Trial Lawyer Resource Center

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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Another guest post from Howard Spiva of the Spiva Law Group. Howard is currently the President of the Southern Trial Lawyer's Assocation and a very talented and successful trial lawyer from Savannah, Georgia.

My favorite way of "adjusting" my own attitude is to refer to quotes. Often times who said the quote is as important as what is said. One of my favorite is by Christopher Reeves, who said, you can stay in the shallow end of the pool or choose to go out into the ocean. Below I have assembled some other examples.

A few years back, a dear friend of mine and I started assembling 1000s of quotes. We narrowed them down to 100s. We then ran a daily quote in the Savannah newspaper. Many people cut the quotes out and collected them.

This man was Kerry Randall. Kerry really touched my life. Kerry is no longer with us and I miss him dearly. Together Kerry and I also made up some quotes of our own. I invite you to read these quotes, share them, repeat them and please feel free to add to the list.

Attitude is everything! - Quotes Assembled by Howard E. Spiva

Don't wait. The time will never be just right.
- Napoleon Hill

You can stay in the shallow end of the pool, or choose to go out into the ocean.
-Christopher Reeves

Don't let the start stop you from being successful. It's often the start that stops people.
- Howard Spiva

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Plaintiff lawyers often struggle with determining how to best prove and argue damages during trial.  This is especially so when it comes to proof and argument of “physical pain and suffering.”  On the other hand, defense lawyers for insurance companies and manufacturers concern themselves with determining the right methodology to use at trial in order to defeat plaintiff’s claims of various types of damages.  Advocates on each side are in a constant tug-of-war simply trying to figure out how to enhance or diminish damages during the trial and certainly during summations.  One method to consider in your upcoming trials is that of the “pain equilibration” method of proving and arguing damages.

    The “pain equilibration” method of proving and arguing damages can be described as follows:  It is a method whereby plaintiff’s counsel, through expert testimony, demonstrates the comparative pain of plaintiff “as compared to” similar forms of pain caused by other types of trauma or pain-inducing instances.  Pain equilibration is a method utilized to compare pain of various types to a common denominator amount of pain.  The common denominator for equilibration is the pain medication used for analgesia pain relief.  What you are trying to do is simply provide the judge and jury with a method of understanding a quantification of pain in a description which translates to accepted, common pain types and for which a well-agreed-upon dosage amount of medication is used for analgesia.  This method will assist the judge and jury in understanding the level of pain and suffering experienced by the injured person requiring pain relief.

    Consider this:  If the trial advocate is attempting to show the excruciating pain that her client has endured both before, during, and after a three-level cervical fusion, wouldn’t it be helpful to the jury if the advocate could prove that, for example:  The pain Mary has endured during this 24-month period is equal to the pain a woman would endure in going through 91 hours of labor?

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In researching a post yesterday for the Maryland Personal Injury Lawyer Blog, I stumbled upon the law review article SYMPOSIUM: COMMUNICATING WITH JURIES: Whipped by Whiplash? The Challenges of Jury Communication in Lawsuits Involving Connective Tissue Injury, 67 Tenn. L. Rev. 569 (2000). The article addresses the sometimes understandable problem plaintiffs' lawyer have in bringing soft tissue injuries to a skeptical jury.   Most Maryland personal injury lawyers, do not bring many soft tissue claims to a jury because Maryland jurisdictional limits are such that connective tissue injury cases are usually tried before a judge (except in Baltimore because the district court judges are conservative and the juries are more liberal, many lawyers file what should be district court cases in circuit court).  But the article made a number of interesting points that I thought many would find of interest:

 1)  The neck brace, which is obviously a common treatment for soft tissue neck injuries, appears to be a real lighting rod to jurors who view a neck brace as a potent symbol of fraud.  The author contends that a neck brace "exacerbate[s] distrust and hostility., quoting one mock juror "I may see somebody with a neck brace. My first reaction is I don't believe you....."    This does not surprise me.  I had a case where a Baltimore City, jury awarded my client $300,000 and still on of the juror's told counsel later he believe she was faking her injuries to some extent.  (The stunned defense lawyer asked incredulously  "Then, sir, why did you give her $300,000?!"  You had to be there but it was one of the funniest moments of my legal career). 

2)  Although there are studies that cast at least some doubt to this premise, the amount of damage to the vehicles in a car accident case are a crucial determinant of whether an injury is perceived as legitimate and serious.  One participant comment that "Nowadays, the cars are made, they just bump into each other and there's gonna be some kind of damage. They just look at each other and they break. So, I mean, if there's no damage to the cars, it's kind of hard to think it'd be hard enough to injure anybody."

3)   The article cites a poll that provided a systematic opportunity to ask potential jurors about their general views of the severity of different types of injury.   Below is a table that provides the average rating given for different types of injuries that occur in automobile accident cases. The ratings are interesting and have some implications for communicating with not only with juries but also judges in bench trials.

 Ratings of Injury Severity/Type of Injury Mean Rating of Severity

Trauma to internal organs 8.64
A ruptured disc 8.28
A back injury 8.07
A neck injury 7.97
A herniated disc 7.80
Bulging discs 7.67
A nerve injury 7.54
A broken bone 6.44
Whiplash 6.20
A connective tissue injury 5.91
Hyperflexion 5.33
A muscle injury 5.08
A soft tissue injury 4.65
Trauma to the skin 4.44
A skin laceration 4.00
A strain 3.77
A sprain 3.48
A bruise 2.38

Honestly, I'm not sure quite what to make of this information.  But when I have to try a case that involves on some level subjective complaints of pain, I'm going to refer back to this post to consider the language I use when presenting plaintiff's case. 

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I recently  learned of a website for defense trial consultants Trial Behavior Consulting. They have a number of articles and presentations they’ve given. Most of the information matches what I already know and shows how to exploit the information from the defense side. Sarah Murray identifies some concerns that jury members have in her article Strategies for Minimizing Damages:

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I just got back from the Southern Trial Lawyer’s Association Fall Retreat. Howard Nations reminded us not to ask the jury to ‘compensate the victim’. A large percentage of the jury thinks that the defendant is the victim! Regardless of how badly your client was injured and did nothing to contribute to the injury, the person that caused the injuries is the victim, because he’s being sued. Ah well.

 And of course, by now we all know now not ask for a jury award. Award is too much like reward, as in ‘jackpot justice’ and ‘litigation lottery’ terms commonly used by people trying to coopt our legal system. (Reform is far too inappropriate a term for it).

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To enhance a theme, repetition and anchoring can be used to enhance the the impact and recall of the fact for the jury. Howard Nations talks about anchoring in his great article on themes:

Anchoring Through Repetition - Anchoring is a well accepted psychological technique. Anchoring is a technique whereby a word, a phrase or a theme is repeated. It is repeated from the same spot, with the same gestures, with the same facial expressions, the same tone of voice, and with the same mannerisms. One use for anchoring that everyone can remember was done by the late great Jack Benny, who had a certain way of folding his arms, putting his hand under his chin, and saying the word, "Well...." Pretty soon he was getting laughs without saying the word and then he did not even need to put his hand under his chin. He just used part of the gimmick and the anchor worked.

 

 

Anchoring causes an association of the subject matter anchored with an emotional response that is initiated by the repeated use of the anchoring technique. In essence, it communicates our theme impactfully on an emotional level. Because of the pipeline, the theme is easily recalled and therefore is more likely used. …

 

 

While understanding and using these techniques is no guarantee of success, they give the advocate who knows and understands them a persuasive edge. And in this age of high powered litigation in both large and small cases, any edge that an advocate can achieve is one he or she should have. It is our job to present our client's case in the best light. We can achieve this most effectively by increasing our understanding of how to communicate simply with jurors on all of the levels through which they receive information.I was going to say that the whole article is worth a read, but actually ALL of the articles on Howard’s site are good reading.

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I’ve been reading a goodly amount about George Lakoff and cognitive science. If you haven’t been following cognitive science, George explains it below:

One of the fundamental findings of cognitive science is that people think in terms of frames and metaphors -- conceptual structures like those we have been describing. The frames are in the synapses of our brains -- physically present in the form of neural circuitry. When the facts don't fit the frames, the frames are kept and the facts ignored.

It is a common folk theory of progressives that "The facts will set you free!" If only you can get all the facts out there in the public eye, then every rational person will reach the right conclusion. It is a vain hope. Human brains just don't work that way. Framing matters. Frames once entrenched are hard to dispel.

That’s why issues like sequencing, as Greg Cusimano suggests are so important. Cognitive science is a matter of breaking down and proving the power of story telling that we trial lawyers have known of all along.

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I have always loved this Thoreau quote: "Some circumstantial evidence is very strong as when you find a trout in the milk."  Henry David Thoreau, 1817-1862, W. H. Auden and Lewis Kronen Berger, The Viking Book of Aphorisms, 1962.

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