Plaintiff Trial Lawyer Tips

GERRY SPENCE JURY SELECTION METHOD

Paul Luvera — Thu, 21 Aug 2008 11:16:03 GMT

At the Gerry Spence Trial College the following rules are taught as the correct approach to jury selection:

Be yourself - be real. Embrace the truth even if it hurts
Have a conversation with the jury not a lecture
Determine the issues in your case. What am I afraid of?
Share with the jury yourself before you ask them to share with you
Focus on the juror. Mentally shake hands with the juror you are talking to
Thank them for their answers no matter what they say
Honor their feelings even if you don’t like their answers
Never argue and never cross examine the juror
Concentrate on what you are doing, not how you are doing

The jury selection procedure is outlined this way:

Identify those things that trouble you about the case
Explore your personal feelings about them
Determine why you are troubled
Share your feelings about this with the jury
Invite the jury to share their feelings about them with you
Accept the gifts the jury give you
Continue to share your feelings and invite the jury to share theirs

Students are taught the importance of total honesty and openness with the jury. To be up front on all key subjects. To not be afraid to allow and encourage discussion about issues that frighten and bother you about your case. These are proven techniques for jury selection that merit consideration.

MAKE YOUR POINT SHORT AND SIMPLE

Paul Luvera — Mon, 11 Aug 2008 14:37:59 GMT

I’ve just returned from the Washington State Bar Convention in Vancouver B.C. I was fortunate to have chaired the Friday portion which involved talks that were limited to ten minutes each. It always impresses me how much you can say in ten minutes. When you think about 30 second commercials and the television shows that have 2.5 minutes of cross examination, you realize that we often use far too much time to make our points in trial.

Milo Frank wrote a book How to Get Your Point Across in 30 Seconds. In it he argues that when it comes to making a point you should do it in 30 seconds even if you have five minutes or five hours to talk. He says the heart of the matter should take only 30 seconds to be the most effective. He says the one hour of yesterday is the 30 seconds of today because that’s the ideal length of time to get your point across. That, he says, is the attention span of the modern human race.

Why do lawyers often ramble and bore jurors to death? Because it is hard work to prepare for short talk. It takes far more time to prepare a 30 second talk than for a three hour talk. Lawyers take the easy way out and don’t do the hard work that’s required to make your point quickly and make it well. We all need to practice keeping our points short, to the point and interesting.

POLITICAL FUND RAISING AND THE ART OF PERSUASION

Paul Luvera — Mon, 28 Jul 2008 09:24:57 GMT

I received a form letter asking for money to support a judicial candidate. It’s typical of many such letters we get in the mail. This one is a good illustration of a poor approach to persuasionn. It began with a statement in large capital letters "Harry needs your help." It followed that with "Judge Harry Smith's future on the court depends upon the support...of friends." It went on to say "We want to make certain that Harry receives the financial support he needs..."

We know that the most basic rule of persuasion is to appeal to what the other person wants and not to what we desire. What does the person you wish to persuade want? That's always the first question. In trial, it means applying that question to the jury or judge. You start with something that attracts attention and then focus on what the other person wants. You never start with with what you want or your client wants. For example, in a jury case, we know the jurors want to be part of something important. They want the their jury service to mean something. They want to do the right thing. We don't start with what we want or our client wants. We start with the premise that if they agree to the verdict you suggest it will fulfill these needs of the jurors.

This mailing was entirely focused on what Judge Smith wants and needs - our money. The reasons given for our taking money out of our pocket to give to him were his future on the court is at stake. The letters wants to make sure he gets the financial support he needs and he deserves in order to keep his job. Instead, the letter should be focused upon what we want and we need. Why? Well, what's the question the jurors sub consciously are asking themselves at jury selection? Answer: "What's in for me?" The could care less what the plaintiff lawyer wants and care even less what the plaintiff wants. The question for the juror is: what will this do for me. So, we are trained to talk to the jury from their standpoint. How this impacts them. How a verdict for the plaintiff will benefit them. For example, rules mean safety for you and the community. Broken rules means danger for you and the community. A verdict for plaintiff means enforcement of rules that protect the jurors, their families and the community and therefore meet the needs of the jurors.

This letter should have talked about the needs of the people from whom the money is being asked and not about the needs of the judge to keep a job. This letter should have started out talking about the voters needs and not the fact the judge is worried about not having a future on the bench. What the voters need are good, well balanced judges who enforce the law. They need fair minded judges to conduct the trials involving themselves and their clients. They need a judge who will listen and will conduct trials in a fair and honest manner. That’s what important to the people who are being asked to contribute their money and that’s what the letter should have talked about from the begining to the end. At the end of the letter the point should be made that the voters will not have their needs met by having this kind of judge on the bench unless Harry gets the financial support needed to maintain his record of honesty, fairness and quality work as a judge.

Let’s remember the principles of good marketing when he plan our trials and how we will go about trying to persuade jurors.

Gerry Spence Trial College

Paul Luvera — Sun, 20 Jul 2008 13:09:01 GMT

I’ve just returned from my annual trip to the Spence Trial College which is conducted on a remote ranch about two hours drive from Jackson Hole, Wyoming. I like to claim that since the time I was invited by Gerry to teach there when it first began over a decade ago, it’s so I can teach lawyers how to try cases. But, the cold hard truth is that I go there to learn more than to teach. I have become friends with people from all over the country both those who are there as students and those who are there as teachers. I have gained far more than I have ever given on these trips because of the stimulating atmosphere and the benefit of seeing my friend Gerry as well. Over the many years the College has been evolving as it has learned from experience and modified it’s approach. The best way to experience this unusual and unique program is to attend a three day regional meeting which are held all over the country. For more information see http://www.triallawyerscollege.com/

SANDY KOUFAX ADVICE TO TRIAL LAWYERS

Paul Luvera — Sun, 20 Jul 2008 13:09:12 GMT

I’ve just finished a book written by Jane Leavy, Sandy Koufax. I had admired Sandy for his good character and his amazing pitching skill. He became famous when he refused to pitch in the opening game of the 1965 World Series because it was Yom Kippur, the holiest day of the Jewish calendar. One passage in the book struck me as great advice to lawyers, especially young lawyers. When a young Dodger struck out he was in the locker room holding his head and feeling sorry for himself. Koufax tapped him on the shoulder and when he looked up Kofaux said to him:

"Kid, if you can’t take it, get out of here. We don’t want people in here that feel sorry for themselves. You’ve earned the right to wear this uniform...You’re a Dodger. Dodgers don’t hang their heads. They don’t feel sorry for themselves and they don’t point fingers."

That's the advice I would like to give trial lawyers. Too often I hear them blaming everyone for their failings except themselves. They cry about biased juries, gender discrimination, judicial bias, unethical conduct and every other excuse except their own failings. Trial work is very punishing and difficult work. A lawyer, male or female, should not go into trial work if they are not prepared to take all the pain, unfairness and sacrifice it involves. I used to keep a copy on my desk of the old cartoon of the two Roman soldiers standing in front a high wall of a fort the army is attacking. The defenders are pouring boiling oil down on the soldiers. The one soldier says to the other: "Look, you knew about the boiling oil when you joined up." That's what I want to say to young lawyers when they whine and complain about unfairness or ill treatment or losses.

CRACKING THE CODE by THOM HARTMANN

Paul Luvera — Tue, 08 Jul 2008 16:08:59 GMT

I’ve just finished Cracking the Code by Thom Hartmann. The book deals with the science and technology of effective communications. The book is an excellent summary of various communication concepts including Neural Linguistic Programing, framing issues and other basics. One example I thought interesting was the way he starts his talks in order to reach visual, auditory and kinesthetic listeners:

"I want to talk to you today about stories that we tell ourselves, the way we view the world, and the way we all feel as Americans."

He discusses "moving away from pain" persuasion strategies compared to "moving toward pleasure" strategies. He says moving toward pleasure has greater success than moving away from pain. Think about that when you are planning your next argument as why the decision maker should find in your favor. Holding out a reward works better than the threat of pain.

He also talks about using "the indirect you" in persuasion. For example, the car salesman might say "some customers have told me, when you buy this car, you have the best car ever made and really feel great driving it." What he has done is to embed in the customer’s unconscious mind that if they buy the car they will have the best car ever made and will really feel great driving it without saying that directly to the customer.

He discusses what I’ve written about before, that is the unconscious mind generally cannot translate multiple layer language information as the conscious mind can. Research indicates that when you preface a word with a negative such as "not" the unconscious brain does not translate "not." So "not clean" or "not dirty" are heard as "clean" and "dirty" This is a good book with a lot of helpful information.

ARGUING TO A JUDGE

Paul Luvera — Thu, 10 Jul 2008 14:08:05 GMT

The Seattle PI of July 1, 2008 has an article about the arguments in the federal trial by the City of Seattle against the Sonic basketball group. This is what it reports about an exchange between Judge Pechman and Paul Lawrence for the City:

Judge: Mr. Lawrence, answer my question

Lawrence: I'm trying to

Judge: Did the mayor ever call Mr. Bennett back and say let's sit down, let's talk about this and see what we can do?

Lawrence: The mayor...

Judge: I didn't hear it (i.e. a straight answer to her question)

Lawrence: The mayor's position has been consistent that he's willing to talk about - the only thing he's willing to talk about is something that would allow the Sonics to stay through the end of the lease and hopefully something future going forward. Since that was not a discussion that Mr. Bennett was willing to have there was no discussion.

Judge: So, the answer to my question is no?

Lawrence: Not - the mayor was not wiling to sit down and discuss an early exit, correct

Judge: Let's move on

Now, I ask you. Doesn't that violate every rule of argument to a judge? It sure reads to me like the lawyer was being evasive like a hired expert instead of answering the question first and then qualifying. Instead, he deliberately dances around her question in such a way as to tell her he refuses to answer it directly, just as hired expert might do on cross examination. It seems to me the worst thing a lawyer can do in arguing a matter to a judge is to refuse to be responsive to a judge's question. You know the proverb, "never insult the alligator until you are across the river" After all, this is a case tried to the judge without a jury. She is the last person you want to offend in final argument. At least, that's how it looks to me, having not been there, from the report in the paper.

THE BOOK BLINK AND HOW WE MAKE DECISIONS

Paul Luvera — Mon, 30 Jun 2008 16:54:49 GMT

Malcom Gladwell’s book Blink about how choices are made explained the workings of the unconscious mind process. It demonstrated how we form our opinions and make our decisions at a level we are not even conscious about and can’t intellectually access. Now there is a report of a study which dealt with scanning the brains of people making simple decisions. According to a report in the Wall Street Journal (June 27, 2008) scientists discovered that brain appears to make a decision at least 10 seconds before the person becomes conscious of that fact.

This research is pioneered by John-Dylan Haynes at the Bernstein Center for Computational Neuroscience in Berlin. Scientists in Germany, Norway and the U.S. have made studies using functional magnetic resonance imaging. Their studies show that while we think our decisions are made at a conscious level that may only be just the tip of the ice berg. Researchers argue that many important decisions may be best made by going with our gut rather than thinking about them too much. Other researchers have found that people struggling to make relatively simple decisions such as which car to buy or apartment to rent, appeared to make sounder decisions when they were distracted and unable to focus consciously on the problem.

What all this means is that we think jurors, as well as ourselves, make intellectual decisions after weighing all the alternatives and thinking things out logically. But, the reality is that most, and some say 90%, of our decisions are made at an unconscious level. I cannot repeat too often the fact that as a result of these truths trial is truly a battle of impression rather than logic.

CITY vs SONICS TRIAL IN SEATTLE AND ATTORNEY FEES

Paul Luvera — Wed, 25 Jun 2008 14:27:10 GMT

The lawsuit by the City against the Sonics basketball club has been tried to a federal judge without a jury for the past week. The Seattle PI today points out that the lease, which is the subject of the controversy, had a clause requiring the loser to pay attorney fees and costs. The paper reports that former senator Slade Gorton is being paid at $685 per hour to advise the city and their trial lawyer Paul Lawrence is paid at $420. It says Gorton is an advisor at trial. There are other associate lawyers assisting as well. It notes that the City had already paid the Gorton firm $1 million for advisory work. It notes that the City's sports expert was paid $17,753. The Sonic's group paid $100,000 for a public survey to show community attitudes. Keep in mind this was a one week non jury contract dispute. I doubt these facts will improve public attitudes about lawyers and their costs. This illustrates the illogic of tort reformers whose real goal is to keep poor people from hiring lawyers since the rich and powerful have no problem financing their litigation, but want no restrictions on them - only on those who want to sue the rich and powerful. When we read about these huge multi million dollar verdicts they most often involve one huge corporation suing another in commerical litigation rather than some poor injured person trying to get justice.

On Cross Examination Break Your Questions Into Short Ones

Paul Luvera — Wed, 25 Jun 2008 14:24:05 GMT

The newspaper reports that during the lawsuit by the City of Seattle against the Sonic's basketball organization the following question was asked on cross examination by the lawyer for the city:

Q. You understood the risk that you would be sitting here today without a new building, without a
renegotiated lease, with a lease that obligates you to perform through the 2009-2020 season, a lease under which there over $20 million a year operating losses at the time you signed this assumption document, correct sir?

How much better the question would be if it were broken down into short simple statements. It gives the witness less opportunity to be evasive and it exposes any attempts to be less than candid. Try this same question broken down as follows:

Q. You knew there would be a risk of not having a new building when you signed the assumption document without a renegotiated lease?

Q.You knew the lease obligated you to perform through the 2009-2010 season when you signed the document?

Q. You knew under the lease there was over $20 million a year in operating loses when you signed the document?

Q. You knew all these things, but you chose to sign it anyway didn’t you?

Framing Issues in Trials

Paul Luvera — Sun, 22 Jun 2008 08:12:07 GMT

Karl Rove brought to perfection for the Bush administration the framing of actions in a way they would be receptive. For example "The Clean Air Act" allowed businesses to pollute. The "Healthy Forest Act" allowed the logging industry to clear cut indiscriminately. The proposed "Clean Ocean Act" would allow free oil drilling with the potential to pollute our waters. George Lakoff, professor of linguistics at the University of California, Berkeley, has written extensively about framing and metaphors. We know, as trial lawyers, the importance of how we frame our case and the issues in our case. The way we present them and label them has a great deal to do with their acceptance.

SPEAK SLOWLY TO BE HEARD

Paul Luvera — Sun, 22 Jun 2008 08:12:30 GMT

Actor Kirk Douglas has written his ninth book Let's Face It age 90 years. It is an entertaining book. One thing he wrote struck me as a lesson for trial lawyers. He says when he gives a speech he always starts out telling the audience he has had a stroke. As a result, he tells them, he has to speak slowly to be understood. However, he goes on, he's found that when he does speak slowly people listen because they think he is going to say something important and the audience laughs. But, the fact is that trial lawyers tend to talk too fast and the often ignore the power of the pause as well as silence. When we are nervous we tend to talk too fast. When we change pace, pause, raise and lower our voice we capture as well as hold attention. We can learn from Kirk Douglas a lesson in communication

TRIAL LAWYERS: CHOOSING BETWEEN BEING LOVED OR HATED

Paul Luvera — Wed, 18 Jun 2008 10:10:42 GMT

Niccolo di Bernardo dei Machiavelli was born in Florence in 1469 and became a figure of the Italian Renaissance. His writings included political theory and he wrote a pamphlet The Prince which he hoped would help him gain influence with the ruling Medici family of Florence. The well known writing has a chapter he titled "Cruelty and Compassion. Whether it is better to be loved than feared, or the reverse." Here is a sampling of his answer. He advised that it is better for a prince to have a reputation for compassion rather then cruelty. As to whether it is better to be loved than feared, he said it is difficult to combine them so It is better to be feared than loved if you cannot have both. He wrote:

"Men worry less about doing an injury to one who makes himself loved than to one who makes himself feared. The bond of love is one which men, wretched creatures that they are, to break when it is to their advantage to do so; but fear is strengthened by a dread of punishment which is always effective, The prince should nevertheless make himself feared in such a way that, if he is not loved, at least he escapes being hated."

This advice written more than five hundred years ago seems to me to apply to trial lawyers of today. We have to make the same choice in the representation of our clients. Are we concerned primarily about being "loved" by judges and opponents? Are we worried about making friends with them while representing our clients? If so, we are in the wrong profession. The trial lawyer’s primary obligation is to represent his or her client to the best of their professional ability in an honest and ethical manner. They must do that without regard to whether they will be loved or not in carrying out their sworn duty to their client. Great trial lawyers would chose fear over love, if a choice must be made. It seems Clear to me that if I always put my client's interests first, without regard to whether if will or will not please someone else, I have fulfilled my professional oath. The only test, I believe a trial lawyer should apply are: Will it advance my client’s interests and is it ethical? I’d rather be respected for always representing my client’s best interests with courage and feared for my ability in doing so, than loved. It also seems obvious to me that one cannot do one’s best possible legal work as a trial lawyer and be loved by all. In fact, the truth is that no matter what you do about fifty percent of the people will object anyway. Put your client first and you will be doing your best work as a trial lawyer

BANNING CERTAIN WORDS DURING TRIALS

Paul Luvera — Mon, 16 Jun 2008 13:49:57 GMT

The National Law Journal (June 16, 2008) in an article by reporter Tresa Baldas, reports an increasing number of cases where judges restrict the use of certain words in criminal prosecutions. The article Hot-button words are iced in court says that a steadily increasing number of courts across the United States are prohibiting witnesses and victims from saying certain words in front of the jury such as "rape" or "victim" or even "crime scene." In white collar criminal cases words like "embezzle" or "defraud" have been prohibited. Other words have been banned by judges as well. Words like "homicide" or "drunk" or "murderer" or even "killer" have been banned. The article says that to date there has been no federal ruling on this issue.

It is true that certain words have a subconscious impact which the listener may not full realize. Some words like "abortion" or "gay marriage" can evoke an emotional response when they spoken. Clearly there are many words which may cause an uncontrolled or unrealized visceral reaction and therefore can influence the thinking of the listener without being fully aware of it. On the other hand, it goes against the grain to restrict witnesses from using words because it has an aspect of controlling what they say.

I am not aware of any civil trials where this was a major issue except for the famous trial involving Washington state and nuclear reactors. The "WPPSS" trial involved the 1982 default on bonds sold to finance nuclear reactors in Washington when costs and delays drove the total construction costs in excess of $24 Billion. Lawsuits were filed over the default and in the trial the court prohibited anyone from using the phrase "WPPSS" because it was commonly pronounced "Whops."

While courts can, and do, exclude prejudicial statements or statements that are irrelevant from testimony, the idea of prohibiting the word "murder" in a murder trial seems strange to me. I also have an inherent fear of judicial gag orders of all kinds and worry about where this leads if unrestricted. I think trials have become more like rehearsed plays than a spontaneous drama being acted out in front of a jury. It requires experience and skill for a judge to monitor a spontaneous trial. It takes experience and skill for a lawyer to try such a case. Every aspect of our trials today are so fully disclosed and sanitized in advance that they lack the drama that trials used to have when experienced judges and lawyers were conducting them. I continue to favor the Oregon state system with it’s restricted discovery and no advance n.

CLARENCE DARROW AND POETRY IN ARGUMENT

Paul Luvera — Wed, 11 Jun 2008 16:50:27 GMT

Clarence Darrow was comfortable using poetry in his arguments. He, like most other lawyers of that period, could quote literature, scripture and poetry as part of their trial skills. On July 21, 1924, the case of The People against Nathan Leopold, Jr., and Richard Loeb was heard in Detroit. Here's one of the poems Darrow quoted in their defense by A.E. Housman (1859-1936) from A Shropshire Lad:

"Now hollow fires burn out to black,
And lights are guttering low:
Square your shoulders, lift your pack
And leave your friends and go.
O never fear, lads, naught's to dread,
Look not to left nor right:
In all the endless road you tread
There's nothing but the night."

When he argued in his own defense in his Los Angeles jury bribery case he was eloquent and, once again quoted poetry. Here is an excerpt from that argument:

"There are people who would destroy me. There are people who would lift up their hands to crush me down. I have enemies powerful and strong. There are honest men who misunderstand me and doubt me, and still I have lived a long time on earth, and I have friends--I have friends in my old home who have gathered around to tell you as best they could of the life I have lived. I have friends who have come to me here to help me in my sore distress. I have friends throughout the length and breadth of the land, and these are the poor and the weak and the helpless, to whose cause I have given voice. If you should convict me, there will be people to applaud the act. But if in your judgment and your wisdom and your humanity, you believe me innocent, and return a verdict of not guilty in this case, I know that from thousands and tens of thousands and yea, perhaps of the weak and the poor and the helpless throughout the world, will come thanks to this jury for saving my liberty and my name.

Life is a game of whist. From unknown sources The cards are shuffled and the hands are dealt. Blind are our efforts to control the forces That though unseen are no less strongly felt I do not like the way the cards are shuffled, But still I like the game and want to play And through the long, long night, I play unruffled The cards I get until the break of day.

I've always loved poetry and there have been few trials where poetry was not used by me. One of my favorite is the poem by James W. Foley, which I used in my last trial. Part of it reads:

Drop a pebble in the water: just a splash, and it is gone;
But there's half-a-hundred ripples circling on and on and on,
Spreading, spreading from the center, flowing on out to the sea.
And there is no way of telling where the end is going to be.

Drop a pebble in the water: in a minute you forget,
But there's little waves a-flowing, and there's ripples circling yet,
And those little waves a-flowing to a great big wave have grown;
You've disturbed a mighty river just by dropping in a stone.

FAMOUS TRIALS WEBSITE

Paul Luvera — Tue, 10 Jun 2008 16:41:10 GMT

I've enjoyed a website created by Professor Douglas O. Linder of the University of Missouri - Kansas city School of Law. The site,Famous Trials presents background information, photos, transcripts of trials and information about some of the more famous trials in this country. The site indicates that it has been his project since 1996. There is something to be learned from trials like the ones Linder reports on and I recommend the site.
Lindbergh Kidnapping trial 1935 "The Trial of the Century
the newsapapers called it

LION IN THE WINTER SKILL AND ADVOCACY TRIUMPHS FOR GERRY SPENCE IN DETROIT

Paul Luvera — Sat, 07 Jun 2008 06:40:03 GMT

Gerry and his co counsel have achieved an acquittal for G. Fieger in Detroit. Charged with ten counts of violating the election campaign laws, the jury rejected the government's case on all counts. I was in Europe through most of the trial and could only get reports off and on through the internet. Since I wasn't there I've followed the trial only through the eyes and reporting of others. By the way, one of the most detailed reports was a blog of attorney Norm Pattis who attend the Trial College in Wyoming. It's my impression that the outcome proves once again that trial is primarily a battle of impression and not logic. The relationships formed between witnesses, clients, lawyers and the jurors play a very significant part in the final outcome. We know from modern research that a very large percentage of our decisions and impressions are made at a level of mental processing we can't even access with our intellect.

That's the reason I thought Gerry had made a mistake in taking on this client in the city of Detroit. My impression of Fieger was that he was a very skillful lawyer who would have real problems listening to the advice of his counsel and who would always be a ticking time bomb as a witness. I also had the impression that he had alienated enough people there would be an inherent bias that had to be overcome. A trial is stressful. At 73 the last five week trial I went through a couple of months ago was more hard work than fun. Gerry is 79 and a criminal case before a federal judge is even more stressful than my civil trial.

Yet, from the reporting I read, Gerry maintained his calm with the judge, developed a relationship with the jurors and tore huge holes in the government's case. He also announced he this was his last trial. My hat's off to Spence and his co counsel on the case.

Spence, Fieger & Absence

Paul Luvera — Wed, 21 May 2008 15:41:49 GMT

My wife Lita and I are leaving in a few minutes for the airport. We going to Italy and aren't back until the first week in June so I will not be posting on this blog during that time.

Gerry Spence is still at it in Detroit defending a lawyer with the assistance of a very fine criminal defense lawyer from Idaho who worked with Gerry in the Randy Weaver case. While all lawyers are an attorney's worst nightmare for a client, Mr. Fieger has to be an extreme example. Only a lawyer of Spence's experience could handle a client like this correctly and I am confident he is doing so. The problem for Spence is that a trial is always a battle of impression and not logic. Since the client is the central figure the impression of the client generally dominates the impression of the lawyer or witnesses. I know Gerry well enough to know that he has developed a favorable relationship, although unspoken, with the jury and has done so in spite of no voir dire on his part (I'm assuming the federal judge exclusively conducted voir dire) In one case I know about, the defense unsuccessfully moved to have Spence ordered not to look at the jury or gesture towards them, but you can't control charisma that way. It is this unspoken relationship which is created between the people on the jury and the trial lawyer that has enormous significance because the jury is looking for someone to help lead them to the right result in the case. Someone they can trust to tell the truth. Someone who appears to be reasonable and fair they can look to. Usually, this is the judge, but with lawyers like Spence it can and often is, one of the lawyers as well. In fact, in the Marcos trial in New York the judge, and some co-defense counsel, were verbally abusive to Spence through most of the trial, but the jury loved him and found his client innocent. As I said, a trial is a battle of impression and not logic.

See you when we get back!

Concentrate on Your case and Don't Dignify Every Defense

Paul Luvera — Thu, 15 May 2008 10:20:48 GMT

David Ball has written excellent books about trial and his last book David Ball on Damages is particularly helpful. He has captured some basic truth’s about communication involving today’s jury panels. One of his principles is that a trial is what you spend time talking about. Juror’s assume that what you devote time to is important to the case. That means that while liability is obviously critical, the case should be about harm and damages. Dividing time between liability and damages is a significant part of the trial.

One must also have a simple story. Trial lawyers should not try to treat every defense with equal time and attention. In fact, some defenses should be ignored. Arguing about any defense makes the issue important. Disputes about issues created by the defendant leads to only one thing: confusion. Confusion leads to only one thing: A defense verdict. Given the subconscious existing attitudes about defensive attribution and thinking like a "super parent" giving undue attention to an issue raised by the defense plays directly into a defense verdict attitude.

One should focus on the main plaintiff theme, issue and story. The more you show concern about a defense issue, the more you fight and argue over it, the more you increase the odds of a defense verdict. Remember, your case is about a simple violation of a rules, unnecessary injury and harm resulting from it.

THE SPENCE TRIAL COLLEGE APPROACH TO CROSS EXAMINATION

Paul Luvera — Thu, 08 May 2008 09:54:34 GMT

The Spence Trial College conducts regional seminars around the country. At this year's regional seminar in Washington, the topic was cross examination. The college approach involves: (1) role reversal: Become the witness; identify what the witness is afraid of/devoted to/motivated by and why (2) What is the story that advances your case? Determine what story you want told by: witnesses, client, experts and the juror's story as well as the universal story.

My talk affirmed this approach and consisted of these steps: (1) Determine your goal for the cross examination topics. It must be consistent with your case story that you want to advance. It must be a major and relevant point (2) break the significant points you want to make into separate categories instead of a running narration. Each individual category to be a complete chapter regarding that topic. One goal and topic to a chapter of your story. (3) identify the documentation you need to support your story - deposition excerpts, statements, reports, literature and the like (4) use role reversal. Become the witness and determine the motives fears and objectives of that witness and (5) on the basis of your role reversal analysis, decide what demeanor you should adopt to achieve your goal in cross examination.

What follows is a brief excerpt to illustrate my approach to cross examination. It is from a five week jury trial in a smaller county in Washington involving serious injuries from a defective product. Jurors indicated that a significant reason for their $40 Million verdict was the testimony of the CEO of the defendant corporation. The goal for this chapter of the cross examination was simple: emphasize the corporation broke the law by violating FDA rules.

Q. Do you agree that Edwards violated the FDA rules when it destroyed the Japan complaint file?

A. I would say in hindsight that's no longer our practice. At that time we didn't believe we were doing anything against the FDA rules, so we saw as a catheter complaint, and we did what we would do with a catheter complaint.

Q. It turns out it violated FDA rules. They told you that?

A. That was something, again, in hindsight that they made a comment.

Q. Hindsight or not, can you tell us whether it's true that it was a violation of FDA rules to destroy that file?

A. At the time we didn't believe that there was a violation of FDA rules. They subsequently, during an inspection, said that's one that we would like you to keep. And we modified our practice.

Q. Here today -- what is this date -- February 22nd, 2008 –

A. Yes.

Q. - - does Edwards admit that it violated the FDA rules when it destroyed the Japan file?

A. I feel like I've answered that question.

Q. I don't think you have. Could you indulge me and answer it, yes or no?

A. I don't believe -- when we acted at that time, we didn't believe that we violated any FDA rules.

Q Does the FDA believe you violated their rules? Did they tell you that?

A. The FDA said, You shouldn't do that, you should change your practice, and we did.

This is only a small part of the total examination, but what is not obvious is the demeanor of the witness during this exchange. It was his demeanor that influenced the juror's perception of him because he was argumentative and evasive throughout even though he had come to the trial to testify that the corporation was sorry for what happened and had sympathy for the injured family. Keep in mind that a trial is a battle for impression and not a battle of logic.