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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     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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Expert’s deposition. While there is no substitute for being prepared, you can take an effective deposition "on the fly" by remembering five essential questions and their logical subquestions:
1. Who engaged you in this case.
2. What they ask you to do?
3. What did you do?
4. What conclusions, opinions did you reach and what do you intend to testify to at trial?
5. Where there any other test- analysis or things you could have done or would have liked to?

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We will soon come to a close of the sixth year of a new millennium…something new – something old!  We look to the future hoping that what we have learned in the past will help us make the right decisions.  We see changes in the law.  We see changes in advocacy techniques.  We see changes in our profession and the very way in which lawyers are practicing and will practice law.  Yet we must often look perhaps to events that did not occur or things that did not happen in order to figure out where we are and where we are going.  These “non-events” often provide us with the key to the truth!

    Often, counsel must prove that a given event did not occur or that a particular sound was not made or heard.  Where the attending circumstances show that it has probative force   that it is relevant and material   evidence proving that an event did not occur is admissible and may often have a devastating effect on the case.  This is “negative evidence.”

    Negative evidence is evidence that a fact did not exist or that a thing was not done, did not take place, or that a witness did not hear, see, feel, touch, taste, or smell.  Many courts consider that negative evidence lacks the force of positive evidence, since the memory of a witness is considered more reliable when he testifies to something that occurred as opposed to something that did not.  If this is true, it should go to the weight of the evidence and not to its admissibility.

    Of course, negative evidence must be relevant   that is, it must logically tend to prove or disprove a material fact.  Where the evidence is logically probative, it is relevant and will be admissible unless there is a reason for not allowing the jury to consider it.  In determining whether a fact has probative value, the fact for which the evidence is offered to prove or disprove must be identified.  The same evidence can be relevant to one purpose and irrelevant or immaterial for another.  If evidence is offered to prove or disprove a fact or circumstance which is not a matter in issue, it is said to be immaterial.

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The "smoking gun" document does not do you any good unless you can find a way to get it introduced in to evidence. You have to determine what foundation must be established to introduce the document into evidence, call the witness or witnesses necessary to establish that foundation, and be able to link the document to your theory of the case as set forth in the complaint (to establish that it is relevant).

Here is an  article by Leslie O'Tool and Wendy Sexton, two defense lawyers, which explains how your opponents intend to try to keep that smoking gun document out of evidence.

The article appeared in the Fall, 2005 edition of FDCC Quarterly, PDF page 79.

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Preponderance of the evidence. Is it more likely than not. On a 50/50 basis, does it tip the scale one way or another. That’s a much better standard than the criminal standard of beyond a reasonable doubt. But how do you get the jurors to decide a case on the preponderance of the evidence?

In general, people don’t think that way and they don’t decide cases that way.

David Ball suggests working the standard throughout the trial, from the Opening, through questioning and into the Closing. Here’s how it works:

Fact Witness

Q:  Would you say it is more likely than not that Mr. Smith ran the red light?

Q:  In fact would you say you were positive that Mr. Smith ran the red light?

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One of the most frustrating things for a plaintiff's lawyer is getting plaintiff's designation of experts and  finding only the "usual suspects," doctors whose testimony you can anticipate the moment you see their name.  In Maryland, and under the Federal Rules, a medical exam is not a matter of right and can be obtained only by an order from the court.  When the defendant requests an independent medical exam of our client (IME), we agree to the exam but only under certain conditions.  We also subpoena  the doctor's financial and other relevant records.  We do this for two reasons: (1) in many cases, the doctor refuses to respond and the insurance company withdraws the doctor; and (2) studies are showing that more and more high-priced hired gun experts are being ignored by juries.  

You may be worried that the defendant will do the same thing to your treating doctor.  In Maryland, the expert needs to be a "professional expert" before his financial and other personal information is discoverable. The lesson:  it is almost always more advantageous to use the treating doctor than an outside expert.  

If you have an uninsured motorist coverage case and your state has first party bad faith (Maryland does not) you may want to consider a bad faith claim based on if the defendant names a clearly biased expert.  See, Deese v. State Farm, 838 P.2d 1265 (Ariz. 1992) (bad faith for insurer to use biased expert); Burgess v. Mid Century Insurance, 841 P.2d 325, 329 (Colo. App. 1992). (I doubt this would really work, but I would love someone to win this claim on behalf of a frustrated Maryland lawyer whose jurisdiction does not have first party bad faith.)

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In most personal injury cases, one of the critical events is the plaintiff's deposition.  Yet many lawyers put a low priority toward preparing their client for deposition.  But if you "lose" the deposition, you are facing an uphill battle at trial.  This post is not meant to be a comprehensive list of what you should do to prepare your client for deposition.  Instead, it represents one lawyer's experience from the trenches of what often gets missed in preparing clients for deposition.  I rely more on my experience as a defense lawyer than as a plaintiff’s lawyer in this regard.

Preparation begins by spending time getting your client ready to testify at his or her deposition.  This is done by adequately preparing your client for deposition which should lead to you knowing what your client is going to say on the critical issues in the case before the deposition.   It also involves making sure your client understands that the purpose of the deposition from the plaintiff's standpoint is to do no harm.  There is no need to make your case during the deposition.  This is where some plaintiffs get into trouble.  Plaintiffs are so eager to make their case to the defendant's lawyer that they tend to overreach.  When a good defense lawyer spots an exaggerator, the lawyer will continue to ask questions that encourage further exaggeration.  At trial, your client is boxed into a story that no juror will believe.  If you are preparing your client for deposition and you are not sure if you believe something they are telling you, flush it out until you are satisfied the client is giving an honest version of the facts.  Make sure your client reads and rereads his or her interrogatories before his or her deposition.

Other suggestions:

1.         In motor vehicle accident cases where liability is in dispute, time and distance are often critical. Guesswork can discredit an honest truthful witness and/or introduce controversy where it need not exist.  Take the time before the deposition to obtain exact measurements and site line distances.  Make sure your client's version comports with a reasonable interpretation of the physical facts.   Left to their own devices, some clients who are trying to be as honest as possible still give ridiculous time and distance estimations simply because they are not good at making such estimations. 

2.         Many personal injury clients fail to appreciate the difference between a deposition and a trial. Explain to the client that the primary goal is to do no harm.  But also explain that while the defense lawyer is not your friend and is trying to elicit answers to help defendant's case at trial, the defense lawyer may be influential from a settlement perspective. Counsel the client to afford the defense lawyer the respect to which they are entitled even if the client feels it is not always being reciprocated.

3.         Draft the 10 most critical questions that the defense lawyer may ask.  Ask your client to answer the questions under "test conditions."  If the deposition will be at your office, ask the questions of the client in the exact chair in the conference room where the deposition will be taken. 

4.         Keep in mind that clients are prone to forget prior accidents and injuries.  Get a claims history of every client that is going to be deposed. Ask the client about his or her claims history before sharing the results of the search with the client.  It gives you a good baseline for the client's penchant for honesty or the strength of the client's memory.

5.         For a variety of reasons that vary from client to client - pent up anger, a desire to be in command and control or a need to impress the defense lawyer with their intelligence - it is the rare client who does not offer boundless gratuitous information.   For some clients, months of preparation would not turn off the faucet.  But, in preparing your client for deposition, he or she must understand that random information that does not directly address the question may lead to the discovery of additional information that is not helpful to the case.  Underscore and underscore again that less is more.  There is, however, one caveat I think is important; the client should not take answering just the question to the extreme, particularly if the questions are for general background.   If the question calls for obvious follow up, instruct your client to give it.  If the defense lawyer is asking a simple question, such as "Do you know your wife's birthday?",  a simple "yes" without offering the date sends a message to the defense lawyer that the witness wants to do things the hard way.  A lot of defense lawyers are simply going through the motions in a deposition.  Do not start a confrontational relationship.  Let sleeping dogs lie.

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