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I was listening to a new album by cousin Peter Neff that he created in collaboration with his co-composer Mauricio Yazigi titled Spanish Guitars. The sound and rhythm is mesmerizing. It reminded me that a good cross-examination or closing argument has its own rhythm and melody. The pace and delivery both lulls and controls the defenses of the witness As the examination draws him closer to the truth.
Want to understand this power? Read out loud classic dialogues such as Plato’s the Republic. The Republic is a Socratic dialogue, written by Plato around 380 BC, concerning the definition of justice, the order and character of the just city-state and the just man. You will notice how the pace and melody of the words propels the examination and the rhetorical power of the questions posed.
Remember that cross examination is simply a means of speaking the truth to the jury through a series of well planned rhetorical questions that logically lead to your ultimate point. These examinations have a rhythm which you can use to your advantage to emphasize the themes of your case. See F. Lee Bailey’s cross examination of Detective Mark Furhman which helped undermine the State of California’s case by suggesting Furman was a dishonest racist who planted blood as evidence against O.J. Simpson.
Likewise a good closing has a rhythm and melody which melds with each point you must make to the jury. Check out the clip of “True Believer”, San Francisco attorney Tony Serra, as he gives a spellbinding closing argument for his client, Rick Tabish charged with murder.
Find your pace and use it to your advantage. The modulation of the pace, volume and pitch of your voice is no different than a musical instrument. It conveys the mood and emphasis of you point. Make sure there is both a rhyme and a reason supporting your next presentation.
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 170, 171 (Ind. 1993).
In Indiana, cases where expert opinion evidence is not necessary typically involve the failure of the operating physician to remove some foreign object from the patient’s body. Funk v. Bonham (1932), 204 Ind. 170, 183 N.E. 312 (sponge left in abdomen), Ciesiolka v. Selby (1970), 147 Ind. App. 396, 261 N.E.2d 95 (teflon mesh left in abdomen); Klinger v. Caylor (1971),148 Ind. App. 508, 267 N.E.2d 848 (“surgical padding” left in intestinal tract); and Burke v. Capello (1988), Ind.,520 N.E.2d 439 (cement left in hip). Likewise, in a similar fashion, res ipsa loquitur applied when a patient’s oxygen mask caught fire during surgery, see Cleary v.Manning, 884 N.E.2d 335, 339 (Ind. Ct. App. 2008).
This same sort of common sense approach is endorsed in other jurisdictions as well.Bernsden v. Johnson, 174 Kan. 230, 236-37, 255 P.2d 1033 (1953)(applying exception when post-surgery choking was caused by metal disc lodged in patient’s throat); Biggs v. Cumberland County Hospital System, Inc., 69 N.C.App. 547, 317 S.E.2d 421 (1984) (where patient is known to be in weakened condition and is left alone in shower, where she falls, expert testimony on standards for nurse’s aides not required); Burks v. Christ Hosp., 19 Ohio St.2d 128, 131, 249 N.E.2d 829 (1969) (sedated, obese patient fell from hospital bed without side rails); Cockerton v. Mercy Hospital Medical Center, 490 N.W.2d 856 (Iowa App.1992)(where patient fell while in x-ray room expert testimony was not required on hospital’s negligence); Dimora v. Cleveland Clinic Found., 114 Ohio App.3d 711, 718, 683 N.E.2d 1175 (8th Dist.1996) (patient fell after student nurse left her unattended at her walker while opening a door); German v. Nichopoulos, 577 S.W.2d 197, 202-03 (Tenn. Ct. App. 1978) overruled on other grounds by Seavers, 9 S.W.3d at 96; Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978) (holding tubal ligation rendering intrauterine device and other birth control device useless constitutes a matter of common knowledge); Hickman v. Sexton Dental Clinic, P.A., 295 S.C. 164, 367 S.E.2d 453 (Ct. App. 1988) (holding evidence presented was sufficient for the jury to infer without the aid of expert testimony a breach of duty to dental patient where patient testified an unsupervised dental assistant rammed a sharp object into patient’s mouth); Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001) (case in which the defendant dentist allegedly pulled the wrong tooth); LaCourse v. Flower Hosp., 6th Dist. Lucas No. L–02–1004, 2002-Ohio-3816, 2002 WL 1729897, ¶ 16;) McConkey v. State, 128 S.W.3d 656, 660 (Tenn. Ct. App. 2003); Murphy v. Schwartz, 739 S.W.2d 777, 778 (Tenn. Ct. App. 1986); Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir.2003) (personnel failed to call treating physician to determine how often insulin was to be administered); Newhall v. Central Vermont Hospital, Inc., 133 Vt. 572, 349 A.2d 890 (1975)(expert testimony not required where nurse failed to respond to sedated patient’s call and patient got out of bed and fell); Palanque v. Lambert-Woolley, 168 N.J. 398, 400, 774 A.2d 501 (2001)(misread the specimen identification numbers as plaintiff’s test result numbers and mistakenly determined that plaintiff had an ectopic pregnancy) Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341 (Mo.App.1983) (expert testimony not required where bed rails not raised and brain damaged patient fell out); Rule v. Cheeseman, Executrix, 181 Kan. 957, 963, 317 P.2d 472 (1957) (all four cases applying exception when sponge was left in patient after surgery); Schraffenberger v. Persinger, Malik & Haaf, M.D.’s, Inc., 114 Ohio App.3d 263, 267, 683 N.E.2d 60 (1st Dist.1996) (patient alleged that doctor negligently and erroneously informed him that he was sterile following a vasectomy); Schwartz v. Abay, 26 Kan.App.2d 707, 995 P.2d 878 (1999) (applying exception where surgeon removed 60% of the wrong vertebral disc); Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 92 (Tenn. 1999); Thomas v. Dootson, 377 S.C. 293, 659 S.E.2d 253 (Ct. App. 2008) (recognizing expert testimony was not required for claim arising from a surgical drill that burned skin on contact because claim would fall within the common knowledge or experience of laymen); Veesart v. Community Hospital Asso., 211 Kan. 896, 508 P.2d 506 (1973) (expert evidence not required where elderly patient fell while going to bathroom); Walker v. Southeast Alabama Medical Center, 545 So.2d 769 (Ala.1989)(where bed rail left down contrary to doctor’s order and patient fell, no expert testimony required on standard of care); Washington Hospital Center v. Martin, 454 A.2d 306 (D.C.App.1982)(mere fact that patient falls in hospital will not normally require expert testimony on hospital’s negligence).
Medical malpractice litigation is expensive enough for a citizen to pursue. Common sense propositions should not require expert testimony. The underlying purpose of Indiana’s Rules of Evidence is set forth in Rule 102:
Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
The implementation of the “common knowledge exception” “eliminates unjustifiable expense” so that the “truth may be ascertained” and “proceedings justly determined.” Trial Rule 1 of Indiana’s Rules of Trial Procedure echoes similar sentiments noting:
They shall be construed to secure the just, speedy and inexpensive determination of every action.
The costs of medical malpractice cases are such that only a handful of cases are economically feasible to pursue, thereby closing the court house doors to most claims. Gary T. Schwartz, Medical Malpractice, Tort, Contract, and Managed Care, 1998 U. ILL. L. REV. 885, 895 (discussing how non-“large-damage” medical malpractice claims are impractical); Jeffrey J. Parker, Comment, Contingent Expert Witness Fees: Access and Legitimacy, 64 S. CAL. L. REV. 1363, 1369 (1991) (“[F]ees to employ necessary expert witnesses constitute substantial litigation expenses.”).
So remember that the “common knowledge exception” can be uncommonly economical and effective.
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 the use of rhetorical questions. Give the jury some credit and let them answer the questions you pose. If your rhetorical questions are properly framed, the answer will be obvious.
1. Addressing Your Problems Before the Other Side Does
Address your own problems before the other side goes on the attack. This allows you the advantage primacy as the jury will hear your arguments first as they mentally work their way through your case. Handle the questions likely to be raised by the defense in a forthright and confident manner. Put forth your best analysis of the evidence in favor of your client.
2. Credibility and Sincerity is Your Greatest Weapon
State your position with conviction and sincerity. If you exude sincerity, you will gain the trust of the jurors in your analysis of the case. To succeed, your analysis must be an honest one that does not dodge the difficult questions. If you lose your credibility, you lose your ability to persuade.
3. Address Any Weak Points in Your Theory
You need to anticipate attacks and be ready to address them in a calm and confident fashion so the jury understands that the supposed problems are nothing. You should have laid the groundwork for this in your voir dire of the jury, as well as in your opening statement and the evidence presented.
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 followed up with a thank you card. I still have that card on my desk to remind me why I take the time to blog.
It is nice to give back to the profession and job I love. Back in law school, I knew my goal was to become the best trial attorney and advocate possible. I have worked on cases involving civil rights, personal injury, product liability, premises liability, defamation, false arrest, medical malpractice, murder, rape, pollution, RICO, wrongful death, mail fraud, gambling, counterfeiting, construction, drug trafficking, pollution, real estate, contract disputes and even a death penalty case. A few things I take away from all of this is over the last three decades of practice:
- Talent is over rated and hard work is under valued. An average attorney can out work and out hustle a smarter attorney. Put the time in to do the job right. Always assume your opponent is smarter than you so as too not overlook any key details.
- If you get into a new or difficult case don’t be afraid to,ask for help from a more experienced colleague. Your client deserves that much. In fact, join a trial attorney association and participate in it. Seek out mentors… They will help you grow as a professional.
- Re beer your reputation and integrity are the most important asset you or your client have, never take a good case and try to make it a great case or you will be left with bad case.
- Always continue to learn and hone your skills as a trial attorney. Otherwise, you will be left behind.
- Strive for excellence everyday, but accept the fact that you are only human and will make mistakes and fail from time to time. Embrace your mistakes as your best teachers. The worst mistakes we make are those we repeat. The first sign of insanity is to do the same thing over and over and expect different results.
- Take time to enjoy your life outside of the law. You need balance. While the law is a jealous mistress, it does mean your spouse should be a widow and your children orphans.
- The judge may not always be right, but the judge is always “the judge”. Respect the office even if you don’t respect the man who holds the position.
- That being said never be afraid to hold firm in your position for a client. Courage and fortitude are required. Politely make your record as needed and move on to the next topic. Often times a judge will reverse himself, if you make an offer to prove and stand firm.
- Finally, remember it costs you nothing to be a gentleman. Treat everyone with respect you encounter and it will be returned tenfold.
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 argument. In his book, Screenplay: Foundations of Screenwriting he talks about how important the first 10 minutes (about 10 pages) of your script are. Screeners of scripts will typically look at the first 10 pages of the screenplay and if they don’t like it, they quit reading and toss the script to the trash pile.
Jurors are not much different. If you haven’t caught their attention in the first few minutes of closing argument, they are probably going to start daydreaming about what they will do once they’re out of the trial. Instead of spending a bunch of time at the beginning of closing thanking jurors or their service, I would recommend grabbing their attention with a snappy introduction while you have their undivided attention. Don’t waste this opportunity with boilerplate pleasantries and thanking the jury for their service. This comes across as flattery and will seem insincere. You are better off giving your thanks in the middle of your closing where it will be seen as heartfelt and less forced. Make sure you end strong as well so you can take advantage of the effects of primacy and recency. You are giving the jury needed inspiration as they retire to the jury room to deliberate.
At the end of his closing arguments before he sat down, renowned trial attorney, Gerry Spence, used the following analogy to drive home the point that his client’s fate was in the hands of the jury :
“I’m going to tell you a simple story, about a wise old man and a smart aleck 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.’”
So give the jury a memorable closing argument by starting and ending strong.
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.
Like a good journalist covering a story, jurors are going to want to know the who, what, where, when, why and how of the witness’s story. As the writer Rudyard Kipling so aptly put it:
I kept six honest serving men.
They taught me all I knew.
Their names were what and why and when
and how and where and who.
Make sure to take advantage of primacy and how you structure your examination so that the most telling points of the witness’s testimony will stay with the jury. To formulate your questions in a non-leading fashion, make sure to use these common terms.
Questions typically have to be asked in a non-leading fashion. That being said, there’s nothing to prohibit you from asking topically leading questions each time you introduce the jury to a new topic. Just like the journalist, you can use transitions to act as headlines for what is coming in your examination. For example, you could introduce a topic by stating: “I would like to talk with you about the day of the accident. Would you tell the jury how your day started on June 15, 2012?” You can also build your examination on testimony that has already been provided the witness. So if the witness provided you with testimony on a topic, you can link your next question to the information already provided. The witness tells you that they were in shock after the collision, you can follow-up with a question such as, “You said you were in shock after the collision, how did that affect your ability to communicate with those around you?”
The use of non-leading questions makes the witness the focus of the jury’s attention and allows for a more narrative and natural delivery of information to the jury. This enhances the witness’s connection with the jury and their credibility.
This is vexing problem which can take weeks and cost clients thousands of dollars in attorney time. Please read this practical solution…
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 cries out for an Excel solution.
Effective September 2, 2014, Commercial Division Rule 11-b imposes new obligations on litigants in New York Supreme who create document-by-document privilege logs, as opposed to the now-preferred “categorical privilege logs.” See here to read the rule. Among other things, entries for email chains should now indicate “the number of e-mails within the dialogue.” Rule 11-b (b)(3)(iii). That means you can log only the most recent email in a given chain, but you need to also disclose how many emails are in the chain.
How, exactly, does one figure out the number of emails in every email…
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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 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.
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.
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 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?
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The Devil’s Advocates by Michael S. Lief: This is a collection of notable of opening and closing statements in famous criminal cases.
- A Rulebook for Arguments (Fourth Edition) by Anthony Weston: A concise guide on argument structure and use.
- Ladies and Gentlemen Of The Jury by Michael S. Lief: This book contains transcripts of notable opening and closing statements in famous cases.
- And the Walls Came Tumbling Down by Michael S Lief: This book contains transcripts notable closing statements made in famous civil rights cases.
- 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.
- 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.
- Moe Levine on Advocacy by Moe Levine: A treasure trove of effective arguments for the plaintiff’s attorney.
- 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.
- 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.