October 18th, 2021

Direct & Cross Examination-“Six Honest Serving-Men”

Years ago I attended a Day With Paul Luvera where the great trial lawyer quoted Rudyard Kipling’s “Six Honest Serving Men” when discussing cross examination. From Paul Luvera these six question areas have served me well.

When I prepare for direct and cross I first write out my questions. This seeds my memory as I write my lines and read them back committing them to memory. At trial during direct I rarely refer to my lines. I simply have a conversation with the witness. For cross I do refer to my lines because my lines are the lines of the opposition witness. I note where in the deposition or in a document the witness line to my question is so I can impeach if he fails to agree.

In all cases I find myself referring to the “six honest serving-men.” These six friends are always with me as they often assist in deeper penetration in direct and cross. Below are some examples on how they can help:

Who. For direct I begin with who are you questions. The jury wants to know where plaintiff grew up-“Where did you go to high school and what year did you graduate?” The jury needs to learn about plaintiff”s  job and activities before her injuries so they can appreciate how plaintiff has been impacted by her injuries. On cross who are you questions are effective when the witness has misled the jury on her background. Who are you questions allow penetration into background which can lead to destruction of the witness.

What. After finding out who the witness is, I am ready for what questions. On direct of plaintiff, what happened often follows who are you. What happened elicits the story on the mechanism of the injury. Also what questions elicit the facts of the injury. On cross what questions go to the foundation for the witness’s testimony : ” What documents have you relied upon.”

When. The remember when questions are:  “When did you first have symptoms?” “When did you treat for your injuries?” “When were you last able to [engage in particular activity].” “When did you [do particular activity]?” On cross when questions pin down timing of events.

How. The how questions go to how plaintiff is overcoming injuries. If future medical is needed then this is a how question answer. If activities must be altered then this is a how question answer. For an expert how questions uncover how the expert arrived at his conclusion. For a lay witness how questions on cross go to how the witness is able to make his statement based on the facts.

Where. Where questions are important for painting a picture through testimony of where the event occurred. This holds true on both direct and cross. Key facts in every case occur at particular places. Our friend where ensures we make the place clear in the jury’s mind.

Why. The classic rule on cross examination is never ask a question unless I know the answer. This holds true on direct as well. Although why is one of my six friends, he is rarely used. When he is used, however, he can be deadly. I never use him though if he can be deadly to me.

    October 4th, 2021

    The Zen of Jury Selection

    Years ago after a jury trial a juror referred me to Garr Reynolds’ Presentation Zen. I continue to use Mr. Reynolds’ teaching to connect which is important for us all.

    As taught by Reynolds in any conversation I need “connection.”  Without connection my listener is left with emptiness. Through connection I bound. People relate to me when I connect.

    Movement and body language are important for connection. For movement I continue to practice Tai Chi, study body language and the zen concept of living in the moment.

    In jury selection this means staying away from the past and the future. I guard against thinking about what I want to discuss instead of listening in the moment. I listen, engage, and connect with the other person. As stated by Reynolds there is an energy when I am present. This energy is experienced by the listener.

    My body language conveys relaxation. When I relax my listener relaxes. When I am uptight my listener is uptight. Through Tai Chi I know to be soft and balanced. I breathe  deep-into my naval-rather than shallow in my chest. My position is balanced and natural. My hands stay in the “zone of truth” which is waist high moving in and out as I speak.

    To connect I accept the listener even when I disagree. This makes the listener more likely to accept my message. Through Tai Chi I know strength is through non-resistance.  Resistance is a turn off. Non-resistance makes a friend. The “friend” I make may be a member of the jury. Even when the person initially disagrees his frame of reference is open to the possibility my message should be accepted. Through non-resistance and acceptance I have a chance to reach agreement and acceptance.

    I also meditate to shed fear. Fear comes when I worry about defeat. This happens when I think ahead to the result. I stay in the moment  and engage with my listener. By recognizing I lack control over the result, but have control over myself in the moment, I am able to move in the present, relaxed, balanced and engaged. This gives me the best likelihood of connecting  which gives me the highest likelihood  of success.

      September 12th, 2021

      Keys to High Level Performance

      A successful personal injury lawyer must try the case when the insurance company is unreasonable Trial requires performance under stress. For performance at the highest level:

      Prepare. First know the facts inside and out and know the law. Preparation is the foundation to successful performance. It is not the brightest who prevails it is the hardest worker. The lawyer who spends the time to internalize the facts and the law is the lawyer  who has the highest likelihood  of success. Put simply out work the opponent.

      Trust Yourself. After thoroughly preparing trust yourself. Here it is essential to recognize you are ready to go. You know what you want to accomplish. You know you are able to get it done at a high level. Like all successful athletes and actors believe in yourself. This self belief results in confidence.

      Accept Inability to Control Result. Recognize  the only thing you have control over is yourself. You have the ability to put the time in for preparation. You have the ability to methodically go about the trial or task. You do not have the ability to control the result. And the result may be bad. This must be realized and accepted. Doing this has a psychological or subconscious effect of relaxation and performance without the stress of having to win. This in turn allows performance to take place in the present where natural talent and instinct  emerge to allow high performance.

      Visualize High Performance. Successful athletes and actors visualize the game or play before it happens. Often this is as simple as remembering past success and calling on the thought process that occurred. This is an imaginary dress rehearsal. When the event happens the successful athlete or actor is psychologically ready for high performance.

      Remember Peaks and Valleys. The great coach John Wooden wrote a note to Rick Neuheisel when Neuheisal started as head football coach at UCLA. The note included the statement  “there will be peaks and valleys.” Great coaches remember the peaks and forget the valleys. No quality athlete or actor dwells on past failures. Forget about past failure and move on. This is what a successful trial lawyer must do.

      Simplicity is Beauty. Remember to keep  presentation simple. When in doubt remember the rule “less is more.” Lawyers tend to talk too much and complicate the picture. This risks confusion with the  jury. Confusion with the jury is the darling of the defense lawyer’s nursery. Tell the jury what you want and why it matters. Once this is done move on. Remember  jurors want to hear what they need to know, but they do not want to hear what they do not need to know.

      Never Give Up. There will be hard trial times as in “peaks and valleys.” The key is to never quit on yourself. The key is to continue to move ahead at the highest level possible. Remember you cannot control the outcome but you can control giving your best effort. Giving your best effort means living in the present at the highest level until the end.

        August 28th, 2021

        The Five Tibetans

        “The human energy system is an energetic webbing that permeates the entire body. It is the system that empowers the body and energizes and enlivens the mind, providing the energetic foundation upon which the body is built. It is the network through which all life energy flows.” Kilham, The Five Tibetans (1994) at 10. Kilhan points out we are incarnate beings meaning we are beings who live in bodies.

        For the highest form of existence we coordinate our body and mind. To do this takes practice and exercise. For example the practice of yoga teaches to be in tune with the energy currents of our body. In this way we consciously unite mind and body.

        In the 1920s an American geographer, Edwin Dingle, lived in Tibet studying with Tibetan Monks. His studies included a series of five exercises known as the Five Tibetans. These exercises, yoga in nature, increase strength, energy and mental alertness. They open up the body/mind energy system and balance energy. Read the rest of this entry »

          August 15th, 2021

          Tragic Plot Applied to Trial

           

          Aristotle in Poetics teaches the phenomena of tragedy and the elements of a tragic play. Applied to a personal injury case we must have a hero, who sustains adversity, does his best to overcome the adversity, but he will never fully overcome.  Our client is the hero. The adversity is the injury. Treatment is trying to overcome the injury. Not being able to fully recover is permanent injury.

          Aristotle teaches plot distinguishes great tragedy. In great tragedy plot is bigger than the hero. Plot concerns how the universe works, which is universal truth. Plot is recognized as such by the audience (jury). In great tragedy the audience sees the hero like them subject to universal truth.  

          According to Professor Barbara McManus, Outline of Aristotle’s Theory of Tragedy, in Poetics:

           The most important feature of  great tragedy is “the arrangement of the incidents:” not the story itself  but the way the incidents are presented, the structure of the play. According to Aristotle, tragedies where the outcome depends on a tightly constructed cause-and-effect chain of actions are superior to those that depend primarily on the character and personality of the protagonist. Plots that meet this criterion will have the following qualities:

          The plot must be “a whole,” with a beginning, middle, and end. The beginning, called by modern critics the incentive moment, must start the cause-and-effect chain but not be dependent on anything outside the compass of the play (its causes are downplayed and its effects are stressed). The middle, or climax, must be caused by earlier incidents and itself cause the incidents that follow it (causes and effects are stressed). The end, or resolution, must be caused by the preceding events but not lead to other incidents outside the compass of the play (causes are stressed and effects downplayed); the end resolves the problem created during the incentive moment. Id. (Barbara McManus).

          The plot must be “complete,” having “unity of action.” By this Aristotle means the trial must be structurally self-contained, with the incidents bound together by internal necessity, each action leading inevitably to the next. The worst kinds of trials are “‘episodic [where] acts succeed one another without probable or necessary sequence.” The only thing that ties the case together are events that happen to plaintiff. Events that occur to plaintiff must have a fated connection to the universal truth. While the lawyer cannot change the facts that make up the case, he “ought to show invention of his own and skillfully handle the traditional materials” to create unity of action in the trial. Barbara McManus, Outline of Aristotle’s Theory of Tragedy in the POETICS.

          The trial must be “of a certain magnitude,” both quantitatively (efficient and understandable) and qualitatively (universal significance). Today Aristotle would agree trials should be straight forward and efficient showing universal truth and significant meaning so the audience responds by implementing the universal truth. 

            July 21st, 2021

            Plaintiff Attempts to Overcome Adversity

             

            Aristotle teaches tragedy is the imitation of action in life. Well-being (health) and ill-being (injury) “reside in action” with the goal of life being activity. “People achieve well-being or its opposite on the basis of how they fare.” Poetics (The Primacy of Plot). The “plot” in tragedy concerns the action and how the hero fares.

            There are two types of plot according to Aristotle- “simple” and “complex.” Complex plot is a higher level tragedy. In a simple plot there is only a change of fortune. In a complex plot there is change of fortune and reversal or recognition or both. Reversal is change to the opposite. Recognition is change from ignorance to knowledge.

            According to Aristotle when the audience identifies with the hero seeing a cause and effect series of action, and the action involves reversal with accompanying recognition, the audience relates to the plot with pity for the hero and  fear the change of fortune can happen to them. This is tragedy at the highest level.

            In a personal injury case the change of fortune to the hero is the injury. The recognition is  what happens next.     This means how the injured plaintiff reacts. The audience wants to see the hero doing everything she can to overcome the adversity. The recognition can be of a profound life changing result. The audience (jury) seeing the reversal of fortune, and  plaintiff recognition she must overcome, wants justice for plaintiff.

              July 1st, 2021

              Personal Injury Adversity

               

               

              The second element of personal injury tragedy is adversity. The audience relates to a true to life, realistic, honest hero.  In tragedy there must be  adversity or harm to the hero. Without harm there is no reason to be concerned about our hero. The audience must see adversity and the hero overcoming it to continue his quest.     

              There must be a cause for the adversity. This is the action, force or villain unleashed on our hero. The audience will want to address the adversity when it violates a universal truth or the hero’s quest. The reaction is to prevent this from happening again and address the impact of the adversity.

              The hero should understand the mechanism for her adversity. Once this is done, and the audience relates to the adversity,  the hero’s focus is overcoming the adversity.  According to Aristotle the key to tragedy is change in fortune, and how the hero deals with the change. It is important for the hero to focus on the effect rather than the cause. Focus on the cause redirects  the audience’s attention from the effect which is off plot. In high level tragedy the audience is ready to deal with the effect.

               

                June 18th, 2021

                Characteristics of the Personal Injury Plaintiff/Hero

                 

                Aristotle discusses the traits of the tragic hero. The hero does not need to be an award winner or have recognized accomplishments. The key is be true to life and realistic.  There is a lack of pretense. The audience needs to see the hero as appropriate to his or her position in life. There is no exaggeration, and the hero is consistent in his actions.

                Applied to a personal injury case this means the plaintiff is an honest person. There is never overstatement. What is important is honesty in pursuit of deliberate choices. In other words the hero has thought out his goals and direction in life. He is pursuing a deliberate path. With candor and straight forwardness he admits failure and success.

                In a tragic play the audience sees the realistic person as they see themself. In a personal injury case the same phenomena occurs with the jury when they see plaintiff as a true to life person who tells it like it is. This is appealing and worthy of consideration. In tragedy the hero must face adversity. Once the audience relates to the hero they relate to the hero facing adversity.

                 

                  June 1st, 2021

                  Personal Injury as Tragedy

                  Having learned from Simon Rifkind all trials are plays, I sought a theatrical formula appealing to audiences over time that mirrors a personal injury case. I found  Aristotle in Poetics sets forth what has become the classic formula for tragedy and it fits a personal injury case.

                  Plato and Aristotle argued about whether the study of tragedy is worthy of a philosopher’s time. Plato maintained all theater including tragedy is  entertainment not rising to the level of philosophical interest. Aristotle disagreed. Aristotle argued tragedy at the highest level involves the audience. The audience feels the tragic plot in cause and effect sequences that mirror universal truth.

                  In high level tragedy two things happen to the audience. First, they pity the tragic hero. Second, they fear the tragic result (the adversity) could happen to them. Aristotle maintains when this occurs the audience experiences a cathartic event – a purification or spiritual renewal. According to Aristotle, when members of the jury identify with  plaintiff, pity the tragic result dealt plaintiff, and fear the result could happen to them, a catharsis occurs in the verdict as the jury rights the wrong.

                  It is important to note tragedy is neither staged nor made up. As taught by Aristotle tragedy represents reality.  People recognize tragedy and if possible want to remedy tragedy. When a personal injury case has the dynamics of tragedy we have a case worthy of trial production.

                    May 10th, 2021

                    Learning from Simon Rifkind

                    Interview With Simon H. Rifkind (Litigation Journal Sept. 1984).

                    Q. Judge there  has been a great deal of criticism of the lack of ability of lawyers to try a case. Is this criticism valid?

                    A. Well, I have seen trials conducted with extraordinary skill, and great dramatic effect, in the best style that one could possibly imagine. I have also seen trials that were bumbling and poorly done. That’s always been true… . I’m not aware of any decline in the capacity of trial lawyers.

                    Q. What are the requirements of a successful trial lawyer?

                    A. It is essential a trial lawyer come into the courtroom knowing his case.

                    A, He must know the facts.

                    B, He must know what he is trying to establish.

                    C, must have a strategy and a program for achieving it.

                    To illustrate when I was a Federal District Court Judge for the Southern District of New York I would occasionally have a lawyer come up and say: “Does your Honor want an opening statement?”

                    To me this is a foolish inquiry. It is like the producer of a play opening the curtain and saying: “Members of the audience, would you like a prologue or would you rather do without one?”

                    Q. So what would you do to become a quality trial lawyer?

                    A. Now of course experience helps. A good apprenticeship is helpful. Emulating a master of the art is always a useful thing, but I have always said you have to be yourself. I can’t overstate the point that every trial is theatre, every trial lawyer is a performer, and he must have his style. He has to be himself, natural to himself, compatible with his spirit, with his physical well being, with his appearance, with his dictation, with his style.

                    Q. Do you try a case before a jury different than a bench trial.

                    A. I do not distinguish between a jury trial and a non jury trial. I regard a non-jury trial as a trial before a one person jury.

                    You have an audience, you are writing a play in competition with another playwright who is trying to write a different play. It takes a lot of skill and effort, but it is theatre, there is no question about it. Any significant trial is a contest, and every contest involves a sense of emotional tension.

                    The only difference between a bench trial and a jury trial is in a bench trial we have a very experienced theatre goer. Nonetheless, a theatre goer with emotion and a heart waiting to decide for the better play.

                    (Edited by PAT).