doing your job right. Be smart. Don t shelter your clients; prepare them, and, thus, in the long run you actually end up protecting them more. 20th Annual Litigation Institute & Retreat 4A 1

50 Chapter 4A My Approach to Witness Preparation for Mediation Don t shoot the messenger for the message. I want you to think about this whole idea of the power of your subconscious counter-transference needs expressed in your desire to protect your clients shrouded in a veneer of ethical indignation. Can I do this with every client? Of course not, but I sure try. If client affirmation and personal empowerment are desirable goals, then effective preparation and big money results are its ultimate expression. 20th Annual Litigation Institute & Retreat 4A 2

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53 Chapter 4B Bibliography and Summaries of Resources for Preparing a Witness Chris Kitchel Stoel Rives LLP Portland, Oregon Contents Articles B 1 Books B 1 DVDs B 2

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55 Chapter 4B Bibliography and Summaries of Resources for Preparing a Witness Articles F Acklin, Major Douglas E., Witness Preparation: Beyond the Woodshed, 27 AF L Rev 21 (1987). F Applegate, John S., Witness Preparation, 68 Tex L Rev 277 (1989). Tips for preparing a variety of witnesses as well as some of the ethical issues a lawyer must consider with preparation. F Boccaccini, Marcus T., What Do We Really Know About Witness Preparation? Behav Sci Law 20: (2002). Article reviews the psychological literature pertaining to witness preparation. F Cohen, Ronald Jay, Powerful Witness Preparation, 27 Litig 1 (Fall 2000). Twenty rules for preparing a witness. F James, Katherine, Making Your Client a Stellar Witness: A Step by Step Guide to Deposition Witness Preparation, American Association for Justice, Professional Negligence Section Newsletter (Winter/Spring 2011). Ten steps for preparing a witness, either inexperienced or experienced, to testify. F Kerper, Janeen, Preparing a Witness for Deposition, 24 Litig 11 (Summer 1998). F Kerrigan, Patricia J., Witness Preparation, 30 Tex Tech L Rev 1367 (1999). The thorough and proper preparation of a witness to testify under oath is the most important task a lawyer will undertake. Successful trial attorneys prepare their witnesses in a manner that enables the witness to clearly explain the facts on direct and cross examination and provide credible and accurate testimony. F Lewis, Elaine, Common Witness Misperceptions (and Things Witnesses Don t Tell Their Lawyers), 31 Litig 25 (Winter 2005). The mundane role of a witness can be hard to swallow for those who enjoy the dramatic lawyer-witness exchanges on television. The examination process should be explained to and practiced with the witness. Lewis shows how to properly prepare a witness to be ready for the real thing. F Summit, Stuart A., The Witness Needs Help, 3 Litig 14 ( ). Preparing the witness for both phases of civil litigation: oral deposition and at trial. F Suplee, Dennis R., and Donaldson, Diana S., Reconstructing Reality: Preparing the Deponent to Testify, 15 Litig 19 (Fall 1988). Rules for preparing a witness to tell a coherent, credible story in a way that does not compromise his or her view of the truth but still helps the attorney s case. F Zacharias, Fred C., and Martin, Shaun, Coaching Witnesses, 87 Ky LJ 1001 (1999). Books F Aron, Roberto, and Rosner, Jonathan L., How to Prepare Witnesses for Trial (Shepard s/ McGraw-Hill, 1985). F Rosner, Jonathon L., Preparing Witnesses (Trial Practice Series) (West Publishing, 3d ed ). This work allows the attorney to draw on the author s expertise to elicit evidence most favorable to his or her clients, whether on direct, on cross, or in deposition. All types of witnesses are considered. The authors provide guidelines that will help the attorney categorize witnesses as to temperament and then adjust the attorney s tactics to match. F Small, Daniel I., Preparing Witnesses: A Practical Guide for Lawyers and Their Clients (American Bar Association, 3d ed 2009). ABA author Daniel Small has written a detailed process of witness preparation. Parts of it are written as if speaking to a client, because learning how to best communicate these ideas is often as important as the ideas themselves. With a focus on the similarities among real-world depositions, Preparing Witnesses provides strategies to make a witness comfortable and effective in the courtroom. F Weinlein, Craig W., The Art of Witness Preparation: How to Prepare Your Witness to Testify Effectively at Civil Trials, Hearings, and Depositions (West Publishing, 2012). This book focuses on the witness s performance in the courtroom, instead of the lawyer s, addressing an often-neglected angle Program Title 4B 1

56 Chapter 4B Bibliography and Summaries of Resources for Preparing a Witness for the civil trial attorney. The author divides witness preparation into seven distinct parts: (1) the witness interview; (2) explaining deposition procedures; (3) explaining trial and hearing procedures; (4) preparing the witness for cross-examination; (5) preparing the witness for direct examination; (6) discussing witness appearance and demeanor; and (7) role playing and practice. DVDs F Preparation for Deposition in a Business Case (LexisNexis Publishing, 2011). Proper preparation of the client prior to a deposition can prevent mistakes that can cost the attorney the trial or hurt his or her settlement. This new DVD helps attorneys prepare their clients for the often stressful experience of deposition. Save time by using this billable tool to prepare clients. F Preparing the Witness for a Deposition (Knowles Publishing). This DVD and study guide are offered as an instructional tool for the witness who is about to be involved in the deposition process. It defines the deposition process in simple, sobering language emphasizing the formality and importance of the experience. Instructions prepare the witness regarding appearance and behavior and how to avoid elementary pitfalls. F Spat, Jan M., Witness Preparation DVD Package (American Bar Association, 2d ed 2012). This two-dvd set contains one DVD focused exclusively on preparing witnesses for a deposition and another for preparing witnesses for trial. Program Title 4B 2

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59 Chapter 5 The Eight Keys to the Art of Persuasion 1 The Honorable Mark Drummond Circuit Court, Eighth Judicial Circuit of Illinois Quincy, Illinois Contents I. Primacy: First Impressions Are Golden A. A Story B. First Impressions C. Opportunities to Make a Good First Impression Before Trial: The Other 95% D. Jury Selection Checklist E. Making a Good First Impression with the Judge: A Top Ten List II. Opening Statement A. Opening Statement Checklist B. Objections to Openings III. Direct Examination A. Direct Examination Checklist B. Objections to Questions C. Objections to Answers D. Direct Examination of Experts E. What If They Forget? F. Redirect Examination G. What If They Lie? IV. Cross-Examination A. Cross-Examination Checklist B. The Three Cs of Impeachment by Prior Inconsistent Statement C. Inconsistent Statement Checklist D. Cross-Examination of Experts V. Closing Argument A. Closing Argument Checklist B. Common Closing Objections VI. Emphasize the Receiver VII. Remembered Facts Alone Persuade The Hierarchy of Attention in a Courtroom VIII. Simplify Do a Thoreau A. Understand the Power of Notebooks B. Address See Gettysburg IX. Delivery X. Emphas(eyes)/Visual(eyes) the Story Appendix Presentation Slides Copyright 2009 Mark A. Drummond.

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61 A. a Story Chapter 5 The Eight Keys to the Art of Persuasion I. Primacy: First Impressions Are Golden It was a relatively routine motion hearing except that the clients were there. The players were an older attorney with a few decades of experience and a younger attorney with a few years of experience. I will call them Mr. Bluster and Ms. Novice. Since it was Mr. Bluster s motion, he went first, then sat down. Ms. Novice was only a few minutes into her reply when Mr. Bluster rose and exclaimed, Your honor, that s not the way... blah, blah, blah.... Now several things could have happened at that point. Ms. Novice could have turned to him and said, Don t interrupt me! or she could have more properly said, Your honor, would you ask that Mr. Bluster not interrupt me. A third option would have been for me to interject myself and tell Mr. Bluster to sit down an option which I never take; why? I prefer to see these human dramas play out. I did not anticipate the fourth option. Ms. Novice simply sat down until Mr. Bluster exhausted his interruption. When she sat down, several things occurred. Mr. Bluster s client had a somewhat selfsatisfied smirk on his face, and her client was staring at her wondering why she was allowing this to go on. Then, she simply rose and, in a quiet yet measured tone, said, Your honor, I gave Mr. Bluster the courtesy of not interrupting his argument, and I was wondering if he would extend me the same courtesy. Several things occurred at this point. She had handled this so elegantly that Mr. Bluster s client was now giving him a rather dissatisfied look, her own client was looking at her as if she had aged 20 years, and I had gained a newfound respect for this young attorney. That is making a good first impression. That is persuasion. B. First Impressions The old saying is true: You never have a second chance to make a good first impression. Although judges and juries are supposed to wait until all of the evidence is in, we know that judgments are being made of our witnesses and us at every moment during the trial. A recent Chicago Tribune article had this quote with regard to job interviews: The interviewer makes an immediate overall judgment about you within the first five seconds, and the next twenty-five seconds are spent checking the chemistry and verifying the initial impression. 1 We all know this is true. Only around 5% of cases that are filed actually reach trial. However, much time is spent on trial training. What about the other 95%? How can we make a good first impression before trial? In training trial lawyers, I have urged them to look at each and every stage of litigation as an opportunity for persuasion. The trial lawyer is being evaluated by the other side and his or her own client at motion hearings, depositions, mediations, and arbitrations. Like Ms. Novice in the story above, the other side is constantly assessing (1) whether or not you are willing to go to trial and (2) whether you would be any good it. In light of this, I urge the young lawyers to try to front-end load persuasion. When I started out as a trial attorney, the old saw was that you never wanted to reveal anything to the other side unless they asked for it. Evidently, the strategy was that if you didn t have to reveal these golden nuggets of evidence, this would surprise your opponents at trial, they would be caught off-guard, they would be reeling, and your client would carry you triumphantly out of the courtroom on his or her shoulders. Does that ever happen? Perhaps, on occasion. Any experienced trial lawyer will tell you that this rarely happens. A new trend in litigation advocates early and full disclosure. In the Trial Notebook article of the Chicago Daily Law Bulletin on January 31, 2003, Steven P. Garmisa reviewed an article in the American 1 Make every second count in an interview, Chicago Tribune, YourJob column by Carol Klieman quoting from 101 Great Answers to the Toughest Job Search Problems, by Ollie Stevenson, Carver Press. 20th Annual Litigation Institute & Retreat 5 1

62 Journal of Trial Advocacy entitled Rethinking Deposition Defense: The Case for Strategic Disclosure, 26 American Journal of Trial Advocacy 13 (2002). 2 In this article, Professor Steven Lubet of the Northwestern University Law School makes the case for early disclosure. Instead of counseling witnesses to give short and unrevealing answers, Lubet argues that you should showcase your witnesses to show the strength of your case. Since 95% or more of the cases settle, this seems like sound strategy. I believe clients are becoming more sophisticated and are increasingly frustrated at counsel who constantly pump them up on what a good case they have only to tell them that they really ought to start thinking about settlement once they hit the courthouse steps. You know those attorneys the ones who talk a good game but always settle. All of the techniques we review today can be used before trial. Your skill at questioning will be evaluated at depositions, your skill at arguing will be evaluated at motion hearings. Do not save it for trial. Front-end load persuasion. C. Opportunities to Make a Good First Impression Before Trial: The Other 95% F First conversation with opposing counsel. F First meeting with opposing party. F Depositions. F Scheduling conferences. F Motions. F Mediation and arbitrations. D. Jury Selection Checklist F Check questionnaire in clerk s office. F Learn names before trial. F Get name right immediately. F Stand up and look them in the eye. F Remember equality in questioning. F Get rid of the rogue juror by consent. F Corralling the rogue juror. F Don t oversell your case they cannot buy damages without knowing liability. F We excuse Mr. or Ms. with our thanks. F The best way to excuse Let the judge do it. F Stereotypes. F The First Twelve People Not Directly Related to the Party Theory. F Get organized. F Conspiring with your client. F How to handle the embarrassing stuff Let the judge ask or go into chambers. F The Extreme Question and its use. F Go over case-breakers the bad stuff better come out of your mouth first. F Remember they have not had to raise their hands since third grade. 2 An abridged version is in the ABA publication Litigation, Winter 2003, Volume 29, No th Annual Litigation Institute & Retreat 5 2

63 F F Chapter 5 The Eight Keys to the Art of Persuasion Is there anything you feel you need to tell me before I pick you as a juror? After selection I wanted them to like me after opening I wanted them to like my case. E. Making a Good First Impression with the Judge: A Top Ten List Before I launch into this I want you to know that as a trial lawyer I violated most of these rules sometimes in the same trial! But after trying cases for twenty years, and being a trial judge for six, I think I can reduce what judges want down to a top ten list. 1. We Want the Exhibit. Since judges are individuals, each has idiosyncrasies. There are some judges that have so many idiosyncrasies they feel it necessary to have written rules for the lawyers to follow in their courtroom. Although the lawyers in my court may tell you something different, I believe I have only one idiosyncrasy, and here it is: I WANT THE EXHIBIT! I WANT TO SEE THE EXHIBIT AT THE SAME TIME THE LAWYER IS QUESTIONING THE WITNESS ON THE EXHIBIT! I applaud attorneys who are trying to save our natural resources, but nothing frustrates me more than what I call the one-exhibit trial. What usually happens is the lawyer has only one exhibit and gives it to the witness. A direct examination is then conducted over the right shoulder of the witness while the other lawyer is standing over the left shoulder to see what they are talking about. The following is an actual exchange that occurred the other day in court: Lawyer 1: Would you read that line of the contract for the court. (Witness reads) Lawyer 2: Objection, your honor, rule of completeness. Me: May I see the exhibit? Lawyer 1: No Me: Why not? Lawyer 1: I have not introduced it into evidence. Me (slightly exasperated): Yes, but I m the one who admits it into evidence. Lawyer 1: Oh. Did I mention this was a bench trial? I don t know how many times a lawyer has been examining a witness concerning a multi-part contract, a tax return, or a line item budget without me having a benefit of a copy. Even if the judge in a former life was a stenographic court reporter, it is simply much easier to follow along with the exhibit in front of him or her. If you give the judge a courtesy copy, you are more likely to get the correct result for your client in the shortest period of time. I, and many of my fellow judges, keep various colored highlighters and sticky notes on our bench to mark the courtesy copy of the exhibit. For example, I may highlight income in green and deductions in yellow on a tax return. I write questions I want to ask on the exhibit next to the relevant part of the exhibit. There is nothing more frustrating for a judge than not being able to see what everybody else sees in the courtroom. 2. We Want the Law. What is the shortest distance between the doors of your law school and earning the respect of judges? Following Model Rule of Professional Conduct 3.3(a)(2). The rule is: A lawyer shall not knowingly fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. In fact, I tell new attorneys to take the words directly adverse and change them to arguably adverse. Why? There is nothing more impressive than the advocate who comes into court and says, for example, Your honor, this is our position. However, there are three cases that are arguably against 20th Annual Litigation Institute & Retreat 5 3

64 us. We have cited those to you, but we believe two of those cases are distinguishable on their facts and one is just bad law. We also have two cases in our favor.... Judges learn very quickly upon whom they can rely to tell them the current state of the law. Citing contrary authority builds your reputation as an ethical advocate. For judges who may be dealing with hundreds of files covering myriad legal issues, there is nothing more powerful than being known as the advocate that a judge can always count on for accurate statements as to the law. There is also a persuasive power to citing contrary authority. It appears that you are less concerned about it when you admit its existence and it is even more devastating for the other side when you cite cases that are against you that they have not found. No less an advocate than Cicero said that the perfect advocate is one who could argue both sides of any case. 3. We Want Objections That Matter. Judges become frustrated with what I will call sport objections. A sport objection is an objection made merely for the sport of it. The other day we were at the end of a trial that had to be continued. One of the parties had not shown up in court, and I asked the representative of an agency the efforts that had been made to notify the party. The representative started to tell me that the party who was in court had told her that she had called the other party to advise him of the date. There was a hearsay objection. Now the fact that this attorney s client had tried to notify the party of the hearing date didn t make a hill of beans worth of difference to his client s case. Actually the fact that she took the time and effort to try to call the other party put her in a better light. The opportunity to object does not translate into actually objecting. Every so often an objection actually hurts your case. In this case the lawyer who objected wanted the party to be making more money and this exchange occurred: Lawyer 1: Now, do you have any chance to move up in the organization? (From his vocal intonation, he is assuming the answer is going to be No. ) Witness: Yes, they told me.... Lawyer 2: Objection hearsay! Me: I would sustain that objection, but the bigger question is why would you object since she started with yes. Lawyer 2: Objection withdrawn. Witness: Yes, they told me I would be in line for the manager s job which ranges from $40,000 to $60,000 per year (a factor of two to three times what she was currently earning). These are knee-jerk objections. Anytime they hear the word said, they make a hearsay objection without asking first Will this hurt me? or Will this help me? or Does this matter? 4. We Want Good Jury Instructions. Lawyers work more hours than judges. Any judge who disagrees is either a rare exception or did not work many hours as an attorney. Therefore, I always try to accommodate the attorneys schedules and try to save attorneys time. However, there is one group of people whose time I place above the attorneys. I value the jurors time more than the attorneys time. Nothing frustrates a judge more than having the jurors twiddle their thumbs while we try to craft a usable set of jury instructions. Ninety percent of the jury instructions should be completed before trial and given to the judge. Alternate instructions based upon how the evidence may shake out should be typed and ready to go for the instruction conference. If you don t do many jury trials, ask someone who has, such as a state s attorney, how to do this. They ll know what I mean. 5. We Want You to Know Us. Most know the Greek maxim, Know thyself. Experienced trial attorneys will tell you Know thy judge. As I said before, I would like to think that I have only 20th Annual Litigation Institute & Retreat 5 4

65 the one-exhibit trial pet peeve. However, I know many judges who have more than one pet peeve. I know, you re shocked! How do you ethically find out about the judge? Here are some suggestions. a. Call the Judge. I have no problem with an out-of- town attorney calling me and asking about procedure in my courtroom. b. Call the Judge s Clerk. If you feel uncomfortable contacting the judge directly or you know that a particular judge does not want to talk to any attorney without the other attorney being there, even on matters of procedure. Many judges clerks or secretaries know the procedure. c. ask for the Written Rules. Many judges have a list of the procedures they like in their courtroom available to the attorneys. d. Call Another Attorney Who Has Tried a Case in Front of That Judge. Start off the conversation with, Hey, I heard you got a good result in the Smith case and after the attorney talks for about 15 minutes, you can say, Tell me about Judge Jones. 6. We Want to Be Affirmed on Appeal. For the most part, our biggest fear is having a jury trial overturned and having to do it all over again. In a perfect world, every judge would have a law professor s encyclopedic knowledge on the particular area of the law. Some judges do become specialists and have the luxury of knowing everything there is to know about a certain narrow area of the law. However, most of us rotate assignments and, especially in rural counties, the jury trials may be few and far between. I can remember as a practicing attorney a judge thanking me for taking a civil case to jury trial. He had been a judge for eight years in that county and had never heard one civil jury trial case! If you are taking a jury case to trial, you have probably lived with that case for up to a year or more. Probably the only person in the courtroom who knows as much about the case as you do is opposing counsel. We judges sometimes do not track on why a particular piece of evidence is relevant, and we need time to either digest your argument or have some law on the point. What do you do? Make liberal use of offers of proof, and don t be afraid to ask me to reconsider a previous ruling during a break in the jury trial. An offer of proof made outside the presence of the jury preserves the issue for appeal and also gives me more time to think about it without the pressure of 24 eyes staring at me expecting a split-second decision. I may need time to do some quick research on the law or a particular evidentiary point during the break. Don t assume objection sustained! is the end of it. I don t want to have to do this again, and if you are an attorney that I can trust on issues of law or evidence, I will always give you a second chance. 7. We Want Civility. I once told a young attorney during a trial training course, You can t treat every witness as if they were born on this earth for the sole purpose of messing with your case. Some attorneys just can t help themselves and really emphasize the word cross in cross-examination. On a couple of occasions when I was practicing, I lost clients to attorneys who the clients thought were more aggressive. I know that the aggressive attorneys may give the clients a certain dose of psychic gratification, especially in divorce cases, by the use of aggressive tactics. But I can tell you as a judge, and from juror feedback questionnaires, that the people who decide the cases do not appreciate posturing or, put another way, the show simply to show off for the client. The question the attorney must ask is whether aggression is persuasive. An example to illustrate my point: the attorney wants to show that the witness (plaintiff) did not seek medical treatment after the accident. The aggressive attorney would do something like this: Attorney: After the accident, you didn t ask for an ambulance. Witness: Well I didn t feel hurt at that time Attorney (loud and dripping with sarcasm): Ms. Smith, I didn t ask you how you felt, I 20th Annual Litigation Institute & Retreat 5 5

66 asked whether you asked for an ambulance, yes or no, now can you answer that? The contrast is for the attorney to simply repeat the question slower and softer until the attorney gets the answer he or she wants. Attorney: You didn t ask for an ambulance. Witnesses: Well, I didn t feel hurt at that time. Attorney (softer): You didn t ask for an ambulance. Witness: Well, like I said, I didn t feel hurt at the time. Attorney (even softer and slower): You didn t ask for an ambulance. Witness: No. By simply repeating the simple question to which the attorney is entitled to a yes or no answer, the jury is soon sitting there siding with the attorney and looking at the witness screaming in their minds, OH, JUST ANSWER THE QUESTION! The longer it takes the witnesses to answer this simple question, the better it is for the attorney. The attorney who uses the nonaggressive technique of repetition shows the jury how the witness is avoiding the question. Attorneys must realize that naked aggression, for the most part, is solely for the gratification of themselves or their client. It rarely persuades the people who count. 8. We Want a Trial Notebook. I have already talked about having the exhibit in front of me. If you really want to impress us make a trial notebook. The trial notebook system is this: Four notebooks; one each for you, opposing counsel, the witness, and the judge. The original exhibits are in the witness s trial notebook. At the front of the trial notebook there can be various items that are useful to the judge. Many of my trial notebooks included the following. F A chronology of the case. F A list of witnesses involved in the case including their titles, if applicable. F A combined request to admit facts and the response to that request. F Cites to the applicable statutory or case law. F Proposed judgment: on paper and computer disk. In my trial notebook I would include my opponent s exhibits. Many times my opponents would tell me that we could just use my trial notebook, since it had all of the exhibits. What tactical advantage is this? It allowed me to put the exhibits in the order that I wanted the judge to see them. I am not sure this is any great tactical advantage, but in a case going to trial, which, by definition, should be a close call, you should probably seek any advantage. The trial notebook system eliminates the exhibit dance in the courtroom. It eliminates the attorney having to ask permission to approach the witness, state for the record that he or she is now showing the exhibit to opposing counsel, and going back to his or her chair. It becomes simply, Would you please turn to Exhibit 24, and everyone turns the page. It is so elegant. It is so surgical. It is so persuasive. 9. We Want the Judgment. You might want to ask the judge, with opposing counsel present, whether or not the judge would like the judgment you proposed on a computer disk that the judge could alter as he or she sees fit. I heard of one judge who took this to the extreme. He would have both attorneys prepare a judgment, and he would sign whichever one he agreed with no additions, no corrections, no deletions or so legend has it. There is certainly nothing improper saying to the judge at the end of your closing argument, Your honor, this is our position in the case, and for your convenience I have drafted an order citing the underlying law we believe is applicable, with certain findings of fact and reflecting a judgment based upon our argument on this computer disk, and I will 20th Annual Litigation Institute & Retreat 5 6

67 also give a copy to counsel. If judges practice in a particular area for any length of time, they probably have a skeleton form on their computer that they use all the time. However, if you are in front of a judge who deals with varied cases, or is on special assignment, providing a copy of a proposed judgment on a computer disk, which he or she can change, is a real help. 10. We Want to Talk About the Cases. The problem is that we can t. In some of the counties in our circuit, there is only one judge. It must be lonely. I have the benefit of being able to talk about cases to six other judges in my courthouse. We would really love to be able to talk to the attorneys about the cases, but it becomes a slippery slope. The only time we could possibly talk to the attorneys is after any appeals have been exhausted, yet we are still concerned about post-judgment matters. Most of us loved being trial attorneys, and not being able to talk to attorneys about particular cases, particular witnesses, or particular strategies is the biggest loss for us in taking the bench. So after we retire, regale us with stories. Until then, we former trial lawyers must live vicariously. Good luck. II. Opening Statement The communication experts tell us of the doctrines of primacy and recency. People remember the first words out of your mouth and the last words out of your mouth. However, what we usually see even experienced counsel do is append an introduction onto each opening statement, which does nothing to advance the case. The usual platitudes we hear are phrases such as, Ladies and gentlemen, the purpose of an opening statement is kind of like a road map..., or, An opening statement is kind of like a picture puzzle..., or, An opening statement is kind of like a table of contents of a book.... Counsel will then spend a minute or two explaining to the jury what an opening statement is before giving the actual opening. The problem with this approach is that when you stand before the jury, it is the only time you are guaranteed to have the attention of all 12 people. To tell them what you are going to do before you do it, and usually on the heels of the judge already telling them what an opening statement is, results in lost attention. If you don t believe me, believe Abraham Lincoln. At Gettsyburg he didn t stand up and say, Hey, what a great crowd. I m going to dedicate this graveyard here, and I ve jotted down a few notes on the back of this envelope. No, the first words out of Lincoln s mouth were, Fourscore and seven years ago. If you don t believe me, believe Martin Luther King. He didn t stand at the Lincoln Memorial and say, Hey, what a great crowd. I am here to give a speech on equality. No, the first words out of King s mouth echoed Lincoln, Five score years ago. Why do we do this? In surveys of what Americans fear the most, public speaking ranks as number one. Death usually comes in at about five, and snakes are usually number two. Communication experts tell us that an interesting phenomenon occurs when a person rises to give a speech. For the first 60 to 90 seconds, heart rates is close to two hundred beats per minute. After the first 60 to 90 seconds, the heart rate goes almost down to resting rate. The adrenal glands are stupid glands. They cannot tell the difference between a tiger in the jungle versus an audience in their seats. In both cases, they inject adrenaline into the body, which goes into the large muscles of the legs (the fight or flight syndrome), the heart, and the lungs. This is why attorneys tend to rely on a one- or two-minute beginning they have down pat, which they attach to each opening statement. The better approach is to have the first one or two minutes of your actual opening statement down pat. This will give your body enough time to calm down. If you insist on starting with a stock platitude, you lose the entire benefit of the doctrine of primacy. A. Opening Statement Checklist F Eliminate the platitudes know why you do it. 20th Annual Litigation Institute & Retreat 5 7

68 F F Chapter 5 The Eight Keys to the Art of Persuasion Memorize the first two minutes. Begin with impact perhaps your theme. F Facts, facts, facts persuade marshal the facts in a persuasive manner so they reach the same conclusion. F The ownership of ideas. F Don t argue bulletproof your opening. F What it the other side argues? a strategy discussion. F Use the storytelling device. F Create visuals with words or actual visuals. B. Objections to Openings F Argument. F Personal opinion. F Arguing law or the instructions. F Stating inadmissible evidence. III. Direct Examination In Aristotle s The Art of Rhetoric, much is made of the person s character being a key to persuasion. Simply put, I must know you before I believe you. Ralph Waldo Emerson said, Who you are speaks so loudly, I cannot hear what you re saying. What guidance does this give us for making a good first impression on direct examination? What it means is that we must give the trier of fact enough background about the person for them to be believed. Simply stated, the better you can tie the witness to the trier of fact and to the case, the more the witness will be believed. What do I mean by tying the witness to the trier of fact? You already know something about the background of the witness or the judge. Look for details in the witness s background that may help his or her believability. For example, you may want to consider whether your jurors will place more stock in the testimony of a local doctor as opposed to an expert from hundreds of miles away. If that is the case, you might want to bring out the doctor s background in terms of how many years he or she has practiced in the community or at the local hospital. If your witness has a military background, that may carry additional weight with some jurors. After making as many connections as possible between the witness and the trier of fact, you want to make a good first impression with the clarity of your direct examination. Some counsel begin with a simple question such as, Miss Jones, where were you at about 3 o clock in the afternoon on August 17, 1996? The witness responds with an answer such as, I was standing at the corner of 12th and Broadway..., or, I was working at the emergency room at Blessing Hospital.... This lets the jurors in on whether this person is an occurrence witness, an expert witness, or perhaps both. Experienced counsel will make good use of the technique of headlining so that the jury can easily follow the flow of the direct examination. A headline such as, Now, Miss Jones, before going into what happened at that corner on that day, I would like to ask you some questions about your background.... Ninety-eight percent of the time counsel will take the witness on a chronological recitation of the events. However, there are cases where counsel may wish to begin with impact. For example, if defense counsel in a criminal case decides that the defendant should take the stand, many choose to start off with a direct denial of the crime before going into the events of that day. 20th Annual Litigation Institute & Retreat 5 8

69 Similarly, sometimes what happened after the main event is more relevant than the event itself. For example, counsel could ask the witness to introduce himself to the jury and headline by stating, Now, Mr. Smith, I want to start off by asking you some questions about what happened after the accident. The examination will go something like this: Counsel: Tell us what was the first thing you did after the accident. Witness: I ran over to the other car. Counsel: Why did you do that? Witness: Because I wanted to see if he was all right. Counsel: When you got there, what did you do? Witness: I asked him, Are you okay? Counsel: What did he say? Witness: He said, Yes, I think so, I m sorry, I didn t see you coming. In this example, what happened after the accident is so important that the attorney wishes to highlight it at the beginning. The admission that the plaintiff thought he was all right, that he was sorry about the accident, and that he didn t see the other person coming is just too good to wait until the end of a chronological approach to this examination. A. Direct Examination Checklist F Plan your direct Know how you are going to start and finish. F The beginning: impact, background, chronologically, reverse chronology. F Use headlines to help us follow along. F Set the scene ACTION then the why. F Eliminate legalese. F Look to have the witness do something. F The jury pays as much attention to the witness as you do. F The witness will tend to mirror you. F Your eyes are their lifeline. F Useful memory devices stealth notes, or create a visual in your own home. F Don t lead. F Consider a soft cross built into the direct especially with experts. F Use the building blocks: WHO, WHAT, WHERE, WHEN, WHY, HOW, SHOW US, DESCRIBE, EXPLAIN. B. Objections to Questions F Irrelevant. F Repetitive. F Hearsay. F Calls for an opinion. F Compound. F Assumes or misstates a fact not in evidence. F Calls for a narrative. 20th Annual Litigation Institute & Retreat 5 9

70 F F F F Argumentative. Leading. Ambiguous. Asked and answered. C. Objections to Answers F F F F F F F F Volunteered Nonresponsive Narrative Beyond the scope Opinion Irrelevant Hearsay Conclusion D. Direct Examination of Experts Chapter 5 The Eight Keys to the Art of Persuasion I believe there are two hurdles to expert testimony. The first hurdle is for you to convince the jury that your expert is simply a better expert than the other expert. The second hurdle is for the jury to actually understand the medicine, the science, or the engineering behind the opinion. I must admit in some of my cases perhaps I only got over the first hurdle. The jurors may not have been totally educated so that they fully understood the science behind that opinion, but they knew which expert they wanted to follow simply because the expert s background was better or more relevant to the case or the expert was simply better at communicating his or her position. 1. You and Your Expert. Be the teacher. 2. Remember Salami. Expert testimony is like salami: it is most appetizing served very thinly. 3. Give Your Advocates the Tools. They must be comfortable with the exhibits and be able to find the exhibits to show the others when they go back to the jury room. 4. Visual(Eyes) Your Evidence. 5. Never, Never, Never Say to an Expert. Would you tell or explain that to the jury... (because as you and I both know we have nearly a decade of post high school education and we know what we re talking about). No the phrase is always, Doctor or Professor, tell us.... After all, we are in this together. 6. use the Formula. a. the Introduction. Doctor, would you introduce yourself to the jury. b. the Teaser. Doctor, are you here today to testify to a reasonable degree of medical certainty (or whatever magic words apply in your jurisdiction) as to...? He or she says, Yes. You say, Doctor, before getting to your opinion, I would like to ask you about your:... c. Qualifications Remember to Feign Interest! If you go through qualification as some rote exercise before you get to the meat of the opinion, the jurors will stop listening. As stated before, there are two hurdles to expert direct. The first is that the jury decides whether due to training, education, or experience, or through the use of plain language and visuals, that your expert is more of an expert than the other expert. This is where qualifications are so important. Tie the expert as much as you can to both 20th Annual Litigation Institute & Retreat 5 10

71 the facts of the case and the jury. Your local expert may have an advantage over some hired gun from out of town. Your second hurdle is for the jurors to actually understand the medicine, the chemistry, the physics, the math, or what have you. d. tender If Required. From here on down, you can mix up the order depending on what s best: F Opinion, F Basis, F Source of information, F Where you differ and why. e. anticipate Cross. E. What If They Forget? 1. Refresh Recollection. F Have you forgotten? F Would anything refresh your recollection? F Mark it remember other side can see it. F Hand it to witness to review. F Has your recollection been refreshed? or, After looking at that, do you now remember? F Take back whatever you used to refresh. F Ask the question. 2. Past Recollection Recorded. F They forgot and nothing can refresh recollection. F Would you have recorded these events? F Mark exhibit other side can see it. F Did you make this, or was it made at your direction? F When made, were the events fresh in your mind? F Why do you keep these documents? What is the purpose in having these records? F How do you make sure they are correct? F Know your local/state rules on reading it to the jury or admitting it as an exhibit. 3. Lead. 4. ask Permission to Lead. 5. take a Break. But know your rules on questions regarding what happened during the break. F. Redirect Examination F Limited to the cross. F Have them explain the why. F Prior consistent statements if they have been impeached. 20th Annual Litigation Institute & Retreat 5 11

72 G. What If They Lie? Chapter 5 The Eight Keys to the Art of Persuasion Model Rule 3.3 A lawyer must not knowingly offer evidence that the lawyer knows to be false. If offered and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures. IV. Cross-Examination In Hamlet, Shakespeare wrote, Fit the word to the action, the action to the word. The same goes for cross-examination. Fit the witness to the cross, the cross to the witness. My approach when I tried cases was to get the jury to think I was the nicest person in the courtroom. I have received contrary views to this approach. I once had an attorney from Brooklyn tell me that he could not take this approach on cross-examination where he practiced. He said that unless you gave the jurors the show, they did not believe the witness had been truly cross-examined. Style differences aside, most will agree with the old saw of constructive first then destructive. In other words, before you try to tear down a witness s version or recollection, you first should extract from that witness all evidence favorable to your case. Cross-examination need not be cross. As with direct-examination, the use of headlines assists the jury. Headlines such as, Now I am going to ask you some questions about what you were doing in the hour before the accident, or, Let s turn to everything you did after the accident... help orient the jury to where you are going. Like opening statement, many attorneys have a desire to start with the easy questions. For example, in the cross-examination of a plaintiff s chiropractor, many attorneys begin with the money bias or plaintiff bias questions. This, of course, is destructive. More experienced counsel will start with questions in tougher areas, many of which are constructive. Experienced counsel will save the easy questions for when the cross-examination goes south or simply save them until the end for a good finish. A. Cross-Examination Checklist F Do you cross at all or do a short cross? F Constructive first. F Add bricks to your case foundation. F Safety know your islands of safety. G Prior testimony. G Deposition. G Statement. G Another witness. F Learn how to ask one-fact leading questions from your islands of safety. F Learn the value of silence. F Remember tennis ball. F Use headlines. F Use best words, know vs. aware. F Get rid of tags and intros. F Be patient enough to use repetition. F Remember, what was not there or what was not done may be as important as what was done. 20th Annual Litigation Institute & Retreat 5 12

73 F Chapter 5 The Eight Keys to the Art of Persuasion Notes need only ending words with impeaching references. F Notes need only ending words and reference to page and line number of island of safety. F Plan where to begin and end. F Witness control devices: G Repetition of the one-fact leading question; G So the answer would be... ; G Move to strike as nonresponsive; G Ask the opposite; G That is not my question, my question is... ; G Yes or no, just yes or no ; G I must not have asked that very well... ; G Let s try this again... ; G Can you answer this question? and then write it on the board; G Ignore it we ll get to that... ; G Hold up your hand; G So the short answer is Yes ; G You re answering more than I m asking ; G Are you done? ; G To use your words... ; G Stare; G Whine; G The red cover method. F Don t end with Otis. B. the Three Cs of Impeachment by Prior Inconsistent Statement 1. Commit them to what they told the jury. I prefer the parental commitment: Did you just tell this jury? 2. Credit the prior statement by establishing it was under oath, signed, closer in time, witnessed, given to a person with authority, corrected, dated, it says, I have read this statement and it is correct, if a deposition that the other attorney was there, the statement had other information that was correct in it, other persons saw you sign it, or the person who made the statement had a duty to put the important stuff in the statement. 3. Confront. C. Inconsistent Statement Checklist F Timing usually constructive first unless the impeachment is really big, i.e., red light vs. green light. F Resist instinct to go for the capillary: I will not impeach on 37 versus 35 mph unless the speed limit is 35 mph or, in other words, 37 mph does not matter if the speed limit is 65 mph. 20th Annual Litigation Institute & Retreat 5 13

74 F Refreshing recollection is another option if you don t want to do a hard impeachment on this particular witness, i.e., the county sheriff who has been reelected eight times by the jurors. F Remember impeachment by omission. F Remember prior inconsistent actions. F Make it visual. F STOP! Once you have confronted the witness, do not let him or her build his/her excuse into your cross. Let the other attorney try to dig him/her out of the hole on redirect. If you ask, Why did you say back then? he or she will tell you and take the wind right out of your sails. D. Cross-Examination of Experts I like to think of the cross-examination of experts like two islands. There is the island of expert opinion, which is a very dangerous island! Then there is the island of everything else, which is not as dangerous. My primary question was whether I was going to go onto the island of expert opinion or let my own expert fight on that island. Unless I could envision me getting the expert to say, you re right, I m wrong, I would tend to let my own expert fight on that island. I know many of you may have cases where the other side has an expert and you do not and have no choice but to go on the island. However, consider how much headway you can make on the island of everything else, which is as follows. F Things Agreed. Experts have common areas on which they all agree-compare their reports to find these areas. F Things Not Done. They can t do everything. If all they did was review records, it is an entire area of cross, i.e., You did not examine Mr. Jones, You didn t even talk with Mr. Jones. F Bias, Interest, or Prejudice. Do they usually work for one side, is most of their income from court, etc. F Source of Information. If it is all from one side, it is an entire area to explore All of your information came from the defendant s attorney. F Learned Treatise. Know the rule in your jurisdiction. Specifically, know whether you can use a learned treatise against the other side s expert if you own expert identifies it as a treatise relied upon by members of that profession. I know an attorney who asks each expert if she can take a picture of his or her bookshelf. I know that just because you own a book, it does not necessarily mean you agree with everything in the book, but this attorney gets the books and sets them on counsel table. Trust me, it works. F Common Sense Questions. These are where the question is more important than the answer. For example, in a slip-and-fall case: Professor, you would agree as we sit in this courtroom there are people slipping and falling all over the world. Now there are only three answers to that question Yes, no, or I don t know. And you would agree, Professor, that sometimes people fall and it is no one s fault but their own. F Qualifications. Especially if your expert has more experience with this type of case or problem or has more ties to the jurors community. F Other Expert. Experts are very wary of criticizing the other expert, especially doctors in small towns. Now, Doctor, you aren t saying Doctor A is a bad doctor, are you? You practice at the same hospital. In fact, you ve referred patients back and forth to each other. F Assumptions. Take the report, take a yellow highlighter and highlight all of the times the expert uses the word assume. They may use it so many times that you could use it as a graphic and count the number of assumptions made. 20th Annual Litigation Institute & Retreat 5 14

75 F Jargon in the Report. Some borderline experts like to use jargon to make themselves sound more important or more scientific. Feed these words back to the expert and then put it in plain language for the jury. This can be fun. V. Closing Argument The platitude that many attorneys like to append onto each closing argument is a long and effusive thank you. They do it for the same reason that they append a platitude onto an opening statement. We thank people all our lives, so it is easy to stand there and thank them for 30 to 60 seconds until our bodies calm down and we can launch into our closing argument. In the cases I tried, I have never had a juror come up to me and say, Mr. Drummond, your evidence was scintillating, your arguments compelling, but what won the case for you was the way you thanked us in closing argument. In terms of primacy and recency, is thanking them really your best point? Don t get me wrong, it is a good idea to thank them, but is there any downside to putting the thank you toward the end? I would put the thank you right before I asked them for what I wanted. It would go something like this: I thank you for your time, I thank you for your attention, I ask that you return a verdict in favor of the defendant. In terms of primacy and recency, lead with your theme and your best argument. Then argue! Why do I say argue? We see a phenomenon in trial training with young attorneys that they will tend to reverse their opening statement and closing argument. They will stand up on opening statement and simply argue why they ought to win. On closing argument, when they have the chance to truly argue, they tend to simply recite the facts of the case such as, You heard from witness A, who told you 1, 2, and 3, you heard from witness B who told you 4, 5, and 6, and so on. In essence, they give an opening statement. You are the experts at argument, so argue. Many of you became attorneys because older people told you while you were growing up, You ought to be an attorney, you re arguing all the time! Since you are the experts in argument, you are giving the amateurs at argument, the jurors, the expert arguments they need with the people who are on the fence or on the other side of the fence. If you were a fly on the wall in the jury room, you would hope to hear your arguments echoing off those walls. A. Closing Argument Checklist F Primacy just as important as on opening. F Bury the thank you. F Use your theme. F Thoughts about personal stories. F Give your fans the tools they need. F ARGUE! F Tell them what to do jury instructions. F Rebuttal prepare for it and against it. F Use visuals. F Rhetorical devices. F The jury instruction you will not see. B. Common Closing Objections F Misstates of law or evidence law always sustained, evidence rarely. F Personal opinion once you hear I believe, it is an easy objection if you want it. 20th Annual Litigation Institute & Retreat 5 15

76 F Per diem too effective. F Golden rule once again, too effective. F Personal attacks. VI. Emphasize the Receiver The communication experts tell us that there are three elements to communication: THE SENDER THE MESSAGE THE RECEIVER What you focus on determines your expertise as a communicator. The amateurs communication concentrates on themselves, the sender. They are so focused on how they are feeling usually scared that they disregard both the message and the receiver. The middle-level communicator concentrates on the message, but the expert communicator concentrates totally on the receiver. I will tell you a miraculous thing happens when you concentrate totally on the receiver. When all I care about is whether the judge or jury is getting my point, I become much less self-conscious. I lose myself in the presentation. By concentrating on the receiver, you will forget about yourself and do a better job of communicating. The expert trial lawyers also try to appeal to the three types of information processors. The brain scientists tells us that there are visual processors, auditory processors, and kinesthetic processors. F Visual Processors. These people prefer to get their information through their eyes. Everyone is a mixture of all three types of processors, but most people are visual processors. They say things like, I see what you mean, that s not clear to me.... F Auditory Processors. These people prefer to hear their information. They say things like, That sounds good to me. F Kinesthetic Processors. These people decide based upon feelings. They say things like, I don t feel right about this. The great trial attorneys try to appeal to all three. For example: Counsel: Did you hear anything when your car hit the tree? Witness: Yes, I heard the bone in my wrist snap. Counsel: When you looked at your wrist, what did you see? Witness: My wrist was at an odd angle. Counsel: How did you feel? Witness: I felt a sharp pain in my wrist that seemed to go to the pit of my stomach. Counsel: Did you taste anything? Witness: Yes, there was blood in my mouth. [So we get a little gustatory, too!] VII. Remembered Facts Alone Persuade The Hierarchy of Attention in a Courtroom I know I am stating the obvious, but unless the judge remember it back in chambers or the jury remembers it in the deliberation room it cannot be effective. I believe that people pay attention to things in a courtroom in this order. 20th Annual Litigation Institute & Retreat 5 16

77 1. Actions. You could be delivering a closing with the power of a Martin Luther King, the phrasing of a Barbara Jordan, and the eloquence of a Winston Churchill, but if the bailiff is picking his nose, you better stop. We all know that a little action in the courtroom can wipe out any words being said. You could have the butcher knife poised over the victim s heart, but if the back door of the courtroom opens, all heads swivel to see who it is and where they are going to sit. 2. Objects. Jurors and judges like the actual thing. They will examine it in great detail. If you have ever seen a chiropractor illustrating whiplash with a plastic human spine, you know what I mean. 3. Pictures. They are truly worth a thousand words, maybe 10,000 in court. 4. Diagrams or Charts. It may take a 1000 words of direct testimony to lay out a street scene. I am constantly drawing my own maps on my notepad. Do us all a favor, get your points with the jury and give us a diagram of the scene. Your effort will be rewarded. 5. Written Word. Lists of who is going to testify, a timeline, etc., can be of great help and will be remembered. 6. the Spoken Word. We graduate from law school and think people hang on our every word. They do not. Witness your own experience in your own homes. Anything in the hierarchy that competes with the spoken word will tend to cancel out the spoken word. If you want jurors to concentrate on what the witness is saying, eliminate all other distractions. VIII. Simplify Do a Thoreau Simplify, simplify, simplify, said Thoreau. As in life, this advice works in the courtroom. I believe juries very quickly pick that side which seems to be able to make a complicated case simple. Here is a checklist of suggestions for simplifying a case. F The case in a nutshell: This is a one-page outline at the front of your trial notebook in a bench trial or a graphic for the jury that gives jurors the uncontested significant events in a simple outline. F A timeline of significant events. F A chart of all witnesses and how they are connected to the case. F A glossary of terms used by the experts. F A diagram of the scene. F Simplify your language you are no less a professional by using the words on the right as opposed to the words on the left: Prior and subsequent Directing your attention to August 5th... Aware or aware of Strike that (you know it s never stricken) Did you have an occasion to find yourself at... Your deposition was taken... (how painful!) Before and after Let s go to August 5th... Know or knew Let me back up or Let me try that again Where were you August 5th at about 9 p.m? You ve been asked questions about this before... You were under oath; your attorney was there... 20th Annual Litigation Institute & Retreat 5 17

78 A. Understand the Power of Notebooks See top ten list for making a good first impression with the judge, point 8, above. B. address See Gettysburg Who was the principal speaker at Gettysburg? It was not Abraham Lincoln. The president was invited as a courtesy. No, the principal speaker at Gettysburg was the acknowledged orator of the day, Edward Everett. He spoke for two hours. No one remembers one word of his speech. Afterward, he wrote this to Lincoln: I should be glad if I could flatter myself that I came as near to the central idea of the occasion, in two hours, as you did in two minutes. On jury surveys that I send out, the number one complaint by jurors is that attorneys are too repetitious. Attorneys are too repetitious. Sorry. I always glance at the jury when a lawyer rises to cross and begins with, Now, Mr. Jones just a few questions.... I am never disappointed. Winston Churchill remarked that the shortest words are the most powerful words. The reason that classes are only about 50 minutes in length is that is all we can usually take before our minds need a rest. Do what you can to trim the fat from your cases. Juries and judges will thank you. Always remember: the jury wants you to succeed. They want to make the right decision, and your job is to guide them to it. The attention span of the average American is shrinking. Sermons used to be two hours long. Now people are upset if their web page does not load within so many milliseconds. Respect their time. Jurors know very soon which attorney is getting them the information they need in the most efficient and effective manner. You want to be that attorney. IX. DELIVERY English is a language dependent upon inflection for meaning. Take the sentence, I told you to mail the package. You can get as many different meanings out of that sentence as there are words in the sentence. The studies of the noted linguist, Dr. Albert Mehrabian, reveal that if the total message equals 100%, then 7% of meaning comes from the words we use, 38% comes from our vocal inflection on those words, and the remaining 55% comes from visual cues. I have no scientific evidence to back up the next statement, but I believe the message most dependent upon inflection and visual cues in the entire English language is the phrase, I love you. So you re asking, What do these statistics have to do with trials? They mean that you must believe in your case. Unless you have the acting ability of a Robert DeNiro or a Meryl Streep, you must believe, or your body, your vocal inflection will betray you. In motion hearings, I can usually tell very quickly whether an attorney believes in his or her position or whether he or she is just going through the motions (pardon the pun). So let s hope you believe in your case. If you do not, someone else should by trying it. Assuming you believe, here are some thoughts on delivery. F Linguists tell us that we can listen three to five times faster than the normal pace of speaking, but the corollary to that is that we can only remember three disparate thoughts or facts in a row before we need a break. F Therefore, chunk your information. Broadcasters are great chunkers. Listen to the evening news and note the amount of space anchors leave between words or series of words. F The great pianist Artur Schnabel said, There are many pianists who can play the same notes as I, but the pauses, ah, that is where the art resides. 20th Annual Litigation Institute & Retreat 5 18

79 F For a great example of pausing, watch Gregory Peck s closing argument in To Kill a Mockingbird. F Each of you has a vocal range in which you feel comfortable. Let me suggest that the times when you have been most persuasive are usually times when you felt a great deal of emotion about the subject. You do not have to be a great orator to be effective. Remember the old Emeraude perfume commercial: If you want to capture someone s attention: whisper. Slow, well-paced delivery in the lower register can be very effective. It is reported that one of Clarence Darrow s most effective closing was one he delivered while ill in a wheelchair. The jury was about spilling over the rail to catch every word. F People listen to music because it has different pitches, rhythms, and tones. So must our speech. You could not listen to the first dramatic part of Beethoven s Fifth without soon getting bored. Jurors are the same. We need to vary our delivery to keep their attention. X. Emphas(eyes)/Visual(eyes) the StORY I could give you a string cite on all of the retention studies that say we remember 70 to 80% of what we see and only 10 to 15% of what we just hear. My gosh, even the venerable New Yorker now has pictures! Here s a checklist for the use of visuals. F If used on opening, make sure you have admissible or agreed facts. F Presentation software is great, but it usually does not go back to the jury room you must print out your slides. F Put your graphics in a request to admit facts or genuineness of documents. F Check colors come on, your client s car in green and the other car in red is too easy an objection. F Check types of graphs to make sure they are not deceptive. Do the measures have volume with another dimension that can be deceptive? Do the axes start at zero? Are they arithmetic or logarithmic? Etc. F Check special effects. F Good movies for trial lawyers: Witness for the Prosecution, MGM 1957; Rainmaker, Paramount 1997; Philadelphia, Sony Pictures Home Entertainment 1993; My Cousin Vinny, 20th Century Fox Home Entertainment 1992 To Kill a Mockingbird, Universal Studios Home Video 1962, 12 Angry Men, MGM Home Entertainment F Resources: PowerPoint for Litigators, The National Institute for Trial Advocacy, (800) ; The Visual Display of Quantitative Information, Envisioning Information, and Visual Explanations, Edward R. Tufte, Graphics Press, Box 430, Cheshire, CT XI. A Final Word I heard someone say once, They do not care how much you know, until they know how much you care. I think great trial lawyers are able to convey how much they care about their clients and about their cases. They show how much they care about the jury by the way they make sure everyone can hear, can see, and, through plain language, can understand. Even when cross-examining a witness on the other side, they are able to convey a sense that they are seeking the truth as opposed to destroying just for the sport of it. Every time I teach lawyers, I tell them that there are as many different ways to try a case as there are attorneys in the room. I hope I have given you a sampling of various ideas that will mesh with your particular style. Thank you and good luck to each and every one of you. 20th Annual Litigation Institute & Retreat 5 19

80 20th Annual Litigation Institute & Retreat 5 20

81 Masters in Litigation Eight Keys to Persuasion Hon. Mark A. Drummond The Eight Keys-Number One Primacy-1st Impressions are Golden 20th Annual Litigation Institute & Retreat 5 21

82 The interviewer makes an immediate overall judgment about you within the first five seconds, and the next 25 seconds are spent checking the chemistry and verifying the initial impression. Pick Three Characteristics Animated Intelligent Forceful Hesitant Decisive Timid Careful Reckless Insightful Nostalgic Happy Thoughtful Confident Brash Extroverted Introverted Realistic Dreamer Sad Caring Realistic 20th Annual Litigation Institute & Retreat 5 22

83 Persuasion 1. Assemble as many techniques as possible. 2. Make the persuasion Successes occur more often. 3. Put more of YOU into the courtroom, negotiation table or settlement conference. Only 5% of Cases go to Trial so Front-end Load Persuasion First conversation with opposing counsel First meeting with opposing party Depositions Motions Scheduling conferences Mediations and Arbitrations 20th Annual Litigation Institute & Retreat 5 23

84 yesterday I used an [eight slide] PowerPoint presentation during a mediation. The claims Representative and the Plaintiff were very impressed. The case settled within an hourand-a-half. Rethinking Deposition Defense: The Case for Strategic Disclosure-Steven Lubet 26 American Journal of Trial Advocacy 13 Litigation, Winter 2003, Volume 29, No. 2 Chicago Daily Law Bulletin, January 31, 2003 Another Free Resource: DecisionQuest 20th Annual Litigation Institute & Retreat 5 24

85 Jury Selection Check questionnaire at Clerk s office Learn names before trial Get name right immediately Stand up and look them in the eye Remember equality in questioning Get rid of rogue juror by consent Corral the rogue juror Get to know the courtroom personnel Jury Selection Don t oversell We excuse Mr. with our thanks Best way to excuse-let the judge do it Stereotypes The First Twelve People not Directly Related to the Party Theory Get Organized Conspiring with your client 20th Annual Litigation Institute & Retreat 5 25

86 Jury Selection The embarrassing stuff--go into chambers The Extreme Question Go over case breakers- the bad stuff Not raised hands since 3rd grade Is there anything you feel you need to tell me before I pick you as a juror After selection I want them to like meafter opening I want them to like my case Judge s Top Ten List No. 1 We want the exhibit No. 2 We want the law Model Rule 3.3: A lawyer shall not knowingly fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. 20th Annual Litigation Institute & Retreat 5 26

87 Judge s Top Ten List No. 3 We want objections that matter No. 4 We want good jury instructions No. 5 We want you to know us No. 6 We want to be affirmed on appeal No. 7 We want civility No. 8 We want a trial notebook No. 9 We want the judgment No. 10 We want to talk about the cases Case Planning Work Backwards What do you want to say in closing? Review Jury Instructions/Check Pleadings Legal Theory versus Persuasive Theory Create a Proof Chart Think outside the Box Do Good Facts/Bad Facts Look for Themes 20th Annual Litigation Institute & Retreat 5 27

88 Eliminate Platitudes Opening Memorize the 1st two minutes Begin with Impact-your Theme or It was dark and stormy night. Facts Persuade Ownership of Ideas Don t Argue-Bulletproof your opening A well told STORY wins cases Create Visuals-Use actual visuals or create them in their mind Don t make promises/burdens you cannot keep The evidence will show and what I say is not... 20th Annual Litigation Institute & Retreat 5 28

89 Objections to Openings Argument Personal Opinion Arguing law or instructions Stating inadmissible evidence Counsel is testifying FACTS VERSUS ARGUMENTS She must not have been hurt because after the accident she went to McDonalds After the accident she went to McDonalds After the accident she didn t ask for an ambulance didn t ask to go to the emergency room didn t ask to go home to go to bed She did go somewhere She went (pause).to McDonalds 20th Annual Litigation Institute & Retreat 5 29

90 Plaintiff Minicom placed their first order in September and four months later made another order for the same parts, the same amount of parts at the same price and wrote ship as per our usual agreement Defense The first order came in September of the year 2000 The fall of 2000 ended Thanksgiving 2000 passed; Christmas 2000 passed 1000 s of orders from 1000 s of customers came in 2000 ended and in the 1st part of 2001 a second order came in 20th Annual Litigation Institute & Retreat 5 30

91 At 10 o clock in the morning of Midsummer Day, the driver of a four-wheeled cab was returning to the town when he observed, near the side of the road, under some bushes, in a little wood, something lying. He got down to look. What was it? The body of a woman--dead--barely cold. What was there which attracted the special attention of the cabman as he examined this poor creature? On her feet there were no sho-o-o-es. At 5 o clock that morning Private Simmons and Private Newley who are in the dock behind me entered Malplaquet Barracks after a night s leave. One of them was carrying something. What was he carrying? A pair of women s sho-o-o-es. 20th Annual Litigation Institute & Retreat 5 31

92 Video Cameras, Too, Can Lie, or at Least Create Jury Prejudice Science Journal by Sharon Begley-The Wall Street Journal January 31, 2003 In one instance, the simple change from an equal-focus confession to a suspect-focus confession doubled the conviction rate Minnesota and Alaska require that interrogations and confessions be videotaped. 20th Annual Litigation Institute & Retreat 5 32

93 Direct Examination Checklist Plan your Direct Begin with Impact, background, chronology or reverse chronology Use headlines Set the scene----action---then the WHY Eliminate Legalese 20th Annual Litigation Institute & Retreat 5 33

94 Direct Examination Language Use plain language Prior and subsequent Now Officer O Leary, in reference to the accident on August 23, 2000 did you have an occasion to find yourself at the corner of 12th and Broadway Subsequent to your arrival at that corner what did you observe? Direct Examination Checklist Plan your Direct Begin with Impact, background, chronology or reverse chronology Use headlines Set the scene----action---then the WHY Eliminate Legalese Look to have the witness do something 20th Annual Litigation Institute & Retreat 5 34

95 Direct Examination Checklist Plan your Direct Begin with Impact, background, chronology or reverse chronology Use headlines Set the scene----action---then the WHY Eliminate Legalese Look to have the witness do something The jury pays as much attention to the witness as you do Direct Examination Checklist The witness will mirror you -Don t be E- Ore Your eyes are their lifeline! Useful memory devices Do not lead Consider building in a Soft Cross The Building Blocks: WHO, WHAT, WHERE, WHEN, WHY, HOW, SHOW US, DESCRIBE, EXPLAIN 20th Annual Litigation Institute & Retreat 5 35

96 Objections to Questions Irrelevant Hearsay Compound Calls for a Narrative Leading on Direct Asked and Answered Ambiguous Objections to Questions Repetitive Calls for an opinion Assume or misstates fact not in evidence Argumentative Ambiguous 20th Annual Litigation Institute & Retreat 5 36

97 Objections to Answers Volunteered Non-responsive Narrative Beyond the scope Opinion Irrelevant Hearsay Conclusion Direct Examination of Experts You and your expert-be THE TEACHER Remember SALAMI! Give your advocates the know-how & tools Visual(eyes) your evidence Never say, Tell the jury --it is always, Tell us 20th Annual Litigation Institute & Retreat 5 37

98 The Formula 1. The Introduction 2. The Teaser 3. Qualifications-Remember Feign Interest! 4. Tender-if required 5. Opinion 6. Basis 7. Source of Information 8. Where do you differ and why 9. Anticipate cross 20th Annual Litigation Institute & Retreat 5 38

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100 Exam: Multiple minor contusions & abrasions, chest sounds normal, abdomen non-tender, neuro exam negative. 20th Annual Litigation Institute & Retreat 5 40

101 What if they forget? 1. Refresh Recollection 2. Past Recollection Recorded 3. Lead 4. Ask Permission to Lead 5. Take a Break, but.. 20th Annual Litigation Institute & Retreat 5 41

102 Redirect of a Witness 1. Redirect-limited to cross. 2. Have them explain-the WHY? 3. Prior Consistent Statement What if they lie? Rule 3.3-A lawyer must not knowingly offer evidence that the lawyer knows to be false. If offered and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures. 20th Annual Litigation Institute & Retreat 5 42

103 Cross-Examination Checklist Do you cross at all or the short cross Constructive 1 st -Start and end strong Add bricks to your Case Foundation Safety-Know your safety nets -Prior Testimony -Deposition -Statement -another witness Learn how to ask one-fact leading? s from an Island of Safety From where I was standing I thought the car was going over the speed limit, a little bit. Q. The car was going too fast? Q. The car was going fast? Q. The car was speeding? Q. From where you were you thought the car was going, a little bit, OVER THE SPEED LIMIT? 20th Annual Litigation Institute & Retreat 5 43

104 Learn how to ask one-fact leading? s from an Island of Safety I went to McDonald s after the accident and you were so hurt that after the accident you went to McDonald s. You must no have been very hurt because you went with your friends to McDonald s Learn how to ask one-fact leading? s from an Island of Safety You did not ask for an ambulance. You did not go to the emergency room. You did not ask your friends to drive you home. You did go somewhere. You went to (dramatic pause) to McDonald s 20th Annual Litigation Institute & Retreat 5 44

105 Cross-Examination Checklist Learn the value of silence. Remember tennis ball. Use headlines Use the best words--know v. Aware Get rid of intros and tags Be patient enough to use repetition. Remember What was not done maybe as important as what was done How do you keep Control? The Red Cover Method BY THE WAY YOU ASK THE? 1. Repeat-Repeat-Repeat-Repeat-Repeat-Repeat- Repeat-Repeat 2. So the Answer would be 3. Move to Strike as Non-Responsive 4. Ask the Opposite 5. That s not my?-my? is 6. Yes or no, just yes or no 20th Annual Litigation Institute & Retreat 5 45

106 How do you keep Control? 7. I must not have asked that very well 8. Let s try this again 9. Can you answer my? /Write it 10. Ignore it/ We ll get to that 11. Hold up your hand 12. So the short answer is YES! 13. You re answering more than I m asking How do you keep Control? 14. Are you done? 15. To put it in your words 16. STARE 17. WHINE Don t End with OTIS. 20th Annual Litigation Institute & Retreat 5 46

107 Goal: She is not watching Headline: Let s turn to your duties that day 1. YOU sign in patients 2. YOU answer the phone 3. YOU pull files 4. YOU fill out insurance forms 1. Can she see? Ms. Reed sitting along far wall. Dried flowers on table. 2. Was she paying attention? Fairly busy that day. Lots of kids in the room. Maybe What else was she doing? signing in patients, answering phone calls, pulling files and filling out insurance forms. 4. Biased? sent bills she never paid, asked her about this several times---asked about it that day, she was very rude, told me to mind my own business. 5. Things she did not do- I didn t say anything to Ms. Reed or the doctor about what I saw. 20th Annual Litigation Institute & Retreat 5 47

108 Note Pexiglass Ms. Reed Robert Dried flowers Maybe 30 people in the room. -Pat Williams 8/26/98 You Telephone Files 20th Annual Litigation Institute & Retreat 5 48

109 The Three C s of Impeachment by Prior Inconsistent Statement 1. Commit 2. Credit-Under oath, signed, closer in time, witnessed, given to a person with authority, corrected, dated, It says I have read this statement and it is correct, has correct info. in it, other persons there, and had duty to put important stuff in. 3. Confront What they said in court What they said before The Valley of Accreditation 1. Closer in time 2. Under Oath 3. Signed 4. Witnessed 5. Corrected it 20th Annual Litigation Institute & Retreat 5 49

110 Some Rules 1. Timing 2. Resist Instinct to go for the capillary! 3. Try to refresh if it suits purpose. 4. Remember Impeachment by Omission. 5. Remember Prior Inconsistent Actions. 6. Make it visual. 7. STOP!!!!!!!! The Islands of Expert Opinion A VERY DANGEROUS ISLAND!!!!!!!! OH, YOU RE RIGHT, I M WRONG! Everything Else Things Agreed Things Not Done Bias, Interest or Prej. Source of Info. Learned Treatise Common Sense Qualifications 20th Annual Litigation Institute & Retreat 5 50

111 20th Annual Litigation Institute & Retreat 5 51

112 The Islands of Expert Opinion A VERY DANGEROUS ISLAND!!!!!!!! OH, YOU RE RIGHT, I M WRONG! Everything Else Things Agreed Things Not Done Bias, Interest or Prej. Source of Info. Learned Treatise Common Sense Qualifications Other Expert Assumptions Report-ridiculous 20th Annual Litigation Institute & Retreat 5 52

113 His Nobel Prize pedigree helped (him) sell his opinions for as much as $600 an hour..and for two decades, (his) opinion s paid off without his ever appearing on the stand. But when G.D. Searle decided to fight (he) was forced to take the stand And the transcript isn t pretty. 20th Annual Litigation Institute & Retreat 5 53

114 1. He admitted he worked just 40 hours in forming his basic opinions. 2. His research amounted exclusively to reviewing documents provided by (his client s) lawyers. 3. He confessed that a paper he wrote supporting his opinions was so extensively rewritten by lawyers that no single original sentence survived intact. 4. He barely examined a Congressional Budget Office report that debunked some of the significant arguments in the lawsuit. 5. Somehow his work totaled 300 hours, for a $180,000 paycheck. Closing Your start-primacy! Bury the thank you Use your theme Thoughts about personal stories Give your fans the tools they need ARGUE! Tell them what to do-jury instructions 20th Annual Litigation Institute & Retreat 5 54

115 Closing Rebuttal Rebuttal Use visuals: Backdrops, Scrabble, Quotes, Exhibits Rhetorical Devices anyone? Rhetorical Devices The Jury Instructions you will not see! Does Kane Electronics have more money than Roberta Quinlan? Can Kane Electronics afford it? You should be biased against companies. 20th Annual Litigation Institute & Retreat 5 55

116 Objections during closing Misstate Law or Evidence Personal Opinion Per Diem Golden Rule Personal attacks The Eight Keys-Number Two Primacy-1st Impressions are Golden Emphasize the Receiver 20th Annual Litigation Institute & Retreat 5 56

117 Elements of Communication SENDER MESSAGE RECEIVER Information Processing Visual- I see what you mean. Auditory- I hear what you re saying. Kinesthetic- This doesn t feel right. 20th Annual Litigation Institute & Retreat 5 57

118 The Eight Keys-Number Three Primacy-1st Impressions are Golden Emphasize the Receiver Remembered Facts alone Persuade Hierarchy of Attention Actions Objects Pictures Diagrams or Charts The Written Word The Spoken Word 20th Annual Litigation Institute & Retreat 5 58

119 The Honesty Award 20th Annual Litigation Institute & Retreat 5 59

120 This Monday, I tried my first jury trial. After 15 minutes the jury returned a verdict in favor of my client. The techniques I used were: 1. I enlarged all of the reasons alleged by the other side and put them on an easel. 2. I used a chart showing that she fed her three children on $93.00 per month. 3. I brought the splatter screen (piece of plastic) that my client had pinned to the wall to protect it The manager s Memo for the Record said that she had a piece of plastic that was a fire hazard pinned to the wall. [These techniques] contributed to my level of confidence, efficiency and to my client having a roof over her head. The Eight Keys-Number Four Primacy-1st Impressions are Golden Emphasize the Receiver Remembered Facts alone Persuade Simplify- Do a Thoreau 20th Annual Litigation Institute & Retreat 5 60

121 The Case in a Nutshell 1971 Couple met at University 1975 Marriage-May Medical School in Europe Mrs. G. earns $18,000-$20,000 9/27/79-Daughter born Internship in Chicago 3/23/82-Son born 5/14/83-2nd Daughter born The Case in a Nutshell Internship St. Louis-Dr. G. earns $75, Family moves to Quincy Dr. G. bills $755, Dr. G. leaves marital home 9/90 Dr. G. buys home worth $198,000 with $40,000 from nurse s divorce 20th Annual Litigation Institute & Retreat 5 61

122 The Case in a Nutshell 10/90 Dr. G. opens practice in Missouri-pays nurse/fiancée $27,996 per year 12/90 Marries Nurse When the going got good. The doctor got going! The Eight Keys-Number Five Primacy-1st Impressions are Golden Emphasize the Receiver Remembered Facts alone Persuade Simplify- Do a Thoreau Understand the Power of Notebooks 20th Annual Litigation Institute & Retreat 5 62

123 The Trial Notebook System 1. Four Notebooks plus a Visual for Jury. 2. Highly Indexed 3. Highly Highlighted 4. Combined RTA and Answer 5. Include Opponent s Exhibits 20th Annual Litigation Institute & Retreat 5 63

124 The Eight Keys-Number Six Primacy-1st Impressions are Golden Emphasize the Receiver Remembered Facts alone Persuade Simplify- Do a Thoreau Understand the Power of Notebooks Address-see Gettysburg 20th Annual Litigation Institute & Retreat 5 64

125 The Top Three Juror Complaints Attorneys are too repetitious! Attorneys are too repetitious! Attorneys are too repetitious! The Eight Keys-Number Seven Primacy-1st Impressions are Golden Emphasize the Receiver Remembered Facts alone Persuade Simplify- Do a Thoreau Understand the Power of Notebooks Address-see Gettysburg Delivery 20th Annual Litigation Institute & Retreat 5 65

126 English is Inflectional Words = % Inflection = % Visual Cues = % MESSAGE = 100 % English is Inflectional Words = 8 % Inflection = 37 % Visual Cues = 55 % MESSAGE = 100 % What does this mean? It means you gotta believe! 20th Annual Litigation Institute & Retreat 5 66

127 His demeanor was not that of a strong man in a moment of contrition but that of a defensive man in a moment of aggression. 20th Annual Litigation Institute & Retreat 5 67

128 By Steve Kioehn Tribune Religion Writer! Oxford English Dictionary s definition of sorry as pained at heart. Is saying that you already said you were sorry the same thing as saying you are sorry? 20th Annual Litigation Institute & Retreat 5 68

129 Remember Bill, love is never having to say you re sorry! Make Different meanings I TOLD YOU TO MAIL THE PACKAGE. WOW, YOU WERE A GREAT LOVER. 20th Annual Litigation Institute & Retreat 5 69

130 Listen, Remember then Write Primacy and Recency th Annual Litigation Institute & Retreat 5 70

131 Courtroom Communication They want you to succeed Attention spans are shrinking They pick the most efficient attorney The value of silence in the courtroom-- use it for emphasis; use it for retention Remember Artur Schnabel Remember Emeraude perfume You are the ultimate persuaders The Eight Keys-Number Eight Primacy-1st Impressions are Golden Emphasize the Receiver Remembered Facts alone Persuade Simplify- Do a Thoreau Understand the Power of Notebooks Address-see Gettysburg Delivery Emphas(eyes) and Visual(eyes) the Story 20th Annual Litigation Institute & Retreat 5 71

132 The Duties we owe to Judge/Jury 1. The Duty to keep their Attention. 2. The Duty to advance our Facts, Witnesses and Position in the most understandable form possible. 3. The Duty to give our Advocates the best arguments for our position. Say the color of each word Red Green Blue Black Yellow Purple Green 20th Annual Litigation Institute & Retreat 5 72

133 Say the color of each word Green Blue Yellow Green Red Black Blue Rehabilitation Record of Dennis McClain March-November 5/11 Left 20 minutes early 5/14 Cancelled 5/28 Omitted Heat Therapy 6/25 Left 20 minutes early 7/6 Skipped whirlpool 7/9 Cancelled 8/3 Whirlpool only March April May June July August Sept. Oct. Nov. 8/31 No heat therapy or exercises 9/14 Cancelled 9/21 Cancelled 9/28 Left 10 Minutes early 10/12 No whirlpool or diathermy 10/19 Cancelled 20th Annual Litigation Institute & Retreat 5 73

134 I already have a prospect in mind 3 to 5 percent I would use my best efforts and contacts (which are many) to find a suitable purchaser no less than 3 percent the closing value net closing value Letter sent Letter drafted-not sent exchange of shares purchaser of either the assets or the stock of the company although open to an exchange of your stock for stock. Why use Presentation Software Flexibility Colorful Easy to change Easy to control flow of information Incorporate Text, Pictures, Timelines, Graphs, Charts, Diagrams and Videos 20th Annual Litigation Institute & Retreat 5 74

135 Potassium Chloride Attack!!!!!! Infusion 25 Millimoles :00 0:12 0:24 0:36 0:48 1:00 Minutes Actual Prescribed How to get it in! Request to Admit Facts Put in only admissable/agreed facts Check Colors Check type of Graphs Check Special Effects 20th Annual Litigation Institute & Retreat 5 75

136 Children naturally enjoy their chiropractic adjustments. 20th Annual Litigation Institute & Retreat 5 76

137 The spinal malfunction from falling when learning to walk, can often be helped with chiropractic care. a baby s first few steps should be followed by chiropractic checkups.bumps and falls may lead to serious spinal deformities later in life. 20th Annual Litigation Institute & Retreat 5 77

138 Vending Service Van versus Garbage Truck 20th Annual Litigation Institute & Retreat 5 78

139 20th Annual Litigation Institute & Retreat 5 79

140 st Qtr 2nd Qtr 3rd Qtr 4th Qtr 1st Qtr 2nd Qtr 3rd Qtr 4th Qtr 20th Annual Litigation Institute & Retreat 5 80 East West North East West North

141 SIU 94% State 92% st Qt r 20th Annual Litigation Institute & Retreat 5 81

142 Total Income/Officer's Salary Total Income Officer's Salary 20th Annual Litigation Institute & Retreat 5 82

143 20th Annual Litigation Institute & Retreat 5 83

144 Market Overlap Percentage of Dr. Smith s patients from towns that also turn to Dr. Jones 80.1% Other patients % th Annual Litigation Institute & Retreat 5 84

145 Placement of particularly obnoxious activities at the top (murder) and bottom of the list (pistol whipping a priest) exploits the visual prominence of those positions. -Edward R. Tufte Envisioning Information 20th Annual Litigation Institute & Retreat 5 85

146 Began with 422,000 Began with 422,000 20th Annual Litigation Institute & Retreat 5 86

147 Rear 22,000 North 33,000 Began with 422, ,000 20th Annual Litigation Institute & Retreat 5 87

148 ,000 Berezina River 50,000 20th Annual Litigation Institute & Retreat 5 88

149 6,000 4,000 10,000 20th Annual Litigation Institute & Retreat 5 89

150 Direction Troop Strength Landmarks Distance Temperature Time Very interesting Sorta Boring 20th Annual Litigation Institute & Retreat 5 90

151 20th Annual Litigation Institute & Retreat 5 91

152 Masters in Litigation Eight Keys to Persuasion Hon. Mark A. Drummond 20th Annual Litigation Institute & Retreat 5 92