Ideas from trial greats

Last Friday James Rogers and I co-chaired a seminar for the Washington State Trial Lawyers, who have voted to change their name to Washington State Association for Justice. In addition to James and myself we had talented lawyers speak who included Virginia DeCosta and Craig Sims from Seattle; Randi McGinn and Carl Bettinger from New Mexico; Terry O’Reilly from California and Jim Gilbert from Colorado. It was a wonderful seminar on a variety of subjects.

Here a few of the ideas of the hundreds of great ideas that I noted during the seminar:

  • One effective way of quickly identifying the values of a juror is to ask them their favorite radio & television personalities
  • Use three to four minutes of a deposition of a key defense expert or company representative to ask value questions. For example, if changed or concealment of records are involved, ask about the importance of honesty. You can also select "rules" such as where there is a safe way and a dangerous way you must always pick the safe way. This excerpt of the deposition can be used in opening or by way of cross examination or even, where permitted, offered as testimony.
  • Since the burden of proof and degree of proof are significant issues in the minds of jurors these days, ask about it in order to show the plaintiff’s burden is not "beyond a reasonable doubt" in a civil case. One approach is to ask what the juror thinks the degree of proof must be in order for the plaintiff to prevail i.e. 100%, 80% etc in order to open discussion about the issue. It may lead to challenges for cause as well.
  • Since today’s jurors arrive at the court house with existing bias about people who sue, we can no longer rely on the absence of evidence. We must affirmatively disprove unconscious bias as for example contributory negligence. Even if no evidence, we must prove there was none.
  • Carl Bettinger did a demonstration of opening statement based upon the method taught at the Spence Trial College. Instead of a narrative, Carl acted out the opening statement by carefully detailing sounds, smells and even how things felt as he acted out a nursing home negligence case. He described the wall arrangement, the smells, the noises in the nursing home and then used his hands and body to show the wall arrangements, the bed, the patient position in bed and so on. It was a story which held one’s attention.
  • Randi gave many examples of demonstrative evidence she has used in court and much of it she created herself through software or obtained inexpensively. One suggestion she gave was to hire people who are involved in railroad modeling to build models. They are experienced in building landscaping models, know how to make things to scale and are not as expensive as professional model makers.
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