Author Archives: Paul Luvera

MISCELLANOUS ARGUMENT CAPSULES

I’m reviewing my notes about argument and decided I’d share some. These are just summaries and a mixture of concepts in raw form. You would need to expand and improve each of them, but maybe there are some ideas here that might be helpful to you.

  • When this courthouse was planned they didn’t just pull a number out of the air for the cost of construction. Instead they calculated each of the items that go into the construction and added it up to determine the total cost. The same thing is true when we go to a supermarket to shop. The clerk doesn’t take a look at the items you put on the counter we collected and say “Oh, why not $120?” No, each item is rung up and totaled. We pay the total of each item. When an injured person comes to a jury for an appraisal of the proper amount to account for their  injuries the same process should be followed. Each of the elements of damage should be weighed and appraised based upon how serious it is and how long it has and will last and not just pick some lump sum number that sounds right.
  • While the total amount I have suggested to you for a verdict in this case appears to be a lot of money, and it is, we have to consider it the same way we consider buying our home by mortgage payments. Our payments are made monthly over a period of years and not just a lump sum paid all at the same time. I wish I could tell you that we could come back each year and report how Joe is doing to determine the amount for  that year for his pain and disability, but the law requires it to all to be paid at one time so we have to fix the amount for now and forever in one verdict.
  • This case is like a car that has been damaged in a collision caused by somebody else. However they don’t want to pay the full repair bill. In  fact, they don’t want to pay anything and if they do have to pay it the only want to pay part of it and not the full bill.
  • There has been talk here by defendant’s lawyer  about the plaintiffs health and physical condition before the collision.  He wasn’t in perfect health, who is,  but he was functioning just fine. Suppose a farmer had 100 dozen eggs in the back of his pickup truck. Suppose they are all broken  on the way to market because of another car crashed into his pickup.Now wouldn’t you think the defense lawyer in that situation would be out of his mind to argue you should not pay the farmer for the eggs because if they had been golf balls not one of them would’ve been broken.  The defendant doesn’t have the right to make that argument. The defendant must take people as they are and as they find them. They are obligated to pay for the damage. Suppose they were not eggs, but it was a horse in the back of pickup. The question would be what kind of a horse was it? A plow horse or racehorse. Was it Nashua the day before he was sold for $1,200,000 ? If it was Nashua he was worth $1.2 million dollars. Shouldn’t  the defendant have to pay the for the entire damage  caused?  But,  what you say about oil painting that was destroyed in the collision and was worth $5 million? Doesn’t  the same thing apply? The defendant is obligated to pay for the damage done, in full.
  • Suppose a farmer is driving his old pickup truck and another car runs a stop sign it and damages the truck. The farmer is not injured but the fenders are bent and the windows are broken in his truck. The jury wouldn’t have much trouble determining the proper amount to compensate. You would say give him the kind of truck he had before it was in the collision. He’s not entitled to a new truck because it wasn’t new, but he  is also not required to drive around with the truck with smashed up fenders and a broken windshield because it didn’t have that either. A fair result would be the cost of putting the truck back in the same condition it was before the collision. That’s what you need to do in this case.
  • A hospital is supposed to be a place where we are safe and carefully cared for so we can get better.  You’re supposed to be guarded. You’re supposed to be watched over. You supposed to be protected from any additional harm. This was not a hotel. It is a place that supposed to be staffed by people who are trained to watch over and attend to the needs of patients. When they fail to do that they have failed to do their duty. If a hospital is not prepared to treat its patients properly it should not admit the patients and take their money. If it does,  it says to the people they admit that by taking their money and admitting: “you may come in and stay here.  We are prepared to care for you and take care of you and help you become well again.”
  • When life or liberty is in the hands of the lawyer he or she realizes the terrible responsibility that they have. They fear some word will be left unspoken or some thought will be forgotten to be said. I would not be telling you the truth if I told you that I did not fear the results of this important case. Not because of you but because of my failure to do what is expected of me. When my judgment and reason take counsel with my fears, I am even more afraid. (Clarence Darrow)
  • There are hundreds of lawyers in this state and for some reason fate has picked me to be the one to represent this deserving person. I’m scared to death that I may not do it right. But, together, you and I are going to make history in this case by doing the right thing.
  • your verdict means something in this case. It means more than the fate of this man. It is not often a case is submitted to 12 people where the decision may mean a milestone in the progress of medical care but this case does. I hope and trust you have a feeling of responsibility that will make you do your duty as citizens of this great nation and is members of the human family in this community and accomplish great things by your verdict.
  • He was a fragile piece of china – a cracked vase. Nevertheless he was functioning until the harm that the defendant did to him took place.
  • (Gerry Spence talking about representing the people who were objecting to drilling projects for oil in an environmental sensitive area of Wyoming) “Were going to drive the snakes out of the garden of Eden.”
  • The smallest drop of water when constant can penetrate the hardest of stone.
  • A fence at the top of a hill is better than an ambulance in the valley below.
  • “So then, the eye cannot say to the hand, I don’t need you. Nor can  the head say to the feet, well I don’t need you….And so there is no division in the body, but all its different parts have the same concern for one another. If one part of the body suffers, all the other parts suffer with it… ” (1 Corinthians 12)
  • it is obvious that this is an injury not just to this plaintiff but to his family unit. You cannot injure one member of the family, particularly the head of the family, without injuring the whole family unit. It is like throwing a stone into a pool of water. Waves are sent out further and the waves get larger and touch the lives of people around the plaintiff. It affects the children and the wife and everyone they come in contact with. It puts a strain upon the emotional bond the family unit.
  • The amount of care that is required by someone depends upon the circumstances. If you were loading potatoes into a truck and were throwing the sacks into the back of the truck, you wouldn’t be too concerned if you let a potato or two fall on the ground. On the other hand, if you  were loading dangerous explosive material, think how carefully you would place it in the back of the truck and how carefully it would be stored. Both acts would have  been done with ordinary care. Ordinary care in loading potatoes and ordinary care in loading a dangerous explosives are two different things. In this case the defendant was handling a dangerous instrument and should have exercised that amount of care that it called for.
  • Don’t we all believe that: all men and women are entitled to be treated equally under the law; all men and women have a right to the pursuit of happiness; thrift and hardware should be rewarded; people should bear up under diversity to the best of their ability; justice should be available to everyone and if a man owes a debt they ought to pay it full to the penny.,
  • Suppose you are shopping for car at a used car lot. The salesman tells you that this car that he’s recommending was in a wreck, the frame was bent and it was damaged but now it’s all been straightened out  and everything has been fixed. Even though the damage been repaired and the car looks great we know it will never be as good as before it was damaged. People people aren’t cars and damage to our bodies and minds are long lasting.
  • We can put people in prison  and we could even put them to death for their crimes, but we are never allowed to injure or torture people.
  • Jurors, you are the community and you set the standards for this community. The owner of the store says to people: “come into my store and buy something.” He doesn’t say: “come into my store and watch the floor while you walk around for anything dangerous that might make you slip or fall.” That’s because there’s nothing to buy on the floor. No, he says: “come in, don’t worry about the floor. I’ll take care of the floor, look up the shelves for something to buy.” When the store owner distracts your attention from the zone of danger on the floor, the patron should not be held liable. Otherwise  the store owner should be required to put the merchandise on the floor instead of on the shelf. I say to you that if this defect was one foot  higher Joe Brown would’ve seen it. People in the store are entitled to have things on their mind and to be distracted by the merchandise and trying to get them to buy something. It is the store owner who has the duty to look down and to inspect and to protect patrons from injury.
  • The defendant always argues that the defect is too small or too large that caused the plaintiff  to fall. They argue that the defect was too small for the defendant to have seen or noticed or been concerned. Or they argue that the defect is so big the plaintiff  should have seen  it. The defect is never just right. It is always too big or too small. I’ve never had a case where the defense lawyer concedes that the defect was just the  right size.
  • The defense would like you to believe that the 45 minutes their hired defense doctor examined the plaintiff was the most important 45 minutes of the plaintiffs life. They want to ignore the testimony of family friends neighbors and others who have been involved with the plaintiff over the past months. They want you to believe the many hours the treating doctor saw the plaintiff wasn’t important. Does that make sense to you?

THE QUESTION OF “WHY?” IS A WHOLE LOT MORE IMPORTANT THAN “WHAT HAPPENED?”

I have written in this blog on many occasions about  the scientific research that the motive and reasons behind the conduct which caused the injury to your client is far more important than the facts about the negligent conduct. Proving the negligence is not the same thing as going behind the conduct and proving why the conduct took place. The doctor in a hurry is not the same case as the doctor failed to meet the standard of care in doing surgery. The question of why something happened is far more significant than the proof of the negligent actions itself.

Proof of wrong motives and evil intent are what really drive the verdict in a plaintiffs injury case. This is particularly true in malpractice cases. This subject has been discussed in one of my favorite sources of information The Jury Expert. www.thejuryexpert.com. The last publication featured an article “if it feels bad to me, it’s wrong for you: the role of emotions in evaluating harmful acts”  http://www.thejuryexpert.com/2014/08/if-it-feels-bad-to-me-its-wrong-for-you-the-role-of-emotions-in-evaluating-harmful-acts/ Their research and conclusions concur with the concept I advocate. In general, the article points out, there is a remarkable body of evidence which indicates that our minds are divided between reason and emotion, which together shape the way we think and behave. On a rational basis, all else being equal, we tend to favor whatever course of action leads to the greatest amount of benefit in the long run. When emotions are guiding our thinking, we are more likely to utilize a value or moral standard in our thinking and decisions. The two must both be in balance together for decision making.

Studies indicate that when we are judging other people’s conduct we tend to imagine what it would feel like to perform the behavior ourselves. Our reviewing  the conduct as if we were involved produces a reaction.  In some cases, this creates a feeling of aversion which dictates a judgment that the behavior was wrong: “if it feels bad to me to do it, it’s wrong for you to do it.” This then becomes the measuring stick in our minds for evaluating the conduct  of other  people.

This raises questions regarding how attorneys attempt to influence jurors decisions. The normal inclination is to focus attention on the victims injuries and damages. Lawyers have traditionally focused attention upon the innocent victim  or the injured plaintiff in an effort to create empathy. However research indicates that this is not the strongest motivator. The dominant factor in motivating the average juror is focus upon the defendants actions themselves and whether the jurors would feel justified in performing those actions themselves.

Furthermore, focusing upon injury for sympathy is more likely to have a negative affect upon the jurors. They are already programed to believe the message of tort reform and are prepared to guard against “fast talking lawyers” peddling sympathy. Research would indicate that: “in the case presentation process, sympathy and victim –focus  backfires.” On the other hand, focusing upon the defendant’s actions and especially wrong conduct or motives explaining them, creates a story in the jurors minds involving the question of whether they would have  done the same thing. The article says: “Adding in the current study results, there are more reasons to say “no” to the old-style of (plaintiff attorney) presentation (of focusing upon injuries and sympathy).”

There is an understandable reluctance to put the defendant at the center of the story. However, since the key factor is the jurors contemplation of whether they would perform the same behavior themselves, plaintiffs should set the stage for jurors to try on that decision for themselves. If jurors believe they would never have acted as the defendant did, and if that action would feel wrong to them, they’ll be primed to condemn it and to believe that it had compensable consequences. This also stimulates a duty to punish wrongs which most people, conservatives in particular, unconsciously feel.

Furthermore,  there an  added  benefit from focusing upon the defendant that studies show results from  this  approach. When we are aware there has been an injury or accident, people tend to review stories  of conduct looking for reasons why it should not  have happened or that it was  not an accident they would have allowed  happen. We should always start our case with the defendant’s conduct and not the plaintiff’s. If the story starts  with the plaintiff, the jurors immediately  began the questioning process about plaintiff’s actions. When it starts with  the defendant’s  conduct the same process happens which is beneficial to plaintiff.

As the article points out this approach has a “what would you do?” aspect to it which we cannot embrace directly without violating the “Golden rule” prohibition. However,  centering the story on the decision-making and correctness on the part of the defendant serves as an invitation for the jurors to assume that rule mentally. As the article points out: “in addition, in voir dire, attorneys have a legitimate right to ask about relevant attitudes and experiences which inquiries get the jurors started thinking about the actions from their own perspective.”

We need to start our case in voir dire talking about the motives and  wrong doing of the defendant’s conduct. All of our  cases  should have such a theme: “the case of the sleepy truck driver, the case of  doctor in a hurry or  the case of the cell phone collision” but one that focuses on motive and wrongful conduct. The article says: “the bottom line is that as the research on moral judgment and a number of related fields continues to blossom, practical litigators need to keep pace. That might mean that the death of the idea that there is a time honored, tried-and-true way to try cases” by focusing on the plaintiff’s injuries and damages as a motivator for a jury verdictl

BRIEF THOUGHTS ABOUT JURY COMMUNICATION

For many years jury consultants  Starr & Associates,  http://starrandassociates.net/ published  Insights a newsletter with information about communication with jurors. I saved an article from 1991 entitled: “television has changed the way jurors learn.” The points that were made then are still valid today.

The article pointed out that jurors learn the great majority  of their information from TV. Roughly 80% of all Americans get 90% of their information from television. The problem is that communication in the court room and communication through television are vastly different and in fact in some cases conflicting. The differences are illustrated by the examples of trials on  television where the examination of the witness is two or three minutes long and final argument is about the same length. A very different situation from the  courtroom where there are long delays without anything happening involving the jurors and the information is lengthy, complex and boring.

The article says: “television has four primary axioms of communication: brevity, simplicity, entertainment and visualization. An attorney who applies these axioms to the court room will be a more effective teacher and thus more persuasive.” It goes  on to discuss these.

Brevity: Most news stories last no longer than 25 seconds without interruption and the news broadcast itself is interrupted every 7 to 9 minutes with a commercial break. This rhythm changes the attention span of the TV watcher. As noted in the article by contrast the Lincoln – Douglas debates lasted, on average, seven hours per debate. Lawyers like Clarence Darrow would argue for as much as eight or more hours to a jury. Today’s jurors do not tolerate repetition and boredom on the part of the lawyer and reflect this by turning off as well as by adverse verdicts against the offender.

Simplicity:  Complex issues and big words result in a perplexed receiver of the information. If it happens on television they change the stations. In the courtroom they simply stop listening and begin thinking about other things. Furthermore almost everything on television is already reduced to its most basic form without argument or the need to think about it. Television results in people who don’t want to explore issues in depth. They want the bottom line and they wanted simply as well as briefly.

Entertainment: When a program is dull on television people stop watching and change channels. They expect entertainment. The television journalist looks for compelling story lines and visuals that are entertaining and captivating. Networks are aware of pace and tempo as well as action and suspense. The presentation needs to be entertaining if  you want the jurors  to listen.

Visualization: Television has taught the viewer to expect  proof and not have to take anyone’s word for it. They want pictures and they want document proof. That’s what they get on television and they expect it  in court. That’s why documents, visuals and compelling witnesses are so critical.

The publication also notes that their findings on survey which showed that as jurors people have certain expectations about how to establish facts in a lawsuit. It turns out that they want it  in “black-and-white.”  For example, 94% expected proof to be by documents and eye witnesses. 79% expected the proof to be by pictures or hard evidence.

Let’s consider some of the other basics of communication. We know that communication is not what we say, but rather what is heard. President Franklin Roosevelt sent ambassador Winant to meet with Russia’s Molotov during World War II. In presenting Roosevelt’s message he opened with a few words of his own. He said he was going to “talk turkey on this issue.” Molotov interrupted with: “Turkey? What does Turkey have to do with the Baltic states?” The ambassador tried to explain patiently that “talking turkey” was merely an American expression meaning to talk seriously, but the suspicious Molotov could not or would not understand, and the meeting ended without any useful discussion of the presidents message. The ambassador never regained Roosevelt’s confidence after that. Communication is not what is said, it  is what is heard. We need to employ the most fundamental principle of advocacy which is simplicity and clarity and brevity.

The use of metaphors or analogies is often a persuasive communication tool. In a trial which was then America’s longest civil trial, the issue involved whether or not dioxin which had spilled from a railroad car in Belleville Illinois was the cause of injury to people in the nearby town. Closing arguments took 6 1/2 days. The plaintiffs asked for $35 million in actual damages and 100 million in punitive damages.

The defense was simple and brief: there was not enough dioxin to hurt anyone and no one was really hurt. The defense used this as their key point about this issue during argument  by saying:  “ladies and gentlemen of the jury, if you had one ticket and sat in one seat in  Bush Stadium that is one part per 50,000. So, what is one part per trillion? Well, one part per trillion would be if you had one seat in 20 million Bush stadiums. That’s one part per trillion.”

There was a defense verdict. When jurors were interviewed afterwards they said the one thing they remembered from the arguments was the comparison involving the baseball stadium that proved to us there wasn’t enough dioxin to hurt anyone. Analogies and metaphors are powerful. 

To remind me of  these communication principles I prepared a one page sheet which I kept in front of me during trial. There is an example following, but I would also add to this sheet three principles or themes I wanted to emphasize throughout the trial. Striving to put on another single letter size sheet all of  the themes, defenses and issues in your case is a great way  to force you to see the case as a big picture and simplify the issues.

BE BRIEF, BE SIMPLE & GET TO THE POINT

1.       Be Calm -   Stay calm & confident

2.    Be Slow  -  Pace & timing: “One thought per juror”

3.   Be Nice    -  Always professionally

David’s advice to Solomon:

“Be strong and courageous, and do the work. Do not be afraid or discouraged”     Chron 28:20

   

 

         

 

 

 

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  1. 1.       Be Calm -   Stay calm & confident
  2. 2.    Be Slow  -  Pace & timing: “One thought per juror”
  3. 3.     Be Nice    -  Always professionally

STAND STRAIGHT           SLOW DOWN           SMILE