OBJECTIONS – A GOOD IDEA OR NOT?

I’ve written before about making objections at trial. http//plaintifftrial lawyer tips.com/should-you-object-or-not It is not a simple subject. My inclination is to avoid making objections even when I could except when it is truly called for. We know that an objection calls attention to the subject involved so some thought about what to object to is important. On the other hand jurors have watched enough television that they expect the lawyer to object. I don’t think objections in general are a problem for jurors. However,  I’ve tried cases  against lawyers  who object all the time and jurors really do resent those lawyers especially when it means they have to go to the jury room.  The real question is what you object to and how you object.

I’ve previously written that the fact that one has the right to object doesn’t mean you should object. My general policy is that I object when (a) there is a violation of a pretrial motion in limine since  if it was important  enough to move on  in advance  of trial it  is important to object to a violation of the order  (b) to evidence which is inadmissible and prejudicial enough that it would be difficult to deal with it simply by opening the subject on re-examination with the witness (c) it involves personal attacks on the witness for which intervention is called for  to protect the witness from abuse- Note that in some cases it is better not to intervene for abuse of a likable witness where juror anger against  the other  lawyer  exists for doing it (d)  it involves issues which require a record to be made by objecting and (e) there are other compelling reasons for objecting.  Like a strike zone in baseball, you need to develop a skill of knowing when an objection should be made and lean towards  avoiding objections during trial.

More important than the question of whether one should object,  is the issue of how one should object A trial is a battle of depression and not logic. We create impressions by our conduct, our body language, voice and general demeanor. Anger and outrage rarely work to our advantage. Calm professional words demonstrate self-confidence and authority. When we object correctly we are perceived as simply doing our job as a lawyer. We can however create the  impression that we are trying to hide something by overreacting. If we are going to object let us do so in a way that is not offensive to the judge or jury and which communicates our professional skill.

I have a friend in Nashville Tennessee, Randall L Kennard who is a gifted plaintiff’s trial lawyer and a member with me in the Inner Circle of Advocates, a national plaintiff’s trial organization. We agree about many things regarding plaintiff’s trial work. Recently he communicated with me regarding his view about objections during depositions. The subject of deposition objections and representing clients and witnesses at a deposition involves somewhat different considerations than that of trial objections. But, since our practice has become one where discovery represents the greatest portion of our work compared to trial,the subject is important.

Randy writes that defending a deposition is actually very strenuous. Here’s what he said to me:

“I used a box. It takes a lot of energy to give a beating. It takes a lot to take one as well. So, our job is very hard. It requires constant vigilance and watching the defense attorney during the deposition questioning. Pay attention to the facts of the case and what the witness has said. When the defense attorney attempts to use a compound question, with the first part being false and the second part true, you must object to form. We should not let the defense use such tactics.”

As Randy pointed out to me, “do not be hesitant to object to form if there is any doubt as to whether you should object to the question or not” during the deposition you are defending.

The subject of objection during discovery is actually an important and difficult area  of  practice.  Defending a deposition is only one  aspect. For example, when you get the rubber  stamp objections to every interrogatory, do you move to compel or do you submit additional, more specific questions about the objection until you have a clear abuse demonstrated before you move? My experience is that judges do not like discovery disputes  and especially those that require going over interrogatories. They really tend to be reluctant to do much about these issues. Instead of filing a motion, is there a 30(b)(6)  deponent you can depose and ask the objected to interrogatories about rather than move?

And, what do you do about the defense lawyer  who objects to virtually every question at the deposition and otherwise does whatever they can to obstruct your taking a deposition? You can’t get a discovery master  in every case. Judges don’t want to get  a phone call about two lawyers arguing about questions and don’t want to hear the dispute on motion either. How do you respond? Do you recess the deposition or continue to the end for a full record of abuse of discovery by the defendant’s lawyer?

The ABA created a video some years back of a staged deposition being taken by a young woman with an older male defending it. The lawyer defending it was condescending, abusive and obstructive  to the extreme. It was  a teaching video, but not far from the reality in a lot of depositions. While at some point it is only logical to recess the deposition and ask for relief from the court, it is more often the better tactic to remain calm, make your objections clearly and briefly and move on. The more the argument between counsel, the less clear it is who is at fault.

The lesson for me is that the right to object is a valuable tool. It should be used whenever it is important to do so to protect the record. It should be done when it is tactically important, but not every time you are entitled to do so. And, it should be done calmly, professionally and rationally.  My thanks to Randy.

SETTLEMENT AGREEMENT MEMORANDUM

It didn’t take me many mediations or settlement conferences to figure out that if I didn’t get  it in writing when the deal was made there would be problems. Call it buyers remorse or just lawyers being lawyers  there would be proposed revisions and issues raised we never discussed or had already resolved. If you allowed the other side or the mediator  to try to put the deal in writing it took too long and it opened the door to further discussions. As a result I prepared a form memorandum with copies that I had with me. As soon as there was verbal agreement I  would take the position it  wasn’t settled until the parties had signed my memorandum. This presented the other side with a written form that could be altered but only in writing and which prevented after thought controversy.

What follows is a basic memorandum which would have to be revised for whatever might be needed in your practice or jurisdiction, but which is simple, covers the major points and excludes after deal dickering. We have actually filed motions to enforce these memorandums on occasions when the defense wanted to back off of something or change it. Also, this form has no provisions  for  issues under Medicare, ERISA, Obmacare or specific lien or subrogation claims.  These would be added as needed.

SETTLEMENT AGREEMENT SUMMARY

The parties have agreed to settle this case on the following terms.  Settlement documents in conformance with this agreement will be prepared and signed by the parties in conformity with these provisions which are final.

1.         DEFINITIONS

1.1       “Plaintiff” refers to the persons claiming damages in this case. “Defendant” refers to the persons or legal entities against whom the claims are made.

2.         AMOUNT TO BE PAID 

2.1       Defendant shall pay plaintiff, in full settlement of all claims, the sum of

$                                                                                                                                                                

3.         MANNER OF PAYMENT 

3.1       This is a lump sum settlement to be paid by check or draft.

3.2       The check or draft shall be made payable to “Luvera, Barnett, Brindley, Beninger and Cunningham, in trust for $                                                                                   

3.3       The check or draft shall be deposited in an interest bearing trust account (Tax ID xx-xxx-xxxx). No disbursement shall be made until the final release documents are signed and any required court approval has been obtained. 

4.         TIME OF PAYMENT 

4.1       The check or draft payable upon deposit shall be delivered to plaintiff’s attorneys within ______days from the date of this agreement. It is understood this payment shall be made with the understanding there will be additional   release documents including orders of dismissal at a later time.  twelve percent per annum interest shall apply from the date of the money should have been available from the date of the agreed delivery of the check or draft.

4.2       Defendant agrees to deliver to plaintiff’s attorneys all release or other settlement documents within ________ days of the date of this agreement.

5.         TERMS OF SETTLEMENT 

5.1       Neither the Plaintiff(s) nor their attorneys agree to any kind of  secrecy or confidentiality regarding any aspect of this case or settlement.

5.2       Plaintiff clients or the Guardian or Personal Representative will sign release documents and an agreement to hold defendant(s), their insurance company and attorneys harmless from payment of subrogation or liens in connection with this case, but reserving to them the right to negotiate settlement for less then the amounts claimed.  No one will be released except the defendant(s) who are a party to this agreement and their named agents or employees. The release documents shall only apply to the parties signing this agreement Any additional claims of plaintiff are hereby reserved to all other persons or entities.

5.3       The language of the release documents shall conform to the terms of this settlement agreement which contain all of the agreed terms of settlement. No other provisions shall be added to the final release documents that are not specifically set out in this memorandum.  This is a mutual release of all parties to this agreement.  Defendant also agrees to release any and all claims defendant has against plaintiff arising from this incident.

5.4     If minor child or other court approval is required, plaintiffs agree to be fully responsible for the approvals required. It is agreed that if such approval is required plaintiffs attorneys will retain the settlement monies in their trust account until such approval is approved.

5.4  Other provisions:________________________________________

Dated this ___day of ____20____

Plaintiffs                                                                                              Defendants

______________________  ______________________________

TRIAL LAWYERS AND STORYTELLING

Philip N. Meyer is a professor  of law at Vermont Law School.  He Emailed me about a book he has written, Storytelling for Lawyers published by Oxford Press. I have not had the opportunity of reading his book, however the table of contents shows a comprehensive list of subjects about storytelling. I recommend any well written book on this important  subject.

Clearly storytelling is an essential tool for trial lawyers.  The  Spence  Trial College teaches storytelling http://www.triallawyerscollege.org/. Learning  how to tell stories about the facts of a case is a tool every lawyer needs. I’ve spent some time studying script writing as a means of  learning about storytelling. My wife and  I sponsored an informal class  with actor Tom Skerritt and other  professionals from the Seattle Film School for a small group of trial  lawyers &  friends because of the importance learning how to create and tell stories. I’ve published before on this subject, but Professor Meyer’s new  book inspires me to post about it again.

Why Storytelling? 

None of us need to be reminded that the way to capture attention with children or adults is through storytelling. Lately literature about the skill of trial has been full of articles about becoming story tellers in trial. It is not just Native American culture that traditionally was oral. All mankind’s history has involved storytelling.  Alex Haley in Roots reviewed the African oral tradition as well which has many similarities to the Native American. Scripture is replete with examples of storytelling as the chief means of communicating. We were brought up with storytelling either by our parents or in the books we read or the old radio programs and now by television or the movies. How many times have we heard someone say “did I ever tell you about the time…”?

Some therapists believe that listeners routinely enter a trance like state when listening to a well told story. This has been explained as being mesmerized by the unfolding story. People suspend outside awareness and concerns as they focus on the story. This allows them to be touched at the deepest level resulting in emotional responses including even tears. Story telling is a powerful tool.

Why are stories so compelling? Look at the parables of Jesus in scripture which are in story form. We see that one important fact about this form of communication is that they always make truth concrete. It is difficult to grasp abstract ideas. Most people think in pictures. Parables make truth into a concrete picture people can see and understand. Further, all great teaching begins from the here and now in order to get to the three and then. If you are going to teach about things people don’t understand you need to begin with things they do understand. Parables involve things every person understands from their own experience and from there lead to things which they need to understand. Most important, parables compel our interest because they are stories. The surest way to get interest is tell a story. The parables allowed people to discover truth for themselves. They all contain the question, what does this mean to you? Some things are best left to be discovered and stories allow you to create that in the listener. Note also that the impact on the people hearing the parable was immediate. It was spoken not read. It made truth flash upon a person with immediate truth. But also note that parables only had one point to make. They were simple and they were very understandable.

Throughout history we have communicated our heritage by telling stories and singing songs. While today we may not tell stories sitting cross legged in front of a fire or around the kitchen table, we pass on our visions and ideas from generation to generation by written stories, radio, television and movies all by storytelling. 

Gerry Spence emphasizes story telling at the Spence Trial College. He has argued that the most important trial technique is to transfer one’s case into a story because people are used to storytelling and because it is an effective technique of persuasion. Your client’s story should be featured in all aspects of the case: jury selection, opening, direct, cross and closing. It is in the repetition of your client’s story that will persuade the jury.

In an article published in the American Bar Association Journal April 1986, Spence wrote:

“Of course it is all storytelling – nothing more. It is the experience of the tribe around the fire, the primordial genes excited, listening, the shivers racing up your back to the place where the scalp is made, and then the breathless climax, and the sadness and the tears with the dying of the embers, and the silence…The jury wants to hear a story. They’re hard wired for it.”

The importance of storytelling in human understanding is underscored by the high intensity of communication. We must simplify and communicate in ways that will be heard in order to get through all of the information being thrown at us daily. Peter Large in The Micro Revolution Revisited says more information has been produced in the last 30 years than in the previous 5,000 years. About 1,000 books are published internationally every day and the number of books in top libraries doubles every 14 years.

Since words alone play such a minor role in communication we need to think in terms of storytelling for full impact. We know that what is said counts for only part of what is understood. Our vocal message (inflection, resonance etc) accounts for a  large portion of the understanding. But, a very important part of the understanding is nonverbal. Therefore, storytelling is of great importance in our efforts to persuade.

Storytelling simplifies and focuses attention for the listener. When people receive random, unstructured information they become anxious and soon stop listening completely. This happens when information does not tell us what we want or need to know. Henry David Thoreau said it takes two people to speak the truth – one to speak and another to hear. What counts is not so much what is said, but rather what is heard or thinks was heard.

Albert Einstein has rightly observed that “imagination is more important than knowledge.” Since a trial is a war of impression and not logic successful trial lawyers must become masterful story tellers who engage jurors on a visceral level with the magic of storytelling. It is at that level people decide all important issues and reach opinions.