trial of a negligence case
TRANSCRIPT
Colin E. Kaufman Greenhill Partners, PC 555 Fifth Avenue New York, NY 10017 Tel: (212) 661-5500 Fax: (212) 661-5509 e-mail: [email protected]
Lorman Educational Services Trial of a Negligence Case in New York
August 13, 2004
Introduction
EVERYTHING COUNTS “A trial is still an ordeal by battle. For the broadsword there is the weight of evidence; for the battle-ax the force of logic; for the sharp spear, the blazing gleam of truth; for the rapier, the quick and flashing knife of wit.” Lloyd Paul Stryker "Strike from the void." A Book of Five Rings, Miyamoto Musashi. “Either do not attempt at all, or go through with it.” Ovid "Do or do not. There is no try." Yoda © Colin E. Kaufman 2004
-2-
Colin E. Kaufman Colin Kaufman is a member of Greenhill Partners, PC, a firm primarily involved
in defense litigation. He has tried well over a hundred and fifty jury cases to verdict in
state and federal courts.
After two years in the US Army Military Police during the Vietnam War,
Kaufman became a Special Investigator and then Senior Investigator with the Office of
the New York State Special Prosecutor investigating corruption in the New York City
criminal justice system. During his tenure there as head of the Intelligence Unit,
Kaufman went to Fordham Law School, graduating in 1978. He became an Assistant
District Attorney in the Office of the District Attorney of Westchester County. He tried
his first jury case four days after starting. Kaufman spent nine years at the DA’s Office,
leaving for private practice after two years as Chief of the General Trial Bureau and
seven years of trying felony cases.
Kaufman is a graduate of the National Association of District Attorneys Career
Prosecutor Course and has taught investigative and trial-related topics for the New York
State Division of Criminal Justice Services, The Westchester District Attorneys Office,
the New York State Special Prosecutor’s Office, the New York State Bureau of
Municipal Police Training School and Lorman Educational Services.
Kaufman has tried cases both as negligence plaintiff and defendant, will contests,
products liability cases, contract cases and many other areas. Kaufman has tried about
forty murder and other Class A felony cases and dozens of other criminal felony
prosecutions. Kaufman was winning plaintiff’s counsel in the first case tried to verdict
under the United Nations Convention on the International Sale of Goods.
-3-
Introductory Material
Ideally, a negligence trial is an exposition of the truth of a historical event under
the rules of evidence, which explores both the causes of the event, the occurrence itself
and the damages that proximately result from the event. The job of the trial lawyer is to
ensure that the facts are presented in the way most favorable to his or her client and to
assist the trier of fact in arriving at the conclusions from the evidence most advantageous
to the client.
The goal of this course is to give the novice trial lawyer or one who has tried only
a few jury cases a grounding in the basics of trial procedure, trial preparation and
effective advocacy. To do so, we will explore strategies which other lawyers have found
to be useful. Participants will also have an opportunity to use what we discuss in “live
fire” exercises, which we can then critique.
It is important to remember that you, as a trial lawyer, must be reasonably
comfortable in what you are doing. Your comfort level will increase with every case you
try and with every trial practice course you take. Except perhaps for the gifted few, trial
work is something learned through instruction, very hard work and experience.
“Everybody is ignorant, only on different subjects.” Will Rogers “By three methods we may learn wisdom: First, by reflection, which is noblest; Second, by imitation, which is easiest; and third by experience, which is the bitterest.” Confucius
-4-
Become a Trial Dog Trial work is a skill developed by experience. You cannot get that experience
except in the courtroom. Become the trial lawyer in your office. Take every trial you
can get. Go and ask the boss (unless you are the boss) for trials. Find the litigators who
don’t want to try cases and help them out. Find the trial lawyers who do try cases and see
if you can second-seat them, do their trial prep, do their Requests to Charge and bench
memoranda. Hang out in trial courtrooms and see how others do it. You can learn a lot
about what to do, and perhaps even more importantly what not to do, by watching others.
If you hear that one of the “hot” trial lawyers in your field is on trial, go and see him for
half an hour when you are done with your Preliminary Conference.
“In theory there is no difference between theory and practice. In practice there is.” Yogi Berra “You can observe a lot by just watching.” Yogi Berra
Trial Dogs Don’t Bark, They Bite
There is not a whole lot that is more unseemly than some middle-aged guy trying
to intimidate a younger trial lawyer with his “I never lose” war stories. Trial lawyers try
cases. If you try cases, sometimes you lose. Most of us are nowhere near as brilliant as
these people make themselves out to be.
-5-
Prepare your case, have your witnesses lined up and prepped, your documents
subpoenaed, hit him with a trial memo every time he tries to offer evidence on the basis
that “everybody does it this way,” do a good opening and a better summation.
When you win, be gracious.
“Pretend inferiority and encourage his arrogance.” The Art of War, Sun Tzu “The wise learn many things from their enemies.” Aristophanes “When you have to kill a man, it costs nothing to be polite.” Winston Churchill
Theory of the Case and Themes
Before you start structuring out your order of proof, your direct and anticipated
cross, you need to decide on a theory of the case and the themes you want to use to
support that theory. Every jury wants to “do the right thing.” Your theory of the case is
an offer to them of a roadmap to arrive at the point where they can do just that and where
they can find for your client in good conscience.
The theory of the case is your explanation for the jury of what happened, how and
why it happened, who did what, and ultimately why the jury, in doing the right thing,
must find for your client. Everything you do in your case preparation, planning and
presentation should be done in support of that theory of the case. Obviously, your theory
often requires editing and you may even have to change course entirely as you do your
initial investigation and later your trial preparation, but there has to be a unifying
-6-
structure to your trial. If there is not, your presentation of unstructured fact will in all
likelihood, confuse the jury and lead to a loss.
Themes are the trumpet calls you want sounding in the background of everything
you do – a reason that the jury wants emotionally to follow your theory of the case. In
negligence, most themes revolve around responsibility: A good theme should have an
“Oh, come on – that’s obvious” quality.
Plaintiff examples
Responsibility to keep your store safe for shoppers
Responsibility to control your dog when you know he is vicious
Responsibility to produce safe products
Responsibility to drive slowly enough so you can control your car
Responsibility to do what other professionals would do
Defendant examples
The law imposes certain responsibilities toward others, but we are always responsible for our own actions Everyone is required to use their eyes and ears to avoid danger If you assume a known risk and get hurt, it is your own responsibility
-7-
Trial Preparation
“Before beginning, plan carefully.” Marcus Tullius Cicero
“Preparation is the be-all of good trial work. Everything else-felicity of expression, improvisational brilliance-is a satellite around the sun. Thorough preparation is that sun.” Louis Nizer
“The fight is won or lost far away from witnesses - behind the lines, in the gym, and out there on the road, long before I dance under those lights.” Muhammad Ali
Two things win cases – facts and preparation. You can’t do anything to
change the first. You can do a lot about the second.
Factual investigation is what enables you to present your case effectively and to
be aware of the holes in your adversary’s case. No amount of courtroom brilliance, no
rhetoric, no knowledge of the intricacies of the law, is going to help you if you don’t
know all of the facts. As a trial lawyer, you are limited by time and budget in what you
can do, but in every case, you should have done as much investigation as those two
constraints admit.
Before you reach the courtroom, you should have spent as much time as you can
afford with your client, the witnesses and the documents. You have to know as early as
possible what you are going to prove, how you are going to prove it and what your
opening and summation are going to look like in broad strokes.
Do not assume, just because your witnesses have cooperated thus far, they will
come in willingly. Subpoena them (nicely). Subpoena the records you need (but not
those your adversary needs to establish a prima facie case). Make sure your expert (a) is
available, (b) is prepared and (c) has read everything which could conceivably be thrown
up to him.
-8-
Colin E. Kaufman Greenhill Partners, PC 555 Fifth Avenue New York, NY 10017 Tel: (212) 661-5500 Fax: (212) 661-5509 e-mail: [email protected]
Lorman Educational Services Trial of a Negligence Case in New York
August 13, 2004
Preliminary Proceedings
“The mode by which the inevitable comes to pass is effort.” Oliver Wendell Holmes “If you don’t know where you’re going, you’ll end up someplace else.” Yogi Berra “I find that the harder I work, the more luck I seem to have.” Thomas Jefferson
-9-
PRELIMINARY PROCEEDINGS Basic Trial Procedure1
The Pretrial conference
Uniform Rules for the Trial Courts - Section 202.26 Pretrial Conference. (a) After the filing of a note of issue and certificate of readiness in any action, the judge shall order a pretrial conference, unless the judge dispenses with such a conference in any particular case. (b) [omitted] (c) The judge shall consider at the conference with the parties or their counsel the following:
(1) simplification and limitation of the issues; (2) obtaining admission of fact and of documents to avoid
unnecessary proof; (3) disposition of the action, …; (4) amendment of pleadings or bill of particulars; (5) limitation of number of expert witnesses; and (6) insurance coverage, where relevant.
The judge also may consider with the parties any other matters deemed relevant. (d) [omitted] (e) Where parties are represented by counsel, only attorneys fully familiar with the action and authorized to make binding stipulations, or accompanied by a person empowered to act on behalf of the party represented, will be permitted to appear at a pretrial conference. Plaintiff
1 The earliest description of trial procedure which I could find was the Code of Hammurabi, ca. 1700 BCE (3700 BP):
• If any one lose an article, and find it in the possession of another: if the person in whose possession the thing is found say "A merchant sold it to me, I paid for it before witnesses," and if the owner of the thing say, "I will bring witnesses who know my property," then shall the purchaser bring the merchant who sold it to him, and the witnesses before whom he bought it, and the owner shall bring witnesses who can identify his property. The judge shall examine their testimony — both of the witnesses before whom the price was paid, and of the witnesses who identify the lost article on oath. The merchant is then proved to be a thief and shall be put to death. The owner of the lost article receives his property, and he who bought it receives the money he paid from the estate of the merchant.
• If the purchaser does not bring the merchant and the witnesses before whom he bought the article, but its owner bring witnesses who identify it, then the buyer is the thief and shall be put to death, and the owner receives the lost article.
• If the owner do not bring witnesses to identify the lost article, he is an evil-doer, he has traduced, and shall be put to death.
• If the witnesses be not at hand, then shall the judge set a limit, at the expiration of six months. If his witnesses have not appeared within the six months, he is an evil-doer, and shall bear the fine of the pending case.
-10-
shall submit marked copies of the pleadings. A verified bill of particulars and a doctor's report or hospital record, or both, as to the nature and extent of injuries claimed, if any, shall be submitted by the plaintiff and by any defendant who counterclaims. The judge may require additional data, or may waive any requirement for submission of documents on suitable alternate proof of damages. Failure to comply with this subdivision may be deemed a default under CPLR 3404. Absence of an attorney's file shall not be an acceptable excuse for failing to comply with this subdivision. (f) If any action is settled or discontinued by stipulation at a pretrial conference, complete minutes of such stipulation shall be made at the direction of the court. Such transcribed stipulation shall be enforceable as though made in open court. (g) (1) At the pretrial conference, if it appears that the action falls within the monetary jurisdiction of a court of limited jurisdiction, there is nothing to justify its being retained in the court in which it is then pending, and it would be reached for trial more quickly in a lower court, the judge shall order the case transferred to the appropriate lower court, specifying the paragraph of CPLR 325 under which the action is taken. (2) [omitted]
The preceding section of the Uniform Rules pertains to the Pretrial conference
called for about a month in advance of trial. However, in addition to that conference,
before to the commencement of the trial proper, the parties’ attorneys meet with the
Court. The purpose of the conference is to acquaint the Court with the case and to raise
any motions in limine. The Court may address any of the issues in § 202.26. The judge
will try to settle the case, if possible and may seek to limit the issues to be tried.
You have to win the conference.
First, judges are human and while a conscientious judge will try not to permit his
view of the evidence to come through, he or she will sometimes award “jump ball”
evidentiary calls so as to see that justice is done. Make the judge see right up front that
justice and the law are on your side.
-11-
Second, many cases that are started are settled during trial. Both sides are going
to be pressured by the judge to be “more reasonable.” Try to make sure your adversary
gets more pressure than you do.
Third, there are judges who consciously or unconsciously do their best to make
the trial come out the way they think it should. If it is going to happen in your trial, make
sure your adversary is on the downhill side of the slope.
To win the conference, you have to know your case cold, know how much you
want to reveal in front of your adversary and have a realistic appreciation of the weaker
parts of your case. I find it useful to assert immediate control of the conference. You
should be the one (whether plaintiff or defendant) who tells the judge what the case is
about, what the injuries are said to be and what has gone on in terms of prior negotiation.
The other side then has to echo or dispute what you have said, but in either event, you
have set the terms of discussion. Whether or not you are the plaintiff, have marked
pleadings, the bill of particulars, the bill of particulars on affirmative defenses,
interrogatory responses, notices to admit and responses.
The judge will then send one side or the other out of the room (obviously, with
the adversary’s explicit or tacit consent) to explore the “confidential” details and your
“real” negotiating position2. When it is your turn, impress the judge with the strengths of
your case, but always maintain that you are a realist, even if your opponent is not.
The judge will try to pressure the plaintiff to come down in her demand and the
defendant to come up with more money. You have to know going in what you are
prepared to do. This means discussing the absolute low the plaintiff will take, assuming 2 A Rockland County Supreme Court judge told me and my adversary: “Gentlemen, I expect total honesty from both of you, except for two things. I know you, Mr. Plaintiff will always take less than you tell me, and I know you, Mr. Defendant, always have more money than you tell me.”
-12-
you are plaintiff’s counsel, and the absolute best the adjuster or client will do, if you are
defendant. Get explicit authority from your plaintiff-client to accept or reject, explicit
authority to offer up to a certain sum from your defendant-client or adjuster. BUT keep in
mind that this case is not yours, it is the client’s. You have an absolute ethical obligation
to convey any actual offer to settle your client. Do it, or you may end up being the
defendant.
-13-
Normal structure of the trial:
1) Voir dire
2) Introductory charge
3) Plaintiff opening
4) Defendant opening
5) Plaintiff evidence
a) witness on direct by plaintiff
b) witness on cross by defendant
c) redirect, re-cross, etc.
6) Plaintiff rests
7) Defendant makes motions
8) Defense evidence
a) witness on direct by defendant
b) witness on cross by plaintiff
c) redirect, re-cross, etc.
9) Defendant rests
10) Motions
11) Plaintiff rebuttal (not usual)
12) Defendant sur-rebuttal (almost never)
13) Charge conference
14) Defense summation
15) Plaintiff summation
16) Charge
17) Exceptions to charge – further charge as necessary
18) Deliberation
19) Questions
20) Verdict
21) Post-Verdict Motions
21) If a bifurcated trial, do it all over again
-14-
Note that the judge can change the order of the trial to promote judicial economy,
to accommodate witnesses (normally only experts, if any) or in the interests of justice. If
approved by the Court, the parties can stipulate to a different order of trial.
Motions In Limine
A motion in limine is a request for the Court to make a ruling in advance of trial.
Although primarily addressed to evidentiary issues, it can, in theory address anything to
do with the trial, such as the amount of damages sought or limitations on proof.
Although recent cases are in some conflict, it appears that a motion in limine may never
be an effective substitute for a motion for full or partial summary judgment (although that
can certainly be its effect if the ruling precludes essential testimony).
There is no particular formal requirement for a motion in limine and it can be
made orally or on papers.
Always be aware that the ruling on a motion in limine is advisory. It does not
bind the Court and is not law of the case. Even if the ruling is against you, you can argue
at trial that based on the evidence adduced, the court should reconsider its prior ruling
based on what it has heard from witnesses, on inadvertent waiver by your opponent, or by
the “door being opened” see, e.g., Wall Street Associates v Brodsky, 295 AD2d 262, 744
NYS2d 378 (1st Dept.2002). If the admissibility is then denied, make an offer of proof.
Otherwise, you may be precluded from appealing the issue
“the [in limine] order appealed from is an evidentiary ruling. Such a ruling, even when made ‘in advance of trial on motion papers, constitutes, at best, an advisory opinion, which is neither appealable as of right nor by permission.’” Curtis v Fishkill Allsport Fitness & Racquetball Club, Inc., 2 AD3d 768, 769 NYS2d 411 (2d Dept.2003), citing Chateau Rive Corp. v Enclave Dev. Assocs., 283 AD2d 537, 725 NYS2d 215
-15-
In arguing against the grant of a motion in limine, the best argument is that the
motion is premature and that the judge has heard no evidence upon which to base a
ruling. If you are opposing and think you are losing, volunteer that you will “stay away
from it in opening.”
Reasons for making a Motion in limine
Preclude evidence which is important or essential to your adversary’s case
Ensure admissibility of your own potentially excludable evidence/witness
Preclude mention of harmful evidence in your adversary’s opening
Limit areas of proof
Test admissibility of expert testimony under Frye
Reasons for not making a Motion in limine
Why alert your adversary to his problem?
If adversary’s evidence is excluded, she may have time to plug the hole
If you move beforehand and lose, odds are extremely high the evidence you sought to exclude will go in Excluding mention in the adversary’s opening is great but if she mentions it and then doesn’t deliver because of a later ruling, you can comment in summation – might be better
-16-
Trial Briefs
Many lawyers believe a trial brief is useful. I generally do not.
A trial brief, which discusses the proof anticipated at the trial, lays out the law
you intend to rely on in the case, and discusses anticipated evidentiary problems, makes
the trial judge’s life simpler. That’s not my job – I am there to represent my client
zealously within the boundaries of the law and ethics (cf. Canon 7, Rules of Professional
Responsibility). A trial brief lays it all out not just for the judge, but for your adversary.
Why would I want him to know what it is I intend to do, how I intend to block his
evidence coming in, what my thoughts are on the issues and what precedent I have been
able to find (and maybe not find)?
Some judge’s Individual Rules require that you submit a trial brief. If so, then
obviously you must do so. If not, I believe it preferable to use a series of bench briefs to
address evidentiary issues.
Obviously, there are also cases which involve abstruse areas of the law that the
average judge is not going to know about or cases which are so complex in their facts that
a trial brief may be necessary.
-17-
Requests to Charge CPLR § 4110-b. Instructions to jury; objection
At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court, out of the hearing of the jury, shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.
Requests to Charge are both a starting and an ending point for the trial lawyer.
The New York Pattern Jury Instructions (PJI) are universally used throughout the state.
Many judges will not allow any substantial variance from PJI except in unusual
circumstances. If the charges you submit do vary from PJI, back your language up with
case citation from the Court of Appeals and/or the Department in which you are trying
your case.
Requests are a starting point because in order to prevail, a plaintiff has to meet the
burden of proof as to each element defined in PJI for the tort being tried. Conversely, a
defendant can win by knocking out just one of the required elements. For both, then,
knowing what the elements actually are is obviously of tremendous importance. PJI tells
you.
Some lawyers, trying one of the repetitive fact patterns (e.g., intersection
collision, trip and fall) will try to shortcut by telling the judge “it’s a standard case with
nothing unusual” and not submit requests. I think this is a mistake for several reasons.
First, preparation of the Requests forces the lawyer to focus on his or her required
elements. Second, Requests structure not only the lawyers’ efforts but the Court’s; a
-18-
properly prepared set of instructions will channel the Court into charging just what the
advocate wants charged and perhaps not charging what the submitting advocate wants
left out (Clearly this is not to say a lawyer can mislead the Court – she can’t. But she can
omit optional instructions that favor the other side, or disfavor her client). Third, judges
are impressed by prepared trial lawyers. You should start building a goodwill account
upon which to draw later.
Practice hints:
1) Never submit before you have to. Your adversary gets a copy when the
Court does. Your Requests lay out your structure of the case, including what you
perceive as strengths and weaknesses. Always assume your adversary is smarter and
better prepared than you are – if he sees a problem highlighted by your Requests, he is
going to fix it. If he knows your structure and you don’t yet know his, he has the
advantage. You may not catch up. Wait until the judge tells you both to hand up and
exchange your Requests to Charge.
2) Always include your Requests on disk along with the hard-copy. Law
secretaries are as prone to laziness as the rest of us. If faced with setting up the charge
themselves or adopting your charge on disk, some will take yours. While your charge
can’t be improper, it can certainly highlight what you want the judge to tell the jury.
3) Always reserve your right to submit other charges as the evidence makes
clear what additional issues have to be addressed. I have never had a judge take issue
with that, and if the judge is going to, I’d like to know about it immediately.
4) Always submit a verdict sheet. Your goal is to influence the acts of the
jury.
-19-
There is a full defense charge request for our fact pattern, a trip and fall case, at
Appendix “B.”
-20-
Voir Dire The applicable CPLR sections and the Uniform Rules are annexed at Appendix C. KNOW THE RULES. You have to know the CPLR and the Uniform Rules. You have to inquire of the jury clerk
a) whether the judge has any special rules. b) whether you are to proceed under White’s Method, Struck Method
or some local variant c) Whether to seat six each round (of White’s Rules) or fill only
empty chairs d) whether counsel can consent to excuse during the round If there are more than two parties, make sure everyone is aware that multiple
parties share challenges. If there is any doubt as to the alignment, straighten it out before
going into the selection room.
Introduction Try to be the greeter. Get everyone seated and comfortable. The plaintiff gets to
address the panel first.
You can briefly outline your contentions, but you cannot go into the specifics. What you can’t do (and should object if the other side does)
Discuss the specifics of the evidence
Read from pleadings Discuss specific dollar amounts Overtly argue your case Discuss the applicable law (except in broad outline and as permitted by
your adversary)
-21-
Discuss insurance or Workers’ Compensation (this one busts the panel) except that plaintiff can ask the statutory question “Are you a shareholder, stockholder, director, officer or employee, or in any manner interested, in any insurance company issuing policies for protection against liability for damages for injury to persons or property?” (CPLR § 4110)
Discuss the timing of the trial, except generally, unless permitted to do so
by the judge. What you should not do
Don’t ask the same questions over and over to each venireman Don’t ever embarrass a potential juror Don’t ever discuss in the selection room what another juror told you in confidence outside Don’t suck up (too much) Don’t make time promises (you can’t control the flow of events) What you should do
Relax – meeting new people is fun
**Ask open-ended questions** - you should be more interested in what they have to say than what you have to say
Treat the potential jurors with respect and consideration for their time Look at the questionnaires (if you are asked if you want them, you do), then don’t ask them the same questions again
Address the juror’s concerns directly, even if it is to say “I am not permitted by the rules under which we operate to discuss that with you at this point.” Identify the potential juror’s skill set and then show her how it equates with the job of a juror
Approach jury duty as a serious civic obligation
Draw the sting of a problem with your case (e.g. your client is a felon; your client is an insurance company)
-22-
SAMPLE VOIR DIRE INTRO Good morning. My name is Colin Kaufman. I am the lawyer who
represents Lori Ortiz, the person who brings this case before you. She is called the
plaintiff. Ms. Ortiz fell and was seriously injured on March 15, 2003, at
_________________ on the walkway of the house owned by the defendants Roger Allen
and Alyssa Allen . The defendants are represented by Ms. _____________________, a
member of the law firm of Bayer, Lewis, Jones and Williams. The defendants deny that
they are responsible for Lori’s tripping and falling or for her injury.
We are here this morning to pick several of you to sit in judgment on
this case, six principal jurors and two alternates.
To find eight people who can sit on this case fairly and impartially, the
law gives us the right, and we have the duty, to ask you questions under oath bearing on
your background and your qualifications to sit as jurors in this particular case.
I say this "particular" case, because our questioning bears only on what
we see as the issues in this case. If you are selected as jurors, it is because in our
professional judgment you have few pre-conceived notions about what the outcome
should be. For the purposes of this case we, and the Court, ask you to take on the duty of
judges of the facts.
On the other hand, if you are excused, please understand that it is not a
reflection on your honesty or your integrity, but merely a judgment on the part of Ms.
__________, myself or the Court, that you would be a more appropriate juror in another
case – and there are hundreds of other cases pending in this court.
We will be speaking first with the six potential jurors in the front row. I
ask that everyone else pay close attention to that conversation, so that if and when you
are up front, you will know the issues which may be important and the types of questions
you are liable to be asked.
If there is any area you would like to discuss out of the presence of the
panel, just say "I'd like to discuss that, or I'd like to discuss something with you
privately." You and I and Ms. ________________ will step outside and discuss that
issue fully and no one else will hear that discussion.
-23-
What to look for
Folks you like (they will probably like you back) People who will identify with your client (be aware of Batson & progeny3) Don’t let your opponent choose partisans Shoot for five followers and a cheerleader for your side, settle for six neutrals “If two men agree on everything, you may be sure that one of them is doing the thinking.” Lyndon Baines Johnson Each side has typical party-specific concerns Plaintiff concerns: (1) is suing someone else a problem (2) use common sense (code for fill in the gaps in my case) (3) standard of proof lower than criminal (4) any amount of money okay Defendant concerns: (1) objections (2) every ingredient included for the recipe (3) obey charge even if you disagree
3 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) forbade the use of racially discriminatory peremptory jury challenges. This was extended to civil cases by Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). Every New York appellate court which has written on the subject adopts the Batson/Edmondson rule and rationale.
-24-
You only have three challenges – use them tactically Consent if the other lawyer is a decent person (or you’ll lose anyway) What goes around comes around Look at the back of the room Save the last bullet for yourself
-25-
Evidence
You prove or defend cases with evidence
With minor exceptions, there are only four types:
Testimonial
Demonstrative
Documentary
Real
The Starting Point:
“all relevant evidence is admissible unless its admission violates some exclusionary rule”
People v. Scarola, 71 N.Y.2d 769, 525 N.E.2d 728, 530 N.Y.S.2d 83 (1988)
Gathering the Evidence
usually you only get one shot at real evidence
get there early
talk to everyone you can
get all your client’s documents and all your adversary’s discoverable papers
gather up everything you can
photograph everything you can
have someone mark it, bag it, tag it
for fungibles, you must establish chain of custody - for everything else, you should
Marking at trial
a. premarking
sometimes required
sometimes useful even if not required
b. marking as ceremonial act
adds gravity
allows some element of surprise
-26-
c. party marking, joint marking, court marking
party marking – we (not the bad other person) brought this to your
attention
joint marking – particularly if it hurts you
- we’re all agreed that this evidence should be considered
court marking – the ultimate good thing, but most courts won’t do
it for you
Theory – just mark it
Your honor, may I have this item marked as defendant’s exhibit “D” for
identification
Practice – some identification
Your honor, may I have a six-page document, bearing a caption on the
first page of “lease dated March 4, 2001” marked as defendant’s
exhibit “D” for identification
Best you can do
Your honor, may I have this document, a lease dated March 4, 2001,
bearing the signatures of Mr. Plaintiff and Ms. Defendant at page 6
marked as defendant’s exhibit “D” for identification
NOTE: Best Evidence Rule – of diminished vitality in the age of
copiers (cf. CPLR 4359, FRE 1003), but still the best litigation tactic –
show the jurors the “real thing” with the blue ink on it
- Best Evidence Rule still applies if the litigation is about the document itself (e.g. will contest), or if real issue as to contents
- Use a Notice to Admit to avoid Best Evidence Rule problems
-27-
The act of handing it up
a) always show it first to your adversary ( and, if it is important and has been
the subject of discovery, note that). Note that in theory you don’t have to
show counsel until it is offered in evidence. However, if you don’t, the
judge won’t like you, opposing counsel won’t like you and worst of all,
the jury won’t like you)
b) hand it to the Court officer or directly to the reporter (varies by Court –
find out which before the judge calls you on it)
c) STOP TALKING while it is marked
d) get it to the witness
- getting it there varies by courtroom
- either you give it to the Court Officer
or you get to hand it up yourself
- better if you can hand it up yourself
-with a friendly witness, establishes your bond before the
jury
-with an unfriendly witness, invades his space and makes
him nervous
Predicate Questions
Know your Local Rules and Judge’s Individual Rules
Know the substantive and adjectival evidentiary law of your jurisdiction
a) ALWAYS ask your predicate questions (samples at Appendix “D”) often your adversary will stipulate – thank her and go on with the predicate questions
-28-
Your Honor, since the jury will have to evaluate the weight and meaning of the evidence, I would like them to know what it is and how it got here today. (the exception: usually accept a stipulation to chain of custody if that must be established – there are often problems with the chain)
it establishes the weight of the item
several hundred years went into the predicate questions; you would be well advised to follow the lead of your
predecessors b) know how to rephrase your predicate questions for a less-than-intelligent witness c) be alert for the quirky judge
d) prep your witnesses with the exact litany for the introduction of items you know will be offered e) use your predicate questions to discuss the evidence
- Tell me three times
1) describe what it is
2) describe it again when qualifying the item
3) use the item to repeat your best points
Evidentiary Voir Dire
After your adversary offers evidence (usually)
Use voir dire sparingly - the jury really doesn’t understand, and it annoys
them
Your chance to
a) keep out bad stuff (do this out of the presence of the jury)
-29-
b) establish that even if it is admissible, it is weak (do this in the
presence of the jury)
How do you get out of the presence of the jury?
- Ask
- Mention to the Court that the issue is purely one of law
How do you stay in the presence of the jury?
- Your Honor, may I have a brief voir dire (don’t say it is to
determine admissibility, since you may well lose)
Now what?
- attack elements of the foundation
- show that this is not what it purports to be
- this is not the time to argue weight, relevance, materiality
Then say:
- (if you know you are going to lose) Thank you Your Honor. I
have no further questions
- (if you have a shot at keeping it out) Your Honor, I object to the
admission of Defendant’s G for identification on the basis that…
Introducing the Evidence
Do the ceremony
- Always, always, always make sure that what you need in evidence
is actually offered and actually marked - keep track on an evidence
sheet (Appendix E)
- “Your Honor, I offer Plaintiff’s Exhibit 3 for Identification in
evidence”
- be ready to argue
-30-
- have your bench brief ready
know the cases you need (one Court of Appeals, one from
the Department)
When the Judge says it is admitted
- hand it to the Court Officer or reporter (once again, it
depends on the judge)
- STOP TALKING - there is no record
- get it back
- USE IT
- Let the jury handle it - and don’t talk when they do
- When the jury retires, make sure they get your exhibits (if you
want them to look - ask them)
Conclusion: Evidence is a wonderful substitute for stirring rhetoric, firmly held opinions and astonishing feats of forensic legerdemain. Gather it, preserve it, introduce it, use it -
-31-
Colin E. Kaufman Greenhill Partners, PC 555 Fifth Avenue New York, NY 10017 Tel: (212) 661-5500 Fax: (212) 661-5509 e-mail: [email protected]
Lorman Educational Services Trial of a Negligence Case in New York
August 13, 2004
DIRECT CASE
EVERYTHING COUNTS “All human actions have one or more of these seven causes: chance, nature, compulsions, habit, reason, passion, desire.” Aristotle
“I keep six honest serving-men (They taught me all I knew); Their names are What and Why and When and How and Where and Who.” Rudyard Kipling
-32-
Your direct makes your case.
“Wise men speak because they have something to say; Fools because they have to say something.” Plato
The goal of the advocate is to persuade. Any tool that helps to do that is something you
should use (consistent with ethics, law and procedural limitations). Anything that stops
you from achieving that goal has no place in your effort.
CLARITY of thought → CLARITY of speech → PERSUASION (except when you want
to obfuscate)
“Verbosity leads to unclear, inarticulate things.” Dan Quayle
The basics:
Can’t lead your own witness
except: preliminary matters
Children or those found by court to be under disability
Hostile witness
Unobjected-to testimony
Six basics: Who
What
When
Where
Why
How
-33-
Be a radio tuner, not a dialog coach
Don’t script the witness’s responses
Listen to what the witness says
Have a conversation (but “us” rather than “me”)
Let the plaintiff tell her own story – find out your facts in prep
Tell stories, paint pictures
Hammer on your themes
“it changed my life” – how? – specific examples
Use chapter headings (Now I’d like to discuss your efforts to help with Mr. Plaintiff’s problem)
One question at a time
Avoid negatives
Take your time – this is fun
Know your theory of the case – stick with it
KISS
Theme(s)
Identify the facts that need to be tried – then try them
Be aware of : Witness, Judge, Jury, Opposing counsel
Goals
Clarity
Credibility
Compassion (Empathy)
-34-
Structure
Know where you are going and how to get there
Content + Structure + Delivery = Persuasion
Diagram out
1) the elements of the cause of action or defense
2) what you will show through this witness
3) what evidence you will introduce through this witness
- can the witness supply all of the foundation?
- what are you going to ask her about the piece of evidence?
The Introduction
Jury has to evaluate the witness
Ask him the same types of questions you asked the jurors in voir dire
You want to prejudice the jurors in favor of the witness (we believe people we
like)
Where live?
Own/rent?
How long?
Married?
Kids?
Education?
What do you do for a living?
Spouse’s occupation?
At some point, opposing counsel will object. Once (not every witness) say that
the jury is being asked to evaluate the witness and has a right to know her
background.
-35-
The Substance
Let the witness tell her story - as much narrative as you can get away with
Make sure you dot all the “i’s”
Lay witnesses testify to evidence of the senses – not conclusions
Get details
Anticipate cross
Draw the sting
Finish Strong (and if you can, finish at lunch)
Exhibits
- realistically analyze what you can get in
- don’t base your case on maybe’s
- alternate theories of admissibility
- know your foundational elements and how they are going to be proven
- corroborate
Credibility
- Most trials turn on credibility
- Enhance your witness’s credibility - show
- lack of bias/interest
- standing in the community (and commonality with jury)
- capacity to observe
- ability (and reason) to recall
- familiarity with similar things or events
-36-
The Tools
What you need to do
Appeal to the senses
Appeal to emotion
Appeal to reason
Use language of inclusion - we, us, all of us here in the courtroom,
“Speak loud enough so that all of us, including Mr. Jones, who is sitting way back here can hear you”
Words have power - Emotional loading / damping
PI Plaintiff
Victim
Torn apart
Crashed
- sometimes you want to draw the foul
PI Defendant
Incident, Events
Contacted
Try to get everybody to adopt your language
Never talk down to a witness - but don’t baffle everybody in the
courtroom with your eloquence and knowledge
Occasionally signal that the next question is crucial “Now Mrs. Smith, I
want you to be very sure of your answer, so think carefully ….”
-37-
Your Voice has power (if you have something to say)
SLS (Speak Loud and Slow)
To persuade you must communicate
To communicate, the jury must hear your words
Vary pitch
Speaking softly requires the jury to listen
Speaking loudly (if done infrequently) can serve to emphasize
Vary tone
Vary emotion
Use silence
Use your body
First - find out if the judge will let you use the whole courtroom
Question your witnesses from behind the jury box
If you can, get your witness out of the box
how ?
- charts, photo blowups, diagrams (see BIG DANGER note
below), demonstration of injuries or placement
- ask the Court
- engage the witness
- lets you get close to the jury (but not too close please)
BIG DANGER NOTE: If you want your witness to draw a diagram - rehearse - otherwise you will get a teeny- weeny unrecognizable box MUCH BETTER He describes - you draw - he adopts - you offer SECOND BIG DANGER NOTE - never ask a witness to demonstrate without having done it before in your office (more than once)
-38-
Emphasize a point by body placement
Motion either
Emphasizes or
Distracts
Techniques
Repetitive Direct (looping)
Chronological v topical
Corroboration
Chapters
Use visuals – tell me three times
Use Exhibits – tell me three times
Buzzwords
Gentle hints about negative behavior
Get rid of filler noise
Okay, and
Um
With respect to that
Don’t jingle & don’t fidget
Know what your hands are doing
Never read your questions
Don’t wander aimlessly
Lose the jargon
Big offenders: Prior
Subsequent
What, if anything,
-39-
PREPPING THE WITNESS
Ideally, you meet the witness at least four times
First - during your factual investigation
Second - depo prep
Third - initial trial prep
Fourth - immediately before trial testimony
Deposition prep is very different from trial prep
1) you can’t win at deposition, you can lose (but note contrarian theory – come on strong at deposition to settle)
2) at deposition you are being interrogated, at trial you are telling
your story 3) you will never convince the opposing lawyer that you are right;
you can convince a jury 4) 10 word rule v. tell your story
5) speaking for the record v. discussing what happened
In almost every case, the witness has never done this before - remember that
Familiarity with the courtroom
- if you can, take the witness to a courtroom
- best is if you can take her to the courtroom
- if you can’t take him there, diagram it
- tell him how to walk up to the stand, how to take the
oath (find out if he needs to affirm), and how to leave
don’t discuss the case within a mile of the courthouse
-40-
Familiarity with procedure
- first direct by me, then cross by the other lawyer, maybe
redirect, maybe recross - the judge may ask questions
- how will I show you the evidence?
- what do you call the judge?
- how should you dress?
Familiarity with events and objects
- tell me what happened; do it again
- review the documents
- what do you do if someone hands you a document?
- what do you do if the other lawyer reads from a
document?
- what do you do when the other lawyer reads from a
transcript?
- here are the areas we are going to cover
- here are the areas the other lawyers may ask you about
Preparing the substance of the examination
- tell the witness what the issues are in the case
- tell the witness why he is here
- let her tell you the story, not the other way around
- do a lot of who, what, when, where, why & how
- find out how it smelled, felt, sounded
- show the witness the evidence - have him handle it, let him tell
you about it
- drop your buzzwords into the questions (in great moderation)
- don’t script the testimony - tell the witness that the questions
won’t be the same, although the areas will be
-41-
The Rules - Ten Commandments (one with subparts) plus a hint
1) TELL THE TRUTH
2) Show up when you are supposed to
3) SLS - communicate
4) Don’t guess or speculate
5) Don’t answer a question you don’t hear or understand
6) Make times, dates and distances estimates (unless you know)
7) When you hear an objection, wait. You can answer if it is
overruled; you don’t answer if it is sustained; ask the judge if
you’re not sure what to do
8) You will be nervous - it’s okay - breathe deep and hold on to the
chair - don’t fidget
9) Know what you said before, but your deposition transcript is not a
script
10) Deal with cross-examination
- Same obligation of courtesy and truthfulness as on direct,
but don’t volunteer and don’t explain
- don’t try to anticipate
- don’t try to outsmart the cross-examiner
- don’t get mad
- Cross-examiner gets to suggest an answer, you don’t
have to accept the suggestion
-You don’t have to answer “yes” or “no”, even if someone
tells you that you do
Hint: Go to the bathroom before you testify (while you’re there, check
how you look)
-42-
THE PROBLEM WITNESS
The best way to deal with the problem witness is not to call him
If you absolutely, positively, must call a problem witness
1) prepare the jury in voir dire
2) if appropriate, seek a declaration of hostility
explain in chambers, ask before the jury
3) use leading to the extent allowed by the judge if you can’t get a declaration of
hostility
Particular problems
1) skells (the undesirable/criminal element)
a) we don’t pick our witnesses
b) if appropriate, the “birds of a feather” slant
c) bring out the bad stuff yourself
2) kids (and the mentally challenged)
a) much more of a problem for your adversary
b) you must get them comfortable in the courtroom
- absolutely necessary to bring them in beforehand
- have a parent/caregiver present (ask the judge if he/she can stand
by the witness box)
c) the judge will give you a lot of leeway – use it
3) the perpetually angry witness
a) kid gloves
b) short
c) let your adversary find out how bad it can be (unless, of course, it’s
your client)
-43-
4) the jerk
a) everyone has a good side – find it
b) keep it short
EXPERTS – A TOPIC IN ITSELF
Ideally you should always meet with your expert
before depositions
before trial
If your expert is your client’s employee – use that luxury to the fullest
DO NOT assume that your captive genius can talk in human speech
Make him lose the jargon of his profession
Suggest analogies to him that are closer to everyday experience
Tell her she is in court to teach
On the stand – ask lots of “why” and “how” questions (to which, of
course, you know the answer)
“could you tell us in layman’s terms what a “fugue state” is?”
“could you give us an example of how a stress fracture might occur in
metal?”
TELL HIM what happens when he says a text is authoritative
READ what she has written; READ transcripts of prior testimony
MAKE SURE she knows all the evidence, not just the favorable stuff
MAKE SURE he is able to meet the challenge of adverse facts (“would it change
your opinion if you learned that …”)
Make sure your expert is comfortable with the “magic words” i.e.:
“Can you tell us to a reasonable degree of medical/scientific/metallurgical/etc. certainty
[whatever it is]?”
-44-
Make sure the basis of the opinion is:
Explicit and explicable
Reasonable
Based on the evidence and testimony (caveat hearsay)
On your direct
- Go through the CV – do not accept a stipulation
- Go through what he based his opinion on
(in theory you don’t have to, but you had better or you’ll be
punished by the jury)
- what conclusions did you reach ?
- this is not the litany – you may be forced to go back
> the litany is
- Q. based on your review of X, Y and Z,
did you form an opinion as to ABC
to a reasonable degree of
scientific/medical/other certainty?
A. Yes
Q. What is your opinion?
A. I found to a reasonable degree of
scientific certainty that …
- make absolutely certain that you get the magic words in – otherwise you
may have an uphill struggle on a motion to dismiss your action or defense
at the end of your case
Are your conclusions and opinions given to a reasonable degree of
medical/scientific/etc certainty?
Always ensure that there is a clear logical link between the evidence he/she has
considered and the conclusion he/she urges the jury to accept – if you can’t see it, neither
will the jury.
-45-
Damages
A civil case is always a search for the right number. For the plaintiff, that is a big one.
The jury wants to do right – you have to show them how
Don’t let your plaintiff whine, but bring out the real problems this injury has caused (sometimes this takes a lot of talking with the plaintiff – DO IT)
Always have your medical and hospital records and bills subpoenaed. Be prepared to back up every claim for special damages Your doctor has to establish the need for future medical treatment and the reasonable cost of that treatment – make sure he is able to do that and is prepared on those questions. Bring people other than the plaintiff in to talk about how she can’t do her job the same way, she can’t pick up her child in her arms, she is always grouchy because of her pain. Ten questions of a non-party are worth an hour of plaintiff saying “oy it hurts”
If you have not convinced the jury through your direct case – you lose. It is worth the
time to actually think about what you are doing and how best to do it.
EVERYTHING COUNTS
-46-
Colin E. Kaufman Greenhill Partners, PC 555 Fifth Avenue New York, NY 10017 Tel: (212) 661-5500 Fax: (212) 661-5509 e-mail: [email protected]
Lorman Educational Services Trial of a Negligence Case in New York
August 13, 2004
The Defense Case
-47-
CROSS-EXAMINATION
Big Secret # 1 - you don’t have to cross-examine
- If the witness did not hurt you and you have no tactical or substantive
reason to cross - consider not doing it
- you need a goal - if you don’t have one, don’t cross
- you need to know what the answers are to every question. If you don’t
know, don’t ask (unless it’s a “damned if you do, damned if you
don’t” question)
Big Secret # 2 - you are not looking for information from the witness
- This is your chance to “testify”
- never allow the witness to restate anything she said on direct (except as
a setup)
- her substantive testimony either
a) hurt you - why allow her to do it again?
b) helped you - save it for summation.
-48-
Goals of Cross-Examination
- to help your own case
- to hurt your opponent’s case
- create attitudes
- induce actions
Not Goals of Cross-Examination
- to impress the client
- to show the jury that you are smarter than the witness
- to embarrass an honest person in front of the jury
Types of Cross
- friendly
- hostile
- mixed (if you mix, obviously do friendly first)
Questioning form
- always leading
- except if there is no right answer (and then it’s dangerous)
- make the witness answer your question
- I understand sir, but please answer my question.
- Your Honor, would you be good enough to instruct the witness to
answer the question
-49-
Friendly Cross
- used to establish
- evidence that helps you
- impeachment of other adverse witnesses
- bolstering of your witnesses and evidence
Hostile Cross
- used to impeach
a) the witness and/or
b) the witness’s perceptions
- reserve it for the witness who hurts you and refuses to back off
- it is always better to tell the jury that someone is mistaken than
that someone lied (unless they don’t like the person)
Impeachment
- factual
- witness could not have had opportunity to observe
- witness’ recollection is faulty
- witness does not recount what actually transpired
- intoxicated
- mentally impaired
-50-
- prior inconsistent statement
- build it up the first time you use it
- not direct evidence unless deposition testimony or functional
equivalent (if it is, make sure you offer it) or is an
admission (party witness)
- foundation
- did you Ms witness on (date) tell [put in more facts if you
have them] Mr. X that ___
- if yes => that ends it until summation
- if no, can be proven extrinsically
- either use it on
- one or two critical facts; or
- lots and lots of statements (may render witness unworthy
of belief)
- don’t use it on three or four non-crucial facts and stop
- prejudice, bias, interest
- prior conviction
- can be proven extrinsically (but only if you did your
homework before trial) – even if admitted
- habitual intoxication or addiction
- prior bad or immoral act
- bad reputation for truth and veracity
-51-
Demeanor (yours)
- courteous and professional
- resolute
- be brief
- be visibly prepared
- always build the box quietly before you shut the door
- outrage should be saved for liars
- don’t ever whine – it accomplishes nothing and annoys everyone
Demeanor (theirs)
- during deposition, try to find the “hot buttons”
- use them when appropriate
- an witness who is angry at you is not thinking – that is good on two
grounds (but only if you are being fair)
- a witness who has stopped thinking is manipulable and may blurt
out the truth
- uncalled-for anger impresses the jury negatively
Planning
- cross is planned
- don’t waste your first question
- Thinking on your feet is a valuable skill, but usually comes in second to
thinking before you rise
-52-
- How do you plan?
1) read
a) everything
b) very particularly everything the witness has said or
written
2) index all of it topically
a) pick 6-8 topics
b) make an MSWord table
topic
date
substance
c) sort by topic (maybe also by date)
3) Do the same for the other witnesses who will testify in the
same areas
4) Outline
a) what you need to establish
b) what you need to impeach
c) what the witness has said she knows
d) question the witness where “a” and “c” or “b” and
“c” are congruent
5) Listen
e) to what the witness says
f) to what the witness doesn’t say
-53-
6) Watch
g) the witness
h) the other lawyer
i) the jury
- good cross is structured
usually work topically, rather than chronologically
start big
finish big
Crossing the Expert (an expert cross is annexed at Appendix F) - go after credentials, if appropriate
- if your expert has the same or better qualification (e.g. learned society), play it up; if not – isn’t it a fact that anyone with an engineering degree and two hundred dollars can become a member?
- know what she has written in the past
- know what she has testified to (ATLA; DRI: contact other lawyers)
- Google; Westlaw; Lexis; State Disciplinary Board
- if he has taught, get a syllabus & what texts were used
- find out what texts he has acknowledged as authoritative
- speak with your expert about avenues of cross
- experts make assumptions (economists are probably the worst)
- make the assumptions explicit
- show that other assumptions can be equally valid or better
- find out (before trial) what the expert was told
- show that there was material withheld from the expert
-54-
- find out about payment (this is double-edged)
- who does he testify for regularly?
- is this a real engineer/orthopedist/accountant, or someone who makes a living testifying?
- Would it change your opinion if I told you that X…Y…Z?
- no – excess rigidity
- yes – malleable opinion – and – you may actually get an opinion
favorable to you (although the odds are better that the Easter
Bunny will testify on your behalf)
- demystify - and make it clear that her opinion is just that – opinion, and that
other, equally well qualified people in her field could differ
Properly done, you will probably not destroy the adversary on cross, but you will hurt
their case and help your own.
“cross-examination is the greatest engine for the discovery of truth that was ever
invented.” O’Brien v. Commissioner of Education, 4 NY 2d 140, 173 NYS2d 265 (1958)
Van Voorhis, J, concurring, quoting Professor Wigmore
-55-
Trial Briefs (Trial memorandum of Law attached at Exhibit G)
Address issues which you know are going to arise at trial – do it beforehand Advantages
surprise – catches your adversary off guard
wears him down scrambling to play catch-up causes the Court to depend on you Structure = one issue one page cases from the Court of Appeals or Department in which you
are on trial attach the cases/statutes
Check your trial judge’s lower court decisions and his/her decisions on appeal (Westlaw, Lexis, LoisLaw, OCA website at http://portal.courts.state.ny.us/pls/portal30/ PORTAL30.wwa_app_module.show?p_sessionid=2068728) “No enterprise is more likely to succeed than one concealed from the enemy until it is ripe for execution.” Niccolo Machiavelli “Keep him under a strain and wear him down.” The Art of War, Sun Tzu Find Your issue Plaintiffs must try and must win every issue; defendants can prevail if they win on one. Find that one. Go back to the PJI and the recent cases from the Court of Appeals and your Department. Find the weakest point in the prima facie case you r opponent is presenting and then try that one to death. Good defense lawyers throw up so much dust that no one can figure out where the truth is – great ones show the jury that the truth supports their client. “The enemy must not know where I intend to give battle. For if he does not know where I intend to give battle he must prepare in a great many places. And when he prepares in a great many places, those I have to fight in any one place will be few.” The Art of War, Sun Tzu
-56-
Experts “Facts are stubborn, but statistics are more pliable.” Mark Twain “An expert is a person who has made all the mistakes that can be made in a very narrow field.” Niels Bohr “If the world should blow itself up, the last audible voice would be that of an expert saying it can't be done.” Peter Ustinov Finding Experts Lots of agencies Lexis/Nexis Westlaw Jury Verdict Reporter Colleges, Universities Hospital staff directory
Using your Experts effectively Modern practice requires the use of experts in many situations. (Almost) Always doctor(s) on damages the exceptions are when
there is no real issue as to the injury and causation (e.g. amputation) - Even then, may want a doctor as to effects and permanency of those effects (e.g. phantom
limb pain) For defendant - Your doctor’s opinion hurts you more than the plaintiff’s
If you have a Code issue, may need an engineer (caveat: engineer cannot
explain the applicability of fact to law and cannot explain law) For any products case, you will need at least an engineer
-57-
Preparation The Expert’s Must review every relevant document (including transcript) Must proceed as if everything he/she does is subject to review by the other
side (it is) Must be able to address the adversary’s theories and findings, not just
expound your side’s Must be aware what happens when a text or treatise is acknowledged as
authoritative Must alert you if he/she has previously testified or written about this
situation in a manner adverse to your position Yours Always do internet search, specialized library searches, Westlaw/Lexis Read everything your expert has written on this topic Read everything the other side’s expert has written on this topic Get transcript (ATLA, DRI, etc) Check every expert with the appropriate disciplinary authority Teach your expert the litany: Q: Did you form an opinion as to _____ with a reasonable
degree of ___________ certainty? A: Yes Q: What is that opinion? A: I concluded that X…Y…Z Q: How did you arrive at those conclusions? Train you expert how to respond to - Would it change your opinion if…?
-58-
- How much are you being paid for your opinion (I am not being paid for my opinion – that is not for sale - I
am being paid for my time and expertise) - Do you disagree with Dr. ____ that ____? - Is it a fair statement that reasonable ________s can reach different conclusions? - If, hypothetically, ________
Hypothetical – No longer necessary to use If used, must conform to the evidence adduced at trial If the adversary uses a hypo that does not conform, object & point
out why it is unfair Assumptions - Many types of experts assume facts – challenge those assumptions
Ask the expert to use a different assumption supported by the
evidence or by what your expert has told (and will/has testified) you are industry standards Check the math – if the other side’s expert hasn’t done it right, you have effectively destroyed him
Attacking the Case on Damages The medico-legal definition of “minor pain” : someone else’s Explore just how much of what the doctor found was subjective Discuss how the “objective” tests depend on observer judgment Make sure you know from your expert which of the conditions are Congenital Likely to be caused by chronic stimuli Not shown to be attributable to the accident (after the accident doesn’t
mean because of the accident) Directly attributable to the injury
-59-
See if you can bar the other side’s testimony Speculative Invades the province of the jury Common knowledge Based on facts not in evidence If you can’t bar it, you may at least get limitation on the testimony, or an
immediate limiting instruction (have one ready)
Special Damages Never, ever, (as a defendant) stipulate to plaintiff’s specials. If a plaintiff offers to stipulate, it usually means she has not subpoenaed the records or the witness necessary to put in the damages.
Juries use specials to estimate the severity of the injury – don’t give away the ranch
check CPLR § 4518 for what certified bills are self-authenticating (hospital,
doctor, hospital “warehouseman”) – don’t assume the certification conforms to § 4518
Only a doctor can testify to the reasonableness of medical bills and the likelihood of future medical expense
– don’t just let him say it – bring out his assumptions - show the assumptions are not reasonable
Trial Motions At the close of the plaintiff’s case
Motion for judgment (CPLR § 4401; 4410-a in med mal informed consent) by defendant
- must be supported by evidence/admissions - usually the judge, even if minded to grant it, will reserve decision and let the jury do it for him
At the close of the defendant’s case Motion for judgment, or judgment on affirmative defenses
by plaintiff (CPLR § 4401) - rarely granted
Defendant renews her § 4401 motion
-60-
At any time during trial Motion for a mistrial (CPLR § 4402) - normally for some action/statement which is so prejudicial that a
curative instruction would not suffice - may occur when jury is hung (CPLR § 4404)
After verdict - Motion to set aside the verdict and direct a new trial (CPLR § 4404) - may be as to any issue or all issues - contrary to the weight of the evidence - in the interests of justice - note that a motion to set aside the verdict on the grounds of repugnancy
is waived unless made while the jury is still present and can be recharged and returned to deliberations as a matter of practice, unless your motion is truly pro forma, you are generally better off asking the Court for the statutory time of fifteen days (CPLR § 4405) so that you can marshal your thoughts and evidence and can find authority for what you ask. The motion must be made within fifteen days, not returnable in that period. It is unusual for a judge to grant a j.n.o.v. (judgment non obstante veredicto = judgment notwithstanding the verdict) motion Only one post-trial motion (CPLR § 4406) – additur, reduction, etc.
If you lose – YOU MUST FILE NOTICE OF APPEAL TIMELY – if you don’t, the appellate court is ousted of jurisdiction and cannot extend your time, even for good cause shown If you win - you may still want to settle (no appeal, no reduction ) - if you don’t settle – make sure you actually enter the judgment on your verdict
as soon as possible – then serve it
-61-
Colin E. Kaufman Greenhill Partners, PC 555 Fifth Avenue New York, NY 10017 Tel: (212) 661-5500 Fax: (212) 661-5509 e-mail: [email protected]
Lorman Educational Services Trial of a Negligence Case in New York
August 13, 2004
The Ethics of Trial Work
“Always do right. This will gratify some people and astonish the rest.” Mark Twain “Anyone who doesn't take truth seriously in small matters cannot be trusted in large ones either.” Albert Einstein “You don't need a weatherman to know which way the wind blows.” Bob Dylan "The foundation of morality is to have done, once and for all, with lying." Thomas Huxley, as quoted in The Great Influenza, John M. Barry
-62-
Ethics4 95% of what you need to know about your lawyer ethics can be summed up easily Do the right thing Don’t Lie Don’t Cheat Don’t Steal CANON 1 A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession DR 1-102 [§1200.3] Misconduct.
A. A lawyer or law firm shall not: 1. Violate a Disciplinary Rule. 2. Circumvent a Disciplinary Rule through actions of another. 3. Engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer. 4. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. 5. Engage in conduct that is prejudicial to the administration of justice. 6. Unlawfully discriminate in the practice of law, …. 7. Engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.
You trade on your integrity With Judges
Most of us practice primarily in a small group of Courts, before the same judges
Judges talk about things they have in common One thing they have in common is us Lie to one, give a bad case cite, mislead the Court – every one will know
about it You might win one ruling, or one case, but your reputation is shot – you’ll
never get another break, you’ll never get a “jump ball” without a controlling case
With Juries From the time you first see them in voir dire, you build a bank account of
trust – when you sum up, you want them to believe that you would never lead them astray and never misrepresent – you need to withdraw all the capital from that account on behalf of your client
An individual juror may not be sharpest knife in the drawer, but the jury together has
4 See Abstracts from the Code of Professional Responsibility at Appendix H
-63-
twelve eyes twelve ears a collective IQ averaging 600 life experience anywhere from a minimum of 108 to over
300 years They are brought together and sworn not to discuss the case among
themselves They are shuffled in and out of the courtroom and spend hours together The only common experience all of them share is looking at us Who do you think they talk about? Our adversaries What goes around, comes around Trial lawyers run into each other and talk about each other all the time You are going to need a favor someday Fool me once, shame on you – fool me twice, shame on me Our clients Once we start trial, effectively they are stuck with us for good or ill Most of us depend on word of mouth to get new clients and depend on
how our current clients evaluate us for repeat business If your client can’t depend on you, why on earth would he recommend you
or use you again Ourselves There is no case and no client worth your license When you get up in the morning, you have to look at yourself in the mirror
– try to be proud of what you see CANON 2 A Lawyer Should Assist the Legal Profession in Fulfilling Its Duty to Make Legal Counsel Available DR 2-110 [§1200.15] Withdrawal from Employment.
A. In general. 1. [omitted] 2. Even when withdrawal is otherwise permitted or required …a lawyer shall not
withdraw from employment until the lawyer has taken steps to the extent reasonably practicable to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules.
3. [omitted] B. Mandatory withdrawal.
-64-
A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment …if:
1. The lawyer knows or it is obvious that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person. 2. The lawyer knows or it is obvious that continued employment will result in violation of a Disciplinary Rule. 3. [omitted] 4. [omitted].
C. Permissive withdrawal. Except as stated in DR 2-110 [1200.15] (A), a lawyer may withdraw from
representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
1. The client: a. Insists upon presenting a claim or defense that is not warranted under
existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law.
b. Persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.
c. Insists that the lawyer pursue a course of conduct which is illegal or prohibited under the Disciplinary Rules.
d. By other conduct renders it unreasonably difficult for the lawyer to carry out employment effectively.
e. [omitted] f. [omitted] g. Has used the lawyer’s services to perpetrate a crime or fraud.
2. The lawyer’s continued employment is likely to result in a violation of a Disciplinary Rule. 3. [omitted] 4. [omitted] 5. [omitted] 6. The lawyer believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.
You must withdraw if your work with the client will result in your breaching a DR (e.g. falsifying papers, presenting perjured testimony), or if the client insists on bringing or maintaining a position to injure or harass another. You may (and should) withdraw if the client insists on frivolous conduct (Part 130 Uniform Rules), tries to use you (or has used you) to do something fraudulent or illegal. Best advice – seek counsel – at the very least, bounce it off another lawyer. Preferably, consult a respected lawyer friend as his client.
-65-
CANON 5 A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client Defense counsel’s “predicament” – duty to the client and to the insurer
It really isn’t one. – Your client is the client, not the insurer. You do not have
divided allegiance. Make sure both the client and the insurer know this. You can report to the insurer anything that is in the public record. You can report
your intentions, evaluations and recommendations but you cannot convey client confidences and you cannot do anything that would harm your client (that is why coverage counsel and litigation counsel must be two separate firms). DR 5-102 [§1200.21] Lawyers as Witnesses.
A. A lawyer shall not act, or accept employment that contemplates the lawyer’s acting, as an advocate on issues of fact before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client, except that the lawyer may act as an advocate and also testify:
1. If the testimony will relate solely to an uncontested issue. 2. If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. 3. If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or the lawyer’s firm to the client. 4. As to any matter, if disqualification as an advocate would work a substantial hardship on the client because of the distinctive value of the lawyer as counsel in the particular case.
B. Neither a lawyer nor the lawyer’s firm shall accept employment in contemplated or pending litigation if the lawyer knows or it is obvious that the lawyer or another lawyer in the lawyer’s firm may be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony would or might be prejudicial to the client. C. If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client, the lawyer shall not serve as an advocate on issues of fact before the tribunal, except that the lawyer may continue as an advocate on issues of fact and may testify in the circumstances enumerated in DR 5-102 [1200.21] (B)(1) through (4). D. If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or a lawyer in his or her firm may be called as a witness on a significant issue other than on behalf of the client, the lawyer may continue the representation until it is apparent that the testimony is or may be prejudicial to the client at which point the lawyer and the firm must withdraw from acting as an advocate before the tribunal.
-66-
You can’t be a lawyer-advocate and a witness in the same case – don’t try to wriggle around this one. Don’t be the primary person involved in the investigative extra-judicial steps. Hire a PI or use a paralegal. Anytime you get in the situation where you have to say “Isn’t it a fact that I…” you are on slippery ground. DR 5-103 [§1200.22] Avoiding Acquisition of Interest in Litigation.
A. A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation he or she is conducting for a client, except that the lawyer may:
1. Acquire a lien granted by law to secure the lawyer’s fee or expenses. 2. Except as provided in DR 2-106 [1200.11] (C) (2) or (3), contract with a client for a reasonable contingent fee in a civil case.
B. While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client, except that:
1. A lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses. 2. Unless prohibited by law or rule of court, a lawyer representing an indigent client on a pro bono basis may pay court costs and reasonable expenses of litigation on behalf of the client.
The client is always responsible for court costs, expert fees, etc (although you may advance them). The problem comes when the client whose legs were taken off by a multimillionaire’s car tells you “I need a few thousand to get by until trial – if you can’t lend it to me (guaranteed by the recovery you are pretty sure I’ll get), then I’ll have to find another lawyer.” No one said being ethical was always financially rewarding – but generally, the choices are clear. Bite the bullet and tell him no. Obviously, you can try to hook him up with another lender. Remember that it is the plaintiff’s case, not yours. He got hurt, not you and he is the one who decides what is a reasonable settlement, not you. You told him you would try the case if it had to be tried – now do it. Obviously, if the client’s refusal is so outrageous that you can’t work with him anymore, you can advise him to get new counsel (if it does not prejudice his position), but then be prepared to get paid a lot less than you thought you were going to get. DR 5-105 [§1200.24] Conflict of Interest; Simultaneous Representation.
A. A lawyer shall decline proffered employment if the exercise of independent
-67-
professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under DR 5-105 1200.24](C). B. A lawyer shall not continue multiple employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the lawyer’s representation of another client, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under DR 5-105 [1200.24](C). C. In the situations covered by DR 5-105 [1200.24](A)and (B), a lawyer may represent multiple clients if a disinterested lawyer would believe that the lawyer can competently represent the interest of each and if each consents to the representation after full disclosure of the implications of the simultaneous representation and the advantages and risks involved. D. While lawyers are associated in a law firm, none of them shall knowingly accept or continue employment when any one of them practicing alone would be prohibited from doing so …. E. [omitted]
DR 5-106 [§1200.25] Settling Similar Claims of Clients.
A. A lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement of the claims of or against the clients, unless each client has consented after full disclosure of the implications of the aggregate settlement and the advantages and risks involved, including the existence and nature of all the claims involved and the participation of each person in the settlement.
These two arise most often in the multiple plaintiff cases – everybody in the “victim” car in a two-car collision comes to you, including the driver. It may (and probably will) be in the interest of the passengers to sue the drivers of both cars. If that is true, you can’t represent the driver (or you can represent him, but not the passengers). Be alert to the possibility of acquiring client confidences when you interview the driver.
When the insurance company offers a lump sum – “you can whack it up any way you want it,” everybody has to agree to the division “after full disclosure of the implications of the aggregate settlement and the advantages and risks involved, including the existence and nature of all the claims involved and the participation of each person in the settlement.” You want to be very sure you get it all in writing (including your advice that each plaintiff seek advice from separate counsel) before you accept that offer.
A third common situation is the client husband is injured, the wife is your client
on the derivative action, and they become separated or get divorced between commencement of the action and verdict or settlement. The derivative action (and the wife/client) don’t go away just because the marriage did. Either get a written, counseled agreement, or ask the appropriate Court what to do with the money.
-68-
CANON 6 A Lawyer Should Represent a Client Competently Hopefully, that’s why you are here. DR 6-101 [§1200.30] Failing to Act Competently.
A. A lawyer shall not: 1. Handle a legal matter which the lawyer knows or should know that he or she is not competent to handle, without associating with a lawyer who is competent to handle it. 2. Handle a legal matter without preparation adequate in the circumstances. 3. [omitted]
The Canons make very clear that you and your practice concentration are not
frozen in amber. You can take on matters you don’t know a whole lot about as long as you become familiar with the area and/or bring in co-counsel who knows it.
Trial lawyers try lots of cases in different areas. Obviously, that is not an ethical
violation as long as you become adequately prepared. Your familiarization with the area of the law can’t be on your client’s nickel – she is not paying you learn all the T & E law you forgot from law school to try her will contest. She is paying you to adequately prepare. CANON 7 A Lawyer Should Represent a Client Zealously Within the Bounds of the Law DR 7-106 [§1200.37] Trial Conduct.
A. A lawyer shall not disregard or advise the client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but the lawyer may take appropriate steps in good faith to test the validity of such rule or ruling. B. In presenting a matter to a tribunal, a lawyer shall disclose:
1. Controlling legal authority known to the lawyer to be directly adverse to the position of the client and which is not disclosed by opposing counsel. 2. [omitted]
C. In appearing as a lawyer before a tribunal, a lawyer shall not: 1. State or allude to any matter that he or she has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence. 2. Ask any question that he or she has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other
-69-
person. 3. Assert personal knowledge of the facts in issue, except when testifying as a witness. 4. Assert a personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but the lawyer may argue, upon analysis of the evidence, for any position or conclusion with respect to the matters stated herein. 5. Fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the intent not to comply. 6. Engage in undignified or discourteous conduct which is degrading to a tribunal.
EC 7-3 Where the bounds of law are uncertain, the action of a lawyer may depend on whether the lawyer is serving as advocate or adviser. A lawyer may serve simultaneously as both advocate and adviser, but the two roles are essentially different. In asserting a position on behalf of the client, an advocate for the most part deals with past conduct and must take the facts as they are. By contrast, a lawyer serving as adviser primarily assists the client in determining the course of future conduct and relationships. While serving as advocate, a lawyer should resolve in favor of the client doubts as to the bounds of the law. In serving a client as adviser, a lawyer in appropriate circumstances should give his or her professional opinion as to what the ultimate decisions of the courts would likely be as to the applicable law. EC 7-4 The advocate may urge any permissible construction of the law favorable to the client, without regard to the lawyer’s professional opinion as to the likelihood that the construction will ultimately prevail. The lawyer’s conduct is within the bounds of the law, and therefore permissible, if the position taken is supported by the law or is supportable by a good faith argument for an extension, modification, or reversal of the law. However, a lawyer is not justified in asserting a position in litigation that is frivolous. EC -19 Our legal system provides for the adjudication of disputes governed by the rules of substantive, evidentiary, and procedural law. An adversary presentation counters the natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known; the advocate, by zealous preparation and presentation of facts and law, enables the tribunal to come to the hearing with an open and neutral mind and to render impartial judgments. The duty of a lawyer to a client and the lawyer’s duty to the legal system are the same: to represent the client zealously within the bounds of the law. EC -20 In order to function properly, our adjudicative process requires an informed, impartial tribunal capable of administering justice promptly and efficiently according to procedures that command public confidence and respect. Not only must there be competent, adverse presentation of evidence and issues, but a tribunal must be aided by rules appropriate to an effective and dignified process. The procedures under which
-70-
tribunals operate in our adversary system have been prescribed largely by legislative enactments, court rules and decisions, and administrative rules. Through the years certain concepts of proper professional conduct have become rules of law applicable to the adversary adjudicative process. Many of these concepts are the bases for standards of professional conduct set forth in the Disciplinary Rules. DR 7-101 [§1200.32] Representing a Client Zealously.
A. A lawyer shall not intentionally: 1. Fail to seek the lawful objectives of the client through reasonably available means permitted by law and the Disciplinary Rules, except as provided DR 7-101 [1200.32] (B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of the client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process. 2. [omitted] 3. Prejudice or damage the client during the course of the professional relationship, except as required … or as authorized ….
B. In the representation of a client, a lawyer may: 1. Where permissible, exercise professional judgment to waive or fail to assert a right or position of the client. 2. Refuse to aid or participate in conduct that the lawyer believes to be unlawful, even though there is some support for an argument that the conduct is legal.
DR 7-102 [§1200.33] Representing a Client Within the Bounds of the Law.
A. In the representation of a client, a lawyer shall not: 1. File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another. 2. Knowingly advance a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law. 3. Conceal or knowingly fail to disclose that which the lawyer is required by law to reveal. 4. Knowingly use perjured testimony or false evidence. 5. Knowingly make a false statement of law or fact. 6. Participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false. 7. Counsel or assist the client in conduct that the lawyer knows to be illegal or fraudulent.
-71-
8. Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.
B. A lawyer who receives information clearly establishing that: 1. The client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a confidence or secret. 2. A person other than the client has perpetrated a fraud upon a tribunal shall reveal the fraud to the tribunal.
DR 7-104 [§1200.35] Communicating with Represented and Unrepresented Parties.
A. During the course of the representation of a client a lawyer shall not: 1. Communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so. 2. Give advice to a party who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such party are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client.
B. Notwithstanding the prohibitions of DR 7-104 [1200.35] (A), and unless prohibited by law, a lawyer may cause a client to communicate with a represented party, if that party is legally competent, and counsel the client with respect to those communications, provided the lawyer gives reasonable advance notice to the represented party’s counsel that such communications will be taking place.
DR 7-105 [§1200.36] Threatening Criminal Prosecution.
A. A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.
CANON 9 A Lawyer Should Avoid Even the Appearance of Professional Impropriety
-72-
Colin E. Kaufman Greenhill Partners, PC 555 Fifth Avenue New York, NY 10017 Tel: (212) 661-5500 Fax: (212) 661-5509 e-mail: [email protected]
Lorman Educational Services Trial of a Negligence Case in New York
August 13, 2004
Lawyer Talk: Opening, Objections and Summations “Broadly speaking, the short words are the best, and the old words best of all.” Winston Churchill “The soul never thinks without a picture.” Aristotle “No sinner is ever saved after the first twenty minutes of a sermon.” Mark Twain “We are not won by arguments that we can analyze, but by tone and temper; by the manner, which is the man himself.” Justice Louis Brandeis ”How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn't make it a leg.” Abraham Lincoln “That thing he said about a piece of bad meat in a stew – that's interesting. But we're not talking about stew. We're talking about murder.” Andrew A. Rubin “A child of five would understand this. Send someone to fetch a child of five.” Groucho Marx “It ain’t over ‘til it’s over.” Yogi Berra
-73-
This is why we became lawyers – if you can’t have fun in opening and summation, taking up drafting leases, wills and contracts OPENING5
PRIMACY and RECENCY
Don’t waste time – people remember what they see and hear first
Don’t start by thanking the jury – they haven’t done anything yet
Don’t tell them that what you say is not evidence, the judge just told them that and she will tell them again during the charge - if you are a defendant, you might want to honk that horn once about plaintiff’s opening, but don’t make a big deal out of it
Never, ever start off “this is a table of contents or a roadmap to those things that we expect that we will prove…”
Use a grabber “Ella Defendant knew her hundred and twenty pound Rottweiller Spike had bitten two people in the past year. She still refused to walk him on a leash. On April 5, 2003, Spike used his jaws to rip and slash Emma Plaintiff as she went to the mailbox at the end of her driveway.”
You should be able to relate the meat of your story in thirty seconds – use that thirty second capsule summary at the front end Use short punchy declarative sentences Conscientious jurors are not going to make up their minds at opening, but they will start to lean one way or the other. It is particularly important to the defendant to counter plaintiff initially, since the plaintiff’s proof goes in first. (There was one often-cited, but misread study that indicated 80% of jurors made up their minds immediately after opening – it’s not so, but openings are important)
5 Section 202.42 Bifurcated trials. (d) In opening to the jury on the liability phase of the trial, counsel may not discuss the question of damages. However, if the verdict of the jury shall be in favor of the plaintiff on the liability issue or in favor of the defendant on any counterclaim on the liability issue, all parties shall then be afforded an opportunity to address the jury on the question of damages before proof in that regard is presented to the jury.
-74-
Remember your theory of the case – get it out there immediately Sound your themes Tell stories – use specifics (abandon “he imbibed an excessive amount of alcoholic beverages” in favor of “he drank six Miller Lite beers and two screwdrivers before he got behind the wheel of his Chevy truck”) This is the only time during the trial when you are untrammeled by those pesky doubts raised by your adversary. You do need a good faith basis for your statements6, but hey can be as strong as is justified by the prospective evidence. As a plaintiff particularly, use short, emotionally loaded words. Let the defendant tell the jurors that they should decide based on a cold evaluation of all the available evidence – you want to get them mad at someone so careless that she would let this happen Defendants (if they want to win) have to have an opposing theory of the case and opposing themes – doubt about what happened is rarely enough. If you are stuck with saying as your central theme “wait until you have heard all of the evidence before you make up your minds” it is probably because you haven’t prepared enough. Memorize the phrases “the evidence will show” and “we will prove” – then don’t use them unless you are required to by the Court Use your body
- get out from behind the podium - look at every juror - use your body language to show that you are open to (and thus with) the jury - use gesture to underline the key parts of your opening
Use your voice - do not address the jury in a monotone - vary pitch, speed, volume DON’T READ
- you should know your case well enough that you don’t have to - keep a “panic outline” with your client’s name, the time, date and location of the
incident, your adversary’s name and your three main points
6 DR 7-106 [§1200.37] Trial Conduct.
C. In appearing as a lawyer before a tribunal, a lawyer shall not: 1. State or allude to any matter that he or she has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence. 2. [omitted] 3. Assert personal knowledge of the facts in issue, except when testifying as a witness. 4. Assert a personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, … but the lawyer may argue, upon analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
-75-
Openings are promises – keep your promises. If you are not sure what a witness is going to say (you should be, but sometimes it happens that you’re not) – don’t speculate. On the other hand, takes some brief notes during your adversary’s opening – if she doesn’t deliver the goods, make sure the jury knows it in summation. Use of Exhibits Ask the Court if you can use exhibits which have been identified at deposition or subjects of notices to admit (or anything else your adversary will let you get by with) – most courts will let you – every court will let you if your adversary doesn’t object Conversely, if you are the opponent of the exhibits, object that there is no sponsoring testimony, that neither you, nor opposing counsel nor the court can be sure they will come in and that, in any event, they cannot be the subject of discussion (if photos, their content cannot be discussed) before they are qualified. If you have your own exhibits that you want to use, you can work out a deal. If the judge lets the other side use them over your objection, or coerces you into agreeing to their use, then use them yourself. OBJECTIONS Use objections tactically. Don't object just because the rules of evidence allow you to. If you are overruled, you look like you don't know what you're doing. If you are sustained, it looks like what you're doing is hiding something. When to object:
(1) If the response is critical and against you. (2) If your adversary does not know how to ask a non-leading question on
direct (sometimes they will just give up and sit down). (3) If your client is being unfairly attacked (be careful with this one – jurors
expect the parties will let the other side get in some licks – your client, properly prepped, should be able to take care of herself).
(4) To show the jury the other lawyer is being unfair. (5) To break a “yes, yes, yes” rhythm on cross and give a weak witness time to
regroup. How to object:
(1) STAND UP – most judges (and most trial lawyers) consider it disrespectful for a non-handicapped lawyer not to stand when addressing the Court. If you don't, the judge will make you suffer.
-76-
(2) Say – loudly – “I object” a) The proper objection, depending on local practice, is “I object” or
“Objection” alone OR with a one-to-three word statement to the Court of the basis: “I object, hearsay” or “Objection, Best Evidence Rule”;
b) Occasionally, you can get away with a bit more 1) tipping off the jury why the response would be unfair
“Objection, Mrs. Declarant is not in court and subject to cross-examination – hearsay” or “I object – that's not the original lease and no one has told us where the original is today – Best Evidence Rule.”
2) Clueing in your witness “Objection – there is no way Mr. Witness can know what Mr.
Defendant was thinking when he hit the plaintiff.” 3) Be aware that a “speaking” objection is technically improper – do it
too much and the judge will hurt you, usually by saying “Mr. Advocate, you know that speeches when you object are improper.” The jury then thinks less of you.
If you are overruled – don’t whine, don’t argue (the time to argue is before the ruling) – rephrase or move on SUMMATION7 This is it. This is where you pull it all together. Don’t waste your opening moments – thank them at the end, if you feel you must. Up front – reiterate your 30 second synopsis of why your client should win. DON’T READ (again) If you are defendant, give your own summation – don’t spend a lot of time
just rebutting what the plaintiff said Stay away from personal attacks (unless the witness has proven himself
pond scum) – they are distasteful to the jury. Your client was injured, not martyred.
Short words, short sentences, vivid pictures
7 Buy and read: Murder Trials, Marcus Tullius Cicero (Michael Grant, tr.), Penguin Classics, New York, NY 1990
about $12
-77-
Your summation needs structure - here’s one – roll your own 1) Introduction 2) Body (no more than three major points) 3) Brief attack on adversary’s case 4) Discussion of the verdict sheet 5) tell them what you want them to do 6) Thank them 7) Peroration – recapitulation When you tell the jury what you want, use numbers Guide them through the maze of the verdict sheet in just the way you want it Pre-echo the words of the charge When you have said what you have to say, sit down. Just because you told the judge you would need twenty minutes doesn’t mean you can’t sit down after ten. Use the Exhibits – That’s why you put them in. Point at them, ask the jury to look at them, put them all on the jury rail. Make them look, make them see Remember that you don’t have to spoon-feed every conclusion. Try a rhetorical question every once in a while. “People are usually more convinced by reasons they discovered themselves than by those found by others.” Blaise Pascal Remember also that immediately after every single summation that I or any lawyer I know has given, we thought of the killer line that we hadn’t used or the area we hadn’t addressed. You are not the only one. “Everything should be as simple as it is, but not simpler.” Albert Einstein “Orators are most vehement when their cause is weak.” Marcus Tullius Cicero
-ENJOY-
Remember – Everything Counts