TRIAL TIPS (OR LESSONS LEARNED THE HARD WAY!)

By Richard C. Miller

rmiller@monseesmayer.com

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We learn by doing. Each of us have had the experience of learning by our own mistakes both in trial and otherwise. The following comments are mostly things I have learned the hard way. Some involve lessons I have learned from opposing counsel, either at their expense or at mine. The one thing I know for certain is that I have a lot more to learn, and only experience will teach me. So as you read this article, borrow a few ideas out that might fit with your style of trying a law suit and see if they work. That is all you will be able to remember until you have the opportunity to learn the hard way again.

Prescience, planning and preparation—the three p’s—my biggest failure as a trial attorney is not following this advice. All of us who do this line of work are fairly smart people, but we are constrained by time. I have heard a well-known trial attorney in Southwest Missouri describe his practice of closing the door, turning off the light and stopping all calls to just think about his case. When was the last time you did this? Were you ever able to do this? You and I know that the Plaintiff’s practice is a constant struggle between handling enough cases to earn income while at the same time moving those cases toward trial. I have come to believe that the solution for those who are able is to gradually improve the quality of cases you handle while at the same time reducing the quantity, so you have the luxury of retreating from the world to think. If you can do that, particularly at the start of a case, and plan how to litigate it, trial will be relatively easy. Here are some ideas that I use pre-trial, which make trial that much easier:

Major Concepts

1. Prepare for canned depositions just like you would for trial. Although you can edit a videotaped deposition, the end result still needs to have the same tenor that you would strive to achieve in a direct or cross-examination at trial. And do not forget to use all available technology which these days is quite a bit, because that is what jurors are used to. The most effective videotaped deposition I was ever involved with was done in the early 90s with a product called Invizn, which was a lunch box-sized computer with a CD Rom player that enabled us to display documents to the witness during the deposition, highlighting them in the same way John Madden draws NFL diagrams. The kicker was that the deposition was only half the presentation in that we also displayed the documents on a split screen. So at the same time the witness was dodging the bullet, the jury was watching the bullets that got him. The effect of this presentation on defense counsel was astounding in that his entire conduct changed from one of delay and obfuscation to telling his witness to hurry-up and answer so we could move on, thereby getting the damaging document off the video screen.

An additional feature to this system was the bar coding of documents so that instead of looking through boxes of records for the right piece of paper, the document could be displayed on the screen with a wave of the magic light wand. As a result, the witness never caught-up with the questions, we controlled the pace of the deposition and got some damaging admissions. Not so coincidentally, these videotapes which happen to be of the company president, were the first ones we played at trial, the trial result was the best ever achieved in one of my cases, and that Defendant has never tried a case against us since that time. The defense Counsel was so impressed with our system that he went out and bought one for his firm immediately after the deposition, despite the then cost of over $15,000.

A few comments are in order, the first being that technology has advanced to the point that this same system is available today for only a few thousand dollars, if that. Furthermore, we elected to “edit” the two feeds together on one analog videotape at the same time we were conducting the deposition, which locked in the end product but eliminated any claim by the defendant that we manipulated the evidence later by emphasizing certain documents or testimony after the fact. In the future, I would probably take that risk and run two separate tapes to be edited together on a same time basis later on, deciding at that time whether to emphasize the deponent, the document or give them equal weight. The beauty of a canned deposition, whether it’s the company president, a treating doctor or a number of OSI (or other similar incident) witnesses is the fact that in the heat of trial, they give you a breather. While they are played, you can catch up from the last witness, prepare for the next witness or just watch the jurors’ reaction to your evidence.

2. Is it live or is it Memorex? In my younger, certainly dumber and probably bolder days, I took the chance in a federal court case in Alaska of having my expert duplicate the cause of the accident “live” in front of the jury. Perhaps I did not realize the effect failure would have had on the case, but fortunately I did not have to face that consequence. He performed admirably, causing the defective rifle to malfunction each of three ways he predicted by placing a shim in different parts of the fire control system to show the effect of contaminants only slightly larger that the width of a human hair. Since then, discretion has been the better part of valor and whatever accident recreation evidence I present is done by way of videotape, which frankly loses some of its luster. In the right case, perhaps a desperate one, I would probably still resort to a live demonstration, but in most instances, it’s better to be safe than sorry.

3. Jurors these days are big believers in personal responsibility, whether they exercise it or not. I believe the major psychological effect of tort reform has been to convince the general public that people who file lawsuits refuse to accept personal responsibility for their situation, sometimes regardless of the facts. This pervasive sentiment must be addressed in opening, dealt with throughout the case, and turned around in closing. I think there are two key elements to your response. First, admit that a lawsuit is about responsibility, but remind the jury that there are at least two parties in the courtroom and each has their own various duties and responsibilities. Turn the argument around by asking the jury if it believes a defendant also has responsibilities to the plaintiff and the general public and then challenge the defendant to own up to its own fault for the accident. If it does not, the jury is in a position to make sure that failure to admit fault will so result in serious adverse consequences. At the same time, the plaintiff must own up to his or her responsibility for the accident or all credibility will be lost. Certainly there are those unique cases in which the plaintiff is totally devoid of fault, but they are few and far between. In most cases, the plaintiff can make some tacit admissions without risking significant comparative fault. Some reduction in damages due to comparative fault is better than none at all.

But of course you must have a defendant who is at least partially at fault for the accident before this approach works, as without a liable defendant you have no case at all anyway. To borrow a phrase from my partner Tim Monsees, you must “find the dastardly deed.” Not only must you find it, but you must flaunt it. From the outset of a case the focus should always be on the defendant’s conduct rather than the plaintiff’s. One of the best ways to do this, but also dangerous, is to begin your case and in chief with an adverse witness. Usually this is a company representative but sometimes it may also be the other side’s expert. I call this “tarnishing the witness,” in that your goal is to create doubt about the witnesses, and hence, his company’s credibility. Since the witness is adverse, you will end up with leading questions in cross-examination, but should begin with a direct examination to lay the foundation. One way of avoiding being skewered by a good witness at the start of your case is to play an edited videotape of the depositions of various defense witnesses, but realize that the defendant then has the right to play rebuttal testimony. Sometimes this is enough to establish the dastardly deed, but nothing beats a live witness as a target if you have the ammunition.

Once you have established a benchmark of personal responsibility, admitted your client’s own fault, and emphasized the “dastardly deeds” of the defendant, it is time to watch them squirm. I have yet to come across a defendant that will actually admit fault to any significant degree, although they may choose not to offer any contradictory evidence on certain aspects of your claims. This is a tacit admission of responsibility which you can use in closing argument. The approach in closing is something akin to “we showed you ours, but you didn’t show us yours.” In effect, the plaintiff has confessed his or her minor sins, but the defendant refuses to even enter the confessional. It has no faith, and therefore must be converted and sometimes even punished by the jury. This underlying religious theme of “sin and redemption” allows the jury to forgive the plaintiff while at the same time holding the defendant responsible for its atheism.

4. I have done a number of trials “on the road” as I call it in jurisdictions as disparate as Anchorage, Alaska and Eagle Pass, Texas. The first lesson I learned is that your selection of local counsel is always important and in some jurisdictions, absolutely critical. In Duvall County, Texas, we made the mistake one time of hiring the County Prosecutor thinking that as an elected official we could no better. The defendant, however, knew better and hired a former U.S. Attorney who happened to be the godfather of the Judge’s son as well as a local boy who made good, even better than the Prosecutor. Duvall County, Texas, as you might remember, is where a significant number of dead people voted in Lyndon Johnson’s initial congressional campaign to carry him over the threshold of a narrow victory. In that county, it was definitely not just what you knew, but who you knew and had on your side—we had in effect been trumped.

Another rule of handling cases in other jurisdictions is to get to know they way people think and what is on their minds at the time of trial. The directions to Eagle Pass, Texas, are fly to San Antonio, rent a car, turn right and drive for three and a half hours to the middle of nowhere. I had never been to Eagle Pass until we drove there a few days before trial and the first thing I noticed on the main highway leading into town was a large billboard put up by “Texans Against Lawsuit Abuse.” I do not remember the text, but Texas was in the throws of a radical change from one of the better plaintiffs’ jurisdictions to now one of the worst. Fortunately, South Texas in the Rio Grande Valley and along the Mexican border did not change as quickly and we were able to overcome this prominent advertising with facts. Be sure to buy the local paper every morning or if you are going to be in town for a while, subscribe to it. When you go to a restaurant to eat, talk to the waiter or waitress and other patrons in general, letting them know why you are there, but of course do not discuss the facts of the case. In small towns a dose of friendliness goes a long way. In larger cities, you at least get an idea of the way people think, which can be quite different from us in the Midwest. Continue these practices throughout trial as you are an ambassador for your client and want to be well received.

Minor Points

1. Draft your petition or complaint so that the Defendants are named in the order you want them to present evidence and examine witnesses, as the style of the case often controls in what order the judge directs the parties to participate.

2. From the early days when I did defense work, remember the conciliatory effect of a well-pled counter-claim. One of the first cases I tried was the defense of a breach of contract claim in which I pled a counter-claim alleging the breach in reverse and tried the matter as a Plaintiff’s case. The jury does not always know or understand the significance of a title “Plaintiff” or “Defendant,” particularly if you don’t use them.

3. Start a witness list and exhibit the day you open the file and organize your trial files to collect and organize evidence regarding each such witness or exhibit. Then make sure you have a good paralegal who has the time to keep it up.

4. Lawyers tend these days to emphasize visual evidence because with television, the internet, movies, etc. that is the most familiar way jurors receive information. However, most cases have an audible aspect to them which if “played” at the right time can have a significant on the case. The best example I can give came out of a trial in Springfield against a well-known defense attorney who was way ahead of me throughout most of the trial. One of the things he did fifteen years ago which I remember to this day is take the motorcycle helmet my client was wearing at the time if the accident and crack it sharply against the bar in from of the judge’s bench. At the same time he did so, he was making the point that my client died immediately after being thrown from the motorcycle when her head hit the pavement. Unfortunately, my case depended on being able to prove that my client died instead when a car that came along a few minutes later ran over her. As soon as I heard the crack of the helmet, I knew that it was the death knell for my theory and I was left with a verdict against the uninsured motorist that had knocked her off the motorcycle in the first place.

5. Always, I emphasize always, did I forget to say always, use a damages chart. This chart should be admitted in to evidence so that the jury can take it with them to consult and review during deliberations. The chart should lay out all damage elements from medical expenses, lost income and other economic damages to pain and suffering, both past and future. Of course the chart must be supported by the evidence in the record. The best example I can give is a case in which we provided these damages figures to the jury, mentioned them in closing argument, but failed to write them down so the jury would remember. Under Alaska law, the jury awards damages in specific categories, and while the verdict was certainly sufficient, we only received damages in one of those categories. We were not permitted to talk to the jurors after the trial, but I think we could have done substantially better if the jury had an exhibit with specific damage figures to fill out the special verdict form. Remember you only get what you ask for, and usually not that much as jurors tend to find some middle ground in order to reach a consensus.

6. On the other hand, I learned the opposite example in case I recently tried in which we did everything right, including presenting specific categories of damages with dollar amounts supported by the evidence. However, we simply asked for too much in a county that was known for giving too little. While I firmly believe that our client’s injuries supported the damages requested, the jury did not perceive it that way. Instead, they believed we had over-reached and as a result lost credibility with them, although we later learned that this was not the controlling factor as the case was decided on a liability issue.

7. Be careful when you poll a jury. This is one lesson I learned at the expense of another counsel. After returning a plaintiff’s verdict for a significant amount of actual damage, the defense counsel asked the court to poll the jury only to find that in fact there were not enough jurors in support of the verdict despite their signatures on the verdict form. To our dismay, the judge sent the jury back for further deliberation, but we were pleasantly surprised with the result when they came back with the same verdict in actual damages plus even more in punitive damages which had not been awarded the first time, and the verdict was unanimous. Defense counsel had questioned the integrity of the jury and they decided to teach him a lesson. Of course if you lose as a plaintiff, there is no harm in polling the jury as you can do no worse.