Monthly Archives: April 2012
When is an Exhibit Sticker More Than an Exhibit Sticker?
An exhibit sticker can do much more than identify an exhibit for the record. It can actually be used as an organizational tool to aid the jury in understanding what the exhibits are being used to prove, as well as, better understand your case and how it is being put together. When I was a federal prosecutor I handled a number of “complex” fraud cases and had to come up with my own system for tracking my evidence and proof for each count of the indictment and the various overt acts of the conspiracy count.
I used my indictment as a narrative tool to help the jury follow my evidence and cross-reference which exhibit helped prove which count and corresponded with the various overt acts in my conspiracy count. My conspiracy count was organized like a short story with each event (overt act) referenced on the exhibit sticker along with any separate substantive count for other the crimes separately charged.
For example, Exhibit 44 – OA (d) – CT 15 would tell the jury that the Exhibit 44 was being used to prove overt act (d) of the conspiracy count and Count 15 of the indictment. I would also annotate my copy of the indictment’s substantive counts. At the bottoms of each count on my copy of the indictment, I would list the witnesses that authenticated the exhibits, provided forensic testimony, or other supporting evidence as well as list the corresponding overt act of the conspiracy count. This allowed the jurors and court to easily follow my proof at trial. It also permitted me to easily address any motion for a directed verdict by specifically identifying the witnesses and evidence that proved each count.
By keying the overt act to the exhibit, the jury could easily move through the proof and see that I had established each count. The jurors had no trouble following my story. I numbered the exhibits in chronological order to fall in line with my overt acts. I numbered my counts chronologically as well. The jury could take the exhibits delivered to them by the bailiff which were submitted to them in numerical order and work through the indictment with little confusion. This would lead to rapid verdicts on very complicated cases. This also built up trust between the jurors and myself. They knew I cared about them and wanted to make their job as easy and efficient as possible. This system avoided confusion in the jury room. Using this numbering system with my organizational system discussed in my earlier post entitled: “How to Stay Organized During Trial” allowed me to gain control of the courtroom and the trust of the jury and judge.
One caveat, I would make sure you explain the system both in opening and closing, and ask the jurors to pay special attention. Invariably, jurors assume someone else will be taking down notes and fail to focus on your explanation. I learned this lesson the hard way when the only note taker on the jury was removed prior to deliberations and no one else had paid close attention to my explanation. The jurors sent a note to the judge asking for me to explain the numbering system again. The judge refused to honor the jurors’ request. Eventually, they figured out the system and made short work of the case.
Integrity: A Client’s Most Valuable Asset
Clients sometime forget what is their case’s greatest asset. It is not the great photos, their expert witness, or even their attorney. The greatest asset their case has is the Client’s integrity and credibility as a witness. If a claims adjuster, an insurance defense attorney or jury thinks your client is a liar why would they want to give him a dime even if he is hurt? Clients sometimes let the “dark side” enter their hearts and cloud their judgment.
In the Star War’s Movie: The Empire Strikes Back, Luke trains on a remote planet to become a Jedi Knight. His Master, Yoda, tells Luke that fear and anger will pull him to the dark side, and that there is no turning back from the dark side once he embarks on that path.
These same emotions can draw a client towards the dark side. Clients can be fearful, greedy, and angry. Instead of answering questions truthfully, they can be tempted to try and make their case better than it really is in order to get even or because they are afraid of losing. I have long told clients to avoid the temptation to try an improve on the truth by exaggerating their injuries or by lying.
“You don’t want to take a good case, try to make it into a great case, and turn it into a bad case!”
Next time, caution your client to tell the truth, the whole truth and nothing but the truth. Deceit and exaggeration are problems that are almost impossible to solve through trial advocacy. Credibility is the advocate’s most valuable currency in the marketplace of ideas.
Distraction, Misdirection and the Art of Verbal Jujitsu.
Distraction, misdirection and appeals to prejudice are common tools of the defense. Ideally, you keep these improper arguments or evidence from the jury through the use of motions in limine. However, sometimes this is impossible to do. What do you do to keep the jury from being mislead or distracted by meaningless side issues? How about a little verbal jujitsu! “Jujitsu” is the oriental “art” of manipulating the opponent’s force against himself rather than confronting it with one’s own force. You can do this by verbal jujitsu using effective analogies and counter-arguments. Below are a few of my favorites analogies and arguments. I hope they help.
STREET LIGHT ANALOGY: One dark evening a woman was on her hands and knees under a street light looking through the grass. A man walking by stops and asked what she was looking for. “The keys to my car.” replied the woman. Having some time and feeling helpful, the man joined the woman in her search for her keys. After looking for quite awhile with no success, the man asked: “We have been looking for well over 15 minutes here. Are you sure this is where you were when you lost your keys?” “Why no, I lost them a couple blocks back over there by my car” the woman explains as she gestures back towards her car. The man puzzled, asks, “If you lost them a couple blocks back, why are you looking for them here?” The woman without keys responds: “Because the light’s so much better here!” That’s what’s the defense did here, even though the real issues are two blocks back…
WHEN THE LAW & FACTS ARE AGAINST YOU: In law school they say if the facts are in your favor, argue facts, if law is in your favor, argue law, if neither law or facts are in your favor, argue like a lawyer and try to confuse the jury about what the case is really about. It’s the oldest trick in the book. The defense took a nice simple case that is straight forward and tried to make it complicated by pointing to a bunch things that really have nothing to do with the case’s merit, in hopes that you’ll forget what this case is really about…
OCTOPUS ANALOGY: The defense is just like an octopus hiding behind a cloud of black ink, they try to obscure your view with their arguments and B.S. However, all you have to do is just move straight ahead through the ink and you can see the truth once again. Most octopi squirt thick clouds of black ink to confuse predators. However, a type of Tremoctopus, or blanket octopus (murasakidako in Japanese), employs a different technique. When threatened, the octopus unfurls a giant sheet of webbing that trails behind like a cape. The webbing breaks apart rather easily when attacked — much like a lizard’s tail — and it gets wrapped around the predator’s face, giving the octopus a chance to flee. The defense took a nice simple case that is straight forward and tried to make it complicated by muddying the waters with a bunch things that really have nothing to do with the case, in hopes that you’ll forget what this case is really about…
RED HERRING ANALOGY: A “red herring” is normally used by people to divert the attention of others from something important; from the central point that is being considered. A “herring” is a kind of fish that turns red only when it is “cured” – that is, when it is smoked and salted. Such a fish emits a very strong smell and in the past criminals made use of red herrings to help them in their bid to escape the authorities. Convicts used the herring to help them throw dogs off his scent. Since the herring had a very strong smell, the police dogs followed the scent of the herring and not that of the escaped convict! The original expression was “drag a red herring across the trail”, but now it’s been reduced to “red herring”. That’s what’s happened here…
AD HOMINEM ATTACK: An Ad Hominem attack falls into a general class of fallacies in which a claim or argument is rejected because of some irrelevant fact about the author of or the person presenting the claim or argument. The reason this sort of argument is fallacious is that the character, circumstances, or actions of a person do not (in most cases) have a bearing on the truth or falsity of the claim being made (or the quality of the argument being made). These sort of arguments appeal to prejudice and bias in hopes that you will ignore your sworn duty as jurors. They are wrongheaded and improper. Lady justice stands there holding the scales of justice blindfolded. Lady justice does not care if we are black or white, Christian or Moslem, male or female, rich or poor, married or divorced… Her sole concern is to fairly and impartially evaluated the evidence based upon the law. The defense’s personal attacks on my client have nothing to do with this case’s merits. It is bad enough that they have shamelessly injured my client, now they want to profit from insulting and degrading him in your eyes. These attacks have no bearing on what is a fair and just outcome given the facts and the law in this case which weigh heavily in favor of my client…
One book which has a number of great counter-arguments is Closing Arguments: The Last Battle. This book is a well-organized collection of miscellaneous arguments and analogies used to explain and illustrate various legal issues and address common defense attorney arguments and tactics used to undercut, confuse, distract or sidetrack juries from the central issues in a personal injury case.
The Barrister's Toolbox 