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TRIAL ASSISTANT INSTRUCTIONS

When I was a young lawyer in the small town of Mount Vernon, Washington I would sometimes fly to places for legal work as the quickest way to get there. Just outside town there was a narrow dirt air strip right along a standing field of corn on one side and a drainage canal on the other. The local pilot who flew the farms for spraying the fields had his planes there and one was a small two seater he would fly me in. He had been flying for over 30 years and had flown hundreds of hours. Never the less, every time I flew with him, he would get out a clipboard with a checklist and walk around the plane with it. He would methodically go through it out loud even though I was the only one with him. He would even open the window on his side before we started out and shout out “Prop On!” before firing up the engine.  The only thing close to us would be cows crazing a long ways away. I was struck how much importance he put on a checklist for some thing he had done hundreds of times. I decided that in my law practice I would create a checklist for every thing we did. Every time we did something new I made a checklist. I modified them as we used them, but they were given to all the paralegals and we followed them together. Here is an example of an early checklist I created when I was really trying simple cases alone but always with a paralegal with me. It will give you an idea of the concept. Of course, this is really simplistic but it gives the general idea. TRIAL PARALEGAL CHECKLIST  Arrangements need to be made to transfer the client files and exhibits needed for trial to the courtroom. The computer, projector and electronics are also to be set up for trial. The general outline for  responsibilities during trial follow: MORNING 

  1. ARRIVE AT COURT AT SAME TIME LAWYERS ARRIVE
  2. ASK ATTORNEY FOR INSTRUCTIONS WHEN YOU ARRIVE
  3. REVIEW WITNESS LIST FOR WITNESSES TO BE CALLED
  4. MAKE SURE WITNESSES ARE THERE & READY TO TESTIFY

WITNESS MATERIALS

  1. HAVE ALL OF THE WITNESS MATERIAL READY FOR THE ATTORNEY. THIS INCLUDES DEPOSITIONS, EXHIBITS AND MATERIALS.
  2. BE PREPARED TO GIVE THE LAWYER THE MATERIALS DURING THE EXAMINATION
  3. HAVE BOXES & TRIAL MATERIALS ORGANIZED FOR EASY LOCATION  AS NEEDED.

DURING TRIAL

  1. BE OBSERVANT FOR ANYTHING NEEDED BY LAWYERS
  2. BE RESPONSIBLE FOR WITNESSES WAITING TO TESTIFY
  3. NOTE OBSERVATIONS REGARDING JUDGE, JURY, WITNESSES & COURT IN GENERAL. DON’T PASS NOTES TO ATTORNEY

MORNING RECESS

  1. CHECK WITH LAWYER FOR PROJECTS
  2. SHARE ANY OBSERVATIONS OR MESSAGES
  3. REPORT ON WITNESS STATUS

NOON RECESS

  1. BE PREPARED TO GET FOOD FOR LAWYERS OR WITNESSES IF ASKED.
  2. REVIEW OBSERVATIONS WITH LAWYER & SHADOW JUROR COMMENTS.
  3. ADVISE REGARDING STATUS OF NEXT WITNESS
  4. REVIEW ANY MESSAGES FROM OFFICE OR OTHER NOTES
  5. ASK LAWYER IF ANYTHING IS NEEDED
  6. CHECK ON WITNESSES FOR AFTERNOON

AFTERNOON RECESS

  1. ASK IF LAWYERS NEED ANYTHING
  2. SHARE OBSERVATIONS OR MESSAGES
  3. REPORT ON WITNESS STATUS – ENSURE WITNESSES READY
  4. ADVISE SCHEDULING PARALEGAL OF TRIAL STATUS

END OF DAY

  1.  REVIEW WITNESS STATUS AND SCHEDULE FOR NEXT DAY
  2. FIND OUT WHAT PROJECTS LAWYER HAS FOR YOU
  3. ADVISE WITNESS PARALEGAL OF STATUS.
  4. HAVE WITNESS MATERIAL AVAILABLE FOR LAWER
  5. GIVE REPORT FROM SHADOW JURORS AND OBSERVATIONS
  6. GET INSTRUCTIONS FOR FOLLOWING DAY.

THE STRUGGLE OF BEING A CAREGIVER

Many of us have represented the parents of a brain injured or disabled child, a person whose spouse is paralyzed or a loved one with disabling injuries. While we have a certain medical knowledge about the consequences of the injuries to the injured person injuries are not confined to just the person who was injured. They also involve everyone connected to the circle around the injured person.

That includes caregivers as well as the injured person and other uninjured family members. We have learned how all of the relationships are forever changed and will never be the same again. We also know that the evidence shows the divorce rate is much higher in situations involving injured spouses or injured children. We know it is due to the stress of becoming a caregiver, because the injured person isn’t the same person and because the other members of the family unit suffer when all of the attention is directed at the injured member of the family.

I have talked to juries about the  fact that  the injured person  is changed forever.  In a  case  involving  a brain injured wife  I told the jury what it is like. I’ve said something like this to the jury:

“Helen, at least the Helen  George married, doesn’t exist anymore.  Yes, we see  her  physically  looking about  the same as before the injuries and  she is still alive , but she’s not the Helen  George fell in love with  and  married.  That Helen whose personality ,wit and attraction George fell in love with was destroyed forever  by the  injury inflicted on her brain. Those of us who are married  were attracted  to our spouse  by their  personality  and the essence of who they were.  We married them and  we found out  that they weren’t the perfect people  we thought they were and they learned we weren’t so perfect either. We learned to adjust to our mutual imperfections. Over time we  became  closer  to them  as  we  learned  to  understand  them and our relationship grew.  However, if suddenly and unexpectedly  that  same  person  we  learned to love  is brain injured like Helen, we now have  whole  new  person  we really haven’t  met before  as a spouse.  The profound change  in  our relationship  with that injured person  isn’t just  a change  for us. It is a change for our children,  family members and friends as well. Nothing will ever be the same again. The effect of injuries like this cannot be fully  foreseen  and  continuously  impact  our  lives as well as the life of our injured spouse into the forseeable future. ”

James W. Foley’s poem  drop a pebble in the water  describes  the reality  of what happens  to a family  when  one of them suffers serious and debilitating injuries:

“Drop a pebble in the water: just a splash, and it is gone; But there’s half-a-hundred ripples Circling on and on and on, Spreading, spreading from the center, flowing on out to the sea. And there is no way of telling where the end is going to be.”

It’s our role in representing injured people to be able to reverse roles with everyone in this kind of a tragic setting. We need to be able to see and feel what it is like when someone you love and are responsible for suffers serious injuries.

Peter Rosenberger has written a book Hope for the Caregiver: Encouraging Words to Strengthen Your Spirit. Rosenberger’s wife, Gracie, was seriously injured in a car collision in 1983. She went through dozens of surgeries and ultimately had her legs amputated. The couple have two sons and Rosenberger and his children have been Gracie’s care giver during her life since the collision.

The New York Times interviewed him. He said he only left her at home alone for short periods and never alone overnight. He has some assistance part-time in the home. He is able to work out of his house and has a radio’s show and gives speeches.

When asked why he had written the book he said that: “More than 65 million Americans serve as volunteer caregivers for vulnerable loved ones. If we are not in a healthy place, we risk becoming a Petri dish of resentment.” Rosenberger says  that caregivers should take some breaks – “even if those breaks only come an hour at a time. You help them better if you are healthier, not just physically but fiscally, emotionally and spiritually.”

Rosenberger talks about what he calls the “three I’s” He says these are: (1) loss of independence (2) loss of identity and (3) isolation. He explains that caregivers frequently are so wrapped up in the person they are dealing with that they lose their own identity. For example if you ask a caregiver how they are doing they are likely to say “we” just got home from the hospital. Caregivers often speak in the third person because they have lost their identification. Certainly, caregivers lose significant independence because of the dependence on them by the person they are caring for. If one’s life is largely confined to caring for a person needing around-the-clock care one does not have much of an opportunity to mix with and be with others. That also  creates a sense of isolation and aloneness.

Rosenberger recommends support groups as well as the ” three W’s.”  He says these are wait, water and walk. In times of high stress learn to wait, bite your tongue  drank a glass of water and go for a walk. He recommends taking a moment before responding in a stress situation. Practice breathing slowly until you feel yourself growing calmer. Walking he says also is helpful in removing tension.

While there is no substitute  for spending time  with  your injured client and their families a book like this  can provide  helpful insight in  gaining an understanding  of what it is  the people you represent  are really going through.

DON KEENAN’S THE KEENAN EDGE 2 – A book you should own

Don Keenan has been my friend for 25 years. We are both past presidents of the inner circle of advocates, one of the nations most prestigious plaintiff trial organizations. We have also shared a lot of ideas about plaintiff trial work. I listen to what he has to say. One of the reasons that I have placed on lot of credibility in Don is he has always been on the cutting edge of communication and persuasion. Like me, he has a curiosity about what works and what doesn’t in our profession. In addition, I agree with him about most things relating to plaintiff’s trial work and in particular human decision-making.

Don’s numerous awards, honors, professional accomplishments and significant cases are too numerous to list here. The highlights include the fact he has appeared on every major national news program, received most of the significant awards for professional and community work and has served as an  officer or president of the most significant trial organizations. His record of million-dollar verdicts and settlements stands alone.

His popular blog, the Keenan trial blog: ,http://www.keenantrialblog.com/ is a must read for those of us who are trying to improve our trial skills. Don has now published a second collection of  selected blog publications in: “The Keenan Edge 2.” This book is available at the special price of $63.75  For more information see:  http://www.shop.reptilekeenanball.com/products/the-keenan-edge-2-pre-order.html 

By way of the disclaimer I should point out that Don was kind enough to include a couple of contributions I made to his blog, but I have no financial interest in it. The reason you should be familiar with this book is because it has leading edge information about what works for us doing plaintiffs trial work. It won’t substitute for attending one of the many seminars he and David Ball put on regarding witness preparation, discovery or trial, but it is an excellent collection of  great communication and trial ideas.

As an example, there is a section in the book about something I feel passionate about.  That is my belief it is to prove not just negligence but motive. A trial is a battle of impression and not logic. As Don says in law school you were taught that if you could prove liability causation and damages you won. He writes:

“If you could establish all three, then “shazam!” Like Gomer Pyle, a plaintiff’s verdict would certainly appear.”

Nothing could be farther from reality.  Only uninformed  lawyers  and mediocre judges believe that anymore. Yet that’s what we were taught as law students and what is believed by plaintiff lawyers for too many years. As Don puts it: “every case must have a MOTIVE unless the case surrounding the defense is substantiated by outrageous facts or you have an unlikable defendant.”

Don and I also agree about something that not everyone would join us in agreement about.  We both feel partial settlements shouldbe avoided as much as is possible in all cases.Don’s characterization is: “partial settlements: the self-inflicted wound.” I’m with Don. And we both agree that it doesn’t make a difference even if partial settlement is with just a peripheral defendant. There are too many downsides. An obvious defendant who is not in the case allows the jurors to speculate and assume you already collected money or have not done something right. And allows into many cases  the remaining defendants to point their finger at the empty chair. It opens the door to legal issues that could complicate the trial and your ability to collect the verdict.

Other helpful sections involve: negative attribution, focus group studies and voir dire. There is just enough information to make a point without a lot of extra complicated ideas.

Of course, Don talks about his copyrighted Reptile concepts, but this book is more than simply a rehash or extended discussion of that subject.

I also like the contributions made by other lawyers about their cases and how they handle issues.

We have a lot of ways to spend our money on instructional materials. This one is a good investment. I thought it was a valuable addition to my library, but if  you are unhappy with the book ask Don  for the refund, not me.