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The Problem with Problems.

memorySo do you want to know what the problem is with problems? Most people are like an ostrich with its head buried in the sand in fear of what they might see.  We all have a tendency to ignore our problems and procrastinate.  This is fatal thinking or à total lack of thinking.

Instead of waiting until the last second before the trial starts or the evening before your closing argument, look for problems as well as inspiration the first day the case comes into your office.  Continue to hunt for inspiration and problems as the case progresses. Attorneys should not wait until the last moment to prepare their opening statement or closing argument.  This is often too late and provides little time to use your creativity as an attorney and advocate for the client.

I always keep an electronic document with a list of inspirational quotes, analogies and arguments.  I also have a list of potential problems and issues that I need to address as the case progresses through litigation towards trial.  For example, if during the course of my client’s deposition unfavorable evidence arises about my client’s background or character, I make careful note of the same on my list of problems and issues so that I can deal with it at the time of trial.

So how do you deal with such problems?  You may be able to exclude the evidence with a motion limine under Rules of Evidence 403, 404, 405, 608, 609 or 610, 702 or 802.  If the problem can be addressed in jury instructions, research the law and carefully draft a proper instruction to submit to the court address the issue (such as pre-existing conditions).

If neither of these strategies has a chance of success, then I have to figure out a way to discuss the problem upfront and lessen the evidence’s  impact with the jury.  See my article: Direct Examination and Airing Your Dirty Laundry. Most evidence has a double edge to it.  If the other side is engaging in character assignation point out the tactic and explain why the jury is being misdirected from the real issues in your case.   See my article on Distraction, Misdirection and the Art of Verbal Jujitsu.

I will raise such problems during jury selection and find out which of the jurors cannot put the problem aside or deal with it fairly.  if possible, I will get juror to admit that they cannot be a fair and impartial juror and then try to have them removed for cause or use a peremptory challenge to strike the juror from the venire.

I will raise the problem on direct examination and outline any mitigating circumstances favorable to my client and explain how the transgression occurred.   I don’t wait for redirect and give my opponent the first shot at framing the issue.

Honesty, is the best policy in dealing with such problems.   Remember, everyone is human and no one is perfect.   The jury will understand if you do and you don’t run away from the problem.  Just deal with it.   Likewise,  if I receive inspiration for a good argument, analogy or quote,  I will  send myself an e-mail or text message so that I don’t forget it.

So don’t let your problems, be the problem.  Be proactive and creative.  Do not procrastinate and brood.

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Closing Argument: Begin Strong, End Stronger and Sock It to Them!

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.

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.

Closing Argument – What to Do When Your Opponent Deals from the Bottom of the Deck

20111004-080119.jpgIt is important to stick with the argument that you’ve planned out. 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 with 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.  Nonetheless, you need to be ready when the defense pulls the jury away from the real issues in the case and be ready to honestly and candidly deal with your case’s short comings.

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 work their way through the case. Handle the questions likely to be raised by the defense in a forthright and confident manner and put forth your best analysis of the evidence in favor of your client.

1.         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.  Remember, if you lose your credibility, you lose your ability to persuade.

2.        Address Any Weak Points in Your Theory –  You need to expect attacks and be ready to discuss 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.

3.        Last Words and Rebuttal – If you are the plaintiff or the state in a criminal case, you have the advantage of going last.  However, remember that the scope of rebuttal is determined by the issues addressed in the closing argument of opposing counsel.  When I was a law clerk right out of school, I saw team of attorneys for plaintiff decide that they would split the closing argument with one of them to discuss liability in the first half of their argument and the second attorney would address the issue of damages in rebuttal.

The Defense, realizing a tactical mistake made by the plaintiffs’ attorneys, chose to limit their argument to liability only and moved in limine to prevent the plaintiff’s attorney from arguing damages in rebuttal. The jury retired, confused as to whether they were supposed to determine only liability or both damages and liability. Ironically, at the end of the day, failure to argue damages did not seem to matter much. In that case the jury returned a record multimillion dollar verdict in a civil case for Lake County, Indiana.  Don’t make this mistake. You might not be as lucky. See Indiana Jury Rule 27.  This Rule provides:

When the evidence is concluded, the parties may, by agreement in open court, submit the case without argument to the jury. If the parties argue the case to the jury, the party with the burden of going forward shall open and close the argument. The party which opens the argument must disclose in the opening all the points relied on in the case. If, in the closing, the party which closes refers to any new point or fact not disclosed in the opening, the adverse party has the right to reply to the new point or fact. The adverse party’s reply then closes the argument in the case.  If the party with the burden of going forward declines to open the argument, the adverse party may then argue its case. In criminal cases, if the defense declines to argue its case after the prosecution has made opening argument, then that shall be the only argument allowed in the case.  In criminal cases, the party with the burden of going forward is the prosecution. In civil cases, the party with the burden of going forward is the plaintiff. [Emphasis Added.].

4.         Save Your Zingers for Rebuttal on Points the Defense Must Cover –  If you know there are points the defense must cover, I would recommend saving some of your best zingers, one-liners or analogies for rebuttal. Your opponent will be silenced, and your statements will not be directly challenged.  There is nothing more powerful in terms of capturing someone’s attention and imbedding your message in their brain than a good one-liner; or, as I like to call them, a “zinger”. A “zinger” is described as, “a surprising or unusually pointed or telling remark.”

In today’s modern, fast-paced world, speechwriters and politicians often work on developing that one biting quip or sound bite which will disarm an opponent and grab an audience’s favor. Such comments often seem unscripted even though they were planned out well in advance. Attorneys can use “zingers” as a rhetorical device during cross-examination or in closing argument to drive a point home. “Zingers” are especially effective in rebutting your opponent’s argument. Your source material is everywhere. I urge you to look to quote books, comedians and popular culture for such material.

A recent book, The Notes, posthumously published for President Ronald Reagan, is a collection of quotes and anecdotes that Reagan gathered over his long career as a speaker and politician. He made a concerted effort throughout his life to look for and collect such quotes on index cards.  President Reagan was the master of the one-liner. Who can forget Reagan’s “There you go again” quip he used to boomerang criticism of his position back at his opponent, President Jimmy Carter during their presidential debate in 1980. See:

http://www.youtube.com/watch?v=Wi9y5-Vo61w

Books containing anthologies of jokes are another source of such material. The master of the “zinger” is Samuel Clemens, more famously remembered as Mark Twain.  In dealing with the topic of truthfulness and the use of statistics to bolster a weak argument, Twain observed:

“There are three kinds of lies: lies, damned lies and statistics.”

Another way of putting it according to Twain was:

“Figures don’t lie, but liars figure.”

Such a statement can quickly and effectively eviscerate an opponent and swings the audience or jury in one’s favor. Cultivate your inner one-liners; you won’t be disappointed and you may just “zing” your opponent the next time you are in court.

If you are on the defense, I would point out that after you sit down you will not be allowed to speak any further and cannot address the issues raised in rebuttal. You and your client have to trust the jury will scrutinize the arguments of the plaintiff the same way as the arguments of the defense.

Gerry Spence had a very compelling analogy is to drive home the point that his client’s liberty rested in the hands of the jury. He reportedly used the following analogy at the very close of his argument in a criminal case and then sat down:

“I’m going to tell you a simple story, about a wise old man and a smart aleck 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.”

“Ladies and gentlemen of the jury my client is in yours.”

5.        Misdirection and Distractions –  Often times, your opponent will attempt to get the jury to chase false issues and red herrings.  Distraction, misdirection and appeals to prejudice are common tools of the defense. Ideally, you keep these improper arguments or evidence from the jury through the use of motions in limine. Sometimes this is impossible to do. What do you do to keep the jury from being mislead or distracted by meaningless side issues? How about a little verbal jujitsu! “Jujitsu” is the oriental “art” of manipulating the opponent’s force against himself rather than confronting it with one’s own force. You can do this  verbal jujitsu by using effective analogies and counter-arguments. Below are a few of my favorites analogies and arguments. I hope they help.

STREET LIGHT ANALOGY: One dark evening a woman was on her hands and knees under a street light looking through the grass. A man walking by stopped and asked what she was looking for. “The keys to my car.” replied the woman. Having some time and feeling helpful, the man joined the woman in her search for her keys. After looking for quite a while with no success, the man asked, “We have been looking for well over 15 minutes here. Are you sure this is where you were when you lost your keys?” “Why no, I lost them a couple blocks back over there by my car” the woman explained as she gestured back towards her car. The man was puzzled and asked, “If you lost them a couple blocks back, why are you looking for them here?” The woman without keys responded, “Because the light’s so much better here!” That’s what the defense is did here, even though the real issues are two blocks back…

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 of things that really have nothing to do with the case’s merit in hopes that you’ll forget what this case is really about…

OCTOPUS ANALOGY: The defense is just like an octopus hiding behind a cloud of black ink, they try to obscure your view with their arguments and B.S. However, all you have to do is just move straight ahead through the ink and you can see the truth once again. Most octopi squirt thick clouds of black ink to confuse predators. However, a type of Tremoctopus, or blanket octopus (murasakidako in Japanese), employs a different technique. When threatened, the octopus unfurls a giant sheet of webbing that trails behind like a cape. The webbing breaks apart rather easily when attacked — much like a lizard’s tail — and it gets wrapped around the predator’s face, giving the octopus a chance to flee. The defense took a nice simple case that is straight forward and tried to make it complicated by muddying the waters with a bunch of things that really have nothing to do with the case, in hopes that you’ll forget what this case is really about…

RED HERRING ANALOGY:  A “red herring” is normally used by people to divert the attention of others from something important; from the central point that is being considered. A “herring” is a kind of fish that turns red only when it is “cured” – that is, when it is smoked and salted. Such a fish emits a very strong smell, and in the past criminals made use of red herrings to help them in their bid to escape the authorities. Convicts used the herring to help them throw dogs off his scent. Since the herring had a very strong smell, the police dogs followed the scent of the herring and not that of the escaped convict! The original expression was “drag a red herring across the trail”, but now it’s been reduced to “red herring”. That’s what’s happened here…

AD HOMINEM ATTACK: An Ad Hominem attack falls into a general class of logical fallacies in which a claim or argument is rejected because of some irrelevant fact about the author of or the person presenting the claim or argument. The reason this sort of argument is fallacious is that the character, circumstances, or actions of a person do not (in most cases) have a bearing on the truth or falsity of the claim being made (or the quality of the argument being made). These sorts of arguments appeal to prejudice and bias in hopes that you will ignore your sworn duty as jurors. They are wrongheaded and improper. Lady Justice stands there holding the scales of justice blindfolded. Lady Justice does not care if we are black or white, Christian or Muslim, male or female, rich or poor, married or divorced… Her sole concern is to fairly and impartially evaluate the evidence based upon the law. The defense’s personal attacks on my client have nothing to do with this case’s merits. It is bad enough that they have shamelessly injured my client, now they want to profit from insulting and degrading him in your eyes. These attacks have no bearing on what is a fair and just outcome given the facts and the law in this case which weigh heavily in favor of my client…

One book which has a number of great counter-arguments is Closing Arguments: The Last Battle. by Levin and Papantonio.  This book is a well-organized collection of miscellaneous arguments and analogies used to explain and illustrate various legal issues and address common defense attorney arguments and tactics used to undercut, confuse, distract or sidetrack juries from the central issues in a personal injury case.  Another fine book on the topic is The Lost Art:  An Advocate’s Guide to Effective Closing Argument, by Judge Joseph F. Anderson, Jr.  this book is a treasure trove of great ideas, quotations, analogies and the law governing closing argument. Both books are more than worth the money.

6.     Other Attacks to Address – here are a few more thoughts on how to deal with the defense when they deal from the bottom of the deck:

When the defense attacks through the use of innuendos- Another argument to present to a defense request for the jury to make his arguments for him when he sits down was 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 asks 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.

Here is a response inspired by the approach taken by Attorney Rick Friedman, in his book “Polarizing the Case:

He [opposing  counsel] 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 too 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 so because he knows such a statement is outrageous and unworthy of consideration. In fact it is insulting. Instead he subtly insinuates that something is not right, planting the seeds of cynicism in hopes that back in the jury room, they will sprout.  This flies in the face of the evidence presented here. To buy into this argument you would have to conclude that:

Greed- If their Goal Was Money: My client and his spouse have come into this Court and both lied as well as all of those around who have corroborated their testimony. If this were about fraud would you not 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.

Speculative and Unsupported Causes: He [opposing  counsel] also has insinuated that something else must has caused my client’s symptoms. He does this with evidence of any sort and again subtly 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.

Unfounded Assumptions or Unsubstantiated Arguments –  When this happens you might say something like this:

He thinks just because he argues and says something enough that we all will fall for his argument and treat his speculation like real evidence. I’d like to share with you some thoughts of one of our greatest Presidents, Abraham Lincoln:

Some people believe if they say something is so, that it makes it so. Abe Lincoln had a pretty clever way of dealing with such arguments. On one occasion, Abraham Lincoln, as a young trial lawyer in Illinois, was arguing a case with a lawyer whose version of the facts came more from the attorney’s fervent imagination than the testimony and evidence before the Court. Lincoln in his argument turned to the other lawyer and eviscerated him:

Lincoln:          “Tell me, sir, how many legs does a sheep have?”

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

Lincoln:           “And if I call a tail a leg, how many legs would that sheep have?”

And the answer came back from the Attorney:  

“He’d have five.”

Abraham Lincoln slammed down his hand on the jury box and roared:

“No! He’d still have four. Just because you call a tail a leg doesn’t make it a leg. So now let’s see how many tails you have been calling legs in this case.”

7.     Bait the Other Side into Traps:

Sometimes, you can bait the other side into either embracing or rejecting positions that they have taken by innuendos. If you know that you can defeat the argument, call them out in the opening part of your argument and force them to commit. I have done this before to great effect and then pointed out the evidence which proved the defense wrong in rebuttal.

7.On the other hand, sometimes your opponent will raise a plethora of issues in hopes that you will waste all of your time chasing ghosts. Use the misdirection analogies above or use the following one:

Block Analogy: When I was a kid, my little brother, Bob, would sit and watch me build a really big impressive building from blocks.  As soon as I got it built, he would wait for me to look away for a second and then run up and tear it down my magnificent building of blocks in less than a couple of seconds.  He’d sit back and laugh while I chased around to gather back up the blocks he’d kicked around the room.  I was determined and would not let him stop me. Instead, I would patiently rebuild my block building again, even better than before.  Eventually, I quit chasing around the blocks and he quit because it was not fun anymore.

As a Plaintiff, you spend the trial putting your case together building it block by block – witness by witness.  The defense attorney comes along and throws out a bunch of questions and issues in his closing knowing that there is not enough time to address every point. Just like my brother, he will try to tear down my case in a few minutes hoping that I will waste my time in my rebuttal chasing each block he kicked away. Well, I for one am not falling for that trick again.

Don’t you fall for such tactics either when you argue your next case.                         

Closing Argument: How to Combat Guilt by Association

HarvestingOftentimes, we have clients who through no fault of their own grow up in difficult circumstances or are simply in the wrong place at the wrong time.   The opposing attorney may try to paint your client as less than worthy in the eyes of the law.   However, remember that lady justice holds the scales of justice blindfolded so that all are treated equally without the consideration of improper factors or prejudice about how they may look or where they find themselves stationed in life.  Below is a useful analogy that Gerry Spence made use in his criminal defense of Randy Weaver against the federal government in dealing with guilt by association:

A farmer had difficulty with a flock of crows plundering his crops. As a result, the farmer put up a large net high in the air to catch the offending crows as they flew over his fields filled with crops. At the end of the day, the farmer pulled down his net and among all the crows which had attacked his crops was a single white swan. The farmer pulled the birds off of the net one by one and wrung their necks to kill them.

When the farmer came to the swan, the swan cried out, “I’m just a swan! I’m not a crow! I was just flying by and got caught in your net.” The farmer responded, “Why you must be a crow, because I caught you in my net.”

The innocent swan died at the hands of the farmer that day because it was in the wrong place at the wrong time. The farmer assumed it was a crow even though the swan had done nothing wrong.

That’s what we call “guilt by association”. It has no place in our system of justice as it is proof of nothing. We all know that it’s wrong to jump to such a conclusion, but that’s what the other side has done here. And they are asking you now to do the same thing by finding my client “guilty by association”.

 

Another analogy that comes to mind from the bible is the following Parable of the Weeds used by Jesus in describing judgment day in Matthew 13:24-30 :

Jesus told them another parable: “The kingdom of heaven is like a man who sowed good seed in his field. 25 But while everyone was sleeping, his enemy came and sowed weeds among the wheat, and went away.  When the wheat sprouted and formed heads, then the weeds also appeared.

“The owner’s servants came to him and said, ‘Sir, didn’t you sow good seed in your field? Where then did the weeds come from?’

“‘An enemy did this,’ he replied.

“The servants asked him, ‘Do you want us to go and pull them up?’

“‘No,’ he answered, ‘because while you are pulling the weeds, you may uproot the wheat with them.  Let both grow together until the harvest. At that time, I will tell the harvesters: First collect the weeds and tie them in bundles to be burned; then gather the wheat and bring it into my barn.’”

Does not my client deserve the same consideration?  Shouldn’t he be judge based upon who he is and not who he is with or where he lives?

Statistics: Why Figures Don’t Lie, But Liars Figure…

stats
More and more, figures and statistical information finds it way into litigation, both criminal and civil. At some point in your career as an attorney you will need to understand what can and cannot be accomplished in utilizing statistics. Most laypersons and attorneys are ill-equipped to handle such information. Oftentimes experts can find refuge in statistics which may or may not be truly relevant to the legal issue you are confronting. As Mark Twain (a/k/a Samuel Clemons) famously noted:

“Figures don’t lie, but liars figure.”

Another often quoted quip is:

“There are three kinds of lies: lies, damn lies and statistics.”

In litigation, you will often hear someone argue that the odds of being injured in a particular fashion are so low that a jury should not compensate them. However, there is a real risk in engaging in such post hoc analysis. How would you feel for example, if the State of Indiana came into court refusing to pay the Lotto Jackpot on your winning ticket by arguing that you could not have won it because the odds of winning are one in seven million.

Another way to point this same principle out, is the fallacy of using statistics to explain away a plaintiff’s untimely and unexpected demise:

“Your honor and ladies and gentlemen of the jury. Research has established that 90% of individuals involved in similar accidents survive. Accordingly, we must conclude that in spite of the evidence of lack of respiration, heartbeat, and brain wave activity, and in spite of the unfortunate burial of the decedent, in my expert opinion I conclude that he did not really die, and therefore the plaintiff estate cannot recover.”

Even though this sort of logic is flawed to its core, such arguments regularly find their way into our justice system… sometimes with disastrous effect. In order to spot such problems, you need to read about statistics, understand their limitations and how they can be misused. In this regard I would recommend the following reading:

1. Trial by Mathematics: Precision and Ritual in the Legal Process by Laurence Tribe, Harvard Law Review, 1971. This is an informative law review article addressing this topic. Mr. Tribe was the law clerk who assisted a California justice in writing a seminal opinion in this area. The court reversed a criminal conviction where a prosecutor improperly used statistical arguments in a robbery case involving a multi-racial couple. People v. Collins, 438 P.2d 33, 36-37 (Cal. 1968). Tribe had a math degree from Harvard in addition to his J.D. This opinion is often cited by courts as a prime example of how statistics and “scientific” evidence can be misused and down right dangerous to the pursuit of justice.

2. Naked Statistics by Charles Wheelan. The author strips away the arcane and technical details and focuses on the underlying thinking that drives statistical analysis. The author also clarifies key concepts such as inference, correlation, and regression analysis, reveals how biased or careless parties can manipulate or misrepresent data. Memorable examples of problems with statistics are discussed as well.

3. Calculated Risks: How to Know When Numbers Deceive You by Gerd Gigerenzer. This book does exactly what the title infers, it shows you in a concrete fashion how faulty thinking leads to people drawing incorrect conclusions from statistics and data. One of the problems discussed in the book is the famous dilemma presented by the Monty Hall Let’s Make a Deal Problem.

4. Math on Trial: How Numbers Get Used and Abused in the Courtroom by Leila Schneps. This book reviews the facts and outcomes of ten trials spanning from the nineteenth century to the present day, in which mathematical arguments were used, abused and disastrously misused resulting in unjust outcomes.

5. Reference Manual on Scientific Evidence prepared by the Federal Judicial Center. This is a free handbook that covers a number of areas of science that regularly appear in federal courtrooms. This manual is utilized by the federal judiciary as a reference book and covers both the law and science underlying a number of disciplines including epidemiology which is statistically based. This is must reading for any trial attorney who is going to take on an expert in a courtroom. This manual is regularly updated as well.

6. A Systematic Approach to Clinical Determinations of Causation in Symptomatic Spinal Disk Injury Following Motor Vehicle Crash Trauma by Michael D. Freeman, PhD, MPH, DC, Christopher J. Centeno, MD, and Sean S. Kohles, PhD. is an article which critically examines the misuse of data and pseudo-science to undermine claims of personal injury in motor vehicle accidents by defense “experts” and studies conducted in this area of litigation. This article provides an excellent survey and critic of the literature dealing with medical causation in motor vehicle collisions.

This list of reading should be both interesting and informative to the trial attorney confronted with the use of statistics. Just as it is helpful to “think like a lawyer”, it is equally useful to “think like a statistician”. Remember, numbers don’t lie, but liars figure…

What to Do When They Call Your Client a Liar, a Fraud and a Cheat.

20140401-000813.jpgThe defense has enlisted the aid of a hired gun “expert” who insinuates or is going to testify that your client is a malingerer or a fraud. What can you do to address such tactics? Can you exclude the testimony? Should you address it head on or skirt the issue? Hopefully, this blog will offer some strategies to address this sort of tactic.

Motion in Limine

This is one approach that you could take. File a motion in limine to exclude such testimony. Indiana Rule of Evidence 704(b) provides:

Witnesses may not testify to opinions about intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.

In contrast, Indiana Rule of Evidence 608(a) provides:

Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

So how do you reconcile these two conflicting provisions? Well, Rule 704(b) applies to expert opinions, while Rule 608(a) deals with opinions of lay witnesses. The Federal counterpart to Indiana Rule of Evidence 704 is limited to criminal cases in instances where the mental state or sanity of the Defendant is at issue. This rule provides:

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

The advisory committee notes indicates that this limitation prevents experts from invading the province of the jury in criminal cases where sanity or the mens rea is at issue. The rule prevents a confusing “battle of the experts” and preserves the decision on the ultimate issue of state of mind for the jury, rather than leaving it in the hands of retained experts. The rule promotes reliability by preventing testimony on the legal connotations of a medical diagnosis, a role the American Psychiatric Association admits that psychiatrists are not qualified to fill.See United States v. Austin, 981 F.2d 1163, 1166 (10th Cir.1992); see also United States v. Wood, 207 F.3d 1222, 1236 (10th Cir.2000) (Rule 704(b) is intended to prevent “intrusion[s] into the province of the jury”). Another court has similarly written:

The theoretical effect of Rule 704(b) is to make it possible for juries to find a defendant not guilty by reason of insanity even if no expert would draw that same conclusion. Conversely, the rule also permits juries to find a defendant sane and guilty even if every expert would opine that the defendant was insane. The purpose of Rule 704(b) is to have jurors decide whether the defendant was sane or not without being told what conclusion an expert might draw. United States v. West, 962 F.2d 1243, 1247 (7th Cir.1992).

While there is not much in the way of case law in Indiana interpreting this provision, at least one jurist. See Sears Roebuck v. Manuilov, 742 N.E.2d 453 (Ind. 2001)(upholding admission of medical testimony under I.R.E. 702 establishing post-concussive syndrome). In his dissenting opinion, Justice Boehm stated:

“Dr. Blinder testified, among other things, that in his opinion Manuilov was not a malingerer. This opinion was not based on observation of physical symptoms or scientifically valid tests, but on Blinder’s observation of Manuilov’s behavior and accounts of that behavior furnished by Manuilov or his counsel. Among the latter was the assurance that Manuilov had no criminal history or anti-social behavior.

Blinder told the jury that Manuilov had no criminal history and suggested he was not a “wife beater.” These assumptions were explicitly made a basis of his view that Manuilov was not a malingerer. This was not challenged under Indiana Evidence Rule 704(b), which provides that a witness may not testify as to whether another “witness has testified truthfully,” so, to the extent this is an issue, it is not presented here.”
. [Emphasis Added].

It seems likely that if a timely objection is made under Indiana Evidence Rule 704(b) to testimony regarding expert opinions on malingering that it, would be sustained, in an effort to preserve the jury’s autonomy in assessing the credibility of witnesses and avoiding problems associated with a battle of the experts. This dissenting opinion of Justice Boehm is the only discussion I have located on this specific topic in any judicial opinion in The State of Indiana. In Morse v. Davis, 965 N.E.2d 148 (Ind. Ct. App. 2012), trans. denied., the Indiana Court of Appeals held that no witness, lay or expert, is competent to testify that another witness is or is not telling the truth.

The Direct Approach – Polarizing The Jury

The is an important book which provides a comprehensive approach to this problem and in fact fully embraces the issue and in fact welcomes a clear claim of malinger. The book is called “Polarizing the Jury“. by Rick Friedman. This book provides an innovative approach to trying cases. Too often we allow the defense in personal-injury cases to hide behind ambiguities and insinuate that our client is not being truthful. This book provides you with concrete examples to force your opponent to either embrace fully embrace the position; that your client is “a liar, a cheat and a fraud” or completely abandon this position.

The book provides a comprehensive approach to simplify your case, focus the jury’s attention and deal with a single coherent theme… Is my client telling truth about his or her injuries? At each stage in the proceedings the defense is forced to either clearly adopt the position that your client is “a liar, a cheat and a fraud” or clearly reject the position. The defense and it’s experts are forced through questioning or discovery to either adopt or reject this position.

The defense is not allowed to hide behind ambiguous positions or attack your client through innuendo or vague and insidious suggestions of doubt. The primary weapon to combat such experts and a defense are lay witnesses who can provide a clear before and after picture of changes in your client’s life by the defendant’s tortious acts. The issue in opening is framed as follows:

This is the person that they want you to believe is a liar, a cheat and a fraud.

You will hear a lot of witnesses and see a lot of evidence in this case. But in the end, there is really on what only one major issue you need to decide is my client a liar, a cheat, and a fraud?

That is the defense in this case.

If he is a liar, a cheat and a fraud, you should send him out of this courtroom without a cent. But if you decide he’s telling the truth, that he is truly injured, and the defense is attacking him in order to avoid paying for the harm they have caused, then your verdict needs to ensure that they do not profit from this tactic and you should consider what would be fair compensation for the injuries and losses my client has suffered and for the impact this collision and its impact on their relationship as husband and wife.

I strongly recommend that you obtain the book as it effectively helps you frame the issue in a fashion that it is understandable to a jury and combats the false doubts raised through the use of veiled attacks and innuendos against your client’s integrity and honesty.

Closing the Deal – Addressing the Attacks in Closing Argument
Here are some arguments to present to the jury in your rebuttal:

WHEN THE LAW & FACTS ARE AGAINST YOU: In law school they say if the facts are in your favor, argue facts, if law is in your favor, argue law, if neither law or facts are in your favor, argue like a lawyer and try to confuse the jury about what the case is really about. It’s the oldest trick in the book. The defense took a nice simple case that is straight forward and tried to make it complicated by pointing to a bunch things that really have nothing to do with the case’s merit, in hopes that you’ll forget what this case is really about.

Another argument to present to a defense request for the jury to make his arguments for him when he sits down as suggested by the noted Attorney Moe Levine:

Countless attorneys, skilled and persuasive each with their own acquired tricks to influence a jury by sowing the subtle seeds of cynicism. One of these is that when he sits down, he appoints you as his assistants and gives you permission to share with him the responsibility to represent his client in the jury room by answering each of my arguments to you. However, if this were truly the case, what need would there be to sum up at all? We would simply send you to the jury room and ask you to deliberate. This type of argument is not new to me. It is insidious and subtle. It ask you to take on the role of an advocate instead of that of a fair and impartial judge of the facts. Such comments subtly shape your view of the evidence. it moves you from a role where you are impartial, unbiased and neutral, to a role of where you act as an advocate for one side over the other. These techniques are subtle but effective.

When the defense attacks through the use of innuendos:

He attacks by innuendo asking how can we know what the evidence shows when my client says he is in pain from this collision. He has had problems before. How can this be different. This to is subtle because what he is really saying is my client is a liar and a cheat and a fraud. He won’t come right out and say because he knows such a statement is outrageous and unworthy of consideration. In fact it is insulting. Instead you subtly insinuate that something is not right, plant the seeds of cynicism and hope that back in the jury room they will sprout.

This flies in the face of the evidence presented. To buy into this argument you would have to conclude that:

A. If Their Goal Was Money: My client and his spouse have come into this Court and both lied. If this were about fraud would not you make greater claims? Wouldn’t you have run up unnecessary treatment? Would you be constantly complaining about your condition and claiming that your pain did not improve with treatment. Wouldn’t you do everything in your power to make you case more valuable. This has not occurred. My client has worked to get better and in fact has had periods of remission where his pain has improved even though it has never completely gone away.

B. Speculative and Unsupported Causes: He also has insinuated that something else must has caused his symptoms. He does this with evidence of any sort and again subtle plants the seeds of cynicism by asking questions and suggesting facts that no one has testified exist. It is undisputed that my client complained of symptoms at the scene and told the investigating police officer of this. The defense has no Doctor who has said such things. If the medical evidence is there, he could have hired an expert to say this is so. Instead of evidence, he has asked that you guess and speculate. This is not allowed.

Conclusion

I hope these strategies assist you in dealing with unfair attacks on your clients integrity.;

Jurors: Helping Them, Help You.

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“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
Thomas Jefferson to Thomas Paine, 1789.

Jurors… They are truly the heart and soul of our justice system. No invention known to man has a greater potential to add to the cause of justice than a jury. They represent a microcosm of democracy. All typically must agree on the outcome. There must be compromise and a degree of open-mindedness, if there is to be a resolution at all. Most arrive wishing they were somewhere else and leave transformed by the process of being asked, in the name of justice, to render a decision that will profoundly effect the lives of the litigants before them. Their collective intellect, wisdom and conscience is more powerful and productive of good than any single man sitting in judgment of another person’s actions or decisions. Under English law, jurors stood between the crown and it’s subjects. They acted as a check on tyranny by the crown against the people. The following analogy about the “Old Man, the Boy and the Bird” demonstrates a jury’s awesome power. I first saw this analogy recited years ago on “Sixty Minutes” by renowned trial lawyer, Gerry Spence. It is a fitting way to end a closing argument as Spence liked to do:

“I’m going to tell you a simple story, about a wise old man and a smartaleck young boy who wanted to show up the wise old man for a fool. The boy captured a little bird. He had the idea he would go to the wise old man with the bird in his hand and say, “What have I got in my hand?” And the old man would say, “Well, you have a bird, my son.” And he would say, “Wise old man, is the bird alive or is it dead?” The old man knew if he said, “It is dead,” the little boy would open his hand and the bird would fly away. If he said, “It is alive,” the boy would take the bird in his hand and crunch the life out of it and then open his hand and say, “See, it is dead.” So the boy went up to the wise old man and he said, “Wise old man, what do I have in my hand?” The old man said, “Why, it is a bird.” He said, “Wise old man, is it alive or is it dead?” And the wise old man said, “The bird is in your hands, my son.”

Distraction, Misdirection and the Art of Verbal Jujitsu.

Distraction, misdirection and appeals to prejudice are common tools of the defense. Ideally, you keep these improper arguments or evidence from the jury through the use of motions in limine. However, sometimes this is impossible to do. What do you do to keep the jury from being mislead or distracted by meaningless side issues? How about a little verbal jujitsu! “Jujitsu” is the oriental “art” of manipulating the opponent’s force against himself rather than confronting it with one’s own force. You can do this by verbal jujitsu using effective analogies and counter-arguments. Below are a few of my favorites analogies and arguments. I hope they help.

STREET LIGHT ANALOGY: One dark evening a woman was on her hands and knees under a street light looking through the grass. A man walking by stops and asked what she was looking for. “The keys to my car.” replied the woman. Having some time and feeling helpful, the man joined the woman in her search for her keys. After looking for quite awhile with no success, the man asked: “We have been looking for well over 15 minutes here. Are you sure this is where you were when you lost your keys?” “Why no, I lost them a couple blocks back over there by my car” the woman explains as she gestures back towards her car. The man puzzled, asks, “If you lost them a couple blocks back, why are you looking for them here?” The woman without keys responds: “Because the light’s so much better here!” That’s what’s the defense did here, even though the real issues are two blocks back…

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…

OCTOPUS ANALOGY: The defense is just like an octopus hiding behind a cloud of black ink, they try to obscure your view with their arguments and B.S. However, all you have to do is just move straight ahead through the ink and you can see the truth once again. Most octopi squirt thick clouds of black ink to confuse predators. However, a type of Tremoctopus, or blanket octopus (murasakidako in Japanese), employs a different technique. When threatened, the octopus unfurls a giant sheet of webbing that trails behind like a cape. The webbing breaks apart rather easily when attacked — much like a lizard’s tail — and it gets wrapped around the predator’s face, giving the octopus a chance to flee. The defense took a nice simple case that is straight forward and tried to make it complicated by muddying the waters with a bunch things that really have nothing to do with the case, in hopes that you’ll forget what this case is really about…

RED HERRING ANALOGY: A “red herring” is normally used by people to divert the attention of others from something important; from the central point that is being considered. A “herring” is a kind of fish that turns red only when it is “cured” – that is, when it is smoked and salted. Such a fish emits a very strong smell and in the past criminals made use of red herrings to help them in their bid to escape the authorities. Convicts used the herring to help them throw dogs off his scent. Since the herring had a very strong smell, the police dogs followed the scent of the herring and not that of the escaped convict! The original expression was “drag a red herring across the trail”, but now it’s been reduced to “red herring”. That’s what’s happened here…

AD HOMINEM ATTACK: An Ad Hominem attack falls into a general class of fallacies in which a claim or argument is rejected because of some irrelevant fact about the author of or the person presenting the claim or argument. The reason this sort of argument is fallacious is that the character, circumstances, or actions of a person do not (in most cases) have a bearing on the truth or falsity of the claim being made (or the quality of the argument being made). These sort of arguments appeal to prejudice and bias in hopes that you will ignore your sworn duty as jurors. They are wrongheaded and improper. Lady justice stands there holding the scales of justice blindfolded. Lady justice does not care if we are black or white, Christian or Moslem, male or female, rich or poor, married or divorced… Her sole concern is to fairly and impartially evaluated the evidence based upon the law. The defense’s personal attacks on my client have nothing to do with this case’s merits. It is bad enough that they have shamelessly injured my client, now they want to profit from insulting and degrading him in your eyes. These attacks have no bearing on what is a fair and just outcome given the facts and the law in this case which weigh heavily in favor of my client…

One book which has a number of great counter-arguments is Closing Arguments: The Last Battle. This book is a well-organized collection of miscellaneous arguments and analogies used to explain and illustrate various legal issues and address common defense attorney arguments and tactics used to undercut, confuse, distract or sidetrack juries from the central issues in a personal injury case.