Category Archives: Trial

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.

THIS SHOULD BE EVERY TRIAL LAWYERS MANTRA

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THE COMPETENCY OF TRIAL JUDGES

A long time attorney friend of mine who was an outstanding trial lawyer until his retirement recently pointed  out to me his concern that we seem to have numerous superior court  trial judges  in this state who simply aren’t experienced enough or qualified to do a competent job as a trial judge especially in jury cases.

What are  the minimum requirements to be a superior court judge  in  Washington state? Well, our constitution, in Article IV Sec. 17, says that to be eligible for the Supreme Court or Superior Court one must be admitted to the bar of the state.  That’s it. No age requirement. No educational or experience or proof of competency requirement. Anyone who is a lawyer can file for election to become a Supreme or Superior court judge. Any age. Any experience or lack  thereof.  You  just have to be a lawyer.

There is a judicial rule that once elected the judge must Complete the Washington Judicial College program. And, there is a requirement for 45 CLE hours over three years. The Judicial program takes a few days to complete. The National  Judicial College in Reno, Nevada has judicial courses to train judges. Three great plaintiff lawyers I know very well are involved in that College, Robert Parks, Jim Bartimus and Steve English so I know anything they are teaching would be top flight. However, there is no other requirement for either qualifications or training for a judge to be elected in this state and no requirement for full adequate training at the college on a madatory basis

For years there are those in the legal field who have been arguing that our elective system for judicial selection should be replaced with a commission system. The commission would consider applicants for a judicial office and recommend three to the governor who must appoint of the three. At the election the voters would decide whether to retain the judge or have another appointed.

There are those who feel the  elective system is the only fair system which avoid possible political wrong doing  in the selection of  judges. On the other hand, we have witnesses powerful special interest groups pouring millions into the judicial elective system trying to target judges they disagree with and putting their own type of judge on the bench. The most  recent gross  example of this was the supreme court election in Tennessee  where judges were unsuccessfully targeted by big money interests.

Isn’t ironic that in this state, if not all states, a criminal defendant is entitled to effective counsel.We have seen convictions reversed and even trials stopped because the judiciary has found that the trial counsel wasn’t competent. But, what about judges competency to hear cases?  The only real monitoring of the competency of judges is by appeal and review of the record for reversible error. We all know that only a small number of  trials result  in an appeal and we  also know  that too often the transcript and record is inadequate to fully illustrate what happened during the trial involving the competency of the judge.

The reality is that unless there is some screening  process for judicial competency the people can vote a judge into office who hasn’t the experience or qualifications to be an effective judge.

There really is no screening or monitoring of the performance  of judges. Yes, there are websites that seem to be focused  on issues  involving trial judges  in Washington like www.superiorcourtjudgesassociation.com and other websites. However, I’m not aware of any real monitoring  of the judiciary other than the Commission on Judicial Conduct. But, let’s face it, this body doesn’t evaluate day to day judicial ability to conduct trials with competence and experience. It punishes reported wrong doing after something rather ethically wrong has happened.

What is the  reality of the superior court judges in  this  state? Many judges get the position by appointment from the Governor. There is an informal screening of such applicants and there are opportunities to comment, but on the  whole it is a political  process which means it is  not done on an objective basis regarding real qualifications to serve as judge.

Those who file  for  election differ from the historical tradition of who ran for superior  court judge. It used to be that lawyers practiced until they felt the urge to retire and then ran for office. The result was  that a majority of trial judges had years  of  experience before they went on the bench.

That is not the current situation and  hasn’t been for a long time. We have judges who have never tried  a jury case. We have judges who have had virtually no trial experience whatsoever. We have judges who are  on the bench at a very young age. We have judges whose inexperience and  lack of understanding about civil litigation results in bad rulings and conduct which exhibits their having an agenda in cases which influence their  rulings.

As a result we have a significant number  of superior court judges who are only  marginally qualified to be a trial judge. When experience identifies such a judge the trial lawyers file disqualification motions if they are appointed  to their case, but this isn’t a practical solution to the problem. There are counties like King County where  the lawyers rate judges, but that system isn’t entirely fair  or accurate. In addition, there is no real sanction except an opponent could cite the vote in an election.

That  is not to say we don’t also have truly outstanding trial judges that are above  average in their ability to act as a judge. They are well known to the experienced trial lawyers who wish they could try  all their jury cases in front of  judges like this.

We have an uneven judicial system when it comes to trial judges. We  have some great ones, some  good ones and some who should never have been allowed on the bench. Over the years I’ve tried cases with each of these kinds  of  judges. However, there is no real effective means of dealing with this given our constitution. The proposal of  a commission is at best controversial. The elective system is subject to both error and manipulation by money contributions. I wish I had a solution to offer, but I don’t. I only point out the reality as I see it. Maybe you have a solution. I do think it needs discussion.