Monthly Archives: October 2013
“If you tell the truth, you don’t have to remember anything.” ― Mark Twain
The human memory is a tricky thing. Some things are learned and recalled without even thinking about them. These are typically items that we come in contact with in a concrete and tangible way on a day-to-day basis. Other items of information are more difficult to commit to memory because they are abstract in nature. These bits of information are not as easy to visualize and draw connections to other bits of information that we are more familiar with in our day-to-day lives.
I am currently reading a book titled “Moonwalking with Einstein” by Joshua Foer. It chronicles the author’s journey into the world of memory competition and how he developed an extraordinary world class memory through the use of various mnemonic devices. Humans it seems have a very developed spatial memory and if one can connect bits of information to a location in a highly unusually and memorable way the information is much more likely to be recalled and retrieved when needed later. An individual takes a location that they are thoroughly familiar with in intimate detail and uses this as a “memory palace” where memories are created through vivid and unique descriptions and then imagined to be deposited at various location in the person’s memory palace. Such training of the mind through the use of Loci was typical and part of a man’s education. This technique of connecting memories to locations, was outlined centuries ago in the four volume treatise “Rhetorica ad Herennium” by Cicero. Today, such techniques are seldom referenced outside of the world of memory competition. Contestants in the memory competitions use literally scores of “memory palaces” to deposit their memories for easy retrieval. Each fact or bit of information to be remembered is imagined in elaborate and extravagant detail involving as many senses as possible as part of creating the memory. This imbeds the information deeply with in the mind. The more connections created to the information from various senses, the easier it is to retrieve and recall the information.
So how can this help you in presenting your case to the jury? Well, you need to involve each juror’s mind in as many ways as possible through your presentation. Create vivid imagery with your words, exhibits and through your story telling. Analogies are a mnemonic device to help jurors create connections with items of information they already know and are familiar with through their everyday lives. The analogy not only illustrates your point, but acts as mnemonic device to help your jurors recall and make your arguments again in the jury room when it counts most. In addition to analogies, when you make a new point in your closing argument or opening statement, change your location even if it is subtle or minor. This taps into a juror’s spatial memory. Engage their sense of hearing in a memorable way by varying the tone and volume of your delivery as you move from topic to topic. I have even heard of attorneys referring to a deceased client by subtly indicating with their hands to the presence of their deceased client in a particular area of the courtroom and then carefully avoiding that spot as the case proceeds forward. The attorney in essence gestures to their client at a fixed location. In one instance I heard of this technique being so effective that opposing counsel subconsciously avoided the spot where the deceased client was referred to through gesture. And don’t forget the senses of touch and smell in describing an accident scene: the jagged and rough edge of a piece of metal, the abrasive surface of the pavement, the bloody surface of a wound, the smell of burnt rubber, the sweet order of antifreeze and the pungent order of gasoline.
If you involve as many senses of the jurors as possible when making your presentation of evidence and argument, you will increase the chance of those arguments being repeated in the jury room and helping the jury remember when you said it in the courtroom.
Sitting in Water Tower Place I could not help but think about all the great and talented attorneys this City has produced. The legendary Clarence Darrow called this place home. He never shied away from taking on difficult cases, unpopular causes or clients.
Darrow successfully defended Dr. Ossian Sweet, a black physician, who was charged with the death of a man who was shot to death as Dr. Sweet and family members defended themselves from an angry white mob of people who were yelling and stoning Dr. Sweet’s home for daring to move into an all white neighborhood in Detroit during the 1920s. The case was tried to an all white male jury. Darrow was fortunate to have a fair-minded judge who made sure that jury selection was a fair process. The trial judge, Frank Murphy, would later become mayor of Detroit, governor of the Philippines, governor of Michigan, Attorney General of the United States, and an Associate Justice of the United States Supreme Court.
As an attorney I have my share of difficult cases. I represented a lady charged with the murder of her newborn child. The local press and public had vilified her on television, in print and on the Internet. My client had the benefit of a fair-minded judge who insured that my client’s right to a fair and impartial jury was not violated by allowing written questionnaires and individual voir dire of jurors over a period of two and half days. I did the case for the challenge and out of a sense of obligation. The glares from law enforcement or members of the public looking on did not dissuade me. I fortunately won an acquittal.
Without attorneys willing to act in such situations and bring their best to bear our system of justice can not work. Only through both sides working to do their best can our system produce just and accurate results. Like John Wayne said, “Courage is being scared to death and saddling up anyway.”
A picture is worth a thousand words.
One picture is worth 1,000 denials.
Let’s face it, in the context of a trial pictures and other demonstrative evidence can have a very powerful impact on a jury. Back in the late 1800s and early 1900s, attorneys could give closing arguments that could go on for literally days. For the most part there was not whole a lot in the way of demonstrative evidence beyond some still photographs in black and white. The primary way jurors took in evidence was through oral testimony and argument. Trials were drama plays attended by members of the public… reality T.V. for a bygone era. Politicians likewise would go stumping in person from town to town or connect with the electorate through the printed media.
Today the pace of life gets faster and faster. We are called upon to take in a wide variety of information and even have to multitask which is not my forte. Courts are crowded and judges are always wanting to “move things along.” Closing arguments that took hours now are limited to a matter of minutes. As a result, you need to package your message to fit in the time allotted. One way to do this is to rely on visual aids. Today a significant number of people learn primary through their sense of vision. We are use to receiving our news through the evening anchor both verbally and visually. Pictures and videos tend to be more objective and interesting to jurors than simply verbal information alone.
In describing how a collision occurred or what a document stated, it is important to involve as many of the juror’s senses as possible if you want them to remember and be convinced of your position. Pictures cannot lie (absent being doctored) or be bribed, and they don’t forget. Don’t be afraid to use video depositions, photographic blowups, power point presentations or large blown-up transcript pages with excerpts from key testimony.
Also, don’t forget to paint vivid pictures with your choice of words and descriptions, as well as through analogies and story telling. If you do so, your case just might just end up picture perfect for the jury.
“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” —Thomas Jefferson to Thomas Paine, 1789.
Jurors… They are truly the heart and soul of our justice system. No invention known to man has a greater potential to add to the cause of justice than a jury. They represent a microcosm of democracy. All typically must agree on the outcome. There must be compromise and a degree of open-mindedness, if there is to be a resolution at all. Most arrive wishing they were somewhere else and leave transformed by the process of being asked, in the name of justice, to render a decision that will profoundly effect the lives of the litigants before them. Their collective intellect, wisdom and conscience is more powerful and productive of good than any single man sitting in judgment of another person’s actions or decisions. Under English law, jurors stood between the crown and it’s subjects. They acted as a check on tyranny by the crown against the people. The following analogy about the “Old Man, the Boy and the Bird” demonstrates a jury’s awesome power. I first saw this analogy recited years ago on “Sixty Minutes” by renowned trial lawyer, Gerry Spence. It is a fitting way to end a closing argument as Spence liked to do:
“I’m going to tell you a simple story, about a wise old man and a smartaleck young boy who wanted to show up the wise old man for a fool. The boy captured a little bird. He had the idea he would go to the wise old man with the bird in his hand and say, “What have I got in my hand?” And the old man would say, “Well, you have a bird, my son.” And he would say, “Wise old man, is the bird alive or is it dead?” The old man knew if he said, “It is dead,” the little boy would open his hand and the bird would fly away. If he said, “It is alive,” the boy would take the bird in his hand and crunch the life out of it and then open his hand and say, “See, it is dead.” So the boy went up to the wise old man and he said, “Wise old man, what do I have in my hand?” The old man said, “Why, it is a bird.” He said, “Wise old man, is it alive or is it dead?” And the wise old man said, “The bird is in your hands, my son.”
Ego… All good trial attorneys have it. Without a little ego it would be difficult to stand up and try to persuade a bunch of strangers you just met to acquit your client or award your client a significant sum of money. It takes not hard work and preparation, but a fair amount of moxie and courage to be an effective trial attorney. However, it does not always pay to be the smartest guy in the room. I learned this early on as a trial attorney while prosecuting cases. I would always work hard to anticipate evidentiary issues that might arise, look up cases, copy and highlight them so I was ready if a question of admissibility were to arise. As my experience grew, I incorporated this research into my trial notebook which I have covered in an earlier post. Sometimes in my zeal to win and impress the judge, I would jump the gun before it was really necessary and start quoting case-law and the rules of evidence or procedure to the judge. Most judges have a fair amount of ego too and want to believe that they are the smartest guy in the room. Even if they aren’t, most juries will think that they are. Some judges even have what is commonly called “black-robe-it is” and feel that they are infallible and will demean attorneys who dare to disagree with them. Now, if I see that the judge is likely to take up my position on a legal point, I don’t interrupt, interject authority or case-law until I am asked to so by the Court. It better for the judge to think your position is the judge’s own idea and take ownership of your position. I am careful to let the judge shine as the smartest guy in the room as long as things are moving in my client’s favor. So next time a legal issue arise, pause and see how the Court is approaching the topic before speaking. Then you will be the smartest guy in the room, even if you are the only who knows it.
Hearsay or non-hearsay? That is the question. But how do you identify statements that are potentially hearsay? On a local list serve experienced trial attorneys debated whether a “command” from a doctor to a patient was hearsay or not. Surprisingly, the opinions on this issue were pretty evenly split even though the answer was clear that a “command” is not hearsay. I looked and was surprised that I couldn’t find a clear explanation of the concept from any decision in my state. I knew that a “command” just like a “question” or a “greeting” cannot be hearsay because it is not a statement of fact. It cannot be true or false any more than the statements: “Hi. How are you doing? Can you get me a cup of coffee.” If it cannot be judged to be either “true” or “false”, then it can’t be hearsay because it cannot be offered for the “truth of the matter asserted.” Federal Rule of Evidence 801 is where we want to start. It provides a few key definitions that describe “hearsay”:
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
After a little research, I finally came across a case that explained the distinction pretty well, Stoddard v. Maryland, 157 Md. App. 247, 850 A.2d 406 (Md. App. 2004). There the court explained:
The ABC’s of Hearsay As a Point of Analytic Departure
To a student first embarking on Evidence 101, the key to understanding hearsay is, long before venturing into the thicket of the hearsay exceptions, to develop a sure “feel” for the difference between those utterances that are hearsay and those that are not. One must be able to negotiate the territory that McCormick called “the borderland of hearsay.”6 It is not enough to know that a challenged statement is admissible. That can be a
[850 A.2d 411]
lucky guess. Is it admissible because the hearsay rule is satisfied?, or is it admissible because the hearsay rule is inapplicable?
The classic classroom teaser posits a witness who testifies that he spoke by telephone with his brother in London, who said, “It is raining in London.” To the professor’s query as to whether that brotherly utterance is hearsay, the only intelligent answer is “I don’t have the foggiest.” It depends on the purpose for which the statement is offered. If it is offered to prove that at a given time it was raining in London, it is, of course, hearsay. If it is offered to prove that at a given time the brother was alive and able to speak, it is, with equal certainty, non-hearsay. The first purpose needs the brother to be shown to be trustworthy. The second purpose is indifferent to trustworthiness, and the hearsay rule is only designed to guarantee trustworthiness.
In Ali v. State, 314 Md. 295, 304, 550 A.2d 925 (1988), Judge McAuliffe gave a classic common law definition of hearsay.
Hearsay is generally defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Thus, when a statement is offered for some purpose other than to prove the truth of the matter asserted therein, it is not hearsay.
See also Burgess v. State, 89 Md.App. 522, 537 n. 12, 598 A.2d 830 (1991).
The Maryland Rules of Evidence, § 5-801(c), promulgated six years after Ali v. State, defined “hearsay” in almost verbatim terms.
“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Federal Rule of Evidence 801(c), from which the Maryland Rule is derived, is absolutely verbatim with the Maryland definition.
At the most basic level, under both the common law and the new Federal and Maryland Rules, a hearsay statement consisted routinely of the speaking of a declarative sentence in the indicative mood, which sentence stated the very fact which the proponent of the statement sought to prove by its use. Early on, however, it was recognized that a hearsay statement could be a writing of an assertion as well as a speaking of it. It was also universally recognized, virtually ab origine, that a hearsay statement could consist of a non-verbal action if the action were intended by the actor to be an assertion. The pointing of a finger at Suspect # 4 is just as assertive as are the words, “The man who robbed me is Suspect # 4.” Just as surely assertive, in response to a question, is a vertical shaking of the head (“Yes”), a horizontal shaking of the head (“No”), or a shrug of the shoulders (“I don’t know”).7
Reflecting that common law understanding of a hearsay “statement” is Maryland Rule 5-801(a).
A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a
[850 A.2d 412]
person, if it is intended by the person as an assertion.
Federal Rule of Evidence 801(a), from which the Maryland Rule derives, is absolutely verbatim. To complete the three intertwined definitions that go into the collective definition of “hearsay,” both Maryland Rule 5-801(b) and Federal Rule of Evidence 801(b) define “declarant.”
A “declarant” is a person who makes a statement.
With the earlier, and essentially indistinguishable, common law counterparts of such definitions, the law of evidence had clean-cut paradigms of hearsay and of non-hearsay, and there was a well-marked boundary between them. The hearsay rule, without disruptive aberrations, was “ship shape and Bristol fashion.” Then Admiral Tatham elected to challenge his cousin’s will, and, even as we write, we are still being assailed by the consequences of that caveat.
At the most basic level (pre-1838 and post-1994), little Jasmine’s question to her mother, “Is Erik going to get me?” clearly would not fit the hearsay mold. In Holland v. State, 122 Md.App. at 543-44, 713 A.2d 364, we discussed the ordinarily tell-tale grammatical and syntactical characteristics of a hearsay statement.
To qualify as hearsay, the words recounted in court must, for starters,constitute an assertion or statement of a fact. Many out-of-court utterances are self-evidently not assertions. If a witness testifies to the out-of-court inquiry, “What time is it?,” that inquiry is obviously not an assertion of anything. For an out-of-court utterance to qualify as an assertion, it generally must be in the indicative or declarative mood, rather than in the interrogative mood, the imperative mood, or the subjunctive mood. An out-of-court assertion of a fact may be true or untrue. For that reason, its admissibility in evidence is problematic if offered to prove that fact. An out-of-court inquiry, “What time is it?” can be, by its very nature, neither true nor untrue and there is, therefore, no such credibility problem. The out-of-court command, “Stop!” can be, by its very nature, neither true nor untrue and there is, therefore, no such credibility problem.
In Burgess v. State, 89 Md.App. at 537-38, 598 A.2d 830, Judge Alpert quoted with approval from D. Binder,Hearsay Handbook 18 (3rd ed. 1991):
Many out-of-court utterances fall within such categories asgreetings, pleasantries, expressions of gratitude, courtesies, questions, offers, instructions, warnings, exclamations, expressions ofjoy, annoyance, or otheremotion, etc. Such utterances are not intended expressions of fact or opinion. They are not assertions, at least for purposes of the hearsay rule.Thus they are not hearsay.
“How are you?”
“Have a nice day.”
“Would you like to have lunch?”
“I hope it doesn’t rain tomorrow.”
“I wonder what he paid for that car.”
“Can you join me for a drink?”
“Don’t do that, or else.”
“Watch your step.”
None of the above utterances is an intended expression of fact or opinion. None is hearsay.
(Emphasis supplied). And see United States v. Oguns, 921 F.2d 442, 448-49 (2d Cir.1990) (an inquiry is not an assertion);United States v. Long, 905 F.2d 1572,
[850 A.2d 413]
1579-80 (D.C.Cir.1990) (questions are non-assertive).
To say that little Jasmine’s frightened question to her mother does not fit within the classic paradigm of hearsay, however, is not to say that it might not be embraced by the bloated definition of hearsay spawned by Wright v. Tatham. Indeed, the appellant proposes just that. He posits as an implied assertion the following attenuated inference: 1) From Jasmine’s question we may infer that Jasmine was afraid of Erik; 2) from Jasmine’s fear of Erik we may infer that Erik had done something to generate that fear; 3) from that likely causation, plus the timing, we may finally infer that Erik had assaulted Calen in the presence of Jasmine. The appellant then concludes that such an implied assertion is inadmissible hearsay. This argument requires us to turn our attention to the rise and fall of the implied assertion.
I hope this explanation helps and you are ready to address this issue next time it comes up at trial. Alright now, was the woman who served my cappuccino giving me a cup of coffee? Or was this an implied assertion from conduct offered for the truth of the matter asserted? I’m waiting….
Closing Arguments: Strict Liability, Dangerous Instrumentalities, Vicarious Liability and Use of the Lion Analogy
It always helps to use an analogy to explain an obtuse or complex legal principle. Strict liability for the actions of others or for events where no real negligence or lack of care has occurred is a difficult concept to convey to a jury. Strict liability can arise in a product liability setting, from vicarious liability for an employee or agent or in connection with escape of ultra-dangerous substances or animals. In the Karen Silkwood Case involving the release of plutonium which fatally poisoned Karen Silkwood, Gerry Spence used the following analogy:
“We talked about strict liability at the outset, and you’ll hear the court tell you about “strict liability,” and it simply means “If the lion got away, the Defendant has to pay.” It’s that simple. That’s the law. It came out of the English common law. Some guy brought an old lion on his ground, and he put it in a cage — and lions are dangerous — and through no fault of his own, the lion got away. The lion went out, and he ate up some people — and they sued the man. And they said, “You know, pay, it’s your lion and he got away.” And the man said, “But I did everything in my power. I had a good cage, had a good lock on on the door. I had trained people watching the lion, and it isn’t my fault that he got away.” Why should you punish him? They said, “You have to pay because it was your lion — unless the person who was hurt let the lion out himself.” The question is, who has to prove how the lion got away? They have to prove that the Plaintiff let it out. If they can’t prove that by a preponderance of the evidence, they’ve lost. Why? Well, it’s obvious. It’s their lion, it’s that simple.”
Gerry Spence’s efforts resulted in a multi-million dollar verdict being returned in favor of Karen Silkwood’s Estate for her wrongful death from plutonium poisoning. Perhaps it will aid you in making your point on the issue of strict liability.
Let’s face it, preparation breeds confidence. Only a fool would enter an endeavor with confidence in absence of preparation. If you want to succeed as a trial attorney you need to be prepared. What does success entail? Scholarship, discipline, investigation, organization, vision, curiosity, knowledge, practice, industry, humanity, wisdom, experience and talent. Preparation is the glue that holds these disparate elements together in a cohesive fashion to form that elusive goal, success. The book, “Outliers”, by Malcolm Gladwell, lays out the “Ten Thousand Hour Rule.” Gladwell throughout his book chronicles and recounts the experiences of persons who are extraordinarily successful, such as, Bill Gates and the members of the Beatles. He repeatedly references the “10,000-Hour Rule”, claiming that the key to success in any field, whether music, business, sports, law, ect., is to a large extent, a matter of practicing a specific task related to the endeavor for a total of around 10,000 hours. Success is rarely an overnight phenomenon or simply a gift from the gods. When you dig deep down into a person’s success you find that basic hard work and practice is the key. Why aren’t more people successful? The truth is, few people have the discipline and focus to stay with the program long enough to achieve the rarified air of true and long lasting success. So roll up your sleeves, dig in and get busy. The clock’s ticking.