Monthly Archives: July 2015

There is a Difference Between “I Don’t Know” and “I Don’t Remember”

QuestionA client or witness needs to be thoroughly familiarized with what it means to forget as opposed to not knowing something.  If one says, “I don’t know,” something, it means it was never in their brain. “I don’t remember,” on the other hand, means that the information was once in their brain, but cannot be retrieved.  At the time of trial, an, “I don’t know,” will be utilized to show that your client is lying. When in doubt, a client should answer, “I don’t recall,” or “I don’t remember,” as opposed to, “I don’t know.”  If a client does not remember, you can salvage their testimony by either refreshing recollection under Indiana Rule of Evidence 612, or the information can be established as past recollection recorded under Indiana Rule of Evidence 803(5). These provisions are discussed below in greater detail.

Indiana Evidence Rule 612(a) provides: “If, while testifying, a witness uses a writing or object to refresh the witness’s memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.”  Although this evidence rule contemplates the use of writings to refresh a witness’s memory, it “does not address the method by which the witness’s memory may be refreshed.” Thompson v. State, 728 N.E.2d 155, 160 (Ind.2000) (quoting 13 Robert Lowell Miller, Jr., Indiana Practice § 612.101, at 225 (2d ed.1995)), reh’g denied. In Thompson, the Indiana Supreme Court outlined the proper procedure for refreshing a witness’s recollection as follows:

The witness must first state that he does not recall the information sought by the questioner. The witness should be directed to look at the writing, and be asked whether that examination has refreshed his memory. If the witness answers negatively, the examiner must find another route to extracting the testimony or stop the line of questioning.

Thompson, 728 N.E.2d at 160 (quoting Miller § 612.101 at 226). In Thompson, the Court recognized that Indiana Evidence Rule 612 does not suggest, much less require, that a writing used to refresh a witness’s memory have been prepared by the witness. Id. at 160-61.

Indiana Evidence Rule 803(5) provides that the following is not excluded by the hearsay rule:

Recorded Recollection.  A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence, but may not itself be received as an exhibit unless offered by an adverse party.

Federal Rule of Evidence 612 provides that: if a witness uses a writing to refresh memory for the purpose of testifying, either-(1) while testifying, or (2) before testifying … an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing has matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto.

Rule 612 is applicable to depositions and deposition testimony by operation of Federal Rule of Civil Procedure 30(c), which governs depositions upon oral examination. See Federal Rule Civil Procedure 30(c) which provides that “[e]xamination and cross-examination of witnesses [during depositions] may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615”.

If used the document to refresh his recollection, the Court must still decide whether the “writing contains matters not related to the subject matter of the testimony.” Id.

I’ve Been Called for Jury Service… What Do I Do Now?

 THOMAS JEFFERSON (1789):  “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.”

My last blog post made me realize that potential jurors need guidance.  What is their role? What should they do if called to serve?  Jury service is the greatest civic responsibility we have.  Our service is necessary, if we want to live in a free democratic society.  Citizens have braved criticism, threat of punishment and public ridicule to give their verdict to insure liberty and justice for all.

The right to trial by jury is so important that it is guaranteed twice in the U.S. Constitution under the 6th and 7th Amendments for criminal and civil trials, respectively. Grand jury protection is required for the issuance of criminal charges in federal court under the 5th Amendment to the U.S. Constitution.

Here are some do’s and don’t to keep in mind:

1.    In the days leading up to your jury service, don’t read the newspaper or watch television or read the news.

2.    Dress like you respect the proceeding and be on time.

3.     Accurately and completely answer your jury questionnaire.  This is the primary source of information the attorneys will use in deciding if you should serve.

4.     Pay close attention to the questions asked by the attorneys during jury selection.  Fully and accurately answer the questions asked as someone’s well-being or liberty hangs in the balance.

5.    If you have a physical handicap such as language difficulty, eyesight or hearing problems, then let the bailiff and parties know of your limitations, even if not asked.

6.    Do not discuss the case with your fellow jurors until the Court says that you may.

7.    Tell the Court or parties if you have been subpoenaed as a witness in the case, are interested In a similar suit begun or planned, have an opinion as to the outcome of the case due to information received from a witness or news report, if you are a defendant in a criminal case, biased for or against a party, related to a party, are a felon or in law enforcement or otherwise cannot be fair.

8.     Jurors must be fluent in English and able to read and hear.

9.     Do not conduct research on your own or as a group,

10.    Do get rest.

11.    Do not use dictionaries, the Internet, or any other resource to gather any information about the issues in this case.

12.    Do not investigate the case, conduct any experiments, or attempt to gain any specialized knowledge about the case.

13.     Do not receive help in deciding the case from any outside source.

14.     Do not use laptops or cell phones in the courtroom or in the jury room while discussing the case,

15.     Do not consume any alcohol or drugs that could affect your ability to hear and understand the evidence,

16.     Do not read, watch, or listen to anything about the trial from any source whatsoever, including newspapers, radio, television, or the Internet,

17.     Do not listen to discussions among, or receive information from, other people about this trial, or

18.     Do not visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.

19.     Do not talk to any of the parties, their lawyers, any of the witnesses, or members of the media. If anyone tries to talk to you about this case, you must tell the bailiff or judge immediately.

20.     Do not discuss the case with anyone other than your fellow jurors.

21.     Do not abandon your opinions on what you believe is a just verdict just to get out of there.

22.     Be courageous. You are the embodiment of justice.

24.     Be respectful of your fellow jurors opinions, listen carefully and keep an open mind.

25.     Follow the judge’s instructions.

26,    Report anyone to the bailiff who fails to obey the court’s rules.

27.    Remember you cannot be punished for hanging a jury’s verdict.  Follow your conscience.

Good luck!

Empowering Jurors… Justice or Injustice: A Book Every Attorney Should Read!

I just finished reading Justice or Injustice: What Really Happens in a Jury Room and it has some profound lessons for every trial attorney… Especially those in the criminal arena.

It is a short piece of non-fiction about a juror’s participation in a capital murder case and outlines the dangers that can occur when jurors do not know their right to hang a jury and hold onto their heartfelt and honest  opinion on a just verdict.  Compromise while expedient is not necessarily fair and just. Jurors are under tremendous pressure and really need our help and guidance in understanding the process and their rights.  David Ball, a jury consultant, refers to this as arming jurors by referring to evidence and testimony they will use in their deliberations. See Theater Tips and Strategies for Jury Trials by David Ball (Author)

As trial attorneys, we need to empower jurors by letting them know that they have an absolute right to disagree, hold-out and hang a jury if necessary to serve the ends of justice. If we do not explain this, then our clients could end up on the wrong end of a coercive verdict. A group of jurors uncertain about their right to disagree eventually capitulate to the majority out of doubt and fear over disagreeing with the majority in the case of Kimberly Renee Poole.  According to the author, the jury foreperson pushed the minority to change their verdict of “not guilty” primarily focusing on character evidence of the defendant’s background as a stripper and swinger claiming she deserved jail.  Alone afraid, uncertain, tired, and nicotine deprived the last hold-out (the author J.L. Hardee’s) surrenders to a guilty verdict. After the trial, it was learned that the foreperson had a close ties to the prosecution which were not disclosed in voir dire. His post verdict efforts to reverse what happened are discussed but ultimately unsuccessful.

Although one was not given in the case, the story also demonstrates the danger of an Allen Charge or dynamite charge as it is sometimes referred to by the courts.  See Allen v. United States, 164 U.S. 492 (1896). Such a charge is used to encourage jurors in the minority to reconsider their position.  About half of the states in the United States prohibit such a charge because of its potential to unjustly influence and interfere with the jury decision process.

So arm your jurors with knowledge of their important obligation and responsibility as a juror including the following:

1.    Their factual decisions are forever.  This is your client only chance to get this right.  Except in rare instances, appellate courts review legal rulings not factual findings.

2.     Lady Justice is blindfolded for a reason.  She is not influenced by station of life, background, color race, appearance, wealth, sex, religion or creed.  Her protections are bestowed on every single citizen. Jurors are sworn to decide a case fairly and impartially without bias prejudice. If someone tries to decide the case based upon something other than the judge’s instructions and the evidence relevant to those legal issues, then they should be reported to the court immediately.

3.     While jurors should not be afraid to honestly reconsider their position during deliberations, they are fully within their right to disagree with their fellow jurors.  No one will punish them for doing so.

4.      While this may be the most difficult thing they have ever been asked to do, they must be strong and courageous if justice is to prevail as your client’s fate is in their hands.

Practice… We Talking ’bout Practice…

“Practice… We talkin ’bout practice.”  – Allen Iverson 2002

Just like Allen Iverson of the Philadelphia Sixers, no one likes to practice, but it is necessary if your witness and you are going to stay in sync.  In order for your witness examination to be credible and persuasive, both the questioner and the witness must be on the same page. Otherwise, the testimony will come across like two ships passing in the night. The only way to get a smooth and flawless examination is for the questioner and witness to know exactly what is expected by the other. Obviously, the most important witness is usually your own client. Any run-through with your client is privileged as attorney-client communications because you are providing legal advice about how to handle their direct examination.  (IRE 501 and I.C.34-1-14-5 and I.C. 34-1-60-4.)  I would videotape the client’s testimony and allow them to see it so they can critique their own the delivery of their testimony.

Make sure you give the witness or your client copies of any earlier statements/depositions and, if possible, have them return to the scene of the incident to check it, note landmarks and refresh their recollection. If at all possible, you should try to meet with the witness or client at the scene of the incident so that you can discuss the scene and make sure you’re both talking about the same thing. If this is not possible, an acceptable substitute is to conduct a virtual tour of the scene utilizing Google maps or Google Earth.

Emphasize to the client or witness that accuracy is the most important thing. This requires that they clearly understand the question and avoid any exaggerations or opinions. They should stay factual in their descriptions. When a witness or client slides into opinions, they enter dangerous territory.  They are prone to guess, speculate, exaggerate or just plain get it wrong.

My own favorite saying is: “Don’t take a good case, try to make it a great case, and turn it into a bad case.” The first rule I learned when  as an insurance defense attorney was to let a plaintiff exaggerate all they want. There is nothing that undermines a claim or gives rise to the all-popular defense mantra of “secondary gain” than needless exaggeration.

The flip side of this is to water down answers with qualifiers such as, “I think,” “I believe,” or, “In my opinion,” when they actually know the facts. Make sure your client or witness avoids using such terminology. It is better to show that you don’t know or recall than to guess or speculate. Also, pay attention to clients who raise the pitch of their voice at the end of sentences.  It makes them sound tentative or like they are checking with you on whether their answer is correct.  You should only raise the pitch of your voice at the end of a sentence when you are asking a question.

Once again, the primary rule is to answer truthfully and accurately.

Direct Examination and Airing Your Dirty Laundry

LaundryThere is no tactic which will better serve you and your client in establishing credibility with the jury then to bring out negative points during direct examination and confronting them head on with believable explanations. If you wait until redirect, then it may be too late to salvage your witness. I always make a list of problems as the case progresses from investigation through discovery and on the trial. Come up with a strategy of either excluding the evidence or find a way to deal with it honestly and persuasively before the jury.

During direct examination, you can ask questions of your client or witness the jury is likely thinking. The witness is then provided an opportunity to take some of the sting out of the evidence by having a friendly questioner take them through the problem. The opposing attorney on cross-examination will be much more reluctant to extensively cover that area and come across as overbearing, looking as if he is desperate as he has nothing else to ask or add to outside of your examination.

The client or witness should be cautioned to stay calm throughout their cross-examination on any such topics. Once the matter has already been brought out to in direct examination, the jury will be looking much more at the witness’s reaction on cross.  If they do not react and you do not react, the jury will likely conclude that the matter is not critical to their decision. Most jurors have never been in a courtroom before and will not consider the points important unless you act like they are.

Helping Your Client Connect with the Jury

20130507-003004.jpgThe more significant a witness is to your case, the more important it often is to let the jury know exactly who they are. Usually, your client is one of the most important witnesses the jury will hear from during the course of trial. When dealing with such witnesses, I will generally cover age, where they live, personal background such as where they grew up, their family, their education and work experience, and any special qualifications which might bear on their credibility or believability as a witness. Such matters are typical covered at the beginning of the witness’s testimony. It’s difficult for someone on the jury to trust the person’s testimony; they may feel like they don’t really know them.

Keep in mind how you relate to people you meet. You typically look for connections and things you have in common. Don’t forget who your audience is. Is there information in your witness’s background that might establish such a connection with one or all the jurors?  What in your witness’s background enhances their credibility? What would you want to know about your witness if you were a juror? Is there something in your witness’s background that might create empathy or understanding for any weakness they may have in communicating? Try to approach each witness with a fresh set of eyes.

Everyone admires someone who overcomes adversity or is hard-working. If there are things in your witness’s background which you can weave into your examination, make the jury went to cheer or root for them, then find a way to present such testimony subtly. A bit goes a long way so don’t beat the jury over the head with it.

When it comes to persons being called for minor matters such as establishing the foundational prerequisites for the admission of documents or other tangible evidence, it may not be as important or necessary to cover matters outside of the witness’s education, training, experience and job duties relevant to their position as a custodian of the document or item of evidence.

Has your client or witness, assuming it is a more significant witness, had involvement in civic or charitable matters? Have they held public office or been an officer in an organization which is positively viewed by the public at large?  These sorts of connections help a juror bond with a witness or client. They are part of who the witness is. Everyone admires those who give back. It helps to show that the witness or client is part of the solution, not the problem. As noted earlier a bit of such testimony goes a long way so don’t overdo it.

Teaching Your Client How to Mind Their Manners While on the Stand


It costs you nothing to be a gentleman or lady.  However, a lack of civility can be very costly.  The manner in which a witness or party testifies is critical to their credibility and understandability to the jury. You want witnesses to testify in a natural manner, but they need to be understood and well received. If you have a witness who talks a mile a minute, then the best way to persuade them that they need to speak in a slower and more measured tone is to allow them to see exactly how they testify.  

I will typically meet with a witness or a client and, through the magic of a cell phone or iPad, record the testimony and then allow them to view it. I then asked the witness or client to tell me what they see and how they would improve such a witness’s testimony if they were in my position. Most people will be a harder critic of themselves than you could ever be.  After we discuss problems with their testimony and their manner of delivery, I covered the same line of questioning again and let them watch the new video.

The only thing a client or witness has absolute control over is their behavior and demeanor.  By emphasizing this point, you can both empower them and relax them.  No matter how rude or aggressive the other attorney is, it’s important for them to remain calm and composed.  When an opposing attorney senses he has drawn blood, he will simply bore in with more of the same.  A client or witness can tactically overcome this by simply remaining calm and truthful no matter how bad the answer seems to hurt.  

Likewise, the client or witness needs to be cautioned to avoid any sarcasm, insincere or solicitous comments. Remember, this is their chance to make a good impression and show they will be a likeable and empathetic witness to the jury. ​ It’s not their job is not to exchange verbal jabs with the other attorney.  There is an old saying, “If you wrestle with a pig, you’re bound to get dirty.”  Don’t let your client or witness get dirty with the other attorney. Ultimately, they will lose

Witness Preparation… You only get one chance to make a good first impression.

 Yes, appearance does count!  I’m always amazed when witnesses or parties appear in court and are dressed like they’re going to be working in their yard or are going to a dive bar. First impressions are lasting impressions. Before your client or witness says a word the jury or judge will be sizing them up as they approach the stand. The case could be lost before the witness has ever uttered a single answer.
 ​Always have your client or witnesses (when possible) meet you for preparation as to how they plan to dress in court. Do they have a crazy hairstyle? Are they covered with tattoos? Are they unshaven or unkempt? You need to know this before they make it into the court room whenever possible. Sometimes this is either impossible or somehow unavoidable. If such a situation arises, you need to be able to explain it to the jury. If their claim is they are poor and cannot afford to buy new clothing, there’s nothing to prevent your client from going to a local Goodwill or Salvation Army center and obtaining suitable attire. I remember when I was a prosecutor and first met with an inmate who was supposed to testify for me in a major trial. Almost every inch of his body was covered with tattoos. We obtained a collared shirt, sweater, nice slacks and dress shoes for him to appear in court. We also asked him to get a haircut at the penal facility where he was incarcerated. After he put on his clothing and with his new haircut, not only did he look one hundred percent better, he also felt much more relaxed and confident in his own ability to testify.  In fact, he was proud of how he looked. He remarked, “I look like I should be in college.” It also helped him to testify in a more dignified and calm manner. Truly, clothes make the man or woman.

 ​All that being said, I try to make sure that if a client or witness will not be dressed in a suit or an equivalent, then I try to have them choose clothing that respects the proceeding, the court and the jury, while still allowing the witness or client to feel comfortable in their own skin.

 ​Overly flashy or expensive outfits should be avoided. You want to choose apparel that will be found acceptable by a broad range of individuals, because that is who the jury is going to be made up of… a cross-section of the community.  

 I once had a client who had an elaborate braided hair style which undoubtedly cost hundreds of dollars, yet we were claiming that as a result of her injury she was placed in difficult financial straits. Obviously, there would be those on the jury who would view such an expensive hair style as contradictory. As a result, we had her obtain an appropriate wig to avoid any misimpressions. On another occasion, I had a client who always wore tinted glasses. As the saying goes, eyes are the windows to the soul. I knew that no jury was going to trust someone whose eyes they could not see. Obviously, if my client had been blind, there would have been no problem. However, absent such an extraordinary circumstance I would never allow a client to appear before a jury in sunglasses. When the client initially fought me on this, I asked her what was more important to her: Obtaining a fair and full verdict to compensate her for her injuries or looking dishonest? She made the right choice and ultimately obtained a sizable verdict.

 ​Remember, first impressions are lasting impressions and people (including juries) do judge a book by its cover.

Closing Argument – Shelving Some Good Ideas

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What are some other resources I should consult?  Here is a list of books dealing directly with closing arguments that should offer both guidance and inspiration:

  1. Polarizing the Case: Exposing and Defeating the Malingering Myth 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 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 and deal with a single coherent theme… Is my client telling truth about her injuries?
  2. David Ball on Damages by David Ball: An excellent book on strategies and methods to help jurors better appreciate the scope of damages and why it is necessary to compensate those who have been damage or injured.
  3. Closing Argument: The Last Battle by Mike Papantonio: This book is a well-organized collection of miscellaneous arguments and analogies which can be used to explain and illustrate various legal issues and address common defense attorney arguments and tactics which are used to undercut, confuse, distract or sidetrack juries from the central issues in a personal injury case. The book has a number of very effective arguments which address topics such as calculating money damages for pain and suffering, adverse witnesses, the burden of proof/ reasonable man standard, subtle appeals to prejudice, and other often encountered issues in civil cases. A review of the table of contents will give you a good idea of this book’s value.
  4. Win Your Case: How to Present, Persuade, and Prevail by Gerry Spence: This book will help you find your own voice and become a more effective advocate for you clients.
  5. Theater Tips and Strategies for Jury Trials by David Ball: This book analyzes all aspects of your presentation to juries to become a more effective communicator in the courtroom.
  6. I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know by Jim M. Perdue: A wonderful compendium of stories that bring to life how legal protections arose such as trial by citizen jurors and the separation and exclusion of witnesses from the courtroom.
  7. In the Interest of Justice: Great Opening & Closing Statements by Joel Seidemann: This is a collection of notable of opening and closing statements in famous cases.
  8. The Devil’s Advocates by Michael S. Lief: This is a collection of notable of opening and closing statements in famous criminal cases.
  9. A Rulebook for Arguments (Fourth Edition) by Anthony Weston: A concise guide on argument structure and use.
  10. Ladies and Gentlemen Of The Jury by Michael S. Lief: This book contains transcripts of notable opening and closing statements in famous cases.
  11. And the Walls Came Tumbling Down by Michael S Lief: This book contains transcripts notable closing statements made in famous civil rights cases.
  12. The Trial Lawyer: What It Takes to Win by David Berg: This book provides a comprehensive overview of what it takes to win at trial.
  13. McElhaney’s Trial Notebook by James W. McElhaney: A collection of essays on trial advocacy by Professor McElhaney which covers a number of areas involved in modern-day litigation.
  14. Moe Levine on Advocacy by Moe Levine: A treasure trove of effective arguments for the plaintiff’s attorney.
  15. The Art of Summation edited by Melvin Block: A collection of fine arguments from the New York Bar published during the 1960s. This book stands the test of time.
  16. The Lost Art: An Advocate’s Guide to Effective Closing Argumen by Judge Joseph F. Anderson, Jr.: This book is a treasure trove of great ideas, quotations, analogies and the law governing closing argument.  It is probably my favorite of those listed above.

There are many more books out there worthy of consideration. This is simply a short list of books I would recommend you read.

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