The Problem with Problems.
Posted by Richard A. Cook
So do you want to know what the problem is with problems? Most people are like an ostrich with its head buried in the sand in fear of what they might see. We all have a tendency to ignore our problems and procrastinate. This is fatal thinking or à total lack of thinking.
Instead of waiting until the last second before the trial starts or the evening before your closing argument, look for problems as well as inspiration the first day the case comes into your office. Continue to hunt for inspiration and problems as the case progresses. Attorneys should not wait until the last moment to prepare their opening statement or closing argument. This is often too late and provides little time to use your creativity as an attorney and advocate for the client.
I always keep an electronic document with a list of inspirational quotes, analogies and arguments. I also have a list of potential problems and issues that I need to address as the case progresses through litigation towards trial. For example, if during the course of my client’s deposition unfavorable evidence arises about my client’s background or character, I make careful note of the same on my list of problems and issues so that I can deal with it at the time of trial.
So how do you deal with such problems? You may be able to exclude the evidence with a motion limine under Rules of Evidence 403, 404, 405, 608, 609 or 610, 702 or 802. If the problem can be addressed in jury instructions, research the law and carefully draft a proper instruction to submit to the court address the issue (such as pre-existing conditions).
If neither of these strategies has a chance of success, then I have to figure out a way to discuss the problem upfront and lessen the evidence’s impact with the jury. See my article: Direct Examination and Airing Your Dirty Laundry. Most evidence has a double edge to it. If the other side is engaging in character assignation point out the tactic and explain why the jury is being misdirected from the real issues in your case. See my article on Distraction, Misdirection and the Art of Verbal Jujitsu.
I will raise such problems during jury selection and find out which of the jurors cannot put the problem aside or deal with it fairly. If possible, I will get juror to admit that they cannot be a fair and impartial juror and then try to have them removed for cause or use a peremptory challenge to strike the juror from the venire.
I will raise the problem on direct examination and outline any mitigating circumstances favorable to my client and explain how the transgression occurred. I don’t wait for redirect and give my opponent the first shot at framing the issue.
Honesty, is the best policy in dealing with such problems. Remember, everyone is human and no one is perfect. The jury will understand if you admit your problems and you don’t run away from them. Just deal with it. Likewise, if I receive inspiration for a good argument, analogy or quote, I will send myself an e-mail or text message so that I don’t forget it.
So don’t let your problems, be the problem. Be proactive and creative. Do not procrastinate and brood.
About Richard A. CookRichard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.
Posted on September 30, 2015, in closing arguments, Direct examination, dos and don'ts, Evidence, Jury Selection, mock trial, Trial Advocacy and tagged ad hominem, Adversarial system, advocacy, analogies, Analogies anecdotes, apologies, challenges for cause, character, Closing argument, Evidence (law). Bookmark the permalink. 1 Comment.