Monthly Archives: August 2011
When is the “Truth” Wrong?
When is the truth wrong? This issue comes up often during the course of a trial. A witness testifies to a fact which is contrary to your side of the case, or it contradicts other evidence. A question arises, is the witness being truthful? Why is he “lying”?
The more important question to ask is: Why is the witness being inaccurate? This is the issue which needs to be addressed by the attorney. In other words, why did the witness testify mistakenly? Was it bias? Distraction? A limited opportunity to observe? Does he lack the expertise and training to make an accurate observation? Did he feel pressure to help the authorities? Were his senses impaired? Was it simply an honest mistake?
Often times it’s not necessary to destroy a witness or make him out to be a liar. You simply need to point out his limitations as an observer and imply his point of view is incorrect. One of my favorite quotes point this out:
“We see that as we are, not as they are.”
Keep this thought in mind the next time you rise to cross-examine an adverse witness. They could be telling the “truth” from their point of view and be “sincerely wrong”.
iPad App doubles as a Trial Notebook
I was looking for a program that could emulate the structure of my file system I use for jury trials. I looked at several programs that were touted as the answer for use on my new iPad 2 I received for my birthday. I looked at all the Apple App World had to offer to no avail. I download one such program and found it to be slow and cumbersome to navigate through. I needed something with multiple tabs that could take advantage of the iPad touch-screen to navigate quickly to pull up needed information. This has always been one of the limitations of a laptop… its hard to navigate and pull up information as fast as you can with a well organized physical file. After giving up hope, I came across
such app called simply “Outline” for the iPad. It will import notebooks from from the Microsoft program One-Note for ready use on the iPad. It works quite well and best of all it’s free. The materials are all organized just like my files and you can link documents such as depositions, medical journals and pleadings are linked for full review.
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The Silent Cross-Examination… When nothing is better.
Nothing is more thrilling than conducting a good cross-examination of an adverse witness. The attorney through a series of leading questions wrangles concessions and makes his own case through a line of short and concise rhetorical questions that lead to an undeniable conclusion in favor of one’s client. However, there are times when no cross-examination is the best course of action. Perhaps, the witness has done no harm to your case. Or, maybe the witness is quite dangerous and your opponent has missed opportunities to bring forth damaging facts. In fact, your opponent maybe lying in wait for you to unwittingly opened the door to evidence which could undo your whole case. Many a skilled trial attorney will intentionally set traps for their opponents by baiting them into a line of questioning for which their witness has a ready response. You may ask, why wouldn’t they simply bring it out on direct examination? Well, jurors have a tendency to pay greater attention on cross-examination than direct examination because of the inherent drama of seeing an attorney match wits with a hostile witness. The impact of evidence brought out on cross-examination far exceeds the power the same evidence has when elicited on direct examination. While it takes courage to forgo cross-examination altogether, this conservative strategy will often best serve a case. As Francis Wellman observes in his classic legal treatise “The Art of Cross Examination“:
“Nothing could be more absurd or a greater waste of time than to cross-examine a witness who has testified to no material fact against you. And yet, strange as it may seem, the courts are full of young lawyers and alas! not only young ones who seem to feel it their duty to cross-examine every witness who is sworn. They seem afraid that their clients or the jury will suspect them of ignorance or inability to conduct a trial. It not infrequently happens that such unnecessary examinations result in the development of new theories of the case for the other side; and a witness who might have been disposed of as harmless by mere silence, develops into a formidable obstacle in the case. “
There may also be occasions where the bias or inherent weakness of the witness’s testimony is so obvious that further examination can only offer an opportunity for the witness to escape his blunders or rehabilitate himself. Under such circumstances, it is far better for counsel to dramatically rise from his table stare down upon the witness as if to begin his dissection of his testimony and after a pregnant pause state “I see no need to ask any questions of this witness your Honor” and then sit down. The jury will assume counsel has mercifully spared the witness further torture and has saved the jury’s precious time for more productive matters.
As noted by Francis Wellman”[i]t cannot be too often repeated, therefore, that saying nothing will frequently accomplish more than hours of questioning. It is experience alone that can teach us which method to adopt.”
Jury Selection-What’s the Goal?
Of all the areas of trial work, this is probably the most difficult and important task that confronts a courtroom attorney. I have seen many different approaches used in questioning and selecting a jury. Your time is limited and the stakes are high. If you “guess’ incorrectly you can lose your case before it even begins. While there are several tasks to accomplish during jury voir dire, uncovering biases is the most important. The information gathered can be used to remove a potential juror for cause because of bias or the failure to satisfy the statutory requirements to sit and judge a case.
Grounds for cause can include the inability to read, see or hear, lack of English literacy, personal bias, preconceived opinions on a case that cannot be put aside, personal knowledge of the underlying facts or the parties, a family relationship to a party within so many degrees, and religious or ethical reasons that prohibit a person from sitting in judgment of another or rendering punishment. Most states have jury rules and/or statutes that outline grounds for excluding a juror for cause. You need to be familiar with them and be ready to specifically cite to the rules or statutes as needed. To this end, you really need to enlist the aid of the jurors themselves, especially where the Court has limited your time for questioning jurors.
I usually will say something like this early on in the selection process:
I have limited time to speak with you today and I may not be smart enough or have enough time, to ask the right questions to learn what I need to know about your background. I really need your help. I know it’s not easy to say for you to say that “there is something in my background that might not make me the best of person to sit on this type of case.” It takes a lot of courage to admit this sort of thing about yourself. So ask you to please help me and my client by letting me know if there is anything that you know of in your background that you think I should know. Please let me know if there is anything which could affect your ability even a little to sit as a juror in this case?
This usually will get people talking. I always compliment the person for their honesty and candor. I try to cover burdens of proof and make sure that the jury will not have a problem (even a little) in obeying the Court’s instructions and including money for all items of damage including pain and suffering or loss of services. I will also check for any areas of expertise that a witness might have which could come to bear and make sure that they will decide the case based upon the expert testimony in court and not be their own expert. This would be unfair because i would have no chance to question them or examine their opinion. I will usually ask something along the following lines to see if the juror’s expertise will pose a problem:
If our expert testifies to a principle or opinion which based upon your training or experience you know is incorrect, can you put aside your own personal knowledge and decide this case solely based upon the evidence presented in court? Would you be unable to ignore what you have learned outside the court room in decide what to do?
I also look for who the leaders are on the jury panel. They will either lead the others or hold out and hang your jury. You should look at the person’s education, job, civic involvement and standing in the community. I simply ask :
Have you ever held a position of leadership at work or as part of an organization or club?
Leaders are most likely to end up being the foreperson. As a federal judge once told me, if you can pick the foreperson, you can usually predict the verdict. Good luck in selecting your next jury. I hope these thoughts help you in selecting your next jury.
Mastering the Rules of Evidence: Is it really important?
Early in my career, the “rules” of evidence were derived by reading case-law and the handful of statutes that addressed privilege and competence. If you wanted to know the “rules”, you had to research and read case-law. The only ready compendium were books like Graham’s Handbook on Federal Evidence. Today, litigators in every state and federal.court have a set of rules modeled after the ones used in federal courts.
If you want to master the rules, you need to read them through, beginning to end before every bench or jury trial. This will remind you of potential problems you need to address in you motions in limine, your exhibits and witnesses‘ testimony. You will spot problems with evidentiary proof you might otherwise overlook in your case and that of your opponent. You will better understand the policies behind the rules and the significance of the various sections of rules that deal with preliminary questions of fact, objections, offers to prove, judicial notice, relevancy, character evidence, impeachment, lay and expert witnesses, hearsay, authentication and alternate forms of proof approved for use at trial to prove a document’s content. Eventually, you will be able to cite the significant rules by number which will enhance your credibility with the judge and jury. It will also unsettle your opponent and inhibit his willingness to object to your questions, witnesses and exhibits since he won’t want to look bad in front of the jury by having his objection overruled. If you have a smart phone, there are applications that will contain the Rules of Evidence that you can readily reference such as Lawbox.
So get start today! It will increase you competence and your confidence in the courtroom.
The Trial Notebook: Being Prepared for “Unexpected” Legal Issues During Trial
During the course of a trial have you ever had an ” unexpected” legal issues arise and say, I know there is a case or rule out there on point, but I just cannot remember it? The best way to prepare for such issues is to keep a trial notebook.
What is a trial notebook you may ask? Well my trial notebook represents twenty plus years of knowledge I have gained from my research, review of advance sheets, jury selection issues, trial procedure and evidentiary issues. I keep a three-ring binder with lettered tabs from A to Z. I use re-enforced three-ring paper and make notes on matters I come across which might arise during a trial and then file them under the right heading and index it under the proper lettered tab. Below is an example of such a note I have listed alphabetically under “P” in my trial notebook:
Privilege – Work Product – I.D. of Witness Statements
An interrogatory invades the thought processes of counsel, and tends to reveal the detailed pattern of investigation conducted by the counsel by asking for the names and addresses of all persons interviewed by counsel. It has been held that such information is protected by the work product privilege and T.R. 26. See generally, United States v. Renault,Inc. (1960), S.D.N.Y. 26 F.R.D. 23. Massachusetts v. First National Supermarkets, Inc. (1986) D. Mass., 112 F.R.D. 149, 152-153.
I especially concentrate on areas involving discovery issues, jury selection, evidentiary foundations, privilege, hearsay, relevancy, authentication, jury instructions, motion in limine topics, procedural issues and motions for directed verdict as these issues can arise during the course of a trial with little or no time for research. A judge will be duly impressed with your ability to rapidly address such issues. Start today and begin keeping your trial notebook. It will make you a better advocate and attorney. Before you know it you will be able to cite actual authority for your legal position at a moment’s notice.
How to Stay Organized During Trial
Need a system to keep all your witnesses and exhibits organized? Well sometimes the best system is the simplest one.
I use a separate folder for each witness and each exhibit. I make sure all the folder tabs line up in a single row for the witnesses and label each witness folder with their last name, first name or if it’s a record keeper I use the name of the organization. By using a single row of tabs you can quickly thumb through the files without having to scan side to side. I then alphabetized the folders from A to Z.
In each witness folder, I keep a copy of the witness’s outline and a copy of any exhibits needed for the witness. This way if I need to run out and meet with a witness, I just pull their folder and run. Because of my preparation, I know I have everything in hand I need to deal with that witness.
Each exhibit is also kept in a separate tabbed folder or tabbed binder and is sequentially pre-numbered or pre-marked with a letter. The folders or tabs are then sequentially ordered just as was done with the witnesses.
I also prepare two lists, one for witnesses and one for exhibits. Witnesses are listed alphabetically with the number or letter for each exhibit to be shown to that witness listed in the adjacent column.
I create a second list with exhibits sequentially listed and all witnesses crossed reference for each exhibit. On this list i also have columns to note if an exhibit was tender into evidence and whether it was admitted or excluded. This way you or your assistant can know exactly which exhibits need to be pulled, shown to and covered with each witness. You also can track if you need to make an offer of proof for exhibits excluded.
I outline each element of proof for my claim(s) and list the witness and exhibit which supports each separate element of the claim(s). This way you can easily respond to a motion for a directed verdict by outlining the proof which was entered through the testimony of specific witnesses and the exhibits on your shorthand list of proof.
I have successfully use this system for trials involving dozens of witnesses and hundreds of exhibits. It is simple and it works. It also keeps your table organized and uncluttered which conveys to the jury you know what you are doing.
What Makes a Trial Attorney Effective?
Image via Wikipedia
How does one become an effective trial attorney? It boils down to being an effective communicator. Everything an attorney does sends a message to the jury and judge. This involves your personal appearance, how you speak, your posture, eye contact and how you put together your message. It’s important to watch other people try cases any chance you get. You learn from both good attorneys and bad attorneys.
Don’t be afraid to steal from the best trial attorneys you can find, whether in your local courtrooms or in the pages of history such as Abraham Lincoln or Clarence Darrow. The most important trait an attorney possesses in persuading a jury or judge is their sincerity and honesty. Be true to who you are and embrace it, don’t run away from it. Nobody is going to buy what you’re saying no matter how polished, if they don’t believe you. Be yourself.
The collective wisdom and perception of the jury will spot a phony. The most credible attorney is the most persuasive advocate before the jury. I’ve seen more than my share of cases where the more polished, handsome and “intelligent” attorney lost. Remember, the jury decides a case based upon the most credible evidence presented for their consideration. Be a worthy guide to the truth.
Greetings Trial Lawyers – Need Help? – Give Me a Call.
This site is for those who practice in our nation’s courtrooms and make our adversarial system an engine for justice. All are welcome to share their knowledge and experience about what works in communicating with judges and juries. Have a question that requires in-depth consultation for a case you are handling? Please feel free to contact me. I can provide consultation services and strategic analysis on a hourly basis or through flat fee arrangement with your firm. My office number is 317-334-9200. Thanks for visiting.
Rich Cook
The Barrister's Toolbox 