There is a difference of opinion about whether plaintiff should tell the jury the verdict amount you are asking for in jury selection. Some believe it is too soon in the case and it will alienate the jurors. Others, that it is important to anchor the number immediately.  What  follows is a very general discussion about giving the  jury the verdict you want  in voir dire and/or opening  statement

David Ball recommends it be done in his book Damages  and suggests  how to do it. Roughly illustrated, one tells  the jury:

  • You all understand that I have an obligation to suggest to you when you’re verdict should be in this case? Does anyone have a problem with the fact that I will be suggesting what you’re verdict should be in this case at the end of the case?
  • How many have you heard that lawyers always ask for more than they really want the jury?
  • how you feel about a lawyer who honestly expresses their evaluation to you yet final argument as to what you’re verdict should be without adding more than they feel is fair?
  • How do you feel about by honestly giving you the figure I think is correct and the reasons why I think it’s correct without any games?

Gerry Spence give the jury a number in every case. He usually starts by telling them his own reluctance to people seeking money and those who ask for it. He then tells them the amount he is asking for and opens discussion. See below as an example:

“You know, deep down inside I’m bothered by the idea of asking money for justice. I was taught it not polite to ask for money and here I am asking you to appraise this case for $X. Is anyone else bothered by this?”

” You’re going to hear us talk about what seems like to me an unbelievable amount of money. In this case I’m going to be asking you to return, after we prove our case to you, the amount of $2 million a year each of those 25 years they were in prison when they were innocent. Would you be willing to give fair consideration to such a demand? How many of you would be willing to consider that?”

Other lawyers have asked the  jury:

  • “Does anybody have any idea how much it will cost in today’s dollars, to provide quality medical care for a severely brain injured child over the next 50 years?” I will then ask “Would it shock anybody to learn that, in today’s dollars, the cost to take care of a severely brain injured child like Joe will be $20-$25 million?”
  • “I’ve heard it over and over again since I filed this lawsuit here, that I was crazy to file a lawsuit in this, the most conservative jurisdiction in the state and that the people in this community will never give the kinds of damages to one of its members that would be awarded in the big city. Which way do you lean?”
  • The lawyer tells the jury he read about a verdict and gives a very large number which he says he thought sounded excessive. He then asks what the jury considers an excessive verdict. The principle of priming with the first number results in higher than normal ranges for “excessive” verdict ranges the jury adopt.

My usual approach to this is to give a number in voir dire or  opening only in cases of demands of a substantial amount. Here’s one – this a summary using closed ended questions which you should not use

  1. Aware two kinds of damages  involved: Economic or bills and non-economic – money equal to harm done
  2. If evidence shows bills to date total $_________any reason why you would hesitate to reimburse if you find for Joe?
  3. If evidence shows the future bills total $________ etc.
  4. So if the bills, past and future total $_________would you hesitate etc.
  5. In addition, there is a claim for the harm done which has nothing to do with the bills. This is the amount that fairly and reasonably equal the harm done both up to now and for the rest of Joe’s life. At the end of this case I’m going to explain why a fair and reasonable amount for the harm done is $__________

From here the approach is discussion. One way is the closed ended: “How many of you would be unable to wait to hear all of the evidence before deciding if that is a fair and reasonable amount?  I don’t like that approach. Instead, after injecting the economic numbers I like to use a general approach. Here’s what I cover:

(1)   Always awkward talking about money. Some discussion about money.

(2)   My duty to appraise the value of the harm done and recommend fair and reasonable amount.

(3)   My appraisal after living with this case for ___ years is that a fair and reasonable sum for harm done, not the bills, is $________ and I’m not allowed to explain why until the end of the case, but I will do that if you let me. I know this probably sounds like a lot of money to many of you so I’d like to find out how you feel. Some people may feel they would have a whole lot of trouble with that amount no matter what the evidence. Others may feel they can wait until they have heard all the evidence and my reasons for this appraisal. Why way do you lean?

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Good office management is just as important in a plaintiff’s practice as it is in any other law practice. Retaining past work for use in the future is a good method of efficiency. Checklists, however, are the most fundamental ways to avoid mistakes and have office efficiency. One or more checklists for all of the generally repetitive work done in the plaintiff practice saves time and avoids error. Commercial pilots carefully follow checklists to ensure safety. Good plaintiff trial lawyers should employ checklists to ensure proper preparation and high quality work.

Working with retained experts is a common occurrence in a plaintiff practice. Creating a checklist regarding retained experts mitigates against overlooking important issues and allows improvement through review experience. In addition, an expert checklist makes it possible for paralegals to take over matters that are important, but can be done by non lawyers which saves lawyer time.

Here is simple expert checklist for working with your expert witnesses. It is only a brief outline of what could be a more detailed checklist.

  1. Investigate possible expert witnesses on the subject.
  2. Make initial contact with potential expert  see if the expert will assist
  3. Provide expert materials necessary for initial review and evaluation.
  4. Obtain experts initial evaluation, fees and obtain:

(1)  Copy of curriculum vitae.
(2)  Fee information regarding expert services
(3)  Obtain telephone report regarding initial evaluation. Decide whether to use expert

5.  Provide expert all relevant materials for complete review and evaluation.
6.  Create reminder system to advise expert regarding progress of the case every 30 days.
7.  When expert has been disclosed to defense, notify expert and prepare for discovery.

8.  When expert deposition is scheduled provide expert with update of relevant materials:

(1)  Discovery materials, plaintiff & defense, relevant to experts testimony
(2)  Digital or hard copy of all relevant depositions plaintiff and defendant
(3)  Determine if video should be taken for any reason including  perpetuation

9.  Arrange for expert deposition preparation meeting. See expert preparation checklist.
10.  Arrange for meeting just before deposition takes place.
11.  Have reminder to provide expert copy of their deposition with exhibits  when done
12.  Have reminder to provide expert with all relevant defense depositions & discovery.
13.  Maintain a detailed list of all materials provided expert.
14.  Create an expert file, digital or hard copy, with deposition, expert fees, relevant discovery, all reports or communications with expert, all materials shared. Create index to same.
15.  Arrange for deposition summary to be put with expert deposition.
16.  When trial date is set:

(1) Notify expert and ensure availability.
(2)  Create a reminder system to stay in contact with expert every 30 days
(3)  Create reminder system to discuss with expert forty five days before discovery cut off any additional work, modifications or revisions.
(4)  Create reminder system to meet with expert 45 days before trial for discussion.

17. Decide schedule for expert’s testimony at trial and preparation meeting.
18.  Have reminder:

(1)  Notify expert regarding outcome of case
(2)  Obtain final complete billing

19.  Prepare evaluation summary regarding quality of expert for future reference.

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Netflix has a new program  featuring David Letterman interviewing prominent people,  “My Next Guest Is”.  I watched the interview with President. Barack Obama and was struck by the contrast of communication skills between the interviewer, David Letterman, and the guest. Obama is an extraordinarily gifted communicator. He is poised, self-confident and has impeccable timing with the gift of articulate communication. Trial lawyers should study him as a model for improved communication skills.

Letterman presented a distracting interviewer from my perspective. He has elected to ignore the first rule of good impression by growing an out of control beard resulting in looking like someone who was recently rescued from street homelessness. In addition, he was inept in his interviewing by poor listening skills. Much of good listening skills involve non-verbal mannerisms and conduct. For example, we all know the basics which include good eye contact, open posture and demonstrated interest in the speaker. Yet, from my perspective, Letterman didn’t exercise these fundamentals. Too often he had his hands in front of his mouth, made nervous gestures with his fingers and was simply not connected on a continuous basis. He would exhibit obvious interest on some subjects and have an “eyes glazed” over appearance at other times. The contrast between the skill of President Obama as a communicator and the ineptness of David Letterman as an interviewer on this particular occasion was striking to me.

I thought of the great listeners Bill Clinton or Gerry Spence. They would have been leaning forward with open body posture directly towards Obama. they would have had direct eye contact and with their facial expressions communicated clearly how engaged they were with the speaker. They would have given the impression there was no one else in that auditorium then the two of them and they were one hundred percent interested in hearing everything he had to say. When we interview new clients or witnesses or anyone else that should be our demeanor. When talk to jurors our first goal is to make a good impression as someone who is interested  in everything they have to say  and is totally listening.  Good listening skills are as much an essential trial lawyer skill is artful cross examination or any other aspect of trial.

What are the attributes of a good listener? There has been a considerable amount of publications and information available regarding this subject. One excellent source of advice on the Internet is at WikiHow: . Here are their recommendations on how to be a good listener.

  1. Listen with an open mind Place yourself in the other persons shoes. If we allow our inward thinking about other things to dominate, it will block our ability for active listening. We know about hindsight bias, that is when we know the outcome we think we would have known how to avoid it and have done something different. As we listen avoid that kind of thinking to interfere with really listening to the other person. Try to be completely focused on the person who was talking and make sure you are maintaining eye contact as long as the other person is speaking.
  2. In response do not make comparisons between your experiences and the other persons experiences. It’s important to focus on the other person’s situation and avoid responding by comparing it to your own experiences. While that might appear to be helpful it can make the other person feel like you don’t really understand their experience and aren’t really listening. Avoid using “I” or “me” as these indicate you are not listening. Be cautious about acting like your experiences are exactly like the other person’s experiences if you are asked for advice.
  3. Don’t immediately offer solutions.  While listening don’t be thinking about quick solutions to the problem. If you are engaged in thinking about quick fixes you aren’t really listening. Possible solutions should be the product of calm discussion after a full communication to you.
  4. Demonstrate sympathy. In most cases people are just looking for someone to tell their problems to and be sympathetic more than they are looking for a solution. Demonstrate sympathy by your body language, such as nodding at appropriate times or short words of understanding and caring. Look sympathetic. Confirm that you are hearing what they are saying and paying attention by short appropriate comments.
  5. Remember what you’ve been told. One essential part of being a good listener is to actually hear and process what the person has said. Try to avoid having the person explain and repeat themselves by closely paying attention to what they’re telling you so they will know you really have been listening. Be prepared when they are finished to remember what’s been said in your responses.
  6. Know what to avoid doing. Knowing what you should avoid in order to be a good listener is also important. These include the fundamentals of good listening: (1) don’t interrupt – ever.(2) don’t try to change the subject (3) don’t cross-examine – be sympathetic and (4) don’t say or do things that make the person feel worse. Avoid minimizing, “it’s not the end of the world” or “you’ll feel better in the morning.”
  7. Wait until they have finished before you respond. The most important rule is:  never interrupt with advice or your own experiences. That includes resisting the urge to voice impulsive thoughts or solutions. It also includes a reasonable period of  silence when the person has finished speaking to ensure they are done. Waiting patiently for the other person to unfold their thoughts at their own pace is the primary key to becoming a good listener.
  8. Assure the other person of confidentiality and honor it. If a person is sharing with you information that is private and sensitive, you should reassure them that you are a trustworthy person who will keep the conversation confidential. Advise them that whatever is said stays between the two of you and that your word in that regard is your bond.
  9. Be positive and encouraging in your response. Be empathetic and encouraging. Repeat some of the things you were told to show you were really listening and offer positive feedback. Avoid being dogmatic in your responses with statements like, “I may be wrong, but” or “correct me if I’m wrong.” Summarize and restate in your own words to assure the the other person you really been listening.
  10. Your questions should be both meaningful and empowering.  Refrain from putting the other person on the defensive by your questions or statements you make. Use questions as a means by which the other person can find their own solution. Questions you asked should help the speaker move from an emotional response to a more logical and constructive one.
  11. Be reassuring. At the conclusion of the conversation let the other person know that you have been happy to listen and that you are open to further discussion if need be. A reassuring touch can be important. Avoid building up false hopes but offered to assist with solutions if you have the ability to do so.
  12. .Have great eye contact . The primary way the other person knows you are listening is by your eye contact with them. Focus directly on the other person’s eyes and do not stare off into space or glance away at something else while they are talking. Focus fully on what the other person is saying. You should not be thinking about what you are going to reply but totally on what the other person is saying. It’s all about the other person and not you.
  13. Be fully attentive to the other person. If you want to be a good listener then you have to demonstrate that fact physically as well as mentally. Ignore all distractions by turning off devices such as cell phones. Let your body language and your eye contact demonstrate you are fully listening and engaged. Look straight into their eyes. Turn your body towards the speaker. Do not cross your arms or put your hands in front of your face.
  14. Be an active listener. Active listening involves the entire body, face and eyes. It’s okay to throw in an encouraging word or two from time to time. Look interested. When you do speak, do so at the same energy level as the speaker. Mirror their tone rate of speech and talk.
  15. Be patient.  Be patient and willing to just listen.wait until they’re done and when you do speak avoid misunderstanding by brief summaries of what you understood them to say about different things they were discussing. Be patient with them as individuals. If they are sensitive person in an emotional state avoid “tough love” responses. Be sensitive to their state.
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