Plaintiff Trial Lawyer Tips

WOMEN AND THE PRACTICE OF LAW

Paul Luvera — Sun, 07 Mar 2010 00:32:00 GMT

I was reading about the struggle of women in a male dominated legal profession and came across a short collection of quotes I had collected. The struggle of women for equality in this country is not unlike a minority who has been subjected to discrimination by those in control. For example, if you have never read about women's suffrage in the United States leading to the right to vote in 1920 you would be impressed with the courage and determination of the leaders who were subjected to jail and abuse of every nature, but who never gave up. In our legal profession, it is only in very recent years we have had a recognition of the past discriminatory practices against women lawyers. Historically it has been a very male dominated profession. It is clear that it is still more difficult in many ways for a female lawyer in our profession then a male just because of the traditions of the law profession which carry over into today. I think this may be particularly true for trial lawyers. Without getting on a soap box, I thought I'd share some random quotes I found in my file just for the fun of it.

"Nothing can be more absurd than the practice that prevails in our country of men and women not following the same pursuits with all their strengths and with one mind, for thus, the state instead of being whole is reduced to half." Plato The Laws
Several years ago the television program Sixty Minutes dealt with a Florida Judge, Madeline Morfus, they called a "law and order judge" who was tough on criminals and was called "maximum Morfus." In one case, a rape victim was describing how she managed to shoot her attacker right in the genitals and the judge leaned down and said to her in a loud stage whisper: "Nice shot."
The Rose Bowl is the only one I’ve seen that I didn’t have to clean" - Erma Bombeck
Seize the moment! Remember all those women on the Titanic who passed up the desert tray - Erma Bombeck
Behind every great man stands a surprised mother in law
"If you haven't got anything nice to say about anybody, come sit next to me."
- Alice Roosevelt Longworth
"Remember, Ginger Rogers did everything Fred Astaire did, but she did it backwards and in high heels."
- Faith Whittlesey
"Feminism is the radical notion that women are people."
- Cheris Kramare and Paula Treichler
"I myself have never been able to find out precisely what feminism is; I only know that people call me a feminist whenever I express sentiments that differentiate me from a doormat."
- Rebecca West
"I base most of my fashion sense on what doesn't itch."
- Gilda Radner
Women have got to make the world safe for men since men have made it so darned unsafe for women.
Lady Nancy Astor
I am a marvelous housekeeper. Every time I leave a man I keep his house.
Zsa Zsa Gabor
I've been married to one Marxist and one Fascist, and neither one would take the garbage out.
Lee Grant
My husband and I are either going to buy a dog or have a child. We can't decide to ruin our carpet or ruin our lives. - Rita Rudner
If high heels were so wonderful, men would be wearing them. - Sue Grafton
I'm not going to vacuum 'til Sears makes one you can ride on. - Roseanne

Addendum: After posting this I read an article, Neither mice nor men, by Peggy Klaus (preoccupation@nytimes.com) who coaches executives and heads corporate training programs. In the "jobs" section of March 7th NY Times, she argues that women must deal with a well entrenched double standard when it comes to gender-acceptable behavior. She says that in the face of that reality women often fall victim to self defeating actions. "They may assume a strident command-and-control approach or else turn passive - by clamming up..." She says that, as one woman put it:

"Even in this day and age, a guy barks out an order and he is treated like someone who is in charge and a leader. But, when a woman communicates in the exact same way, she's immediately labeled assertive, dominating, aggressive and overbearing."

She goes on to argue that women "make communication adjustments" even though it can be rightfully argued "why should I have to change. It's not fair." Her response is that so long as the stereotypes remain all-powerful and ar perpetuated by men and women alike, it's necessary to navigate them. She gives examples and concludes with:

"Let me be clear. I'm not asking you to give up your soul - but rather to exercise new communication muscles so you can b e heard in a variety of situations by a wide range of people. The ultimate goal: for them to get the message without wanting to get back at you."

It seems to me, both male and female trial lawyes often forget there is a jury watching and listening to what they say and do during a trial. I've often thought that when a trial lawyer is before a jury the focus should always be on the jury's impression of what is happening before them, rather then the opposing counsel's bad conduct or a sexist judge's comments. A female trial lawyer must be aware of the stereotype, fair or unfair, that Klaus talks about,. She, just like her male counterpart, are always on stage in front of the jury who, after all, will make the only decision that counts for the client. Therefore, her reaction, just like his reaction, to what happens should only be judged by what impression it might make on the jury. That is the only factor that ought to determine our reaction. It is not the time for either male or female "to stand up for their rights" if that will create a negative impression on the jurors sitting the in the jury box. That's not to say issues should not be frankly discussed in the absence of the jury. But if we are defending ourselves as a knee jerk reaction we can lose sight on what impression that makes on the people who will sign the verdict. It is your client's interests and not your own that you owe an obligation to during a jury trial. Anyway, it was an interesting article by Klaus on gender communication.

IMPEACHMENT ON REVISING DEPOSITION TESTIMONY

Paul Luvera — Sat, 27 Feb 2010 18:38:00 GMT

I’d like to share an e-mail discussion among some plaintiff lawyers regarding the following question:

What do you all do when you get back the deposition corrections sheet from the defendant and find many "yes"s are changed to "no"s and visa versa, materially changing key evidentiary issues for which follow questions would have certainly been asked at the deposition had the defendant answered as appears on the correction sheet.

Some responded with the recommendation of taking a second deposition of the witness and asking why the changes had been made. I didn’t agree with taking a second deposition and my response was a recommendation to instead capitalize on the fact the witness had decided to make the change. I recommended editing a clip of the original video deposition testimony and using that with the correction page to demonstrate a change had been made. I suggested this be done without taking a second deposition. My reasoning was that it was better to put the focus on the fact there was this inconsistency rather then the reason for the change. I suggested that it was better to force the witness to deal with it in front of the jury rather then hear an explanation created after the deposition.

An outstanding lawyer who was part of the exchange said that it was an interesting question but he would want to know the explanation before he heard it for the first time at trial. My response to him was that every trial lawyer has a different approach at trial that's comfortable for them so I wasn't claiming that lawyers who disagree with my approach are wrong, but rather I was giving my personal preference.

So why do I feel that way? I would not take a second depostion for an explanation for two basic reasons. The first is that the explanation that’s offered for the correction isn’t the significant issue or at least should not be made the significant issue. What is signifiant is that the witness felt it necessary to make a revision. Since trials are a battle of impression and not logic, my approach to this would be to focus totally on the fact there was an inconsistency when there should never have been one in the first place.That's because the witness had full opportunity to answer correctly at deposition and after deposition change raises credibility issues. The second reason is the witness will be much more apprehensive about cross examination on the inconsistency if he or she has not had a dress rehearsal and has no clue as to what your attitude will be or what your cross examination will be on the point. Since the witness’s lawyer will have spent a lot of time with the witness helping the witness with the explanation, the witness’s concentration will be on the reason the first answer was wrong. When the cross instead is on the fact there should never have been any conflict on such a major point, the witness will be less prepared to deal with it.

One huge caveat: It has to be something important. You must not impeach, or at least impeach with drama, in my view, on trivial or only slightly important matters because the jury thinks you are being technical and unfair. Jury research supports this and I suggest you evaluate what inconsistencies you impeach a witness over.

So, how would I change the focus to questioning how it is there could be any conflict now over an answer at deposition on a key point in the trial? Well, I haven’t seen the lawyer’s deposition so I don’t know the contents and I don’t even know if the lawyer had video taped it. By the way, is has been my policy for many years to video tape all witnesses depositions except my clients. The benefit is I can print a photo of the witness, I can edit clips for impeachment and I can show clips to a focus jury for their evaluation of the witness. Here are some thoughts about a general approach I’d consider following.

First, I’d decide what tactics to use. Should I do the build up of the importance of a deposition before confronting the witness with the inconsistency or lay some foundation aout it and then confront the witness followed by more cross or should I do it all after the impeachment? You need to decide that on a case by case basis. Second, I’d decide what kind of a legal foundation I’d create for admission of the inconsistency. It depends upon the judge and defense counsel and the situation. Sometimes I just charge in with the challenge of inconsistency and ask the witness about it before doing the formal foundation. Most often, however, I want to demonstrate fairness and I follow the usual steps: (1) date of deposition (2) page and line number (3) provide copy to court and counsel (4) wait for everyone to be on the same page with me and then offer the inconsistency. In almost every case that will involve a video clip so instead of reading it I would play it. I would follow that with cross examination about it.

The questions I’d ask about it would be directed at the unlikely event the witness simply made a mistakein the testimony about a key point that became evident only after the witness read the final deposition report. The questions would vary substantially from situation to situation, but would likely involve something along these lines where it was the defendant who made the change. Please remember this is not a model, but an illustration of questioning one might consider :

Before the deposition you were fully aware of the importance of what you said under oath?
You knew that the purpose of the deposition was to give truthful, honest testimony?
I’ll bet your lawyer told you that the one important rule was to just tell the truth - right?
You spent time with your lawyer in discussing the deposition before it happened?
You went over areas of likely questioning and your answers with your lawyer?
You were told it was important that you listen very carefully to the question before answering?
To not answer too quickly, until you had a chance to think about the question and make sure you understood it?
To not answer any question when you didn’t know the answer or weren’t sure of the answer?
At the start of the deposition I told you that I didn’t want you to answer any question you didn’t understand?
I told you that if you needed break you could take it?
I told you if you wanted to correct an answer you had already given, to feel free to do so at any time during the deposition?
I reminded you that this was an important deposition and to be sure of your answers before giving them?
You gave the answer we just showed the jury at the time of the deposition?
You had plenty of time to hear the question and to think about it?
You didn’t say to us that you didn’t understand the question?
You didn’t say to us that weren’t sure or were confused or needed time to reflect on it?
You didn’t offer any qualifications or explanations - you just gave this answer?
You were fully aware of the fact this was a very important issue in the case?
You knew your answer had great significance to the issue in the case?
When you gave the answer you knew you were under oath?
You knew when you gave the answer how important it was to answer truthfully?
After giving that answer there are one hundred pages of questions and answers before we finished right?
At no time during the remaining one or one and a half hours you did not clarify, change or revise the answer you had given before?
At the end of the deposition I gave you a final opportunity to change any answer you had given and you didn’t want to change your testimony under oath about this question did you?
The deposition was on November 1, 2009?
You filled out this correction sheet on December 1^st a month later?
That was the first time you claimed you had made a mistake about this important answer you had given a month before?
You talked to your lawyer about this change in your testimony before you made the change?
You knew the importance of the answer you had given under oath when you decided to change it a month later?
etc etc

The above is just off the top of my head as I type this on thoughts about what you might ask. The goal is makingthe focus not the reason for the change but fact the witness made a change. By doing that you cast suspicion on the credibility of the witness which is more important then the reasonableness of the explanation for the change when it comes to jury impression.

I understand why many lawyers would want to know the reason for the change before confronting the witness at trial. Most lawyers have practiced under a system where they can obtain through discovery almost everything in advance of trial and are only comfortable when they have done so. But my personal view is that I prefer not to do give the witness the opportunity to offer an explanation before trial assuming you have a clear inconsistency on a major point. Perhaps my viewpoint on this is due to the fact that when I started the practice of law fifty years ago there was virtually no meaningful discovery. The first time you knew who the witness was or what they were going to say was when you heard it for the first time in the court room. As a result, you learned what to cross exam about, how long to cross exam and when to milk a situation for the impression it made on the jury. As a result, I am constantly viewing the trial from the view point of jury impression.

Please note that this is a discussion which does not have a right and wrong answer to the question, but rather is a matter of lawyer discretion. I hope it has some benefit to you.

ON TURNING SEVENTY FIVE AND HAVING BEEN A LAWYER FIFTY YEARS

Paul Luvera — Mon, 22 Feb 2010 15:34:00 GMT

This is a memorable year for me. On Sunday, February 21st I turned seventy five years of age and this is also my 50th year of practicing law. For my reflections on these facts http://www.paulluvera.com/weblog/

PREPARING WITNESSES FOR DEPOSITION OR TRIAL

Paul Luvera — Sat, 20 Feb 2010 18:02:00 GMT

I recently read an article by Katherine James who is a communications expert. In talking about witnesses and preparing them for examination she referred to a concept called "The Form." She says it is a concept of Dr. Martin Peterson, a trial consultant from Lincoln, Nebraska. She describes it as a process the witness should go through with regard to every question asked of the witness Instead of the usual advice lawyers give to witnesses, she recommends witnesses be given the advice to follow this process. The process consists of the witness asking themselves these questions before responding:

1.    Do I understand the question? - If, not say "I don't understand your question."
2.    Do I know the answer? - If not, say " I don't know the answer to your question."
3.    Do I remember what the answer is? If answer was once known, but can't be remembered "I don't remember:"
4.    How do I want o answer the question? The witness reflects on the question before starting to speak and then answers directly

Ms James also had advice for the witness on other subjects.

How to sit? The witness should sit up with their hands on the table clasped lightly
Where to look? The witness's should not look in the eyes of the lawyer but the hollow of the throat if a woman lawyer, the lips fo the lawyer if there is a hearing problem or the knot of the tie during the question. Then turn to the reporter or if a televised deposition, the lens of the camera and answer the question

Demeanor of the witness, of course, should be calm and direct. The dress should be appropriate to the occasion. I thought her suggestion on an analytical approach to answering questions was worth considering.

GERRY SPENCE & PAUL LUVERA DVD AVAILABLE FROM WSAJ

Paul Luvera — Tue, 16 Feb 2010 15:50:00 GMT

Gerry and I have donated the proceeds of the sale of this DVD to the the Washington State Association for Justice (formerly Washington State Trial Lawyer's Association and the Spence Trial College.

SORRY IRVING YOUNGER, BUT YOU WERE WRONG

Paul Luvera — Sat, 13 Feb 2010 19:45:00 GMT

A trial lawyer friend recently called my attention to an article by attorney Michael R. Doyen in the ABA litigation section entitled On Breaking Commandments. http://www.abanet.org/litigation/journal/2008_spring.html Doyen, who is a Los Angeles trial lawyer, has written about Professor Irving Younger's famous talk he gave many times about his ten commandments of cross examination. Younger was an well known national speaker on trial techniques and this particular talk was always well received when he gave it. I had the pleasure of hearing him give this talk, but I've also written and lectured about my disagreement with many of his "commandments." So, I read Doyen's article with interest and found myself in agreement of much of what he wrote. Here are some reflections about the subject and Doyen's excellent article.

To start with, it's my belief that there are very few if any rules which you must always strictly follow in every cross examination and certainly there are no ten commandments about the subject. Every trial has it's own life and takes many turns which are not fully anticipated. A trial lawyer must be prepared and must be skillful enough to "go with the flow" and deal with what comes up at trial. General ideas about how to do it do apply all cross examination, but specific rules that one must always follow don't exist, at least they don't if you are a great trial lawyer.

As an example let's look at the most fundamental "commandment" which Younger and countless other lawyers told lawyers they must follow without exception: "Never ask a question when you don't already know the answer." The fact is if you are a great trial lawyer you will find yourself asking a lot of questions during cross examination you don't know for sure exactly how the witness will answer. Sometimes you find yourself in a situation where the witness has raised an issue that if left unexplored will be an "elephant in the room" for you in front of the jury. Even if you don't know exactly where opening the door will lead and even if you have an apprehension the witness has deliberately created the issue, you still need to deal with it. It's a dilemma you can't ignore. Sure there are tactics you can use to avoid dealing with it and perhaps avoid asking about it because you are apprehensive about what the answer might be and you don't know what the witness might say. But, in the great majority of situations the problem is that the jury wants to know about this issue the witness has raised. Or, suppose the witness challenges you with something like "Would you like to know why counselor?" You can come up with some valid responses to put it off, but the reality is the jury expects you to not evade the challenge, but deal head on with it. Suppose you get a totally unexpected answer from the witness that raises an important issue. You can't just pretend it didn't happen and hope the jury didn't hear it. Like a bad smell in the room, it doesn't go away. You need to face up to it and show the jury you are not afraid of these events because you client is right and unafraid of whatever they throw at him or her. so you ask the forbidden question "Why?" or you accept the challenge and say "OK, let's deal with that right now" and get into it, dealing with what follows.

In addition, cross examination, for the most part, should be conducted in such a way you are ready to impeach an off the wall claim or make the answer to the question irrelevant. When you ask "You agree that a manufacturer must never needlessly put the buying consumer at risk of serious harm or injury, don't you?" no matter where the witness goes with that answer, the jury knows what the answer should be. There are a whole lot of "why" questions that should be asked even though you don't know specifically what the witness will answer. Often your "why" question is framed as a statement supporting your client's story and you aren't that concerned with the answer because the question is really an argument for your case. Hypothetical questions often are an example of a question where you don't know where the witness might go with it, but you don't care because the question is an argument for your case . If you are telling your client's story in cross examination, and you should be, then you need to break Younger's commandment frequently but with carefully worded and well thought out questions.

Let's look at another of Younger's "commandments" which was to "save the explanation for final argument" instead of giving it away during cross examination. That's a rule which I totally disagree with. I believe you use cross examination as your final argument. We make our major points for our case in cross examination. We use cross examination to tell our client's story. You have an objective and you have a plan to get there. You "follow the yellow brick road" of your client's story from jury selection to argument. That means your questions support your story. When you have "scored a significant point" for your case that fact should be made in a way the jury understands and not saved for argument. When you ring the bell make sure the jury knows it, then and now. After scoring the point a statement "so, therefore,....." unscores the point you have made. It is rare, if ever, you have made hidden point on cross examination neither the witness nor your opponent realizes. The idea that you can suddenly and with great drama reveal it for the first time in final argument is only in the movies. People form impressions and fix opinions as the trial progresses. Once having formed an impression or opinion they are not about to change it in final argument. Persuade as you try the case. Cross examination is when you confront the witness head on and you don't save anything for argument. Cross examination is when the jury is listening carefully so take advantage of that fact.

I've been a lawyer for fifty years and when I started there was very little discovery before trial. You found out who the witnesses were when they were called and you learned what they had to say when you heard it for the first time from the witness stand. You learned to stand up and launch into your cross examination after having concentrated fully on what they said and then using your wits, deal with it. Trial lawyers today should be prepared in the same way even with all of the full disclosure we have because you know there will always be surprises and events or testimony you didn't anticipate. So, we need to have a basic understanding of cross examination tactics and function, but be flexible. With present discovery rules we should be able to craft our cross examination in such a way there is no way out even when you ask the question. So, while Professor Younger gave a very entertaining talk about his commandments, I must respectfully dissent.

LESSONS FOR TRIAL LAWYERS FROM THE BIBLE

Paul Luvera — Sun, 07 Feb 2010 20:15:00 GMT

I've talked about the Bible and interpretations that apply to trial lawyers before, but I am impressed by the number of entries in Christian Scripture which can be applied to trial lawyers. Without being disrespectful, here are a very few I've thought about as I read them:

"...be transformed by the renewal of your mind." Rom 12:2
"...to be made new in the attitude of your minds..." Eph 4:23 Trial lawyers should be continually searching for better ways of doing their professional job. We need to be renewed in our mind with fresh ways of accomplishing justice for our clients. Becoming transformed by the renewal of our mind through new ways of thinking or doing things is a worthwhile goal. As to attitude, life is what we perceive it to be. Our attitude determines our personal reality. We are what we think. Being made new in our attitudes is essential for us to grow and improve our skills. If we keep our same mind set and have the same attitudes about life and what happens to us, we are locked in time.

"If the trumpet does not sound a clear call, who will get ready for battle" 1 Cor 14:8 You must have a clear goal in mind and stick with it. You must make clear to the jury exactly what you expect them to do if you want success. A clear call for you and for the jury is essential for a good outcome. Sound a clear trumpet call if you want the jury to follow you.

"His letters are weighty and forceful, but in person he is unimpressive and his speaking amounts to nothing." 2 Cor 10:
"Paul ...kept on talking to midnight. Seated In a window was a young man Eutychus who was sinking into a deep sleep as Paul talked on and on. When he was sound asleep he fell to the ground from the third story..."Acts 20: 7 I am always encouraged by these two passages. In the first we see that the great apostle to the gentiles. Paul, was regarded as a poor speaker. And in the second we see that he also talked too long to the point of putting a young man to sleep. From these two passages it would appear that Paul became historically famous while lacking speaking skills. If anyone as powerful in word and deed as Paul and who accomplished so much had these shortcomings, then there is hope for all of us.

"Finally, brothers,... Aim for perfection" 2 Cor 13:11 Perfection should be our goal. As elusive and difficult as it is to achieve we must strive for perfect as a goal. Setting our goals for personal growth and improvement high enough is the only way we can hope to make improvements. Set your goals high. Reach for the moon, for it is only then, that a person may land in the stars.

"Each one should test his own actions. Then he can take pride in himself, without comparing himself to somebody else, for each one should carry his own load " Gal 6:4 For me this is one of the most important lessons a trial lawyer can learn. Comparing ourselves to others is a waste of time. We are individually unique and there are no two people in the whole world exactly alike. Each of us has a mission and purpose in life that is ours alone. . What we should be doing is measuring growth in ourselves instead of trying to be like somone else. We can't all be exactly like some other great trial lawyer we know, but we can do the best we are capable of doing and measure our improvement by our our growth. How we improve is the issue and not wasting time in envy or jealously or wishful thinking about others. We certainly should watch, listen and learn from the great lawyers, but only for the purpose of improving ourselves. Use yourself to test how you are growing and improving.

"Forgetting what is behind and straining toward what is ahead, I press on..." Phlip 3:13 How important this is. How many of us carry around a large sack of stones representing events from our past that we cannot set down, but continually carry around with us? So we made a mistake, even a huge mistake. So what? We must do what we can to acknowledge our mistake, and, if required, apologize as well as make up in any way we can for the harm we caused. After that, we need to move on. Never forgetting past failures and sorrows is like Marley, from Dicken's Christmas Carol dragging his chain along with him through eternity. If it's over, then it's over. Pick yourself up, dust yourself off and move on.

One body many parts: "The body is a unit, though it is made up of many parts; and though all parts are many, they form one body...if one part suffers, every part suffers with it" 1 Cor 12:14 I've used this passage over and over in damage cases explaining to the jury that you can't just hurt one part of the body without it hurting one's whole body and life. A sore neck or back, doesn't limit itself to the neck or back. It sours t he whole day and everything you do. Your whole body is involved with that one area where the injury happened. The great plaintiff's advocate, New York Lawyer Moe Levine, developed an entire argument around that concept based upon this passage. You should consider this in your damage cases.

Whoever has will be given more and he will have an abundance. Whoever does not have, even what he has will be taken from him Matt: 13:11 I call this passage "the law of abundance" because it is a principle of life that if you do not use & improve the talents you have you will lose them. Those of you who have been given the gift of intelligence and the skill of persuasion must continue to use as well as improve them or you will lose them. You don't stay at neutral when you fail to use and improve talents. You go backwards. There is no resting on the oars and doing the same thing over and over because it's easier then taking risks. You either continue to grow or you fall back to the point you lose the gifts you were given.

"Be strong and courageous. Do not be afraid or terrified.." Det 31:6 I have this written in my trial notebook where I will see it. This wonderful quote from Deuteronomy is inspiring to me. Moving ahead in spite of fear is called courage. Courage is not the the absence of fear. It is what we do when we are fearful. Suck it up. Stand up straight and do your job irrespective of what your fears and worries are. Be willing to take risks outside your comfort zone in the representation of your client. That's your job.

CROSS EXAMINATION ABOUT SAFETY IN A WORK PLACE INJURY CASE

Paul Luvera — Tue, 26 Jan 2010 23:01:00 GMT

Wigmore on Evidence was once the "Bible" on evidence and required reading in all major law schools. Wigmore once wrote that cross examination was : "...the greatest legal engine ever invented for the discovery of the truth." The right to face one's accuser and to cross examine him or her has been a fundamental right in civilized societies for centuries.

Here is an outline from an actual case I tried several years ago against the Texaco Refinery when a temporary maintenance worker was injured from a scaffold failure. This is the basic outline I created and then modified for particular witnesses, filling in information and ideas or revising. I like to start with a general outline on a particular subject and then work from that to create individual chapters by topics. Each of these topics ended up as separate chapters and then were modified depending upon the witness. The theme at that time was Harry Philo's concept that "any risk of serious bodily injury or death is unacceptable if reasonable means could have been used to minimize or eliminate the danger." This theme is not unlike that of David Ball and Don Keenan in Reptile, regarding the rule against needlessly endangering another. Harry developed this theme for his product liability cases, but it works for all kinds of litigation including medical malpractice. One is obligated to eliminate any risk of serious harm. If it can't be eliminated to minimize it. One is obligated to warn and or guard against any risk that cannot be reasonably eliminated. With this basic theme you can find a lot of ways to cross examine about safety obligations. Here's the outline:

WARNING-SAFETY CROSS EXAMINATION GENERAL OUTLINE

A. COLLATERAL ATTACK

1. FEES:

2. See depo notes: Re Bias, defense testimony etc

B. ELIMINATING OR MINIMIZING RISK OF SERIOUS INJURY OR DEATH

1. TRUE THAT TEXACO SHOULD HOLD PARAMOUNT THE SAFETY AND HEALTH OF IT’S WORKERS?

2. AGREE WITH THE PROPOSITION THAT:

ANY RISK OF SERIOUS BODILY INJURY OR DEATH IS ALWAYS UNACCEPTABLE IF REASONABLE MEANS COULD HAVE BEEN USED TO MINIMIZE OR ELIMINATE THE DANGER?

3. AGREE THAT "IT'S BETTER TO BE SAFE THEN SORRY?"

4. AGREE TEXACO SHOULD INSPECT FOR DANGEROUS CONDITIONS?

5. AGREE IF A DANGER IS DISCOVERED ONE SHOULD ELIMINATE THE HAZARD IF REASONABLY POSSIBLE?

6. AGREE IF YOU CAN’T ELIMINATE THE DANGER THEN INSTALL PROTECTIVE DEVICES AROUND IT IF POSSIBLE?

7. AGREE IF ONE CAN'T ELIMINATE THE DANGER OR PROTECT AGAINST IT, THEN ONE MUST GIVE WARNINGS OF THE DANGER SO PEOPLE WILL KNOW?

(1) AGREE THAT "APPEARANCES ARE OFTEN DECEIVING" AND WORKERS MIGHT NOT RECOGNIZE A DANGER UNLESS WARNED ABOUT IT?

(2) AN INADEQUATE WARNING IS NO WARNING AT ALL?

8. TRUE THAT THE GREATER THE RISK OF INJURY THE GREATER THE DUTY TO ACT?

B. SAFETY HAZARDS TO WORKER

1. IT WOULD HAVE COST FAR LESS TO ELIMINATE HAZARDS OR INSTALL SAFETY DEVICES THEN TO PAY THE COST FOR SERIOUS INJURY

2. LIFE IS TOO PRECIOUS TO EVER RISK IT WHEN THE HAZARD CAN BE AVOIDED?

3. COST EFFECTIVE SAFETY MEASURES- COST OF INJURY vs COST OF PROTECTION

(1) IN America, WE CARE ABOUT OTHERS

(2) IN America, WE DON'T WANT PEOPLE TO GET HURT

C. ANALYZING WHAT IS REASONABLE IN ACCIDENT PREVENTION　

1. IN DECIDING WHAT'S REASONABLE IN ACCIDENT PREVENTION, WOULD EVALUATING THE RISK OF INJURY BE IMPORTANT?

(1) THE RISK OR CHANCE OF IT HAPPENING SHOULD BE CONSIDERED?

2. THE SERIOUSNESS OF THE HAZARD OR DANGER IS ALSO SOMETHING TO BE CONSIDERED?

(1) A HAZARD THAT COULD RESULT IN DEATH IS MORE SERIOUS THEN ONE THAT MIGHT MAKE A SMALL BRUISE?

3. THE COMPARISON OF BOTH OF THESE RISK & SERIOUSNESS OF HARM SHOULD BE MADE IN DECIDING WHAT IS REASONABLE BY WAY OF ACCIDENT PREVENTION?

4. DO YOU AGREE THAT WHEN IT COMES TO PREVENTING SERIOUS INJURY OR DEATH FROM PREVENTABLE ACCIDENTS, TEXACO SHOULD PRACTICE THE POLICY:

"AN OUNCE OF PREVENTION IS WORTH A POUND OF CURE"

D. AVAILABLE MEANS TO PREVENT ACCIDENT AND DEATH

1. PUT TAG ON SCAFFOLD - RED TAG DANGER - DON'T TOUCH

2. TAPE AREA - YELLOW TAPE TO STAY AWAY

3. Good intentions are just not enough: THE ROAD TO HELL IS PAVED WITH GOOD INTENTIONS"

E. EVALUATING THE COST AND EFFORT INVOLVED TO ELIMINATE OR MINIMIZE THE HAZARD

1. AGREE THAT IN EVALUATING WHAT WAS REASONABLE TO HAVE ELIMINATED, PREVENTED OR MINIMIZED THE CHANCE OF THIS DEATH WE SHOULD CONSIDER:

(1) IS THE PROPOSED ACCIDENT PREVENTION ACTION POSSIBLE TO DO?

(a) IN THIS CASE IT WAS IT POSSIBLE TO DO RED TAG OR YELLOW TAPE THE AREA OR EVEN POST WARNING SIGNS?

(2) IS IT A KNOWN AND ACCEPTED ACCIDENT PREVENTION METHOD? - USED BY OTHERS?

(a) RED TAGS AND YELLOW TAPE ARE COMMONLY USEDAT REFINERIES Including this ONE?

(3) WHAT WOULD IT COST?

(a) HOW MUCH WOULD IT COST TO EITHER RED TAP OR YELLOW TAPE?

(b) NORMALLY A LOT LESS EXPENSIVE TO PREVENT ACCIDENTS THEN THE SUFFER INJURY OR DEATH?

(4) HOW MUCH TIME DOES IT TAKE?

            (a) SO, HOW LONG WOULD IT HAVE TAKEN TO RED TAG OR YELLOW TAPE AREA?

(5) HOW DIFFICULT IS IT TO DO? - WHAT EFFORT IS REQUIRED?

            (a)    HOW HARD WOULD IT HAVE BEEN TO RED TAG OR YELLOW TAPE AREA?

(6) IS THERE A PERSONAL DANGER IN CARRYING OUT THE SAFETY MEASURE?

            (a)    WOULD THERE BE ANY DANGER TO SOMEONE RED TAGGING OR YELLOW TAPING THE Area?

F. TOOK SAFETY FOR GRANTED

1. ISN'T IT TRUE THAT WORKERS HAVE THE RIGHT TO ASSUME THEY KNOW THEIR JOB AND WILL IT RIGHT?

(1) THAT MEANS THEY HAVE RESPONSIBILITY AND ACCOUNTABILITY FOR HOW THEY DO THEIR JOB?

(a) RESPONSIBILITY: YOU WOULD AGREE, IF SOMEONE HAS CONTROL OVER A WORK SITE THEN THEY ARE RESPONSIBLE FOR THE SAFETY OF THOSE USING IT?

(b) ACCOUNTABILITY: YOU WOULD ALSO AGREE, IF THEY DON'T ACT IN A REASONABLY RESPONSIBLE MANNER WITH REGARD TO PUBLIC SAFETY THEN THEY SHOULD BE ACCOUNTABLE FOR THE CONSEQUENCES LIKE EVERYONE ELSE IN THIS COUNTRY?

4. Took for granted

(1) THE FACT IS TEXACO TOOK THE RESPONSIBILITY FOR ACCIDENT PREVENTION FOR GRANTED HERE DIDN'T THEY?

(b) NEITHER RED TAGGED, YELLOW TAPED OR POSTED WARNING SIGNS OR DID ANYTHING TO ADVISE THE WORKERS OF THE DANGER?

F. WORKERS HAVE RIGHT TO ASSUME OWNER WILL KEEP WORK SITE SAFE　

1. HAVE RIGHT TO ASSUME WILL ADOPT POLICIES AND PROCEDURES TO ELIMINATE POTENTIAL HAZARDS OF SERIOUS INJURY?

3. WORKERS HAVE RIGHT TO EXPECT THAT IF A POTENTIAL HAZARD OF SERIOUS HARM EXISTS ON TEXACO’S PROPERTY TEXACO WILL TAKE SAFETY ACTION

(1) WHEN YOU FLY ON A COMMERCIAL AIRPLANE YOU DO NOT HAVE TO CHECK THE TIRES, OR ASK ABOUT THE TRAINING OF THE PILOT. Have right to assume airline company takes safety seriously　

G. TEXACO WAS IN THE BEST POSITION TO KNOW 　

    1. WHEN COMPARING THE DUTY OF EXERCISING REASONABLE CARE BETWEEN THE WORKER AND TEXACO, IT'S IMPORTANT TO LOOK AT WHO WAS IN THE BEST POSITION TO PREVENT UNNECESSARY INJURY TO WORKERS?

    2.    CONTROL OF THE WORK SITE IS IMPORTANT IN THAT EVALUATION?

            (1)     RESPONSIBILITY: IF YOU HAVE CONTROL OVER THE WORK SITE THEN YOU ARE RESPONSIBLE FOR THE SAFETY OF WORKERS ON THAT SITE?

    3.    TEXACO HAD ENGINEERS, SAFETY INSPECTORS AND PEOPLE TRAINED TO PUT SAFETY FIRST?

    4.    WORKMAN WERE TEMPORARY WORKERS WHO WERE THERE ONLY FOR THIS MAINTENANCE PROJECT?

    5. AGREE: IF YOU FAIL TO FULFILL YOUR DUTY OF SAFETY THEN YOU ARE ACCOUNTABLE?

H.    CONCLUSION

          1.    AGREE IT IS NOT ACCEPTABLE FOR TEXACO TO FAIL IN IT’S DUTY TO PROVIDE A SAFE WORK SITE AND BLAME SOMEONE ELSE?

        2.    ACCOUNTABILITY AGREE THAT IF ANY COMPANY NEGLIGENTLY CAUSES AN INJURY TO A WORKER, THEY SHOULD BE HELD ACCOUNTABLE TO PAY FOR THE HARM DONE?

TRIAL LESSONS FROM CHURCH

Paul Luvera — Sun, 24 Jan 2010 21:20:00 GMT

We are in Scottsdale and today we went to Our Lady of Joy Catholic Church near Cave Creek. A young priest in his late twenties gave the sermon. He is a handsome muscular fellow who is, in fact, a former stand out high school and college football player. In giving his talk he told a story about two people, one a historical church person of significance who lived in the 1800's and the other about a middle class family in the 1970's. He tied the two stories to the fact the parish was celebrating stewardship Sunday looking for volunteers and assistance for parish projects.

I've written, lectured and demonstrated the importance of story telling for trial lawyers, but somehow today was a validation of all that I believe and teach about it. The priest was essentially reading from behind a pulpit. While he did it with great skill we know that trial lawyers should always avoid any physical barrier between themselves and their audience. We also know that a spontaneous delivery done less than perfectly is usually better then a written delivery. Yet, so long as he was telling a story I was captivated because the story was well told and interesting. I noticed that when he moved from the story to a general discussion my mind began to drift even though I wanted to concentrate. I was struck by how powerful story telling really is in keeping interest almost involuntarily and often even if the story isn't perfectly told.

Sometimes we have trouble figuring out how to launch our story. A friend is in trial right now and shared with me his opening outline. I liked the phrase he used to introduce the story. He said something like "Let me take you back to September 2007. We are in Seattle and it is a bright sunny day." He made the transition easy and set the story in the present tense. By the way, his opening was picture perfect David Ball: (1) The rule (2) why the rule is important and the consequence of breaking it (3) what happened (4) why they were suing (5) the defenses (6) why they were invalid and (7) damages.

I have a good friend in New Mexico who has had multi million dollar verdicts. He almost always tells his story by recreating the scene with information about details including sounds and smells. He leads the listener through the story as if it were happening then. He describes the setting in a way that makes you picture it in your mind. You do not get bored with that kind of presentation.

I'm not going to bore you with the basics of how to structure a story because a lot of information is available on the concept. However, I do want to remind you about the power of story telling. Think about it even when you are arguing a motion and can put the facts in a brief story format. Let's all remember to use story telling as our preferred method of communication.

While I was thumbing through my Sunday missal I came across Paul's Epistle 1 Corinthians 12:14 where he says in part:

"Now the body is not made up of one part but many....As it is, there are many parts, but one body... there should be no division in the body, but that its parts should have equal concern for each other. If one part suffers, every part suffers with it....

It was the great plaintiff's New York advocate Moe Levine who took this passage and create an entire concept he would argue to the jury. Namely that people are a whole and not parts. You can't have a headache and not have it rob your day of sunshine. You can't have pain in the neck and not have impact your entire out look on life. This "whole man" argument became an essential part of every case I argued and still use today.

Those are my lessons from church. So, you should go to your place of spiritual worship to be inspired as a trial lawyer!

NEW CLIENT CONTACT PROCEDURE

Paul Luvera — Sat, 16 Jan 2010 17:16:00 GMT

Do you have written instructions on how new client contact with your office is to be handled? If you don't, you are leaving it to the discretion of whoever gets the initial contact. In addition, if you have staff turn over you need to repeat the verbal instructions, hoping they will remember them. Every office should have a basic system, in writing, for handling new client contacts, but this is especially true of small personal injury firms. There are a lot of ways of doing this, but here is our system.

Please note that some lawyers insist on the receptionist finding out the name of the caller and some even want them to ask why the call is being made. I always felt this was offensive and if lawyers couldn't handle a sales person calling or other nuisance calls they weren't lawyers. I felt you lost good will and sounded like a big shot when you had your receptionist ask this, so my instructions are to transfer all calls without asking for the name of the person calling.

Here is an outline of our procedure

New Client Telephone Calls

When we get new client telephone calls where no specific lawyer is asked for, the person taking the call will obtain the basic information and store it in our case management software. New client calls where the caller asks for a particular lawyer are to be transferred to the lawyer.

Note that Paul Luvera wants ca;;s where the person asks for him, transferred without asking the caller for their name or any other information. Other lawyers want the name of the caller before transferring. Ask the lawyers for preferences.

The basic information to obtain from new client general office calls is:

    (1) Name of caller
    (2) Phone number of caller
    (3) Email address of caller

If the caller is not the injured person and instead is someone calling for the injured person we need the same information about the person calling and the name of the injured person.

To get this information you should say something like this: "While there is no fee or cost for talking to an attorney, we do need some information for our office records. Could you please give me your name, ..etc..."

If the person calling objects to giving the information, do not argue. Just transfer the call and tell the lawyer about the objection. Let the lawyer handle it.

Please note: The receptionist or staff who takes the call must not give any advice, information or answer legal questions nor disclose names of clients. Even when you know the answer to questions, you should say you "are not authorized to discuss that matter and they should ask the lawyer."

An automatic forty hour reminder, to determine if the matter is concluded, will be created for every new call that is received and for which information is obtained.

New Client E-mails or letters

When we receive E-mails to the office either from our website or general office email address, they are to be noted in our case management system and forwarded to Paul Luvera.

Letters to the office from new clients that are not directed to a particular lawyer are also to be entered in our case management system and delivered to Paul Luvera.

An automatic forty eight hour reminder, to determine if the matter is concluded, will be created for every email or letter of this nature.

A BASIC MANUAL SYSTEM TO ORGANIZE MATERIALS FOR TRIAL

Paul Luvera — Fri, 08 Jan 2010 16:10:00 GMT

In a few days I have an administrative hearing which will only take a day or two. Witnesses will be called and exhibits introduced. The matter involves materials and events which date back two years. There are letters, e-mails and phone calls as well as legal documents covering the background. The volume of materials is not enormous, but enough to make it somewhat complicated to trace the events. There are disputes about what happened and the usual controversy you expect in any litigation matter. Keep in mind, this doesn’t involve a complicated malpractice case or products case and I am describing a process I followed to prepare for this hearing. It's not a case where I would use software management tools. What I am describing is a manual system for simple matters that I used.

The first thing I did was to collect all the materials and physically stack them in piles by year. I then organized the piles chronologically. I put the material in one large notebook arranged in chronological order using numerical dividers. There is an index with tab number and identification of the document. By looking at the index I can trace the first event through the last one and have the tab number for any document that corresponds to that date. A set of the hearing rules are also in this notebook under a divider. This notebook becomes my "resource notebook."

I use two prong notebooks from Bindertek www.bindertek.com/ which is a company whose products I use and like. I use two prong instead of three prong notebooks primarily because of the ease of opening two prong. More important, years ago I had jurors complain about the distraction of hearing me snap open and close three ring binders so I converted to these two prong which open and close easily and silently. The company sells different capacity notebooks and ones in different color. I color code my notebooks using red for trial notebooks, green for testimony notebooks and other colors for different functions.

Once I have the materials organized chronologically and in the notebook, I read the materials carefully. I will yellow high light significant entries and note anything of importance.

After that, I prepare a time line of the documents. Starting with the first event through the last. This time line creates a narrative of what happened over the last two years and gives me a big picture description of what happened. It allows me to see what is important and what is not so important.

I then decide which of the documents are significant enough to use as exhibits. I make an exhibit list of those documents noting the tab number. I then copy them. I make sure I make enough copies for everyone who should have them. The witness, the clerk, the "judge" and my opposing counsel. I paper clip these sets and attach a note of the tab number where it is located in my set. These are arranged numerically. I can mark one set as an exhibit and hand the others out as needed while having an identification as to it’s location in my notebook. These are in an expansion folder marked "exhibits"

After that, I review the significant materials to create an outline for examination of witnesses. The outline for my witnesses has topic headings and short entries under them for subject points I want to make. The cross examination outline is created by one topic per page. For example, if qualifications are an issue that is outlined on a separate sheet from the other subjects. This allows me to decide the order of topics in cross examination by shifting the separate page of topics in the order I want them and to easily change that order as I decide. If I intend to use documents, the outline will refer to the tab number where the document is located in my notebook. I can easily find the document in my exhibit expansion folder because it is arranged numerically by tab number.

Next, I use a second notebook as a "trial notebook." It has dividers plus a set of numerical tabs. One divider is "Examination" where I have my notes as to cross examination. Another is "Chronology" which is my outline of the events with the tab number where I’ll find any documents that correspond. I have dividers for witnesses and the outlines behind those dividers. The other dividers are labeled for materials I intend to use during the hearing so I can locate them easily.

I prefer a spiral notepad for making notes during the hearing rather then making them on a yellow pad. These are the spiral notebooks you find in store that students use. I like these better then yellow pads for ease of tabbing pages and organization. I make sure I have a supply of pens, yellow high lighters, sticky note pads and trial supplies like a small two hole punch.

This basic, manual procedure for preparation results in my having read the documents, understanding the sequence of events and organized the materials for ease of use at the hearing. I want to do this myself because it helps me grasp the information and allows me to know how it is organized so I can find it easily.

This isn’t rocket science and certainly software management is probably superior to my procedure, but for simple cases it works for me.

TECHNIQUES FOR NEGOTIATION BASED UPON ROGER DAWSON'S TEACHINGS

Paul Luvera — Fri, 01 Jan 2010 14:59:00 GMT

I have long admired Roger Dawson’s teachings in his writings and lectures on sales, motivation and negotiation. After all, trial lawyers are in a profession of sales and persuasion. Why not learn from the masters in the business world? His book Secrets of Power Negotiating, available at Amazon and other outlets, is an excellent encyclopedia for techniques of negotiation. Here is a short summary of some of his principles, but for a complete understanding I recommend purchase of his book and otherwritings.

1.　ASK FOR MORE THEN YOU EXPECT TO GET

        (1)    You never know, you might just get it
        (2)    The Less you know about who you are up against, the more to ask for
        (3)    Start with MPP "maximum plausible position" in your initial position

2.   GET THE OTHER SIDE TO MAKE THE FIRST OFFER

3.    NEVER SAY YES TO THE FIRST OFFER

        (1)    Always flinch at the first offer with shock and surprise
        (2)    Don’t threaten & avoid confrontation. Instead use the "feel, felt, found" approach: [I understand exactly how you feel about that. I felt exactly the same way. but you know what I’ve found when I took a closer look? I found....]

4.    PLAY RELUCTANT ROLE

        (1) Be reluctant to agree. Use: What is the very best offer you feel you can make?

5.    USE: "YOU’LL HAVE TO DO BETTER THEN THAT"

        (1) After the offer, respond with this phrase and stop. See what happens

6.    USE THE NEED TO CONSULT A HIGHER AUTHORITY

        (1) Advise you need to consult with someone else before making a decision - a "higher authority."

7.    WATCH FOR CONVERSATIONAL CLUES

        (1) Note "throw away’s" indicating something significant, like "By the way, as you are aware.." or "I’ll try.." or trial balloons like: "Off the top of my head.."

8.    DON’T OFFER TO SPLIT THE DIFFERENCE

        1) Like not making the first offer, let the other side make this proposal. It gives you an opportunity to respond by suggesting that the difference be split again to your favor.

9.    TEMPORARILY SET ASIDE ISSUES OF DISAGREEMENT

        (1) When reaching an impasse on some issue, suggest it be set aside for the moment and talk about other issues you can agree to. (2) Avoid backing into a corner where negotiations depend on just one issue

10. DON’T MAKE EQUAL CONCESSIONS

        (1)    Don’t make your counter proposals an equal concession for every offer or a pattern develops which locks in your position
        (2)    Don’t make your final concession a big one - make it small

11. MAKE TIME YOUR ALLY

(1) Remember the 80/20 principle: 80% of the progress and concessions are made in the last 20% of the time available
(2) The person under the greatest time pressure generally loses in negotiations.

12. AVOID LAST MINUTE NIBBLES

(1) The most vulnerable point is when the agreement has been reached. That’s whenlast minute concessions are asked for because you are most vulnerable to making new concessions since agreement has been reached.

13. HAVE THE COURAGE TO WALK AWAY

(1) Don’t negotiate past the point when you are willing to walk away from the deal.

14. BE THE ONE WHO WRITES THE SETTLEMENT AGREEMENT

(1) The person writing the settlement agreement has another opportunity to seek concessions by inserting them into the agreement.

PRODUCT LIABILITY IDEAS FOR TRIAL

Paul Luvera — Sat, 26 Dec 2009 18:36:00 GMT

There are general concepts that apply to most if not all product cases. Here are some suggestions that can be revised to fit a particular case. The first section is based on the ideas of well known products liability lawyer Harry Philo. These ideas of Mr. Philo are so universal they can be applied to any case including medical malpractice. When you take a basic idea like this it can be used in so many different ways. See David Ball's publications for similar concepts.

Note that there is an underlying "reptile" motivator in all of these - survival. Self protection is a very strong motivator and when your case is presented as one that involves security and protection of the public (including the juror's) you invoke the motivation.

CONCEPTS

Any risk of serious injury or death is unacceptable if reasonable prevention methods would eliminate or minimize the danger.

People protection requires eliminating the hazard to safety. If that’s not possible guarding people from the danger. If that’s not possible, warning people about the danger.
Risk - benefit analysis: (1) How serious is the potential harm (2) What is the likelihood of harm (3) What is the cost of elimination, protection or warning (4) how long will it take (5) how effective would it be and (6) are means available to do so

slogans

The corporation had all the knowledge about the product defect

The corporation was in the best position to share the knowledge with doctors and hospitals

Questions

The issue is:

(1) What did the corporation know and when did they know it.

(2) What did the corporation reveal and what did they conceal

(3) What did the corporation do to protect patients and their doctors and hospitals

(4) Did they do everything they could to prevent this from happening and to protect

PHRASES

This machine had a bug, a flaw it in
It was like a computer with a virus
This was preventable, avoidable and inexcusable
This corporation cut corners

concealment Phrases

THEY SWEPT THE PROBLEM UNDER THE RUG

COMPANY WAS AFRAID TO LET THE CAT OUT OF THE BAG THAT IT’S TEST WAS DEFECTIVE
THEY "PARKED" THE INFORMATION IN THEIR FILES
THIS COMPANY KNEW WHAT THE PUBLIC DIDN’T KNOW
CASE OF SHADING THE TRUTH, HIDING THE BALL & OUTRIGHT LIES
THIS IS NOTHING BUT A SMOKE SCREEN FOR THEIR OWN ACTS
THEY COVERED UP
THEY PLAYED Russian ROULETTE WITH THE SAFETY OF CONSUMERS

TRIAL PRACTICE AND COURT RULES

Paul Luvera — Sat, 19 Dec 2009 18:01:00 GMT

A few years ago I was invited to speak to the trial judges in Washington State. I decided to tell them the truth as I saw it. The applause was light sparse and unenthusiastic. I’ve never been invited to give a talk since that time.

The other day my partner showed me one of the local rules in King County and I was reminded of the unpopular talk I had given. So, I’m going to outline y talk here because I feel as strongly now as I did when I gave the talk those several years ago. Not only that, the situation hasn’t improved, it has become worse and more complex. So here's an outline of that talk even though it won't do any good.

The first thing I told the trial judges was that "less is better then more" when it comes to creating rules. After all God gave Moses only ten commandments that governed the entire rules for society. The Lord’s prayer has only sixty six words and the speech that has remained one of the most famous and moving speeches of our history is the Gettysburg Address. Lincoln used only two hundred and eight six words. We live in a time when the nation’s tax laws are some six times longer then Tolstoy’s War and Peace as well as being considerably harder to understand.

We not only have to comply with rules adopted by our state Supreme Court governing the practice of trial law, but rules every county in the state has adopted. They call them "local rules," but the local rules have consumed the Supreme Court rules and failure to comply is just as fatal as a violation of the Supreme Court rules.

Worse, the enforcement of the rules by the trial judges seems to be taken from Dr. Eric Berne’s 1964 book Games People Play and the chapter: "I’ve Got You Now You Son of a Bitch." Instead of these local rules assisting or improving the processing of cases they have become a series of obstacles to overcome or suffer sanctions. The result is that the local rules have become not just a hindrance and trap for the unwary, but are time consuming and add expense.

Noah would never have been allowed to build his ark in this legal environment. There would have been rules of all kinds governing everything he was trying to do and making all kinds of objections as he did it.

There is a story about the famous comedian W.C. Fields who was an avowed atheist, but was observed one day reading a Bible. When asked what he was doing, he replied "Looking for loopholes, looking for loopholes." That’s what excessive of rules do to the law practice when lawyers, faced with a volume of rules begin looking for ways around them.

With a multitude of rules to comply with in processing a case for a client, we are forced to become pencil pushers with green eye shades laboring over dots, comas & period marks. We need a set of Ten Commandments in the practice of trial work and we don’t need the U.S. Tax Code to do it right. I think we need to remember why we have a judicial system and jury system. It is not for the benefit of the trial lawyers or the judges. It's primary purpose is to benefit the people who are in the system as clients and who are looking to the system for justice. That's where our focus should be.

ERIC OLIVER & COMMUNICATION CONCEPTS

Paul Luvera — Sun, 13 Dec 2009 22:28:00 GMT

Eric Oliver is a nationally known trial consultant and communications expert. He has lectured and written extensively. His company publishes a newsletter I look forward to receiving: http://www.eric-oliver.com/publications.html His latest book is entitled Persuasive Communication and is available from Trial Guides publications: http://www.trialguides.com/ I’ve known Eric for many years and worked with him on cases. Over the years I’ve saved some thoughts of Eric and here are my interpretations of them. I don’t claim they accurately reflect what Eric taught or wrote, but only they are how I chose to record them.

SEQUENCING & PRIMACY

The principle of primacy deals with the importance of what we hear first as influencing us. Sequence deals with the order of hearing things. The sequence of proof strongly influences decisions. Therefore, the first witness is most important. This is the witness that should connect facts, give them meaning and influence decision makers. This is your story teller who can give the big picture in the best possible light.
Primacy and sequencing go hand in hand. Sequencing is about the order of topics in a story, not the order of facts. Presenting evidence strictly in the order of when facts occurred can result in a disjointed and hard to understand story. Topics or subjects, on the other hand tell the big picture as they are related.
So, how should the story be related? Here is Eric's recommended order:

                (1)  Step one: How could it happen? (Reasons)
                (2)   Step two: Who, What, When, Where and How?
                (3)   Step Three: The Consequences

CLOTAIRE RAPAILLE CONCEPTS

Long before I read anything of Clotaire Rapaille’s research and writing, Eric had long been saying essentially the same thing about decision making occurring at a level we aren't really aware about. Eric was fond of saying "humans are primates" and drawing the comparison between human behavior with primate behavior. He long has taught that people don’t know why they do many of the things they do, but will always offer a rational reason for doing it. Here are a few of Eric’s observations as I interpreted them:

when you ask a direct question about someone’s mental process...expect to get a direct lie back
People can’t tell you networks of thoughts, feelings, emotions linked to experience because they don’t have access to them. It’s like asking them what’s going on in their pancreas. Their happy to give you theories, but they don’t really know and, on top of that, don’t know that they don’t know.
Remember this fact when someone is asked to "set aside" attitudes. That’s like asking them to tell you what’s happening in their pancreas. They simply aren’t capable of doing it, so don’t bother to ask. As Rapaille research confirms, artfully asked indirect questions are the only way to get true insight into motivations.
For example, Rapaille talks about a survey asking people what they wanted from airlines and got back the answer "cheap" tickets. However, further research revealed the underlying desire was for more room and comfort.

FOCUS STUDIES

With the above in mind Eric has views about how to conduct focus group studies.

You must be able to summarize the full version in five minutes. If you can’t, you aren’t ready to influence jurors. The inability to do that is proof you do not have a grasp of the essence of the case nor the version you should present. Presenting five minute versions to focus groups is a very good way to get gut reactions to the basic facts. You should, however, be able to answer the question "What’s is all about?" in no more then thirty seconds.
Instead of asking a focus group to take a position on the outcome ask them to explore how many different ways they can frame events in order to know what version should be adopted.
Don’t ask "what if" questions of the focus group, i.e. "what if the facts were________?" That’s because once people establish a conclusion, viewpoint or perception in their mind they aren’t able to revise their position. They simply find reasons to be consistent or ignore facts to do so.

READING FACES

Eric has also written about researchers Paul Eckman and John Gottman who have been studying facial expressions for true reactions even when they are brief or mere flashes. People have been trained to observe those instantaneous flashes of expression on the face of people which reveals what is really happening deep within them and which they themselves most often aren’t aware about.

FIND THE BEST VERSION AND STICK TO IT

There is usually more then one ways of viewing an occurrence or set of facts. We should stop calling the facts a "story" or "case" because there is more then one viewpoint. Instead, we look for the best "version" and are consistent in presenting it.

Know the basic elements of the case
Consistency is essential Stick with one version]
Terms of art need to be put in English. Get rid of the technical jargon which you use just to show how smart you are. Talk basic English. Simple, brief and clear.
Invite the jurors to form their own conclusion instead of telling them. "You may learn" is a lot better then "you will be convinced."
Rhetorical questions tend to reinforce ideas. They can be used as a form of cross examination: For example to a doctor on cross: "Tell us how that choice was a reasonable effort to protect a patient from harm"

TRIAL THEMES

Eric has long taught about themes in trial. But, when he uses "theme" he has a different idea in mind then most lawyers do. Eric says a theme of a case is not really using selected words to describe a slogan for the case such as "Safety first." Instead when we think about a theme for our case we are not thinking of finding words to string together like a safety slogan. Rather the theme should be words which describe the essence of the basic issue, idea or concept that describes the version you are presenting. It tells what the case is all about factually. For example here are some themes which capture the essence of the facts you want the jury to have in mind.

tobacco: "legal product, illegally sold
many warnings, long ignored
too busy, too big
if it doesn’t fit, you must acquit
not what she has, but what she lost
what they revealed & what they concealed

The experts are almost unanimous that left to their own devices, all listeners, including jurors, will quickly decide what the theme for the facts is and once they have done it they will change their thinking very little if at all. So, there is a theme in every story. It’s either the one you offer them or one they create themselves, but every trial has a theme in the mind of the jurors.

A theme is each juror’s private compass pointing to the direction the juror’s reasoning should travel. Juror’s deliberate in themes. We must provide them an idea, image or concept of what the case is all about before they begin to hear the story unfold. If you don’t do this, they will quickly do so on their own.

On the other hand, Eric says, a story line is not a theme. A storyline answers the question: "What happened here?" It’s the ten word telegram that describes the version you are going to consistently present. It tells them why it is important for your side to win and why these facts are really all about you and your benefit.

So, those are some thoughts about communication and how people think which I originally "borrowed" from Eric and have roughly translated here. I hope you found this helpful.

SIMPLE TRIAL PREPARATION CHECKLIST

Paul Luvera — Fri, 04 Dec 2009 21:30:00 GMT

I can't remember if I have published this trial checklist before, but I'm posting it again anyway. The purpose of this checklist is to have a very simple outline for preparing a non major case. My comments are added for explanation. This is to serve as an example for you to use in creating your own checklist.

TRIAL CHECKLIST

CASE TITLE: (The case of too little, too late)

CASE THEME: (An ounce of prevention is worth a pound of cure)

FAULT

1. (Ignored the increasing & multiple signs of a clot in the leg)

2. (When he react, he didn't do the correct medical steps)

3. (When he finally realized he needed to involve a vascular surgeon it was too late to save the leg)

CASE DESCRIPTION - No more than four sentences

(Knee replacement surgery resulted in blood clot. The doctor didn't respond until it was too late and the lower leg had to be amputated)

A. EXHIBITS

__1. "STORY BOARD" PHOTOS

__2. MEDICAL BILLS

__3. DAMAGE PHOTO ENLARGEMENTS

__4. DAMAGE ELEMENT POSTER

__5. CLIENT BACKGROUND POSTER (Family, dates etc)

__6. FAULT POSTER WITH KEY EVENTS

__7. CLAIMS OF FAULT LIST

__8. EXHIBIT BLOW UPS

__9. AERIAL PHOTOS

__10. MEDICAL POSTERS WITH INJURY LIST

__11. MEDICAL ILLUSTRATION

__12. "STORY BOARD" OF EVENTS

__13. POSITIVE PRINTS X RAYS

__14. CT, MRI etc PREPARED

__15. HOSPITAL RECORDS: (subpoena originals or stipulation)

__16. DAY IN LIFE/VIDEO/STILL

__17 WAGE LOSS EXHIBITS

__18. COMPUTER SIMULATION

__19. PHOTOS OR VIDEOS

__20. AUTHORATIATIVE ARTICLES OR BOOKS (CX)

B. EQUIPMENT

__1. ELMO

__2. PROJECTOR

__3. SCREEN

__4. COMPUTER

C. TRIAL NOTEBOOKS

1.__TRIAL NOTEBOOK - Trial and Cross examinatin material

__2. TESTIMONY NOTEBOOK - Witness testimony arranged alphabetically

__3. RESOURCE NOTEBOOK - Data and exhibits

__4. JURY NOTEBOOK - Outlines for voir dire & forms

C. TRIAL PREPARATION

__1. MOTION IN LIMINE

__2. TRIAL BRIEF

__3. JURY INSTRUCTIONS

__4. VOIR DIRE

__5. OPENING STATEMENT

__6. DIRECT EXAM

__7. CROSS EXAM

__8. SUMMATION

C. WITNESS PREPARATION

__1. WITNESS SCHEDULE DETERMINED

__2. CLIENTS PREPARED: a. Advised re dress b. See video c. Read depo + interrogs

__3. FACT WITNESSES: a. Subpoenaed/Prepared b. Given depos/statements

__4. MEDICAL EXPERTS: a. Seen medical exhibits b. Seen bills c. Prepared

__5. NON MEDICAL EXPERTS: a. Seen exhibits b. Prepared

__6. NOTICE OF ATTENDANCE TO DEFENDANT

__7. LAY DAMAGE WITNESSES PREPARED

__8. INVESTIGATION OFFICER PREPARED

RANDOM THOUGHTS

Paul Luvera — Tue, 01 Dec 2009 15:33:00 GMT

Here are some random thoughts that have no particular connection to anything, but I thought worth saving. The first is the famous quote from Hamlet by William Shakespeare:

"When sorrows come - they come not single spies - but in battalions"

That seems so often to be the case. Something bad happens only to be followed by something worse especially when it comes to trial work. Nothing ever goes the way it is planned or expected when it comes to trial work.

When the Seattle Seahawks coach Jim Mora was asked about rumors the team's president was going to be replaced he said he didn't know anything about it. He said:

"We're pretty involved with St. Louis Rams cleanup and San Francisco prep. We live in a cave. We are cavemen"

What I related to was the fact that when we are involved in a trial we really are in a cave. We have little or no awareness of what is happening in the outside world and our entire focus is on the trial itself. Our time before and after the trial day is devoted to preparing for the trial itself. This is when our families suffer the most. We have moved into our personal cave where we exist alone.

ADVOCACY SKILLS

Paul Luvera — Sat, 28 Nov 2009 23:06:00 GMT

Trial November 2009 had a review by Russ Herman about a book, The Articulate Advocate written by Brian Johnson & Marsha Hunter. Russ has published on persuasion and, as nationally known trial lawyer, has lectured about argument, communication and persuasion. I have not read the book, but some of Russ's comments about the book caught my eye. Here are some of the things
Russ reports that the book recommends and I thought important:

making panoramic eye contact with all the jurors before starting to talk. This is something taught by communications expert Josh Karton. The book suggests systematically looking at the jurors seated at the four corners of the jury perimeter
Russ quotes the book as saying "Pauses are good; silence is golden." The pauses give importance to what you are saying and the jurors time to think about what you are saying.
The book suggests that you should not panic when you are searching for your next idea or word. This is of particular importance because the pause actually makes what comes next of importance. Only nervous speakers feel they have to fill every silence with words
Russ says the book suggests control your pace by speaking in phrases and not whole sentences. It suggests you use the timing and rhythm of the Pledge of Allegiance. I don't know about that, but I do know that the timing, pauses and pace of your talk is of the utmost importance in giving importance to what you are saying. No one does this better then Gerry Spence whose timing is impeccable
The book recommends breathing deeply because the power of your speech is proportional to your breath support. All actors are taught breathing. Josh Karton makes this a significant part of his teaching of communication

These are good recommendations. If the rest of the book is as good, it will be worth purchasing.

HYPNOSIS AND COMMUNICATIONS

Paul Luvera — Sun, 22 Nov 2009 17:59:00 GMT

I read an interview with Thom Hartmann that was not only politically interesting, but had some good insight on communications. Hartmann has written a book Cracking the Code involving communications. Regarding communications he noted that:
"[techniques] have to do with pacing and using different modalities as you speak."

That's a fundamental law of communication: it’s not what you say, it’s what is heard that counts. From a political communications standpoint, he says the Democrats have had really stupid advisor's for the last two decades and the Republicans have had very slick professionals who understand both psychology as well as marketing. He goes on to talk about communications generally and says:

"If you want to teach somebody something, they have to be in a kind of trance state. And I refer to the techniques for bringing that on as "inducing the learning."

That made me think of the late Milton Erickson MD, a psychiatrist who was famous for his treatment of patients through a form of hypnosis. Erickson believed the unconscious mind was always listening. He felt there were different levels of a trance and even if the patient was not in a deep trance, suggestions could be made which had a hypnotic influence as long as they found some resonance at an unconscious level. He felt this was true even if the patient was or wasn't aware of what was happening. He felt we are in trances naturally and frequently as, for example, when we are "absent minded." A confused mind means the conscious mind is occupied and the unconscious is available for suggestions without screening by the conscious mind. His well known "hypnotic handshake" was based on this idea. It involved interrupting a normal handshake and while the other person was in a temporary confused state, quickly inducing an indirect suggestion to the unconscious mind.

Richard Bandler studied Milton Erickson's ideas and developed Neuro Linquistic Programing (NLP) with John Grinder. NLP offers very helpful techniques for reaching the unconscious mind in communications. It has been a proven means of improving communications using Erickson's concepts and more.

Then there is the example of the late John Alan Appleman who was a nationally known trial lawyer for his success in the court room. John taught what he called the "waking suggestions."

He believed one can communicate to the unconscious mind of the jurors without putting them into a deep trance. He said the steps involved first, that the jury have implicit confidence in the person who is making the suggestion. Second, that the suggestion is one the unconscious mind finds readily acceptable as being fundamentally right and fair. Third, that the advocate project complete confidence the jurors will act on the suggestion and do what is being suggested. Lastly, that the advocate implant the idea that if the jurors act on the suggestion they will be glad they did so in future years ahead.

The research by Dr. Clotaire Rapaille, the marketing genius, all involve methods of by passing the conscious mind of the focus group to their unconcious mind. All of the concepts involve the significance of what goes on below a conscious level and should be carefully studied by trial lawyers.

Hartmann also said Ronald Regan, FDR and Jack Kennedy where three of the great communicators to be in the white house. He says what made them great was the fact they talked about their vision for American, about their story of America and gave Americans a sense of what they thought it could be. In addition, they used "moving toward pleasure" strategies rather then "pain avoidance" strategies in their communications. That is, they held up an ideal to strive for that would make us proud of ourselves. Lastly, he says, they communicated emotion andalways used a story and emotion to pass along information.

This is the truth of what all of the extensive research shows about communications. The first truth is that communication is not what we say. Rather it is what the other person heard. Second, that we need to communicate in language people understand. That means by stories and with metaphors. If we are going to represent our clients well we must learn the methods of communication that work.

VOIR DIRE DONE RIGHT

Paul Luvera — Sun, 15 Nov 2009 22:38:00 GMT

I am on a message board with plaintiff lawyers across the country in an invitational group I belong to who exchange ideas. An excellent trial lawyer in the South starts a trial Monday with some underlying issues that concerned her. I was interested in all the different ideas and approaches lawyers suggested. Some of these suggestions indicated to me that the lawyer making the suggestion thought that voir should involve carefully worded questions to convince and persuade. This is just not my idea of how a jury panel thinks. Here is my response for what it's worth:

All this wonderful advice shows how individual we are in our ideas about trial and voir dire. I'm inspired to use it as an excuse to get on my soap box even though you don't need this, so you can stop reading now. I know you are going to do a great job because I've seen your voir dire work and no one does a better of job of putting the jury in your client's shoes then you do, but here you are anyway.

Gerry Spence and I spent the last week on our own in Louisiana with our cameras taking photos and just using it as an excuse to not work. We talked about a lot of things including voir dire and the one basic thing we both thought was that credibility of the lawyer is a critical element of trial and it starts in voir dire. The key thing one must do is to tell the truth to the jury about the issues that are significant and in the process show that you are truthful, open and honest.

When we have personal fears and concerns about issues in the case which we would rather not talk about and we ignore or try to conceal them we do not give the jurors the same impression as when we simply tell them the truth and discuss it in a nonjudgmental way. It is highly likely jurors have the same concerns as we do and when they see our willingness discuss it without trying to change their minds it shows that we are honest and credible.

In my view a trial is always a battle of impression and not logic. Don's book Reptile and research demonstrate the jurors are not intellectually reasoning to a logical conclusion during voir dire. They are forming impressions about the lawyers and the case. So, for me, it isn't trying to convince them by thinking up language to convince them. It is, rather, first showing your honest willingness to discuss the issues that are giving you personal concerns and framing the issues in a way that impacts them personally in some way.

You'll be great, I know, because you a great trial lawyer.

Plaintiff Trial Lawyer Tips

WOMEN AND THE PRACTICE OF LAW

"Nothing can be more absurd than the practice that prevails in our country of men and women not following the same pursuits with all their strengths and with one mind, for thus, the state instead of being whole is reduced to half." Plato The Laws

The Rose Bowl is the only one I’ve seen that I didn’t have to clean" - Erma Bombeck

Seize the moment! Remember all those women on the Titanic who passed up the desert tray - Erma Bombeck

Behind every great man stands a surprised mother in law

"If you haven't got anything nice to say about anybody, come sit next to me."
- Alice Roosevelt Longworth

"Remember, Ginger Rogers did everything Fred Astaire did, but she did it backwards and in high heels."
- Faith Whittlesey

"Feminism is the radical notion that women are people."
- Cheris Kramare and Paula Treichler

"I myself have never been able to find out precisely what feminism is; I only know that people call me a feminist whenever I express sentiments that differentiate me from a doormat."
- Rebecca West

"I base most of my fashion sense on what doesn't itch."
- Gilda Radner

Women have got to make the world safe for men since men have made it so darned unsafe for women.
Lady Nancy Astor

I am a marvelous housekeeper. Every time I leave a man I keep his house.
Zsa Zsa Gabor

I've been married to one Marxist and one Fascist, and neither one would take the garbage out.
Lee Grant

My husband and I are either going to buy a dog or have a child. We can't decide to ruin our carpet or ruin our lives. - Rita Rudner

If high heels were so wonderful, men would be wearing them. - Sue Grafton

I'm not going to vacuum 'til Sears makes one you can ride on. - Roseanne

"Even in this day and age, a guy barks out an order and he is treated like someone who is in charge and a leader. But, when a woman communicates in the exact same way, she's immediately labeled assertive, dominating, aggressive and overbearing."

"Let me be clear. I'm not asking you to give up your soul - but rather to exercise new communication muscles so you can b e heard in a variety of situations by a wide range of people. The ultimate goal: for them to get the message without wanting to get back at you."

IMPEACHMENT ON REVISING DEPOSITION TESTIMONY

ON TURNING SEVENTY FIVE AND HAVING BEEN A LAWYER FIFTY YEARS

PREPARING WITNESSES FOR DEPOSITION OR TRIAL

GERRY SPENCE & PAUL LUVERA DVD AVAILABLE FROM WSAJ

SORRY IRVING YOUNGER, BUT YOU WERE WRONG

LESSONS FOR TRIAL LAWYERS FROM THE BIBLE

CROSS EXAMINATION ABOUT SAFETY IN A WORK PLACE INJURY CASE

TRIAL LESSONS FROM CHURCH

NEW CLIENT CONTACT PROCEDURE

A BASIC MANUAL SYSTEM TO ORGANIZE MATERIALS FOR TRIAL

TECHNIQUES FOR NEGOTIATION BASED UPON ROGER DAWSON'S TEACHINGS

PRODUCT LIABILITY IDEAS FOR TRIAL

TRIAL PRACTICE AND COURT RULES

ERIC OLIVER & COMMUNICATION CONCEPTS

SIMPLE TRIAL PREPARATION CHECKLIST

RANDOM THOUGHTS

ADVOCACY SKILLS

HYPNOSIS AND COMMUNICATIONS

VOIR DIRE DONE RIGHT

Plaintiff Trial Lawyer Tips

WOMEN AND THE PRACTICE OF LAW

"Nothing can be more absurd than the practice that prevails in our country of men and women not following the same pursuits with all their strengths and with one mind, for thus, the state instead of being whole is reduced to half." Plato The Laws

The Rose Bowl is the only one I’ve seen that I didn’t have to clean" - Erma Bombeck

Seize the moment! Remember all those women on the Titanic who passed up the desert tray - Erma Bombeck

Behind every great man stands a surprised mother in law

"If you haven't got anything nice to say about anybody, come sit next to me."- Alice Roosevelt Longworth

"Remember, Ginger Rogers did everything Fred Astaire did, but she did it backwards and in high heels." - Faith Whittlesey

"Feminism is the radical notion that women are people." - Cheris Kramare and Paula Treichler

"I myself have never been able to find out precisely what feminism is; I only know that people call me a feminist whenever I express sentiments that differentiate me from a doormat." - Rebecca West

"I base most of my fashion sense on what doesn't itch." - Gilda Radner

Women have got to make the world safe for men since men have made it so darned unsafe for women. Lady Nancy Astor

I am a marvelous housekeeper. Every time I leave a man I keep his house. Zsa Zsa Gabor

I've been married to one Marxist and one Fascist, and neither one would take the garbage out. Lee Grant

My husband and I are either going to buy a dog or have a child. We can't decide to ruin our carpet or ruin our lives. - Rita Rudner

If high heels were so wonderful, men would be wearing them. - Sue Grafton

I'm not going to vacuum 'til Sears makes one you can ride on. - Roseanne

"Even in this day and age, a guy barks out an order and he is treated like someone who is in charge and a leader. But, when a woman communicates in the exact same way, she's immediately labeled assertive, dominating, aggressive and overbearing."

"Let me be clear. I'm not asking you to give up your soul - but rather to exercise new communication muscles so you can b e heard in a variety of situations by a wide range of people. The ultimate goal: for them to get the message without wanting to get back at you."

IMPEACHMENT ON REVISING DEPOSITION TESTIMONY

ON TURNING SEVENTY FIVE AND HAVING BEEN A LAWYER FIFTY YEARS

PREPARING WITNESSES FOR DEPOSITION OR TRIAL

GERRY SPENCE & PAUL LUVERA DVD AVAILABLE FROM WSAJ

SORRY IRVING YOUNGER, BUT YOU WERE WRONG

LESSONS FOR TRIAL LAWYERS FROM THE BIBLE

CROSS EXAMINATION ABOUT SAFETY IN A WORK PLACE INJURY CASE

TRIAL LESSONS FROM CHURCH

NEW CLIENT CONTACT PROCEDURE

A BASIC MANUAL SYSTEM TO ORGANIZE MATERIALS FOR TRIAL

TECHNIQUES FOR NEGOTIATION BASED UPON ROGER DAWSON'S TEACHINGS

PRODUCT LIABILITY IDEAS FOR TRIAL

TRIAL PRACTICE AND COURT RULES

ERIC OLIVER & COMMUNICATION CONCEPTS

SIMPLE TRIAL PREPARATION CHECKLIST

RANDOM THOUGHTS

ADVOCACY SKILLS

HYPNOSIS AND COMMUNICATIONS

VOIR DIRE DONE RIGHT

"If you haven't got anything nice to say about anybody, come sit next to me."
- Alice Roosevelt Longworth

"Remember, Ginger Rogers did everything Fred Astaire did, but she did it backwards and in high heels."
- Faith Whittlesey

"Feminism is the radical notion that women are people."
- Cheris Kramare and Paula Treichler

"I myself have never been able to find out precisely what feminism is; I only know that people call me a feminist whenever I express sentiments that differentiate me from a doormat."
- Rebecca West

"I base most of my fashion sense on what doesn't itch."
- Gilda Radner

Women have got to make the world safe for men since men have made it so darned unsafe for women.
Lady Nancy Astor

I am a marvelous housekeeper. Every time I leave a man I keep his house.
Zsa Zsa Gabor

I've been married to one Marxist and one Fascist, and neither one would take the garbage out.
Lee Grant