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Lights, Camera, Action: Directing and Producing Your Trial

imageYou are the “director” and “producer” of your trial and the witness’s testimony. We can’t change the facts, but you do have the power of when and how to present them subject to the limits of the Rules of Evidence. Indiana Rule of Evidence 611 controls the manner and mode of interrogation of witnesses. This Rule provides as follows:

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

​There will be times when you will have to call either the opposing party or a hostile witness to make your case. Do not forget that you are allowed to treat that witness or party as if they are on cross-examination. In all other instances, any witness called in your case in chief must not be asked leading questions. The court also has the power to limit your examination if it delves into matters which are irrelevant, repetitious, confusing, misleading, or unfairly prejudicial. Almost all evidence is prejudicial, otherwise she wouldn’t present it. It’s only when the evidence is unfairly prejudicial and the prejudice substantially outweighs its probative value that it may be excluded. (IRE 403) With these thoughts in mind let’s delve into the organization of your questioning.

​A witness’s testimony has to have a clear beginning, middle and end. The beginning typically involves laying out the witness’s personal background and their opportunity to observe. Usually at the beginning of the examination you are establishing for the jury why they should find your witness a reliable source of information.

​The middle part of the testimony is typically the meat of the matter you need to address with the jury. Remember, you might know the case like the back of your hand but the jury doesn’t. As a result, it’s important to address issues in a chronological fashion and to avoid the use of pronouns. This is true not only for your questions, but the witness’s answers as well. A jury will easily get lost if you do not use the names of the persons involved. When it comes to your client, never use the word “plaintiff” or “defendant”. That sounds like your client is not a human. You want the jury to connect with your client on a personal level. Once you’ve established in a clear fashion as part of a witness’s testimony that the opposing party identity  (for example “the plaintiff, John Smith”) you might want to resort to using the term “plaintiff” or “defendant” in referring to the other party.

​Finally, always end the witness’s testimony on a high note. Try to structure your examination so that you leave your strongest point with the jury as you sit down. Remember the power of primacy and recency effect. People tend to remember that which they hear first or which they have heard most recently. The first item in a list is initially distinguished from earlier activities as important (primacy effect) and may be transferred to long-term memory by the time of recall. Items at the end of the list are still in short-term memory (recency effect) at the time of recall.

Empowering Jurors… Justice or Injustice: A Book Every Attorney Should Read!

I just finished reading Justice or Injustice: What Really Happens in a Jury Room and it has some profound lessons for every trial attorney… Especially those in the criminal arena.

It is a short piece of non-fiction about a juror’s participation in a capital murder case and outlines the dangers that can occur when jurors do not know their right to hang a jury and hold onto their heartfelt and honest  opinion on a just verdict.  Compromise while expedient is not necessarily fair and just. Jurors are under tremendous pressure and really need our help and guidance in understanding the process and their rights.  David Ball, a jury consultant, refers to this as arming jurors by referring to evidence and testimony they will use in their deliberations. See Theater Tips and Strategies for Jury Trials by David Ball (Author)

As trial attorneys, we need to empower jurors by letting them know that they have an absolute right to disagree, hold-out and hang a jury if necessary to serve the ends of justice. If we do not explain this, then our clients could end up on the wrong end of a coercive verdict. A group of jurors uncertain about their right to disagree eventually capitulate to the majority out of doubt and fear over disagreeing with the majority in the case of Kimberly Renee Poole.  According to the author, the jury foreperson pushed the minority to change their verdict of “not guilty” primarily focusing on character evidence of the defendant’s background as a stripper and swinger claiming she deserved jail.  Alone afraid, uncertain, tired, and nicotine deprived the last hold-out (the author J.L. Hardee’s) surrenders to a guilty verdict. After the trial, it was learned that the foreperson had a close ties to the prosecution which were not disclosed in voir dire. His post verdict efforts to reverse what happened are discussed but ultimately unsuccessful.

Although one was not given in the case, the story also demonstrates the danger of an Allen Charge or dynamite charge as it is sometimes referred to by the courts.  See Allen v. United States, 164 U.S. 492 (1896). Such a charge is used to encourage jurors in the minority to reconsider their position.  About half of the states in the United States prohibit such a charge because of its potential to unjustly influence and interfere with the jury decision process.

So arm your jurors with knowledge of their important obligation and responsibility as a juror including the following:

1.    Their factual decisions are forever.  This is your client only chance to get this right.  Except in rare instances, appellate courts review legal rulings not factual findings.

2.     Lady Justice is blindfolded for a reason.  She is not influenced by station of life, background, color race, appearance, wealth, sex, religion or creed.  Her protections are bestowed on every single citizen. Jurors are sworn to decide a case fairly and impartially without bias prejudice. If someone tries to decide the case based upon something other than the judge’s instructions and the evidence relevant to those legal issues, then they should be reported to the court immediately.

3.     While jurors should not be afraid to honestly reconsider their position during deliberations, they are fully within their right to disagree with their fellow jurors.  No one will punish them for doing so.

4.      While this may be the most difficult thing they have ever been asked to do, they must be strong and courageous if justice is to prevail as your client’s fate is in their hands.

The Million Dollar Question: How Much Should I Ask For?

There is no set rule.  I would recommend that you play it by ear. If you have a case that is clearly worth a good deal of money, give the jury guidance as to how you calculated damages by breaking down each separate category covered in the jury instruction on damages and assigning a number to it. When doing so, you may want to suggest ranges and provide the jury with a summary chart breaking down the value of each element of damages. I know of one occasion in a case against a national department store where an attorney drew a blank line followed by six zeros ($___,000,000) on the chalk board and pointed to the blank line told the jury this is the only number you need to worry about.  His client received a million dollar verdict for a false arrest. Buddy Yosha is slightly less direct and will say in a matter-of-fact tone this is a seven figure case.  All of these methods have been known to work.

What ever number or argument you present, you need to do so honestly and sincerely. Also, keep in mind your audience that makes up the jury. Watch them as you argue and you should know what you are comfortable arguing.

Closing with Style

20111004-075359.jpgStyle and Delivery

As mentioned in my last post, there are a number of great sources worth consulting for purposes of delivering a closing argument.  On that is particularly appropriate is the a speech book called, Speak Like Churchill Stand Like Lincoln by James Humes.  Here are a few short comments on this topic:

  1. Tone – You should vary your tone and positioning during your argument and use that as a signal to the jury as you move from point to point. Your delivery should have feeling and sincerity

2. Time Limits – Try and learn what limits the Court is likely to place upon you before the trial begins so that you can adjust your closing argument accordingly. I typically try to leave at least a third of my time for rebuttal argument when I am the plaintiff. Ask the Court to signal you when you are down to your last five minutes. Have your closing remarks down pat so you can end on a high note.

  1. The Whole Case – You want to weave together the whole case for the jury and show how it fits into the narrative you presented in opening statement and is addressed by law as given by the Court.  Make sure that you give specially tailored instructions to discuss the central issues in your case. Examples could include sudden emergency, pre-existing conditions, intervening causes, superseding causes, mistreatment by a doctor, evidence offered for a limited purpose, etc. Both the law and the facts will impact your case. Also, make sure that you have a good issue instruction since this will likely be the first exposure that the jurors will have to your case.

Don’t be afraid to introduce in your jury voir dire certain concepts or even analogies if you are sure you are going to use them as part of your theme. I was defending a murder case and used the “cat & mouse in the box” analogy in explaining reasonable doubt and in my closing I was able to refer to the various problems with the case as the “holes in the box” carrying on my theme throughout the case.

      4.  Use of Visuals – Paint a vivid picture with choice of words you use.   For example, “They beat my client like a dog, blood splattering everywhere while he begged for his life.”

       5.  Quotes – There is a website called “Quotationary Online”, here is the link:

https://quotationary.wordpress.com/about/

Thanks to the internet you can find quote about almost anything in a matter of seconds.  Here are a few I like in no particular order:

    • “The truth exists, but lies are invested.”
    • “Bad excuses are worse than none at all and all that you have heard are bad excuses.”
    • “Many a lie is woven in the fabric of truth.”
    • “There are  three kinds of lies.  Lies, damn lies and statistics.”
    • “Figures don’t lie, but liars figure.”
    • “If you tell the truth, you never have to remember.”
    • ” No one has asked for your sympathy and no one does now, and when you have reached a verdict which is sanctioned by your conscience and ratified by your reason, no one can ever be heard to complain.”
    • “I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live by the light that I have. I must stand with anybody that stands right, and stand with him while he is right, and part with him when he goes wrong.”
    • ” Nobody cares how much you know, until they know how much you care.”
    • “Justice denied anywhere diminishes justice everywhere.”
    • “Man, when perfected, is the best of animals, but when separated from law and justice, he is the worst of all.”
    • “You can protect your liberties in this world only by protecting the other man’s freedom. You can be free only if I am free.”
    • “As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever.”
    • “The pursuit of truth shall set you free   even if you never catch up with it”
    • “Experience is the wisdom that enables us to recognize in an undesirable old acquaintance, the folly that we have already embraced.”
    • “I had rather take my chance that some traitors will escape detection than spread abroad a spirit of general suspicion and distrust, which accepts rumor and gossip in place of undismayed and unintimidated inquiry.”
    • “There is no wealth like knowledge; no poverty like ignorance”.

Finally, a couple of quotes for those who seek our advice without first paying for it:

    • “A lawyer’s time and advice are his stock in trade.”
    • “Remember my advice is worth exactly what you are paying for it… Nothing.”
    • “Speaking of nothing, nothing is better than a good quote.”

6.   Analogies –  “One good analogy is worth three hours discussion.” – Dudley Field Malone.

I have outlined a number of analogies throughout my blog.  When you hear a good analogy, make a mental note of it; or, better yet, write it down.  I have a huge collection of analogies I have gathered over the years. The series of books designed for sermons called The Sower’s Seeds is a great source.  I am also partial to a book entitled, I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know by Jim M. Purdue.

Shutting Off the Defense Doctor’s Flood of Misinformation

floodgatesIn 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.

Fireside Reading for the Trial Lawyer

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The next best thing to being in court is reading about it. The following is a list of books I believe will help you become a better trial attorney:

1.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?

2. Rick Friedman on Becoming a Trial Lawyer by Rick Friedman – a great book for young lawyers about what it takes to become a real “trial attorney”.

3. 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.

4. The Art of Cross-Examination by Francis Wellman ;- classic legal literature which still rings true today on various techniques for cross-examination.

5. Closing Argument: The Last Battle ;- 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.

6. Win Your Case: How to Present, Persuade, and Prevail by Gerry Spence – this book will help you fine your own voice and become a more effective advocate for you clients.

7. Exposing Deceptive Defense Doctors by Dorothy Clay Sims ;- this book provides in-depth check lists and strategies for dealing with defense medical examinations of all sorts.

8. 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.

9. The Best Defense by Alan M. Dershowitz– a practical eye-opening guide to what criminal defense attorneys face in terms of bias and corruption in our criminal justice system based upon cases where Professor Dershowitz of Harvard has acted as defense counsel.

10. ;Letters to a Young Lawyer by Alan M. Dershowitz – advice to young lawyers on ethics, professionalism and pitfalls to avoid in the practice of law.

11. 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.

12. 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.

13. THE ELEMENTS OF STYLE by William Strunk – a short guide on how write clearly and concisely.

14. The Devil’s Advocates by Michael S. Lief – ;this ;is ;a collection of notable of opening and closing statements in famous criminal cases.

15. A Rulebook for Arguments (Fourth Edition) by Anthony Weston – it is a concise guide on argument structure and use.

16. Lawyers’ Poker: 52 Lessons that Lawyers Can Learn from Card Players by Steven Lubet – the book uses poker as an analogical means illustrating various points of law.

17. Ladies and Gentlemen Of The Jury by Michael S. Lief ;- this ;book contains transcripts notable ; opening and closing statements in famous cases.

18.And the Walls Came Tumbling Down by Michael S Lief ;- ; ;this ;book contains transcripts notable ;closing statements ; made in famous civil rights cases.

19. The Trial Lawyers: The Nation’s Top Litigators Tell How They Win by Emily Couric ;- a behind the scenes disclosure of methods used by experts in litigation to prepare and try cases.

20. 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.

21.McElhaney’s Trial Notebook by James W. McElhaney ;- A collection of ;essays on trial advocacy by Professor McElhaney ;covers a number of ;areas involved in modern-day litigation. ;

22. ; To Kill a Mockingbird by Harper Lee – The classic novel of a courageous lawyer taking on the unpopular cause of a black man charged with raping a white woman. ; This book displays the best and worse of our justice system and has inspired a number of people to become lawyers.

There are many more books out there worthy of consideration. This is simply a short list of books I would recommend you read.

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