Trial Lawyer Resource Center

My friend and fellow consumer justice lawyer Joe Watkins wrote this in response to the zero verdict today in that case better known as the crazy pants lawsuit:

The administrative law judge, Roy Pearson of Washington DC, who sued a drycleaners over a pair of pants lost in court today. 

This news comes to no surprise to the President of the Georgia Trial Lawyers Association (GTLA), Joe Watkins.  “Just as we anticipated, the Civil Justice System worked today.  The Judge presiding over the case ruled in favor of the drycleaners—and against the man at the center of this ridiculous business dispute.”

Pearson filed suit against the drycleaners for $54 million after alleging that they lost a pair of his pants. “The suit itself was ludicrous.  As an attorney for 30 years I am aware of the dangers that this type of sensationalism can generate.  The general public cannot help but be engrossed in its details.  Now that the decision has been reached, the general public can bask in what is just another example of the Civil Justice System accurately and fairly working for us all,” said Watkins.

The attorney representing the drycleaners was Chris Manning, a member of the American Association for Justice (AAJ), the national affiliate of GTLA.  AAJ has been sharply critical of Judge Pearson’s lawsuit.  In April, AAJ CEO Jon Haber called on the District of Columbia Bar Association to conduct a disciplinary investigation of Judge Pearson for his conduct in this matter. Haber and AAJ President Lewis “Mike” Eidson pledged to support the defendant’s defense fund and encouraged the AAJ membership to also contribute.

“It is our hope that the resolution of this case garners as much media attention as it did when it was filed.  The public deserves to know the how the Civil Justice System works on their behalf,” said Watkins.

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The more cases I try and the more I read about trial strategy techniques and tactics, the more I realize trying cases is an art and not a science.  Because two smart effective trial lawyers can take very different approaches in trying a case. 

From the time I was sitting in trial advocacy in law school, I have always heard and applied the theory of taking the sting out of your client's cross examination by introducing in direct testimony harmful facts that you knew were going to come up in cross examination.  The theory is that exposing the flaws in your own case scores credibility points with the jury and that you can frame your weaknessess better by getting out your own version of the story first. In their book Sponsorship Strategy: Evidentiary Tactics for Winning Jury Trials, Robert Klonoff and Paul Colby disagree. Their premise is that contrary to conventional wisdom, lawyers should not bring out the weaknesses in their own cases but instead elicit only favorable evidence for their case. Their theory is that you actually lose credibility by bring up your own weaknesses and that the cross examining lawyer often looks petty and nitpicking by bring up much of what you felt compelled to get out the sting of in your direct.

I disagree. But I think the theory is interesting, particularly as it applies to monies paid to expert witnesses.   I think it is helpful to read theories about trial tactics with which you disagree as well as those things you might apply because it gets you thinking creatively about what you are doing as a lawyer when you are trying a case. This process makes you a better lawyer.

Sample direct examination outlines and sample direct testimony questions and other sample trial materials are available at the Personal Injury Help Center which has outlines and sample direct examinations of personal injury plaintiffs and expert witnesses.

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     Too many personal injury lawyers view properly preparing their clients for their depositions as an unskilled part of their work. In terms of both future settlement opportunities and likelihood of success at trial, your client’s deposition is the single biggest event. This blog post is meant to give some thoughts on thorough preparation of clients for their depositions. I’m going to save the obvious, ‘listen to the question’, ‘answer the question posed’, ‘don’t guess’, etc., type of advice. Instead, I’m going to offer some random thoughts on what I believe personal injury lawyers need to place more focus on in getting their clients ready for deposition

1. Remember the goals of the deposition. These are twofold: (1) do no harm, and (2) make a good impression on the defense lawyer. The most important goal is clearly to make sure your client will not give testimony that will render the client ineffective at trial. The secondary, but also important goal, is to make a quality impression. Many defense personal attorneys believe that this presents a real opportunity to better appreciate who the Plaintiff really is and whether the Plaintiff will make a quality impression in front of the jury as a person entitled to significant compensation for their injuries. If the injury victim does not appear honest and sympathetic at his/her deposition, most defense lawyers realize the same will hold true at trial. Rarely does a client present a better impression at trial. Conversely, if the client is good, honest and sympathetic, the case often becomes a lawsuit, because computer programs (like Colossus), which are used to calculate damages, cannot measure real human suffering. Good defense lawyers know that juries can and do appreciate human suffering, and they include this in the evaluation to the insurance adjuster.

2. Articulate the goals. Explain the goals of the deposition to your client and underscore the importance of the deposition to them. Certainly, it might make the client more nervous, and I’ll touch in on that in a moment. But clients should be made to feel that they have some control over their case, and those who do will take the process seriously.

3. The defense lawyer is not your friend. Remind your client of this. Clients come in to depositions feeling nervous, expecting the defense lawyer to be a monster. When they find the lawyer is a decent man/woman, they often overreact and a lovefest can ensue. You make the problem worse when you are genuinely friends with opposing counsel, and start asking how little Molly’s softball game went the week before.

4. Conversely, while remembering the defense lawyer is not on the client’s side, the client should also know that it is important to be courteous to the insurance company's accident attorney or medical malpractice defense lawyer. Besides their mothers’ motto that it is always a good time for good manners, it is also important because the insurance company's lawyer knows that juries award compensation to injury victims who are good people who are hurt, not angry people who are bitter about their injuries.

5. Tell you clients it is okay to be nervous. Remind them that the defense lawyers (and jurors) see past how nervous the client is, and past all of the distractions, and do get a decent sense of what happened. Tell them not to fight it. (Paradoxically, of course, this relaxes the client anyway.)

6. Equivocate. Tell you client to skip words like “never” and “always.” Make sure the client avoids absolutes when there are really not absolutes. Absolutes just box in the client at trial.

     These are my thoughts. Click on the links if you want to see sample depositions, or other sample discovery.

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