Avoid Clichés and "Static" from Crossing Your Lips and Leaving Your Mouth During Trial

When I try a case, I never tell my jury during voir dire or opening statement to withhold judgment until they’ve listened to all the facts of our case or opposing counsel’s case.

I never tell my jury that what I’m about to discuss with them during voir dire or opening is not evidence.

I never waste the time of my jury telling them a trial is like a picture puzzle. That they will not understand what picture is on the box until all the pieces are all put into place towards the end of the trial.

I don’t thank the jury during opening statement for their anticipated interest (most of the time they’re not that interested). I know it. They know it. So why say it?

I rarely tell my jury during opening that the outcome is important to everyone involved in the trial.

Here’s why.

If you make the above statements, you’re wasting time and speaking with a level of self-importance to a group of people that don’t know who you are and frankly, are not that interested in what you want.

The fact of the matter is that until the jury hears and sees the facts for themselves and is able to judge the true purpose and credibility of the witnesses, they are not going to be that interested in “what you think” or buy into your proposition that the case is “important to everyone in the courtroom.”

Bottom line, don’t waste valuable time during voir dire and opening statement using clichés. Avoid loosing credibility by expecting someone you’ve never met before to place a level of importance on a fact or outcome of a trial they probably didn’t even know about until earlier that day or week.

After the evidence has been presented and after your jury “gets it”, that’s when you can and should step up and demand justice. Once your jury is on your side and you’ve empowered them to take action, that’s when you can ask— that’s when THEY want you to ask them-- to send a message out to the community about fairness and justice.

Good Trial Attorneys Keep Complicated Concepts Simple and Easy To Understand

Let's say you're representing a plaintiff in an insurance bad faith case. Your case involves the insurance company failing to timely and properly investigate and settle your client's case pursuant to California Insurance Code Section 790.03.

One approach I've seen some lawyers take is to blow up this code section and spend the entire trial going through each word and sentence.

Here's just part of Section 790.03 of the California Insurance Code. It's complicated, long, and goes like this...
__________

The following are hereby defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance.

(h) Knowingly committing or performing with such frequency as to indicate a general business practice any of the following unfair claims settlement practices:

(1) Misrepresenting to claimants pertinent facts or insurance policy provisions relating to any coverages at issue.

(2) Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies.

(3) Failing to adopt and implement reasonable standards for the prompt investigation and processing of claims arising under insurance policies.

(4) Failing to affirm or deny coverage of claims within a reasonable time after proof of loss requirements have been completed and submitted by the insured.

(5) Not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.

(6) Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by the insureds, when the insureds have made claims for amounts reasonably similar to the amounts ultimately recovered.

(7) Attempting to settle a claim by an insured for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application... (bla, bla, bla)
__________

Kind of confusing stuff-- especially to a group of people like your jurors who don't deal with these concepts and issues on a daily basis. Because many defense attorneys will spend most of their time during trial arguing that these type of code sections are complex and ambiguous, the last thing you really want to do is make the defense attorney look like he knows what he's talking about.

What's your alternative?

What we've always done in complicated cases is to keep the issues simple and straightforward. Months before trial, we'll sit down and figure out the best way to simplify the issues so that our jury will understand and appreciate what we are taking about.

In the bad faith case example, rather than slowly going through Section 790.03 ad nauseam, you might instead put up a diagram or overhead that reads something like this...

"An insurance company must always treat its insured fairly and in good faith"

or maybe...

"The insurance company must always thoroughly investigate the claim"

Depending on which section of 790.03 is at issue, you can probably find 4-8 short single sentence rules or principles you can create and use that will (1) explain the concept in everyday terms and (2) make so much common sense that it will be impossible for the defendant to argue otherwise.

When asking questions to witnesses or talking to a jury in opening or closing, try to keep concepts, issues, laws, and rules simple and easy to understand. Rather than blowing up an entire statute or jury instruction, instead use several easy to understand simplified single sentences.

Handle complicated issues this way and not only will your jury understand what you're talking about, they'll also be able to easily discuss the issues during deliberations and rule in your favor.

You Never Know What’s Going to Happen at Trial- Stay alert, focused, and on your toes at all times!

Earlier this week, Cormac Carney, an outstanding Federal Judge with impeccable credentials, set aside an earlier guilty plea by Orange County billionaire, Henry Samueli, of lying to the SEC under oath relative to the “Broadcom Cases”. If you recall, Samueli, is one of the founders of Broadcom and an owner of the Anaheim Mighty Ducks.

Now here’s the kicker…

The only reason Samueli was in court was to testify as a witness for the defense of William J. Ruehle, an ex-Broadcom executive. This was not Samueli’s trial and his case was not on calendar before Judge Carney. [For those of you who are interested, the underlying issues against Samueli, Ruehle and Nicholas (the other co-founder) involve the alleged conspiracy by Broadcom executives to grant stock options in an illegal way.]

In this case, after issues of possible prosecutorial misconduct surfaced and, after Samueli testified from the witness stand, Judge Carney excused the jury and while Samueli was stepping down from the witness stand, asked Samueli to the courtroom lectern. The judge then set aside an earlier 2008 guilty plea by Samueli of lying to the SEC under oath.

Judge Carney is a friend and I’ve never met a more qualified, intellectual, objective and fair minded judge. He’s considered by many as being the “best of the best”. He did what he felt was right under the law, the facts, and these unique set of circumstances. This takes courage and I applaud him for his actions.

I think Samueli said it best when, in response to Judge Carney’s order, he called Judge Carney a “wise man,” and told him he had restored his faith in the criminal justice system. I couldn’t agree more!

The point of this particular post is to remind every trial lawyer out there to always be ready for the unexpected. You never know what’s going to happen in your trial. When it comes to the unknown, don’t be afraid to aim for the sky and shoot for the stars. Sometimes, good things happen to good people.

Practice and do business with integrity, focus, honesty and diligence. Help others on a daily basis. Remind your family, friends, and clients to do the same.

Have a fantastic weekend and make today your masterpiece!

Tattoos and Jury Trials- Sometimes the less the jury knows the better

This week a Florida judge ordered the state to pay for a cosmetologist to apply makeup before trial each day to cover up the tattoos on a criminal defendant charged with crimes. The tattoos were of a swastika, barbed wire and an obscene word on a neo-Nazi gang member's face and neck.

Without going into whether or not this judge made the right call, the story did remind me of the importance of obtaining pre-trial motions in limine preventing opposing counsel from referencing tattoos on the body of your client or key witnesses.

For many, tattoos are now a mainstream way of expressing oneself. To others, they continue to come across as offensive and reflective of someone having a bad attitude or being from the “wrong side of the tracks.” The problem with selecting a jury is that in most instances, you simply don’t know how your jurors will feel about tattoos.

Many years ago I had the pleasure of representing a wonderful woman who was seriously injured when a piece of heavy equipment fell over on her lower leg. She suffered permanent nerve damage in her ankle.

Prior to the injury, she had a colorful blue, black and red butterfly tattooed on the outside of the same ankle. Frankly, the tattoo didn’t match up with the favorable impression my client would normally give to others and I was worried that the defense attorney would try to somehow use the existence of the tattoo against my client.

To avoid any problems, we brought a pre-trial motion in limine to prevent anyone from directly or indirectly mentioning the tattoo. The motion was granted.

During trial, our client placed a medium size band aid over the tattoo. The tattoo was never mentioned and the trial went to verdict without any unnecessary and unexpected tattoo issues.

In another case, our client’s son was tragically killed by the defendant’s employees. The decedent had several tattoos on his body that one or more jurors might incorrectly interpret as gang slogans. In truth, he obtained the tattoos while in the Navy serving his country.

Again, we brought a pre-trial motion to prevent the defendant and its witnesses from mentioning the tattoos. The defendant actually spent a great deal of time and effort trying to oppose our motion. Why? Because it wanted to stereo type the decedent and paint him in an unfavorable light before the jury.

Because the tattoos were not relevant to any issue in our case, the court granted our motion and also expanded its order to include redacting any mention of the tattoos from the autopsy report and diagrams.

Would the disclosure of the tattoos on the decedent had made any difference in the outcome of our case? I don’t know. With so much at stake, I didn’t see any reason to take a chance.

Generally speaking, be smart and conservative concerning the tattoo issue. Sure, there will be exceptions but in most instances, do what you can to keep their existence from your jury.

When Asking a “Yes” or “No” Question, Make Sure to Get a “Yes” or “No” Answer

Many times when conducting direct or cross examination, a witness will answer a yes or no question with “Okay” or give you a narrative response. The problem with letting a witness get away with this is that it unnecessarily convolutes the meaning of the answer to your question. Allowing this to happen can also come across as though the witness, and not you, is in control.

For example:

Q: In the police report dated December of last year, you admitted to running the red light?

A: Okay.

Correct this as follows…

Q: By “Okay” you mean “yes”?

A: Yes.

Or

Q: In the police report dated December of last year, you admitted to running the red light?

A: I was trying to avoid hitting a raccoon that was crossing the road and didn’t see the light.

Correct as follows…

Q: Sir. This is a question that can easily be answered “yes or “no”. “Yes” or “no”, did you admit to running a red light in the official police report dated December 25, 2007?

A: Yes.

Not a big difference but an important one. This is especially true during the course of a long trial.

The same idea applies when a witness gives you a non-verbal response such as shaking his head up and down when giving a “yes” answer.

Q: In the police report dated December of last year, you admitted to running the red light?

A: Witness shakes head up and down for a “yes”.

Correct this as follows…

Q: Your answer is “yes”?

A: Yes.

Requiring witnesses to provide you with precise answers to questions, especially on important issues, will allow you to take control of a witness and give you credibility to the jury. Your jury will quickly understand that you want them to hear a specific detailed answer. You want to be up front and provide the jury with all the details. This will go a long ways towards gaining credibility with your jury and obtaining a favorable verdict for your client.

Want to Win Your Case? Try Caring For Your Client

Good trial lawyers, and I mean really good trial lawyers, have a true passion for their clients. They care about their clients and they care about what happens in the trial.

Have you ever watched a lawyer during trial who simply seemed to be going through the motions? Someone who was almost robotic in the way he acted towards the judge, opposing counsel, and his own client. Think about it. Did you really care that much about his case or what happened to his client?

Look, if you don't care about your own client, why should a jury?

Be involved in your case and sincerely care about your client. In return, a jury will care about the verdict they have been asked to render in your favor.

Use Repetition on Direct or Cross To Make Your Point During Trial

Repetition on direct or cross-examination will help you make your point during trial. Here's an easy way to use this approach without being hit with "asked and answered" objections from opposing counsel.

Use outlines to repeat witnesses' testimony. This includes expert witnesses. Use a chalkboard to write an outline, chart or diagram based upon the testimony that is being given by the witness.

Commercial artist can make powerful and persuasive outlines, diagrams or PowerPoint presentations you can place or project directly in front of your jury. Either during the witnesses testimony or afterwards, use the chalkboard or professionally prepared diagram to highlight or summarize the key issues or facts of your case.

The jury will have been exposed not only to the facts offered orally by the witness, but the exposure will be repeated by your use of the displayed chalkboard or diagram. Even if you simply write down the key facts or issues on the diagram without further referencing them, you'll visibly hammer home the points and issues. This is especially true if opposing counsel allows the display to remain after the witness leaves the stand.

By the way, I've had opposing counsel leave up an enlarged photograph of the decedent that I used earlier during my closing argument. During his entire closing, my clients' deceased son was looking over defense counsel's shoulder while he spoke to the jury. What a big mistake by opposing counsel!

Never be in to much of a hurry to take down an exhibit or to erase a chalkboard. Leave it alone and it's possible that the dynamics of trial will allow it to be displayed to the jury for the remainder of the session or day.

When using this repetition tool, I think the better practice is to use the chalkboard or diagram to summarize or present, in a slightly different manner, the same important facts or issues you earlier asked the witness about. Either way, using the approach will allow you to repeat key fact or issues and help make your direct or cross come alive and much more compelling.

A similar, but slightly different approach, focusing on expert witness testimony was also discussed in our blog at...

http://triallawyertips.blogspot.com/2009/12/emphasize-expert-testimony-and-exhibits.html

Screw it, Just Do It. Take Your Case to Trial!

In his book, "Screw it, Let's Do It", Richard Branson shares 14 life lessons on making it to the top while having fun at the same time. Richard's inspirational adages will not only help you become a better trial lawyer, but also a better business man and person along the way.

Now, you're probably asking yourself, "What in the heck does Branson know about being a trial lawyer?" Good question and frankly, I don't know the answer.

What I do know is that I've always shared Branson's approach to life. I can confidently report that this single characteristic of my personality has allowed me to really enjoy life and when it comes to law, to get some very satisfying results for my clients during settlement, mediation, and trial.

I'll probably take some heat from this blog post but I firmly believe that because of the way most lawyers are taught in law school, any desire and big dreams most of us have to roll the dice in life is slowly, over time, muzzled by our professors and the way law is taught and practiced. After all, we're instructed to consider all alternatives and options when giving legal advice and making decisions. The risk of the unknown is bad and the security of a safe bet is good.

And while in general, that approach to practicing law is probably a good thing for all involved, I see many lawyers taking this concept too far and settling their cases for pennies on the dollar. After talking with these lawyers, I've found that they are worried about being hit with a defense verdict or about all of the complicated and sometimes expensive "challenges" that take place preparing for and during a trial.

Most of us who have consistently had big settlements, arbitration awards and jury verdicts have found ourselves answering ready for trial simply because we were unwilling to recommend to our client to take less than what they were entitled to under the law. During the course of our representation, we developed a level of respect with our clients such that after explaining the pros and cons of rejecting an offer and trying the case, the client's eventually response is, "I trust you. Whatever you think is best."

You see, for most of the really good trial attorneys, it's not really about the money. It's about what is right and wrong. I know for a fact that this is what truly motivates me. Making sure a client has his or her day in court and doing everything I can to make it a successful experience.

Most successful plaintiff trial attorneys, not all but most, have this certain internal swagger about them. An attitude that they will fight for what is right regardless of the downside risk. Right is right and wrong is wrong. It's as simple at that.

They are not afraid to go against the odds and trust a jury of their peers with making the right decision and rendering a meaningful verdict.

I honestly believe that jurors pick up on this internal trust that these lawyers have in them. Jurors will actually look forward to stepping up and doing the right thing. Most have figured out by the end of the trial that both you and your client are reasonable people and wouldn't be here if it could have been avoided or if it wasn't the right thing to do.

Attitude is everything in life and sometimes, when trying to find justice for a client, you both need to step up and shout, "Screw it, Let's Do It!"

Be Professional and Considerate at all Times to the Clerk, Court, Your Jury, and Opposing Counsel

Today's blog post is simple and straightforward. It is also one of the most important things you need to understand and do if you want to be an effective trial lawyer.

Always treat everyone in the courtroom with respect. Be professional and considerate at all times. Is this easy to do? Of course not. Sometimes a judge or opposing counsel with a chip on his shoulder can be difficult to deal with. At other times, the answers you hear from a witness may make you want to verbally (and sometimes physically) slap him up side the face. Don't do it!

Effective and well respected trial lawyers in your community think long-term. They learned a long time ago that their reputation means everything. They also understand that a judge and jury will respect a lawyer that is professional at all times.

Work hard to always be firm, aggressive, and a strong advocate for your client. At the same time, be a professional and do it with class.

Emphasize Expert Testimony and Exhibits Using This Technique

Rather than simply having your expert take the stand and testify to an important set of facts or issues while at the same time, referring to various exhibits, try mixing things up a bit using this technique. If done correctly, this approach will help you make a big impact on a particular set of facts or issues you need to emphasize to your jury.

Without using the exhibits, ask your expert questions about the facts or issues. Take your time and allow your expert to establish credibility with the jury.

Next, have the expert walk over to his exhibit and having him use the exhibit, ask him to show the jury exactly what you are talking about by asking him a similar set of questions. Slightly vary your questions to avoid being interrupted by (an improper) "asked and answered" objection.

Think about this for a second. Your expert is now showing the jury and explaining to the jury a fact or opinion using the exhibit. He's not answering a previously asked question. He's doing a completely different task and explaining and discussing an exhibit. He's SHOWING the jury something rather than simply answering your question. The testimony is in fact different and useful. At the same time, this is a powerful way to hammer home certain facts in a case.

You may only want to use this approach once or twice in an arbitration or trial. And for maximum impact, you will only focus on a limited set of important facts or issues. The remainder of your experts testimony will involve the normal procedure of questions and answers asked at the same time the expert is referring to his exhibit.

Use this approach to shake things up a bit. Try it a couple of times and you'll see just how much more effective direct examination of an expert can be.