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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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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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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 →
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Closing Argument – Shelving Some Good Ideas
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: 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 →
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A Recipe for an Effective Closing Argument
Below is a summary of some thoughts dealing with closing arguments which I would like to share. Like a good meal, a closing argument is something which requires careful preparation and a judicious mix of ingredients in the appropriate quantities. Below is my recipe for an effective closing argument. Goals While it may seem →
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What the Post Hoc?
The Post Hoc fallacy derives its name from the Latin phrase “Post hoc, ergo propter hoc.” This has been traditionally interpreted as meaning “After this, therefore because of this.” This fallacy is committed when it is concluded that one event causes another simply because the proposed cause occurred before the proposed effect. This is the very reason →
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Shutting Off the Defense Doctor’s Flood of Misinformation
In my last post, I discussed an analogy to deal with tactics used by your opponent to muddy the waters. Well, the problem is you have to drag the hogs out of the spring waters and it takes time to clear matters up. What if you could keep them out of the water altogether? Have →
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Character Assassination and the Mud Springs
An ad hominem attack is a tactic whereby you attack the man instead of the validity of his argument or position. The fallacy of such an attack is that it completely ignores what is really important… Is the argument logical and accurate. Character assassination is an old tactic used to win battles whether →
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Looking Good and the Art of Cross-Examination
Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it. – John Henry Wigmore There are a number strategies out there regarding →
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Persuasion and the Art of Being Yourself.
You want to be the best you can be. You have picked up books and read the closing arguments of successful attorneys. You’ve studied their transcripts of cross-examination. You’ve memorized their tactics and one liners. Should you imitate these masters of the courtroom, or forge your own path? Probably a little of both. It has →
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Hot Coffee, Juror Bias and Fear of the Unknown
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 →
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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 →
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What to Do When They Call Your Client a Liar, a Fraud and a Cheat.
The 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 →
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A Hung Jury: When a Stalemate Becomes Your Best Option.
Hung juries are generally considered to be a rare outcome to a trial. However, even though it is not a true resolution, it can be considered your best outcome. Hung juries are even rarer when you are dealing with civil cases, where the only thing that you obtain is money. If you are likely to →
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Long Live the Attorney Irving Fink, My Hero
They say the law is a jealous mistress. Well this mistress has kept company with a living legend… Irving Fink. I am blessed to have Mr. Fink in my office and soak in his wealth of knowledge and wisdom. He has practiced law for six decades and still comes into the office four days a →
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One Bad Apple Can Spoil the Whole Bunch. When Should a Juror, Not Be a Juror?
Jury selection is often where your case is won or lost. One bad juror can spoil your whole case. That one juror could lead the other jurors to render an adverse verdict, a compromise verdict or lead to gridlock and a hung jury. In civil cases, you often have limited peremptory challenges, where you can →
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Assuming… How Experts Try to Make an Ass Out of You and Me.
Assumptions are a nefarious tool of “hired gun” experts. If you do not critically look at the underlying assumptions of the expert, you could be allowing the expert to take unfair advantage of your client’s case. Assumptions are the foundation upon which an expert opinion rests. A house with an unsound foundation lacks structural integrity →
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Helping the Jury Remember When.
“If you tell the truth, you don’t have to remember anything.” ― Mark Twain The human memory is a tricky thing. Some things are learned and recalled without even thinking about them. These are typically items that we come in contact with in a concrete and tangible way on a day-to-day basis. Other items of →
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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 →
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The Barrister's Toolbox 