Category Archives: closing arguments

Trials, Lies & Videotapes

20110903-044110.jpg“One Picture is Worth a Thousand Words” – 1918 Newspaper Advertisement for the San Antonio Light.

Often I look to my own law practice and find inspiration for a topic on trial advocacy. In preparation for an upcoming trial and mediation, I decided that a sprawling case involving boxes of documents, video interviews, audio recordings, printed newspaper articles, internet blogs, and TV news reports would benefit from the same approach that a movie director or a cutting room editor might apply to a documentary or a movie.

My family is pretty creative and even a little artsy at times. My younger brothers every Christmas have put together family theatrical productions/movies and pseudo-documentaries together with PowerPoint, iMovie and Windows Movie Maker. One of my younger brothers is studying sports broadcasting and is in fact quite talented at putting news reports together. So I hired him to put together my client’s story. We used my detailed demand as our working script and pieced together our case in a visual format. The collaborative result was an impressive and focused narrative that I provided which was interspersed with segments of evidence we had collected as part of the discovery process.

I have increasingly been taking video-taped depositions of the key players in cases. I then present video clips from the deposition as part of my presentation at mediations and in trials. In a video deposition, the witness cannot hide. He cannot say “that is not what I said” or “the court reporter must have misunderstood me.” He is much less likely to rewrite his deposition with his errata sheet, as well. If your opponent objections or tries to coach the witness, you can let the objections in to show what is really happening or edit them out for clarity and flow. Pregnant pauses can be eliminated to develop pace and increase interest.

In this day and age, people want information presented in an easily digestible format. In my most recent case, there were a number of media formats. These sources included TV news conferences, video depositions, video interviews, audio clips, surveillance videos, documentary evidence, as well as, informational clips summarizing the topics of liability, the law and damages. The whole presentation was cut down to about 15 minutes and I was able to stop the “movie” on separating slides, narrate and highlight the upcoming clip with my own headlines, outline or off-the-cuff observations.
I knew it was powerful and persuasive when my opponent remarked that “well it is not as clear and clean as you wanted to make it.” Nonetheless, all the information that was pieced together was objective and irrefutable. I did not make it up. The order in which it was presented made it easy to follow and see why it was damaging to my opponent’s position. The most damaging video clips came directly from my opponents discovery and depositions or from news interviews found on the Internet or YouTube.

In one instance the other side was testifying about a supposed “head-butt” committed by my client. I was able to play the few seconds of taped footage from a squad car showing the event, then immediately play the other party’s testimony describing the event he saw. While he described the event during his video deposition, I was able to superimposed in the lower corner of the screen, a video clip (no audio) which cycled through the supposed “head-butt” several times as he testified about it. The party’s description of the event could be immediately compared with his deposition testimony. The viewer could judge instantly whether a crime had been committed as suggested by the deponent or whether it was an overblown post hoc justification for an unlawful arrest.

60 Minutes is an excellent show that competently digests and puts together an array of interviews, media and information in a concise and persuasive fashion. Today these technique are now available to the average person at minimal cost. Keep this mind for your next case as you move forward.

Zen and the Art of Trial Advocacy

“The moon does not fight. It attacks no one. It does not worry. It does not try to crush others. It keeps to its course, but by its very nature, it gently influences. What other body could pull an entire ocean from shore to shore? The moon is faithful to its nature and its power is never diminished.”

~ Deng Ming-Dao

Staying focused and on course in a trial is important.  There are so many things to distract, delay and confuse the jury.  Objections, irrelevant evidence, innuendo directed towards your client or witnesses, judicial pontification and other assorted events distract and confuse jurors.  It is important that you are not one of them.  That is why having an even demeanor and a clear theme for your case is critical.

A case’s value or outcome often turns on the credibility and likeability of you and your client.  If you can remain calm through the ups and downs of a trial, it will not go unnoticed.   Jurors will look to you when a harmful piece of evidence is revealed to see how you react in order to gauge the event’s importance.  You need to impart a Zen like demeanor.  This calms your client and witnesses.  It also sends a subtle message to the jury that everything is going to be alright. 

Staying calm is an important strategy to share with your client and witnesses.  Jurors often gauge how important or critical an line of questioning is by how your client or witness reacts when confronted by your adversary on cross-examination.  The only thing one has absolute control over is their behavior and demeanor. By emphasizing this point with your client and witnesses, you can both empower and relax them.  No matter how rude or aggressive the other attorney is, it’s important for them to remain calm and composed.  By doing so, the examination will typically be shorter.  When an adverse attorney senses he has drawn blood, he will bore in with more of the same.  A client or witness can tactically overcome this by simply remaining calm.  Likewise, the client or witness must  avoid sarcastic, insincere or solicitous remarks.  This is their chance to make a good impression and answer what is asked.  It is not their job is to exchange verbal jabs with the other attorney or “win the case”.  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 by wrestling with the other attorney, because ultimately, they will lose.

 A theme is the glue that binds your case.  It draws the jury into your view of the evidence and keeps them there.  A theme is important because it gives you and the jury a clear course to follow and a lens to view the evidence through.  A theme can be as simple as a “man must be true to his word” or “sloppy police work leads to unreliable evidence and  reason to doubt the state’s case.” Have you ever seen a movie that consisted of a lot of “good scenes” but was overall unwatchable?  Why does this happen?  Usually the movie has no clear unifying “plot” to hold all of the “good scenes” together in a coherent fashion.  You as the “director” of your case need to have a clear “plot” or “theme”.  Without a theme the jury gets lost and forgets or misinterprets the evidence.  You want the jury to be looking for ways to fit the evidence into your view of the case, not your opponent’s.  The theme should be presented during juror voir dire, opening statement, direct examination, cross-examination and closing argument.  One of the best ways to do this is to prepare your opening statement well in advance of trial while discovery is still underway.  This will help inform every aspect of your case and preparation.   It will help you evaluate what is needed and what should be left on the cutting room floor. 

Remember Young Weed-Hopper, “If you stay faithful to your case’s true nature, its power will never be diminished”.       

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.

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.;

When Compromise Must Be Avoided

Justice oftentimes is victimized in the name of “compromise” and “fairness”. Have you ever been in a negotiation in a case with a mediator and asked for a range for settlement purposes. The natural inclination is to equally split the difference and assume that you are willing to do so. However, a range is just that, a range. A continuum where a compromise could be reached. That point is not necessarily in the middle nor would this be fair. Without guidance a jury has a tendency to do just that, compromise and split the difference between your client’s number and that suggested by the other side.

What about trading in an old car. Everyone has faced this same dilemma. Should you have to accept less than what your car is worth by splitting the difference between its real value and the sum offered by the used car dealer? Isn’t it worth, what its worth? Should someone be able short change you through such a tactic? Of course not.

If two teams were playing each other in basketball and one team is violating the rules through excessive contact and fouling, would it be unfair for that team to have substantially more fouls called on it, than the other team which was playing by the rules? Should the foul count really be even under such circumstances? Would it be fair for the referee to give in to the coach of the team that was excessively fouling and breaking the rules just because they whined and complained loudly? Of course it would not be fair… in fact it would be wrong. Why should it be any different in a jury trial where a client’s future well-being is at stake?

Splitting things down the middle just is not always fair. In the Old Testament, 1 Kings 3:16-28, King Solomon had to decide between two woman who both claimed to be the mother an infant son. The two women appeared before King Solomon for purposes of settling the dispute. After deliberating, King Solomon demanded his sword be brought forward and announced his decision to the split the baby in half if the two women could not agree upon whose child the infant was. Each woman would receive one bloody lifeless half of the infant’s body. Upon hearing this terrible verdict announced, the boy’s true mother cried out, “Oh Lord, give the baby to her, just don’t kill him!” The spiteful and deceitful woman who wrongfully made claim to the infant, responded, “divide it!” King Solomon upon hearing this, declared the first lady as the infant boy’s true mother, for spitting the baby down the middle would have been a terrible injustice.

Moe Levine, a prominent New York trial attorney guided jurors around this tactic of “compromise” and “fairness by division” arguing:

If my client’s case is worth, $100,000 and you compromise and give him $50,000 instead, then this leads to one half justice and one half injustice. If you have given 90% justice, you have at the same time given 10% of injustice. My client is entitle to full justice in this case. Nothing more and nothing less.

Compromising and splitting things down the middle here would be justice denied for my client.

Why a Picture is Worth a Thousand Words


A picture is worth a thousand words.
Napoleon Bonaparte

One picture is worth 1,000 denials.
Ronald Reagan

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.

Jurors: Helping Them, Help You.


“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.”

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.

When Things Just Don’t Figure…


We are often confronted with confusing and conflicting technical data and statistics in confronting experts of all sorts. A few well chosen quotes or analogies can often be used with juries to debunk or blunt the impact of such testimony. Here are a few suggestions to add to your trial tactics bag of tricks:

1. Bomb Threat: (Use this story to illustrate the care that needs to be taken with statistics.) With the increase in terrorism at home and abroad, Mike worried about the risk of there being a bomb being planted on one of the many flights that he takes. His concern became so great that he begged a statistician to work out the probability of there being a bomb on any one plane. After some research his statistician came up with a result which, although very small, still gave Mike some concern. After a moment of thought, Mike requested the statistician to work out the probability of there being two bombs aboard a flight. It turned out that the risk of this happening was miniscul — so Mike decided to always take a bomb on board with him. Mike was arrested at last week at JFK Airport.

2. There three kinds of lies: lies, damn lies and statistics. Mark Twain.

3. Figures don’t lie, but liars figure. Mark Twain.

4. “Statistics show that very few of those who contract the habit of eating, survive.” Wallace Irwin.

5. President Dwight Eisenhower expressed astonishment and alarm on discovering that fully half of all Americans had below average intelligence. Similarly, some people get fearful when they learn that their doctor wasn’t in the top half of his class. (But that’s half of them.)

6. A defense attorney using statistics to explain away a plaintiff’s untimely and unexpected demise argued:

“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.”


“A Tail Isn’t a Leg” Analogy – Saying its So, Doesn’t Make It So

Ever have an attorney argue a question of law or fact which just was not so. Some people believe if they say something loud and frequently enough, it makes it so. Abraham Lincoln had a pretty clever way of dealing with such tactics.

On one occasion, Abraham Lincoln, as a young trial lawyer in Illinois, was arguing a case with a lawyer whose version of the facts came more from the attorney’s fervent imagination than the testimony and evidence before the Court. Lincoln in his argument turned to the other lawyer and eviscerated him through a series of questions and answers:

“Tell me, sir, how many legs does a calf have?”

“Well, four, of course,” he answered. ”

And if I call a tail a leg, how many legs would that calf have?”

And the answer came back: “He’d have five.”

Abraham Lincoln slammed down his hand on the jury box and roared “No! He’d still have four.

Just because you call a tail a leg doesn’t make it a leg.”

So now let’s see how many tails, you have been calling legs in this case.


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