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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.
While it may seem intuitively obvious, the central goal of any closing argument is to prevail on behalf of your client. Any other objective is secondary. This is your last opportunity to speak with the jury and you don’t want to waste it. Below are some thoughts concerning how to best compile the central goal on behalf of your client.
Strong Opening Grab their Attention
As far as I am concerned, 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 closing argument. In his book, Screenplay: Foundations of Screenwriting he talks about how important the first 10 minutes (approximately 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.
Themes act as a unifying thread of your case. It is a thing that motivates the jurors to take action. There are number of potential themes. Watch movies and see how things are developed and the best ones. In fact, I have a book that contains nothing but quotes from various movies which I tried to interject in my closings to make them more interesting and compelling. Below is an example of a closing argument that I gave which dealt with the themes “profits over safety” and “accepting responsibility”. This is the same case discussed earlier in my materials on direct and cross examination. Here is the introduction:
This is an important case. It’s important for a lot of reasons – most importantly, as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. King did not accept responsibility. Mr. King ignored facts. Mr. King ignored laws. Mr. King was concerned about one thing and one thing only and that was himself. One of the things that I discussed with you at the very start of voir dire was this idea that we do not allow profits to take priority over safety. There are a lot of good reasons why we have our safety laws, but as I discussed you have to have laws and you have to make people accept responsibility for the harms and the losses that they have caused, because if you fail to do that there’s absolutely no incentive for someone to be responsible. Below is a short list of some common themes:
Safety – We do not allow profits to take priority over safety.
Keeping Promises – A man’s word is bond.
Preciousness of Life – As Will Munny put it in the western Unforgiven, “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.” That is what happened here.
David & Goliath [Right v. Might] – Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.
Theft of Innocence – When a child is injured or emotional traumatized by an event or act, their life is never the same and the joy of childhood is ripped away.
Right vs. Wrong – You may be able to paint the case in simple terms which we are all taught as children; you do what is right because that is your duty.
Failure to Accept Reality – Don’t Confuse me with the facts, my mind is made up.
Greed/Selfishness – Such things often lead people to take short cuts and ignore their responsibilities to others.
Struggling to Overcome Impossible Odds – Everyone cheers for a person who bravely soldiers on against difficult circumstances. Perhaps your client was seriously injured and has struggled to regain some semblance of his life. His efforts are heroic and worthy of the jury’s admiration.
Themes in cases are virtually endless and only confined by your imagination. All great literature, including the bible, strike various themes that describe why we and what we should do. Tap into these themes and use them to unify your argument.
Keeping Your Promises
As you move through your closing, it is important to link back to the themes and promises you made in your opening statement to show that you have fulfilled the obligations assumed in your opening statement. That is one of the reasons why you don’t want to promise anything in your opening statement that you can’t deliver on during the course of the trial.
Likewise, if your opponent has made promises and failed to fulfill them, you want to be able to point this out to the jury. That’s why you always want to keep good notes of your opponent’s opening and in some instances you may even want the court reporter to partially transcribe the opening to drive the point home so that it can be quoted verbatim from the official transcript of the court.
Provide a Clear Request for Action
At the end of your closing argument, you want to clearly request the jury to take particular action on behalf of your client. This request for action can be addressed as you move through your closing. However, I always have a strong ending in my closing requesting action on the part of the jury. Closing argument is similar to a pregame speech provided by a coach to his/her players. You want to motivate the jurors to take the action desired on behalf of the client.
If you can’t clearly request action on behalf of your client, how is the jury supposed to do so? Here, is an example of such a call to action:
Our client would rather have his life back than a $1,200,000 verdict. I suggest to you this is a seven-figure case. I’ll leave it to your discretion to go through and look at these damages and analyze the jury instructions. This case has been a heavy burden on our client. It’s been a heavy burden on the attorneys to work it up, as you’ve probably seen these last four days. But today we sit down and the job becomes yours. And we appreciate your time and your attention to the case and know that you’ll do justice for him.
How Can I Help You?
I remember seeing Kent Rowe Sr. of South Bend, Indiana give a fairly dramatic introduction to defense closing argument in a serious personal injury case. He looked at the jury and asked: “How can I help you?” He stood there a moment, paused, and once he had the eyes of all of the jurors he moved forward and did just that… helped the jurors. He answered questions about how they go about their job in looking through the evidence and applying the facts to the Court’s instructions. He showed them how to handle the form of verdicts. He posed and answered questions that were likely on the jury’s mind concerning the issues in the case. By opening in such a fashion he crawled into the jury box and truly helped them to fulfill their duty to the justice system.
That is what we are called to do every time we deliver a closing argument… Help the Jury reach the outcome we desire for our client.
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 why two events being highly correlated does not mean one caused the other. There could be a third factor which causes the other two events to occur. The two events might be related as cause-and-effect, but typically you need more than just a coincidence that the two things occurred at the same time. A great analogy to make this point comes from one of my favorite books about teaching philosophy principles through jokes “Plato and a Platypus Walk into a Bar . . .”. Here you go:
Ninety-year-old man meets a beautiful young blonde in her mid-20s and decides to marry her against his family’s best advice. Nine months later his young wife tells him that she is pregnant. The old man proudly marches in to see his doctor and announces the “good news”. The doctor looking at the old man smiles and says, “I want to tell you a story… A man wakes up in the morning in a hurry to go bear hunting and as he leaves his home instead of grabbing his shotgun, he grabs his cane. While out in the woods he comes upon a bear, raises his cane up, aims it at the bear and attempts to pull the trigger. Immediately at that point, there is a loud bang and the bear drops over dead. The doctor looks at the old man and asks, “what do you think happened?” The old man replies, “why somebody else shot the bear. ” The doctor quickly quips, “my point exactly”.
Need I say more?
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 you ever had a defense doctor summarize everything under the sun regarding your client’s medical history in an effort to cloud the issues or mislead the jury, knowing you cannot afford to drag every doctor into court to undo the harm? Well a good portion of such evidence may be totally inadmissible.
Contrary to what a number of attorneys argue. The Rules of Evidence do not permit the admission of materials relied upon by expert witness for truth of matters they contain, if the materials are otherwise inadmissible. Rules of Evidence Rule 703. Faulkner v. Markkay of Indiana, Inc., 633 N.E.2d 798. (Ind. Ct. App 1996). The Rules simply allow the expert’s opinion to be based upon matters outside the official court record, if it is the sort of information typically relied upon in the expert’s field to render an opinion.
Evidence Rule 703 states, “[e]xperts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by a experts in the field.” Ind. Evid. R. 702 permits the admission of expert opinion testimony but not opinions contained in documents prepared out of court by other medical doctors. Evidence Rule 703 permits a testifying expert to rely on such materials, including inadmissible hearsay, in forming the basis of his opinion.
However, it does not allow an expert’s reliance on hearsay or other inadmissible evidence to be used as a conduit for placing unavailable experts or physicians’ statements before a jury. In other words, the expert witness must rely on his own expertise in reaching his opinion and may not simply repeat the opinions of others. See Miller v. State, 575 N.E.2d 272, 274-75 (Ind.1991) (physician could rely upon but not repeat what another physician told him about diagnosis of defendant’s girlfriend).
Opinions or diagnosis of doctors who are unavailable to testify and not subject to cross examination do not come in as business records under Rule of Evidence 803(6). Where a party seeks to admit medical or hospital records that contain opinions, the proponent of the records is required to establish the expertise of the opinion giver under Rule of Evidence 702. Cook v. Whitesell-Sherman, 796 N.E.2d 271, 278 (Ind. 2003); Wilkinson v. Swafford, 811 N.E.2d 374, 391 (Ind. Ct. App. 2004)(citing In re Matter of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004)), abrogated on other grounds by Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006); Walker v. Cuppett, 808 N.E.2d 85, 97-98 (Ind. Ct. App. 2004). If the proponent fails to satisfy this foundational requirement, then such records are inadmissible. See Also. Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273 (Ind.App.1998), (held that medical opinions within the certified medical records were not admissible). Similarly, Rule of Evidence 703 permits experts to base their opinions on hearsay, but does not permit them to testify as to hearsay medical opinions.
Nor are they admissible as statements made for purposes of diagnosis or treatment under Rule of Evidence 803(4). That exception is limited to only statements made by patients, not doctors. Sibbing v. Cave, 922 N.E.2d 594, (Ind. 2010)(prohibited plaintiff from reciting hearsay testimony at trial about what doctor told her about her injuries and diagnosis).
Finally, if such opinions or diagnosis are included in your client’s medical history, such statements represent multiple levels of hearsay based upon conversations by the client with doctors or other healthcare providers who are not subject to cross-examination and whose qualifications to render an expert opinion have not yet been established. Each level of hearsay must separately satisfy the requirements of Evidence Rules 702, 802 and 901 (authenticity). See Rule of Evidence 805 which deals with multiple levels of hearsay. This rule states, “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.”
One caveat to note on cross-examination of the defense doctor. Rule 703 does allow for you to inquire on cross examination at to the basis. It provides “The expert may in any event be required to disclose the underlying facts or data on cross-examination.” However, be careful because you could open the door to inadmissible and damaging items being brought out on redirect.
Be ready for this issue and close the floodgates of misinformation through the use of timely objections or a motion in limine.
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 they are at the ballot box or in the courtroom. If you don’t like someone, then you are less likely to side with them and more likely to forget what the case is really about and decide it on an emotional basis. In the Karen Silkwood case, Gerry Spence used the following analogy to point this out to the jury and counteract the defense’s tactics of misdirection and obfuscation leveled against Karen Silkwood who gave her life courageously exposing problems at a nuclear power plant:
“I’ll tell you a bigger defense than that — and that’s getting drowned in mud springs. My favorite jurist has an old saying. He says if you want to clear up the water, you’ve got to get the hogs out of the spring. If you can’t get the hogs out of the spring, I guarantee you can’t clean up the water. During the course of this trial, you have observed a process by which you have been invited over and over again to get down into the mud springs where you can’t see — where you can’t understand — where things are all muddy. Getting jurors confused is not a proper part of jurisprudence — and getting people down in the mud springs is not the way to try a case.”
Don’t let your opponent drag you or client through the mud. Use this analogy to point this tactic out.
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 cross-examination. One of the more advanced theories of cross-examination consists of the simple objective of “looking good.” This theory of cross-examination is touted by Terry MacCarthy in his book MacCarthy on Cross-Examination, American Bar Association, 2007. His book outlines a simple process which allows the cross-examiner to look good while exercising maximum control over the witness through the use of short declarative one fact statements which require the witness to answer “yes”, “no”, or “I don’t recall/know”. The essential strategy, begins by defining the area of questioning in the following way:
Q. I am going to ask you some questions about [the topic in question]. Understand?
Once the precise area of questioning has been defined, the questioning begins. Below is a short example of this form of questioning:
Q. I am going to ask you some questions about the car that drove past you that night. Understand?
Q. It was a Ford?
Q. Red color?
Q. Male driver?
Terry MacCarthy demonstrates how this simple format confines the witness and allows you to control the course of examination. In addition, the use of the short one fact questions allows you to be the storyteller and prevents the witness from taking control of the examination. Even if you are not scoring any particular key points, this format of questioning will allow you to look good as an advocate and speak directly to the jury. He suggest that you deliver the questions to the jury and look to the members of the jury panel instead of focusing your attention on the witness. This allows you to build report and credibility with the jury the process of questioning the witness. Throughout the course of his book, MacCarthy covers various nuances of the basic system. However, the anatomy of the examination always follows the format outlined above. in this book, MacCarthy emphasizes the need to frequently define each new area of questioning through the basic setup question: I am going to ask you some questions about [the topic in question]. Understand? If the witness fails to cooperate answer the question, they will look bad. The attorney on cross examination, can simply come back to the short leading question and ask for example:
Q. Mr. Smith, I am asking you questions about the car that drove past you that night. Understand?
Q. The car was red?
If the witness quarrels with the examiner, the witness looks bad while the questioner continues to look good because there is no excuse for failing to give a straight answer to such a short and direct question. Terry MacCarthy’s method of cross-examination is covered in a series of YouTube videos. The link to the videos is listed below:
The lectures by Mr. MacCarthy took place at Case Western University School of Law over the course of a week. As a federal public defender Mr. MacCarthy knows how important it is to look good since oftentimes as a criminal defense attorney you have little to work with in defending your client. If you are interested in purchasing the book, then click the title above and you will be redirected to Amazon where you can purchase the book for approximately $80. I trust you will find this method of cross examination both easy to employ and effective to use with all sorts of witnesses.
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 been said that: “You might as well be yourself because everyone else has been taken.” Nothing is more credible than sincerity and you cannot sincerely be anyone but yourself.
A jury is a wise entity unto itself which is why it’s the backbone of our justice system. They’ll see through an act and don’t appreciate a slick fast talking attorney.
As Lincoln observed, “You can fool some of the people, all of the time. And, you can fool all of the people, some of the time. But you can’t fool all of the people, all of the time.” Be yourself! Lincoln was. He didn’t worry about his awkward and gangly appearance. He was great trial attorney, President and person. He is arguably the greatest leader our country has ever had. He got there being himself.
It is important to learn from the mistakes of others or you are bound to repeat them. So learn from the best, but remember in the end, only you can win or lose the case.
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 old lady from Albuquerque, New Mexico, was severely burned as a result of a long-standing problem with McDonalds serving coffee at temperatures known to cause severe burns in customers. This wasn’t their first rodeo. Other claims and lawsuits had been brought as a result of McDonald’s policy of serving coffee at unsafe temperatures. Normally, our fellow citizens sitting on juries reach verdicts fairly and for reasons demonstrated by evidence in the court room. Unfortunately, our sound bite era does not allow for the whole truth to be conveyed.
Another case that often results in cries of foul is the O.J. Simpson murder trial and its verdict of not guilty. Jurors are criticized for the outcome of the case. As a casual observer, I questioned how the jurors could have reached such a verdict. However, once again there was more to the story than we could appreciate from afar with a few minutes devoted to the news each evening. First of all, Mark Fuhrman, one of the lead detectives committed perjury by testifying that he had never ever used the n-word in the past ten years giving rise to questions of bias and a lack of credibility. F. Lee Bailey brilliantly anchored and locked in his testimony so that Fuhrman could not escape by claiming this was a mistake or innocent misstatement. Second, some of the blood evidence collected was called into question when discrepancies arose, such as chemical preservatives used by the police when collecting samples, were found to be present in some of the blood collected by the police at O.J. Simpson’s residence and elsewhere. The defense suggested in their opening statement that the police had planted this evidence, using known blood samples from Nicole Brown Simpson and O.J. Simpson. The police had collected these known blood samples in test tubes containing the preservative EDTA. The presence of EDTA in blood collected by police at O.J. Simpson’s residence and elsewhere lead to the inference that the blood was collected in tubes from the crime scene and then later deposited at the Simpson residence when it was searched by police. Finally, strategic errors were made by the prosecution as to the venue of the trial and the glove demonstration [Remember: “If it doesn’t fit, you must acquit.”]. Such evidence raised “reasons” to “doubt” the integrity of the whole police investigation. It was not necessary to show that O.J. was innocent to receive a not guilty verdict. The defense had to only raise “reasonable doubts” in the minds of the jurors to prevail. When looking at the whole picture presented by the case, it is easy to see how the jury could have doubted the integrity of the entire process and questioned whether they could trust the evidence enough to find O.J. guilty beyond a reasonable doubt.
When dealing with jury selection, it is important to get jurors talking about their thoughts and prejudices without fear that you will ridicule or judge them. There is a lot of misinformation and misunderstandings by the public that could hurt your client. This means that you need to get jurors talking openly and without hesitation. You have to fearlessly approach jurors with an open mind and heart. David Ball, a noted jury expert, has preached this approach in his book, David Ball on Damages III. He notes in his book that renowned trial attorney, Gerry Spence, will approach jurors with a question like this:
“Good morning folks, I’m here on behalf of my client. This is when I get to ask you some questions for jury selection, but before the usual questions, some things worry me that I need to ask you about. We’ve all been hearing a lot lately about legal reform, tort reform, verdicts being too high, lawyers taking advantage, frivolous lawsuits, verdicts hurting businesses, hurting medical care, and all those things. We need to know how people feel about these things. If you could please tell me what if anything bothers you about what’s going on?”
He then proceeds to get each juror to talk openly about their problems or baggage they bring to the case. My own approach to this problem goes something like this:
Is there anything I missed? [pause – looking at the panel]. That’s my greatest fear, you know. I have limited time to ask you questions. I learned long ago that I need your help to do the best job I can for my client. I may not have been smart enough to ask something which would have an impact, even a little on you coming into this case with an open mind. Is there anything I should know about your background that you are aware of, that if you were in my client’s shoes here, you would want me to know about you? Is there anything you would want me to know about your opinions, beliefs or philosophy that I have not asked about, that if you were my client, you would want me to know?
I have had many a juror reveal important information that lead to them being struck for cause or motivated the potential juror to concede that this was not the right case for them to serve on as a fair and impartial juror.
So get them talking next time you do jury selection. The bottom line is that you must let go of your fear of the unknown, because what you don’t know can hurt both you and your client.
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 or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Health insurance is not “liability insurance”. The judge would appear to be dead wrong if this was the reason for the mistrial. Even liability insurance may be admissible when offered for another purpose.
Likewise, this evidence would not violate the collateral source rule. The relevant statute codifying the collateral source rule provides:
Personal injury or wrongful death actions; admissibility of evidence
Sec. 2. In a personal injury or wrongful death action, the court shall allow the admission into evidence of:
(1) proof of collateral source payments other than:
(A) payments of life insurance or other death benefits;
(B) insurance benefits that the plaintiff or members of the plaintiff’s family have paid for directly; or
(C) payments made by:
(i) the state or the United States; or
(ii) any agency, instrumentality, or subdivision of the state or the United States;
that have been made before trial to a plaintiff as compensation for the loss or injury for which the action is brought;
(2) proof of the amount of money that the plaintiff is required to repay, including worker’s compensation benefits, as a result of the collateral benefits received; and
(3) proof of the cost to the plaintiff or to members of the plaintiff’s family of collateral benefits received by the plaintiff or the plaintiff’s family.
Assume, your client said they have NO HEALTH INSURANCE. The statute does not prohibit this. The collateral source rule protects the Plaintiff anyway, not the Defendant. The only colorable argument that could be made by a defense attorney, is that this is an appeal to prejudice or sympathy in violation of I.R.E. 403. This rule of evidence provides:
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Undue Delay
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
The financial status of the parties is generally not admissible. Koger v. Reid, 417 N.E.2d 1142 (Ind. App. 1991). However, the lack of insurance should be admissible to explain why he was no longer obtaining medical treatment and would explain away that issue. Such evidence would prevent the jury from thinking that the gap in treatment or the reason she quit seeing a doctor was because she had fully recovered. In Bumble v. Wal-Mart Stores, Inc., 407 F.3d 823, 826 (7th Cir. 2005). The trial court granted a motion in limine by the defense preventing the Plaintiff from stating or implying he had not not sought treatment for a period of time or has not undergone recommended treatment due to a lack of health insurance and financial situation unless the defendant first opened the door making it admissible.
The Court of Appeals held this ruling was not an abuse of the trial court’s discretion.
In practice, an appropriate limiting instruction should have sufficed so the evidence is used only for an appropriate and limited purpose. A mistrial is a harsh remedy unless the Court had granted an order in limine specifically on this topic. Nonetheless, it would make sense to notify the Court of your position on this topic outside the presence of the jury in order to avoid a harsh ruling and a possible mistrial.>
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 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.;