November 20th, 2021

Great Cross Examination-Gregory Peck

Dealing with a lying witness will happen to every lawyer who tries cases. Francis Wellman in The Art of Cross Examination (1903) discusses the perjured witness.

In Chapter IV,  Wellman points out a false testimony witness may display “in the voice, in a vacant expression of the eyes, [and] in a nervous twisting in the witness chair….” We see these traits in Mayella Violet Ewell in the the movie clip from To Kill A Mockingbird where Gregory Peck presents classic cross examination.

Wellman covers techniques to use on the unsophisticated lying witness. “Try taking the witness to the middle of the story then jump… to the beginning then to the end.” This works because the witness has “no facts with which to associate the wording of her story.” She can “only call to mind as a whole rather than detachments.”

Wellman teaches “[d]raw attention to facts dissociated from the main story as told. [S]he will be entirely unprepared.” (This is seen in the clip when Peck demonstrates Tom’s lame left arm). Then, like Gregpry Peck in our film clip, return to the facts you have called to her attention (Tom’s lame left arm) and ask her the same question again (how did the rape take place given prior testimony).

As we learn from  Wellman  she cannot invent answers as fast as the questions.”[S]he will…become confused and from that time be at your mercy.” Then Wellman says let her go as soon as you have made it clear her testimony is not mistaken but lying.

As we see in the clip, and as predicted by Wellman, Mayella Ewell, is at the mercy of Atticus Finch. She cracks as Atticus and everyone else watches. This is the ultimate cross examination of a perjured witness.

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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.

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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.

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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.

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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).

 

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November 30th, 2020

Frontiers of Trauma-Crash Phases and Energy Exchange

Here are preparation notes for cross examination of defense medical expert in a personal injury case:

Trauma. In trauma start with the injured person’s story of the impact and the energy exchanged from the impact. To evaluate traumatic injury begin with an understanding of the person going through the crash phases.

A traumatic event is divided into three phases: 1) Pre crash phase: 2) Crash phase; and 3) Post crash phase.

Pre Crash Phase-Here we look to the person before the traumatic event. Acute or pre existing conditions are taken into account. A traumatic event is more injury producing to a person with pre existing conditions such as degenerative disk disease. As we age we degenerate and this includes progression into degenerative disk disease. Making the person less able to handle a traumatic event. Other pre crash considerations include the body position before trauma, expectancy  and gender.

The Crash Phase. “The crash phase begins at the time of impact between one moving object and a second object. The second object can be moving or stationary and can either be an object or a person.” Kinematics of Trauma. In a motor vehicle collision three impacts occur: 1) The impact to the vehicles; here collision energy may be absorbed by the vehicles seen in vehicle damage. A heavy duty bumper allows the energy to continue with less dissipation into the people in the vehicle. 3) The third impact may be to the occupant’s internal organs striking the chest wall, abdominal wall  and skull. Id.

The Post Crash Phase. This phase begins with the care of the injuries. The post crash continues for a lifetime in a permanent personal injury case.

Energy Exchange. In a  traumatic injury case it is important to evaluate and understand the energy exchange, and the forces involved. Medical providers and juries relate to cases involving the exchange of significant energy or force. There is a common sense relationship between the exchange of significant force and injury. 

The Law of Conservation of Energy and Newton’s Second Law of Motion. “The law of conservation of energy combined with Newton’s second law of motion describes that energy cannot be created or destroyed but can be changed in form.” Id. Applied to an automobile collision, the motion of the colliding vehicles is energy. When the vehicles collide their energy is dissipated by the bending of their bodies. Energy is then dissipated inside the vehicles as occupant bodies strike objects inside the vehicle. Energy dissipation continues inside the structures of the bodies of the occupants as their organs stop their forward motion against the chest wall, abdominal wall and skull. This translates to personal injury.

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October 30th, 2020

Role Reversal

Harper Lee in To Kill A Mockingbird says [“y]ou never really understand a person until you consider things from his point of view.”  As a trial lawyer it is essential for me to understand this reality. One way to do this is role reversal.

 Client. I listen when relating to my client. After listening and understanding I role reverse.  I see myself in my client’s shoes. This means all aspects of my client as well as his injury. I become my client and internalize how I feel in his skin.

Defense Lawyer. I also become the defense lawyer. This means having lots of cases as most insurance defense lawyers do. This means having to answer to home office. This means trying to win the case. What facts do I need to know? What facts are bad for me as the defense lawyer? What facts are good for me? How do I feel if  plaintiff is an honest likable person and his lawyer is likable?  How do I feel if  plaintiff and/or his lawyer are not likable?

Witnesses. This means experts and lay witnesses. What is my motivation for being a defense expert or lay witness. Am I preventing frivolous lawsuits? Do I do this to make money or help a friend and this is what is most important? Do I do this because I like to work or want to get involved? These answers help better deal with the witness at the time of deposition and and  trial.

The Judge.  I become the judge. As the judge I want to be seen as fair and impartial. I want to follow the law. I do not want to be reversed. In a close case I will go with the better lawyer. He will be my advocate if there is an appeal.

Jurors.  I become the jurors. In jury selection I learn background facts of jurors that allow me to become the juror. What do I think of the case on first impression? What makes me want to root for plaintiff? What leads me to want to see plaintiff in a negative light

 Keep doing role reversal. I role reverse in my cases and in my personal life. Role reversal makes me a better lawyer and a better person.

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October 10th, 2020

Facts with Feeling

“Then where Should I start?”

“Start what, for Christ’s sake?”

“Researching the history of the area. Of Derry Township.”

‘”Oh. Well. Start with the Fricke and the Michaud. They’re supposed to be the best.”

“And after I read those-“

Read them? Christ, no! Throw em in the wastebasket! That’s your first step. Then read Buddinger. Branson Buddinger was a damned sloppy researcher…but when it came to Derry his heart was in the right place. He got most of the facts wrong but he got them wrong with feeling.”

Stephen King, It (1986).

 Although facts are important what matters to the jury is feeling. We must feel the case so the facts are felt.  To relate to the jury with feeling we begin by discovering the story of our client. To do this we emotionally connect with what our client has gone through and how this feels. Once we accomplish this and accomplishing this takes immersion into our client’s life we arrive at the emotional level of the case.

This allows us to draw on our emotional experience and connect with the feelings of our client. When we feel with our client we have emotional honesty and convey this feeling to the jury. Through emotional connection we do this naturally without trying to sell the jury.We connect with the jury in a straight forward common sense manner, avoiding legalese and complexity. 

The feeling of our client which we mirror flows into the courtroom. The jury relates to this feeling because it is honest and true to life. The facts become subservient to the feeling of the case. Our client has this feeling, we have this feeling and our feeling is given to the jury. When the jury accepts our feeling as its own the facts merge into our feeling.

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June 14th, 2020

Write and Speak with Conviction

Starting as a young lawyer and continuing  I consult Professors Strunk and White, The Elements of Style, for speaking and writing with power and conviction. Below are maxims from their book.

Place Yourself in the Background. According to professors Strunk and White good writing (and speaking) comes naturally without trying to effect a certain mood or temper.  Write and speak so the recipient is drawn to what you are writing or talking about rather than your emotional take on the subject. In this way the recipient is drawn to the substance.   If the substance is there the recipient will have an emotional response. 

Write and Speak Naturally.  Be yourself. Forget about imitating someone else.  Admittedly, we are all imitators and have been since babies.  The key is draw on our experiences rather than a copy of the source. This allows the message to be our message which is authentic.

Never Overwrite or Overstate. Stick to the facts without gilding or adding. When we overstate the reader or listener knows. The message is processed in a negative way like this person is trying to sell me something.

Write and Speak with Nouns and Verbs. Eliminate adjectives and adverbs. As stated by professors Strunk and White: “The adjective hasn’t been built that can pull a weak or inaccurate noun out of a tight place.” It is nouns and verbs, not their assistants, that give good writing and speaking its toughness and color.

Avoid the Use of Qualifiers. This means words such as rather, very, little, pretty, and probably to name a few. As stated by the professors: “These are the leeches that infest the pond of good prose, sucking the blood of words.” The use of the adjective “little” is particularly debilitating. “Little” is a badge of a weak speaker or writer.  The same is true with other qualifiers.

Active Voice. Speak and write in the active voice whenever you have a choice. The active voice “I will speak and write with conviction” has power. The passive voice conveys weakness: “I will try to speak or write with conviction.”

Write and Speak at High Level. When speaking use the ing.  Rather than “I’m thinken about doen it, ” say I am thinking about doing it.” This elevates you  to to a speaker with more education in the listener’s mind. The listener consciously and subconsciously hears your messgae as more educated. Eliminate slang in writing and speaking. This puts you at a higher level.

Make the Point and Stop. As stated by our professors “do not explain too much.”  When saying too much adverbs and adjectives creep into speaking or writing. This makes the message weak rather than strong. Shakespeare says: ” The lady doth protest  too much me thinks.”

Avoid Fancy Words. Speak and write like you are talking to a high school student. Avoid words of  trade that only fellow trade members know.  Avoid foreign language;  it sounds like you are trying to impress;  it is not impressive to deliver a message the recipient misses.

Remember John Wayne’s Maxim:  “Speak slow, speak low, and don’t  say too much.”

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February 29th, 2020

Great Cross Examination-Charles Laughton

 Cross examination is a challenging part of the trial.  It presents the opportunity to either turn an adverse witness into my witness or destroy the adverse witness. Either way my case benefits form successful cross examination.

My preference is to turn the witness into my witness. On destroying the adverse witness I do this in a way the jury will accept. I never embarrass, badger, or abuse a witness.

One of my favorite cross examination movie scenes is Charles Laughton in Witness for the Prosecution.  As we see from viewing this short but sweet cross, Laughton is able to destroy a fact witness in a way acceptable to the jury. He uses the classic inability to perceive facts to destroy the witness.

As we see in the clip Laughton begins by setting the foundation for inability to hear (and hearing a conversation is the basis for the adverse testimony). In setting the foundation Laughton begins by asking the witness in a booming voice if she recently applied for a hearing aid. In doing this Laughton uses change of voice (going into a less audible voice) to dramatically illustrate the witness’s hearing problem. When the prosecutor objects Laughton unfazed agrees to repeat the question.

In a booming voice Laughton restates his question with the witness admitting she has yet to receive her hearing aide. Continuing in his booming voice Laughton verbally summarizes the witness’s testimony. In doing this he paints the scene within which the witness is supposed to have heard a conversation that could not be heard by a person with poor hearing. Then by again lowering his voice Laughton demonstrates the witness’s inability to hear as she again cannot hear Laughton’s lowered voice. The damage is done. The witness is destroyed without being embarrassed, badgered or abused.

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