Recently I was asked about the issue of whether you are better off with a six or twelve person jury. Even though it is probably moot for most of our cases because we don't have a choice, it is an issue worth considering. In Washington state, where I practice, the rule provides that a party can request a six or twelve person jury, but the other side can demand a twelve person jury if six is initially requested. The insurance companies in tort cases don't allow six person juries in my experience so that even though I request the smaller jury, they demand the full jury. Here is the situation regarding the issue as I know it.

Since the 1970's there has been considerable research including empirical studies on jury size and even the U.S. Supreme court has considered the issue of six vs twelve person juries. Numerous books exist about research done on the function of juries by social scientists. No scientifically accurate conclusions can be drawn but we have some information that is probably reliable. One study is particularly worth reviewing was published by The National Center for State Courts in 2004 published a very comprehensive study entitled "Does Jury Size Matter?" but there are a lot of books on research about jury size and jury deliberation.

Here are some observations that appear to be reliable based upon the research:

In a study involving some 15,000 jurors it appeared that larger juries (more then six) are more likely to be representative of the community with minority groups, they deliberate longer, they end in a hung jury more often and they probably recall testimony more accurately then six person juries. (A Meta-Analysis of the Effects of Jury Size by Saks and Marti) Hans Zeisel's famous research in 1977 confirmed these conclusions as well.

To some extent the issue depends upon the objective:

Economic considerations? Six person juries cost less, takes less time on voir dire, reach verdict quicker etc. The judiciary favors smaller verdicts when it comes to enconomic considerations.

Peer representation considerations? Smaller juries have less mix of gender, religion, race etc. hence we have a number of cases considering size and constitutional isues. Most hold that in criminal cases less then 12 person juries are "inferior" as not representative of the community. Juries are supposed to be a cross section of the community and 6th Amendment rights require a fair jury. There are constitutional implications in the use of preemptive strikes in jury selection in both civil and criminal cases.

It also depends upon the type of case:


Criminal- If you are the defendant you want more jurors for better chance of controversy, hung jury etc. The ABA position is that a jury of less then twelve is not representative of the community. The U.S. Supreme court has considered constitutional issues in that regard.

Civil cases: if you are a defendant you want more jurors for same reason as the defendant in a criminal case, but If you are the plaintiff you want a jury that is less likely to argue among themselves, less likely to compromise in order to reach a verdict and more likely to render a unanimous verdict without a lot of controversy. Since our problem is the conservative on the jury, small group dynamics dictate it is better for the plaintiff to have less chance of controversy. Obviously, that also means if you have a lousy case you are more likely to get a quicker defense verdict with a smaller group, but even if you have twelve jurors with a lousy case your outcome is probably the same. It will just take longer.

 

Here are some random thoughts about jury selection in a medical malpractice case. Keep in mind these are the questions one would consider asking in a "traditional" voir dire.  In a Gerry Spence approach one would modify how these were asked by starting with one's own feelings or experiences as a lead to asking the jury about theirs. However, these are few of the areas you might consider inquiring about as part of a general selection process.

A. ACCOUNTABILITY

1. HOW DO YOU FEEL ABOUT THE IDEA THAT EVERYONE SHOULD BE ACCOUNTABLE FOR THEIR ACTIONS?
2. HOW IMPORTANT IS IT WE TAKE RESPONSIBILITY FOR WHAT WE DO?
3. HOW FEEL ABOUT PEOPLE WHO SHIRK THEIR Responsibility? WHY?
4. SHOULD DOCTORS BE ALLOWED TO DO THAT? WHY?

B. MALPRACTICE

1.  WHAT DOES THE TERM "MALPRACTICE" MEAN TO YOU?
2. AS OF RIGHT NOW, WOULD YOU EXPECT US TO PROVE THE DOCTOR INTENDED TO HARM SOMEONE BEFORE WE WERE ENTITLED TO A VERDICT?
3. HAVE YOU EVER CHANGED DOCTORS?  WHY?
4. IF YOU WERE THE PERSON SUING IN THIS CASE WHAT KIND OF A JUROR WOULD YOU WANT ON YOUR CASE? WHY?

C. DOCTORS GENERALLY

1. HAVE YOU EVER FELT A DOCTOR "PERFORMED A MIRACLE" IN TREATING SOMEONE? EXPLAIN
2. DO HAVE A  PHYSICIAN? HOW OFTEN SEE ?
3. HOW DO YOU FEEL ABOUT THE IDEA ABOUT WHETHER A DOCTOR IS MORE LIKELY TO TELL THE TRUTH IN A LAWSUIT THEN OTHER WITNESSES CALLED?
4. WHICH IS THE MORE ACCURATE FOR YOU:

                    I SEE A DOCTOR ONLY WHEN Absolutely NECESSARY?
                    I SEE A REGULARLY AND OFTEN
                    I SEE A DOCTOR DOCTOR ONLY FOR AN ANNUAL PHYSICAL

       5.  ABOUT HOW MANY TIMES HAVE YOU SEEN A DOCTOR THIS YEAR?

New Jersey plaintiff trial lawyer Dennis Donnelly suggests asking these questions in a medical malpractice case:

1. Name the two persons you most admire
2. Name two persons you least admire or in other words dislike
3. When you learned you might be a juror on a med malpractice case, what was the first thing that came into you r head?

Los Angeles plaintiff's lawyer Ned Good has suggested these questions:

1. Would you sue a doctor or hospital for money damages for medical malpractice if the doctor or hospital was careless and that carelessness hurt you or your loved one? Why?
2. Do you feel sorry for a doctor or hospital who is sued for medical malpractice? Why?
3. Do you believe a doctor or hospital should or should not have to pay money damages to a patient if they were careless and that carelessness hurts that patient? Why?
4.  How do you feel about caps on damages for medical malpractice? Why?
5. What amount do you think the cap should be? Why do you think this?
6. Do you think when a doctor is sued for negligence he will always answer all questions under oath truthfully? Why?
7. Do you think it is easy for a patient to get a doctor or nurse to testify that another doctor, hospital or nurse was negligent? Why?

 

 

"Just the facts, Ma’am" - Sergeant Joe Friday in Dragnet, a popular television program in the nineteen fifties

 

Examining witnesses looks easy on television and in the movies. Whether direct or cross examination, it is always very brief, entertaining and successful. It looks so easy, until you do it in a court room with a real live witness. Your own client can become your worst witness or your expert lose all credibility. Your carefully prepared cross examination can become an experience you wished had never have happened. That’s the real world of trial lawyers .

What can you do to make the examination of witnesses less painful and perhaps even successful? One good start is to apply some time proven concepts to the process. From the hundreds of books and articles written about this subject there are some fundamentals that seem to apply to most witness examinations and which we should learn.

In addition, there are two axioms that have universal application to not just examination of witnesses, but the entire trial. One of these is to keep in mind at all times that a trial is a battle of impression and not logic. It is not the merely the weight of evidence and logical reasoning that controls the outcome of a trial, but rather unconscious impression about the case. This is particularly true when it comes to witness examinations.

Another is the importance of theme in the presentation of the case. Themes capture a line of thinking and assist people to arrive at a conclusion in a few words. It is important to always weave your trial theme into the examination of witnesses.

BE PREPARED

 

The phrase is more then the Boy Scout motto. It is the first and must fundamental rule of planning any examination of a witness. Even experienced trial lawyers need to plan for the examination. To do otherwise, will inevitably result in a rambling, confusing and worse, boring examination whether it is direct or cross examination.  

The first rule in becoming prepared for the direct or cross examination of witnesses is to understand your client and their case as if it was yours. You need to be able to put yourselves in their shoes, know their thinking, their suffering and their personal background. Spend time learning about your client. How can you bring out the key facts in examining witnesses if you don’t know your client and the story of their case? In the examination of witnesses you need to know not just who your client is, but you also need to put yourself in the shoes of the witness as much as you are able to do so. Ask yourself: Who is this person inside? What does this witness fear most? What is driving the testimony? To prepare for direct and cross examination, try to put yourself in the witnesses position and think the way the witness is likely thinking. Do the same for your client. This "mental transference" should also be made with regard to the jury as well as the judge throughout the trial. During the direct and cross examination of witnesses you should be asking yourself: What is the jury thinking right now? Your examination can be much more effective if you mentally try determine what is going on in the minds of the witness, the jury and the judge.

In addition, have a plan before you start any examination. Don’t just get up and start talking without a road map of where you are going and how you intend to get there. Know what you want and how to get it. In the Wizard of Oz, each of the characters knew what they wanted. Dorothy wanted to go home. The lion wanted courage, the tin man wanted a heart and the Scarecrow a brain. They knew what they wanted and they knew how to get there, by following the yellow brick road to the great Wizard of Oz. We need the same kind of planning in preparing to examine witnesses.

How do you create such a plan? In most cases under modern discovery rules, we are aware before trial of the general nature of the evidence, the witness testimony and the information each witness will offer. Make an analysis to determine the essence of what is important and significant to your case. You need to establish what is legally required to prove your case. But you also need to bring out the facts that are compelling or important to jurors as well. Everything else is secondary. For cross examination, an analysis of what is really relevant to undermine the credibility of the witness and the defenses as well as bringing out information the witness has that supports your case should be made. In both cases, the issue is, how can this witness assist in telling the story about my client’s case?

How do you determine what is really relevant and important from what is not? The first consideration is what is legally necessary to lay a foundation for offered testimony and evidence as well as to establish the required proof for your case. This is a legal analysis The second, is to decide what should be selected from all the available evidence to be brought out with the witnesses. Determine what is important from a listener’s standpoint in either proving your case on direct or in cross examination. What are the controlling and important issues from a jury point of view? What do they want to know?

Even experienced lawyers recognize that they are not always capable of making a correct evaluation of what is important and significant to jurors from all the evidence in the case. It requires input and consultation with non lawyers. People who have no connection with the legal system, who think like "normal people" and not lawyers will provide you with the most accurate information on this important subject. Usually this takes the form of a focus study in most major cases, but it can be as uncomplicated as talking to as many people as will listen about your case. All that’s involved is a review of the facts of the case, good and bad, by ordinary people who are not involved in the legal process nor lawyers. From this feed back, you can select the subject matter that these people identify as most significant to them and therefore are most likely to be significant to jurors in your case. You also create your theme from this feed back by reviewing what these ordinary people think and say about your case. The facts and issues are then organized in the order of priority based upon the importance these people have indicated. From this outline you create both your direct and cross examination points, the case theme and the key issues in the case.

BE FOCUSED

 

Staying focused in both direct and cross examination is very important if you want to maintain interest and persuade the jury. It’s been said that if you are hunting rabbits, you need to concentrate on only one rabbit at a time and not try to chase after everyone you see. Trying to cover every possible issue and subject is a sure way to conduct an ineffective examination of any witness. By using the outline you create from the review with non lawyers, you are in a position to prepare a direct and cross examination which is focused and relevant to what the jury is interested in hearing. It is supplemented by any legal requirements for establishing your case or the introduction of evidence.

To help stay focused throughout the trial, it’s helpful to have a single sheet of paper in front of you at all times to remind you of the need to keep it short and simple, to stay on the subject and to focus on your what you know are the significant points in your examination of witnesses. In fact, the title of the paper might be in bold print: "Keep it short and simple." Below that briefly state the theme you are following. Then outline clearly and briefly the key trial issues. Use this for a quick reference and continuous reminder. By referring to this sheet regularly during examination of witnesses you are reminded to always stay focused upon your story of your client and the fundamental issues in the case rather then be distracted.

BE BRIEF

 

Jurors and judges become bored with long rambling examinations of witnesses whether on direct or cross. To persuade we need to capture and keep interest. If the jurors aren’t listening you are not going to convince them of anything. To keep interest means, in part, being brief and to the point. Focus your case. Evidence is like an iceberg. The bottom below the surface may be enormous, but only the tip is can be seen above the water line. That’s how your examination should be framed. Only a small amount of the facts are really significant or persuasive. Concentrate on that twenty percent this is significant and ignore all the rest. Focus your case. Identify the issues that count. Stick with those issues. ignore the rest that is not highly relevant. Use a rifle not a shot gun approach in your examination of witnesses.

Remember, you are telling a story, wether it is direct or cross examination. Telling a story involves not only organization, but also brief interesting facts, keeping it short and to the point. Years ago, match book advertising was very popular. The message had to be brief, but communicate a clear message in a small space. Today all we need do is to watch the evening news to see the same method of communication used. Note the time devoted to major television news stories. Usually less then two minutes with photos is all that is required to communicate a great deal of information. Another example is the print media such as USA Today or People Magazine which limit stories to very short articles but which convey a full message. A message does not have to be long and complicated to tell a complete but interesting story. As the late Bishop Fulton Sheen once said "a sermon is like drilling for oil. After the first ten minutes, if you haven’t struck oil, don’t bore any longer." The same is true in trial when we examine witnesses.

A well told story requires work. If we are not prepared and not focused in our examinations we will always ramble and provide irrelevant as well as unnecessary details. It is this kind of detail that cause boredom in our listeners. We reason to conclusions by general impression, that’s what counts to the jury. To create favorable impressions in our examinations we need to eliminate facts which are not important and only clutter up the discussion as well as waste time.

MAKE DIRECT EXAMINATION INTERESTING

 

Our goal in either direct or cross examination of witnesses should in part be "never a dull moment." We want to keep interest so people will listen and to communicate thoughts which will persuade. That means telling a story in an interesting manner by the way we conduct our examinations. On direct examination, you should present your case as a story. In conducting direct examination you have choices in how to do so. You can examine as if it were a narrative by a long questions and short answers, a step by step, process keeping tight control. People who are locked into a prepared question and answer outline often end up doing this. But it is very boring. It sounds rehearsed. It lacks spontaneity. However, asking more open ended questions and allowing the witness to tell their story is interesting and far more persuasive. The witness should be allowed to tell their story by your manner of examination as if they were telling their neighbor what happened. Direct examination which is conducted by open ended short questions allowing the witness to expand and explain is far more interesting then closed ended questioning restricting the witness to a few words in response. In thinking about how to conduct direct examination, remember Rudyard Kipling excellent advice. It is what direct examination is all about:

"I kept six honest serving men. (They taught me all I knew) Their names are what and why and when and how and where and who"

Messages in a court room that are too complicated result in jurors mentally shutting down and blaming the lawyer for their problem of not understanding. Therefore, your direct examination should be uncomplicated and your points simple to grasp. Frame your questioning in a way in which the facts are explained, technical terms defined and examples a frequently used. Use demonstrative aides and other devices frequently in the examination.

We all know the importance of first impression. One never gets a second chance to make a first impression. The beginning of your direct examination is important. It experts are right, the first three minutes of any presentation, especially witness. examination, are the most crucial. If we don’t capture interest then, we may never fully regain it. The American attention span has shrunk with changes in how we get our news and information. The advertising industry is very aware of this fact and explains how a thirty second television commercial can have a significant visual and mental impact. Plan your examination with this in mind.

In that regard, if you are the judge or juror, what is the first thing you would want to know when a witness is called on direct examination? For most people it is: who is this person and why are they being called as a witness? If you begin your examination of an expert, for example, by going through a long qualification process, you are likely going to have jurors trying to guess the answer to these questions and in addition, mentally drifting off. Instead, why not tell them right away? Most judges aren’t going to be upset with an innocuous leading question for the purpose of setting the scene such as: 

Q. "You are Mr. Smith’s physician who examined and treated him? You are prepared to tell the jury what you know and what conclusions you have reached?

You can always re-frame the question to be non-leading if required, but what’s important is not to leave the hearer wondering who this person is and whey they are being called as a witness. This technique can be applied to any kind of witness called on direct and it sets the stage for the jurors to know what to listen for and gives them an interest in the examination.

As to establishing the qualifications of an expert or witness you must, of course, lay a sufficient foundation for admissibility, but if too prolonged and intensive the jurors will find the process of qualifying an expert boring. You need to balance the process by summarizing and focusing on significant factors that make the witness especially qualified to offer opinions. The details of the experts achievements are not often important.

In addition to making a correct start and being clear as well as brief, remember that visual aides are very important in direct examination. Breaking up the examination with such things as drawing or writing on the paper or blackboard or demonstrating something is an effective way to explain as well as keep the examination interesting. Electronic technology such as visual presenters and software presentations are common in trials today. When not over done these modern devices can be time savers as well as enhance interest. Simple things such as posters, models, photographs or overhead projectors still are helpful tools in the direct examination process.

I've just finished the book How We Decide by Jonah Lehrer and it has information that should be of interest to trial lawyers. Here are some passages from the book.

I've preached the importance of avoiding the spiral of nervousness leading to self study and then focusing only on ourself doing what we are doing instead of the communication you want to deliver. The result is a poor performance.  Experience allows us to conduct ourselves without thinking about what we are doing. When we drive a car we don't think about each step of pushing on the accelerator or moving the foot to the brake. It's done automatically by us. In a court room we need to do the same. As the book points out, when a person gets nervous about performing they become extra self conscious. They start to focus on themselves trying to make sure they don’t make any mistakes. They began to think about things that should be done by "auto pilot." and the result is the move like a robot or freeze.

There is a great need for lawyers to simplify, to make communication clear and especially brief and to the point. The conscious brain can handle about seven pieces of data at any one moment. Some scientists believe that any problem with more then four distinct variables overwhelms the rational brain. Others believe that a person can consciously process somewhere between five and nice pieces of information at any given time.  This means at trial we need to be simple, brief and clear. Our exhibits should communicate one idea at a time. Three points or claims of negligence are a maximum to present at time. Bullet point charts with multiple entries are confusing and worthless. Overwhelming the judge or jury with information is self defeating.

I have a friend who asks the jury about "excessive verdicts" and does it by referring to a huge multi million dollar result that was in the news. From there he goes on asking what their ideas are. This is a valid anchoring technique. In one study, researchers had people first adopt a random number  such as the last two digits of their social security number and then asked about a numerical issue. They found the number influenced what figure the people ended up with. High random numbers resulted in high conclusions and vice versa.  In one experiment known as the United Nations game, people were asked to guess the percentage of African countries in the United Nations. However, before they guessed a roulette wheel was spun until it stopped on a number. People who saw a higher number guessed significantly higher numbers then those who saw a low number. This anchoring effect has been shown to have a strong impact on decisions in a variety of ways. For example, the purchase price on the car influences our thinking that a price which is discounted  from the sticker price is really a bargain. The rational brain has been show to have difficulty disregarding false, irrelevant or useless factual representations. While you know you are not supposed to consider these meaningless numbers, you can’t help it.

Another disadvantage of over trying a lawsuit by calling too many witnesses or providing too much information is that it creates problems. There is a problem with too much information causing wrong choices. MRI’s were hoped to provide information X Rays weren’t able to provide in considering back surgery. After MRI became available the number of diagnosis of abnormalities in backs skyrocketed as did surgery which wasn’t really needed in 1994 the new England Journal of Medicine did MRI’s on ninety eight people who had no back complaints at all. The images were sent to doctors who did not know the patient had no complaint. Two thirds of the doctors found serious problems in the images justifying surgery.

People with pre existing strong beliefs, prejudices and attitudes simply filter out contrary information. The prefrontal cortex is an information filter, blocking out disagreeable points of view. A hedgehog is a small mammal covered with spines. When attacked it has only one defense, to roll itself into a ball with spines pointed out. The fox on the other hand adjusts it’s strategy when threatened depending upon the circumstances. Some people are hedgehog thinkers, they simply reject all of the contrary information to their preexisting conclusions. Others are fox thinkers who consider the facts.

 

A.J. Levy sent me an email about his blog:
www.outoftheboxlawyering.com. He says:

One posting is about focus groups -- I saw one of your postings on those. This is about an-out-of-the-box way that a p.i. lawyer selects the members of his focus groups/mock juries.

http://www.outoftheboxlawyering.com/juries/selecting-mock-juries-and-focus-groups-a-very-out-of-the-box-approach/ 

I also have postings on how to find info on potential jurors, witnesses, defendants, etc.

http://www.outoftheboxlawyering.com/finding-information-on-the-internet/how-to-find-information-about-potential-jurors-and-others-including-info-about-their-political-contributions/

http://www.outoftheboxlawyering.com/miscellaneous/more-sites-for-finding-info-on-jurors-lawyers-and-others/http://www.outoftheboxlawyering.com/miscellaneous/more-sites-for-finding-info-on-jurors-lawyers-and-others/

Another posting is about a creative use of Google's Street Views. Although it relates to saving money at conventions, a secretary said she was going to use it when her family goes to one of the Disney-like amusement parks.

http://www.outoftheboxlawyering.com/google/a-creative-way-to-use-google-street-views-using-it-to-find-a-cheaper-hotel-room/

Finally, there is one about how videos and sound can be inserted into a pdf file.

http://www.outoftheboxlawyering.com/software/you-can-insert-videos-and-sound-into-pdf-documents/

There are more, but I hope that you might be able to use some of these as well as any others that you like.

Best regards.

A.J. Levy

During my commute from our home in Gig Harbor to our law office in Seattle I’m listening to a book on tape about the observations of Sun Tzu in the 6^th century BC generally referred to as The Art of War. I have read this material several times, but I gather new thoughts each time I review it. Here are some ideas from the book that I think apply to trial lawyers.

A couple of the precepts include the following thoughts. How many times have we signaled our entire approach to the defense through our broad deposition questions and overly verbose responses to discovery? We are ethically obligated to make full disclosure of facts and evidence, but trial tactics are privileged.

"signal to the East and strike to the west" 

Aren’t we all guilty of yielding to the temptation to chase every defense side track thrown up to distract us from the strongest point in our case. As we do so we create confusion and doubt over issues that aren’t the key ones we should be focusing upon.

"avoid the strong points and attack the weak"

Have you ever been in trial and had a really bad day? I have and this thought seemed very important in that regard: "Ultimate victory is not in winning every battle, but in defeating the enemy." That’s a good thought to keep in mind on a bad day in trial.

The book discusses "qi" from Taoism or Daosim. Tao can roughly be described as the flow of the universe or the force behind the natural order of things. It is that which keeps the universe balanced and in order. The flow of qi as the essential energy of action and existence. This concept and the idea of the yin and the yang is directly applicable to our trials. Things don’t always go the way we planned, intended or hoped. We need to not panic, but to "go with the flow" and keep moving ahead. This ability to not lose heart and not become depressed is essential for great trial lawyers.

When it comes to trial strategy, we need to give some thought to how we approach trials and how we proceed. One of the classic stories of Chinese literature and thought involves what is called "the ruse of the empty city." This is a famous story from a Chinese novel The Romance of Three Kingdoms. As a army of some 150,000 men and their general reach a city defended by general Zhuge Liang, there are only 5,000 defenders inside. Zhuge analyzes the situation and orders half of the soldiers to leave the city to another location. He has the remaining soldiers hide out of sight. He dresses some soldiers in civilian clothes and has them casually sweep streets near the gates to the city where they can be seen going about daily activities and then orders all the gates of the city thrown open.

Zhuge then goes to the area above the main gate where he is clearly visible. He is dressed in his finest clothes and has two page boys with him. One lights incense and the other fans him while he lays on a couch playing his zither in full sight of the opposing army. His own soldiers think he has lost his mind and are mystified by his actions. The other general, however studies the situation carefully and then orders his army to not invade the city, but instead to leave the area quickly saving the city and Zhuge’s army from sure defeat. Afterwards Zhuge explains that he knew the other general was a man of suspicion who knew Zhuge’s cautious nature in battle as one who rarely took risks of any kind. He also knew that Zhuge employed misdirection and ambushes as a tactic of war, so he concluded this was a well laid out trap and ambush. Zhuge won the battle without fighting a war. We can all draw the lesson from this story about the benefit of tactical decisions in trial.

We just returned home after two weeks of travel in Europe so I am behind in posting to this blog. I haven't had a chance to develop something for this week so let me share a short story of my start as a lawyer almost half a century ago. 

It was forty six years ago at a movie theater in down town Spokane. A dozen or so of us gathered on a Saturday in the movie theater with our families and law school representatives. We were there to receive our law degrees from Gonzaga Law School. All of us had attended night school for four long years while holding down paying jobs during the day. I had worked for a lawyer doing briefing and other work. We were now we were receiving our diplomas (written on large parchment paper in Latin). All of us except the fellow sitting next to me. When he unrolled the paper he found it was a blank page with note inside advising that until he paid a fee owed to the school he would not get his certificate. It’s hard to believe that almost half a century has gone by since that day.

After looking for work in my home town of Anacortes and being told there were enough lawyers there already, I was offered a job as a part time deputy prosecutor for Skagit County by the Prosecuting attorney Walter ("Jack") Deierlein. I was to prosecute cases in Justice Court which were located in the towns around the county. These courts no longer exist. They were replaced by our present day District Courts. The unusual fact about these courts was that the judges were part time and were paid a percentage of any fine they assessed. Furthermore, the judges did not have to be lawyers and only two of them in the whole county were lawyers. The rest were garage mechanics and others who were allowed to serve as a judge. As you might imagine, the conviction rate was extremely high so fines could be assessed or the judge wouldn’t be paid.

Before I was hired no one from the prosecutor’s office appeared in these cases normally. As a result the custom had developed of allowing the arresting law enforcement officers to prosecute their own cases. Law enforcement officers would make a brief opening statement, testify, cross examine and sum up the case. Some became rather sophisticated. In one of my first prosecutions fisheries officer William Gufler poked me in the side and whispered: "object - hearsay."

Mrs. Cook was the only secretary in the prosecutor’s office. She was the secretary for the prosecuting attorney, the other deputy Harry Follman and myself. Since under the law we all were all part time prosecutors we all had a private practice. She had been a legal secretary for years and was fully informed about prosecution work as well as civil practice. In fact, no matter what I dictated she would type what she believed was the correct dictation and would totally ignore what I had dictated. I quickly learned to accept the fact she knew a lot more then I did about the practice of law.

The wonderful thing about trying cases before non lawyer judges was that you had to learn how to communicate simply, plainly and from their viewpoint. You learned to see the big picture and identify compelling issues because most of these judges had small regard for strict rules of evidence and were primarily interested in accomplishing their idea of justice

We had no public defender in Skagit County, but we did have John Brisky. In middle age, John had clerked his way to a law degree without ever going to law school. He had a generous spirit and represented many defendants in criminal cases both in Justice court as well as Superior court. He defended many of the Justice court cases and most of the defendants could not afford to pay much if any fee. When the judge would call out the names of defendants as their cases came up, I’d watch John finger his way through a stack of paper and if he found a name would respond that he was the attorney for the defendant. It was his form of a fee contract. The papers were printed form promissory notes signed by the defendants for the amount of his fee. The great majority were never paid.

After awhile I was allowed to prosecute cases in Superior court. Judge Charles Stafford and Art Ward were the two Superior court judges in Skagit County. Both played a significant role in my continuing education as trial lawyer. Judge Stafford was a student of the law. He was the first judge to ever serve on all three court levels of Superior court, Appellate court and Supreme court. Judge Ward was a very bright lawyer who had been a plaintiff’s trial lawyer for many years in Sedro Woolley. Both judges considered it part of their responsibility as a judge to educate lawyers who appeared before them. Judge Stafford required legal briefs on every conceivable issue in the case and was a stickler about rules of evidence. Judge Ward had little patience for poor trial tactics and unprepared lawyers. Neither were reluctant to point out during the trial their dissatisfaction with the work or the conduct of lawyers who appeared before them. In addition, as part of their educational process, if you asked, and sometimes even if you didn’t ask, they would advise lawyers about proper trial procedure or trial tactics during recess or after court. Lawyers would often wait for the jury verdict with the judge in his chambers in the old court house building. When you heard sounds of toilets in the next door jury room, through the wall, continuously start flushing you knew the jury had a verdict.

When I started the practice of law, lawyers in the county were always ready to help young lawyers. For example, Ruben Youngquist had the largest probate practice in the county. When I had a question about probate I went to Reuben who would open one of his metal filing cabinets, search around and pull out a file which he would hand to me and say: "Here, follow this file and copy the forms." Then he would carefully explain what I needed to do. George McIntosh was an outstanding lawyer and a great defense attorney with his low key down to earth approach. He had a great skill of simplifying and organizing. He taught me the benefits of a three ring notebook with dividers and notebook paper long before lawyers were advised to use a trial notebook. Clyde Fowler, was a local lawyer who once was my ghost writer in a successful negotiation. I had a plaintiff’s case and didn’t know how to try to settle it. The Seattle defense lawyer never found out who was the real brains behind the skillful negotiation.

I don’t think I ever missed an opportunity to spend some time watching jury trials in Mount Vernon whenever an out of town lawyer was involved. I watched some of the leading lawyers from around the state try cases in the Mount Vernon courthouse. Many of them were willing to discuss trial with a young lawyer during the noon recess or after court. The trial judge was always willing to give advice after court as well. I remember one trial when a Seattle lawyer found out that a prospective juror was a distant relative of his opponent, Mount Vernon lawyer Alfred McBee. He asked the juror if he thought that fact might influence the juror. The juror said "Well, I should would hate to see Alfred lose." Robin Welts was one of the finest trial lawyers I observed in trial. He did both plaintiff and defense work as well as maintaining a general practice. Most lawyers had a very general practice in our county. Robin was an exceptional trial lawyer who was always willing to give advice and help. Both he and McBee also were elected president of the Washington State Bar Association.

When I began the practice we followed laws of code pleading - not notice pleading which someone has described as nothing more in a complaint then "pointing and grunting." Pleadings were very technical and the motion practice significant as mistakes were often fatal. One had to be careful about the wording of a complaint.

There were few depositions and with limited scope. Interrogatory practice and our modern discovery practice didn’t exist. Trial by ambush was the norm for the most part. Trial lawyers had to be prepared to cross examine witnesses they may never have heard about before and new nothing about until they began testifying. Discovery meant using your wits or a private investigator to find out what you could before trial. In earlier days in was not uncommon for witnesses to be unavailable to the other side until they testified or perhaps not around until the trial was over through intervention of one of the parties. Lawyer developed the skill of thinking on their feet in trial, of dealing with the unexpected and in being prepared for surprise. It had the advantage of not spending a lot of money on discovery and in shorter cross examinations since one never new what to expect.

In these pre television days, people would come to watch significant trials as a form of entertainment and any lawyer who couldn’t quote literature or scripture was not prepared to trial jury cases. The whole pace was slower. Things were simpler. It was a very different era then today. There were no jury trials in the summer. Jury trials, in general were shorter then today. A two to three day jury trial was common and some lawyers would try several cases a month. The amounts involved were significantly less. A common auto policy was the "nickle and dime" policy of $5,000 per person and $10,000 per occurrence which was considered more then adequate coverage. There were no million dollar verdicts. In fact, when Melvin Belli achieved a $100,000 jury verdict in California it was national news as a record verdict.

I’m thankful for the blessing of having been allowed to act as a lawyer during this period and up to the present time. Being allowed to represent people who are in need of help legally is an obligation to always put the client’s interests first. I am as convinced now as I was when I was handed my diploma that being a lawyer was a privilege

I am in Madeira, Portugal out in the Atlantic ocean near Morocco, Africa so my postings will be brief and perhaps irregular until our return. I've also admired and benefited from Victor E. Frankel's book  Man’s search for Meaning. Here are some of rthe observations from this man who survived Jewish concentration camps where so many people were murdered. Why am I sharing these on a legal blog? Because I believe these are thoughts we trial lawyers can benefit and learn from.

Fate in the concentration camps:

Frankel writes about the story "Death in Terran" where a man's servant goes to his master and says he just saw death and he needs a horse to leave town because he knows death has come for him and he must escape. He plans to ride to Terran to escape death. The master gives him and horse and the servant rides full speed to Terran. Later the master encounters death and asks "why did you frighten my servant?" Death said, "I didn’t. I was just surprised to see him here because I expected to meet him in Terran." It's a story about fate and inevitable outcomes.  In the concentration camps Frankel decided he would not try to  figure out what the best choices were to avoid death and instead let fate take it’s course. In the concentration camps choices as to which line an inmate got  into might determine whether he died as a result of why the guards were forming lines. Frankel decided he would not try to figure out which line was best and try to get out of one line or get into another. Nor would he try to figure out which jobs to try to get to imprve his chance for survival. He would instead accept whatever fate had in store for him. 

The primary goal of man is to find meaning in life

Frankel's observations and experiences led him to conclude man’s primary need is not to gain pleasure or avoid pain, but rather to find meaning in life. That is our overriding drive and is absolutely necessary for happiness and survival. Prisoners who found a reason to live, even if it was revenge, were  far more likely to survive then those who gave up or had no fixed purpose in life nor found a meaning in life.

Learn to embrace natural fear

Frankie also concluded that fighting fear actually causes to happen what one is fearful about. Therefore, one should do the opposite of fighting fear.For example, if you are nervous when you stand up, instead of trying not to be nervous, instead say to yourself I accept my nervousness and understand why I am nervous. I am going to continue while being nervous.

Responsibility

Frankel argues that freedom carries a duty of responsibility. We need  to accept responsibility for our duties and for our choices. It is important that we fulfill duties of responsibility. He says there should be a companion statue to the statue of Liberty: The statue of Responsibility.

I receive an e-mail news letter from a publication The Jury Expert at http://www.astcweb.org/public/publication/index.cfm which I find has valid helpful advice about jury selection in many of the articles. I get a number of e-mails regarding various services and publications on this subject, but this is one publication I can recommend. It is published by the American Society of Trial Consultants. Frankly, I don't know how I got on the mailing list and I am not paying for it, but I would pay for it because it is that helpful. I suggest you check it out and see what you think.

I’ve written about the importance of focus studies and how to conduct them for more accurate feed back information. I’ve recently conducted three "informal" focus studies. That is, these are ones where the group is arranged by a service, the meeting is in our building in a conference room and we arrange the study on an inexpensive and informal basis. I recommend How to do Your Own Jury Research by David Ball with Debra Miller and Artemis Malekpour. Published by Trial Guides http://www.trialguides.com/iwin/ball-focusgroups.php)for an excellent book on this subject.

Here’s my own approach to this kind of a study. I start with an introduction to make sure everyone knows what is going to happen and why the study is important. I cover the following points:

Introduce people I identify everyone there including the paralegal. However, I do not tell them I am a lawyer or which side I represent because that can influence the responses. In the last session the group thought I worked for a survey company because they said I was objective about how I conducted the study.

Video Tape If I am video tapping the session I explain that it is being done so we can later watch it for more study

Real Case I make it clear this involves a real case and real people. The decisions and opinions are very important because it will influence what is done with the case. Decisions will be based on their statements and opinions

Honesty I emphasize that it is important to be totally honest about initial reactions and views.

Confidentiality I explain why confidentiality is important because they might inadvertently say something to a prospective juror in case without knowing it which would impact the jury pool and trial.

Procedure We will present information about the case in written form in order that we provide the important information. We will read it to them

We will show one minute excerpts from the key people involved and ask them to fill out a memo of their impressions of them. If they were to have met them at a party and talked for them for a minute, what would their impression have been?

They then will fill out the verdict form with questions about their decision and views.

After the verdict form will go around the table and ask each one how they voted and why

Next we will ask what questions they wanted answered and what information did they need. We will not answer these until we have everyone’s questions. This is to help us identify what they thought was important that wasn’t answered by us.

After that we will have a general discussion

Please note: Before filling out form we won’t answer any questions & no discussion because discussion can influence how other people think and initial impressions can be changed after listening to someone else. We want initial impressions

The video impression sheet is very simple. It says: Impression: ( ) very good ( ) good ( ) average ( ) below average ( ) bad Reason and blank lines to fill in.

The verdict form begins by a ranking as to strength of their decision. For example, here is an opening question from a recent study: Was defendant University of Washington negligent?

___ Absolutely yes___ Probably yes___ Probably not___ Absolutely not

They then give their verdict. The same technique is used on damages. The first question is how they rank the damages. Here’s an example: As a general evaluation, what size of verdict is appropriate in this case for plaintiff Joe Smith?

___ Nothing___ A very small amount___ More than a small amount___ A large amount ___ A very large amount

This is followed by a request for a specific dollar amount. This verdict would also ask them to fix percentages of fault for people and ask if there is anyone not named they think is at fault.

This kind of simple procedure is very helpful for general evaluation of a case. It is not perfect and it is not scientific but it is great improvement over asking your lawyer friends what they think of your case