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We all know the value  of focus studies. The problem is  there are so many ways  of  conducting focus studies that they can lead  to incorrect conclusions. My own view is that mock trial studies, that is presenting a mini trial with plaintiff and defense evidence  and argument is fraught  with the danger of invalid conclusions. Even with professional help so much depends upon who presents the material,  what is presented and  how it is presented that there is a large danger of drawing  invalid conclusions  because a trial is battle  of impression. The impression can vary greatly depending upon the previous factors. You can draw conclusions about issues, evidence and specific matters as well as gain insight  about issues and even some information about jury profile. However, any broad conclusions about winning or losing and verdict amounts is very suspect.

Extensive focus studies done by professionals can be very expensive and often exceed $20,000 depending  upon how they are conducted. I understand  why many lawyers  feel this is a bargain, but my  own view  is that informal focus studies are more beneficial for  me, although having  a  professional consultant is always a good idea if  you can do it.

My  approach is  the  less that is provided by way of facts  the greater the value of what you learn. I also believe focus groups can be very helpful regarding evaluation of clips of deposition testimony, exhibits you plan to use, voir dire and other case issues. I also think multiple focus groups are helpful and  they do not have to be an elaborate affair.

If one conducts a mock trial focus study or a more complicated study, the question is what do you ask the jurors after it is over? I am not endorsing the procedure or the following questions, but here is a general outline of  specific questions one might consider. This is not an approach I use, but I present  it as a resource.  The questions are no original with me, but gathered from a lot of sources I no longer recall.

1. What are the two most important things you have heard so far about this case?
2. What are the two most important things you have heard so far that help the injured plaintiff case? (Please answer this no matter which way you’re leaning)
3. What are the two most important things you have heard so far that hurt her cases? (Please answer this no matter which way you’re leaning
4. Wat are the two most important things you have heard so far that help the defendant case?
5. What are the two most important things you have heard so far that hurt the case?
6. If this case goes to trial in a courtroom, some jurors might decide that the plaintiffs should win this case.  What do you think would be the two most important reasons they would do that?
7. If this case goes to trial in a courtroom, some jurors might decide that the plaintiffs should lose this case.  What do you think would be the two most important reasons they would do that?
8. What could have been done to prevent this from happening?
9. If this case goes in front of a courtroom jury, what will be the three most important things for the plaintiffs’ attorney to tell the jury? 
10. If this case goes in front of a courtroom jury, what will be the three most important things for the attorney for the defendants to tell the jury? 
11. Was the defendant negligent? __ Absolutely  yes___ Probably  yes___ Probably  not___ Absolutely  not
12. Please explain why you feel that way:
13. A defendant can be negligent and still not be a cause of the harm.  With that in mind.  Was any negligence of defendant a cause of the harm to plaintiff?___ Absolutely  yes___ Probably  yes___ Probably  not___ Absolutely  not
14. Please explain why you feel that way
15. How much money should the defendant  pay to plaintiff?___ nothing___ A very small amount___ More than a small amount but less than his lawyers are asking for___ About what his lawyers are asking for___ More than his lawyers are asking for
16. What else would you like to know in deciding the money?
17. What helped you decide how much money was the right amount in compensation?
18. What facts or arguments made it hard for you to decide about money?
19. If other jurors decide on amounts of money higher than you did, why do you think they would do that?
20. If other jurors decide on amounts of money lower than you did, why do you think they would do that?
21. What would you like to say to anyone involved in this case?
22. What would you like to see happen as a result of your decision-making in this case?
23. How do you think cases like this one might best be resolved?
24. What would you like to say to anyone involved in this case?

I put my  trial prepration and trial materials  in different  colored notebooks depending  upon whether it is witness’s materials, discovery, cross examination,  briefs, exhibits and so on. Not only is the color a great organizational tool, they also come in different sizes and, best  of  all, because they are two hole  they do not make a snapping noise when you open and close them in court the way three hole notebooks do. They are also much easier  to open and close than three hole notebooks.  I  have hauled these notebooks in brief cases  around  the  country and have had them in boxes under the audience benches in court rooms during trials and at pre trial motions. We determined how big our cases were by the number of  notebooks we used.  I am still a big promoter of Binderetek notebooks and continue to religiously use  them.

However, while I still follow the  practice of organizing the hard copies of materials  in notebooks and will have the notebooks available at trial, I have been  introduced to a wonderful way  to use the Apple I-pad with two Apps that have made a huge difference in how I organize and use  trial materials. Both are available at the Apple Store. www.apple.com.  One App is TrialPad  which costs $89.99 and is worth every penny and more. The other is TranscriptPad which costs $49.99 and is equally a bargain price. Lit Sofware is the creator www.litsoftware.com It should be noted that  the purchase price for both comes with free (and very prompt) support and all updates  are free. There are no subscription fees, no registration cost and no annual maintenance costs.

A simplistic description of the purpose of each is this: TranscriptPad is  made to use  in organizing depositions and exhibits and TrialPad is intended  for court  room presentation of trial materials and exhibits. Both of these products are strong for reporting, organization and searching. Take  a look at You Tube for better descriptions about the use of these products.

Why am I enthusiastic about these products? For two reasons. One is because, at the moment, I have two large  entire cases stored in my single I-Pad using these products.  That includes every pleading, motion, brief, deposition, trial brief, jury instructions, photograph, video and  exhibit of every kind. When I travel or go to court I have the entire cases  in my I-pad and I can easily access  the  documents because they allow detailed organization within the Apps. I am not packing brief cases full of documents around, but rather only the hard copy I need such as the proposed orders on motions or documents I want to show the court. However, if  I wanted to I could project the document from the Ipad  to a screen or TV in the court room. I  have the assurance of having the entire file with me without having to have the physical materials and  I can access it quickly and easily in a  single Ipad device.

The second reason is that TranscriptPad allows such excellent organization and designation of discovery testimony. It has  features  which allow me to create color coded issues  and highlight deposition testimony saving under an issue heading. I can print reports of the designated testimony in a variety of  ways including by issue. I can also export the work product by document or even the  entire file to another device with TranscriptPad. I can e-mail designated testimony as well. That  allows me  to send portions of a deposition to a video tech as an instruction of  what parts of  the video deposition I need for court use.

In  addition, TrialPad has such excellent features  for designiating parts  of a deposition or exhibit and  enlarging it as a callout for projection on a screen or  TV or for  use  in other ways. It includes many features for presenting the materials while putting the entire file in a device I can hold in one hand with the ability to find files  quickly.

Here’s is an overview of how I am using these products. I subscribe to a  software called Dropbox.  www.dropbox.com This software allows one  to  simply and easily transfer documents from your computer to your I-Pad. While  there is a free version I pay  a low monthly fee for a version that allows transferring  more volume for my cases. One thing to note, however, is that we use  a  different sofware, Box for transferring medical information because it offers security  that Dropbox doesn’t offer. See www.box.com

Here’s how it works. Documents which are E-mailed to us  or those created in our  computers are saved and then easily  moved into Dropbox program in the computer. Other documents are scanned into the computer.  Once deposited they are wirelessly transferred through WiFi and  deposited in the Dropbox in my I-pad. I open them in the Ipad Dropbox and quickly move them to either TranscriptPad or TrialPad. Simce Pdf is required for these  products, I will originally save them in the  computer in that format or, if in some  other format like Word,  in my I-pad move them from Dropbox to another App  I have downloaded  to my  I-Pad: IAdobe through the Apple store. See www.adobe.com  This App  has  features I like including conversion of documents into a Pdf  format and from there moving  it easily into either  TranscriptPad or TrialPad.

Since both Apps allow detailed organization (in color) one can locate documents quickly as needed. I now travel or go to court with an I-Pad and even though I will have my Bindertek notebooks in the court room during the several weeks  of  trial  I won’t be hauling them home every night. In  mid-May my wife Lita and I are traveling  to Botswana for a photo safari. I plan to take with me my Amazon Kindle for reading and my I-pad for my mail  and with two entire cases loaded  in the device. Furthermore, on  this trip I’m taking my mini-IPad which has duplicate case material instead of the full  size Ipad. Isn’t it amazing?  Two small (5″ x 8″) devices.  One with a dozen books electronically stored for my reading  and the other with two large cases with every paper stored in it. I don’t have to take either one out at the security checkpoint and  with a small backup battery as well as a portable WiFi connection I am prepared as possible.

I know that many of you will be saying  to yourself: “He’s just now discovering all  of  this? What rock has he been living under?”  But, I thought I’d share my personal discovery for the few that aren’t aware of the advantages and  would like to investigate it. Unfortunately, I don’t get any kick back or a free anything from the makers of  these products. Check them out.

The Harvard Business Review published an article “The Visualization Trap” in which they discussed the well-known phenomenon of hind sight bias – the belief that past outcomes were predicable. In a study participants were given written diagrams and a description of how an accident occurred. Another group was given a computer animation of the accident. The groups were surveyed as to how predicable the result was from the information given them.

The group that watched the animation was more than two times confident the outcome was predicable than the other group. The animation group was even more confident than actual witnesses who were asked if they had seen it coming. When subjects were given photographs to go through at their own speed of a traffic situation they were surveyed on the same issue with another group who had seen an animation of the same situation. The results, regarding hind sight bias, were the same. Researchers concluded that movement is a critical factor in creating the effect.

Computer animation can purport to make sense out of highly complex information and influence conclusions about predictability. Today, we can  create animations much  more cheaply than in  the past. Simple animations can make a large difference in perception. A  series of photos moved one by  one with illustrations and labeling can be more  effective that a still photo in that regard. Think about this in cases  where high sight bias could be an issue and in cases where you need to  make something simple.

In his book The Social Animal, David Brooks offers insights as to how the human mind works. One thing he points out is that in persuasion, instead of telling the other person what you are offering, ask them what they want. Ask what makes them unhappy, keeps them up at night and what part of their job they like. Your message should be: “It’s all about you and not about me.”  Have you considered asking a jury panel what they would want to have  presented on an issue in your case. For example, where credibility  is a critical issue, “How do you  tell when someone is not tellling the truth?  What would you want to know about that issue in making up your mind?” Or, perhaps “What evidence would you want to have in order to decide……?” Certainly, spending time talking about  the juror is more rapport building than lecturing them about your case.

Brooks also writes  about he influence of “priming” on our thought processes. When subjects were given a test with a series of words vaguely related to elderly people, after the test, researchers  observed them moving more slowly.

When subjects were given a test with a series of words relating to aggressive behavior and annoying conduct, they found, afterwards, the subjects were much quicker to interrupt someone and act more rudely. Likewise, a group who was  given stories of high achievement performed at a higher level on tests than those given stories about failure.

In another situation involving priming, a Brunswick pool table store did an experiment in sales. One week the sales people showed customers the lowest priced tables first and then the more expensive. The next week, they did the opposite. They showed the most expensive tables first and then the lower priced ones. The result was that the first week customers spent an average of one half of what  customers  spent the second week. The customers who were first shown high priced pool  tables felt  the prices for the lower priced tables were more of a “bargain” due to the previous prices by comparison. They same thing has been done by successful real estate sales people in showing more expensive homes first.

Have you considered the influence on the jury by discussing large numbered things in comparison to your request for damages? What  about asking about excessive verdicts using examples of very large verdicts?  It raises questions,  as  well, about suggesting a verdict number to the jury in voir dire or opening as a priming effect. Think about this in connection with the idea of framing. As  an example, a surgeon who tells patients there is a 15% failure rate communicates something different than when he tells them there is an 85% success rate. Trial lawyers are supposed  to be word masters. We need to study these important ideas about how we express  ourselves during trial.

By the way, the note from 2004 is from Gerry Spence. I had told him I was trying a case against obnoxious defense lawyers and was concerned about my reaction. That was his advice to me.

BE BRIEF, BE SIMPLE & GET TO THE POINT

1.       Be Calm -   Stay calm & confident

2.    Be Poised – stop, listen & think – act

3.     Be Slow  -  Pace & timing - slow down

4.     Be Clear –  Short & clear [Use analogies]

5.     Be Nice    -  Always act professionally

                 ✢ WAIT          ✢ SMILE         

                ✢ LISTEN       ✢ FOCUS    

David’s advice to Solomon:

“Be strong and courageous, and do the work. Do not be afraid or discouraged”     (1 Chron 28:20)

August 3, 2004

You are a kind and mostly humble person. You will be patient, not annoyed. Kind, not aggressive or complaining. you will never raise your voice, never glare, never frown or rise in anger. You will, at most, look patiently down and await the ruling of the court and continue. Gerry 

 OCCAM’S RAZOR: Whenever there are several possible explanations, the simplest is the usually the correct one             

• •MIRROR FACIAL EXPRESSION , POSTURE, RATE & TONE OF SPEECH FOR 1 MINUTE

I’ve published a basic outline  for  argument  before, but, as  to damages, how do we evaluate what is full money justice in such cases? It can only be done by balancing the extent of the harm done against  a dollar  amount  which equals that harm. The verdict  should be a  perfectly balanced scale with money on one side  and the harm on the  other. When the scale between these two essential parts of a tort trial is perfectly balanced there is justice. That means that each aspect of the injury must be evaluated by the jury and a dollar amount determined as being equal to the harm involved.

The approach you use to damages will usually be  based  upon the amount of harm and potential damages involved. It is more common to use a per diem approach in a case of  less major injuries.  As  a general rule, the larger the obvious damages the less the importance of breaking down the  damages  into elements or time .

Keep in mind at all times the importance of the fact that there are two kinds of damages: economic and non economic. They are very different. Economic damages are based upon need and specific dollar expenses. Non economic damages have nothing to do with need or specific expenses. Don’t let defense counsel confuse the jury that the only role of damages is to pay bills. To the extent you can make the jury understand this vital point and award full justice in dollars you have done your job as a plaintiff’s attorney in a tort damage case.

So, what are some of the ways you can argue damages? There are many approaches to arguing non economic damages. Some of the more common are:

1.   Per Diem: Assigning a dollar amount to time elements. With this argument one gives a dollar amount to an element of injury and multiples it over time. For example, one might argue the minimum wage per hour for pain and suffering over past and future life expectancy. Traditionally this type of argument is usually reserved for less obvious injury cases the extent of which can’t be clearly demonstrated. It is not permitted in  some states, but has been used  in Washington state for many years.
2. Lump sum: Simply suggesting a total amount to be awarded without breaking it down. Here the lawyer either assigns a single total dollar value to the entire case without any specific dollar break down. Taking into consideration all the injuries, past and future, all the bills and all the elements of damage allowed by law a total is suggested to the jury for the entire verdict. In very major injury cases this may be an effective way to argue.
3. Damage ranges: Suggesting a low and high range for the case or for each element of damage. One can also argue a range of verdict from a minimum to a maximum range which is argued is reasonable. This can be done for the entire verdict, for each element of damage, for each injury sustained etc. Ranges are sometimes an effective way to argue damages where there is difficulty trying to evaluate what the injuries consist of and there is uncertainty as to the jury attitude.
4. Elements of damages: Assigning dollars amounts to each element of damage allowed in the jury instruction. In this case, the advocate takes each element of damage, such as pain and suffering. The damage period is divided between past and future. A dollar amount is assigned to that element for those two periods of time and added together. That total represents the suggested amount for that particular element of damage.
5. Damages per injury: Assigning damages to each specific injury received. One may chart each injury the client received. For each injury a dollar amount is assigned, past and future. The total of all injuries represents the total verdict.
6. Giving no dollar suggestion: Not giving the jury any number and letting them decide for themselves. The advocate reviews the evidence and the law relating to damages, discusses the effect of injuries and damages generally, but tells the jury he or she plan to leave it to the jury to decide. The general wisdom among advocates is that if you are permitted to argue dollar amounts to a jury as a verdict you should always do so. The jury wants and needs direction. Yes, it is possible to offend the jury by the amount argued where it is extremely inconsistent with their perception of the case. But, you should argue what you sincerely believe anyway, provided it is based upon some rational facts.

Most advocates believe that it is only in rare instances would a plaintiffs lawyer not suggest the amount the jury should award. However, there are state’s where this is prohibited. The jury wants and needs direction. Yes, it is possible to offend the jury by the amount argued where it is extremely inconsistent with their perception of the case. But, you should argue what you sincerely believe anyway, provided it is based upon some rational facts. Remember to explain how the injury or harm is translated in the real world regarding the client’s right to enjoy life in an injury case. To do that you need to understand what has happened to your client. Who was this person before and who is the person now? Have courage and determination in representing your clients.

I recommend treating  the elements  of damages  separately in explaining their impact  on the plaintiff. Assume, for  example, the elements  are: (a) loss of  enjoyment of life (b) disability (c) pain and suffering. My approach is to evaluate the significance of each. I would  rate loss of enjoyment of  life the most  significant,  disability second and pain and suffering third. Since the most difficult concept to persuade the jury about is pain and suffering, I divide it  into mental pain and physical pain in my discussion. I will argue mental pain is far more significant than physical pain and discuss  what mental suffering really means  to an injured person. I will  argue disability from the standpoint  of  having a  role in life and relationships to oneself  and others.  But, loss of enjoyment of life, I consider  the most significant. That is the  reason we are  alive and the thing  that gives our existence a purpose. Life is more that going to  work every day,  it  is about peace of  mind and health. For each of these elements  I will give a suggested figure. In a major  damage case like quadriplegia  or brain damage my discussion will be more general about  all of  the elements for  a lump sum amount.

Obviously, each advocate approaches argument in their  individual manner, so these  are simply how I generally handle damages.

Here’s how a final breakdown of the damages  might be outlined in an injury case with a consortium loss. Note  the separating of economic from non-economic damages  and the division of loss into  past and future.

DAMAGE TOTALS

A.        ECONOMIC DAMAGES

Past Loss

1.         $______________PAST MEDICAL CARE & TREATMENT

Future Loss

1.         $______________FUTURE MEDICAL CARE & TREATMENT

$_____________TOTAL ECONOMIC LOSS

B.         NON-ECONOMIC DAMAGES 

1.         Past Loss

(1)        $__________ PAST LOSS OF ENJOYMENT OF LIFE

(2)        $_________  PAST DISABILITY & DISFIGUREMENT

(3)        $_________  PAST PAIN AND SUFFERING

$_______________TOTAL PAST NON ECONOMIC DAMAGES

2.         Future Loss

(1)        $__________FUTURE LOSS OF ENJOYMENT OF LIFE

(2)        $__________FUTURE DISABILITY & DISFIGUREMENT

(3)        $__________FUTURE PAIN AND SUFFERING

$______________TOTAL FUTURE NON ECONOMIC DAMAGES

3.         Totals 

(1)        $_______________TOTAL ECONOMIC LOSS

(2)        $_______________TOTAL NON ECONOMIC LOSS

$_______________TOTAL DAMAGES

C.        CONSORTIUM DAMAGES

(1)        $__________ PAST LOSS OF CONSORTIUM

(2)        $__________ FUTURE LOSS OF CONSORTIUM

$______________TOTAL CONSORTIUM DAMAGES

Rock says that it is a summary of what motivates us, the things we feel passionately about and that are driving behavior. He says that the brain divides everything into one of two categories: threat or reward. He says “We are driven unconsciously to stay away from threat, and to go toward reward. This decision about threat or reward happens five times every second. It is very subtle.”  This is consistent with what we know about people, that they are driven by reward and punishment – the carrot or the stick. This is why we present our case as not being merely about our client, but about the protection and welfare of the juror, their family and the community.

He explains the acronym. The word “status” is your perception of where you are in the pecking order – a feeling of being better or worse than others. We want the jury to know that our cases have importance outside  the individual client and that they are empowered, as a group or team, with extraordinary power to do the right thing which will benefit them and others. We tell them in summation that they will be very proud of their verdict for the plaintiff  in future months and years.  That they will have played an important role in the community.

“Certainty” is a constant drive for the brain. He says “the more we can predict the future, the more rewarded we feel. Unless we can predict, the more threatened we feel. As soon as any ambiguity arises in even a simple activity, we get a threat response. We are driven to create certainty.” This is why rules are so important. Survival depends upon certainty about things we encounter in life. We need to know what  is safe and what is a danger. This need for certainty also is the reason jurors will always create a story that makes  sense  to  them about the facts.

“Autonomy” refers to a sense of control and is similar to certainty. Certainty is the knowledge about the future events but autonomy is about control.   It’s important for us to feel a sense of control, so much so that a small stress where you have no control generally is, in fact, a very big stress.” We know that lack of control means a threat to survival and activates a very basic  part of our reptile brain. We need to be in control and that means having rules of conduct that are enforced as well as control over our safety. This is consistent with our trial communication to the jury.

“Relatedness” refers to our interactions with others. The decision we make about everyone is: “are you in my group or out of my group.” Rock says that at an unconscious level we evaluate the other person by asking ourselves: “is this person similar to me? Are they on my team? Do we have shared goals or are they in an out group?” It becomes an issue of trust. This is a very important idea to us as trial lawyers. We must be part of  their (the juror) group. We must join their tribe starting in jury selection, where it is allowed, by never arguing or rejecting what jurors  tell us. We  need to project their shared values and ideas, to join  their tribe, before we can even consider suggesting there may be exceptions which apply to your case or your client. 

The final is “fairness” and is a fundamental factor. Rock says that a fair exchange of anything is intrinsically rewarding. An unfair exchange of anything is intrinsically threatening. Fairness is essential to the relationship and attitude of an individual. We know that one of the primary drives  of  the jury is to “do the right thing.” A trial is really a morality contest. The jurors apply a test of right and wrong. Is this consistent with my values? Is it fair? Is it basically right? Those are the unconscious filters through which the jurors weigh the evidence at trial.

While Rock was talking about leadership in a business, it seemed to me that what he had to say had  application to us as trial lawyers.

GEORGE SPECKART

Dr. Speckart is a jury consultant who has published about communication and trial persuasion. Here a couple of  thoughts I’ve summarized from his writings.

1. In terms of jury psychology, the question put to the witness itself is often is more important than the answer because the question represents evidence for the juror no matter what the judge tells them.
2. Demeanor is critical. One should “kill with kindness” if the attorney is abrasive the jury will assume that the sustaining of objections is because serious transgressions have been committed. However if the lawyer is likable, gracious and refined the jury sees the objections and rulings as technicalities that have meaning only to the members of the legal profession. 

FRANK LUNTZ

Frank Luntz is a nationally known expert on communication. He has published widely and written books on the subject. He has been an advisor to national political parties and candidates. Here is my summary of some of his materials 

1. You only get one chance to make a good impression. Your first sentence, first thought, first idea, is the most important.
2. Be a good listener. Don’t look away. Don’t fold your arms. The people centered: I’m listening; I hear you; I get it; I respect you; you are in control; you decide.
3. Phrases that work are: first principles, first things first, prevention and protection, getting our house in order, if you remember one thing, a straightforward approach, optimized – efficient and effective.
4. Words of passion are: imagine, let me fight for you, believe, celebrate, freedom, life is an adventure – we you join me.w
5. Words that demonstrate principles are: accountability, strict standards, moral compass, social responsibility, objective and unbiased, uncompromising integrity, the simple truth, say which you mean and mean what you say.
6. Words that work: prevention, protection, accountability, compassion, the right to, patient centered, and balanced approach.

TRIALMAGAZINE

In an article published in Trial Magazine entitled  “Motivating Jurors” March 2008,  Wenner and Cusmano made some excellent points. Here are two that I have summarized

1. People are reluctant to change the status quo. Jurors perceive the status quo as the position of the parties at the time the trial begins. Jurors, particularly those who feel victimized by large jury award awards, will have an unconscious preference for the status quo – a defense verdict which leaves the parties as they perceive them to be when the trial started. There is a defense verdict bias by jurors. To overcome this you need to frame a defense verdict as a change in the status quo that creates a loss for the jurors. Research shows people are more motivated to avoid losses than they are to obtain gains. If jurors perceive a defense verdict is a personal, family, or community loss, they will be inclined to decide for the plaintiff.
2. The verdict should be framed in a malpractice case as a protection against the defendant who threatens to eliminate safe medical practice. Frame a verdict for the defendant as lowering the standard of care and eliminating safe healthcare. People are reluctant to give up what they already own. Framing the defense verdict as a loss of safe healthcare unconsciously motivates the jurors more than the prospects of gaining better or safer healthcare. 

 DON KENNAN

Everyone knows plaintiff trial attorney Don Kennan who has lectured and published with trial consultant David Ball about Reptile concepts and trying plaintiff cases. Here is one thought I think we all can benefit from knowing and ties into the idea from the Trial Magazine article.  

1. The conservative is deeply resistant to change. Establish that the rule the defendant broke was long-standing and why it was important. Show who follows rule and who ignores the rule. Instead of a “set the standard” argument, which involves changing the status quo, argue, “enforce existing standards.” The argument should be it  is “it is up to you to enforce the standard. It is up to you to decide how far a company can go in hurting someone by violating long-standing  safety rules.”

Story telling is in reality a return to our roots. The basic way in which we should communicate if we want to persuade. Learning to be a good story teller should be the goal of every trial lawyer who strives for excellence.

A big part of that process is filtering what they see and hear through their unconscious version of the story they have made. In doing so, they ignore or rationalize or reject what is in conflict with their story  of  the case. In addition, they are left to deciding who to trust. Who seems the most  credible? Who seems to be someone they can trust to tell  them the truth? That means while they are filtering evidence they are also evaluating credibility. No matter how logical the reasoning and objectively persuasive the expert, the expert’s believability is dependent upon the impression for credibility. If  the expert is suspect for trustworthiness and credibility their opinions  are equally suspect.

That means to me the most important part  of  my cross examination of a  defense expert is not the subject matter, but rather undermining their credibility. Bias is the most important part of any cross examination,  so we need to be prepared for demonstrating it.

What follows is not a complete discovery deposition for  a collateral cross  examination, but  only a partial illustration of what I  mean.  It obviously does  not include any of  the subject  matter you would also include  in your discovery examination of the expert. It will illustrate, in part, what I mean about collateral cross  examination.

INVOLVEMENT 

1. Explain how became involved in this case

(1)  Who contacted? Why?
(2)  Emails, phone etc?
(3)  Meeting

2.Advertise professional services as an expert witness – details
3. Subscribe or belong to any professional witness group offering your services
4. Any past connection defense lawyer

(1)  Know or connection with any lawyers in firm – social, professional – details
(2)  Ever reviewed cases for firm before – frequency, details

5. Any relationship or connection to defendant?

(1)  Professional societies or organizations
(2)  Social
(3)  Business relationships- professional, social or business
(4)  Same re defendant’s medical partners, clinic or associates

EXPERIENCE AS EXPERT

1.Past experience as retained expert:

(1)How many cases reviewed since starting as expert
(2)How many reports written
(3) How many depositions given
(4) How many times testified

2. How many times acted as an expert for defense
3. How many times acted as an expert for plaintiff
4.Percentage:  plaintiff vs defendant
5. Name the last case where you had an opinion there was malpractice – details
6. Name last case where you were hired by a plaintiff attorney – details
7. Have you ever testified against a health care provider in a malpractice suit?

(1)When, where, names & nature of case – details for each one
(2) Opinions offered

8. In what states have you acted as an expert
9.  Have a blog, website, Facebook or like? Details
CHARGES

1. What charge per hour for review
2.  What charge for deposition
3. What charge for testimony
4.  What other charges do you make
5. In addition, charge for travel, hotel and expenses?
6. Travel 1^st class at expense of defendants?
7. Number of hours to date?
8. Future work planned?
9. Charges to date

INCOME FROM EXPERT WORK

1. What percentage of annual income is from work as expert witness
2. What were your total earnings as an expert witness last year? Previous?
3.What is your average annual income as expert over the last three years?
4.  What is the highest fee ever earned in one case?
5. Are you incorporated for your expert witness work?
6.  Who are the stockholders, officers?
7. Is income received paid to the corporation?

“What is on trial is not just the individuals but the ideas they openly espouse. Not only will the accused defend these ideas; they will show that they were the victims of political kite flying by the government to see how far it could go in stifling free speech. This trial has been instituted in an attempt to silence and outlaw the ideas held by the accused and the thousands whom they represent. This is no ordinary trial but is rather a battle of ideas between those who want equal opportunities and freedom of thought and expression for all races and those who sought to confine the riches of life to a minority.”

A couple of examples of cross examination  were entertaining. Berrange on cross examination demonstrated that an expert witness produced by the government had lied about being a university graduate and a lawyer by forging his certificate and practicing fraudulently. He said to the witness:

Q.  When did you last do an honest days work?
A.  Ican’t remember.
Q.  You have lived a life of lies and deception.
A.  I cannot be able to check that.

Another expert witness was called. A professor of Philosophy at the University of Cape Town. He testified as an expert on communistic writings and speeches. He examined speeches made by the defendants and described them as being communistic. On cross examination Berrrage read  a series of  extracts of statements and asked the witness to tell him whether they bore evidence of communist tendencies. The first concerned the need for worker cooperation. Communistic said the witness without hesitation. The lawyer disclosed that the author was a former Prime Minister of South Africa. Then he read  two more extracts. Again, the witness declared them to be clear evidence of communistic speeches. The lawyer disclosed that one was Woodrow  Wilson and the other Franklin D Roosevelt, both former U.S. presidents. The climax came when he read a passage which the witness described absolutely as being communist “straight from the shoulder.” With some glee Berrage pointed out the person who wrote it was the witness himself!