TRIAL TIP – FIND THE DASTARDLY DEED, THE MISSOURI TRIAL ATTORNEY, WINTER, 1999

By Timothy W. Monsees

tmonsees@monseesmayer.com

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I have followed this practice for years, but I never had a tag line for the strategy until my good friend and able trial lawyer Gene P. Graham, Jr. described the inevitable search for “the dastardly deed.” In short, and perhaps this is a bit cynical, trials in the minds of juries are less a search for the truth than they are an emotional search for the “bad guy.” The more we can do, as trial attorneys, to find and label the acts or omissions of the opponent as “dastardly,” the less the warts of our own client and case will affect the verdict.

I first came to this startling revelation years ago in what became a notable result in my then, young career. I represented a wonderful young man in a case in which he had fallen from his water-ski. Upon falling, the ski remained attached to his feet and pierced the parietal lobe of his skull, causing significant brain damage. Many, even after the verdict, questioned my sanity in accepting the case. However, we were fortunate to find the dastardly deed when the president of the defendant, an arrogant, sarcastic sort, testified as follows:

Q: How much would a warning on the ski telling users it was suitable for use only by expert skiers have cost?

A: 10 cents, minute.

Q: Why didn’t you put such a warning on this ski?

A: If I did, we wouldn’t sell very many skis.

Q: Excuse me? (Incredulous, but maintaining my poker face).

A: If someone reads that they may be injured or killed by using this ski, they may decide not to buy it.

Hence, the case became one about the callused, profit-motivated, keep-the-consumer-in-the-dark, arrogant, insensitive defendant, and my client, who fell from his ski, did not even receive comparative fault.

We are often taught in seminars and trial demonstrations, as plaintiff’s attorneys, to find a theme for our case. The more this theme can be directed at a “dastardly deed,” the better. I have felt for years that the best way to generate emotion in a trial is during cross-examination. Unfortunately, the plaintiff does not receive an opportunity to cross-examine until the second half of the trial. In a complex trial, this could be days or weeks into the presentation of evidence. That is too late.

Let’s face it, the most difficult and boring part of our presentations is direct examination. Absent trial aids, exhibits and a truly interesting witness, there is little that can be done to spice up your case with your own witnesses. While ultimately the jury must be persuaded that the facts favor your position, the juror’s willingness to accept your facts is heavily influenced by how they feel about you, your client and perhaps most importantly, how they feel about the other guy.

Here is my formula for trials. While anything but foolproof, the strategy has worked well for me. The basic approach is to find opportunities early and often in the trial to make the other side’s witnesses or position look sinister. I begin in voir dire.

Often times, trial attorneys are afraid to elicit in jury selection, opinions or comments that could prejudice their case. As an example, many shy away from questions about “tort reform,” apparently feeling it will welcome jurors to make adverse comments about the proliferation of frivolous lawsuits, including a pointed reminder about the “ridiculous” McDonald’s coffee verdict. Personally, I can’t wait for someone to mention the McDonald’s verdict. I use it as a soapbox to summarize for the panel members the insensitive nature of corporate America and give a synopsis of what the true evidence was in that infamous verdict. As another example, I once tried a product case in which the jury panel’s comments were so negative, I asked the judge to dismiss the panel at the conclusion of jury selection. Fortunately, the judge overruled my request. I had taken the opportunity to present 10-12 mini-summations of my evidence in response to negative comments. For instance, “Mr. panel member, would your view of this case be any different if I told you the product manufacturer had known for years about this defect, had been offered a solution to the defect by outside engineers, who had patented a safety device, but rejected the solution claiming that ‘safety doesn’t sell.'” In the end, we obtained a substantial verdict and weeded out those panel members who clearly would never have given credit to our case.

There is no such thing as “opening statement.” In my opening argument, through the use of inflection and emotion, I argue my case. One can do so without ever straying far from observing what “the evidence will be.” The first 3-5 minutes of every argument are a short, inflammatory characterization of the facts, including a statement of the dastardly deed. Many of us still introduce ourselves, followed by an explanation that “opening statement is not evidence.” I frankly do not care if the jury believes my opening argument is the word of the Almighty Himself. Why disparage the importance of your comments? The plaintiff gets the first word, and the last. If emotion is injected from the first comment, the jury’s willingness to listen to your case, while taking a guarded posture to defendant’s case, can powerfully affect the outcome.

I almost always call one or two of the defendant’s key witnesses early in my case-in-chief. In fact, more often than not, the defendant’s representative is the first witness I call. I do this even if the defendant is foolish enough to send a representative I have not deposed or who has no real connection to the case. That, in and of itself, becomes part of the focus of my self-serving examination of an adverse witness. Now you are in the position to lead or cross-examine the witness. Surprisingly few defense attorneys prepare the representative for the possibility he/she will be called as a witness early in the trial. Even fewer prepare the designated lackey for being called. This is a perfect opportunity to make the defendant look foolish and as if the defendant is trying to put one over on the jury by sending someone whom is unprepared. Self-serving examination about the duties and responsibilities of the defendant under circumstances similar to your case will likely be agreed to, or one can only hope, disagreed with.

Any defense witness who makes a particularly bad appearance should be called, even if the predicted testimony is hurtful. Assuming you can assign even one dastardly deed to the witness, none of the harmful testimony will be considered. In addition, while the testimony of the adverse witness may be harmful, the jury will hear the harmful testimony couched in words you choose. In other words, you get the first opportunity to put your spin on the adverse testimony before the defense attorney gets to present it the way that is the most damaging.

Rebuttal is the last great chance to play up dastardly deeds of defendants and their attorneys. Imagine, it is the only thing you will say in the trial to which there will be no response. Let the name calling begin!!! I never prepare anything for rebuttal. I rarely even take extensive notes of defense counsel’s closing argument. I listen only for one dumb or silly comment I can turn into a dastardly deed. The seemingly innocent argument that the plaintiff has requested too much money is often the perfect opportunity for self-righteous rebuttal. How convenient for the negligent defendant to denigrate the value of the plaintiff’s suffering! I once had a defense attorney tell the jury it would send a bad message to his client and to the defendant’s industry, if they were to find in favor of the plaintiff. This was the perfect excuse to spend my rebuttal talking about sending a message to the defendant that its actions would not be tolerated. While my argument would only have been proper in a punitive damage case, the argument of the defense attorney opened the door.

Dastardly deeds are easy to find and always present. Cases investigated by insurers or, thank-you God, independent adjusters, are the perfect feeding ground for dastardly deeds. Something as innocent as a photograph of the damage to a vehicle can produce such a deed. My friend Mr. Graham recently learned in a case that many adjusters actually attend classes on how to take photographs that cast the damage in a better light.

Spoliation of evidence is fertile ground for dastardly deeds. A couple of years ago, I tried an employment case in Kansas. My client was discharged for allegedly poor work performance, but she suspected in the months preceding her termination that her supervisor, who had sexually harassed her, was sabotaging her work product in retaliation for a discrimination complaint she had filed against him. To protect herself, my client made copies of her work product and kept them in a file cabinet in her office. Upon discharge, she was given the direct escort out of her office and not allowed to take even her personal effects. Of course, none of the documents she had saved in her office were ever produced, and while defense counsel claimed no one had access to the records, a memorandum from the offending supervisor indicated he had been in my client’s office going through her files the day after she was fired.

In sum, dastardly deeds create negative emotion against the defendant. Nothing escalates a verdict like anger. This is not to say one should ignore generating positive sentiment for the client. Look for the deed beyond the basic facts of the case; in the investigation, the trial tactics of the defense attorney, the personality of the defense witnesses, etc. It is your opportunity to play Dudley Do-Right to the defendant’s Snidely Whiplash.