DON KEENAN’S WISE ADVICE ABOUT SHORT TRIALS

Don Keenan of Atlanta is known to every plaintiff’s lawyer in the country for his outstanding results and his years of sharing his knowledge with the plaintiff’s bar.  He’s been a friend for over two decades. I’ve known him through organizations (we both have served as  president of the Inner Circle of Advocates) and through our proffesional work. I always have admired his cutting  edge thinking and his willingness  to share with others. I am a big fan and read his blog regularly .http://www.keenantrialblog.com/ . His  most recent posting about short trials really made sense  to me and I asked him if he would let me reproduce it. He agreed and I have done so. Any spelling erors or typos are mine. I recommend his  wisdom on this issue to you.

Here’s some background about Don:

Children’s Lawyer
During his thirty-five years specializing in catastrophic injury and wrongful death cases, Mr. Keenan has secured over 257 verdicts and settlements over $1,000,000 including nine over $10,000,000 and one over $100,000,000. Mr. Keenan has dedicated his practice to child injury and wrongful death cases arising from medical negligence, products liability, and premise liability, with the goal of making our society safer for children.  He has handled cases in 47 states and on three continents.

Don has appeared on every major national news program including: 60 Minutes, 20/20, Larry King Live, The Oprah Winfrey Show, Montel, The O’Reilly Factor, the Today Show, Good Morning America, CNN and National Public Radio (NPR) addressing children’s issues.

Professional Accomplishments
In 1992, he became the youngest National President of the American Board of Trial Advocates and during his tenure, led a delegation of lawyers to Czechoslovakia and later was invited to Russia to produce the first civil trial in the history of those two emerging democracies. In 1997, he became National President of the Inner Circle of Advocates, the most exclusive group of trial lawyers in the country. In 1999, he was given the prestigious Chief Justice Award for Civility and Professionalism, the highest award possible for a lawyer in Georgia. He now serves on the Advisory Committee for the National Judicial College in Reno, Nevada, which trains the majority of new judges in the United States. In 1990 and again in 1992, he was named Trial Lawyer of the Year.

Significant Cases
Don successfully handled the 1980’s U.S. Supreme Court case of Kathy Jo Taylor which was the first case in United States history to establish due process rights for foster children. Again in late 1999 he handled the nationally publicized case of Terrell Peterson, an abused foster child, who was on the cover of Time Magazine (11/2000) and was the subject of the highest rated 60 Minute story of the year. Both cases resulted in significant changes in the rights of children in state custody. In 2006 he obtained the largest US jury verdict on behalf of an abused child.

 

                         LENGTH OF TRIAL (c)

                               By Don Keenan

The Reptile’s © attention span is short. In the world of Reptilian© survival, impact must be short and sharp. Karate, not massage.

Of course there have been many huge verdicts in long trials, and many great attorneys have spent entire careers doing long trials. But length of trial is rarely, if ever, a factor in the success, and in all likelihood, kept the successes from being even greater. And long trials kill a lot of winnable cases. This is especially true if you’re not one of the very best trial lawyers. Except in Lake Woebegone, the kids are not above average.

“Long” always means dulled impact, whether in church, a theater, school, and, above all, in trial. You can do everything else right, but when you do it longer than necessary, the rights go wrong. Jurors don’t want to help anyone who wastes their time, and if you make a trial go longer than a handful of days, you are wasting their time.

Length of trial hurts most when relying on the Reptile©. To survive, the Reptile© had to evolve as a sprinter, not a long-distance runner. This is why humans are better at short-term safety (they’ll stomp a spider) than long-term safety (they’ll smoke).

Your need for brevity attaches to every separate piece of trial as well as to the whole. There’s no such thing as a great day-long direct exam, or a great 75-minute opening, or a great but long

cross. Doing something superbly for 30 minutes is dynamite. Doing it superbly for three hours is a waste of superb.

Yes, Virginia! Over my 25 years as a consultant, almost every trial I’ve worked on in my neighboring state of Virginia – and many others there – has been brief, usually four to six days (often three) from Voir Dire to Verdict. They all did better than I’d have expected them to do elsewhere, where lengths of trial tend to be two or three times longer and more. This is not because Virginia – a contributory state among other horrors – is easy for plaintiffs. It’s maybe easy for (some) lovers, but not plaintiffs. Adjusting for quality of lawyer and nature of case and jurors, the variable that comes up among the most often – in Virginia and elsewhere – is length of trial.

Virtually no case – even including complex commercial cases – benefits from length. When you cover every single doggone point in the thoroughness law school taught you to do, you bury your strong points and let your weak points blossom to fullness in extended jury perception. In boxing, it’s hard enough to knock an opponent down for a ten-count, so why invite a 20-count or 50- count requirement?

Here are some reasons why long trials are the enemy:

Burial. Inescapably, the longer your trial, the more your important points are buried under piles of junk, and junk is the Defense’s best friend. Not only does the defense get paid more for length, but length vastly increases their odds of doing well. They want you to heap all you can into trial. They bait you into doing so. And they know that time – all by itself – is part of the heap.

Emerging Weaknesses. Like zombies slithering up out of graves, the longer your trial the more time you give weaknesses to emerge and take gargantuan focus.

Novelty. In longer trials, the strongest defense material necessarily emerges later – where, by its novelty, it gets more attention than a brief plaintiff’s case would have allowed. The Reptile© rivets onto novelty, and in a short trial, all the novelty is all yours. In a long trial there’s a whole new phase of novelty – and it belongs to the Defense, not you – when the Defense finally starts its case.

Internet. My partner Artemis points out that trials are often lost for no better reason than weekends, especially multiple weekends, during trial which give jurors plenty of extra time to surf the web. Which they do and nothing can stop them. With more time, they’re more able and likely to find bad, often false stuff about the science, the witnesses, the lawyers (including you or creeps with your name), and God knows what all else. This happens even when jurors go on line to find stuff to help your side. Sure, jurors go on line about the case even during short trials, but the time they spend increases exponentially as the trial days drag on. So if one weekend during trial is bad, a second weekend is several times worse. And allowing a third weekend is reckless. (See “Virtual Reality” in the Appendix of Ball on Damages 3.)

Attention gaps. Even on the first day of trial, juror attention is sporadic (though when you do it right, they pay nearly 100% attention to your opening). Attention diminishes significantly over the first two or three days of trial, and then abruptly plummets. You might not notice because 1) you might not keep a close enough eye on jurors and 2) jurors are great at looking engrossed when they’re actually disengaged. And when something important for your side comes up when a juror is disengaged, it can’t register. So it won’t be in the juror’s mind when you need it to be: during testimony. Injecting it as a reminder in closing is too late, because jurors discount most of what they first register during closings and deliberation. Good stuff they didn’t register in testimony is likely DOA when they first register it in closing or deliberations.

Attorney fatigue. Artemis will be writing a future blog on attorney fatigue. For now, I’ll just say that the longer the trial, the less physically and mentally able you’ll be to do your best, or even decent, work. Your perceptions and judgment will be way off peak. This phenomenon affects your side far more than the defense. When you make trial a lawyer-endurance run, you’re your own victim.

Judge’s impatience. Judges want you to move quickly. The longer you make your trial go on, the less hospitable the judge may be to making decisions your way. This is a particular disadvantage early in the Defense case-in-chief, when the judge has not yet developed the same level of impatience with the Defense.

Cost. Given the benefits of short trials (see below) and the disadvantages of long ones, your time and money for longer trials are mostly wasted. If you have to pay your expert’s rate for two days on the stand, it’s only because you didn’t take a half day of effort in advance to figure out how to get him on and off in two hours. (And shorter direct almost always means shorter cross.)

Human decency. Why force a jury to sit through a long trial when a long trial will likely hurt you? Are you nuts?

A trial is not Waiting for Godot. A “Who the hell cares?” attitude creeps in faster than you think, because habit, as Godot’s great playwright – Ireland’s Samuel Beckett – said, is a great deadener.

ADVANTAGES OF SHORT TRIALS (or, Move it!) 

Jack Spratt could eat no fat. But he gobbled up the lean! Every juror is Jack Spratt. Lawyers always think they understand their cases, but they don’t really until they’ve separated the fat from the lean, and 100% junkcan all the fat. The very process of doing this is essential to fully understanding your case. It takes a lot of work, which is why only a small percentage of lawyers do it.

Holds juror enthusiasm. Your well-done opening statement creates enthusiasm: the Reptile© is fully alert. But as your case-in-chief drags on, juror enthusiasm wanes. The Reptile© snoozes. And the Reptile© is hard to re-awaken. Only a quick

in-and-out holds the jurors’ enthusiasm and the Reptiles © full participation.

Wider choice of jurors. The shorter the trial is to be, the fewer jurors are removed for hardship. So we have more to choose from. More choice helps us, not the Defense.

Blaming the Defense. Juror irritation at having to sit there day after day is directed at whoever started taking too long. So when you do your case quickly, juror irritation focuses on the Defense.

Pride of work. Long trials never show you at your best. So even though long trials often do well, your odds are far better in short ones. When gauging how much time to spend on each piece of trial, whatever you think is little enough is probably several times too much.

More is less. Extreme more is nothing. As King Lear exhorted, nothing comes from nothing. And yes, of course you can’t control length completely because the Defense will try to make it long. Let ‘em. It’s your case we want short. And it’s hard for the Defense to go on forever when you’ve been brief.

Caveat: Short trial does not mean to talk fast. No one loves a fast-talking lawyer. Short trial means to include a lot less. By definition, you never need more than the essentials. Your most important skill lies in knowing what’s essential. It’s never much.

WHEN WE ENDURE THE TORTURE OF LOSING

A lawyer I have known for many years and whom I admire, recently received a defense verdict after a four-week trial. His pain over the phone in talking to me was understandably palpable. I was thought about what Adlai Stephenson said when he was asked how he felt after losing his run for presidency of the United States. He said “I was reminded of a story that Abraham Lincoln used to tell. He was asked how he felt once, after an unsuccessful election attempt. He replied that he felt like a little boy who had stubbed his toe in the dark and reported that he was too old to cry, but it hurt too much to laugh.”

I have written several times in this blog about dealing with failure  as a plaintiff’s attorney in trying cases for our clients. We know that with the exception of a rare few, there is no way to get around it:  if you try cases for living you will lose some. Of course there is more than one way to lose a case. There are cases where  the verdict is less than  the offer and there are cases where there is a defense verdict.  And, here are cases where the verdict  should have been considerably more  than what was obtained.  Remember the apocryphal story  about the lawyer who was bragging about his  $1 million verdict when exasperated friend  finally said to him:  “Bill,  I’ll how to get a $1 million verdict like yours.” His friends said  “How?”  The response was “Just have a $5 million case like the one you tried.” However the loss, it still hurts.

Winston Churchill said ” Success is not final, failure is not fatal: it is the courage to continue that counts ” Theodore Roosevelt echoed that thought when he said:  “It is hard to fail, but it is worse never to have tried to succeed.” So, what are the ways in which we  might consider dealing with the pain of failure?  Here are some:

  1.  Resist the need  for approval of others.  Very often  the pain of our failure is really  rooted in our ego as it relates to not wanting to be judged by others or losing there esteem.  We are too easily influenced by  what other people say or think about us  and our performance.  Giving our power away to others by allowing them  to determine how we feel about ourselves is a serious  mistake.
  2. Adjust your point of view.  How we frame the situation determines our attitude.  Mistakes and failure are rarely as bad  as they seem at the time. This is not the end of the world  even though it may be  painful now. Adopting a  new attitude is one of the best things you can do  to shift your perspective and belief system. Reframe your view and embrace a positive association  of learning from  the experience. Every great accomplishment and every great person  has had failure  which propelled them in some way  to a  higher level of success. Michael Jordan once pointed out:  “I have missed more than 9000 shots in my career. I have lost almost 300 games. On 26 occasions I’ve been entrusted to take the game-winning shot and I missed. I have failed over and over and over again in my life  and that is why I was able to succeed.”  There are numerous examples  of great people  who overcame  painful failure.
  3. Neural linguistic programming  teaches that there is no such thing as failure, only useful  feedback. When our carefully laid plans have not gone as we wanted, we think we had failed. In fact we need to know  whether we are on the right path and  feedback tells us  the answer.  By failure  we learn to overcome obstacles. There is a clear difference in thinking  about our experiences as either feedback  failure. Take stock, learn and adapt.

William Ernest Henley  in his poem  Invictus  wrote the  great  lines :

“Out of the night that covers me, Black as the pit from pole to pole,  I thank whatever gods may be for my unconquerable soul.  in the fell clutch of circumstance I have not winced  nor cried aloud.  under the bludgeoning of chance my head is bloody,  but unbowed.”

After a reasonable mourning period,  we need to  pick ourselves up  and  move ahead  with renewed determination  as well as wisdom  from the experience. In John Dryden’s poem Johnnie Armstrong  last good night  he writes:  “Fight on my merry men all,  I’m a little wounded, but I’m not slain.  I will lay me down for to bleed a while,  then all rise and fight with you again.” Rise up, pull yourself together and renew the battle with wisdom from the experience you have not had before. Be strong and fight on.

 

 

 

 

 

WHAT DOES IT MEAN WHEN JURORS NOD AT WHAT WE SAY OR THE WITNESS SAYS?

Dr Stanley Brodsky and Dr. Michael P. Griffin PhD from the University of Alabama published an article “When Jurors Nod” that’s worth thinking about. the authors note that the attention of attorneys to a juror is captured when jurors nod their heads. We assume it means agreement  with us.  When an attorney or  witnesses testify, there are often people on the jury nod their heads up and down, some rapidly and some with barely visible movement of the head. The inclination is to assume that they are affirming the worth of what is being said. The articles generally confirms that is the case with some reservations.

Previous studies about this have included that this may involve a cultural habit or an indication that the person wants you to know you are being heard. In addition it can be an expression of a positive affirmation. However the authors conclude  that there are at least four interpretations possible when jurors nod their heads:

  1. the jurors are expressing agreement with the statements being  made.
  2. the jurors are indicating they are paying attention,
  3. the juror are indicating that they are personally present like a school child might say” here.”
  4. The nodding is a personal habit without any particular significance.

The authors conducted a study involving some 244 undergraduate students. This research indicated that in general, as we might expect, the nodding indicated an agreement with what was being said. However the authors caution against not assuming it always indicates agreement.

My own unscientific experience is there is another possibility. I have learned  that a juror who smiles at the lawyer  and nods at what is being said may be communicating something else. They have concluded that lawyer’s side should lose, but they like the lawyer. So, they smile and nod as if to say “I like you. I want you to know that I am voting against your case, but not because I don’t like you.” Just as crossed arms may not mean they are rejecting what you are saying, but instead is a comfortable position for their arms, we should be cautious about reading too much into non verball conduct. But, I confess, I’d rather have a jury nodding agreement than not or nodding the negative way.