December 9th, 2010

Great Cross Examination-F. Lee Bailey

In researching the topic of cross examination, I came across the classic treatise on the subject: Wellman,  The Art of  Cross-Examination (1903). Mr. Wellman, Harvard Law School Valedictorian class of 1878, was a career trial lawyer who tried cases in New York for over forty years. His book, although dated and a reflection of its time, remains in my opinion a must read for trial lawyers.

Wellman teaches cross examination requires the ” greatest ingenuity;  a habit of logical thought; clearness of perception in general;  infinite patience and self-control… .” It requires the  power to read a person’s mind intuitively, to judge character by the face of the witness, and to appreciate the motive of the witness.  It requires the ability to act with force and precision, a complete knowledge of the subject matter, extreme caution, and above all “the instinct to discover the weak point in the witness under cross examination.”

In the cross examination by F. Lee Bailey of Sgt. David Rossi  in the O.J. Simpson trial we see all of the qualities articulated by Wellman. Bailey demonstrates ingenuity and logical thought.  He uses logical thought to damage Rossi’s testimony by making Rossi appear illogical.

He demonstrates self control as he rolls with Rossi in a stream of consciousness way.  Bailey uses his  masterful knowledge of the facts to further demonstrate the lack of logic in Rossi’s testimony.   Above all Bailey gets to the weak points of Rossi’s testimony trough patientce and logic.  The result is great cross examination and the destuction of a state witness.

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December 6th, 2010

First Week of December-Pessimism Often Wrong

Pessimism is often wrong because people assume a world where there is no change or innovation.

They simply extrapolate from what is going on today.

They fail to recognize the new developments and insights that will alter current trends.

Bill Gates

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November 28th, 2010

Fifth Week of November-Go With the Flow

Thinks just happen in the right way, at the right time. At least they do when you let them, when you work with circumstances instead of saying, “This isn’t supposed to be happening this way,” and trying hard to make it happen some other way. If you’re in tune with The Way Thinks Work, then they work the way they need to, no matter what you may think about it at the time. Later on you can look back and say, “Oh now I understand. That had to happen … for this to happen….” Then you realize that even if you’d tried to make it all turn out perfectly, you couldn’t have done better, and if you’d really tried, you would have made a mess of the whole thing.

Benjamin Hoff, The Tao Of Pooh

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November 21st, 2010

Fourth Week of November-Phoneix (Thanksgiving)

My thought of the week is a Thanksgiving thought taking its inception from Phoneix where I recently visited.

Myth. In Egyptian, Greek, and Roman mythology there is a bird called “Phoneix” that lives for 500 hundred years, goes down in flames and is reborn from its ashes.

City. The Pueblo Indians built an ancient city where Phoneix is located but lack of water lead to its demise. In 1867 Jack Swilling saw the beauty and promise of this great land and through irrigation built a new settlement.  On the name, Darrell Duppa said “[a] new city will spring  phoneix-like upon the ruins of a former civilization.”

Thanksgiving. While I could say I am thankful for the great winter golf in the Phoneix area, on deeper thought I am thankful for the ebb and flow of life, for the yin and yang, for the hard times and the good times. This may sound strange saying I am thankful for the hard, difficult and tough but I am.

The hard, difficult and tough make us strong. It is from defeat that we learn. It is the hard, difficult and tough that allow us to appreciate success and good times. All successful people have experienced failure. Like the phoneix bird they rise from the ashes to become stronger and better. Like the City of Phoneix they build again on their foundation to live at a higher level.

Like the phoneix bird I am thankful for the opportunity to learn from failure. I am thankful for the opportuniry to rise again. I am thankful for the growth that comes through this process, I am thankful for life.

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November 16th, 2010

Success in a Jury Trial (Opening Statement)

For opening statement I follow the David Ball model from David Ball on Damages The Essential Update (Second Edition, NITA 2005) which I simplify to fit my style. I speak in the present tense so the story is unfolding now. My body language  stays in the zone of truth meaning my hands stay waist high slightly moving in and out and side to side. ( I stand  in one place unless I move to set an anchor for a fact or point that will be repeated throughout the trial (with the jesture where the anchor is set). My version of the Ball opening follows:

Theme. I go with Ball here and begin by discussing the rule and its consequence. Jurors know they are judges in the case and they want to know the rule right away. They also what to know the consequence for breaking the rule. As Ball teaches I stay simple. “A driver has to watch the road and see what’s there to be seen. When he does not, and as a result hurts another driver, he is responsible for the harm.” I continue to follow Ball-“Now let me tell you the story of what happened in our case.”

Facts. I stick to the facts without conclusions, or speculation. I stay with nouns and verbs avoiding adjectives and adverbs. As professors Strunk and White say there  has not been an adjective or adverb made that can pull a weak noun or verb out of a tight place. I stay calm and collected staying in the zone of truth with my hands. Passion when the hands move up to the chest area is saved for closing. The facts are told from the conduct of defendant first up to his negligence when plaintiff is introduced to the story. After introducing plaintiff as the victim of the negligence I introduce the adversity which we have learned is the injury.

Who We Are Suing and Why. Here I stay with Ball. As he teaches the jury is educated with the facts. Now it is time to tell them who defendant is and why we have brought our case to court.

Defendant’s Arguments. Staying with the Ball model I cover the arguments of defendant. The jury will here these soon during defendant’s opening. I cover them in general and point out we will produce evidence (witnesses and/or documents) that will demonstrate we know the arguments and will prove them wrong.

Harm to Plaintiff. Here I discuss the facts of injuries to plaintiff-the adversity dealt to our hero- and what he is doing to overcome. We know in tragedy the hero will not be able to overcome the adversity. Here I discuss the facts on economic loss, disability, loss of enjoyment of life, and pain and suffering and how they exist today.  In doing this I stick to facts-no conclusions, no opinions.

My Job, Your Job. I leave Ball here and flow into explaining my job is to prove a proper personal injury case. I explain how this will happen giving the jury a preview of how the trial will unfold.   This is when I give the amount we will demonstrate the case is worth in cases where I have decided to give the jury the amount before closing. Either way I then cover the jury’s job which is to listen to the evidence so they can provide fairness in their verdict at the end of the trial. I end by telling them the next time we talk we apply the facts to the law to arrive at fairness.  I thank the jurors and sit down.

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November 14th, 2010

Third Week of November-Secret of Success from Chinese Master

Accept who you are, trust the gifts you have, and relax your body and mind.

Be prepared to accept defeat or failure. Forget anxiety, pride and ego.

Empty yourself, trust yourself, and allow your natural ability to flow.

Then and then only without fear of failure you will be able to succeed.

Master Cheng Man-Ch’ing

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November 7th, 2010

Second Week of November-Power of Non-Resistence

No one who is unwilling to try non-resistance can tell whether it will succeed.

When non-resistance does succeed it is far more powerful than force.

Force destroys enemies.

But non-resistance, when successful, turns enemies into friends.

William James, The Varieties of Religious Experience, (edited by PAT)

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November 3rd, 2010

Success in a Jury Trial (Plaintiff a Tragic Hero)

 

The formula for a quality personal injury case is found in tragedy. Tragedy involving a hero suffering adversity challenging the adversity, and never giving up. In a personal injury case the adversity is the injury. The injury is challenged through medical treatment. To be compelling the personal injury tragedy requires the adversity to be greater than the hero. This means the plaintiff hero will not be able to overcome the injury. The injury is permanent.

The first requirement for success under the personal injury as tragedy formula is for plaintiff to be a “hero.” Here the requirement is honesty. Plaintiff must be true to life and realistic. Phoniness, pretense, or agenda are killers to the plaintiff as the hero.

 The only time the jury will hear from the plaintiff is in direct examination and in cross examination. According to jury consultant Harry Plotkin jurors  judge our plaintiff more by  how he comes off than by what he says. In other words witness demeanor trumps witness content. Jurors “assume that the witness’s demeanor, behavior, and reactions are indicative of the witness’s personality [and] honesty.” 

Direct Examination. Jurors do not trust or like a plaintiff who is angry, argumentative, defensive or nervous. Jurors like a plaintiff who appears confident, honest, and does not get fazed by tough questions even when it means admitting a mistake. In fact they like to see plaintiff stumble and/or admit a mistake as this is human. Being human is being like the jurors. Jurors like people who are like themselves.

Cross Examination. During cross examination plaintiff needs to be as polite and comfortable as he was during direct. In other words he needs to be the same person. Never angry or argumentative. Let opposing counsel come across as a bully as plaintiff keeps his cool and remains the same person he was on direct. As far as the substance of cross examination plaintiff should speak slow, speak succinctly, and speak the truth. Whenever possible return to the direct.

Eye Contact. Plaintiff should make eye contact with the jury during direct and cross examination. (In a judge trial or arbitration remember to treat the judge or arbitrator[s] as jurors). I stand close to the jury so my plaintiff will naturally include the jury in the direct examination conversation as he talks to me. During cross plaintiff continues to include the jury with eye contact and talking to them as well as counsel.

Counsel Table and Beyond. Jurors are studying plaintiff and his demeanor at counsel table, and when they see him in and around the courthouse. Plaintiff should always conduct himself like he would at a wedding ceremony or other formal occasion. Never show anger, boredom, or excess emotion. Under no circumstances should plaintiff be involved in trying the case as in telling counsel what to do. Passing a note is ok, but it is important for counsel to be the lawyer not plaintiff. Outside the courtroom keep the formal demeanor. 

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October 31st, 2010

First Week of November-Undefeated

Out of the night that covers me,

Black as the pit from pole to pole,

I thank whatever gods may be,

For my unconquerable soul.

In the fell clutch of circumstance

I have not winced nor cried aloud,

Under the bludgeonings of chance

My head is bloody, but unbowed.

Beyond this place of wrath and tears

Looms but the Horror of the shade,

And yet the menace of the years

Finds and shall find me unafraid.

It matters not how straight the gate,

How charged with punishments the scroll,

I am the master of my fate:

I am the captain of my soul.

(William Ernest Henley 1849-1903)(written from hospital bed after amputation of leg)

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October 24th, 2010

Fourth Week of October-Reaching Goals

The reason most people  never reach their goals is that they don’t define them,

Or ever seriously consider them as believable or achievable.

Winners can tell you where they are going,

What they plan to do along the way,

And who will be sharing the adventure with them.

Dennis Watley

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