TrialLawyerTips.com

Video Trial Tip- Do this in every jury trial...

2012-02-27T16:14:00.006-08:00

I'm sharing my Spreecast channel with you via this video and link. Do yourself a favor and sign up for their free service. In the future I plan on using Spreecast to do live Q&A and this technology has a tremendous upside to it. Take a look and let me know what you think!

http://www.spreecast.com/events/trial-lawyer-tip-stand-up-for-jury

Just in case you're in a rush and don't want to checkout Spreecast, here's a direct link to the original video http://triallawyerexpert.com/stand-up/

Using Deposition Testimony During Cross-Examination To Impeach The Witness

2012-02-22T11:57:00.000-08:00

Most jurors don’t know what a deposition is or the significance and implications of giving sworn testimony. Lawyers who simply try to impeach the witness by referring to and then reading from a page and line in the transcript are missing a golden opportunity to destroy the witness on cross.

Click here to watch my video that shows you a good way to use a depo on cross..

Direct Examination Doesn't Have To Be So Damn Boring!

2012-02-13T13:08:00.001-08:00

New Monday Morning video (and one of the most popular so far) on keeping direct examination interesting for the jury...

http://triallawyerexpert.com/direct-exam-does-not-have-to-be-mind-numbing/

If you're not already doing so, make sure to following us over on TrialLawyerExpert.tv

Video- The First 2 Minutes of Your Opening Statement...

2012-02-07T08:37:00.000-08:00

I've put together a short video showing two different approaches to sharing the first 2 mintues of your opening statement with the jury. Frankly, it's a powerful technique that is overlooked by many trial lawyers.

Here's the link to watch my video...

Two Powerful Cross-Examination Questions For Experts...

2012-01-31T13:45:00.000-08:00

When conducting cross-examination on the opposing party's expert witness, you can usually use these two very powerful questions. Click here to watch my video and let me know if you agree!

How to Share Your Client's Story with Your Jury

2012-01-24T09:43:00.000-08:00

New Trial Tips Video: "Tap" and "Transport" your way to a good jury verdict!

Learn how to capture the attention of your jury. Click here to watch one very effective technique I've used with a great deal of success.

By the way, I'm now sharing my trial tips at my new video blog entitled, TrialLawyerExpert.tv To avoid missing my weekly videos, make sure you visit and subscibe to the new video blog!

New Video on Voir Dire

2012-01-16T10:02:00.000-08:00

I've posted a brand new video that shows you how to find out EXACTLY what your jury wants to hear so that you can win your case.

But you can't watch the video here. It's at my new 2012 "trial tips" video blog site at http://www.TrialLawyerExpert.tv

Each Monday I'll be posting a new video. Subscribe to the RSS feed and/or get on my email update list and you'll never miss another video. Simply go to http://www.TrialLawyerExpert.tv and use the subscribe buttons and boxes to your right.

Also please make sure to share your comments and suggestions about the specific trial tip of the week. The "comments" box is at the top of each video post.

Thanks!

Mitch

Are You Winning Your Jury Trials?

2012-01-10T09:36:00.000-08:00

New "Trial Tips" Video Blog...

I believe that with the right tools and approach, almost any lawyer can learn how to become good trial attorney.

The fact of the matter is that many well-meaning and hard working lawyers (and their clients) are not getting the trial results they’re looking for. They don’t know the “game changing” answer to this critically important question…

What’s the single most important “thing” you need to know and do to consistently win trials?

Look, any way you slice it or dice it, trying a case can be a nerve racking experience. Even a bit scary at times. I know because that’s the way I felt when I tried my first jury trial way back in 1986.

Now for the good news. It doesn’t have to be that way. In fact, let’s “fast forward” 26 years. Today, when it comes to practicing law and helping clients, there’s nothing I enjoy more than answering ready for trial.

I don’t pretend to have all the answers and truly appreciate the fact that the experience of trying a case is different for everyone. But, having said that, I have noticed and learned over the past two decades that there is definitely a right and wrong way to try a case.

So, here’s my plan for 2012

Each week I'm going to share a new video showing you exactly how I’ve been winning difficult cases for more than 26 years. I’m also going to reveal some of the best trial techniques I’ve observed other lawyers use to win big verdicts. On occasion, I may also share trial tips from other lawyers and friends practicing law around the world.

These "trial tips" videos will be shown at my Trial Lawyer Expert video blog which can be found at www.TrialLawyerExpert.tv If this sounds like something you may find useful and beneficial, then I invite you to visit the video blog and get on my email update list. I’ll send you a short note when the first videos go live later this month!

Once again, go to www.TRIALLAWYEREXPERT.TV for more information!

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Survey...

What trial related topics would you like to see video tips on? Click here to share your thoughts and take our survey
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“…trial by jury…the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution….” Thomas Jefferson, letter to Tom Paine, 1789

New Interview- "Structured Settlement "Insider Tips" For Lawyers and Clients

2011-12-15T21:21:00.000-08:00

If you’re a lawyer who is settling and trying cases, you'll want to see my latest interview with structured settlement expert, Traci Kaas, entitled…

Structured Settlement "Insider Tips" For Lawyers and Clients!

Many lawyers are simply not aware of what a structured settlement is and the numerous benefits it can provide a client. To help solve this problem, I interviewed structured settlement expert, Traci Kaas.

Several years ago Traci was highly recommended to me and actually assisted my firm with structuring a complicated multi-million dollar settlement. Long story short, I was and continue to be genuinely impressed with her knowledge and professional approach to helping my clients with their structured settlement options and needs. Because of this, I wanted to share the following interview with you…

Are Your Jurors Using Smartphones and Social Media During Trial?

2011-12-03T09:03:00.000-08:00

Here's a link to my interview yesterday with Lawyers.com reporter, Keith Ecker. Keith's article is entitled, "Juror Use of Social Media, Blogs Compromises Cases".

They say "timing is everything" and I agree. On the same day that Keith's article came out, a local juror here in Santa Ana, California, was dismissed from a murder trial for posting updates and pictures on Facebook.

I'd be interested to hear your thoughts and comments at the Lawyers.com article. In fact, I even shared a question in the comment section concerning whether or not trial lawyers should encourage their clients to add accurate and favorable content to their social media platforms during the litigation process (plainting seeds) to help make sure good content is available online should a juror violate the court's order and independently do an online search?

How to Get New Clients In The Front Door...

2011-12-01T15:13:00.000-08:00

Taking a case to trial is a complicated multi-step process. First, you need to have a client. Without clients you have nothing. So let's start there...

In this month's American Bar Association Journal, Mitch Jackson is interviewed about how our firm is effectively and consistently getting new clients to walk through the front door. The good news is that with just a little bit of effort, anyone can do this.

The article is entitled, "Lights, Camera, New Business: Video Shows Human Side of Practice". Click here to read the ABA article...

If you have a question about using video, just ask...

Appellate Specialist Shares the Most 7 Common Mistakes She Sees on Appeal!

2011-11-25T13:10:00.000-08:00

Here’s an interview I recently did with California Appellate Specialist, Donna Bader. In the interview, Donna discusses 7 common (and avoidable) mistakes she sees trial lawyers make resulting in an appeal. She also gives her answer to the following question…

“If you could share only one tip to help plaintiff lawyers avoid appeal after a successful trial, what would it be?
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My New Special Report: "The 5 Most Common Trial Mistakes I See Lawyers Make"

2011-11-21T22:42:00.000-08:00

Get our new FREE report entitled, "The 5 Most Common Trial Mistakes I See Lawyers Make".

We wrote this report to help other lawyer become better trial attorneys. To get instant access to this exclusive report, get on our email list by going to AskMitchJackson.com

Trial Lawyers- Would you like to know how to fascinate your jurors?

2011-11-10T10:14:00.001-08:00

Amazing presentation last night by bestselling author and marketing guru, Sally Hogshead.

In her book entitled, "Fascinate, Your 7 Triggers to Persuasion and Captivation", Sally shares what I feel is an exceptional and new out-of-the-box approach to learning about who you are and the best way to connect and fascinate others. Truly groundbreaking stuff.

Sally's husband is a trial lawyer and frankly, my interest was focused on learning new and better ways to "connect" with my 12 jurors during trial. I'm happy to say that I walked away from last night's presentation totally fascinated.

If you're looking to increase business and be a better communicator or, if you just want to fascinate others, I highly recommend that you get Sally's book right away. It's that good!

Sally's web site is www.SallyHogshead.com

A "Must Read" Article for all Trial Lawyers...

2011-10-17T13:28:00.000-07:00

Several years ago a friend of mine, Michelle A. Reinglass, wrote an outstanding article about taking a case to trial. While Michelle's article focuses on employment law cases, a majority of the content is applicable to most trial situations.

With Michelle's permission, I'd like to share her fantastic article with you. It's entitled...

"Presenting Your Client at Trial in an Employment Case"

The art of presenting your client at trial begins much earlier than trial. In fact, it begins in selection of your client. Besides the obvious things that lawyers look for, such as likeability, presentability, ability to engender empathy or sympathy, (and such things as whether the client curses like a truck driver), it is important to make sure you have a client with whom you can work together to at least a satisfactory degree. It is also important for every trial lawyer to do more than assess these outward personality or credibility factors. You must evaluate the strengths and weaknesses of the plaintiff, and the case, and begin to imagine how and when to present the plaintiff during trial.

However all the skills and experience in the world will not help you when you draw the "client from hell."

I. PRE-TRIAL

A. Realistic Client & Case Selection

A prominent lawyer who won several large high dollar jury awards said it takes three things to get a large verdict (besides having a valid claim): (a) likeable client; (b) large damages, and (c) large employer (despicable helps). Not all cases are going to be high damage cases, yet they still should be brought. However, you should keep in mind these risks:

• liability but no damages;
• damages but no liability;
• valid defenses, such as failure to mitigate, or offset

B. Proper Client Evaluation

1. Plaintiff is capable of communicating their legal problems

Caveat: Some people with language barriers, lack of education, or physical or mental impairments, may not be able to easily articulate their facts and may require more assistance and patience in trying to understand their situation. However, be wary if they are unable at all to explain a colorable claim.

2. Plaintiff has the ability to listen

It is important that there be a relationship of trust between the client and attorney. If the client does not want to listen to you, problems will certainly arise down the road. Watch for signs that their eyes are glazing over, they are waiting impatiently for you to finish talking so they can interject and tell you how much more they know than you. If any of these signs exist, think what will happen in trying to prepare the client for deposition, or trial, and the disasters that can happen.

Trials are much like "mini marriages." After the initial "new" attorney-client relationship glow wears off, a person's true personality and character begin to shine through. A client anxious to have the lawyer take the case may have put on their best behavior during the initial meetings. However, once the lawyer and client are "wedded" the proverbial honeymoon quickly ends. They begin moving through the discovery quagmires and deposition "hell" toward trial, and they become, like it or not, "committed." As trial nears, it becomes more difficult for the client to find a new lawyer to take over the case, and courts become less inclined to grant leave to withdraw from a case.

So, as we rewind the tape back to the beginning of the relationship. There are a number of factors that must be assessed before making a "commitment" to a prospective client.

For example, will the client listen to you (or at least feign interest in what you have to say as you orchestrate their life for the next 1-2 years); does the client "know more than" you do? (Be wary of the client who "knows what to say" at deposition, or trial; lawyers can make especially challenging clients for that reason.)

Does the client have an “agenda" that is not necessarily compatible with, say, winning the case? (Or is it possible for them to put away their weapons and blackmail, at least until after the verdict?) Does the client have reasonable or unreasonable expectations?

During the initial interview, write down your thoughts and perceptions about the prospective client on the intake notes. What does not make sense or add up? Is there a pit in your stomach? (From something other than the spicy chili you ate at lunch?) How hard are you working to fit the facts into a theme, or legal wrong? Does the client seem sincere and truthful? Has the client been through a dozen lawyers before you, with some unique excuse why each one "abandoned" the client, or the client "fired" the attorney? How hard are you working to explain away negative facts? When lawyers stop being lawyers, and just focus on being "people," they can sense the very same things about a prospective client that a jury can, and will, sense. Remember initial impressions do matter. So, when the red flags are waving, look at them, study them, think about them, and test them.

That is not to say an imperfect client should be rejected. (We would all be out of work, and who says there are perfect lawyers?) But, if you spend the entire initial interview "arguing" with the client that may well be a sign that this is not a match made in heaven, or that the client will never listen to you. If you cannot feel sorry for the client, you will not be able to portray that client as sympathetic to a jury. If you do not trust the client, neither will the jury. But follow your instincts. Many lawyers have successfully tried cases on behalf of less desirable plaintiffs. But it pays to get a sense of the client and whether the client respects your opinion, is honest and sincere, and was hurt.

3. The client has at least a modicum of appeal

Clients do not need to become your friend, nor do you have to want to hang out with your client. Defense counsel are going to be sizing up the client for "jury appeal." Statistics bear out that juries often award more to plaintiffs who they like, or who are attractive. This does not mean that all plaintiffs must be model-quality in appearance, or have bubbly personalities. However, if a client is eminently unlikeable, cocky or arrogant, rude, boorish, mean-spirited, or so incompetent that you would want to fire the client, then there is a sure bet the jury will have the same reaction.

4. The client has a colorable claim

The legal claims must be identified and evaluated, including contract vs. torts; public policy/tort termination which requires a policy affecting the public; private vs. public employer. Assessment should be placed not only on the "wrong" perpetrated against your client, but also on defenses. E.g., did the client wait over a year before coming to you? Statute of limitations. Did the client pursue union remedies? Preemption risk. Did the client sign a release of all claims? Has the client attempted to mitigate damages? Did the client make overtures or comments of a sexual nature in the workplace; will co-workers testify that the client laughed or willingly participated in the unlawful conduct complained of? Did the client get along with others at work? Was the client about to be disciplined or fired when the issues of sexual harassment were first raised? You should ask all these questions before the defense does.

5. The client has incurred or suffered damages

Sometimes we find that perfect client with the perfect claim but they have no damages. In most sexual harassment and discrimination cases, the plaintiff has suffered some form of emotional distress from enduring the behavior, being subjected to retaliation for rejecting advances, being singled out for particular embarrassing treatment, etc. In a contract claim such as wrongful termination, if the client immediately found a better paying job, there may be no damages at all, no matter how rotten the employer acted. It is important to fully probe into all possible damages to make sure it is worth your, and the client's, time prosecuting a case.

6. The client has realistic expectations

If the client was told by their neighbor and their best friend that "it's a great case," or "eight attorneys say it's a huge case," or “this will be all over the newspapers!" or "I know this is a million dollar case," it is important to provide a realistic and reasonable assessment of the case to the client. Remember that these are the ones who will later turn their own assessments into yours: “But you told me it was worth $1 million!"

7. The client is committed to the case

Litigation is tough on even the most hardened and experienced individual. Costs can be high. Can the client withstand the challenge and scrutiny of an emotional distress claim, exposing the client's private life during the probe of "other stressors" ? How does the client react to “homework" assigned, to help investigate the claims, or prepare for discovery responses? Even though statistically most employment cases settle before trial, each case is unique and the client must be committed from the outset to see it through to trial. They will be needed through discovery, for deposition preparation, for their deposition, possibly during other witnesses' depositions, and certainly throughout trial preparation. Can they "stand the heat"?

Also, is the client still employed with the defendant? You must make sure the client is aware of the nuances of being both an employee and plaintiff.

8. What are the client’s motivations?

Be wary of clients for whom their case is their entire life, or they are acting out of revenge, or worse, “principle." That will come across to the jury at trial.

9. Involve the spouse

For married clients, it is important to meet the spouse and ensure they are on board for the litigation and have an understanding of what their spouse will be experiencing during the lawsuit. Also, make sure the spouse is not the one driving or pushing the case. Be wary of a spouse who has to interject and tell the client's story.

10. Other issues

Has the client filed for divorce, or bankruptcy? Filed other claims or litigation? All records should be requested of the client, and if necessary, obtained from the court or public agency to ensure that you know what "evil lurks within" those records, or at least be prepared to address issues that may arise from those files. Has the client already seen or retained a string of lawyers? Does the client have a long history of disciplinary problems or a series of short term stints at multiple employers? It is important to get a complete work history both at the job in question and beforehand.

11. Make sure you are both a "fit"

Do you see "personality conflicts" at the initial interview? Are you constantly in trial and rely on support staff for most client interaction? Will the client need a lot of hand holding?

C. Evaluate the Defendant

Assess the "dislikeability" of the defendants - how bad was the conduct? Will a judge consider the actions reasonable "business decisions"? Will a jury have sympathy or empathy toward the employer? Will the jury be worried about increasing their taxes by assessing damages against a government agency?

The same questions should be asked about individuals sued as defendants. These and others are all important factors in deciding who to sue. At each deposition, assess how the defense witnesses will do in presenting the plaintiff's case to the jury.

D. Select the Proper Court for Presentation of the Case and Plaintiff

1. State vs. Federal

Are you familiar with federal court; do you feel comfortable there? If not, can you stay out?

2. Venue (think "O.J." trial)

A plaintiff may be well received in one location, but have the opposite impact across the city or county line.

E. Preparation for Deposition

Make no mistake about it, a client's performance at deposition may well win, or lose, the case at trial. In order for a client to perform well at trial, they must first perform well in their deposition. It becomes very difficult to "clean up" bad deposition testimony or behavior at trial.

Most plaintiff depositions today are videotaped. Every tic, nervous mannerism, smirk, sarcastic glance at the opposing counsel, is recorded for future viewing by the judge and jury. Jurors can tell if a plaintiff was "cleaned up" between their deposition and trial. If the client performs poorly at deposition, it will be more difficult to present the plaintiff well at trial. Not always, but often. It is not insurmountable to resuscitate a client who has shot themselves in the foot (or other anatomical part). However it is generally not easy to do.

Moreover, a plaintiff’s deposition can cause the case to be lost at summary judgment, eliminating any chance for a day in court. So it is critical to properly prepare the plaintiff for deposition.

Preparation for deposition does not mean meeting for coffee an hour before the deposition. It also does not mean meeting for an hour the day before. Proper preparation requires time; it requires you to be intimately familiar with the client's file, the case, the documents, as well as the defendant's point of view and defenses. It requires you to think of the questions that will be asked, before the client walks into the deposition room. It requires you to think through anything that does not make sense, anything that is illogical, anything that can be torn apart by the adversary.

For example, if your client is saying she did not look for a job because she felt it was futile, how will she explain the fact that the job market in her field was gushing with comparable jobs, or the economy was flush during that period of time? If, for example, another client says that he took home company records because he thought they were available to everyone and belonged to him. how will he respond when shown his signed acknowledgment that he read and understood the company policy on confidentiality which clearly defined what records were confidential, and that they were to remain on the premises at all times? Inconsistencies and obstacles (a.k.a. "trial land mines") should be questioned, challenged and analyzed to your satisfaction.

It is a good sign when the client leaves the deposition preparation meeting feeling scared and exhausted. It is an even better sign when the client later says that the deposition was easier than the preparation for it.

Clients must be educated on the "golden rules" that roll off of every experienced lawyer's tongue. Why should a client only answer the question that is being asked, and not volunteer other things? Won't it help to get through the deposition quicker by volunteering the "whole story?'' Won't I look better if1show how much I know about my case? The answer is of course, "NO," and in fact doing so be fatal for the case. The "yakking" and "blabbing" plaintiff is a dream come true for the defense lawyer, who will take all of those spewed out facts and figure out ways to poke holes in them. Most of the time, the questioning lawyer will turn the "volunteered" information around to the detriment of the client. "So you actually told your supervisor that you felt fine and could perform your job?” However in the non-stop, volunteered narrative your client so proudly provided which far exceeded the scope of the question asked, your client neglected to mention the part about needing short rest breaks because the illness fatigued them.

Also, clients tend to be nervous during deposition and can tend to "hear" incorrectly. Suddenly the client is disclosing confidential, privileged information, not asked for by the question and the attorney is powerless to stop it in time, because it was not "asked." Once that cat is out of the bag, trying to put it back in becomes an often insurmountable challenge.

One past client, who had been terminated from his 30-plus year career based on false allegations made up by his subordinate employee, only heard the first part of any question, because he was busy formulating his answer in his mind. In response to the question about who he talked to "in preparation for his deposition, ''he happily named his girlfriend, mother, father, entire family, every friend he ever had ... the list went on for what seemed an eternity. (My stomping on his foot with my heel failed to trigger any register in his mind that something was amiss.)

The next question was, predictably, "Tell me everything you told your girl friend. "The client became irate," That's none of your business!" As we took a break, it of course became clear that he spoke with none of these people to "prepare” for his deposition. However he provided personal data that would have otherwise been off limits, and of course that gave a wider array of people for defendants to investigate about his claims. So, much preparation is needed to try and avoid such "spillage," which can also lead to inadvertent disclosures of privileged information or lead defense on a search for the Holy Grail.

II. TRIAL PREPARATION

No longer in "dress rehearsal," this is where all the hard work done in preparation will shine through. Among the things that need to be assessed are: When during the trial to call the plaintiff: first, in the middle, or last? Is plaintiff properly prepared to testify? What are the sand traps to be wary of in trial?

A. Start Preparation Early, and Often

Do not wait until 90 days before trial to begin thinking of the theme and focus of the case. Every stage of the case should be geared toward trial and developing a trial theme.

B. Consider a Jury Consultant or Coach for the Plaintiff

As the case progresses, as the plaintiff testifies at deposition, you should be considering if plaintiff needs any professional coaching. Defendants use jury consultants with abandon, so why shouldn't plaintiffs? There are many economical means of doing so.

Jury consultants fall into many different categories. These vary from overall assistance in assessing the case. to working with the plaintiff and other witnesses to prepare for their testimony, to assisting with mock jury, to helping to select a jury panel, etc.

C. Videotape Deposition Review

Lawyers often do not review their own client's videotaped deposition, because they do not intend to present their client in that manner, but rather will present the plaintiff at trial live. However, the defense is chomping at the bit to play for the jury any areas where the plaintiff looked bad. In order to properly present the plaintiffs testimony at trial, you must be prepared to know how the plaintiff looked on camera.

Often, those "bad" snippets are entirely irrelevant to the substance of the testimony. For example, the plaintiff engaged in a heated exchange with the defense lawyer. However, the particular testimony has no relevance whatsoever to any issue. If defense plays that portion, it will be solely to sully the plaintiff’s appearance to the jury. Thus, you would need to be prepared to object to such a video clip as not being proper impeachment and that it is solely being presented to gratuitously taint the jury against your client.

Assess how "different" your client may appear "live" than during the videotaped deposition, and how that could be played up by the defense. “Sanitizing" the plaintiff or the plaintiff's appearance, so as to create a marked difference between the deposition testimony and trial testimony may backfire. If, however, there really is no choice in the matter - plaintiff must be cleaned up - then so be it, but consider whether there is an explanation, such as the particular "bad" segment of videotape happened after multiple sessions without sleep, or plaintiff’s doctor has been experimenting with higher dosages of depression medication. Whatever the situation, it is helpful to have viewed the plaintiff’s testimony through the eyes of the defendants.

D. Theme Weaving

The theme, developed from the start of the case and refined thereafter, should be woven into every aspect of the trial, including through the plaintiffs testimony. To help simplify and streamline the testimony, and better prepare the plaintiff for trial, it helps to keep focused on how the testimony to be elicited from plaintiff will tie into, or support, the theme of the case.

One of the hardest aspects of going to trial is figuring out what to weed out. It is much like packing for a week-long vacation, to a place where the climate may change, the dress code may alter from casual to dressy, and other contingencies must be planned out. It is usually easy to clean out the entire closet to put into the luggage, but it is not practical to take it all, plus with new tightened security and weight restrictions on luggage, things will have to be pulled back out of the suitcase and left at home.

So, use the theme to help guide in determining what stays in and what gets left behind.

E. Strategizing

In preparing the plaintiff for trial, it helps to strategize a number of things, such as:

1. Humanizing the plaintiff

We want the jury to bond with the plaintiff, to relate to the plaintiff, to understand and empathize with the plaintiff. The jury will be very diverse, with people from management and the worker ranks. The one thing they all share in common is that they are employees. Employees, even managers, are still human, with the same human frailties and insecurities as everyone else.

It is important to figure out the "hook" that binds with your plaintiff. Is plaintiff a long- term employee, someone who rarely missed a day of work, did their job diligently, worked hard, and was devoted and loyal to the employer?

Is plaintiff an achiever? Did plaintiff strive to better themself by taking classes, training, pursuing a college degree, seeking promotions?

What importance did plaintiff assign to the job? Did plaintiff leave a solid secure position to take the job with the defendant?

Did plaintiff follow the rules, but the employer did not? Just about every employee appreciates the importance of an employer having rules and following them.

2. What information is necessary to help convey the message as simply as possible, versus clutter the canvas, or making things too complex.

3. What issues will defendant raise, and how can you counter them?

F. Preparation of Plaintiff for Trial Testimony

Generally this is plaintiffs first time testifying in a courtroom, which alone is anxiety- provoking. The fact that plaintiff will be feeling that their entire life rides on how well they "perform" at trial, will provide even more anxiety. It is helpful to put the plaintiff at ease.

One way and perhaps the best way is sufficient preparation of the plaintiff for trial. Organize the presentation. Consider an outline of the subject matter areas for direct examination that can be given to the plaintiff ahead of time. Do not write out questions, or answers. This will help keep the plaintiff organized. give some structure, yet not make the testimony sound "rehearsed."

Another way to help relax the plaintiff is giving guidance on attire, and demeanor in the courtroom, with frequent reminders that plaintiff will be living "in a fishbowl" the entire trial. Jurors get bored, very very bored, and they spend an inordinate amount of time watching everyone in the courtroom, most particularly the plaintiff. Jurors watch to see how the plaintiff will react to certain testimony by others. Jurors study the plaintiff to see if they will let their guard down and show arrogance or cockiness. A juror may be driving behind the client on the way to court. Getting plaintiff used to this concept and reminding will help to heighten plaintiff’s consciousness about their surroundings and help get them into the habit of remembering they are always on display and that their body language are constantly being "judged."

Prepare plaintiff for cross-examination. This should not be given in outline form nor written out. However, frequency and recency are good concepts to keep in mind as the plaintiffs day for cross-examination nears.

Go over exhibits with the plaintiff, explaining their significance. Go over the points raised by defense counsel during plaintiff’s deposition.

Consider a mock trial, including a mock cross-examination of the plaintiff.

Provide plaintiff with the defense trial brief; begin indoctrinating plaintiff to the defense "themes." so that the client can catch them as they are being lobbed at them.

Let plaintiff talk, and make their own mistakes during preparation. You can then discuss what "land mines" they will have stepped in with such a response, explain where defendant will be going with that line of questioning and how to handle tough areas that were not anticipated (e.g., bringing back to the "theme" all the time). When defendant gets plaintiff off-theme, teach plaintiff to get back on-theme.

G. Deciding Order of Witnesses

This is a topic about which good trial lawyers may often debate and disagree. Some are of the school of thought that you always call the plaintiff first. Others believe that you should never call the plaintiff first, but instead let others tell plaintiff’s story, paint the positive picture of the plaintiff, before putting the plaintiff on the stand. And others believe that it is best to start with a defense witness ("776" examination).

All of these approaches are right, as long as they are personally evaluated in each trial, because there is no "one size fits all"' approach when it comes to trial.

1. Plaintiff first

First assess and evaluate if plaintiff will make a good witness. If plaintiff is not a good witness, or is unable to be their own "cheerleader," it may be better to start with another witness, someone who can testify to the incidents, or can testify to the impact of the defendant's actions on the plaintiff. If plaintiff is not the most likeable person, it is almost axiomatic that you will not start with the plaintiff. (Note: all "rules" are subject to being broken.)

If plaintiff will be their own best witness, or there are no other witnesses who can tell the plaintiffs story, that would be another compelling reason to start with plaintiff.

2. Third party percipient witness first

This depends on the theme, and what is the thrust of the wrong in the case. If the main focus is how horribly the plaintiff was treated, and there are co-workers who witnessed the behavior, or "me too" witnesses, they may be best to start with before plaintiff. It is much more powerful to have someone with no stake in the outcome tell what happened to the plaintiff first, buttressing plaintiff s later testimony.

It is risky to start out with a “damages" witness first, before the jury is sold on the fact that plaintiff should win. Thus, it is generally best to hold back the spouse or family member who can attest to the effect of the employer's actions on the plaintiff.

3. Adverse defense witness first

When the conduct of the defendant is egregious, or "shocks the conscience," consider putting on an adverse defense witness first. The more despicable, the better - e.g. the arrogant supervisor who caused the harm. It is always advisable to have deposed the person you are planning to start out with. While you can very successfully call adverse witnesses during trial who have not been deposed, keep in mind this is the jury's first impression of your case through actual evidence. It must be strong, powerful and have an impact. This is not the place to take a chance by putting on an unknown person who could trip you up and engender sympathy from the jurors and sentiment against your client.

This is also the place for effective use of videotaped deposition testimony. If the adverse witness was caught in lies during deposition, it can be very powerful as the first person the jury hears and sees.

H. Presenting the Facts Through the Plaintiff

Direct examination of the plaintiff always starts out with the jury's attention, whether the plaintiff is first or later in the trial. The reason is that this is the person with first-hand knowledge of what happened, and how credibly the plaintiff comes across may well determine if they win or lose. The jury is rapt with attention and anxious to hear the story.

However, it is also easy to turn an event which the jury is awaiting with anticipation into something boring and dry which causes the jurors to "shut down."

Keep in mind the adage of starting and ending strong. Determine when to fit in the plaintiff’s employment history, to the extent it is relevant or necessary, but do not present a long, droning self-lauding narration of every minute accomplishment the plaintiff achieved. Instead, hit the high points (e.g., the plaintiff worked 29 years for the defendant, starting as a grocery checker, or box boy/girl, and worked up via 10 promotions, finally becoming a manager, their dream job).

Get to the heart of the case, the employer's bad acts, as quickly as possible. The jury is still interested as long as the initial presentation was brief and to the point.

Listen to your client! Just because we may think that direct examination is "easy" (it is truly not), the plaintiff may not stay "on script." The questions that were readily understood during “practice," may not be clear at trial. Remember the plaintiff is now under more stress, in a strange environment, on display with jurors completely focused on them. They may get "stage fright” or develop other anxiety. Thus, the plaintiff’s lawyer may not simply ask questions robotically and expect the plaintiff to "perform." If the plaintiff is not following or hits a stumbling block, you want to overcome that hurdle as soon as possible.

Be sure to hit head-on the adverse points. Take the "sting" out of these facts before defendants get their turn.

Keep it simple - ask short questions, elicit short but complete responses.

Decide the "high notes" on which to end plaintiff’s direct examination.

A successful trial lawyer advised long ago: "Talk in pictures.” Help the plaintiff to be descriptive, visual, make the jury feel they are there with the plaintiff.

Remember: It takes longer to "shorten" the presentation than it does to prepare it. That time is well spent.

Use graphics where possible. Use the board and write a lot to mark indelibly in the jury's minds the key points from plaintiffs testimony (and others' as well). Pictures are still worth 1,000 words.

After putting together the direct examination, consider what can be cut while still keeping intact the key points (important facts, law and emotions).

I. Presenting Plaintiff's Emotional Distress

Keep in mind, today's jurors grew up in the era of "tort reform," McDonald's hot coffee, addicted smokers seeking compensation from tobacco companies, and lawsuits about trans fats. They are more cynical than in the past. Jurors still can and do give awards, and large awards. They are, however, more inclined to demand "Show me" before giving that award. Jurors are still ... human. They can and do still react to the human drama, and to abuses by employers. It is important to emphasize the harm done by the employer, the reprehensible nature of its actions, and find those things in your case that will connect a jury, the type of harm that they can relate to.

1) Find the emotion in plaintiff's testimony, as well as in other witness' testimony. It does not always show itself in neat packages of feelings; it often comes out through other portions of the testimony when the plaintiff is not expecting to be talking about "feelings."

2) Do not lose sight of the "theme." Simply presenting plaintiff as an emotional basket case will have little or no effect if the "emotions" are not tied to defendants' actions.

3) Let plaintiff tell the story about their damage as much as possible, flaws and all. In other words, if plaintiff is floundering around, it is usually because of the emotion being felt. Let the plaintiff unfold to the jury what happened, and the impact it had.

4) Time lines are good to show plaintiff's emotional state before the "bad acts," and the emotional state after defendant's "bad acts."'

5) Prepare in advance of plaintiffs testimony by consulting with your experts. Elicit from plaintiff the facts that will later be attested to by the experts as giving rise to damages.

6) Keep it brief, but powerful. Jurors become uncomfortable watching anyone sit on the stand and cry uncontrollably for lengthy periods of time. Jurors may distrust a plaintiff they feel is "trying" to gain their sympathy.

7) Where possible rely on family, spouse, friends, even co-workers to describe the "before" plaintiff as contrasted with the "after" plaintiff, to describe the impact of the defendant's actions on the plaintiff: and the long-lasting effects.

8) Use testimony of treating doctors or psychologists where applicable. If the plaintiff sought no medical or psychological treatment, it is important to drill down with the plaintiff how he coped? Who was his "rock," who washer "support group"? What did they do, who did they turn to, to get out of bed every day, to keep themselves going. Probe and try to reach what is inside your client.

9) End strong and powerfully, avoiding anything that would smack of “cliché” or manipulation of the jury's emotions.

__________________

More about Michelle Reinglass...

Michelle is an arbitrator and mediator with Judicate West, one of Southern California’s leading providers of dispute resolution services. She also is a member of the Employment Panel of Arbitrators with American Arbitration Association. Michelle is a former president of the Orange County Bar Association, former chair of its Business Litigation Section, and past chairperson of the California Employment Lawyers Association. She has been recognized as a Top Business Lawyer of the Year, Top Woman Litigator and Top Employment Attorney. She is a member of the American Board of Trial Advocates, named a Preeminent Lawyer and given the highest "AV" rating by Martindale Hubbell, recognized by Best Lawyers of America, and has been inducted as a Fellow into the College of Labor and Employment Lawyers.

Michelle can be reached at www.reinglassadr.com

Trial Lawyer Tips on Your Smartphone...

2011-09-30T09:55:00.000-07:00

Trial lawyer tips, tools and approaches at the tip of your fingers and in the palm of your hand.

Our new FREE smartphone app now allows you to "click and read" trial tips 24/7 from anywhere.

So how do you get TrialLawyerTips on your phone?

It’s easy. All you need to do is go to your smartphone and search the Apple or Android App store for “California Lawyers” and download your FREE app. Once your app loads, you'll see buttons on the bottom of the screen. Select "More" and then scroll to the bottom of the next page. Select the "TrialLawyerTips" button and you're good to go!

The California "Howell" Case

2011-09-28T16:52:00.000-07:00

Howell v. Hamilton Meats

A short but concise review of the “Howell” case by friend and certified appellate law specialist, Donna Bader

Howell v. Hamilton Meats arrives with a dull thud- Personal injury attorneys have been anxiously awaiting for the California Supreme Court's decision in Howell v. Hamilton Meats & Provisions, Inc. (2011), No. S179115. That decision arrived on August 17, 2011 and the collective groans of plaintiff's attorneys could be heard across the state…

"The Velvet Hammer" on Voir Dire...

2011-09-27T14:07:00.000-07:00

Seattle personal injury lawyer, Karen Koehler aka "The Velvet Hammer" has a passion for helping families harmed by the wrongdoing of others. She also has the ability and experience to get the job done...

In 2005, The Washington State Association for Justice named Karen "Trial Lawyer of the Year". When she's not protecting consumer rights, she enjoys speaking, writing, and spending time with her three wonderful daughters.

Earlier this year Karen was nice enough to share her easy to read and entertaining book with me entitled, "Real Justice for Real People- Voir Dire". In 11 simple words, "This book is a must read. I highly recommend Karen's book!"

Here are several comments taken from Karen's blog about the book...

Thanks so much for sharing your EXCELLENT book on voir dire with me. It is absolutely fantastic!!! Having tried 64+ trials, I personally understand and appreciate how important voir dire truly is. Your book captures all the important stuff and packages it into an easy and fun to read book. Again, thank you for the book.
- J.M. (Orange County)

To paraphrase Jack Nicholson, "you make me want to be a better lawyer."
- T.D. (Spokane, WA)

Can I shadow you on your next trial? You are so cool.
- C.A. (Vancouver, WA)

I forward these to all the attorneys in my office. We are hooked and can’t wait for the next one.
- B.S. (Lawrenceville, NJ)

This has been better than a novel. I hope it has a terrific ending. Thanks for sharing, thanks for all your passion and great work. Let Justice be done.
- L.S. (Seattle, WA)

Great result. You’re our hero.
- T.S. (Waterloo, IA)

Thank you for sharing and caring about others of us who can benefit from your work and wisdom. I hope to get the privilege to try a case with you someday.
- L.Q. (Bellevue, WA)

Your daily notes formed a serialized “best seller”, and now with a fantastic result. What a well prepared and executed plan.
- M.M. (Lynnwood, WA)

You brought tears to my eyes when you described the daughter’s dance and the way the jury strained to see her. Wonderful!
- P.W. (Seattle, WA)

I’m dying with suspense. I don’t know what I’ll do when you’re not in trial; these updates have become addictive.
- G.P. (Atlanta, GA)

Want to see what all the excitement is about? Visit Karen's blog and get her book.

Go to http://www.KarenKoehler.com

GET FOUNDATIONAL RULINGS AT THE TIME OF THE OBJECTION- Don’t Get Bullied into Waiting Until the Break, End of Day, or End of Your Case

2011-09-08T08:00:00.000-07:00

If at all possible, coordinate and take care of all your major evidentiary foundational needs before trial. Work with opposing counsel to stipulate to as many foundational issues and facts as you can.

Waiting until trial to deal with foundational issues simply adds to the already increased pressure of doing everything in front of a jury. Focus on taking care of the big issues before trial and carefully plan on dealing with the remaining foundational issues during trial with a checklist and a bit a witness planning.

Important- When you’ve laid what you believe is a proper foundation and the other side objects, and then the judge “puts off” her ruling on the objection until the break, the end of the day or until you rest your case, respectfully request that the court make its ruling now. You’re entitled to a ruling and there is nothing in the evidence code that requires you to “wait” until you are done with your case.

In fact, it might be malpractice to do so.

You see, if you allow the ruling on the objection to be placed on hold until the end of the day or your case, and the judge rules against you, you may have forever lost your ability to lay a further foundation (ex- witness has been excused,) to satisfy the judge’s correct or incorrect interpretation of the evidence code.

Be polite but be firm on this issue. No exceptions!

How's Your Poker Face During Trial?

2011-08-31T14:51:00.000-07:00

If you want to be an effective trial lawyer, then you've got to have a good poker face and never let them see you sweat.

Unexpected witness responses and other bumps in the road (let's call these things "happenings") must not result with you displaying any signs of worry or distress. If you want to win your cases, and I know you do, then you need to avoid giving, what's commonly referred to in the card game of poker, a "tell" to the jury, the witnesses, opposing counsel and even the judge.

In most cases, it's best not to make a big deal out of an unexpected "happening" during a trial. Making a big deal or showing dismay in response to a "happening" usually results in more harm than good.

Now, having said that, if I have impeachment evidence that I can use later with this witness or during the trial, I will sometimes slow down and smile while repeating the witnesses words. In some instances, I may even write them on a large whiteboard. I do this because I want everyone in the courtroom to remember what he or she just said or did.

But, without impeachment evidence in my back pocket, I usually just put on my best poker face, play it cool, and move on just as though the "happening" never took place.

I Just Watched "The Worst Expert of All Time",,,

2011-08-15T14:45:00.000-07:00

I was at the courthouse killing time between hearings. I stuck my head in to watch a friend's trial. Opposing counsel had just called his "expert" witnesses. What I watched next was painful.

For the next hour or so, the attorney asked the expert a question and the expert answered. At first, this expert was good and obviously knew his stuff. But after the first 10 minutes everything started to fall apart. And here's why...

There is nothing, and I mean nothing, more boring and ineffective during trial than to listen to an expert talk, in a monotone voice, to a jury for an hour straight. Remember how you use to feel in college or law school when some self-centered high browed professor would talk non-stop during class or lecture? Remember how you couldn't wait to get out of the room?

Well, guess what. A jury feels the same way when listening to expert testimony. If not done correctly, it's ineffective, a waste of your client's money, and probably also a waste of your time.

The ineffective expert testimony I watched wasn't the expert's fault. He didn't know any better. But it was the trial lawyers fault for not getting him ready to offer effective testimony. With a little tweaking, this expert could have really helped the defendant's case. Instead, I think he ended up flushing it down the toilet.

Now here's a little tip that can make an otherwise boring expert effective and entertaining during direct examination. Modify it slightly and you can also use this approach with most lay witnesses.

Shake things up every 5-8 minutes by using exhibits, charts, and photographs

Plan your direct examination so that every 5-8 minutes, your witness will use a photograph, chart or exhibit to help explain his testimony. Specifically design your direct so that your expert can get up and walk over to a chart and continue with answering your questions while pointing to or describing items on the diagram. After a couple of minutes, have your expert walk back to witness stand.

Ask questions during direct that require the expert to handle a model or exhibit and physically show the jury what he's talking about. Have the expert use overheads and blowups to restate, in a slightly different fashion, important facts or issues he earlier testified to from the witness stand.

Discuss the above approach with your expert before trial. Most experts will quickly appreciate the fact that you are trying to make them look better to the jury. My experience has shown that they'll understand your goal and eagerly look forward to helping any way they can.

Then, when it's time for direct, engage your expert and complement his testimony by having him directly interact with the evidence and indirectly, interact with your jury.

Do this and at the end of next expert direct examination, not only will you have shared all your expert's opinions with the jury, but you'll have done so in a way that will have captured their attention and hammered home your issues.

"An Appeal to Reason: 204 Strategic Tools to Help You Win Your Appeal at Trial"

2011-07-26T19:25:00.000-07:00

New outstanding "must have" book by a good friend...

"An Appeal to Reason: 204 Strategic Tools to Help You Win Your Appeal at Trial”

I would recommend that every trial lawyer get Donna Bader's new book and review it before each trial. The short and concise "how to" pearls of wisdom found in each chapter WILL help you win your case and WILL show you how to protect your judgment on appeal. I think Thomas Jefferson was thinking of Donna's book when he penned his famous words, "information is the currency of democracy".

Get this excellent book by clicking here. Several more of my thoughts in this short video...

How to Tell a Good Client Bad News

2011-07-20T16:17:00.000-07:00

When it comes to giving a good client bad news, there’s a right and wrong way to go about it. Here’s an approach that has worked well for us over the past 25 years or so.

One More Thing About The Order of Witnesses...

2011-06-14T08:49:00.000-07:00

Try to end your examination of a witness at a predetermined strategic place. Your next witness should pick up where the prior witness left off with the facts or theme. This allows you to tell a compelling story through your witnesses that your jury can easily understand.

If done correctly, your jurors will be asking themselves, "I wonder who he will call next?" rather than, "when will this attorney be finished with her witnesses?"

SELECTING WITNESSES AT TRIAL- Start Strong and Finish Stronger!

2011-06-13T09:55:00.000-07:00

When it comes to deciding the order of witnesses during trial, I always like to begin with one of my best witnesses. Almost without exception, I also feel it's important to finish trial with my strongest witnesses-- that is, the witness that's going to provide the emotional knockout punch.

To me, trying a case before a jury is all about telling a story through witnesses and evidence. It's about presenting information to the jury in a fashion that not only grabs their interest, but also creates a need for them to know that happens next.

During voir dire and opening, grab the attention of your jury with one or more unexpected questions, challenges or ideas.

As the trial progresses, use witnesses and evidence to share an emotional story about your client's struggle (for justice, help, recover from injuries...) to find the answer to the questions or overcome the challenges.

In your closing, offer up eye-opening solutions to the challenges or questions and make a call for action.

Make sure your witnesses testify in the right order. Use them to help you clearly and effectively tell your story and accomplish the above.

You never get a second chance to make a good first impression and so it's important to start off with a credible witness that your jury will like. If permitted by the facts, make sure your first witnesses is someone who can help you lay a foundation and who you can walk through your complete story.

Keep in mind that this does not have to be your client. Sometimes clients are so emotionally vested in the case that they are unable to articulate the facts.

A jury will not appreciate what your client has been through until credibility is first established and foundational details and facts are first disclosed. Only after credibility is established can you can build upon emotion and general damages.

The witnesses who follow will fill in the blanks and add the missing ingredients to the recipe of your story. If done correctly, these witnesses can also be used to emphasize key facts, issues or damages.

By the time you call your last witness, your story had already been told. Focusing on love, determination, and loss, your last witness will provide your jury with an emotional experience they may very well remember for many years to come.

Summary: When it comes to witnesses order and selection, start strong and finish stronger!

______________________

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