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Medical Malpractice: When Common Sense Trumps Expert Knowledge
Medical malpractice cases are difficult and expensive to litigate. However, sometimes experts are not required… Just common sense. Indiana has long embraced the “common knowledge exception” to requirements of expert testimony in certain matters. A physician’s allegedly negligent act or omission can be so obvious that expert testimony is unnecessary. Wright v. Carter, 622 N.E.2d… →
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The Case Against Experts in the Courtroom
“If you can’t explain it to a six year old, you don’t understand it yourself.” Albert Einstein I have always thought it is unclear whether Indiana Rule of Evidence (IRE) 615 applies to depositions. IRE 101(C) states: Rules Inapplicable. The rules, other than those with respect to privileges, do not apply in the following situations:… →
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When a Negative Becomes a Positive
Absence makes the.heart grow fonder and can also act as proof positive in a case of “missing” evidence or documents. First, there are two noted exceptions to the hearsay rule for the absence of a record. Indiana Rule of Evidence 803 has two subdivisions that deal with the admissibility: 803. Hearsay Exceptions: Availability of Declarant… →
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Closing Argument – Save Your Zingers for Rebuttal!
If you are the plaintiff or the state prosecutor in a criminal case, you have the advantage of going last. However, remember that the scope of rebuttal is determined by the issues addressed in the closing argument of opposing counsel. When I was a law clerk right out of school, I saw team of attorneys… →
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Closing Argument – Taking the Wind Out of the Other Side’s Sails before They Leave the Dock
It is important to stick with the argument that you’ve planned out and then aggressively and positively put forward your case. You don’t want to waste too much time responding to the other side’s argument to the detriment of their own. You want to help the jurors reach their own conclusions about the case through… →
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The Barrister’s Toolbox will hit 50,000 Views today… Now What?
Today my blog will have 50,000 views for the over 107 posts I have authored on a number of topics that confronts today’s trial advocate. My most read topic is about how to handle a deposition errata sheet. I find that quite surprising. A young attorney from New York called to thank me for the post and… →
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Closing Argument: Begin Strong, End Stronger and Sock It to Them!
As far as I am concerned, when it comes to your closing argument, you want to begin strong and end strong. You are the director, producer and central author of the closing argument. Syd Field is the author of a number of books on screenwriting. His principles have equal application to the formulation of a closing… →
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Credibility, Credibility, Credibiiliy
There are three things to keep in mind when preparing a witness… Credibiliy, credibility, credibility. Let’s face it; the most persuasive witness is the witness who is most credible. Such a witness speaks clearly, calmly and plainly, does not exaggerate, does not dodge the question, and is able to look the jury right in the… →
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Outlining Your Questions… Is There a Better Way?
Exactly how do you want to format your questions? There are several schools of thought on this matter. I know successful attorneys that literally script out every question and every answer to the question. In this way, the attorney can visualize exactly what will take place in the courtroom. Such a format also allows someone… →
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Direct Examination and Keeping Company with Honest Serving Men
On direct examination Indiana Rule of Evidence 611 requires you to use non-leading questions to elicit information from a witness. Like a good journalist you must uncover the Who, What, Where, When, Why and How. Incorporating these words into your questions will avoid leading the witness and prevent objections concerning the form of your question.… →
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Plotting Your Strategy: Does Your Trial Have a Theme?
A theme acts as the unifying thread of your case. It is a thing that motivates the jurors to take action. Your theme needs to be integrated into your jury void dire, opening statement, direct and cross-examination, closing argument and jury instructions. There are number of potential themes. Watch movies and see how things are… →
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Use Excel to Count the Number of Emails in Each Email Chain
Originally posted on Excel Esquire: Courts and litigants have long struggled with the question of how to describe email chains on a privilege log. Should you log only the most recent email, or log every email in the chain–or something in between? New York has recently adopted a potentially burdensome rule on this topic–one that… →
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Lights, Camera, Action: Directing and Producing Your Trial
You are the “director” and “producer” of your trial and the witness’s testimony. We can’t change the facts, but you do have the power of when and how to present them subject to the limits of the Rules of Evidence. Indiana Rule of Evidence 611 controls the manner and mode of interrogation of witnesses. This… →
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There is a Difference Between “I Don’t Know” and “I Don’t Remember”
A 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… →
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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… →
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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… →
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Direct Examination and Airing Your Dirty Laundry
There 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… →
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Helping Your Client Connect with the Jury
The 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… →
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