A friend of mine who is an outstanding plaintiff’s lawyer was giving a talk on the subject of the experience of having your case began to deteriorate. He asked me for some thoughts and what follows are suggestions. When this subject comes up, I always think of the great New York plaintiff’s lawyer Moe Levine. He has written that he was once trying a case before an abusive judge who did everything he could to undermine his case. Several days into the trial, while the judge and jury were present, Moe began packing his brief case and indicating he was leaving, causing the judge to ask what he was doing. He says he told him it was clear there was no chance of a fair trial in this courtroom so he was leaving. He indicated he was taking a non-prejudicial dismissal and left.

Maybe Moe was being apocryphal, but haven’t you ever wanted to just pack up and leave at some point in the trial when disaster happens? Since, that’s unlikely to happen, here are ten things to consider when your case seems to be losing momentum to the point of concern.

  1. The first thing is to remember that a trial is a battle of impression and not law or logic. Therefore, the question is what is the general impression you, your client and witnesses are making. What about your demeanor, your reactions and your body language?These are the most important factors which influence how the jury perceives your case. You need to maintain a consistent good demeanor with a constant theme and project the righteousness of your case at all times. However, you also need to have a sense  of humor at appropriate moments as well as being willing to acknowledge, without attempted cover up when it is apparent to everyone things went bad. Otherwise you lose the impression of sincerity and trustworthiness you must have with the jury. In the same way a professional poker player must maintain a consistent demeanor, your demeanor needs to be unchanged because, like a runner in a race, if you project you have given up giving up, you are a loser and the case is over.
  2. When you sense that the case has taken a wrong turn, you need to take the time to analyze why. When we continue to do the same thing in the face of a lack of success we will continue to get the same bad result. You must have a willingness positive and objectively analyze what you can change in an effort to try to put the case back on track again. You may have to do this more than once but you must be willing to objectively analyze and face the truth.
  3. Since we often have trouble being objective about ourselves it may be important to have an objective  third party analysis the problem. You need to be totally open to the criticism that it is your attitude, your mannerisms or your communication that represents a contributing cause of the problem. Is arrogance, smart aleck attitude or general anger part of the problem? Should you change your attitude, your demeanor and the way in which you are conducting yourself? Your case is often judged by the impression you create. Be willing to change mid-trial if necessary.
  4. You need to evaluate whether there is a change of legal position you can make to improve your chances. Are you making a claim that can be dropped which is the weak part of your case causing the problem? Are there witnesses you can call or not call that would improve your position with the jury? Is there any alteration you can make in approach, while being consistent with the main theme that would help?
  5. You should evaluate whether you can focus evidence or witness testimony to concentrate on some weakness in the case. Would a change emphasis be of benefit? In general what we talk about the most becomes the most important thing that jurors see in our case. Where is the emphasis in our case and is that part of the problem? Should we refocus in that regard? We need to be willing to modify our approach and not be so rigid with our planned trial when it is necessary.
  6. Sometimes the problem is that you have ignored the jury. You’ve tried the case as if there were no jury, just you and a witness. Too many lawyers do not maintain appropriate eye contact with the jurors, involve them in the process and make clear that they are fully aware of the juror’s involvement in the case. Consider whether you need to involve the jurors through eye contact and general acknowledgement of their role. If there are particular jurors who seem to represent the problem, is there anything you can do to appeal to them through your eye contact and approach?
  7. It is important to make a special effort to arm the jurors who are on your side with arguments in the jury room against those who are not on your side. While jurors make up their mind early in the case, be sure to specifically give the jurors on your side arguments to use in the jury room for your position. For example “Someone might say in the jury room, ‘that doctor smith was caught in too many inconsistencies’ but remind them of all the supporting evidence and testimony …..Etc.
  8. Remember that truth is the most powerful persuader in a jury trial. I had a friend in Spokane who was a great trial lawyer. He was presenting a case when his key expert completely come apart on the stand to the point of embarrassment. In argument he took full responsibility and apologized in summation.  He told them that he was totally mortified, ashamed and embarrassed by the witness because Bill took full responsibility for presenting only valid truthful testimony and he had failed to do so. He told them he had spent his life presenting honest and truthful evidence in court and this was something he had to live with. What really bothered him was his innocent client would likely suffer the consequences of his failure to screen the witness properly and so on. He recovered a very good verdict because of his sincere acknowledgement of the disaster and taking responsibility for it.
  9. It may well be that the situation is serious enough to consider whether you should try to settle the case. Mike Koskoff, a great plaintiff’s lawyer, says that his father Ted who was an outstanding plaintiff’s lawyer had a rule: Never settle on the day you have had a trial problem. If settlement is a compelling alternative avoid doing it on the day of the major disaster but rather to try to time it for when you had a good day.
  10. As a last resort, if your trial has become a true disaster you may have to consider whether you can and should take a voluntary dismissal with a plan to refile and try it again. Clearly this is a last resort alternative but it may be appropriate in the right circumstances. Michael Sterbick was an outstanding plaintiff’s lawyer in Tacoma some years ago he was involved in a trial where things simply were going wrong. After more than several days of trial he elected to take a voluntary nonsuit. He later refiled the case and tried it to a very good verdict. When I talked with him about it he said that the expense and additional effort had been worth it because it allowed him a chance to reframe his entire case and how he approach that a trial. This may be the only alternative in rare circumstances.

Well, those  are some ideas short of running out the courtroom door when you case begins  to become sour. Be strong and  courageous. Keep going.

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We’ve just returned from a twenty one day Four Seasons tour of some 25,000 miles of  flying to to seven  countries  around  the world. As a  result, I’ve  neglected this blog, but I’m back to work even if jet lagged.

Today I’d like to share some  wisdom a column I  read in the Boston Globe by Thomas Farragher Thomas.farragher@globe.com. He wrote it  complaining about long winded commencement speakers, but thought his observations were equally applicable to us as trial lawyers. He begins the call him by saying that he just attended a graduation and the  commencement speaker had “told a big fat fib.” He explains that the speaker had assured everyone that he realized how eager they were to get past the speeches and celebrate their graduation but says “then he went on for hours – at least it seemed like hours – in a coma inducing speech about how really, really important it is that we get rid of fossil fuels.” He says that his mind began to wander and  he had thoughts about such things as what was the matter with the Red Sox bullpen and other passing thoughts. We know that  is exactly what happens when we drag our direct or cross examination out too long or are reckless about talking  excessively at any  point in the trial – the jurors mentally drift off. Anything that is  boring or too complicated for jurors results in their struggling to pay attention, then becoming annoyed and finally just turning off  mentally. Nothing is  worse than telling jurors you are going to be brief and then do the opposite.

Farragher explains that later he spoke to the speechwriter who served as Pres. Obama’s chief speechwriter about whether he agreed with the golden rule of public speaking: “Be sincere. Be funny. And be seated.” He quotes the speechwriter as saying: “I think 10 minutes is the ideal. 15 minutes is okay.” The speechwriter also advised that speakers: “respect the audience. Recognize that they care more about celebrating educational achievement than listening to some duller – then – dirt policy address.” Another tip from the speechwriter was: “introduce humor, but in a way that does not seem forced or fake. I  would advise trial lawyers  to be cautious about humor. Have a sense of humor. Laugh at your own mistakes, but avoid making a trial seem less than important by your demeanor.

In this day and age, when the attention spans are so short, people can only absorb one or two or at the maximum three lessons. The speech should tell a story and not just in anecdotes that you use, but you should tell an overall story about one thing.” I would add that a trial is a story. One that is told over and over from jury selection to argument in a variety of ways.

The speech writer advised: “Above all think brevity.” Those of you who know me know that I am obsessive about trial lawyers being brief using simple and understandable words. My motto is short and simple with no more than three points or ideas per subject. Pres. Obama’s speech writer noted that when he conferred with the president about speeches, he would remind the speechwriter that his 2004 convention keynote speech which resulted in him ultimately being nominated and elected president was only 18 minutes long. As a result he says it was their “Rule of thumb” they always tried to follow – no more than 18 minutes.

Farrager relates that a few years ago at a commencement address the speaker walked up to the lectern and pulled out an old-fashioned alarm clock with the two small bells on the top. He promised the audience that he would be through before the bells rang at the 10 minute deadline and  set the clock. He relates that the speaker’s concluding sentence ended just before the bells rang and with the crowd going wild in applause and appreciation.

Now that’s an image you should  have in your head  when  you are speaking – the crowd going wild when you stop and sit down!

I’m always being reminded  that the most important rules  of  communication and persuasion are always the simple ones. We should continue to  learn, but never forget the fundamentals  of communication or be deceived  into thinking we are the oratorical exception to the basic principles.

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I was asked to explain how I would go about deciding the right way to approach damages in a case involving a child who suffered shoulder dystocia at birth. Here is a rough summary of my process. Here is what  I told the lawyer. While this is my viewpoint, Perhaps it may stimulate some  ideas for you

Rid your mind and your thinking right now about other verdicts in cases like this. Your case is not controlled by the results of some other lawyer in some other case. The only limitation on damages is your subjective thinking. You have to absolutely disengage from the efforts of other lawyers in these cases. Your evaluation must be about your case and the issues in this particular case without regard to other settlements or verdicts. There is no standard range of values. Other verdicts and settlements are only valid until someone gets a larger one. 

Start with the now situation. What are the daily activities of this person – eating, dressing, running, playing, working, walking etc. Spend real time watching & learning. Now move ahead in time and repeat the process.  What will this mean in the future. Think about it year by year. Think about the impact of this injury not in some clinical medical way but entirely through the eyes of this client and her personal experiences. We don’t care about the medicine, nor the medical text’s regarding the injury.

We don’t care about the medical evaluation. What we care about is how this impacts her personally, socially, mentally for her entire life – on a personal level involving practically every day activities every person on the jury will understand. This is a form of psycho drama because it involves total role reversal with the child at different periods in her life. Rid your mind of lawyer considerations, legal proof, medical correctness, intellectual issues and think like this person’s outlook as well as the view of the jurors listening. Only the defense lawyer and the judge care about the other legal issues and they don’t vote on the verdict. We really don’t care about clinical considerations of measurement of injury or medications. What we care about is how this impacts this client on a daily basis in their daily life activities. 

Be prepared to explain through the client’s perspective how at each stage of life this injury impacts her in a practical every day way. Live it in a way that you feel it through role reversal. I suspect focus studies would identify negative issues like:  “time heals all wounds” and she will adjust to it;over time she will get used to it; lots of veterans have worse injuries and they get along. Deal with these in jury selection and opening  and generate discussion:

Do the jurors really think a person with an disabling injury gets used to it over time when every new meeting of someone else and every day’s activity is a new challenge? They might learn to put on a good face, but deep inside it is an open wound. They might learn to get around the injury from a functional standpoint – dressing etc, but they never learn to get around it from a mental standpoint and that’s where the damages are. The damages are not in physical limitations. The jurors will believe she will adjust and learn to get around those. The damages are in what it does to her from a self image and mental standpoint. The very area no doctor can measure and no test can validate.

The key to evaluation of damages is to fully and completely understand, identify with and feel the impact of injury on this particular person. Not as an observer looking on but as the person themselves, through their eyes, their viewpoint. Even if the injured person is not dealing with it as others would expect, you need to understand that and the reason why because that is this person’s reality. You need to fully appreciate the impact of injury in a personal way. Not as a clinical analysis, but as a human being living inside this person and  through their eyes and emotions. Your subjective attitude is the only limitation on damage evaluation. Your viewpoint is the limiting factor. You cannot ask for money which you are not prepared to explain fully from the client’s viewpoint and which you fully believe is fair and reasonable. A failure to believe and explain results in the jury seeing you as a greedy lawyer. Obviously, the damage evaluation will be impacted by the liability evaluation and it is a comparison of the two that results in accurate verdict evaluations.

The evaluation of liability depends upon the accuracy of your analysis of the underlying issue or issues in the case. Cases are driven by liability factors. However, lawyers are the least qualified persons to evaluate these issues because they approach it from a legal standpoint. Their thinking is influenced by legal issues in the case, when, in fact, other, emotional issues trump the law. Focus studies are the only way to obtain objective evaluations of the case issues. Non legal issues are always trumped by issues related to deeply held values and emotional reaction by jurors. 

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