In early September of this year I did a demonstration of a final argument at a plaintiff trial lawyer’s convention in another state. I was able to listen to some of the other speakers and I made some notes about what they said that made sense to me. Here are some random ideas I wrote down you might find helpful.
A speaker about jury selection made the point that you should not ask the same question about an issue of each juror because the other jurors listening quickly begin thinking about how they will answer the question and you want get to them. This defeats the goal of getting initial gut reactions from jurors. Instead the issue has to be worded or approached in different ways.
Another speaker talking about cross examination had a number of excellent ideas. These include the following:
- He asks what they were paid. He asks what they reviewed. He asks to see the material. He asks if they charged for the time they took in reading the materials which he has taken from the witness. He then goes through each one and asks them if this document was really relevant to the area the expert was asked to talk about. His experience has been that lawyers send everything they have to the expert so the expert can say they looked at everything, but when the really relevant materials are separated out it is usually a very small amount compared to the total. He makes the point that the expert really only relied upon a small amount of material even though he and the defense lawyer made a point of showing much material was reviewed in arriving at his or her opinion. He also points out that the bill, however, included his time in reviewing the non relevant.
- He asks if the witness if it isn’t true that he or she want the jury to believe their opinion is the right one. He expands on this which implies bias. Then he asks “You understand that if the jury believes you, the plaintiff gets nothing, but you still walk out of here with your $______fee?”
- He asks if the witness is biased because experts are reluctant to admit any bias and they look foolish denying. He pursues this point with questions about indications of bias e.g. number of times testified for defense vs plaintiff, fee etc and ends with question like “not even biased a little bit?”
- On cross examination of cost of care witnesses, he asks if they have hired any help at their home – cleaning etc. He asks what they are or have paid per hour which is usually a lot more than the minimum wage people they claim the injured plaintiff can get by with. he has even handed them a local paper ads and asks them to find someone willing or qualified to do the work he says is needed for the minimum wage amount he has assigned for that work.
- He always reviews the jury instructions that will be given and crafts his questions in that language for direct and cross examination since that is the language the jury will hear. Some witnesses, on cross examination, argue about accepting the language or otherwise testify about the question in a way that allows motions as well as favorable jury argument.
- He argues that in trial as well as examinations, especially cross examination, any “rules” should be overly simple and obvious to not allow confusion or allow argument. He believes lawyers most often make them to complicated and too long. An example of a simple rule would be: “When you drive you should allow enough room to stop.” This is a lot better than “The rule is that drivers should drive in such a way to anticipate a car in front might stop and must allow sufficient distance, in the exercise of reasonable care, to safely stop.” The rules should all be based upon the jury instruction that will be given.