Monthly Archives: April 2014

Statistics: Why Figures Don’t Lie, But Liars Figure…

More and more, figures and statistical information finds it way into litigation, both criminal and civil. At some point in your career as an attorney you will need to understand what can and cannot be accomplished in utilizing statistics. Most laypersons and attorneys are ill-equipped to handle such information. Oftentimes experts can find refuge in statistics which may or may not be truly relevant to the legal issue you are confronting. As Mark Twain (a/k/a Samuel Clemons) famously noted:

“Figures don’t lie, but liars figure.”

Another often quoted quip is:

“There are three kinds of lies: lies, damn lies and statistics.”

In litigation, you will often hear someone argue that the odds of being injured in a particular fashion are so low that a jury should not compensate them. However, there is a real risk in engaging in such post hoc analysis. How would you feel for example, if the State of Indiana came into court refusing to pay the Lotto Jackpot on your winning ticket by arguing that you could not have won it because the odds of winning are one in seven million.

Another way to point this same principle out, is the fallacy of using statistics to explain away a plaintiff’s untimely and unexpected demise:

“Your honor and ladies and gentlemen of the jury. Research has established that 90% of individuals involved in similar accidents survive. Accordingly, we must conclude that in spite of the evidence of lack of respiration, heartbeat, and brain wave activity, and in spite of the unfortunate burial of the decedent, in my expert opinion I conclude that he did not really die, and therefore the plaintiff estate cannot recover.”

Even though this sort of logic is flawed to its core, such arguments regularly find their way into our justice system… sometimes with disastrous effect. In order to spot such problems, you need to read about statistics, understand their limitations and how they can be misused. In this regard I would recommend the following reading:

1. Trial by Mathematics: Precision and Ritual in the Legal Process by Laurence Tribe, Harvard Law Review, 1971. This is an informative law review article addressing this topic. Mr. Tribe was the law clerk who assisted a California justice in writing a seminal opinion in this area. The court reversed a criminal conviction where a prosecutor improperly used statistical arguments in a robbery case involving a multi-racial couple. People v. Collins, 438 P.2d 33, 36-37 (Cal. 1968). Tribe had a math degree from Harvard in addition to his J.D. This opinion is often cited by courts as a prime example of how statistics and “scientific” evidence can be misused and down right dangerous to the pursuit of justice.

2. Naked Statistics by Charles Wheelan. The author strips away the arcane and technical details and focuses on the underlying thinking that drives statistical analysis. The author also clarifies key concepts such as inference, correlation, and regression analysis, reveals how biased or careless parties can manipulate or misrepresent data. Memorable examples of problems with statistics are discussed as well.

3. Calculated Risks: How to Know When Numbers Deceive You by Gerd Gigerenzer. This book does exactly what the title infers, it shows you in a concrete fashion how faulty thinking leads to people drawing incorrect conclusions from statistics and data. One of the problems discussed in the book is the famous dilemma presented by the Monty Hall Let’s Make a Deal Problem.

4. Math on Trial: How Numbers Get Used and Abused in the Courtroom by Leila Schneps. This book reviews the facts and outcomes of ten trials spanning from the nineteenth century to the present day, in which mathematical arguments were used, abused and disastrously misused resulting in unjust outcomes.

5. Reference Manual on Scientific Evidence prepared by the Federal Judicial Center. This is a free handbook that covers a number of areas of science that regularly appear in federal courtrooms. This manual is utilized by the federal judiciary as a reference book and covers both the law and science underlying a number of disciplines including epidemiology which is statistically based. This is must reading for any trial attorney who is going to take on an expert in a courtroom. This manual is regularly updated as well.

6. A Systematic Approach to Clinical Determinations of Causation in Symptomatic Spinal Disk Injury Following Motor Vehicle Crash Trauma by Michael D. Freeman, PhD, MPH, DC, Christopher J. Centeno, MD, and Sean S. Kohles, PhD. is an article which critically examines the misuse of data and pseudo-science to undermine claims of personal injury in motor vehicle accidents by defense “experts” and studies conducted in this area of litigation. This article provides an excellent survey and critic of the literature dealing with medical causation in motor vehicle collisions.

This list of reading should be both interesting and informative to the trial attorney confronted with the use of statistics. Just as it is helpful to “think like a lawyer”, it is equally useful to “think like a statistician”. Remember, numbers don’t lie, but liars figure…

Hot Coffee, Juror Bias and Fear of the Unknown

Hot Coffee
We have all heard about the infamous McDonald’s spilled coffee case as a supposed frivolous lawsuit resulting in a run-away-verdict. It is touted as the prime example of how corporate America has been victimized by juries and how the jury system is broken. However, this was not the case. In fact, Stella Liebeck, the little old lady from Albuquerque, New Mexico, was severely burned as a result of a long-standing problem with McDonalds serving coffee at temperatures known to cause severe burns in customers. This wasn’t their first rodeo. Other claims and lawsuits had been brought as a result of McDonald’s policy of serving coffee at unsafe temperatures. Normally, our fellow citizens sitting on juries reach verdicts fairly and for reasons demonstrated by evidence in the court room. Unfortunately, our sound bite era does not allow for the whole truth to be conveyed.

Another case that often results in cries of foul is the O.J. Simpson murder trial and its verdict of not guilty. Jurors are criticized for the outcome of the case. As a casual observer, I questioned how the jurors could have reached such a verdict. However, once again there was more to the story than we could appreciate from afar with a few minutes devoted to the news each evening. First of all, Mark Fuhrman, one of the lead detectives committed perjury by testifying that he had never ever used the n-word in the past ten years giving rise to questions of bias and a lack of credibility. F. Lee Bailey brilliantly anchored and locked in his testimony so that Fuhrman could not escape by claiming this was a mistake or innocent misstatement. Second, some of the blood evidence collected was called into question when discrepancies arose, such as chemical preservatives used by the police when collecting samples, were found to be present in some of the blood collected by the police at O.J. Simpson’s residence and elsewhere. The defense suggested in their opening statement that the police had planted this evidence, using known blood samples from Nicole Brown Simpson and O.J. Simpson. The police had collected these known blood samples in test tubes containing the preservative EDTA. The presence of EDTA in blood collected by police at O.J. Simpson’s residence and elsewhere lead to the inference that the blood was collected in tubes from the crime scene and then later deposited at the Simpson residence when it was searched by police. Finally, strategic errors were made by the prosecution as to the venue of the trial and the glove demonstration [Remember: “If it doesn’t fit, you must acquit.”]. Such evidence raised “reasons” to “doubt” the integrity of the whole police investigation. It was not necessary to show that O.J. was innocent to receive a not guilty verdict. The defense had to only raise “reasonable doubts” in the minds of the jurors to prevail. When looking at the whole picture presented by the case, it is easy to see how the jury could have doubted the integrity of the entire process and questioned whether they could trust the evidence enough to find O.J. guilty beyond a reasonable doubt.

When dealing with jury selection, it is important to get jurors talking about their thoughts and prejudices without fear that you will ridicule or judge them. There is a lot of misinformation and misunderstandings by the public that could hurt your client. This means that you need to get jurors talking openly and without hesitation. You have to fearlessly approach jurors with an open mind and heart. David Ball, a noted jury expert, has preached this approach in his book, David Ball on Damages III. He notes in his book that renowned trial attorney, Gerry Spence, will approach jurors with a question like this:

“Good morning folks, I’m here on behalf of my client. This is when I get to ask you some questions for jury selection, but before the usual questions, some things worry me that I need to ask you about. We’ve all been hearing a lot lately about legal reform, tort reform, verdicts being too high, lawyers taking advantage, frivolous lawsuits, verdicts hurting businesses, hurting medical care, and all those things. We need to know how people feel about these things. If you could please tell me what if anything bothers you about what’s going on?”

He then proceeds to get each juror to talk openly about their problems or baggage they bring to the case. My own approach to this problem goes something like this:

Is there anything I missed? [pause – looking at the panel]. That’s my greatest fear, you know. I have limited time to ask you questions. I learned long ago that I need your help to do the best job I can for my client. I may not have been smart enough to ask something which would have an impact, even a little on you coming into this case with an open mind. Is there anything I should know about your background that you are aware of, that if you were in my client’s shoes here, you would want me to know about you? Is there anything you would want me to know about your opinions, beliefs or philosophy that I have not asked about, that if you were my client, you would want me to know?

I have had many a juror reveal important information that lead to them being struck for cause or motivated the potential juror to concede that this was not the right case for them to serve on as a fair and impartial juror.

So get them talking next time you do jury selection. The bottom line is that you must let go of your fear of the unknown, because what you don’t know can hurt both you and your client.

Oscar Pistorius Trial: Lying, the Truth and Inaccuracy

The Oscar Pistorius Trial poses a basic question about human beings and credibility. The question being asked: Is he telling the “truth”, or is he a “murderer”? The death of his girlfriend, Reeva Steenkamp, happened in the dark of the evening after he was roused from his slumber. He claims to have awoken to sounds he believed to be an intruder. How does one decide such a question?

Just about everyone has seen the original Star Wars Trilogy which begins with episode four which starts “a long time ago, in a galaxy far, far away…”  In the first movie, Episode IV, Star Wars: A New Hope, Luke Skywalker is rescued by an old hermit known as old Ben Kenobi, After Luke is rescued by Ben from the sand people, he learns that Ben is really a Jedi Knight, Obi Wan Kenobi, who knew Luke’s father. Luke asks Obi Wan about what happen to his father:

Luke Skywalker: How did my father die?

Obi Wan Kenobi: A young Jedi named Darth Vader, who was a pupil of mine, was seduced by the Dark Side of the Force.  He betrayed and murdered your father.

This sounds like a straight-forward explanation… maybe?  But in the next movie, Episode V, The Empire Strikes Back, Luke confronts the ‘evil’ Darth Vader.  During their light saber battle, Luke and Vader have the following exchange:

Darth Vader: “Obi Wan never told you what happened to your father.”

Luke Skywalker: “He told me enough.  He told me you killed him.”

Darth Vader: “No — I am your father.”

The movie closes with Luke asking why Obi Wan Kenobi did not tell him Vader was his father.

So which is it?  Did Vader kill Luke’s father?  Or is he Luke’s father?  Of course, the story doesn’t end there, and in the third and final movie of the original trilogy, Episode VI, Return of the Jedi, Luke finally gets the answer he deserves to his question about what happened to his father.  Luke returns to finish his Jedi training and asks Yoda if Vader is in fact his father.  After Yoda confirms that Darth Vader is Luke’s father, Luke has this conversation with Obi Wan’s ghost:

Luke Skywalker: Why didn’t you tell me?  You told me Vader betrayed and murdered my father.

Obi Wan Kenobi: Your father was seduced by the Dark Side of the Force.  He ceased to be Anakin Skywalker, and became Darth Vader.  When that happened, the good man who was your father was destroyed.  So what I told you was true.  From a certain point of view.

Luke Skywalker: A certain point of view?

Obi Wan Kenobi: Luke, you’re going to find that many of the “truths” we cling to depend greatly on our own point of view.

And this statement illustrates the difference between truth and accuracy.  Just because someone testifies under oath to something that can be proven false, does not necessarily mean the witness is lying.  Likewise, just because a witness strongly believes what he has testified to, doesn’t mean that he is right. You have to be careful not confuse “sincerity” for “veracity” or “mistake” with “malevolence”. What Obi Wan Kenobi was really trying to tell Luke is that there is a difference between lying, the “truth” and inaccuracy. It all boils down to one’s point of view, their personal biases, opportunity to observe, mental acuity and their skills as an observer.

There is a difference between lying and being mistaken. Mistakes happen all the time. Sometimes people and even animals risk their lives on them. This is what happens when you fish with an artificial bait. You cast out your lure and a fish strikes your lure sincerely believing it is live food. The fish has just a split second to make its decision to strike the “food” before the opportunity is lost. The fish is literally “dead wrong” when it strikes. This is simply a case of “erroneous recognition” by the fish.

It is easy to second guess someone. The decision he made that night did not happen in the calm of the courtroom where the case will be argued.

Here, is he telling  the “truth” based on his own point of view or weaving a lie in the fabric of truth? Just because his point of view differs from what really happened does not mean he is necessarily lying. He could just be sincerely dead wrong.

How to Use Your iPad and OneNote as a Secret Weapon for Use in Trial

I was looking for a program that could emulate the structure of my paper file system that I use for jury trials. I looked at several programs that were touted as the answer for use on my iPad. 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 paper file. After giving up hope, I came across such app called simply “Outline” for the iPad. It will import “notebooks” from the Microsoft program One-Note for ready use on the iPad. Microsoft’s OneNote works well and is affordable. It costs about $15.00 and the OneNote is likewise affordable and is typically included as part of the Microsoft Suite of Windows Business Programs. The OneNote program was designed by Microsoft as a program that could be used by students to organize their class notes and research projects. It is similar to EverNote.

I usually set up and organize my case file in the OneNote program on my desktop at work and then transfer the file to my iPad using one of several applications or programs. The iPad app can be synced with your laptop or desktop computer by a number of means, including Drop Box and iTunes. The materials are all organized just like the hard copy of my files and you can paste either links to or an electronic copy of documents such as depositions, medical journals articles and pleadings for full review.

So such as, I have major categories of documents such as pleadings, correspondence, opening, closing, instructions, pretrial motions, jury selection, evidence research, law research, medical research, settlement demands, medical records, witnesses, defense expert, exhibits, investigation, etc. These categories are listed across the top and can be scrolled through side by side. Individual documents in each major group are shown as tabs on the side of the screen and can be scrolled through up and down with a touch of your finger. I organize the tabs on top and on the side alphabetically or numerically as the case may be for ready access. If you tap the page with your finger, the program will open that page.

On each page you can paste objects or links. These can consist of Word Documents, text files, PDF, audio recordings, photographs, and deposition transcripts. These can be tapped and viewed with other applications or through “quick view” which is compatible with most of your documents. Audio files can be played with other compatible applications you have installed on your iPad. You can also electronically “print” a copy of the file onto the page as well and scroll up and down the page and read it.

It not only gives you the capability of carrying your entire file up to the podium, it will allow you to take multiple files home with you in your brief case. I can take home what amounts to twenty or thirty banker boxes home with me on my iPad. The “Outline” program accommodates multiple “notebooks” which can be search for text individually or collectively. I even have a separate notebook set up with tabs for procedural and evidentiary research notes for ready reference at Court. Below is an example of how a notebook appears:

I hope you will try this system. It is quite amazing once you get the hang of it. It is a cost-effective solution that you can easily tailor to the way that you organize your trial and case files.

Inability to Pay for Medical Treatment: Is This Admissible?

I heard recently that a trial court granted a defense motion for a mistrial because a plaintiff inadvertently mentioned they had no health insurance.

How bad is this? Is a mistrial really mandated by the rules? Let’s take a look at some of the applicable provisions:

Rule 411. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Health insurance is not “liability insurance”. The judge would appear to be dead wrong if this was the reason for the mistrial. Even liability insurance may be admissible when offered for another purpose.

Likewise, this evidence would not violate the collateral source rule. The relevant statute codifying the collateral source rule provides:

IC 34-44-1-2
Personal injury or wrongful death actions; admissibility of evidence

Sec. 2. In a personal injury or wrongful death action, the court shall allow the admission into evidence of:
(1) proof of collateral source payments other than:
(A) payments of life insurance or other death benefits;
(B) insurance benefits that the plaintiff or members of the plaintiff’s family have paid for directly; or
(C) payments made by:
(i) the state or the United States; or
(ii) any agency, instrumentality, or subdivision of the state or the United States;
that have been made before trial to a plaintiff as compensation for the loss or injury for which the action is brought;
(2) proof of the amount of money that the plaintiff is required to repay, including worker’s compensation benefits, as a result of the collateral benefits received; and
(3) proof of the cost to the plaintiff or to members of the plaintiff’s family of collateral benefits received by the plaintiff or the plaintiff’s family.

Assume, your client said they have NO HEALTH INSURANCE. The statute does not prohibit this. The collateral source rule protects the Plaintiff anyway, not the Defendant. The only colorable argument that could be made by a defense attorney, is that this is an appeal to prejudice or sympathy in violation of I.R.E. 403. This rule of evidence provides:

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Undue Delay

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

The financial status of the parties is generally not admissible. Koger v. Reid, 417 N.E.2d 1142 (Ind. App. 1991). However, the lack of insurance should be admissible to explain why he was no longer obtaining medical treatment and would explain away that issue. Such evidence would prevent the jury from thinking that the gap in treatment or the reason she quit seeing a doctor was because she had fully recovered. In Bumble v. Wal-Mart Stores, Inc., 407 F.3d 823, 826 (7th Cir. 2005). The trial court granted a motion in limine by the defense preventing the Plaintiff from stating or implying he had not not sought treatment for a period of time or has not undergone recommended treatment due to a lack of health insurance and financial situation unless the defendant first opened the door making it admissible.
The Court of Appeals held this ruling was not an abuse of the trial court’s discretion.

In practice, an appropriate limiting instruction should have sufficed so the evidence is used only for an appropriate and limited purpose. A mistrial is a harsh remedy unless the Court had granted an order in limine specifically on this topic. Nonetheless, it would make sense to notify the Court of your position on this topic outside the presence of the jury in order to avoid a harsh ruling and a possible mistrial.>

What to Do When They Call Your Client a Liar, a Fraud and a Cheat.

20140401-000813.jpgThe defense has enlisted the aid of a hired gun “expert” who insinuates or is going to testify that your client is a malingerer or a fraud. What can you do to address such tactics? Can you exclude the testimony? Should you address it head on or skirt the issue? Hopefully, this blog will offer some strategies to address this sort of tactic.

Motion in Limine

This is one approach that you could take. File a motion in limine to exclude such testimony. Indiana Rule of Evidence 704(b) provides:

Witnesses may not testify to opinions about intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.

In contrast, Indiana Rule of Evidence 608(a) provides:

Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

So how do you reconcile these two conflicting provisions? Well, Rule 704(b) applies to expert opinions, while Rule 608(a) deals with opinions of lay witnesses. The Federal counterpart to Indiana Rule of Evidence 704 is limited to criminal cases in instances where the mental state or sanity of the Defendant is at issue. This rule provides:

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

The advisory committee notes indicates that this limitation prevents experts from invading the province of the jury in criminal cases where sanity or the mens rea is at issue. The rule prevents a confusing “battle of the experts” and preserves the decision on the ultimate issue of state of mind for the jury, rather than leaving it in the hands of retained experts. The rule promotes reliability by preventing testimony on the legal connotations of a medical diagnosis, a role the American Psychiatric Association admits that psychiatrists are not qualified to fill.See United States v. Austin, 981 F.2d 1163, 1166 (10th Cir.1992); see also United States v. Wood, 207 F.3d 1222, 1236 (10th Cir.2000) (Rule 704(b) is intended to prevent “intrusion[s] into the province of the jury”). Another court has similarly written:

The theoretical effect of Rule 704(b) is to make it possible for juries to find a defendant not guilty by reason of insanity even if no expert would draw that same conclusion. Conversely, the rule also permits juries to find a defendant sane and guilty even if every expert would opine that the defendant was insane. The purpose of Rule 704(b) is to have jurors decide whether the defendant was sane or not without being told what conclusion an expert might draw. United States v. West, 962 F.2d 1243, 1247 (7th Cir.1992).

While there is not much in the way of case law in Indiana interpreting this provision, at least one jurist. See Sears Roebuck v. Manuilov, 742 N.E.2d 453 (Ind. 2001)(upholding admission of medical testimony under I.R.E. 702 establishing post-concussive syndrome). In his dissenting opinion, Justice Boehm stated:

“Dr. Blinder testified, among other things, that in his opinion Manuilov was not a malingerer. This opinion was not based on observation of physical symptoms or scientifically valid tests, but on Blinder’s observation of Manuilov’s behavior and accounts of that behavior furnished by Manuilov or his counsel. Among the latter was the assurance that Manuilov had no criminal history or anti-social behavior.

Blinder told the jury that Manuilov had no criminal history and suggested he was not a “wife beater.” These assumptions were explicitly made a basis of his view that Manuilov was not a malingerer. This was not challenged under Indiana Evidence Rule 704(b), which provides that a witness may not testify as to whether another “witness has testified truthfully,” so, to the extent this is an issue, it is not presented here.”
. [Emphasis Added].

It seems likely that if a timely objection is made under Indiana Evidence Rule 704(b) to testimony regarding expert opinions on malingering that it, would be sustained, in an effort to preserve the jury’s autonomy in assessing the credibility of witnesses and avoiding problems associated with a battle of the experts. This dissenting opinion of Justice Boehm is the only discussion I have located on this specific topic in any judicial opinion in The State of Indiana. In Morse v. Davis, 965 N.E.2d 148 (Ind. Ct. App. 2012), trans. denied., the Indiana Court of Appeals held that no witness, lay or expert, is competent to testify that another witness is or is not telling the truth.

The Direct Approach – Polarizing The Jury

The is an important book which provides a comprehensive approach to this problem and in fact fully embraces the issue and in fact welcomes a clear claim of malinger. The book is called “Polarizing the Jury“. by Rick Friedman. This book provides an innovative approach to trying cases. Too often we allow the defense in personal-injury cases to hide behind ambiguities and insinuate that our client is not being truthful. This book provides you with concrete examples to force your opponent to either embrace fully embrace the position; that your client is “a liar, a cheat and a fraud” or completely abandon this position.

The book provides a comprehensive approach to simplify your case, focus the jury’s attention and deal with a single coherent theme… Is my client telling truth about his or her injuries? At each stage in the proceedings the defense is forced to either clearly adopt the position that your client is “a liar, a cheat and a fraud” or clearly reject the position. The defense and it’s experts are forced through questioning or discovery to either adopt or reject this position.

The defense is not allowed to hide behind ambiguous positions or attack your client through innuendo or vague and insidious suggestions of doubt. The primary weapon to combat such experts and a defense are lay witnesses who can provide a clear before and after picture of changes in your client’s life by the defendant’s tortious acts. The issue in opening is framed as follows:

This is the person that they want you to believe is a liar, a cheat and a fraud.

You will hear a lot of witnesses and see a lot of evidence in this case. But in the end, there is really on what only one major issue you need to decide is my client a liar, a cheat, and a fraud?

That is the defense in this case.

If he is a liar, a cheat and a fraud, you should send him out of this courtroom without a cent. But if you decide he’s telling the truth, that he is truly injured, and the defense is attacking him in order to avoid paying for the harm they have caused, then your verdict needs to ensure that they do not profit from this tactic and you should consider what would be fair compensation for the injuries and losses my client has suffered and for the impact this collision and its impact on their relationship as husband and wife.

I strongly recommend that you obtain the book as it effectively helps you frame the issue in a fashion that it is understandable to a jury and combats the false doubts raised through the use of veiled attacks and innuendos against your client’s integrity and honesty.

Closing the Deal – Addressing the Attacks in Closing Argument
Here are some arguments to present to the jury in your rebuttal:

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.

Another argument to present to a defense request for the jury to make his arguments for him when he sits down as suggested by the noted Attorney Moe Levine:

Countless attorneys, skilled and persuasive each with their own acquired tricks to influence a jury by sowing the subtle seeds of cynicism. One of these is that when he sits down, he appoints you as his assistants and gives you permission to share with him the responsibility to represent his client in the jury room by answering each of my arguments to you. However, if this were truly the case, what need would there be to sum up at all? We would simply send you to the jury room and ask you to deliberate. This type of argument is not new to me. It is insidious and subtle. It ask you to take on the role of an advocate instead of that of a fair and impartial judge of the facts. Such comments subtly shape your view of the evidence. it moves you from a role where you are impartial, unbiased and neutral, to a role of where you act as an advocate for one side over the other. These techniques are subtle but effective.

When the defense attacks through the use of innuendos:

He attacks by innuendo asking how can we know what the evidence shows when my client says he is in pain from this collision. He has had problems before. How can this be different. This to is subtle because what he is really saying is my client is a liar and a cheat and a fraud. He won’t come right out and say because he knows such a statement is outrageous and unworthy of consideration. In fact it is insulting. Instead you subtly insinuate that something is not right, plant the seeds of cynicism and hope that back in the jury room they will sprout.

This flies in the face of the evidence presented. To buy into this argument you would have to conclude that:

A. If Their Goal Was Money: My client and his spouse have come into this Court and both lied. If this were about fraud would not you make greater claims? Wouldn’t you have run up unnecessary treatment? Would you be constantly complaining about your condition and claiming that your pain did not improve with treatment. Wouldn’t you do everything in your power to make you case more valuable. This has not occurred. My client has worked to get better and in fact has had periods of remission where his pain has improved even though it has never completely gone away.

B. Speculative and Unsupported Causes: He also has insinuated that something else must has caused his symptoms. He does this with evidence of any sort and again subtle plants the seeds of cynicism by asking questions and suggesting facts that no one has testified exist. It is undisputed that my client complained of symptoms at the scene and told the investigating police officer of this. The defense has no Doctor who has said such things. If the medical evidence is there, he could have hired an expert to say this is so. Instead of evidence, he has asked that you guess and speculate. This is not allowed.


I hope these strategies assist you in dealing with unfair attacks on your clients integrity.;