The 18th Annual Oregon Trial Advocacy College

Transcription

1 The 18th Annual Oregon Trial Advocacy College Supported by the Oregon Chapter Thursday, October 27, :25 a.m. 4:30 p.m. Friday, October 28, :30 a.m. 5:30 p.m. Mark O. Hatfield United States Courthouse Portland, Oregon 15 General CLE or Practical Skills credits

2 18TH ANNUAL OREGON TRIAL ADVOCACY COLLEGE PLANNING COMMITTEE The Honorable Edward Leavy, U.S. Court of Appeals, Ninth Circuit, Portland The Honorable Mary Mertens James, Marion County Circuit Court, Salem William Barton, The Barton Law Firm PC, Newport Julie Elkins, Zipse Elkins & Mitchell, Portland Peter Richter, Miller Nash Graham & Dunn LLP, Portland 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 2016 OREGON STATE BAR SW Upper Boones Ferry Road P.O. Box Tigard, OR th Annual Oregon Trial Advocacy College ii

3 TABLE OF CONTENTS Schedule v 1. Shortcut to Quick Step Guide i Peter C. Richter, Miller Nash Graham & Dunn LLP, Portland, Oregon 2. Trial Advocacy: Quick Step Guide i Peter C. Richter, Miller Nash Graham & Dunn LLP, Portland, Oregon 3. Damages i William A. Barton, The Barton Law Firm PC, Newport, Oregon 4. Case File: Lawrence T. Monroe, Plaintiff, v. Teresa Louise Cartwright, Defendant i 5. Factual Statements i 6. Pleadings i 7. Exhibits i 8. Health Consultations i 9. Jury Instructions i 10. Special Verdict Form i 11. Being Persuasive During Trial: Observations from the Bench i Moderator: The Honorable John Acosta, U.S. District Court, Portland, Oregon The Honorable Norman Hill, Polk County Courthouse, Dallas, Oregon The Honorable Marilyn Litzenberger, Multnomah County Circuit Court, Portland, Oregon The Honorable Eve Miller, Clackamas County Circuit Court, Clackamas, Oregon The Honorable Katherine Tennyson, Multnomah County Circuit Court, Portland, Oregon 18th Annual Oregon Trial Advocacy College iii

4 ABOTA Oregon is proud to continue its support for the Oregon Trial Advocacy College. Founded upon a mission to foster improvement in the field of advocacy, ABOTA strives to: Elevate the standards of integrity, honor, and courtesy in the legal profession; Further the education and training of trial lawyers; Preserve our jury system; Promote the efficient administration of justice and constant improvement of the law; and Cultivate a spirit of loyalty, fellowship, and professionalism among its members. ABOTA is composed of both plaintiffs and defense attorneys, and membership is by invitation and election only after proof of substantial trial experience. Thank you to for their generous support of scholarships for the Oregon Trial Advocacy College 18th Annual Oregon Trial Advocacy College iv

5 Thursday, October 27 8:00 Registration (16th Floor Lobby) 8:25 Welcome 8:30 Winning Persuasive Advocacy Theories and Techniques Peter Richter, Miller Nash Graham & Dunn LLP, Portland 9:15 Voir Dire Who Do You Want (or Not Want) to Decide Your Case? Michael Wise, Michael Wise & Associates PC, Lake Oswego Ralph Spooner, Spooner & Much PC, Salem 10:00 Break 10:15 How to Make a Great Opening Statement and a Favorable First Impression Charese Rohny, Charese Rohny Law Office LLC, Portland Donald Bowerman, Bowerman Law Group PC, Oregon City 11:00 Direct Examination The Most Important Evidentiary Part of Your Case Thomas D Amore, D Amore Law Group, Lake Oswego Matthew Donohue, Markowitz Herbold PC, Portland 12:00 Lunch 1:00 Effective Cross-Examination: Its Purpose and Goals James Huegli, Huegli & Fraser PC, Portland Janet Hoffman, Janet Hoffman & Associates, Portland 2:00 Using Closing Argument to Keep the Jury on Your Side William Barton, The Barton Law Firm PC, Newport John Hart, Hart Wagner LLP, Portland 3:00 Break 3:15 Being Persuasive During Trial: Observations from the Bench Moderator: The Honorable John Acosta, U.S. District Court, Portland The Honorable Norman Hill, Polk County Courthouse, Dallas The Honorable Marilyn Litzenberger, Multnomah County Circuit Court, Portland The Honorable Eve Miller, Clackamas County Circuit Court, Clackamas The Honorable Katherine Tennyson, Multnomah County Circuit Court, Portland 4:30 Adjourn Friday, October 28 8:30 Voir Dire Courtroom Session I 10:30 Break 10:45 Opening Statement Courtroom Session II 12:00 Lunch 1:00 Direct and Cross-Examination Courtroom Session III 4:00 Break 4:15 Closing Argument Courtroom Session IV 5:15 Final Thoughts on Effective Advocacy (16th Floor Courtroom) 5:30 Adjourn to Hosted Reception (16th Floor Lobby) 18th Annual Oregon Trial Advocacy College v

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7 FACULTY The Honorable John Acosta, U.S. District Court, Portland. Judge Acosta was appointed a magistrate judge for the United States District of Oregon on March 5, 2008, and maintains chambers in Portland. Prior to his appointment, Judge Acosta served as Senior Deputy General Counsel for TriMet, the public transportation authority for metropolitan Portland, and before that he was in private practice in Portland and Alaska. Judge Acosta is a member and past chair of the Oregon State Bar Joint Bench/ Bar Commission on Professionalism, and he serves on the University of Oregon School of Law Dean s Advisory Council. Judge Acosta also has been active in the community through service on the boards of several nonprofit social services organizations, as a member of legal professional associations, by teaching as an adjunct professor at the University of Oregon Law School, and by coaching high school mock trial students, among other volunteer activities. William Barton, The Barton Law Firm PC, Newport. Mr. Barton has practiced law for 40 years and continues to try difficult and challenging cases. He has lectured on trial advocacy in 35 states and four countries and has testified as an expert witness in legal malpractice cases. Mr. Barton is the author of Recovering for Psychological Injuries, 3rd Edition (Assn of Trial Lawyers of Amer 2010). He is certified by the Oregon Supreme Court as an Oregon Trial Courts Judge Pro-Tempore. Among other professional activities, Mr. Barton is past president of the American Board of Trial Advocates Oregon Chapter, the Western Trial Lawyers Association, and the Oregon Trial Lawyers Association, and he was an Oregon State Delegate to the American Bar Association. He also is a Fellow of the International Society of Barristers and Litigation Counsel of America. Mr. Barton is the 2015 recipient of the Oregon State Bar Award of Merit and the 2005 recipient of the Oregon Trial Lawyers Association Distinguished Trial Lawyer award. Donald Bowerman, Bowerman Law Group PC, Oregon City. Mr. Bowerman s practice has been primarily in the defense of medical, legal, and casualty claims. In recent years, he has expanded his practice to include estate, probate, and land use law. He has also handled varied complex litigation cases involving banking, aviation, construction, antitrust, condemnation, and school law. He regularly serves as an assigned pro tem judge in Clackamas County, ruling on the civil motion docket, and has served statewide as a circuit judge pro tem since He also mediates and arbitrates civil cases. Mr. Bowerman is a Fellow in the International Academy of Trial Lawyers, the American College of Trial Lawyers, and the American Bar Foundation; a member of the American Board of Trial Advocates, Litigation Counsel of America, the American Bar Association, the Lawyer Pilots Bar Association, the Oregon Association of Defense Counsel, the Oregon State Bar Litigation Section, and the Professional Liability Fund Defense Panel; and chair of the Clackamas County Pro Tem Judicial Selection Committee. He is the 2005 recipient of the Oregon State Bar Litigation Section Owen M. Panner Professionalism Award and the 2004 recipient of the Clackamas County Bar Association Lifetime Achievement Award. Thomas D Amore, D Amore Law Group, Lake Oswego. Mr. D Amore s practice covers the areas of personal injury, motor vehicle accidents, wrongful death, nursing home abuse, sexual abuse and assault, medical negligence, construction site injury, complex litigation, bad faith policies, and class actions. Mr. D Amore is a member of the American Association for Justice Executive Committee, past president of the Oregon Trial Lawyers Association, and a Washington State Association for Justice EAGLE member. He is board-certified as a civil trial advocate by the National Board of Trial Advocacy and is a member of the American Board of Trial Advocates. He is also a member of the American Bar Association, the Multnomah Bar Association, the Clackamas County Bar Association, the Clark County Bar Association, and the National Crime Victim Bar Association. Mr. D Amore is admitted to practice in California, Oregon, and Washington, and he is an inactive CPA in California and Oregon. 18th Annual Oregon Trial Advocacy College vii

8 FACULTY (Continued) Matthew Donohue, Markowitz Herbold PC, Portland. Mr. Donohue maintains a national trial practice, trying some of the firm s most complex and challenging cases. He has represented companies ranging from startups to Fortune 500 companies in a wide variety of business cases, including antitrust, class actions, contract and licensing disputes, partnership and shareholder disputes, real estate, and intellectual property litigation. Mr. Donohue has first-chaired jury trials, bench trials, and arbitrations in state and federal courts across the country. A significant portion of his practice is spent defending complex class actions. John Hart, Hart Wagner LLP, Portland. Mr. Hart s practice has primarily focused upon defending medical malpractice lawsuits and, to a lesser extent, other complex civil litigation involving products liability and catastrophic injuries. He has tried over 360 civil lawsuits through to a jury verdict in Oregon and Washington state courts as well as federal court. He regularly defends doctors, midwives, nurses, hospitals, and medical institutions in cases involving alleged birth trauma injuries, cancer misdiagnosis, surgical mishaps, and the like. He is a regular speaker and author on trial advocacy and related topics. The Honorable Norman Hill, Polk County Courthouse, Dallas. Judge Hill was appointed Polk County Circuit Court judge in He is responsible for a general jurisdiction docket presiding over criminal, civil, and family law cases. Judge Hill also serves as the primary juvenile court judge and regularly conducts civil judicial settlement conferences. Prior to serving on the bench, Judge Hill was in private practice in Salem, specializing in civil litigation and business law with an emphasis on real estate and land use matters. Judge Hill is an adjunct professor at Willamette University College of Law, where he teaches courses on real estate transactions, juvenile law, and trial practice. Janet Hoffman, Janet Hoffman & Associates, Portland. Ms. Hoffman is a criminal defense lawyer who represents individuals and corporations threatened with serious and complex criminal or regulatory proceedings. She defends individuals, corporate officers, and corporations in a wide variety of matters, including investigations and indictments involving the SEC, EPA, and DOJ. She has expertise in cases involving fraud, corruption, and environmental offenses and represents individuals charged with serious crimes. She speaks and writes on these subjects frequently. James Huegli, Huegli & Fraser PC, Portland. Mr. Huegli is a Certified Arbitrator by the American Arbitration Association, a Certified Mediator for the Oregon Court of Appeals, and an arbitrator for the General Motors National Dealer Reinstatement Program. He is a member of the International Academy of Trial Lawyers, the American College of Trial Lawyers, the Willamette University College of Law Center for Dispute Resolution, the Owen M. Panner American Inns of Court, and the ABA Fidelity and Surety Law Committee. The Honorable Marilyn Litzenberger, Multnomah County Circuit Court, Portland. Judge Litzenberger was elected to serve as a Circuit Court Judge on the Multnomah County bench in She has also served an adjunct professor of law at Lewis & Clark Law School, both before and after she became a judge, teaching trial practice skills to upper-division law students. Judge Litzenberger is an active member and past president of both the Owen M. Panner American Inns of Court and Oregon Women Lawyers. She also has has participated on a variety of committees for the Oregon Judicial Department, including the Chief Justice s Court Reengineering Work Group, the Judicial Education Committee, and several groups convened to address issues leading to the implementation of the e-court systems. Judge Litzenberger was a member of the task force that produced the Recommended Practices for Civil Trials in Multnomah County and later published The Vanishing Civil Jury Trial in Multnomah County, which analyzed how courts have contributed to the decline in number of jury trials and recommended changes to the court s management of civil cases as a method to increase access to justice for litigants to choose to try their disputes to a jury. 18th Annual Oregon Trial Advocacy College viii

9 FACULTY (Continued) The Honorable Eve Miller, Clackamas County Circuit Court, Clackamas. Judge Miller has served as a Circuit Court Judge since June 1997 and has handled a wide variety of civil and criminal cases. The civil cases range from complex to routine tort and contract, as well as all aspects of family and juvenile law. Judge Miller has managed the Family Drug Court treatment court since She is chair of the Clackamas County Bar Association CLE Committee, a member of the Oregon State Bar Professionalism Task Force, an emerita member of the Owen M. Panner American Inns of Court, and a member of the National Council of Family and Juvenile Court Judges. Peter Richter, Miller Nash Graham & Dunn LLP, Portland. Mr. Richter is a litigator whose cases have involved numerous legal issues in contracts, business, and tort law, including construction, securities, antitrust, probate and trust, real estate, insurance, personal injury, franchise, banking, partnership, creditors rights, labor, land use, and timber law. He has helped hundreds of clients resolve their legal problems through negotiation, mediation, arbitration, and primarily jury trials. He is a member of the American Board of Trial Advocates and the International Association of Defense Counsel. Mr. Richter is admitted to practice before the United States Supreme Court. Charese Rohny, Charese Rohny Law Office LLC, Portland. Ms. Rohny practices in the areas of employment discrimination and civil rights. She is a member of the National Employment Lawyers Association, the American Association for Justice, Oregon Women Lawyers, the Oregon Trial Lawyers Association, the Multnomah Bar Association, and the Oregon State Bar Labor and Employment Law and Civil Rights sections. She is admitted to practice in Oregon and California. Ralph Spooner, Spooner & Much PC, Salem. Mr. Spooner practices in the areas of complex civil litigation, business litigation, insurance litigation, professional malpractice, general tort liability, product liability, employment claims, construction defect claims, liquor liability claims, premises liability claims, sexual abuse claims, and appellate cases. He is a member of the Oregon Association of Defense Counsel, the Marion County Bar Association, and the Federation of Defense and Corporate Counsel. The Honorable Katherine Tennyson, Multnomah County Circuit Court, Portland. Judge Tennyson is a member of the Family Law Department, which is a unified family court. Judge Tennyson became the Chief Probate Judge for the county in January Judge Tennyson is the President of the National Council of Juvenile and Family Court Judges (NCJFCJ). Judge Tennyson has served as faculty for NCJFCJ national judicial training, including the Child Abuse and Neglect Institute, Enhancing Judicial Skills in Elder Abuse Cases, and the Institute for New Family Law Judges. She is a frequent speaker on issues including trial practice, elder abuse, family violence, and probate. Judge Tennyson is admitted to practice law in both Oregon and Washington. She is the 2015 recipient of the Oregon State Bar Wallace P. Carson Jr. Award for Judicial Excellence. Michael Wise, Michael Wise & Associates PC, Lake Oswego. Mr. Wise practices general business and injury law. He is a member of the Oregon Trial Lawyers Association President s Club, the American Trial Lawyers Association, the American Bar Association, the Multnomah Bar Association, the Clark County (Washington) Bar Association, and the Washington State Trial Lawyers Association. He is admitted to practice in Washington and Oregon. He has written articles on jury selection for the Oregon Trial Lawyers Association and lectured on the topic many times. 18th Annual Oregon Trial Advocacy College ix

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11 Chapter 1 Shortcut to Quick Step Guide Peter C. Richter Miller Nash Graham & Dunn LLP Portland, Oregon

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13 Chapter 1 Shortcut to Quick Step Guide SHORTCUT TO QUICK STEP GUIDE 1 I. GENERAL THOUGHTS ON PERSUASION A. Get them to like you. B. Be yourself. C. Communicate at all levels. 2 18th Annual Oregon Trial Advocacy College 1 1

14 Chapter 1 Shortcut to Quick Step Guide D. It s all about your audience, not about you. E. Recognition of injustice is in our DNA. 3 F. FACTS PERSUADE 4 18th Annual Oregon Trial Advocacy College 1 2

15 Chapter 1 Shortcut to Quick Step Guide II. GATHER ALL FACTS. A. Put yourself in all scenes, in all participants shoes and determine what happened, what should have happened, what didn t happen. 5 B. Prepare a detailed chronology of the facts, annotated and indexed to source material. 6 18th Annual Oregon Trial Advocacy College 1 3

16 Chapter 1 Shortcut to Quick Step Guide C. Identify the story, what happened, why, and motives or reasons. 7 D. Create storyboards/chapters to break the story down into acts and scenes, or chapters. 8 18th Annual Oregon Trial Advocacy College 1 4

17 Chapter 1 Shortcut to Quick Step Guide III. ORGANIZE THE STORY 9 A. Identify the conclusions you want the audience to reach ask yourself why?, what is the goal? 10 18th Annual Oregon Trial Advocacy College 1 5

18 Chapter 1 Shortcut to Quick Step Guide B. Consider consequences responses. Multidimensional chess game. 11 C. Identify those facts which will make the audience believe they should decide the case in your favor (the theme, the heartbeat of the case, the grab em, the Universal Truth th Annual Oregon Trial Advocacy College 1 6

19 Chapter 1 Shortcut to Quick Step Guide D. Identify words and phrases to use (7 th grade vocabulary). E. Weave in legal words and phrases from the instructions. 13 F. Prepare a matrix of the elements to each claim and defense and corresponding evidence th Annual Oregon Trial Advocacy College 1 7

20 Chapter 1 Shortcut to Quick Step Guide IV. PRESENT THE STORY 15 A. Use facts to lead the audience to reach their own conclusions th Annual Oregon Trial Advocacy College 1 8

21 Chapter 1 Shortcut to Quick Step Guide B. Start and end strong each step of the process (you are at bat, you are going to walk, strike out, or get a hit). 17 C. Attention span seconds do something different get their attention th Annual Oregon Trial Advocacy College 1 9

22 Chapter 1 Shortcut to Quick Step Guide D. Again - consider the consequences of everything you do and say multi-dimensional chess game. 19 E. Make it memorable key words, phrases, demonstrative exhibits, pictures, diagrams th Annual Oregon Trial Advocacy College 1 10

23 Chapter 1 Shortcut to Quick Step Guide F. When you re done STOP! 21 18th Annual Oregon Trial Advocacy College 1 11

24 Chapter 1 Shortcut to Quick Step Guide 18th Annual Oregon Trial Advocacy College 1 12

25 Chapter 2 Trial Advocacy: Quick Step Guide Peter C. Richter 1 Miller Nash Graham & Dunn LLP Portland, Oregon Contents Foreword The Three Kinds of Lawyers Who Try Cases I. Introduction A. Definition of Advocate B. Universal Techniques of Persuasion C. The ABCCCs of Advocacy II. General Techniques of Persuasion III. The Preliminaries IV. The Trial A. Voir Dire B. Opening Statement C. Direct Examination of Witnesses D. Cross-Examination E. Closing Argument Appendix Trial Preparation Matrix Copyright 2007.

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27 Chapter 2 Trial Advocacy: Quick Step Guide The modern jury trial is one of the most important, demanding, exhausting, probing, and sometimes humbling and humiliating events that can be experienced by a person, be that person a party, a witness, a lawyer, or a judge. State v. Mains, 295 Or 640, 658 (1983) FOREWORD The purpose of this guide is to provide a basic outline of persuasion and advocacy techniques for the new, younger, inexperienced lawyer, and also to remind the more experienced lawyer of some of the fundamentals of advocacy. The last two generations of lawyers have primarily been educated and trained in the process and procedure of litigation ; that is, use of all of the discovery tools available under local state and federal rules. For many reasons too numerous to mention here, we are losing the bedrock of our justice system jury trials. Despite recent efforts to make it easier to try jury cases, these efforts will not succeed unless and until we train, educate, and provide experience for young lawyers to develop confidence and become comfortable with jury trials. This guide is not intended to be a comprehensive treatise on persuasion techniques or advocacy. There have been sufficient volumes written over the centuries detailing techniques and winning strategies. Rather, this guide is an attempt to identify certain key concepts that contribute to the successful trial of a lawsuit. THE THREE KINDS OF LAWYERS WHO TRY CASES 1. The Junkyard Dog her sole purpose is to try the case, whether for a fee, for reputation, or because she doesn t know any better. Her primary, if not sole focus, is on the trial this is the lawyer who is rapidly becoming extinct. 2. The Litigator found primarily in large metropolitan law firms engaged in the process and procedure of discovery, engaging in motion practice ad nauseam, using every procedural tool available to excess until the Litigator recommends settling just before trial because she doesn t have the experience or ability to try the case. 3. The Advocate is able to recognize and has the skills to focus on his primary goal, which is helping clients resolve their legal disputes favorably, economically, efficiently, and professionally, whether through negotiation, mediation, arbitration, or trial before a judge or jury. We should all strive to be Advocates. I. INTRODUCTION A. Definition of Advocate An advocate is one who helps solve clients legal problems favorably, economically, efficiently, and professionally through negotiation, mediation, and arbitration or, if all else fails, be ready, willing, and able to competently represent that client in court before a judge or jury. Remember One of the best ways to encourage settlement of a case is to get a trial date and get ready for trial. B. Universal Techniques of Persuasion This guide is focused primarily on a jury trial, although many of the suggested techniques of persuasion apply equally regardless of the audience. Advocacy is an art and has no right way or wrong way. However, scholars and practitioners over the centuries have identified certain universal principles and techniques that have been shown to 18th Annual Oregon Trial Advocacy College 2 1

28 Chapter 2 Trial Advocacy: Quick Step Guide be more persuasive than others, depending of course upon the audience and its societal, cultural, and religious background. 1. Be Yourself. Although this guide contains suggested techniques, it is not to say every Advocate should adopt someone else s style. What works for some does not work for others, and we should use our own unique characteristics and skills to advantage. Incorporate the following suggested techniques into your own personality and style to effectively persuade, but don t try to copy someone else read about successful techniques and watch experienced Advocates, but never lose your own personality. 2. Credibility and Candor Succeed Get Em to Like You! Effective persuasion in the legal context requires that you, the Advocate, above all else, be likeable. It is much easier to gain the respect and trust you need to be credible, and thus persuade, if your audience likes you, regardless of who it is, whether opposing lawyer, mediator, arbitrator, judge, or jury. You will be constantly judged as you perform your multiple roles as author, director, counselor, actor, stagehand, teacher, advisor, talk-show host (voir dire), and guide. Don t overstate or try to fool them credibility is hard to earn but easy to lose. 3. Litigation Is a Multi-Dimensional Chess Game. The art of advocacy in the litigation context is a multi dimensional chess game that requires anticipation of the consequences and response by your audience of every move, decision, and written or oral statement you make. It demands: F Preparation 3 ; 1 F Imagination; F Passion; and F Credibility. As you prepare each move at each phase of the process, whether the first pleading or the closing argument, ask yourself these three questions: F Can I do it? Is it legal, ethical, and professional? F How do I do it? The mechanical part. F Should I do it? What s my goal, my purpose? Why? The most important questions! Be aware that you are constantly being observed, graded, and judged imagine yourself, every time you write, say, or do something, as being at bat in a baseball game are you going to strike out, walk, or get a hit? C. The ABCCCs of Advocacy 2 A Accurate; B Brief; C Clear; C Concise; C Candid. 1 Not a footnote, rather Preparation to the third power! 2 Bill Barton s ABCs, plus two. 18th Annual Oregon Trial Advocacy College 2 2

29 Chapter 2 Trial Advocacy: Quick Step Guide II. GENERAL TECHNIQUES OF PERSUASION Step 1 Recognize that persuasion is not getting people to do what you want them to do. Rather, persuasion is getting your audience to do what it thinks it should do! Make them believe you are helping them correct or prevent an injustice It s not fair if you [do or do not]...! F Focus on your audience: F What does it want? F What does it need? F What does it hear? F What does it see? F What is its attention span? F What does it feel? Put yourself in their shoes. Step 2 Remember Aristotle s three means of persuasion: 1. Ethos The speaker s power of evincing a personal character that will make his speech credible. 2. Pathos His power of stirring the emotions of the audience. People will forget what you said, People will forget what you do, People will never forget how you made them feel. Maya Angelou 3. Logos Proving a truth or an apparent truth by means of logic. Step 3 Learn to communicate at all levels: F How we look; F How we talk; F How we act eye contact; gestures; F The words we use; F The order of words; 3 F Get them to like, respect, and trust you. Step 4 Facts! Persuade. Not conclusions, characterizations, adjectives, or adverbs. Step 5 Organize the facts! into a believable, compelling story. Use the storyboard technique. 4 3 The power of sequencing! 4 People think in pictures. 18th Annual Oregon Trial Advocacy College 2 3

30 Step 6 Chapter 2 Trial Advocacy: Quick Step Guide Develop the theme those facts that will make the audience want to decide the case in your favor not a slogan or catch phrase. Step 7 Remember the goal: F Help clients solve their legal problems; Favorably, Efficiently, Economically, and Professionally. F Not to demonstrate how smart, knowledgeable, or tough you are; F No mudslinging. Step 8 Tell what happened and then show what happened charts, diagrams, timelines, etc. Organize exhibits consistent with your story board. Step 9 Keep it simple most cases come down to somebody doing or not doing something they should or should not have done and their motives. Your audience wants to know, first of all, what happened and why! Step 10 Make it memorable. Use those facts and techniques that will create vivid and memorable pictures in the juries minds. Step 11 Remember, people s attention span is between 30 and 90 seconds! III. THE PRELIMINARIES Step 1 Prepare three-ring trial notebook with tabs as follows: 1. Notes and to-do list 2. Chronology 3. Legal elements and evidence matrix 4. Pleadings 5. Pretrial motions motions in limine to exclude or allow evidence 6. Witness lists (plaintiffs/defendants) 7. Exhibit lists 8. Trial memo 9. Trial motions and bench memos motion for directed verdict or to strike or dismiss claims 10. Voir dire 18th Annual Oregon Trial Advocacy College 2 4

31 Chapter 2 Trial Advocacy: Quick Step Guide 11. Opening statement 12. Direct examination 13. Cross-examination 14. Closing argument 15. Jury instructions 16. Verdict form 17. Law notes 18. Post-trial motions Step 2 Constantly update and add to trial notebook. Step 3 Gather all of the facts. WHAT YOU WANT AT THIS TIME ABOVE ALL ELSE IN THE WORLD ARE THE FACTS. THE FACTS, ALL THE FACTS, AND NOTHING BUT THE FACTS.... THE FACTS! WOULD THAT THERE WERE SOME WAY OVER AND ABOVE ITALICS WITH WHICH I MIGHT STRESS, MIGHT SHOUT ALOUD THAT WORD: FACTS! The Art of Advocacy: A Plea for the Renaissance of the Trial Lawyer by Lloyd Paul Stryker, Zenger Publishing Co. Inc. (1954) Step 4 Recreate the events: F Documents F Testimony put yourself in shoes of all participants. Determine what was said and what happened, what wasn t said or didn t happen, and what should have been said or should have happened. F Do not assume anything! Step 5 Identify the relevant law. Step 6 Prepare a detailed, annotated, indexed chronology of the facts. Step 7 Prepare jury instructions. Step 8 Prepare verdict form. Step 9 Find the story of your case the theme. Most cases come down to somebody doing or not doing what they should or should not have done. Examine all of the facts from your chronology and organize them into picture segments until you identify the theme, otherwise known as: F The heartbeat of the case, 5 5 Learning to Think Like a P.I. Lawyer, James G. Nelson, Salem, Oregon. 18th Annual Oregon Trial Advocacy College 2 5

32 F Elevator speech, Chapter 2 Trial Advocacy: Quick Step Guide F Those universal truths with which the majority of your audience will agree i.e., abuse of power, broken promises, loss of dignity. F your favor. My definition: Those facts which will make the judge or jury want to decide the case in F My other definition: Those facts which will make the judge or jury conclude they should decide in your favor. Step 10 Prepare legal elements and evidence matrix. See attached Trial Preparation Matrix. Step 11 Rearrange the facts into a storyboard ; picture segments or chapters consistent with your theme. Those segments may or may not be in chronological order usually not. Step 12 Prepare your draft closing argument. This is your best description of why your side should prevail use it to assess what evidence you need and what evidence can be discarded; however, it is not a summation of the evidence rather, argue its significance. Step 13 Prepare preliminary exhibit list. Step 14 Prepare preliminary witness list. Step 15 Complete the legal elements and evidence matrix using jury instructions, exhibit lists, and witness lists. Step 16 Prepare demonstrative exhibits. F Simple; F Clear; F Effective No more than three points per exhibit; F Timeline if appropriate. I hear and forget. I see and I remember. Chinese philosopher, attributed by some to Confucius, B.C. ( I do and I remember But that s another Quick Step Guide!) Step 17 People like stories. Write the story. F Choose active, descriptive, and memorable words little, if any, legalese (except incorporating words from jury instructions in your story). However, don t talk down. Bad: She had a subdural hematoma, a pooling of blood on the brain, for you lay people. Good: She had a pooling of blood pressing against her brain the doctors call that a subdural hematoma. 18th Annual Oregon Trial Advocacy College 2 6

33 Chapter 2 Trial Advocacy: Quick Step Guide F Use all of the senses to describe the story. (Have not yet found a way to incorporate into trial that sense which triggers memories the best smell!) F Use the same key descriptive and memorable words and phrases throughout the story. F Use anchoring, a phrase repeated to reinforce a point or the same place in the courtroom. F Reduce complex theories to simple, understandable, seventh grade language, using analogies and examples from everyday life. F Organize the story for greatest persuasive impact, omitting extraneous detail but highlighting, emphasizing, and expanding on facts supporting your theme. Don t be afraid to eliminate extraneous material. Keep the story moving toward the conclusion. When Michelangelo was asked how he managed to turn a lump of marble into a beautiful statue of an angel, he replied: I saw the angel in the marble and carved until I set him free. F Use different techniques to change topics and keep (or recover) audience s attention. Introductory headlines, pauses, movement, gestures, or reference to an exhibit. Step 18 Now let s talk about your injuries. F Simplify! Everything should be made as simple as possible, but not simpler. Albert Einstein Make a list of all of the conclusions you want your audience to reach the answers to the questions it will be asking itself as it reads/listens to your presentation. 18th Annual Oregon Trial Advocacy College 2 7

34 Step 19 Chapter 2 Trial Advocacy: Quick Step Guide Put each conclusion on a separate sheet of paper and list all of the evidence, including inferences, supporting that conclusion, annotated and indexed to the source of that evidence, whether a document, photograph, deposition, or interview. Step 20 Prepare your exhibit list annotated and indexed to witnesses. The first few exhibits should tell the story. Here is where the should I? why? what s my purpose? my goal? questions are most often ignored and abused! Step 21 Prepare witness outlines annotated and indexed to exhibits and deposition excerpts. Step 22 Repeat the three questions with each decision: Can I? How do I? Should I? IV. THE TRIAL A. Voir Dire VOIR DIRE VWOR DEER VWOR DIE ER JURY DISSELECTION The horrible truth is that nothing is more exquisitely painful than listening to the average voir dire. McElhaney, Voir Dire, Litigation ABA Journal of the Section of Litigation 18th Annual Oregon Trial Advocacy College 2 8

35 Step 1 First Do No Harm F F F Don t embarrass. Don t humiliate. Don t be condescending. Chapter 2 Trial Advocacy: Quick Step Guide F Don t ask dumb questions about meaningless topics, e.g., What s the last book you read? Step 2 Get them to like and trust you establish eye contact with each juror. Step 3 Get them talking about what they are comfortable with themselves. Step 4 Try to identify the biased problem jurors and the potential leaders of the jury. Step 5 Avoid trying to convince jurors by asking questions that result in only yes or no responses ask open ended questions requiring a narrative answer. Step 6 Identify key issues and state them in neutral, open-ended questions e.g., What do you think about drinking and driving? How do you feel about that? What s your reaction to that? Step 7 Listen and hear. Nobody never learned nothin while their lips are movin. Anonymous Step 8 Use seventh-grade vocabulary, but don t pander or talk down to jurors. Step 9 Follow up on answers even bad ones; better to know now. Step 10 Don t forget damages do you or do you not discuss? If seeking damages, yes; if defending, it depends. Step 11 Be candid and ask for candor.6 Disclose negative facts but combine with positive information. Step 12 Best result? Having jurors identify and articulate the conclusions you want them to reach through open-ended, neutral questions. Step 13 Trust your instincts! 6 Remember the title of Judge Judy s book Don t Pee on My Leg and Tell Me It s Raining. 18th Annual Oregon Trial Advocacy College 2 9

36 B. Opening Statement Step 1 Chapter 2 Trial Advocacy: Quick Step Guide Write the entire story using active and memorable seventh-grade vocabulary eliminate the legalese, except some key words or concepts, from jury instructions. Step 2 Step 1.1: Rewrite the story. Arrange the story in the most persuasive (to correct or prevent an injustice) manner so that you: F F F Start and end strong. State facts, not opinions, characterizations, conclusions, adjectives, or adverbs. Subtly restate or provide more detail regarding key facts. F Use storyboard, headline, sound bite, or segmentation technique of presentation, e.g., Now let s talk about.... Step 3 F Use real evidence, i.e., exhibits, diagrams, maps, pictures, etc. Arrange facts in the most persuasive order or segments, not necessarily chronological use storyboard or chapter method. ( Let s first talk about the accident and then your background. ) Step 4 Prepare the theme or grab em that first 30 to 90 seconds of your opening during which you gently set before the jurors those facts that will make them want to immediately decide the case in your favor or at least get them heading in that direction. The theme is not a slogan or catch phrase such as, This case is about the tragedy of the loss of a loved one. F F F F F F Don t state conclusions. Don t make characterizations. Don t argue. Don t tell (adults, not only children, psychologically resist being told what to do or think). Don t read or memorize it. Do use rhetorical questions. F Do lead jurors to the conclusions you want them to reach by giving them facts that will make them want to decide the case in your favor. F F F factors. F F People s attention span is between 30 and 90 seconds. Have a strong beginning and end. Put the really bad facts in the middle and combine them with explanatory or mitigating Use some key words or phrases from jury instructions. Use exhibits, diagrams, and pictures. 18th Annual Oregon Trial Advocacy College 2 10

37 Chapter 2 Trial Advocacy: Quick Step Guide F Pause; At least every 90 seconds do something to regain lost attention, e.g.: Refer to exhibit; State next chapter or topic heading; Slow down; Move; Change tone of voice; Change the communication method go from speaking to blow-up to exhibit or to video clip the newscaster sound bite method. Step 5 Reduce your written opening to an outline, using key words and phrases. F Use a demonstrative exhibit as outline for opening. F Use exhibits as prompts for opening. F Use a timeline. Step 6 Revise outline of opening. Step 7 Revise and refine outline of opening. Step 8 Revise outline yet again by simplifying but expanding on persuasive facts supporting your theme until you can present it in less than 30 minutes. 18th Annual Oregon Trial Advocacy College 2 11

38 Step 9 Rehearse, rehearse, rehearse. F Chapter 2 Trial Advocacy: Quick Step Guide Practice your grab em and story to nonlawyers. F Use word association technique to get reaction from your nonlawyer audience what s the first word or thought that comes to mind when I say [state your 60-second grab em theme]. Step 10 Keep it simple, brief, and memorable! Step 11 End strong! C. Direct Examination of Witnesses Step 1 Get the facts and all of the facts use your detailed annotated chronology. Step 2 Prepare a list of conclusions you want jury to reach with that witness s testimony. (Use your legal elements and evidence matrix.) Step 3 Ask yourself, Why am I asking this witness these questions? What is my goal? What is my purpose? What conclusions do I want the jurors to reach? What will be my opponent s response and what will my rebuttal be? Remember Advocacy is a multidimensional chess game. Step 4 Organize conclusions into the most persuasive order you may not want to begin with the witnesses education, work history, and memberships in charitable organizations. F Listen to and hear the answers given. F Don t just blindly follow your outline if the witness gives an incomplete or inaccurate answer. 18th Annual Oregon Trial Advocacy College 2 12

39 Step 5 F Follow up. Chapter 2 Trial Advocacy: Quick Step Guide Write each conclusion you want jury to reach at the top of a sheet of paper use a new sheet for each conclusion. Step 6 List all answers you want each witness to give under each conclusion. (This will help you ask nonleading questions.) Step 7 Index and annotate each answer with supporting exhibits, deposition excerpts, diagrams, etc. And I would sooner trust the smallest slip of paper for truth, than the strongest and most retentive memory, ever bestowed on mortal man. Joseph Henry Lumpkin, American Jurist, Miller and Others v. Cotton and Others, 5 Ga 341, 349 (1848) Step 8 Simplify, simplify, simplify. Step 9 Expand on those conclusions you want the jury to reach. Paint a detailed picture in the jury s mind s eye with clear, concise, descriptive, seventh-grade words. Use diagrams, pictures, and exhibits with the witness tell and then show your story. [Pictures] are images, Directly entering the blood stream, Bypassing the brain. William J. Washington, Journalism Review, 1990 Step 10 Put jurors in the scene ( Ms. Witness, you were standing at the corner of SW 5th and Pine, what do we see? ). Step 11 Rehearse, rehearse, rehearse with your witnesses. (Visit the courtroom with your witnesses before trial.) Step 12 Use subtle repetition, i.e., use some portion of the previous answers in the next question. (Q: As he approached you, did you notice anything unusual? A: Yes, he had a gun. Q: What was he doing with the gun? A: Pointing it at me. Q: As he was pointing the gun at you, was he saying anything?) Step 13 Use headlines so the jury knows when you move to a new topic. ( Now let s discuss the reasons you did not sell the property. ) Step 14 Humanize client, especially corporation, by referring to your client or the responsible witness by name, not by my client, Ethos Corp. (Make sure you have the responsible person at counsel table so jury has to deal with an actual person and not a faceless entity.) 18th Annual Oregon Trial Advocacy College 2 13

40 Step 15 Chapter 2 Trial Advocacy: Quick Step Guide End with a conclusory question Are you absolutely sure you saw Mr. McNeil run the red light? D. Cross-Examination Step 1 Don t! Don t! Don t! Unless you have a specific goal in mind. F Always ask yourself why why am I asking this question? What is my goal? What will be the witness s answer, and what will be my opponent s response, and what will my rebuttal be? F Above all, don t let witness retell his direct testimony unless you really want him to! (Q: On direct you testified the light was red; you were mistaken, weren t you? A: No, and let me explain again how I am absolutely sure the light was red.) Step 2 Do identify goals. F First, elicit favorable testimony and support for your expert authorities if possible. 7 F Demonstrate lack of knowledge, e.g., inconsistent statements. F Prior criminal convictions (of questionable value unless really egregious!). F Identify facts with which witness can help or confirm your theme. Step 3 Cross examination is not angry examination. F Focus on witness having wrong facts. F Focus on witness having wrong assumptions. F Focus on witness being provided incomplete information. F Focus on witness misperception or bias. Step 4 Prepare outline of conclusions you want jury to reach and then use same technique as with direct separate sheet for each conclusion with annotated and indexed answers. Step 5 Structure of questions is crucial. F Take control Don t give witness the opportunity to repeat and reinforce direct testimony. F Do ask leading questions F You testify by asking short declaration questions (Q: You were driving.... Q: It was raining.... Q: It was 10 p.m.... Q: No street lights.... Q: It was dark.... Q: Your windshield wiper was broken....). F Get witness to agree with your testimony. F Eliminate the negatives You didn t see the defendant, did you? A: Yes. F You maintain control. Repeat your question if the witness dodges or weaves I m sorry, my question wasn t very clear did you or did you not read exhibit 1, the earnest money agreement, before signing it? 7 Thank you, Don Marmaduke! 18th Annual Oregon Trial Advocacy College 2 14

41 Chapter 2 Trial Advocacy: Quick Step Guide Step 6 Don t interrupt witness. She is entitled to explain her answer after she answers your question. Politely repeat your question as necessary to get an answer. Step 7 Keep it simple. Step 8 Don t overestimate the effect of showing that the witness gave different testimony in a deposition. Only use this impeachment technique sparingly and if inconsistent testimony is meaningful or frequent Should I? Step 9 Stop. The One-Question-Too-Many Rule is part of Murphy s Law! E. Closing Argument Step 1 Have closing argument prepared substantially before trial (some say first thing after getting all of the facts and identifying the applicable law.) But don t read or memorize it. Step 2 Emphasize those facts that are consistent with your theme and that disprove your opponent s case. Remember, it is unfairness that jurors recognize best. F Tell and show the jurors that evidence that leads them to conclude the case in your favor. Don t just restate the evidence, explain how the evidence supports the conclusions you want them to reach. F This is the time to use symbols, passion, common sense, the law, examples, analogies, and key high-impact words and phrases ( Leaden Corp. decided to wash their hands of her because she reported the harassment of her coworker. ). Step 3 Ask. Don t tell the jurors what they should do. Get them to reach their own conclusions in your favor, and they will become your advocates in deliberations. Step 4 Don t overstate don t understate. Remind them of the facts that have been presented. Step 5 Use rhetorical questions, court s instructions, and verdict form as guides for your presentation (ask the court to give jury instructions before closing argument). Step 6 Respond to opponent s argument or really bad facts in the middle with explanatory or mitigating facts. Step 7 Be absolutely accurate and candid in your statement of facts and law. Step 8 Show the jury what its conclusion should be through use of demonstrative exhibits, jury instructions. and the verdict form. 18th Annual Oregon Trial Advocacy College 2 15

42 Chapter 2 Trial Advocacy: Quick Step Guide Step 9 Show motive. Step 10 Don t forget damages! See Bill Barton s article in Chapter 2. Step 11 Make result bigger than just this case. Step 12 Stop! More cases are lost in closing argument than won. Anonymous Judge Be brief, be pointed, let your matter stand; Lucid in order, solid and at hand; Spend not your words on trifles but condense Strike with a massive thought not drops of sense; Press to the close with vigor, once begun; Leave how hard the task! Leave off when done. Joseph Story, Advice to a Young Lawyer, th Annual Oregon Trial Advocacy College 2 16

43 Chapter 2 Trial Advocacy: Quick Step Guide APPENDIX TRIAL PREPARATION MATRIX Exhibit Plaintiff s Elements of Claim Witness Source Comments No. Description I. Defendant s negligence A. Defendant driving Officer Lawless 1 Police report B. Defendant speeding Mr. Fast 2 Skid mark photo Mr. Swift Depo. pp But see investigator interview, p. 2 C. Collision II. Plaintiff s injuries A. Broken back (vertebrae) Dr. Healum 3 X-ray Dr. M. Linger Depo. pp B. Strained muscle Dr. Chiro 4 X-ray C. Therapy Dr. Chiro Ms. T. Repee D. Bills 5 Dr. Healum s bills III. Plaintiff s Damages A. Permanent 30% loss of use of left arm Stipulation letter February 3, 1986 Dr. Healum Get magic language. Reasonable medical probability (?) B. Restricted activities Mrs. Plaintiff 6 Video day in life of plaintiff C. Loss of work Mr. Boss 7 Time cards Mr. E. Conomist 8 Flip chart Get stipulation Now do the same for defendant. 18th Annual Oregon Trial Advocacy College 2 17

44 Chapter 2 Trial Advocacy: Quick Step Guide 18th Annual Oregon Trial Advocacy College 2 18

45 Chapter 3 Damages William A. Barton The Barton Law Firm PC Newport, Oregon Contents I. The Importance of Personal Authenticity and Passion II. Theory, Themes, and Your Trial Story III. Steal from the Jury Instructions IV. Be Creative V. Think About Movement VI. Argue What the Facts Mean, Not Just What They Are VII. Make Damages a Priority VIII. Reason and Emotion IX. Does Your Closing Argument X. Don t Memorize XI. Enlarge and Use the Verdict Form XII. Organize XIII. Objecting XIV. Use Analogies XV. Rhetorical Questions XVI. Talk About Motive, but Avoid Calling the Witness a Liar XVII. Arm Favorable Jurors with Persuasive Arguments XVIII. Anticipate Your Case Weaknesses and Your Opponent s Arguments XIX. Rebuttal Appendix A The Stuff of Good Jury Trial Lawyers Appendix B Personal Authenticity Appendix C Learning How to Live from One Moment to the Next

46 Chapter 3 Damages 18th Annual Oregon Trial Advocacy College 3 ii

47 Chapter 3 Damages... [F]inal argument is the moment for pure advocacy, when all of the lawyer s organizational, analytic, interpretive, and forensic skills are brought to bear on the task of persuading the trier of fact. 1 I. THE IMPORTANCE OF PERSONAL AUTHENTICITY AND PASSION Included in your materials are two articles I ve written for the Litigation Journal. One was published in the Fall 2008 edition and is titled The Stuff of Good Jury Trial Lawyers. It discusses the importance of passion. The other was published in May 2003 and is titled Personal Authenticity. Speed-read these before you begin the mechanics of preparing your closing. Reflect particularly upon the article by Ken Goe included as an attachment to the Authenticity article. One of my biggest criticisms of CLEs is that they do a poor job of teaching how to argue damages. You can watch and learn from others, but the big intangible is about you being real or authentic. Trial lawyers should aspire to bring something of themselves to their presentations. If you choose not to, then stand in line with all of the other legal technicians parading through our nation s courtrooms playing stack-a-fact, meaning analyzing, fractionalizing, and categorizing fact situations to death. I call it lawyer-speak. It s fair to ask what is missing from stack-a-fact. My best response is passion: your personal conviction expressed in your own style and voice. Let s be clear; you can have too much of a good thing. You re not permitted to be loud, shrill, or maudlin, and it s not okay to solely rely on your inner voice and true feelings. Common sense defines the middle ground. Temper your passion: remember that a whisper can be deafening. Ultimately, it s about the student being as effective as possible given his/her experience, temperament, and emotional range. There s plenty of accommodation for personal style. Jurors are looking for a lawyer with personal conviction. They want to see which lawyer really believes his/her side should win, rather than a lawyer who is giving a closing because it s expected. II. THEORY, THEMES, AND YOUR TRIAL STORY A good trial theme provides an incentive for the entry of a verdict in you client s favor. In addition to being logical and believable, a trial theme invokes shared beliefs and common values. Just as a theory explains why the verdict is legally necessary, the theme explains why the verdict is morally desirable. 2 The first minute or two of your closing argument should communicate three things to the jurors: your theme, why the jury should find in your favor, and your enthusiasm about your case. 3 Your theme is what your case is about, i.e., this case is about a job, or this case is about public safety. In all of my sex cases, my theme is generic; this case is about an abuse of trust, power, and violation of human dignity. People have short attention spans when it comes to technical matters. The heart of your case is plot, motive, and characters. Remember, trials are really about competing stories. Whose story is most likely and also most deserving? Motive isn t an element in most civil negligence claims, but it s the first place jurors look to organize the information in order to understand why something has happened. III. STEAL FROM THE JURY INSTRUCTIONS Use the court s instructions to your advantage. The law may be neutral, but in the hands of a thoughtful lawyer the court s words drip key phrases and concepts. When delivered, the court s 1 Steven Lubet, Modern Trial Advocacy Analysis and Practice, 2nd Ed., National Institute for Trial Advocacy, Notre Dame, IN, 1997, p Lubet, p Thomas Mauet, Trial Techniques, 6th Ed., Aspen Publishers, New York, NY, 2002, p th Annual Oregon Trial Advocacy College 3 1

48 Chapter 3 Damages instructions should echo your case themes. I call this wrapping oneself in the dignity of the judge s robe. It s not theft, but when it s happening, and you re opposite, it sure feels like it. IV. BE CREATIVE You don t have to argue chronologically. Where are you going to start your closing? Where did you start your trial story in your opening? Flashbacks can be dramatic, but remember, temper everything with common sense. Demonstrating and arguing what didn t happen is often far more powerful than simply saying it. Consider reading a fictitious newspaper advertisement, carrying on an imaginary telephone conversation, or creating an exchange of business memoranda that were never sent. In your closing, consider writing what they knew, what they said, what they did, and why. The jury will know how to answer on the verdict form. V. THINK ABOUT MOVEMENT A certain amount of body and hand movement will enliven your final argument and increase the attentiveness of the jurors. Gestures can be used to emphasize important points or to accent differences between your case and the opposition s. Body movement can also be used for emphasis or transition. Pausing and taking a step or two will alert the jury that you are about to change subjects. Moving toward the jury will underscore the importance of what you are about to say. Moving away from the jury will signal the conclusion of a line of argument. Note that body movement can only be used effectively if you avoid aimless pacing. Constant movement is not only distracting to the jury, but it also deprives you of the ability to use movements purposefully. 4 VI. ARGUE WHAT THE FACTS MEAN, NOT JUST WHAT THEY ARE On close analysis, most closings are little more than a verbal rock fight with each side volleying its strongest facts back and forth. Both sides usually end up repeating what the evidence was, in everescalating volume, rather than explaining its significance. Give a final argument, not a summation. There is a difference. Don t tell the story of the case, or the story of the trial tell your people story, but don t argue every inference to its outer limit. VII. MAKE DAMAGES A PRIORITY Jurors are like an audience reacting to a play. They make their decisions based on the information made available to them. So you must control the proportion of time your trial spends on damages. A third to a half should be on harm, losses, and money. Smart defense attorneys try to force you to spend a lot less. They know that the smaller the proportion of time jurors hear and think about harm, losses, and money, the less the jurors will be moved to do much about them.... liability is defense turf. Damages is your turf. Fight on your own turf as much as you can. Whether you have a few minutes or a few weeks for jury selection, spend half on harms, losses and money. Spend a third of opening and direct testimony, a significant chunk of your cross examinations, and half your closing on harms, losses, and money. Do this no matter how much attention your liability case needs. And to do this, don t abbreviate your liability case. Expand damages to meet the necessary proportions. 5 VIII. REASON AND EMOTION The closing should contain a balance of appeals to both reason and emotion, in that order. There s no requirement you discuss everything. 4 Lubet, p David Ball, David Ball on Damages-The Essential Update for Personal Injury and Wrongful Death Cases, 2nd Ed., National Institute for Trial Advocacy, South Bend, IN, 2005, p th Annual Oregon Trial Advocacy College 3 2

49 F F F F courtroom. F F F F F Simplify the case for the jurors. Chapter 3 Damages A brief and early topical preview of your closing helps the jurors. Ask yourself who is the foreperson and who are the strongest jurors. Before delivering your closing, think about your positioning and movement in the Make eye contact with each of the jurors. IX. DOES YOUR CLOSING ARGUMENT... Tell the jury why to find for your client? Make the jury want to find for your client? Tell the jury how to find for your client? Satisfy their common sense questions? F Anticipate what the jury will be discussing? 6 X. DON T MEMORIZE I use bullet points on a flip chart and the verdict form to provide the structure I need. XI. ENLARGE AND USE THE VERDICT FORM Organize your closing around the verdict form. Use it as a map. Fill in the blanks with your suggested answers. Psychologists call these bracketing numbers, meaning they bracket the jury s dialogue about damages. Don t order or direct, you re a guide and coach. Explain to the jurors why what you re asking for is reasonable, while letting them come to your conclusions on their own. It s traditional lore that plaintiffs lawyers want simple verdict forms with few liability questions and as many damages questions as possible. The defense wants the opposite. XII. ORGANIZE Just before your actual closing, spend the time necessary to carefully organize any documents and exhibits you re going to be handling and referring to during the delivery of your closing. You want everything to unfold smoothly. XIII. OBJECTING I tend not to object, although I sometimes do when an opponent starts offering her personal opinions. This allows me to cite an ethical violation by my opponent, which the judge will sustain. ORPC 3.4(e): A lawyer shall not... state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. (You will find this in your OSB Membership Directory under Rules and Policies.) XIV. USE ANALOGIES If the fact finder judge or jury reaches a conclusion on its own, it will hold that conclusion more firmly than if it had merely been told what conclusion to reach. Lloyd Paul Stryker put it superbly in the Art of Advocacy 125 (1954): No point is ever better made than when not directly made at all but is so presented that the jury itself makes it. Men pride themselves on their own discoveries, and so a point which the jury are allowed to think their own ingenuity has discovered can put the advocate 6 Roger Haydock & John Sonsteng, Trial Advocacy Before Judges, Jurors and Arbitrators, 2nd Ed., West Group, St. Paul, MN, 1999, p th Annual Oregon Trial Advocacy College 3 3

50 Chapter 3 Damages in a position where the jury begin to regard him as not only their spokesman but their colleague. 7 The problem, then, is to discover how to guide the jury so that it reaches the conclusion you want and thinks it has figured things out for itself Analogies are effective, and it is worth knowing why. The answer is simple. Analogies work for two related reasons. First, good stories command the attention of the listeners. They want to find out what happened. Second, analogies challenge the listeners to test their appropriateness to the point made. When someone tells a story to prove a point, it is almost impossible to resist testing it to see if it fits the situation. What is the net effect? You are right. The audience, in testing the aptness of a comparison, reasons the problem through and reaches the conclusion on its own. That is just what Lloyd Paul Stryker told us to get the jury to do. Analogies whether simple allusions or detailed stories are a distinguishing mark of outstanding final arguments. They lead juries to draw their own conclusions, which they believe more fervently than if they had merely been told what conclusion to reach. 8 XV. RHETORICAL QUESTIONS Use rhetorical questions to structure your closing and guide the jury. This is all part of making the case what you want it to be about. Psychologists call this availability bias. Pick the issues to which you have favorable answers. Rhetorical questions can also be used effectively to challenge your opponent with difficult or unanswerable questions. If he fails to answer these questions, the jury will undoubtedly remember it. 9 XVI. TALK ABOUT MOTIVE, BUT AVOID CALLING THE WITNESS A LIAR It s rarely wise to argue that a witness has lied. There s a big difference between being inaccurate and untruthful. If it s obvious a witness lied, then you don t need to say so, and if it s not obvious, then it s too dangerous. Think about it.... This isn t to say you shouldn t argue bias, interest, and motive. Please do so. Yes, the jurors want an explanation as to why the defendant acted as he did, but stop short of calling anyone a liar. When you punish the other side during the trial, what s left for the jury to do? Maybe feel sorry for your opponent? XVII. ARM FAVORABLE JURORS WITH PERSUASIVE ARGUMENTS David Ball, in David Ball on Damages, says the primary purpose of closing is to arm favorable jurors with arguments they can use during the deliberations to persuade their fellow jurors. Ball suggests telling the jurors they have two jobs: one is to answer the questions on the verdict form; the second, even more important, job is to explain to fellow jurors why they believe as they do. Give your favorable jurors brief statements that synthesize your response to each important question, such as Dr. Fisher cut without looking. In deliberations, when a fellow juror asks what Dr. Fisher did wrong, the favorable juror will remind them, Dr. Fisher cut without looking. This is particularly important on money issues. Jurors worry about being criticized for giving a lot of money. But they don t worry about being criticized for giving too little; therefore, they often do. 7 West Group, St. Paul, MN, 1999, p James W. McElhaney, Trial Notebook, 4th Ed., ABA Publishing, Chicago, IL, 2006, pp. 680, Mauet, p th Annual Oregon Trial Advocacy College 3 4

51 Chapter 3 Damages... [w]hen a favorable juror speaks in the terms you provide, other favorable jurors are more likely to quickly and strongly voice agreement. When favorable jurors hear each other say things they agree with, their unity and resolve reinforce each other, creating a powerful force in the group. This is a primary dynamic of group decision making. 10 Enumerate your damages. Discuss and explain the key phrases from the damages instructions (mental stress, anxiety, emotional pain, depression, anguish, etc.), with reference to the damages lines on the verdict form. XVIII. ANTICIPATE YOUR CASE WEAKNESSES AND YOUR OPPONENT S ARGUMENTS While your closing argument should positively argue your strengths, this does not mean that you should entirely avoid weaknesses. Every trial will have some weaknesses. If it did not, the case would have been settled before trial. Confronting weaknesses has two advantages. First, your weaknesses are your opponent s strengths. By addressing them first, you can in part deflate his later argument so that the jury does not hear those points for the first time from your opponent, the way he wants them argued. Take the wind out of his sails by raising his points first, and they will sound hollow and tired when he argues them. Second, the jury will respect your honesty and candor when openly and candidly discussing those weaknesses. Since your credibility as an advocate is critically important, this consideration should not be downplayed. Remember that jurors, like everyone else, are influenced by whom they like. Make sure that s you and your party. 11 My friend, Tom Tongue, a most experienced defense attorney, says he likes to pick one or two points in the plaintiff s proof he thinks he can win and keep the jury focused on these weaknesses. Once again, each attorney is fighting for the high ground. When you re defending and don t have the burden of proof, this is how it s done. XIX. REBUTTAL Save a point or two with a bite for your rebuttal. If you haven t objected much, rebuttal gives you a chance to say, When the opposing lawyer said, I could have objected right then, but I didn t because I wanted to see just how far the opponent was willing to go in order to win. Here s where a little stored indignation can serve you well. 12 Everybody does their trials and closings differently. Most lawyers find it s easier to argue liability than damages. Why? I suspect it s because you have to bring a little of yourself when arguing pain and suffering. 10 Ball, pp Mauet, p McElhaney, p th Annual Oregon Trial Advocacy College 3 5

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53 Chapter 3 Damages Litigation Journal FALL 2008 In This Issue 2 FROM THE EDITOR Dennis Rawlinson 4 REFLECTIONS/ OBSERVATIONS FROM A JURY TRIAL Stephen English The Stuff of Good Jury Trial Lawyers By William A. Barton Barton & Strever, PC 6 THE DIMINISHING VIABILITY OF WRONGFUL DISCHARGE CLAIMS Scott Seidman & Anna Sortun 10 CONTRIBUTORY NEGLIGENCE(!) IN ECONOMIC LOSS CASES Erick Haynie & Calvin TerBeek 13 LAWS PROVIDE AGAINST INJURY FROM OTHERS, BUT NOT FROM OURSELVES. Brian Campf 21 RECENT SIGNIFICANT OREGON CASES Stephen Bushong INTRODUCTION WWhat stands in our way, or more properly, what stands most in the way of most of us from being an effective jury advocate? At the deepest levels of psychology, it is fear. This fear expresses itself behaviorally in dry, rote presentations devoid of passion and creativity. When I asked Peter Richter of Miller Nash What is the stuff of great trial lawyers? he said it is preparation, imagination and passion. I, too, think it is three qualities. I say it is Hard work, creativity and passion. It is obvious Peter and I are in agreement. This paper doesn t rate the three attributes in terms of impor- William Barton tance, but I do submit there is a dearth of creativity and passion in the courtroom. I offer my thoughts on why that is, and suggest how any lawyer can acquire these attributes. The bottom line is, in order to be an effective trial lawyer, you must be persuasive. That s what this paper is about. FEAR IS YOUR GREATEST LIMITATION Fear is the primary impediment to lawyers becoming more than the facts, or more than simply competent technicians. This results in inexperienced lawyers being driven more negatively than positively. Rather than giving their best pitch with gusto, their primary motivation is to not screw it up. To say it is Please continue on page 16 18th Annual Oregon Trial Advocacy College 3 7

54 Chapter 3 Damages 16 LITIGATION JOURNAL Good Jury Trial Lawyers continued from page 1 the fear of failure is a bit trite. Begin by trying to taste your own fear. What is its essence? By incrementally peeling away the emotional varnish, you will probably find that it is really a fear of embarrassing yourself. In other words, what you are really afraid of is being vulnerable. Now we are getting close to the core of fear. The irony is that the problem is also the answer. With reflection, you will come to understand that your fear is also a gift; a gift from you, to yourself. All you have to do is be honest enough to unwrap your own present; i.e., be honest with yourself. This kind of honesty requires you go to the very place you don t want to go. You must embrace your own fear. By being really honest with yourself you will then have the ability to be really honest with others, meaning the jurors. Why is this kind of honesty so difficult to access? Because it requires a vulnerability that is the precise opposite of not only how we want to know ourselves, but more important, how we want others to view us. We want others to see us as competent, strong and confident; yet down deep, we rarely think of ourselves that way. STACK-A-FACT Most of us are scared when we go to court. We feel weak and impotent. Every fiber of our being is at risk. What do we, as lawyers, do when threatened at such a primitive level? What everyone else does. We marshal all our resources to protect us from the threat. We defend ourselves. As smart lawyers, we try to think our way out of the problems. We analyze, categorize, and fractionalize everything, over, and over, and over again. I call this kind of behavior stack-a-fact. No surprises here. After all, stack-afact is an integral part of every lawyer s training. Much of the work young associates do, and must do well, requires As smart lawyers, we try to think our way out of the problems. We analyze, categorize, and fractionalize everything, over, and over, and over again. behavior and skills that are in direct opposition to the principles of persuasion. For example, when responding to motions for summary judgment, a lawyer s job is to identify fact questions that must be resolved by the jury. Any question will do, just find me a fact question. Defeat that damn motion! shouts the boss. More theories and more facts surely increase the chance that the judge will agree there is a fact question somewhere. This behavior is the opposite of simplification. There is a selection mechanism that excludes anyone from being a lawyer who is not adept at the skills tested on the LSAT. Your ability to perform a multifactorial analysis will reward you with a fine test score, but what does that have to do with your compassion, creativity or common sense? My trial lawyer friends from the big firms tell me that the best students from the best schools do not necessarily make the best jury trial lawyers. Why? Because they re not comfortable making quick decisions on their feet. They always need to be in control and tend to overanalyze everything. After all, their analytical prowess serves them well, both as students and lawyers. While much can be anticipated and briefed pretrial, something always harkens unbidden. Do I object? If I ask this question, will it open the door to evidence that wouldn t otherwise be admissible? My friend from Salem, Ralph Spooner, reminds us that Trials are live action, baby! THE THREE INTANGIBLES Now let s talk about the three attributes of persuasion and the stuff of great trial lawyers: hard work, creativity and passion. 1. HARD WORK This is what we do best. We generate lots and lots of billable hours. There is no need to belabor this. You already know too much. Two thousand-plus billable hours a year. I rest my case. 2. CREATIVITY This is in short supply among lawyers for many reasons. First, we intellectually worship logic, and emotionally we want structure and order in everything. Some of what we do in our own work is generating legal syllogisms, which has everything to do with classic deductive thinking, and nothing to do with inductive thinking. We need and demand lots of 90 degree angles. The big news here is that jurors think inductively, not deductively. This is important. Bill Wheatley s Thoughts Here I include some comments from my longtime friend, Eugene lawyer Bill Wheatley. He practices in the areas of defense of personal injury and commercial claims. I quote from a recent letter he wrote me: Please continue on next page 18th Annual Oregon Trial Advocacy College 3 8

55 Chapter 3 Damages LITIGATION JOURNAL 17 Good Jury Trial Lawyers continued from page 16 I ve been wanting to talk to you or drop you a line concerning our last conversation. You put forth the proposition that the three keys to effective trial advocacy are: 1. Passion 2. Hard work 3. Creativity Persuasive as you are, I thoughtlessly accepted the proposition and agreed with you. However, it has been haunting me ever since. I believe you ve got it right with hard work and passion, but I m a bit concerned about your message of creativity. In my experience, more cases are lost because someone is trying to be creative (when it really isn t necessary), than cases lost because of a need for creativity. Obviously, there are those rare cases, and where talents like yours can capture the soul of a case with a creative approach. In most cases, however, the concept exceeds the ability of most trial attorneys and, thus, becomes a vice rather than a virtue. If I were to look for a third link in your trifecta, I would probably adopt the concept of CREDIBILITY. Credibility of the cause, credibility of the attorney, credibility of the client and credibility of the approach to the trial is essential. Obviously, that concept can overlap with other concepts such as passion, etc., but I think it is deserving of being incorporated into your trifecta. With hard work and passion, creativity will either naturally occur or simply become unnecessary because someone else already thought of the idea and your hard work allowed you to make good use of it. I suspect Bill Wheatley s concerns about the importance of creativity reflect the view of many accomplished defense attorneys. Plaintiffs lawyers face the Credibility of the cause, credibility of the attorney, credibility of the client and credibility of the approach to the trial is essential. burden of proof, are temperamentally inclined to be a bit more passionate and risk-taking, and creatively challenge the edges of the common law when necessary. For obvious reasons, defense attorneys tend to stick with the facts... How to Be More Creative It isn t necessary to jettison your ability to think like a lawyer. I only ask that you attempt to recapture your lost ability to understand legal questions through the eyes of ordinary folks. People just like you used to be... The best jury trial lawyers I know are legally and psychologically ambidextrous. They deftly tiptoe between the mandates of positive law [the court s instructions] and the jurors sense of sidewalk justice [common sense]. When this occurs, a legal symphony is afoot. Drop the Legal Jargon Think about all the synonyms the word contract has. How about bargain, deal, understanding or agreement? This is what your case is about. Lawyers talk about a breach of contract. Jurors understand a deal, or someone not keeping their word. Instead of discussing damages, consider talking about lost hopes and stolen dreams. Tell a Story When presenting your case, it s kind of like the country-western song, Somebody done somebody wrong... It is the jury s responsibility to right that wrong. Show them why and how. Don t just give the jurors a timeline on a big laminated board. Focus on the key disagreements and explain why your client is being honest. You needn t call the opponents liars, but you can discuss human nature, choices and profit motives. Leave ultimate conclusions about an opponent s honesty to the jury. They know what to do. Judging is their job, not yours. Winning the motive battle puts you squarely in the driver s seat. Keep It Simple Stupid It is your job to make every case you try simple. I don t care if it isn t. Harry Truman, the only President to serve in the 20 th century never to attend college, was fond of saying, I make complex things simple, and refuse to make simple things complex. Easy to say, tough to do. It is difficult to be creative, or be passionate. Maybe it just isn t your nature. I appreciate that. It takes a few trials to get the basic mechanics down. Once you are comfortable with the procedure, it then becomes easier to shift your focus to the more sophisticated aspects of advocacy. In the beginning, you are consumed with not embarrassing yourself by doing something stupid. You go to advocacy seminars and are told Don t do this, and Don t do that. It seems difficult to do anything right, particularly when you are focused on avoiding every- Please continue on next page 18th Annual Oregon Trial Advocacy College 3 9

56 Chapter 3 Damages 18 LITIGATION JOURNAL Good Jury Trial Lawyers continued from page 17 thing you shouldn t do. Academics and judges are really good at telling you what not to do. They are O.K. when it comes to telling you what to do; however, they often don t do well when it comes to actually showing or demonstrating. Why? Think about it... Start at the End Begin your case at the end, meaning the jury instructions. Good lawyers build their cases teleologically, meaning everything is constructed with the final instructions in mind. What are the phrases that capture the key legal concepts? Build your case theme around those phrases and ideas. Do this and the judge s instructions will be a chorus for your closing. You are not a thief when foreshadowing the exact words of the judge s instructions, although your opponent might think so. Consider requesting written instructions. [ORCP 59B]. If you file a written request then the judge must instruct the jury in writing. Prepare a separate set of instructions for each juror. This is discretionary with the court, but if you don t prepare them, and ask for them, you know you won t get them. Use the Verdict Form It is the framework around which to construct your closing. Enlarge it (with an overhead projector) and then during your closing, write the answers you are arguing for in the proper spaces on the special verdict form. You re not telling the jurors what to think, you re a guide, you re teaching. When arguing money, fill in the amount you claim the proof supports. Psychologists call your prayer an anchoring number. Jurors can t agree with you if you don t explain to them what you think is fair, i.e., why the defendant should pay large sums of money, and thus, why your client deserves Jim says write to the ear and speak to the eye. When people read what I write, I want them to hear me talking, and when I talk, I want them to see what I m saying. large sums of money. Closings Should Explain Why, Not What The closing for average lawyers is a verbal rock fight wherein they continuously repeat, with increasing volume, their three to five best facts. This is of no assistance to the jury. (Closings should explain why, not what, and then argue the reasonable inferences.) Here is where all the witnesses biases and interests are discussed under the heading of motives. Jurors will remember the proof. It is your job to explain what the evidence means, not what it was. McElhaney on Creativity My friend, Jim McElhaney, who writes the monthly Trial Tips column in the American Bar Association Journal, advocates gastronomical jurisprudence. Your facts should provoke a visceral response that tells the story of an injustice. Arguments appeal to the intellect. Lead with a punch. Lead with facts. ( Balance Persuasion, American Bar Association Journal, March 2002.) Tension is the product of conflict. If the listener doesn t care what might happen next, then the dialogue isn t working. Start with a crisis. Speak in the first person rather than a chronological third person narrative. Use literary techniques like foreshadowing in your opening statement: This is a case about a woman s eyes. Explain what happened, why it happened, and who s responsible. Jim says write to the ear and speak to the eye. When people read what I write, I want them to hear me talking, and when I talk, I want them to see what I m saying. ( Empty Words, American Bar Association Journal, December 2001.) 3. PASSION Most trials are mechanical presentations long on stack-a-facts. Passion may abound in life; however, I don t see much in the courtroom. Maybe it is there, but it is certainly well hidden, and when spotted, is easily mistaken for virtuosity and overt appeals to sympathy. What I often see from lawyers in trial are well-organized presentations that could be faxed to the jury with little loss of enthusiasm, energy or passion. Representing a client s interests isn t just another day at the office. What we do is really important, at least it is to our clients... Don t talk about a breach of a duty, or some other legal incantation. Talk about choice. This is what $350- an-hour jury consultants will tell you, whether it is the defendant s negligence, the plaintiff s comparative fault or any other affirmative defense. Turn fault into choice. With choice comes responsibility, and with responsibility comes culpability. Get indignant when explaining why your opponent made the wrong choices. Motive is the key. Being passionate doesn t mean you Please continue on next page 18th Annual Oregon Trial Advocacy College 3 10

57 Chapter 3 Damages LITIGATION JOURNAL 19 Good Jury Trial Lawyers continued from page 18 need to raise your voice. In fact, it is more effective to lower it. Silence can be deafening! For women litigators who are worried about striking the difficult balance between being assertive, but not too aggressive, it is gender congruent to lower your voice, while concurrently reducing the space between you and the jury. This fosters a powerful intimacy. Let s not forget about the money, and yes, I know the legal term is damages. This is my leading criticism of most trial advocacy teachers, colleges and institutes. Neither the faculty nor the students appear comfortable when talking money. Think about the character Jerry Maguire, from the movie by the same name, when he said, Show me the money! After all, that s why we are here! You ask, What is there to get passionate about in a simple negligence action, or a garden variety contract case? Try putting yourself in your client s shoes. What really hurts? Start there. The case you end up trying says as much about you, as the core facts you work with. Search until you find the human story within the facts, then emphasize the moral imperative. Where is the wrong that demands correction? Lawyers want to talk, talk, and talk about liability. More stack-a-fact. Everyone seems so much more comfortable when NOT talking about pain and suffering, and the money owed because of it. Why shouldn t you be sharing with the jury why every dime you have asked for is reasonable? Ask yourself, Why are we here? The answer for the jury is To right a wrong, and deliver justice. Ladies and Gentlemen of the jury, in our legal system justice can only be expressed in dollars. One of the rules inexperienced lawyers have difficulty learning is not to express their personal opinions. The reason isn t a rule of evidence. It s one of ethics. See Oregon Rule of Professional Conduct 3.4 (e), which states in part that The greatest compliment is when jurors from one of your past trials want to hire you. Why all the new and repeat business? It s because you are a fighter. [a] lawyer shall not... state a personal opinion as to justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. A simple way to address this, is to drop the I, me and lie from your closings. When your arguments contain tempered passion, you don t need to state your personal opinions. It will be obvious what you think! Why give your opponents the opportunity to state that the basis for their objection is a lack of ethics on your part, and then have the judge agree, and all this happens in front of the jury. How embarrassing! Not knowing your evidence is one thing, acting unethically is quite another... There are clear economic incentives to being passionate. When you fight for your clients, and lose [as you will about half of the time], your clients won t blame you. They will blame the judge, or jury! This means they will write you a check that doesn t bounce, will hire you in the future, and will send all their friends and relatives to you. The greatest compliment is when jurors from one of your past trials want to hire you. Why all the new and repeat business? It s because you are a fighter. I promise you, if you lose without passion, the clients will blame you. It really doesn t matter whether this is fair, because we can agree losing without passion is simply bad business. All lawyers lose their share of cases. What I am talking here is how you lose. Clients ask, nay, demand, that you lose mightily, with enthusiasm and great heart. You needn t act maudlin, shrill or wear the constitution on your sleeve. Nor am I talking about sympathy or pandering to the jurors emotions. What I am talking about is representing your clients with a commitment and earnestness that shows you care. Everyone can do that. After all, if you don t care, why should the jurors? PARTING THOUGHTS Take a Speech Class Read some books on public speaking. Yes, I know you were on the debate team in high school, took a speech class as an undergrad, and did moot court in law school. That was for credits and a grade. Now it s real. It s for money! It s for the client. Don t be Afraid of a Video Camera In our office, even though I have tried more than 500 jury trials to verdict, we still practice and practice our opening statements and closing arguments. By the time my partner Kevin gives the opening, it has been videotaped and critiqued at least a half dozen times. Credibility Think of jury trials as a gestalt involving the generation, acquisition, consolidation, and utilization of credibility. (This Please continue on next page 18th Annual Oregon Trial Advocacy College 3 11

58 Chapter 3 Damages 20 LITIGATION JOURNAL Good Jury Trial Lawyers continued from page 19 is what Bill Wheatley was talking about.) Yes, there is a process going on as you wade through the mechanics of jury selection, opening, evidence, closing, and the instructions. However, underneath this elaborate process is another game, one that s much more primitive and visceral. It s lawyers competing to win the battle of trust. You may not be able to see credibility, but you certainly know when someone doesn t have it. Without credibility, it doesn t matter what you think or if you and your client are right. Why? Because unless you are believable, nobody cares what you think, and if nobody cares what you think or say, then it really doesn t much matter whether you re right or wrong, does it? Quit Whining Judges can be heavy-handed and intimidating. When you hear a judge say Well, that would never be allowed in my courtroom, or worse, That would never happen in my courtroom, at least you know who you re in front of. Respectfully make your record and then do what you re told to do. A good portion of the time, they re right, and when they aren t, well..., they re still right! Now you know what the saying Equity is the length of the chancellor s foot really means. Being a trial lawyer is not for the faint of heart. You have to be hardy, strong and adaptable. Try to use the judge s abrasive attributes to your advantage. View every problem as an opportunity. In my experience, tough, mean judges treat you much better when: a) you show up early; b) you correctly pronounce the judge s name; c) you are completely prepared; d) you are familiar with their courtroom procedures; and, e) perhaps most important, you are respectful to their staff. So maybe the judge is having a bad day. Generally, I find they are equally hard on everyone, but particularly so to those who deserve it the most. If the judge is giving you a little unless you are believable, nobody cares what you think, and if nobody cares what you think or say, then it really doesn t much matter whether you re right or wrong, does it? extra, ask yourself what you may have done to earn it, then quit whining and go to work. Stick your butt up, your head down, and start picking grapes as fast as you can. Try and do better. Draw a deep breath and try to stand back from your feelings. Remember, this too will pass. TO THE BYRDS AND MR. RINGO Let me close by sharing with you two experiences that continue to inspire me years later. Once, while in Bend during the mid-eighties, I saw a sign advertising The Byrds in concert on a Thursday night. They were between shows on their way North to the Tacoma Dome. I couldn t believe it. The Byrds! In Bend, Oregon! There were 26 people in the audience that night. I counted them. The band came out. The house was all but empty. The lead singer, Roger McGuinn, began the show by saying We are the Byrds. Every night, we do a better show than we have ever done before. They rocked, they rolled and they dripped sweat. It was fantastic. In a small town, with barely two dozen paying customers, they put on a show I will never forget. They taught me something about what it meant to be a real professional, irrespective of the size of my case. If I have trouble getting motivated when doing a smaller case, I think of the Byrds. I might even pause, and play one of their CDs. When I am through, it is easy to remember that I too am a professional, and therefore in every one of my trials, no matter what the size of the prayer, I will always bring my A game and do my best. My last story is about my longtime friend and mentor Bob Ringo of Corvallis. Bob retired a few years ago. This trial occurred back in the mid-seventies. I had been out of law school 2-3 years. Things came pretty easy for me. I was winning most of my drunk driving defenses. I didn t need to prepare much. One afternoon I was sitting in the back of the Corvallis Municipal Court waiting for the arraignment of one of my clients. I was reading a sports page below the benches so the judge wouldn t see me. There was a shoplifting ticket being tried to the bench. The defense attorney was a little guy. I looked up in the middle of his cross examination of the store manager. The cross was so intense the store manager actually had a heart attack. They stopped the trial, declared a mistrial, and packed him out to a waiting ambulance. With the siren of the ambulance fading into the background, I approached the clerk and asked who the lawyer was. She said Bob Ringo. Whoa! I had heard of him, and now I had seen him. He was a big time lawyer. What was he doing here in a municipal court, defending a misdemeanor shoplifting ticket? I don t know, but one thing was obvious: Mr. Ringo was giving it everything he had. I think of Bob often, with much fondness and respect. Thank you. 18th Annual Oregon Trial Advocacy College 3 12

59 Chapter 3 Damages APPENDIX B PERSONAL AUTHENTICITY Why should anyone attempt to persuade others to seek (personal) authenticity? One should seek authenticity because it is necessary in order to be credible. Why should anyone who attempts to persuade others seek credibility? Credibility is necessary in order to be effective. Why? Because without credibility, it doesn t matter what you say. Authenticity is related more to the speaker than to what is spoken. Reflect for a moment on what it means to say a speaker is authentic. Many synonyms come to mind, including forthrightness, candor, and honesty; others include genuineness or the quality of being real. It is obvious that credibility culminates from multiple sources. I submit that credibility is mostly about clearly communicating an attitude of caring. Once again, why is this so important? Because if the speaker doesn t care, why should the listener? Here I suggest the reader pause and turn to the attachment to this paper, which is an article from The Oregonian. It is short and won t take much time to read. Once you have read the article, ask yourself, Is he speaking from the heart, is he authentic? Once these threshold questions are answered, it is easy to understand why this father possesses credibility. Speaking from the heart is easy to say, difficult to do... and even harder to do before strangers in public. Perhaps one reason this is so difficult is because, at some deep level, all of us are frightened of rejection. So much honesty demands too much vulnerability. Often the smarter we are, the more apt we are to think rather than feel. When left to our instincts, we lawyers analyze, categorize, rationalize and intellectualize every minute aspect of a case. Yes, we need to do all of this, and do it well; but be aware this is the work of a legal technician. What is missing? It s that something extra, that potent whiteknuckled passion that flows from heart talk! So how do you argue a case, any case, with convincing authenticity? Stated differently, Where are the roots to heart talk found? For each of us there is one place, and only one place. It is unique to each of us, yet entirely the same for all of us. The headwaters of authenticity spring from deep within you, from the life you have lived. Immerse yourself in the facts of your case. What aspects resonate with you? What element is compelling? Is it a sense of indignation generated by the liability, or the loss of something dear to your client, to which you can relate? Slowly reflect upon your emotions. Don t run from them embrace them. Your clients are forced to live within this case and its attendant emotions every day. Ask yourself, Which of my life experiences allows me to empathize with my client? Will a particular group of jurors have had a similar life experience and feel empathy for my client? This is often expressed colloquially as putting yourself in the shoes of another. This process is similar regardless from which side of the table you advocate. Visit and spend some quiet time with your clients. How have their lives changed? What is poignant? What is different? What have the changes meant to your clients? Talk to them about prior hopes and dreams. How has not only their outer world changed, but also their inner world? Being authentic isn t about being maudlin, or appealing to sympathy. Good advocates realize that. Even when sympathy is operative, it thins out entirely too fast. If something about your case naturally appeals to the jurors sympathies, don t explicitly argue it. You will only lose ground by overtly appealing to their emotions. Jurors are properly offended when a lawyer panders by appealing directly to their sympathy. Convert sympathy into material that has more impact. The obvious sympathetic aspects of the facts will speak for themselves. Acknowledge the presence of natural feelings of sympathy for your client, but then remind the jurors that no verdict is to be based upon sympathy. Explain that basing a verdict upon sympathy cheats not only the defendant, but also the plaintiff. Injured people don t want anyone s sympathy, and certainly no one s pity. They almost always come to court for one reason, and 18th Annual Oregon Trial Advocacy College 3 13

60 Chapter 3 Damages that is justice, which is also exactly what most defendants want. In the short term, it may seem you are giving up something of value. However, from the tactical perspective of a longer view, you are not really forfeiting anything. You are simply turning in silver for gold. You are morphing sympathy into credibility. Whenever you are talking from the heart to a jury, you may be addressing the jurors in the third person, but emotionally and texturally you are really speaking to them from an I-You perspective, meaning the first person. Share the meaning of this particular experience with the jurors. The lawyer needs to walk a fine line when bringing something of his or her personal essence to the courtroom. It s not acting. It s close to the lawyer s personal sense of decency. It s the lawyer s humanity shining through. You needn t raise your voice. When spoken with a quiet resolve your truth will thunder. The case theme often says as much about the lawyer as it does the case. From a universe of facts, many themes could have been selected, yet this particular lawyer has selected this particular theme. Maybe the case has been presented to a focus group with a jury consultant who has suggested the strongest theme. But whether or not it has, each lawyer must search for the manner in which he or she is most comfortable in effectively presenting the selected theme. The lawyer must bring more than mere words to generate maximum credibility. One more quote from another academy award winning actor, Ben Kingsley, puts just the right spin on the opportunities a speaker has with his or her audience. The tribe has elected you to tell its story. You are the shaman/healer, that s what the story teller is, and I think it s important for actors to appreciate that. Too often actors think it s all about them, when in reality it s all about the audience being able to recognize themselves in you. The more you pull away from the public, the less power you have on stage. Common Questions and Criticisms About Heart Talk 1. Heart talk is really nothing more than a performance. Response: When an argument comes from the heart, it s never a performance. If words don t come from the heart, it s always acting. Authenticity is driven only by the authenticity that comes from deep within each of us. Aristotle knew about this when he talked not only of logos (logic), but also pathos (emotion) and ethos (morality). 2. Heart talk seems to come more easily to others than to me. Oddly enough, when it does come, it arrives so quickly and with such ease it just can t be real. Response: At times, heart talk comes quickly, but it rarely comes easily. More often it is the result of hours and hours of agitated effort. Key insights will harken in the small hours of the morning, in the shower, at stop signs, in your sleep. Heart talk is often a flash of insight, the episodic result of a glacial process. The following excerpts are from a speech actress Jodie Foster delivered to Yale s graduating class in What does this Academy Award winning actress know about communication? Jodie begins by confessing that story telling is her Olympic event. She goes on to explain: So let me tell you what I do for a living (I include all my various professions in this analogy). I put all my stuff my history, my beliefs, my passions, and taboos and personal foibles, my weaknesses, and unconscious agendas and eccentricities I put them delicately and precisely on the tip of the proverbial arrow. I take careful aim, keep the target in my sight, and try desperately to communicate all that is in me in a straight line toward an audience. But I am only human. My eyesight is faulty; my hands are shaky; a million things will distort the goal. And no matter how well I aim that arrow, I never completely connect with the other. But it s the process of trying that s significant. That s where all the messy, beautiful human stuff lies in the space between the you and the other, between the you and the I. 18th Annual Oregon Trial Advocacy College 3 14

61 Chapter 3 Damages This creative process depends entirely upon hope. I hope the next time I take aim and shoot, now that I m more conscious of my previous misfirings, that I ll aim straighter and cleaner, and I hope more of me will find its way connecting intimately with more of you. Please don t misinterpret this sentiment as a call for some sort of commercial formula in film making. On the contrary, by connecting, I m telling a story, by telling your story revealing yourself in the telling, reading and being read back. 3. The expression of personal opinions is ethically prohibited. DR 7-106(c)(4). Response: You must be careful in your phrasing. It is improper to say I think. Simply rephrase the material by dropping the words I think and substituting an alternative, such as It is reasonable that. Saying I think is just a bad habit that is easy to correct. It provokes an objection that allows your opponent to interrupt the flow of your argument with an objection which they will win; and in the process they can correctly accuse you of unethical behavior before the jury (remember the Disciplinary Rules are statements of ethics). 4. Can you be a good trial lawyer without heart talk? Response: Yes. In fact, most trial lawyers never reveal much of themselves in the process of advocacy. Many competent trial lawyers never bring anything of themselves to the courtroom. This is particularly true of attorneys who limit their practice to emotionally sterile matters such as patents, tax, or yes, even some commercial matters. These are lawyers who argue both the facts and law with great skill. In my opinion, however, they can never be more than competent technicians because they lack the passion and resulting authenticity that truly great lawyers exude. Such attorneys are not temperamentally suited for discussing the people behind the issues. If before a judge, traditional wisdom may argue in favor of a more aseptic presentation. However, even here, there are real people behind every legal issue. When advocating before juries, no matter what the issue, there is always a place for heart talk. 5. All this heart talk would be easy if I represented victims of sexual abuse and always was on the side of the underdog. Mr. Barton, I represent large businesses. Show me how to do heart talk in commercial cases. Response: My friend Richard Bodyfelt used to represent all the Fortune 500 companies against product liability claims. When Dick was through introducing his client Ford Motor Company during jury selection, I could just hear Henry Ford out back in the tool shed creating the first Model A. No matter whom Dick represented, no matter how big the corporation, somehow he always managed to represent real people. Dick knew that behind every set of facts there were people and a compelling story to be told. When newspaper editors send writers out on assignment, they don t just want the facts, they want a story, meaning the story behind the facts. That s why television coverage of recent Olympic Games now includes not only excellent coverage of the competition, but supplemental, personalized stories about the contestants. A good example of breathing life into a commercial claim is a lawsuit against McDonalds Hamburger Franchises, which alleged a breach of an oral contract. Wyoming lawyer Gerry Spence synthesized the case into the compelling theme of Let s put honor back in a handshake. If you remain at a loss in selecting an effective case theme, consider retaining a respected jury consultant to assist you in acquiring a new perspective. 6. Not every case has a client or some aspect of the facts that conveniently lends itself to a sense of indignation. Maybe you don t even like the client you are representing. How do you generate heart talk under those circumstances? Response: Life doesn t come to us as cleanly or clearly as we would like, nor always on our terms. I am often in conflict, and I don t really believe I m always wearing the white hat in the courtroom. This is apart from the fact that I am running a business with monthly overhead that in many ways runs me. 18th Annual Oregon Trial Advocacy College 3 15

62 Chapter 3 Damages How many young lawyers might rather be doing public interest work, but have accepted the financial golden handcuffs and sold their souls to the high salaries of the big firms in order to pay off their student loans? O.K., so you are an emotionally divided house. Carefully think your way through every aspect of the conundrum. Then cut the baby, and by this I mean make a decision. Once this is done, put your full weight into the final position you have adopted. As natural as it may be, don t punish yourself by constantly revisiting a decision once it has been made. The process of becoming and being an effective trial lawyer demands great mental discipline. Ed Peterson, former Chief Justice of the Oregon Supreme Court, shared with me the following: Often the exact wording of many unanimous decisions the Oregon Supreme Court issued during his tenure was the product of vigorous debate, much compromise and innumerable rewriting as the justices struggled to find common language with which they were comfortable. It might take months for the judges to hash out their differences in conference. When later reading the unanimous result, you have no inkling of the many compromises that went into the exact words of the holding. At its conception in conference, this bold, black-letter rule would have been difficult to locate. Finally, at its birth, it arrives without dissent and little hint of just how close the court was to accepting the alternative arguments. A hint that this has been the case is when the court emphasizes the holding is limited to facts of the particular case. Not only are you representing your client, but in a real sense you are also representing yourself. Sift through all the facts. There is always a story to tell. Go find it, and make it your story. 7. I am a female lawyer and I am worried about being perceived as too emotional if I fully embrace this technique; in other words, does the application or effectiveness of heart talk vary whether the lawyer is male or female. Response: There is a context for everything. Too much emotional content or appeals too early in the case may backfire. The short answer is because the answer comes from deep within you, there are no gender based criteria. Communicating Authentically, or Learning How to Speak Heart Talk There are techniques that can assist anyone in locating and accessing the deep feelings that fuel heart talk. This process is divided into three stages acquisition, presentation and substance. Substance is about the speech s content; presentation its delivery. First and most important is acquisition, meaning generating the content for the presentation. Let s discuss the process of acquisition. Acquisition is a process that entails the identification and revisitation of the life experiences that allow the speaker and audience to emotionally relate to or empathize with the plaintiff. 1. Some times are better than others for accessing the material of heart talk. Life is similar to riding a bicycle: You don t have to pedal hard all the time. There are times you can coast, such as when going downhill or on level ground. Accessing feelings is similar: You don t always have to be engaged in the executive skills of problem solving. When problem solving, you are pedaling hard and it is difficult to do anything other than just stay focused on pedaling hard. Then there are other times when you can relax and coast. These are the times your emotions are closest to the surface, when they are easiest to access. Make the effort to create these reflective opportunities; then relax and harvest what you can. You will be drawing water from the deepest parts of your soul. 2. Free association is a technique some mental health professionals use in various types of therapy. It is a process by which you go backwards in your mind, like descending down a rope into the darkness when scuba diving at night. This mental process is called association. We do this when an old song or a smell brings back memories. 18th Annual Oregon Trial Advocacy College 3 16

63 Chapter 3 Damages Now get comfortable, sit back, relax and muse upon the case. Let your mind wander, but not too far. Nudge your mind back to the (facts of your) case when it drifts. Return to the case. What thoughts and images come to mind? What in your life has been similar? How was your experience the same or different? How did you feel? Keep coming back to your client. When you hit a blank space, relax, just let it be. This isn t a test. Search for an experience, perhaps one from childhood that feels emotionally similar. You are getting ever closer to the headwaters of your heart talk for the case. Good trial lawyers spend the effort necessary to find the previous time(s) in their lives that they have walked an emotional mile in their client s shoes. Until you have found this special place, you are not ready to go to court. Trials are about much more than the facts and the law. So you are fortunate enough that you have never been the victim of a severe burn or lost a child or a mate. I never have. What do you do then? Great literature allows us to experience these traumas vicariously. A sense of compassion for our fellow beings is the answer. Now reread The Oregonian article. One more time, try to imagine what this father must have been feeling. Let your mind wander to some aspect of September 11. What sights, sounds, smells and images come to mind? Stay with them. This requires no eloquence or particular words. Just the words of one heart reaching out to another to share with him or her. 3. During your presentation, when engaging in heart talk, consider slowing down and occasionally pausing. Silence can be deafening. There is no reason to rush through the most important part of your presentation. Eye contact with each juror is at a premium. It s the right time to lower your voice. This isn t about faking it, it s about effective communication, which is precisely what both effective advocacy and quality acting are. Conclusion Law school classes on trial advocacy teach mainly mechanics with a skosh of technique. While advocacy certainly requires basic skills, it appears lost on academics and legal mentors that the most important attribute to effective jury advocacy is a lawyer s authenticity. Every young child inherently possesses this personal ethos; however, traditional law school curriculums and the subsequent litigation training most lawyers receive bleaches out the personal essence of beginning lawyers. Before lawyers went to law school they all rode in cars; after receiving their legal diplomas they only ride in vehicles. 18th Annual Oregon Trial Advocacy College 3 17

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67 Chapter 4 Case File: Lawrence T. Monroe, Plaintiff, v. Teresa Louise Cartwright, Defendant

68 Chapter 4 Case File: Lawrence T. Monroe, Plaintiff, v. Teresa Louise Cartwright, Defendant 17th Annual Oregon Trial Advocacy College 4 ii

69 Chapter 4 Case File: Lawrence T. Monroe, Plaintiff, v. Teresa Louise Cartwright, Defendant INTRODUCTION The facts in this case are crafted to create a comparative fault situation. The verdict in this case can go either way. The issues are identified in the complaint and answer, although you will need to use your discretion as to what claims and/or defenses you will pursue at time of trial. This is not a punitive damage case. Begin by reading the scenario from start to finish twice, then read the Quick Step Guide and proceed. Have fun! PARTICIPATION Each student is required to conduct voir dire, prepare and present and opening statement and closing argument, and conduct the direct and cross of one witness. 1. Larry Monroe plaintiff. 2. Teresa Louise Cartwright defendant. STIPULATED FACTS 1. All injuries were caused by this automobile accident; however, Larry had some preexisting injuries and physical limitations. 2. Larry Monroe s employer is not involved in the case. 3. Only those facts set forth in this scenario and reasonable inferences may be used. PRACTICE TIPS In a case of this kind, offensive use of the damages instruction ( as is ) and visual aids are extremely important. The scenario is based on an actual intersection, and you may use the diagram provided or prepare your own diagram and provided photos of the scene this is an actual location. Staged diagrams of the position of the vehicles are encouraged but, of course, must conform to the case facts. The verdict form has claims of comparative fault and damages on behalf of the plaintiff Lawrence Monroe and defendant Teresa Cartwright. Lawrence Monroe s past economic losses were calculated from the date of his injury to the date of trial at $26,500 per year for two years, for a total of $53,000. For future economic damages, his future impaired earning capacity was calculated at $13,250 per year (one-half of his previous annual income) from his present age of 30 forward to age 65 (35 years $13,250 = $463,750). Noneconomic damages (pain and suffering) were calculated at $10,000 per year until age 84 (which is his life expectancy according to the Life Expectancy Tables) (54 years $10,000 = $540,000). Please refer to the American Jurisprudence Proof of Facts tables providing that an object traveling at 60 miles per hour moves at 88 feet per second; thus, 30 miles per hour is 44 feet per second. Under ORE 201(B)(2), the court will take judicial notice of this and the Life Expectancy Tables showing Lawrence Monroe s life expectancy to be th Annual Oregon Trial Advocacy College 4 1

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71 Chapter 5 Factual Statements Contents Portland Traffic Accident Report Statement of Patricia Algers (Plaintiff Witness) Statement of Gary Travis (Defense Witness) Statement of Shelly Martin (Defense Witness) Deposition of Teresa Louise Cartwright Deposition of Lawrence T. Monroe Deposition of Gary Travis Deposition of Mrs. Connie Monroe

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73 Chapter 5 Factual Statements PORTLAND TRAFFIC ACCIDENT REPORT 1 Accident date: May 6, 20 Accident time: 4:00 p.m. Day of Week: Wednesday Accident location: Intersection of S.W. Capitol Hill Rd. and S.W. 17th Dr., Portland, Oregon Police notified: 4:05 p.m. Arrived at scene: 4:10 p.m. Emergency vehicle notified: 4:12 p.m. Arrived at scene: 4:20 p.m. Description: Two-vehicle collision. Both drivers and two passengers in Unit #2 taken to hospital. See Officer s narrative. Unit #1 = motor vehicle Operator: Monroe, Larry DOB: 1/15/ Address: 172 SW 35th, Hillsboro, OR Home telephone: Driver s lic. #: Or Vehicle lic. #: CRUS-R -Or Insurance Company: Geico Vehicle: 1979 Datsun 280Z Reg. owner: Same Vehicle damage: Extensive damage to full front end - no other damage Mechanical defects: none noted Unit #2 = motor vehicle Operator: Cartwright, Teresa Louise DOB: 04/10/ Address: 2245 SW Victor Lane, Portland, OR Home telephone: Driver s lic. #: Or Vehicle lic. #: PYA 242-Or Insurance Company: State Farm Vehicle: 1988 Ford Escort Reg. owner: Ronald R. Cartwright Vehicle damage: Extensive damage to left rear quarter panel - no other damage Mechanical defects: Driver s seat belt not operable District: Residential Posted speed: 30 Road: Asphalt Traffic control: T intersection. Marked 20 mph curve south of 17th. Stop sign on 17th for traffic entering Capitol Hill Rd. Description: Clear, full day light, surface dry. Capitol Hill Rd. is one lane each direction. 20 mph curve at intersection. WITNESSES AT SCENE: 1. Shelly Martin 2 2. Gary Travis 1 Assume italics are officer s handwriting 2 There were four other female passengers in Teresa Cartwright s vehicle. All are unavailable as witnesses. If they were able to recall the accident, their testimony would be consistent with Shelly Martin s testimony. 18th Annual Oregon Trial Advocacy College 5 1

74 Chapter 5 Factual Statements INVESTIGATING OFFICER S NARRATIVE Received call at 4:05 p.m., after end of my shift. Proceeded to accident scene. Upon arrival, I called for emergency vehicles and attempted first aid to the driver of Unit #1, who was in severe pain. The driver of Unit #2 complained of dizziness but otherwise appeared uninjured. I then investigated the scene. The vehicles had collided in the northbound lane of Capitol Hill Rd. I observed no apparent skid marks in the vicinity of either vehicle. The point of impact appears to have been in the northerly lane of traffic. The left front end of Unit #1 appeared to have collided with Unit #2 slightly to the rear of mid-line behind the left (driver s) side of Unit #2. Both cars sustained substantial body damage. Capitol Hill Rd. is marked with a 20 mph curve sign just south of the accident site. There is a bushy hedge, approximately feet tall, along the west side of the southerly lane just before the curve partially obstructing drivers views. There is a speed bump 120 feet prior to the accident scene on Capitol Hill Road just past the curve. Driver of Unit #1 told me that he was north-bound on Capitol Hill Rd. He estimated his speed at mph. He said he saw Unit #2 approaching the stop sign on SW 17th. He said that as he approached the speed bump he first thought that Unit #2 would not stop at the stop sign, and he began to apply his brakes. He accelerated when Unit #2 did appear to be stopping. He said that Unit #2 then pulled out directly in front of him as if to make a left turn onto Capitol Hill Rd. Driver of Unit #2 told me that she stopped at the stop sign at the intersection of SW 17th and Capitol Hill Rd. She said that she did not see any traffic approaching.from either 18th Annual Oregon Trial Advocacy College 5 2

75 Chapter 5 Factual Statements direction before she pulled out to make a left turn onto Capitol Hill Rd. She said she did not see Unit #1 until just before the moment of impact. There were six persons in Unit #2, the driver and five female passengers. The driver told me that she thought she had hit her head in the collision and complained of dizziness. I observed that three of the passengers were obviously and visibly intoxicated and still loud and rowdy when I arrived, although I did not observe any alcohol containers in Unit #2. I did not conduct a field sobriety test of the driver or request testing for alcohol because of the condition of the driver, who did appear dazed. Gary Travis claimed operator of Unit #1 was driving like a crazy man just before accident, which operator of Unit #1 denied. Probable cause of accident: Operator of Unit #1 failed to keep a proper look out and was driving too fast for conditions. Operator of Unit #2 failed to yield right of way. No citations issued. 3 3 At this time, police officers could not issue citations for traffic violations they did not witness. 18th Annual Oregon Trial Advocacy College 5 3

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77 Chapter 5 Factual Statements Plaintiff Witness STATEMENT OF PATRICIA ALGERS 4 My name is Patricia Algers. I am 20 years of age. I graduated from Wilson High School. I live at home with my parents. On May 6, 20, some of us seniors skipped class to go to a party out at Big Eddy on the Clackamas River. There were a lot of kids. I saw Teresa Louise Cartwright there with some of her friends. I don t know Teresa personally. I don t hang out with that snooty crowd, but I know who she is because she s been going out with my former boyfriend, Jake Carlson. I last went out with him about a month before skip day. We had a fight, but I think we will get back together. There was a keg of beer and cans and bottles of pop at the party. As far as I could tell, everybody was drinking beer. I am sure that I saw Teresa at the keg and drinking too. I saw her, with her back to me, bending over the keg and I remember seeing her walking around with a cup in her hand. Some kids were drunk, but I don t know how much Teresa had to drink although I did see her near the keg a couple of more times during the day. I couldn t see what was in her cup, but I know she was drunk because she was getting real loud and obnoxious. She s usually such a goody two shoes prude. Teresa and I had a nasty exchange on Facebook over Jake. When I saw that she updated her profile to in a relationship with Jake Carlson, I posted she was an ugly cow and she better watch her back. My feelings were hurt and I did not mean it. 4 Assume this statement was taken shortly after the accident by an investigator for Geico. 18th Annual Oregon Trial Advocacy College 5 5

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79 Chapter 5 Factual Statements Defense Witness STATEMENT OF GARY TRAVIS 5 My name is Gary Travis. I am 42 years old. I am employed at the Tualatin Valley Water Department, where I usually get off work by about 3:30 pm. I live in Portland on SW Troy, just off SW 17th Dr. On May 6, 20, I was driving home from work on 99W through Tigard. I noticed this sports car coming up dodging in and out of traffic and going real fast, maybe 55 mph. The speed limit on 99W through there is 35 mph. I was traveling in the left lane when the sports car came up behind the car next to me in the right lane. I thought the sports car was going to hit the car next to me, but instead it shot through the gap between us, cutting me off and making me have to brake hard to avoid a collision. As the car passed me, I noticed that the car was an older Datsun 280Z with a vanity plate that said CRUS-R. The driver, Larry Monroe, appeared to be alone. I continued toward home, taking 99W to Barbur Blvd. For a while I could see Larry Monroe ahead of me traveling north on Barbur, still moving fast and dodging in and out of traffic. I was so mad I thought about calling the police when I got home to report what I saw. A few seconds after seeing Larry weaving in and out of traffic and just past the Safeway on Barbur, I turned left onto SW Capitol Hill Rd. right behind him. As I approached my turnoff at SW 17th Dr., there was Larry in an accident. He looked like he had plowed right into the side of a small Ford Escort. I wasn t a bit surprised. I went straight to a friend s home nearby and called the police to report the accident. I then returned to the accident scene to make sure Larry got what was coming to him! I know him from work he got the promotion I should have got. 5 Assume this statement was taken shortly after the accident by an investigator for State Farm. 18th Annual Oregon Trial Advocacy College 5 7

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81 Chapter 5 Factual Statements Defense Witness STATEMENT OF SHELLY MARTIN 6 My name is Shelly Martin. I am 20 years old. I graduated from Wilson High School. I live at home with my parents. On May 6, 20, some Wilson seniors skipped school and went to a party at Big Eddy on the Clackamas River. Teresa Cartwright, my best friend, offered to take me and several other girls in Teresa s father s car, which he lets her use. There was beer at the party. Some of the girls I was with got pretty drunk. I had maybe one or two beers, but I never got drunk. I didn t follow Teresa around the whole day, but I don t think Teresa ever drinks alcohol and I don t think she drank at the party although I wasn t with her all day. We left Big Eddy at about 3 pm to get home because we were going to be late and Teresa s dad would have a fit if she got home late. There were six of us in the car: me, Teresa, who was driving, and four other girls who were pretty rowdy, singing and laughing. I was sitting in the front passenger seat. We took 205 south to I-5, took I-5 north, then got off I-5 onto Barbur Blvd. We turned off of Barbur onto SW 17th Dr., which is a short cut to Wilson High. Just as we got to Capitol Hill Rd., we tried to get the girls to be quiet to ask them where they wanted us to take them, but they wouldn t stop singing so we suddenly decided we had to turn left and go into Multnomah to get some coffee at Starbucks and sober up I mean sober the girls up. I m pretty sure we stopped at the stop sign at Capitol Hill Rd. Even though the other girls were goofing off in the back seat of the car - we were all singing our school fight song - but Teresa was paying attention to her driving. I ve ridden with Teresa a lot, and she is always 6 Assume this statement was taken by an investigator for State Farm shortly after the accident. 18th Annual Oregon Trial Advocacy College 5 9

82 Chapter 5 Factual Statements a careful driver. I know she never would roll through a stop sign. I didn t see the other car coming until it hit us. I was wearing my seat belt, which I think kept me from getting hurt. I don t know if Teresa was wearing hers. 18th Annual Oregon Trial Advocacy College 5 10

83 Examination by plaintiff s attorney: Q: State your name and address. Chapter 5 Factual Statements DEPOSITION OF TERESA LOUISE CARTWRIGHT 7 A: Teresa Louise Cartwright, [address]. Q: How old are you now? A: I ll be 20 in April. Q: Are you employed? A: No, I m a student. Q: Where do you go to school? A: I m a first year student at the University of Portland. Q: In May, were you a student in high school? A: Yes, I was a senior at Wilson High, about to graduate. Q: I want to ask you about the day of the accident, May 6,. What time did you get up that day? A: Oh, probably the usual for a school day. 6:30 am. Q: How was your health that day? A: Fine. Q: Did you go to school that day? A: Yes. We planned to meet at school, then skip after second period to go out to the Clackamas River. Q: So the plan to skip school was made before May 6? A: Yeah--a whole bunch of us planned it as a senior skip day. The weather had been good and we were real close to graduation. Seemed like a good idea at the time. Q: Where did you go when you left school? A: Everyone was going to Big Eddy on the Clackamas River. That s past Estacada. 7 This is a routine discovery deposition taken about six months before trial. The witness was sworn and the usual stipulations were agreed upon. 18th Annual Oregon Trial Advocacy College 5 11

84 Q: How did you plan to get there? Chapter 5 Factual Statements A: My father let me use his car. I planned to drive and take several of my friends. Q: Did your father know that you planned to skip school and take his car up to Big Eddy? A: I don t think I told him. Q: What did he say when he found out? A: Well, he was mad. I mean, the car was wrecked, I was hurt, and now I ve been sued.... Q: What time did you leave school that day? A: About 10 a.m., after second period. Q: Did anyone ride with you? A: Yes, five other girls. Q: All seniors? A: Yes. Q: Who were the girls? A: Let s see... Shelly Martin, Sally Fitzgerald, Margo Pietri, Erin Forbetts, Joyce Shelton. Q: Do you know where those girls live today? A: Well, Shelly Martin is in Portland. The rest of them have gone off to school. I m not sure where they all are. Q: Okay. When did you get to Big Eddy? A: It s about an hour drive. Must have been about 11 am. I don t know, I didn t check. Q: Did you stop anywhere on the way there? A: There s a little market in Estacada. We stopped and got some chips and stuff. Q: Did you buy anything else? A: No, not that I remember. Q: What did you do when you got to Big Eddy? A: We hung out, ate, talked, swam. You know, partied with our friends. 18th Annual Oregon Trial Advocacy College 5 12

85 Q: Was there alcohol or drugs at the party? Chapter 5 Factual Statements A: There was a keg. I don t know if there was anything else. I didn t see any drugs or other alcohol. Q: Did you drink any beer? A: No. Q: Did you drink anything? A: Well, I m sure I did. I was there all day. Probably some pop or something. Q: Would you put pop in a cup, or drink it out of the bottle or can? A: Don t know, it depends. Q: What does it depend on? A: My mood. I can t remember what I drank that day. Q: Is there a medical reason why you don t drink alcohol? Do you have an allergy or something? A: No, I just don t, at least I didn t then. Q: You drink alcohol now? A: On rare occasion, I might have a glass of white wine. Q: Did the girls that rode with you drink? A: Well, I didn t really keep track of them. Sally, Erin, and Joyce ended up drunk, so I guess that means they were drinking. I don t know about the others. Sometimes Shelly drinks beer, she may have that day. Q: When did you leave the party? A: A little after 3 pm. I had to get home by 4 or my dad would have blown his top and I had to get several of the girls home first. Q: Did the same five girls ride home with you? A: Yes. Q: Isn t a Ford Escort a small car? A: Yes, it s a compact car. 18th Annual Oregon Trial Advocacy College 5 13

86 Chapter 5 Factual Statements Q: An Escort is not designed to carry six people, is it? A: No, but my friends are pretty skinny. Q: Now many were in the front seats? A: Just one in each seat--they re bucket seats. Q: So four girls were in the back? A: Yes, but they didn t complain. Q: What route did you take? A: We drove down the river and got onto 205. Took 205 to I-5, got off on Barbur Blvd. I went north on Barbur to SW 17th, which is a cutoff between Barbur and Capitol Hill Rd. I use it as a shortcut sometimes. Q: Where were you headed? A: Back to Wilson High to drop off some of the girls. Q: Tell me what happened after you turned onto 17th. A: Well... Shelly and I decided to go into Multnomah to Starbucks and get some coffee. We thought it would be a good idea to try to sober up the others cause their parents would have killed them if they knew they were drinking. The Starbucks is on Capital Highway, in Multnomah Village. Anyway, to get there, we had to turn left onto Capitol Hill Rd. Q: When did you decide to go to Multnomah? A: Well, I stopped at the stop sign, looked left, then looked right, and didn t see anybody coming either direction. Shelly and I tried to get the girls attention but couldn t, so we decided to turn left and take them to Multnomah. I pulled out and wham! This guy comes zooming out of nowhere and plows right into the side of the car. I never did see him until he hit me. I don t remember exactly what happened next, but the next thing I remember, we were stopped in the middle of Capitol Hill and I couldn t get out of my door because this other car was mashed into it. We piled out the other side of the car. I was dizzy, but didn t have any blood on me or anything. Shelly looked okay. Several of the other girls were cut up some. Q: After you looked left and then right, did you look left again? A: I don t remember. 18th Annual Oregon Trial Advocacy College 5 14

87 Chapter 5 Factual Statements Q: Did you or the other girls have seat belts on? A: Mine was broken, so I couldn t use it. I think Shelly was wearing hers. There weren t enough seatbelts to go around in the back and I don t know if anybody in the back seat was wearing one. Q: Let s go back to when you were at the stop sign. How fast were you going as you approached Capitol Hill Rd? A: Oh, probably 20 mph or so. Not very fast. Q: Did you come to a complete stop at the intersection? A: Yes, of course. Q. Where exactly did you think you stopped? Show me on the picture, Exhibit 1. A. I don t remember. Q. Do you think you might have stopped even with the stop sign? A. I don t remember. Q. Do you think you might have stopped at the line? A. Don t remember. Q: Do you think you might have come to a rolling stop? A: No, I completely stopped. Q: Is the car you were driving a manual shift or automatic? A: Automatic. It s a gutless wonder. Or was a gutless wonder. It was totaled. Q: What happened after the impact? A: Like I said, we piled out of the car. My side window was shattered. We were afraid it might blow up or something. A police officer showed up pretty quick. I guess some guy came across the wreck and called the police. The policeman looked around, took some measurements, called ambulances, interviewed people. I gave him a statement. The other driver appeared hurt, and the policeman spent some time with him. After I gave my statement, I went in an ambulance to the hospital. I was really feeling dizzy, like things were moving around me in circles. My eyesight was fuzzy. 18th Annual Oregon Trial Advocacy College 5 15

88 Chapter 5 Factual Statements Q: Do you recall whether when you were at the stop sign, you had a clear view both directions on Capitol Hill Rd.? A: The road curves away in both directions. You can see a long way to the right. To the left there s a hedge on the other side of capital that kind of blocks the view, although if someone was traveling at the correct speed, you could see far enough to see them coming and not pull out in front of them. Q: On the day of the accident, could you see clearly both directions on Capitol Hill Rd.? A: Just like I told you. It hasn t changed any. Q: Is it your theory that Mr. Monroe was speeding? A: Yes, he had to have been. That, and not paying any attention to what he was doing. At least that s what the police officer thought. Q: Let s talk about your injuries. What injuries did you receive in the accident? A: Right after the accident I didn t think anything was wrong, except I was dizzy. The ambulance crew thought maybe I had a concussion or something, so they took me in the ambulance to the emergency room. Q: Which hospital were you taken to? A: St. Vincents. Anyway, they took x-rays, did a neurological check, gave me some pain medication, and sent me home. My dad came and got me. I felt basically okay at the time, just shook up and beginning to get stiff. At about 3 am, though, I woke up with the worst headache I could imagine, and I never got headaches until then. It really scared me and my parents. The pain medication didn t help at all. Then the pupil in my right eye opened up wide and wasn t responding to light. My parents freaked and took me back to the hospital, where I was admitted for observation and more tests. It turned out I had a subdural hematoma --a bunch of blood pooled under my skull pressing on my brain where I hit the side of my head on the window of the car. Actually, as it turned out, I broke the window with my head, though I didn t realize it at the time. Q: What happened after you were admitted to the hospital? A: The doctor says that the hematoma put pressure on my brain. I was in the hospital for more than three weeks. They kept pumping me full of medication to keep the swelling down. They thought they might have to drill a hole in my skull. I was in a lot of pain from headaches and also from just being banged around in the accident. Q: Did you graduate with your class? A: No. I was unable to take my finals. I was still in the hospital when they had the graduation ceremony. In fact, I missed the senior prom, and I had spent $750 of my own money for my prom dress! 18th Annual Oregon Trial Advocacy College 5 16

89 Chapter 5 Factual Statements Q: What losses do you claim as a result of the accident? A: Well, the dress for one. It cost me $750. I mean, what good is a prom dress after the prom is over? The medical expenses. Physical therapy expenses. I didn t really feel good again until after Christmas. I lost a summer job I had lined up for after graduation because physically I couldn t do it. Q: What was the job? A: I had been hired as a lifeguard and to teach swimming at the Metro pool. I would have worked from June 1 to September 2, 30 hours per week at $8.25 per hour. Q: How much were the medical expenses and physical therapy expenses? A: $34,357 in medical expenses and $3,297 in physical therapy expenses. Q: What other injuries did you suffer? A: Well, because I couldn t graduate with my class, I basically lost a whole year of my life. I had a scholarship at the University of Portland, but I couldn t start school that fall because I still had to finish high school. I ended up graduating from Wilson in Q: You re enrolled at the University of Portland now? A: Yes, but I m a year behind my friends that go there. Q: Did you lose the scholarship? A: No, The people at the U of P were really understanding and held the scholarship open for me. I had really good grades -- mostly straight As. Q: Do you claim any other injuries? A: Well, my dad s car was totaled, like I said. Mainly I lost a whole year of my life, a year I spent in a lot of pain and misery because your client is a crummy driver. Q: Are you in pain now? What I mean is, do you have any permanent injuries as a result of this accident? A: Well, I get headaches sometimes, about one every two weeks or so, and I didn t used to. They say you never know what will show up when you get older, so who knows? Q: But you are not aware of and no one has told you that you have any permanent injuries? A: Other than the headaches, not that I know of, no. Q: Thank you. I have no further questions. 18th Annual Oregon Trial Advocacy College 5 17

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91 Examination by defendant s attorney: Q: Please state your name and address. Chapter 5 Factual Statements DEPOSITION OF LAWRENCE T. MONROE 8 A: Lawrence T. Monroe. Address is [see Police Report]. Q: Is Larry short for Lawrence? A: No, just Larry. Q: Mr. Monroe, how old are you? A: I m 3_. Q: Tell me about your education. Did you finish high school? A: Yes. Then I went for two years to PCC at the Sylvania Campus. Q: Did you get a college degree? A: No, I needed the money so I got a job. Q: Are you currently employed? A: No, that s the problem. Q: Okay, we ll get to that later. Were you employed on May 6,? A: Yes. I was working for Ernst Hardware in Tigard. Q: What was your job there? A: My official title was Assistant Area Manager--Yard and Garden. But I did whatever was needed in whatever department needed it, usually. Mostly I was a cash register clerk. Q: How long had you been employed at Ernst at the time of the accident? A: About five years. I d had similar jobs other places before then. Q: What happened that you are no longer employed by Ernst? A: My injuries in the accident prevented me from doing the job I was qualified for. It s just taken me too long to recover, and I m not able to do the things I used to do. 8 This is a routine discovery deposition taken about six months before trial. The witness was sworn and the usual stipulations were agreed upon. 18th Annual Oregon Trial Advocacy College 5 19

92 Chapter 5 Factual Statements Q: Okay. Well, I ll ask you more about that later. Right now, I want to focus on the day of the collision. Were you working that day? A: Yes. I was working the swing shift--10 am to 7 pm. Q: So you went to work that day? A: Yes, just like normal. Q: How did you feel that day? Healthy? A: Normal as can be. Sun was out, life was fine. Q: Now we know that at approximately 4 pm that day, May 6, 20, you were driving north on Capitol Hill Rd. Please tell me what you were doing that brought you there when you normally would have been at the Ernst location in King City, past Tigard. A: Well, I was asked to go on an errand to pick up some uniforms from a cleaners in Hillsdale. It was kind of an odd deal--i didn t know why the uniforms were there but hey! I was just doing my job. Q: What time did you leave Ernst? A: About 3:30 pm. Q: Were you driving a company car? A: No, I was in my car. They didn t have company cars, as such. Q: What kind of car were you driving? A: A 1979 Datsun 280Z, in cherry condition. A great classic car, that was. It was totaled in the accident. It was worth at least 4 grand! Q: What route did you take to Hillsdale? A: Well, I went through Tigard toward Portland on 99W. Went over the freeway, that s I-5, and on to Barbur Blvd. Went down Barbur to where Capitol Hill Rd. intersects at the Safeway. That s where Barbur Rentals is, if you know where that is. I would have gone down to Bertha on Capitol Hill, but... well, you know what happened. Q: Actually, I don t know. That s why I m here, to learn your version of what happened. Do you know the speed limit on 99W through the Tigard area? A: I believe its 40 mph. Q: Do you know how fast you drove through Tigard that day? A: The speed limit, I m sure. 18th Annual Oregon Trial Advocacy College 5 20

93 Chapter 5 Factual Statements Q: Why are you sure? A: That s how I drive. Q: You never go faster than the speed limit? A: Never. Q: Were you weaving in and out of traffic on Barbur? A: What do you mean in weaving? Q: Speeding in and out between cars. A: Absolutely not. Q: Do you ever speed? A: Nope. Q: Why did you select the Capitol Hill route to Hillsdale? There are other shorter options, are there not? A: I like that road because it curves along a park. Pretty, you know. I m familiar with it because I live over there and drive it a lot. Q: Are you familiar with the speed bump just after the curve? A: That was new. I never saw it before almost bottomed out! Q: Tell me about the accident as you recall it. A: I m driving down Capitol Hill at the speed limit, which is 30. There s a curve just before where 17th comes in. I just start into the curve when I see this Ford Escort on 17th racing toward the intersection. I ve got the right-of-way, but I don t want to get clobbered so I start to brake in case the fool misses the stop. Then the Escort starts to slow down, so I think its going to stop. I take my foot off the brake, hit the gas just in time for the Escort to pull right into my path. I think I blacked out for a minute then, because the next thing I know, we ve already crashed, we re sitting in the middle of the road, and I feel pain. I mean, P-A-I--N. Q: How fast were you going at the time of the impact? A: I think about 15 mph. I d slowed down for the curve, started to brake, and had just started to speed back up when the other car ran the stop. There s a 20 mph sign for the curve. 18th Annual Oregon Trial Advocacy College 5 21

94 Chapter 5 Factual Statements Q: What happened next? A: A policeman showed up right away, it seemed. Then Travis comes over and starts yelling at me about my driving, saying I was speeding and weaving in and out of traffic on Barbur which I wasn t! I was too out of it to pay much attention to him. What a jerk! He always has been! Ever since I got the promotion he thinks he should have got at Ernst which caused him to quit. Anyway, I was in a lot of pain. Pretty soon emergency vehicles showed up and I went to the emergency room at Good Sam. The policeman-- can t recall his name--he was talking to me and trying to make me feel like everything was going to be okay. He was a good guy. I don t really remember much else about the accident scene itself. Q: You said your car was totaled. Where was the damage? A: The front end was totally mashed in. Doors crumpled. No other damage, other than in the interior from the frame being pushed back. Q: You said you were on an errand for work at the time of the accident. Did you make a workers compensation claim? A: Yes. I get a temporary total disability payment of $450 a month for my right foot and ankle. Q: Are those payments continuing to date, then? A: Yes, and probably will for a long time. Q: What injuries did you receive in the accident? A: Well, mainly my right foot and ankle were totally crushed. The docs tried to pin it all back together, but it didn t really work. I can walk with this cane here [witness lifts cane], but I can t stand for very long on both feet and I can t really do anything normal that involves standing or putting weight on my right leg. Q: What did you do before the accident that you can t do now? A: Play basketball, ski, jog, dance, and just about everything that involves using my ankle. I had a high school basketball injury to my right knee my junior year. I missed the last week of my junior year and had to wear a Lenox-heel brace my senior year. I still started and led my team in scoring and was just team all-league. Three years ago I injured my left knee skiing and have a very slight limp, but I could still do whatever I wanted. Q: Have you tried doing anything that doesn t involve use of your ankle, like swimming or seated weight lifting? A: No why should I? 18th Annual Oregon Trial Advocacy College 5 22

95 Q: What other injuries did you receive? Chapter 5 Factual Statements A: I was pretty beat up. Bruises, sore spots, headaches. Laceration on my forehead and left arm from broken glass. I had my seatbelt on or it might have been worse. Q: Do you have any permanent scars from the lacerations? A: Just the scar on my forehead. Q: Are you in any pain? A: Oh yes. My foot and ankle hurt most of the time. And because I can t walk normal and have to use the cane, my hips and back ache quite often, particularly at night. Sure I had a limp before from my left knee injury, but now the left side of my body hurts if I walk any duration. Q: Ever had an ankle injury before the accident? A: Nope, never. I also had an allergic reaction to the pain medications the doctor prescribed for me from the car wreck. I was really sick from the allergic reaction to the pain medication they gave me for about three weeks. Q: How long have you been off work? A: It s been 19 months. Q: what were you being paid at Ernst? A: I was on a salary. $26,500 a year. Q: Have you looked for employment since the accident? A: No. In this economy it s hopeless. I m still going to physical therapy and trying to resolve the foot and ankle pain. I don t really have the skills or training to do anything other than what I was doing. Q: Do you have any plans to go back to school or seek job training? A: Sooner or later, yes. I can t afford not to. But not until I m better physically. Q: Did you and your wife engage in any social activities before the accident which you can t do now? A: Yes, we used to go dancing all the time, at least once a month, and now we can t. Q: Anything else? A: Yep, we used to go skiing all the time. 18th Annual Oregon Trial Advocacy College 5 23

96 Chapter 5 Factual Statements Q: How often? A: Three or four times a year. Q: Anything else? A: Not that I can think of now. Q: Thank you. I have no further questions. 18th Annual Oregon Trial Advocacy College 5 24

97 Examination by defendant s attorney: Q: State your name and address. Chapter 5 Factual Statements DEPOSITION OF GARY TRAVIS 1 A: Gary Travis. I live in Portland at 1758 SW Troy, just off SW 17th Dr. Q: How old are you, Mr. Travis? A: I am 42 years old. Q: Are you employed? A: Yes, at the Tualatin Valley Water Department. Q: Were you employed by the water department in May of? A: Yes, I was. Q: Mr. Travis, we re here today because you were identified in a police report as a possible witness to an accident that occurred on May 6,, at the intersection of SW 17th Dr. and Capitol Hill Road. That accident is the subject of a lawsuit in which Mr. Larry Monroe has sued Ms. Teresa Cartwright for injuries he claims to have received in the accident, and Ms. Cartwright has counter-sued him for injuries as well. Do you know Mr. Monroe or Ms. Cartwright personally? A: Yes, I know Larry from work. Q: How so? A: We used to work together. Q: Any bad feelings there? A: Nope. Q: Do you recall the accident? A: Yes, although I didn t actually see it happen. I got there right after the collision. Q: In your own words, please tell me what you saw. A: Well, on that, day, I was driving home from work on 99W through Tigard. I usually get off work by about 3:30 pm, so I think it was probably about 3:40 pm. I noticed this 1 This deposition was taken about six months before trial. The witness was sworn and the usual stipulations were agreed upon. Note: A search of court records revealed that in June 2010, Mr. Travis was convicted of felony theft by embezzlement in the second degree and received a suspended sentence. 18th Annual Oregon Trial Advocacy College 5 25

98 Chapter 5 Factual Statements sports car coming up dodging in and out of traffic and going real fast, maybe 55 or 60 mph. The speed limit on 99W through there is 35 mph. I was traveling in the left lane when he came up behind the car next to me in the right lane. I thought the sports car was going to hit the car next to me, but instead it shot through the gap between us, cutting me off and making me have to brake hard to avoid a collision boy was I pissed! As the car passed me, I noticed that the car was an older Datsun 280Z with a vanity plate that said CRUS-R. I then recognized the driver was Larry, who appeared to be alone. Q: What happened next? A: I continued on toward home, taking 99W to Barbur Blvd. For a while l could see Larry ahead of me traveling north on Barbur, still moving fast and dodging in and out of traffic. I was so mad I thought about calling the police when I got home to report what I saw, since I could identify him and his license plate. Q: How did you come to be a witness to the accident? Were you following the Datsun? A: Not on purpose, no. I lost sight of it on Barbur. Just past the Safeway on Barbur, I turned left onto SW Capitol Hill Rd. Then, as I approached my turnoff at SW 17th Dr., there was Larry in an accident. It looked like he had plowed right into the side of a small Ford Escort. I wasn t a bit surprised. He always drives that thing fast! Q: What did you do next? A: I went straight home, got my cell phone and called the police to report the accident. I then returned to the accident scene. Q: Were you still upset with Mr. Monroe? A: Nope too worried about if anybody was hurt. Q. Did you say anything to Larry? A. Nope. Q. Did you yell at him? A. Don t think so. Q: Did you do anything at the accident scene? A: No. Between the police and the ambulance crews, things seemed to be pretty much under control. I gave my name to the police officer and went on home. Q: The police report states that a man identified as you said that Mr. Monroe was, quote, driving like a crazy man on Barbur Blvd. before the accident. Did you say that? A: I don t remember. I might have. It sounds like something I might of said if I was mad, which I was. 18th Annual Oregon Trial Advocacy College 5 26

99 Chapter 5 Factual Statements Q: But do you now actually recall saying that, or something like that? A: No, not really. Q: Is there anything else about the accident that you recall? A: Nothing more than what I already told you, cop should have ticketed Larry! Q: That s all the questions I have, then. Examination by plaintiff s attorney: Q: I have a few questions, Mr. Travis, we met before. I represent Mr. Monroe in this lawsuit. Now you said that you don t remember anything else about the accident? A: No. Like I explained, I got to the scene after the accident had already happened. After I called the police and things were under control, I left. Q: Okay. Let s see. I have one more question. Have you ever been convicted of a crime? A: Why do you want to know that? By defendant s attorney: Counsel is entitled to ask that question. A: Okay. About 3 years ago, I was convicted of stealing from my boss. I worked at Ron Tonkin Chevrolet out on NE 122nd in the parts department then. It was just a beef with the boss, that s all. Q: Did you serve any time in jail? A: No, I just got a suspended sentence. Like I said, it was a chippy deal. A lot of fuss over nothing. Q. You have been upset with Larry ever since he got the promotion at Ernst you think you should have had - right? A. Nah, I got a better job anyway. Q: I have no further questions. Thank you. 18th Annual Oregon Trial Advocacy College 5 27

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101 Chapter 5 Factual Statements DEPOSITION OF MRS. CONNIE MONROE 2 Examination by defendant s attorney: Q: Please state your name and address. A: Mrs. Connie Monroe. My address is [same as Larry s]. Q: Are you married to Larry Monroe, the defendant in this case? A: Yes, we have been married for almost 10 years now. Q: How old are you, Mrs. Monroe? A: I m 33 years old. Q: Do you and Mr. Monroe have any children? A: No, we don t. Q: Do you work outside the home? A: Yes, I am a customer service representative, answering questions on the phone and by live web chat. Q: For what kind of products or services do you provide customer service? A: Well, the company does contract work for different companies, mostly related to telecommunications. My experience is mostly in cable and broadband services, answering the phone or web chatting to help new and potential customers. Q: How much to you make a year? A: Well, I work on commission. Q: How much did you make last year? A: Uh, about $64, This is a routine discovery deposition taken about six months before trial. The witness was sworn and the usual stipulations were agreed upon. 18th Annual Oregon Trial Advocacy College 5 29

102 Chapter 5 Factual Statements Q: Mrs. Monroe, do you ever ride in a car when your husband is driving? A: Oh, yes. He used to do most of the driving whenever we went out together. Q: Your husband drove a Datsun 280Z with the license plate CRUS-R at the time of this accident. Didn t your husband like to drive fast in that car? A: We usually use our sedan to go out together. He babied that car actually he hated to put miles on it. But we had to use both cars for work commuting. He didn t drive especially fast because he wanted that car to last forever. I didn t think the CRUS-R plates meant anything it was just kind of an ego thing, to feel like he was cool. Q: Of course, I want to focus on the day of your husband s car accident. How did you learn of the accident? A: I got a call from Larry in the hospital I think it was about 5 in the afternoon on May 6,. I remember the time because it surprised me. Q: Why did that time surprise you? A: He was working until 7 that day, on swing shift, but then he told me that the accident happened while he was running an errand for his boss. Q: What else did Larry tell you on the phone from the hospital? A: He said that he must have hit another car because he thought it was stopping at a stop sign. He really couldn t remember right before or after the accident. He just thought he had the right of way because he was on the main road. He sounded very upset and shocked about it. Q: When did you first see Larry after the accident? A: Well, I rushed to the hospital of course, and I saw him right away maybe 5:30. Q: Please tell me about that evening at the hospital. A: Larry looked really beaten up. He had bruises and needed stitches on his forehead and stitches on his arm, too. He had to stay overnight because he had to have the surgery. But the injury seemed not too serious at the time the doctor told me that his right foot was broken. I stayed with him until he went into surgery that night. He was in a lot of pain when I first got there, but they gave him a pretty heavy sedative. He was practically sleeping when they took him to the operating room. After the surgery, I waited until Larry could be moved to his room. He just had local anesthetic but he was really out of it ; I think they gave him a lot of pain medication. It turns out they gave me the wrong pain medication and it took them a couple of weeks to get it right and the allergic reactions 18th Annual Oregon Trial Advocacy College 5 30

103 Chapter 5 Factual Statements really messed Larry up. When he seemed settled in his room, probably around midnight, I went home. I was so relieved he wasn t hurt worse, considering that the car was totaled. Q: When did Larry go home? A: Oh, he was discharged the next day, in a leg cast to his knee. We had to rent a wheelchair right away because they said Larry would not be walking much for a few weeks. Q: How did Larry recover from the accident? A: At first it seemed really fast. He hated the wheelchair, and we returned it after 2 weeks. He was excited about getting crutches instead. After another 2 weeks, he insisted on switching to just a cane. He still had the cast on his foot then, but he was starting to get around. I could tell it was really painful, but he tried to ignore it. Of course, he had some problems with his right knee from a high school basketball injury, but he did his daily exercises and really had no problem. His left knee affected his gait a little, he had a slight limp, but he could walk up to ten miles with no problem. Now his whole left side hurts if he walks any distance. Q: How long was Larry supposed to stay off his foot? A: The doctor said he was to be in a wheelchair for three weeks and on crutches for a month. Q: What happened then? A: First it was disappointing that Larry needed the cast much longer than they had expected. The foot was really crushed and they said it was healing slowly. Then he got the cast off, and he found it got more painful to stand and to try to walk on the foot. Q: Can you tell me more about what happened after the cast was off? A: The worst thing was the pain settled in after a month. It didn t get any better. He can t stand without getting shooting pains within about a half hour. He can t put enough weight on the foot to walk much without the cane. He complains about numbness, tingling and funny feelings. He couldn t go back to work in 3 months, so Ernst Hardware said they had to let him go they had to get a regular assistant manager back working on that shift. Q: How is Mr. Monroe s ability to walk now? A: The physical therapy is gradually making it better, and I think the prescription pain medication helps, too, once we got him off the initial pain medications he was allergic to. The original pain medications actually made something bad worse. But he still can t stand and walk enough to get back to the same kind of job. The doctor says there are bone spurs because the bone was crushed it couldn t heal to the natural shape. He might need more surgery for that. 18th Annual Oregon Trial Advocacy College 5 31

104 Chapter 5 Factual Statements Q: Did you and he used to go skiing regularly before his accident? A: Oh, not for years. Q: How about dancing, did you go out dancing regularly before the accident? A: Oh, once in a great while you know how men are once they re married. Q: Thank you, Mrs. Monroe. No more questions. [Break taken] Questions by plaintiff s attorney: Q: Mrs. Monroe, you said that your husband used to do most of the driving when you went out together. Could you elaborate on what you meant by used to? A: Unfortunately, Larry really can t drive any distance now with his right foot like it is. Now I m the driver when we go out together. Q: How much do you go out together compared to before the accident? A: We honestly don t get out much anymore because of his pain and limited walking. It s really restricted us being able to keep up with our friends. We didn t have a special activity but we used to go bowling with friends just to be sociable. That stuff is impossible right now. Q: What about your husband s recreational activities? A: He mostly played basketball with friends in a Portland Parks league. He missed a season but now it looks like he can t ever play again. That really gets him depressed and down. Q: How has the accident affected your lifestyle? A: I m afraid of our friends not keeping in touch with us because it s hard for us to go out. Larry s problems with pain in the foot and ankle are really hard on us, too mostly there s nothing I can do to make him feel better. I worry that the hip pain won t go away either, because of his limp. I should correct my earlier testimony. We did enjoy dancing and skiing a lot, I forgot. Plus there s the depression. Sometimes he doesn t want to even try to do things that I think he could do if he could be in a better mood. The antidepressant helps, but it s not like the pretty satisfied way that he used to be with friends, activities, and work. I m really worried about money, too, because my job doesn t pay enough for both of us to live on. Q: Thank you, Mrs. Monroe. No more questions. 18th Annual Oregon Trial Advocacy College 5 32

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107 Chapter 6 Pleadings Contents Plaintiff s Motion in Limine Complaint for Damages Personal Injury Defendant s Answer and Counterclaim Plaintiff s Reply to Defendant s Counterclaim

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109 Chapter 6 Pleadings IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH LAWRENCE T. MONROE, Case No.: Plaintiff, PLAINTIFF S MOTION IN LIMINE v. TERESA LOUISE CARTWRIGHT, Defendant Plaintiff Lawrence R. Monroe makes the following motion in limine. This motion is supported by the pleadings and briefing in this case and the following points and authorities: MOTION NO 1: EXCLUDE EVIDENCE OF ALLEGED ERRATIC DRIVING EARLIER IN THE PLAINTIFF S TRIP ON BARBOUR BOULEVARD Argument Plaintiff anticipates that Defendant Cartwright may attempt to introduce evidence suggesting that Plaintiff was driving erratically on Barbour Boulevard prior to the collision with Defendant. Plaintiff further believes that Defendant Cartwright will argue that this allegation of erratic 18th Annual Oregon Trial Advocacy College 6 1

110 Chapter 6 Pleadings driving constitutes evidence that Defendant was negligent at the later time of the collision. Plaintiff moves to exclude evidence related to Plaintiff s driving on Barbour Boulevard because any such driving was far removed in time and place from the collision in question. Alternatively, even if this evidence is found to be relevant under ORE 401, it is unduly prejudicial under ORE 403. In the event the Court grants this motion, Plaintiff further moves Defendant s counsel be directed to not mention, directly or indirectly, that there is a judicial order preventing her from mentioning additional evidence DATED this day of October, (FIRM NAME) By: (Name of Plaintiff s Attorney) OSB No Practice Note: The Defendant should either file a motion for partial summary judgment to strike the Plaintiff s allegation 3-g that the Defendant was driving under the influence, or alternatively, Defendant could move that the allegation not be put before the jury in a motion in limine. The better practice would be to file a motion for partial summary judgment with supporting affidavits in order to make an appealable record. For purposes of our trial practice, 18th Annual Oregon Trial Advocacy College 6 2

111 Chapter 6 Pleadings the Plaintiff is going to assume the court would grant a motion in limine to strike the allegation so it won t be mentioned by Plaintiff s counsel. It s further assumed that, once a motion in limine is granted, counsel won t attempt to back door the judge s ruling by suggesting there s more that can t be mentioned th Annual Oregon Trial Advocacy College 6 3

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113 Chapter 6 Pleadings IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH LAWRENCE T. MONROE, Plaintiff, v. TERESA LOUISE CARTWRIGHT, Defendant. Case No.: COMPLAINT FOR DAMAGES PERSONAL INJURY CLAIM NOT SUBJECT TO MANDATORY ARBITRATION (Claim Over $50,000) Plaintiff alleges as follows: 1. S.W. Capitol Hill Road is, and at all material times herein was, a public highway that generally provides for northerly/southerly traffic within Multnomah County, state of Oregon. 2. On or about May 6, 20, plaintiff was driving northbound on S.W. Capitol Hill Road ("Capitol") in Portland, Oregon. Capitol intersects with S.W. 17th Drive ("17th"). As plaintiff approached the Capitol/17th intersection he noticed the defendant approaching the stop sign from 17th. Defendant turned onto the southbound lane of Capitol and crashed her vehicle into the front end of plaintiff's vehicle. 3. Plaintiff realleges paragraphs 1 and 2. Defendant was negligent in one or more of the following particulars: A. In making a left turn onto Capitol when she could not safely do so; 18th Annual Oregon Trial Advocacy College 6 5

114 Chapter 6 Pleadings B. In failing to yield the right of way to plaintiff; C. In failing to keep a proper lookout while driving her vehicle; D. In failing to maintain proper control of her vehicle. 4. As a direct result of defendant's negligence, plaintiff suffered injuries to his right foot and ankle, lacerations on his forehead and left arm, and bruises. Plaintiff still suffers from headaches as a direct result of defendant's negligence and has suffered permanent injuries to his right foot and ankle. Plaintiff must use a cane to walk, and now suffers from pain in his hips and back due to his injuries. Plaintiff had pre-existing injuries that rendered him more susceptible to future harm, the plaintiff also had an allergic reaction to prescribed pain medications. As a direct result of defendant's negligence, plaintiff has suffered past impaired earning capacity in the sum of $53,000.00, and future impaired earning capacity in the sum of $463, The Plaintiff has also suffered non-economic damages in the sum of $540, PRAYER WHEREFORE, Plaintiff demands judgment against Defendants as follows: 1. For economic damages in the amount of $516, For non-economic damages in the estimated amount of not more than $540,000.00, the actual amount to be determined by the jury; and 3. For Plaintiff s costs and disbursement incurred herein. DATED this day of, 20 (FIRM NAME) By: (Name of Plaintiff s Attorney)(OSB No. ) Of Attorneys for Plaintiff th Annual Oregon Trial Advocacy College 6 6

115 Chapter 6 Pleadings IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH LAWRENCE T. MONROE, Plaintiff, v. TERESA LOUISE CARTWRIGHT, Defendant. Case No.: DEFENDANT'S ANSWER AND COUNTERCLAIM Defendant answers the complaint as follows: 1. Defendant admits the allegations contained in paragraph 1 of the complaint. 2. Defendant admits that on or about May 6, 2009, she turned onto the southbound lane of S.W. Capitol Hill Road from S.W. 17th Drive in Portland, Oregon. Defendant further admits that the vehicle driven by the plaintiff collided with the vehicle driven by her at said time and place. Defendant denies the remaining allegations of paragraph Defendant denies the allegations of paragraph 3 of the complaint. 4. Defendant denies the allegations of paragraph 4 of the complaint. 18th Annual Oregon Trial Advocacy College 6 7

116 Chapter 6 Pleadings AFFIRMATIVE DEFENSE (Comparative Fault) 5. Plaintiff caused or contributed to the harm of which Plaintiff complains in one or more of the following particulars: A. In operating his vehicle at an unsafe speed under the conditions then and there existing; B. In failing to keep a proper lookout; C. In failing to yield the right of way to defendant. COUNTERCLAIM (Negligence) 6. Plaintiff was negligent in one or more of the following particulars: A. In operating his vehicle at an unsafe speed under the conditions then and there existing; B. In failing to keep a proper lookout; C. In failing to yield the right of way to defendant. 7. As a direct result of plaintiff s negligence, defendant suffered a severe subdural hematoma, dizziness, and blurred eyesight. Further, defendant was hospitalized for more than three weeks and was forced to incur medical expenses in the sum of $487,649 hospital costs, medications and physical therapy. Defendant was also forced to attend an additional year of high school, and was unable to work at her job as a lifeguard from June 1, 2009 to September 2, 2009 resulting in lost income in the sum of $3, As a direct result of plaintiff's negligence, defendant suffered economic damages in the sum of $491,084 and non-economic damages of $1,350, th Annual Oregon Trial Advocacy College 6 8

117 Chapter 6 Pleadings WHEREFORE, defendant prays for judgment against plaintiff for economic damages in the sum of $491,084, non-economic damages in the sum of $1,350,000, and for her costs and disbursements incurred herein. DATED this day of October, 2015 (FIRM NAME) 5 6 By: (Name of Defendant s Attorney)(OSB No. ) 7 8 Of Attorneys for Defendant th Annual Oregon Trial Advocacy College 6 9

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119 Chapter 6 Pleadings LAWRENCE T. MONROE, v. IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH Plaintiff, TERESA LOUISE CARTWRIGHT, Defendant. Case No.: PLAINTIFF S REPLY TO DEFENDANT S COUNTERCLAIM Plaintiff Lawrence R. Monroe makes the following reply to the Defendant s Counterclaim: I. Plaintiff admits that a collision occurred on May 6, 2009, in the intersection of S.W. Capitol Hill Road and S.W. 17 th Drive in Portland, Oregon between the party s respective vehicles. II. In reply to Defendant s allegations of injury, pursuant to ORS (1), Plaintiff asserts that the Defendant failed to mitigate her damages by operating a car in which the seat belt had 18th Annual Oregon Trial Advocacy College 6 11

120 Chapter 6 Pleadings 1 been removed. 2 3 WHEREFORE, Plaintiff moves the Defendant take nothing by her counterclaim DATED this day of, 20. (FIRM NAME) By: (Name of Plaintiff s Attorney)(OSB No. ) Of Attorneys for Plaintiff th Annual Oregon Trial Advocacy College 6 12

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123 Chapter 7 Exhibits The following exhibits may be used with the document camera available in each courtroom. Contents Accident Scene Diagram Accident Scene Photos

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