Blog Archives
The Problem with Problems.
So 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 admit your problems and you don’t run away from them. 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.
Mastering the Rules of Evidence: Is it really important?
Early in my career, the “rules” of evidence were derived by reading case-law and the handful of statutes that addressed privilege and competence. If you wanted to know the “rules”, you had to research and read case-law. The only ready compendium were books like Graham’s Handbook on Federal Evidence. Today, litigators in every state and federal.court have a set of rules modeled after the ones used in federal courts.
If you want to master the rules, you need to read them through, beginning to end before every bench or jury trial. This will remind you of potential problems you need to address in you motions in limine, your exhibits and witnesses‘ testimony. You will spot problems with evidentiary proof you might otherwise overlook in your case and that of your opponent. You will better understand the policies behind the rules and the significance of the various sections of rules that deal with preliminary questions of fact, objections, offers to prove, judicial notice, relevancy, character evidence, impeachment, lay and expert witnesses, hearsay, authentication and alternate forms of proof approved for use at trial to prove a document’s content. Eventually, you will be able to cite the significant rules by number which will enhance your credibility with the judge and jury. It will also unsettle your opponent and inhibit his willingness to object to your questions, witnesses and exhibits since he won’t want to look bad in front of the jury by having his objection overruled. If you have a smart phone, there are applications that will contain the Rules of Evidence that you can readily reference such as Lawbox.
So get start today! It will increase you competence and your confidence in the courtroom.
The Barrister's Toolbox 