Category Archives: Trial


I’d  like you to consider the relationship between the theater and being a trial lawyer.  As  a trial lawyer you need to be a  script writer. Not in the sense of making  up facts, but in the sense of  deciding how to tell the story. The framing you select and the characters you decide to introduce from the actual facts of your case. You need to be the director. You have to decide h0w to present your client’s story and who the characters are  you will introduce plus the sequence of doing so. You need to be the main actor in your play. Not by pretending to be someone you are not or putting up a front, but in exactly the  opposite way. By being totally open and genuine at all times. To accept  the enormous power of telling the truth.  Just as an actor  must adopt the role of the character he or she is playing, you must full  step into the shoes of not only your client  but gain an understanding of every witness, the lawyers, the judge and the jury. Put yourself in their shoes. How do they view what you are presenting and how they present it.

Here are some thoughts about acting and  the theater  you may be able to apply to being a trial lawyer.

Oscar nominee, after William H Macy as said: “there is a popular notion that great actors have to be brave and willing to suffer. While that is true, strangely I find the harder thing is to be brave enough to be simple. To stop when you’ve done it. That’s more frightening than anything.”

Being Genuine:  In Fred Rochlin’s book Old Man in a Baseball Cap he writes: “the greatest gift we can give another is to share ourselves. To do that we must take the mask off and then take off the mask under that one. We reveal ourselves in stories we tell. Stories about ourselves and our experiences. Some are true and some we only think are true.”

Adversity teaches In the play The Teahouse of the August Moon Sakini, an interpreter for the American army, Begins to play by walking down to the footlights in introducing himself to the audience. He describes to them how Okinawa has been conquered many, many times. He says this is helped educate his people. Then he says: “not easy to learn. Sometimes painful. But pain makes man think. Thought makes man wise. Wisdom makes life in durable.”

Being heard  Rex Harrison’s book A Damned Serious Business talks about touring with a theater production. He says that it is an invaluable training ground because you are forced to hold the attention of a restless audience and keep them quiet. You learn to judge the back wall of most theaters and practice hitting the wall with your voice. You need to become experienced at “bouncing off the back wall.” He also discusses self-consciousness. The average human being, if stared at by a lot of other human beings, does get self-conscious. On the stage we  were constantly being stared at by people it auditoriums. The great trick in losing it is in thinking right. If you’re thinking that part right, you should be too occupied in your head to think about your own body.”

Here are some quotes about acting:

  • Talk low, talk slow, and don’t talk too much. – John Wayne
  • acting is the most minor of gifts and not a very high-class way to make a living. After all, Shirley Temple could do it at the age of four. – Katharine Hepburn
  • you can pick out actors by glazed look that comes into their eyes when the conversation wanders away from themselves. – Michael Wilding
  • acting is standing up naked and turning around very slowly. – Rosalind Russell
  • a lot of what acting is, is paying attention. – Nancy Reagan
  • actor is a guy who, if you ain’t talking about him, ain’t listening. – Marlon Brando
  • Tennessee Ernie Ford was a well-known singer who said: “don’t get bigger than the person buying the ticket.”
  • In the movie The Empire Strikes Back Yoda says to Luke Skywalker, “do or do not. There is no try.”
  • acting is happy agony. – Jean – Paul Sartre
  • I want to give the audience a hint of a scene. No more than that. Give them too much and they will contribute anything themselves. Give them just a suggestion  and you get them working with you. That’s what gives the theater meaning; when it becomes a social act. – Orson Welles
  • In Italy or three years, under the Borgias, they had warfare, terror, murder, bloodshed – they produced Michelangelo, Leonardo de Vinci and the Renaissance. In Switzerland they had brotherly love, 500 years of democracy and peace and what did that produce? The cuckoo clock. – Orson Welles
  • a hero is an ordinary individual who finds the strength to persevere and endure in spite of overwhelming obstacles. – Christopher Reeve
  • a true priest is aware of the presence of the altar during every moment that he is conducting a service. It is exactly the same way that a true artist should react to the stage all the time he is in the theater. An actor who is incapable of this feeling will never be a true artist. Konstantin Stanislavisky
  • we have all, at one time or another, been performers, and many of us still are – politicians, playboys, Cardinals and Kings. – Laurence Olivier
  • all the world’s a stage and all the men and women merely players. They have their exits and their entrances; and one man in his time plays many parts, is ask the seven ages. – Shakespeare
  • You’re only as good as your last picture. – Marie Dressler

The ability to paint a picture with words  The sports writer Bob Dolgan of the Cleveland Plain Dealer once wrote that when Indiana broadcaster Jack Graney was doing play-by-play, “you could smell the resin in the dugouts, feel the clean smack of the ball against the bat and and see the hawkers in the stands.”

Fear  Cus D’ Amato was a boxing trainer. He once said” fear is your best friend or your worst enemy. It’s like fire. If you can control it, it can cook for you; it can heat your house. If you can’t control, it will burn everything around you and destroy you.”

Being Nervous  The actor Donald Sutherland has said: “I have made 101 films and I still throw up at the beginning of every one.”

Attitude & self confidence  Howard Hawkes was a Hollywood movie director. He once said: “I have seen actors go along for years and are no better than satisfactory. Suddenly they become brilliant because they found confidence confidence brings poise, style and polish to an actor.”

First impressions  In a biography about the actor W. C. Fields, it was pointed out that he was a star when  to be successful in vaudeville you only had an act that was 12 to 18 minutes long. You have to follow other acts, grab attention of the audience, sell your show all in a very short time.

The story must make sense  In the Greek theater there was a phrase “God from a machine” to describe a solution by a director of a play where he could not think of a logical explanation. Instead they would lower a statue of one of the Greek who would ordain the outcome. This was considered very poor talent for a writer or director. Our trials have to have logical explanations to be acceptable to jurors.

Hard work  In the 1933 movie A League of Their Own Tom Hanks playing the role of the baseball manager says to Gleena Davis, playing the role of the star catcher on the team, when she tells him she plans to quit because it is just too hard: “it’s supposed to be hard. If it wasn’t hard everyone would be doing it. It’s the hard part that makes it great.”



I’ve written before about making objections at trial. http//plaintifftrial lawyer 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.


One of the firm’s associate lawyers worked extremely hard in preparing for the trial of an admitted liability rear end collision case. There was only a $25,000 policy and a settlement of $250,000 under plaintiff’s policy had been made by one of the partners. The associate was then asked to try the case as a potential bad faith case given the defense offer. This was her first trial on her own

The damage part of the case presented a lot of challenges. The injured male plaintiff had been seeing a chiropractor on a frequent regular basis before the collision. The damage to the cars wasn’t obvious, although there was a bent frame on plaintiff’s car. There were no broken bones. There were lots of entries in the record of complaints of pain and disability before and after the collision plaintiff needed surgery. The wage loss was soft and the claimed medical bills disputed as to causation. The judge allowed the defendant, over objection and motions, to testify in this admitted liability case that she had had to quit school to care for her siblings and other testimony that can only be relevant to a plea for sympathy and poverty. The result, after ten days of trial was a unanimous defense verdict for zero dollars. Our associate lawyer was devastated as she had worked very hard and was totally familiar with the facts.

I wasn’t there for trial and did not prepare her, but after hearing the news tried to figure out how that could happen. Most of my post verdict thoughts are based upon speculation because I haven’t seen the post verdict reports or results of contact from the jurors. What follows is my evaluation for her when I learned the result with some additional thoughts. I tried a fair number of cases like this when I was starting out, but I don’t claim to have all the answers. What follows are my thoughts and views about these cases.

You did a terrific job because you did the best you could with a case none of the partners in the firm were willing to risk trying which is why you got this one by yourself. That took courage and you couldn’t have worked harder. Learning to live with losing is more important than learning how to act when you win. We must never become comfortable with the idea of losing. We should avoid the attitude that “you can’t win them all” and “if you aren’t losing cases, you aren’t trying cases.” That’s a loser’s frame of mind. Our attitude should be to first screen cases for merit and not experimentation or trial experience at the expense of clients. Contrary to common thinking we should settle our “bad” cases and try our “good” cases, not the other way around. Trials are too expensive and too stressful as well as important for clients to not carefully evaluate when to go to court and when not to try the case. When we lose a case we must figure out why and revise. The “why” is often not what the jury or even the judge tell you because they reason, like all human beings, at an unconscious level and offer only what their rational minds offer as a reason for their real decision process operating below their conscious awareness.

As I indicated, you are not going to learn a lot from the jurors when you lose because they will give intellectual reasons when it is something far more fundamental. Go ahead and have someone talk to them but don’t accept their excuses or rely upon their explanations for revision of your trials in the future. The lesson to learn here is that the only way to know the underlying issues that drive a verdict in a case like this is a focus study. We needed a focus study in this case and if done it should have revealed the underlying themes, problems and issues. The lesson here is: never try ANY case without first doing a focus study ever. If it is worth trying it must be worth doing a focus study. And I don’t mean the invalid studies lawyers like to do when they think the way to conduct a focus study is to dump all the facts on the group, argue their case to them, do most of the talking and overload them with detail. The results of a focus group by providing both sides arguments and evidence, in the absence of professional help and guidance produces unreliable results. The results depend upon impression and impression depends upon who, how and what is presented.

For an inexpensive and informal study in a case like this done in house by us, means one where only minimum relevant facts are presented for immediate gut level impressions. For example one might say in our case to a focus group: “This case involves a 52 year old man who had been seeing a Chiropractor weekly for his back pain. He was involved in a rear end collision while stopped. He wasn’t at fault. The other driver admits they were at fault. After the collision..” (explain the immediate events: he did not go to the hospital, or he drove home or it was a week before he saw his chiropractor) Next give them a very basic and brief and simple statement as to treatment. Then describe briefly his claimed injuries. For example: “He claims that as a result of the collision he now needs neck surgery. He has $50,000 in claimed expenses. The defendants say he had all these problems before, he was not hurt seriously in any way and he is exaggerating to collect money. There will be disputed medical expert testimony” If you have a video of the client show them no more than five minutes. If you have pictures of the cars show them but don’t answer their questions. Then, before they are allowed to discuss the case and without answering any of their questions have them fill out a form: Q. How do you feel about his case? This produces gut reaction impressions. After they fill in the form let them discuss the case, looking for themes, issues, and evidence you need to be concerned about. Their questions, at this point, will help guide you as to trial evidence and case issues. This can be done with a group of eight to ten people for under $2,500 easily.

As to the result, the gift you got was a zero verdict. If they awarded any insignificant amount you would really have reason to be devastated for several reasons. A tiny verdict is an insult. It would be like a trying a long case and the verdict was $1. Now that’s a total insult. Trust me, a total defense verdict is a lot easier to live with. In addition, it demonstrates a probable bias and likely prejudicial error during trial which gives you an explanation for the outcome. On top of that, under Washington law, it is probable evidence of an improper verdict supporting a new trial since it was an admitted liability case, with some undisputed injuries. The fight was over what injuries and how severe they were. So start with the fact that if you were going to lose it’s a lot better to get a zero than a slap in the face.

It’s important to realize these kinds of cases are credibility cases and they are won, not with medical testimony, but with lay testimony. Jurors know the medical experts have an interest, but they trust lay people’s non medical observations of before and after medical conditions. Credibility is the reason I don’t think, as a general rule, you have your client on the stand more than thirty minutes maximum. You want your client saying “I’m doing OK and I’m going to beat this” and not moaning and complaining about their problems. Let the other people talk about his problems. The lay witnesses describe what they noticed before and after the collision with each one giving a different example. They tell very short stories illustrating the difference and they are brief witnesses as well – often ten or twenty minutes total. As to the total medical proof and evidence, you must be very careful not to over try the injury claim or exaggerate in any way, since the issue is credibility and they are looking for exaggeration and greed. You have to under try these kinds of cases.

Usually with this kind of case you are better off trying them as simply and quickly as possible without a lot of experts, technology or the trappings of major trials. They are white board, paper or Elmo cases rather than PowerPoint cases presented without a lot of technological fanfare. They require, however, good medical illustrations and diagrams to understand soft tissue injury. They are cases where you start right off talking about the obvious problem of a man with preexisting problems who now claims he is hurt and being totally candid from start to finish. These are cases where you concede specials are in dispute and you give the jury full power to disregard all or part. These are above all else impression cases and not cases of logic. Credibility is paramount. They need to trust you and they need to see total honesty.

Let me make clear I am not saying you would have won this case with the application of these facts. I don’t know the case well enough to evaluate that. What I am saying is that the manner of presentation tips the scale in the impression formed by the jury. There is no question in my mind, these are some are the most difficult kind of case to win. A malpractice case is easier to win then an admitted liability rear end collision with preexisting injury. The reason for that is in large part due to the decade of tort reform propaganda which focused primarily on rear end soft tissue cases as fraudulent get rich cases. It was the auto cases the insurance industry focused on to influence the juries and the legislature. It was only later that they begin to attack malpractice cases. As a result, of all the cases tried this very kind of case most frequently lost and there a lot of defense verdicts reported in our verdict reports to prove this so you aren’t alone here. This isn’t a failure on your part. This is just a painful learning experience you have now had which, if treated right, will make you a better lawyer.