New Trial Tech from David Ball, Don Keenan, Jim Fitzgerald and Gary Johnson



With his Damages book, David Ball gave plaintiff’s attorneys a structured way to talk about damages and to present a case from opening statements throughout the trial. It wouldn’t be an overstatement to say it revolutionized the courtroom for many plaintiff’s attorneys.

Following on the heels of that, Rick Friedman and Patrick Malone gave us Rules of the Road, a systematic way to approach liability. I liked Rules of the Road because it spelled out a number of things that I had been doing intuitively, but it gave a structured way to repeat and handle cases.

Well, there’s a new book coming out this weekend: REPTILE: The 2009 Manual of The Plaintiff's Revolution. If you click on the link, there’s a review from Lawyer’s USA in pdf format.

They did a ton of research and based on neuro psychology or cognitive psychology, have found a way to turn tort reform on it’s ear. A lot of people do not want to give money to ‘greedy plaintiff’s’ and ‘jackpot justice’, but if you show them community standards and how the defendants violate community standards, and how that affects the juror and their family, they will make the defendants pay.

Interestingly enough, people that were strongly against civil litigation and big advocates of ‘tort reform’ would still give solid verdicts when using this system.

A lot of research has been done in the past 10–15 years on social sciences, how people think and how people actually make decisions. The research in this book is based on deep in the id, the reptilian response to situations, which the ‘fight or flight’ syndrome is based on.

The book is coming out this week and I’ll be going to a seminar in Atlanta on it Friday and Saturday put on by Don Keenan and David Ball. I’m excited and looking forward to seeing what they’ve come up with. It meshes with everything I’ve read on NLP, neuro psychology and cognitive psychology. So it should be good…..Plus, it’s hard to argue with the track record of the authors.

Here is information for the Atlanta Seminar on May 8–9, although it might be too late to sign up. If you miss it, David Ball is giving the seminar in Dallas on June 12, 13.

If you just want the book, you can get it from their website, from Don Keenan’s publishing company, or from Barnes and Noble. It’s not on Amazon yet or Trial Guides, yet.

I’ll report back after the seminar. A lot of it is plaintiff’s attorneys only, so I might not be able to give all of the scoop, but enough to give some pointers (with the author’s permission) and enough to let everyone know whether it’s worthwhile.

Posted inDecision Making, Themes / Arguments, Trial Techniques |Comments (0) |Permalink


One of my favorite parts of being a trial lawyer is negotiating. Getting the other side to pay more than they wanted to. In doing this for nearly ten years, I’ve picked up a few tricks of the trade. I am consistently getting about 20% more for the same case than I would five years ago.

But it’s not something that I can realistically blog about. Let’s say I settle a case for $50,000. Maybe it was a case that I thought was worth $40,000 and negotiated it like crazy and got $50,000 for it. I then blog about it and the other side who thought they  might have done a pretty good job goes “Hey. Dave thought he got over on us….Next time, we’ll have to dig in harder.” Not good for my clients.

Or, let’s say I settle another case for $50,000. I had thought it was a $60,000 case and really, really wanted to get more for the client, but for whatever reason that was all we could get (…and don’t say Allstate). Well, if I blog about that, then people would say “Hey… this situation, Dave let his client get held over a barrel and so I bet we could do it to.” Again, not good for my clients.

And while over a period of time, you can get a pretty good feel for what a case is worth, you never know how much is on the table and whether you got all, or nearly all of it. And when you finish the case, all you can do is cash the check and give the money to your client. You can’t call up and say “How’d we do? Did you hold out on us and make your client happy? Did we settle to easy? Or did we get everything that was there?” Of course, they can’t tell you that, because it would be giving away their secrets just like blogging about negotiating would give away mine. Ah well… some fun stories that can’t be told.

Posted inSettlement, Trial Techniques |Comments (0) |Permalink

Should You Videotape a Doctor's Deposition?

The best surgeons are best at surgery. Some of them are good speakers, some of them can teach, some of them can educate. A lot of them can’t. While it’s important for everyone in every profession to be able to get their point across, not every one can.

It’s good enough for good doctors to be good doctors. However, we have to explain to the jury the mechanism of the injury, the treatment, causation of the injury and other medical issues to people unfamiliar with these topics.

Some doctors can explain things better, some can’t. It’s as simple as that. If I can’t have the doctor at trial, I would prefer to have a good, credible, well spoken doctor on videotape. If the doctor hems and haws, is uncertain of his or her opinions or has not reviewed the file, it’s probably better to just take the deposition and not videotape it.

David Ball is of the opinion that trials are human events and that it is better to read the deposition in to the record and have a live person read it, than have a talking head on a big screen.

I think in the long run it comes down to a judgment call.

Posted inPresentation, Trial Techniques |Comments (1) |Permalink

Myrtle Beach Lawyer Returns from AAJ Ultimate Case Workshop

I just got back (well a few weeks ago), from AAJ’s Ultimate Case Workshop in Charlotte, NC. Wow, what a great experience. I can’t talk about specifics, but there were a few things I got the okay to share and I can share some of my general impressions from the workshop.

After some lectures from some of the top people in the country. Eric Oliver author of Facts Don’t Speak for Themselves, Howard Nations, Paul Skoptur, Phil Miller, Robert Bailey, plus a host of others, we were broken up into groups. My group had 3 other cases in it. We all had premises liability cases.

The rest of the weekend was spent reviewing the cases, helping each other with the cases and focus groups on the cases. Each case got two focus groups. Altogether we sat through 8 focus groups on similar (or at least moderately similar) cases. Plus lots of great advice and pushing and pulling on the cases. Great, great experience.

There were a number of people that were there for their third or fourth time. I will go next year with a different case. Oh, and in addition to the instructors all of the lawyers there were very talented, very nice and I got a lot from talking to them as well.

Posted inMisc, Themes / Arguments, Trial Techniques |Comments (0) |Permalink

Book Review: The Art of Learning

The Art of LearningI just finished reading the Art of Learning by Josh Waitzkin. Josh was the young chess prodigy that was featured in the movie Waiting for Bobby Fischer. Well, Josh has gone from winning a number of National chess championships to moving to Tai Chi, a martial arts. He’s won a stack of National Championships in Tai-Chi and some World Championships in Taiwan.

Josh has written a book about his learning and performance styles that have taught him to excel. The thing that stuck out most in my mind is how aggressively he has looked at his weaknesses, or taken any time that he has been beat and rather than running away from it, ignoring it, or pretending it didn’t happen, he would turn straight into the weakness and turn it into a positive.

One example was that when he was playing chess, he didn’t do well with distractions. Most people don’t. Some of the ‘diry players’ would purposefully kick him under the table and then act innocent, hum a tune and the pretend nothing happen when monitors were around and so forth. So instead of trying to call them out on it, or jump up and down and complain, Josh realized that this was 1) taking him out of his game and 2) giving the poor sports a leg up. So he started training with distractions and found a way to get into a ‘soft zone’ and eliminate this ‘advantage’.

Good stuff about a highly talented person that is constantly measuring himself and finding ways to improve. This is one of the best books I’ve read not only this year, but ever.

Posted inDecision Making, Misc, Practice Management, Trial Techniques |Comments (5) |Permalink

Some Thoughts on Interrogation and Questioning

I was an interrogator for the U.S. Army for 7 years and taught interrogation for 3 years. I learned a lot. Some of the things I learned that can be applied to being a trial lawyer:

  • Proper Questioning: Ask the question you want the answer to. We speak in a lexical shorthand and are not as precise as we need to be. Common speaking habits allow for ambiguity between the question being asked and the question being answered. Good questioning techniques can eliminate this.
  • Control Questions: We always checked the answers for external and internal consistency. Internal consistency was whether the story was consistent with what the person being questioned had told us earlier and external consistency was whether it matched with known facts.
  • Control of a Witness: When a witness’ story did not match, bringing them back in line, simply and easily.

These were good skills to learn and helpful in depositions and cross examination. I used to tell people that interrrogation was much more psychology and good questioning techniques, than the torture you saw in Rambo movies. I used to tell people that the United States followed the Geneva Conventions and the Hage Laws of Land Warfare. Unfortunately, I can’t say that anymore.

But the questioning skills that I learned as an interrogator have been invaluable.

Posted inOther / Misc, Trial Techniques |Comments (0) |Permalink

Effectiveness of MRI's on Diagnosing Spinal Problems

We have a guest post from David Ketroser. J.D., M.D. an attorney/doctor from Minnesota gives the following advice on backs and imaging:  

There is extensive literature documenting that spinal imaging is essentially worthless for anything but showing what is causing the radiculopathy after the clinical diagnosis of radiculopathy has been made.

 Of the two causes for 98% of the patients with chronic headaches, neck and/or upper back pain (facet joint or discogenic pain), an MRI, CT or myelogram is incapable of distinguishing asymptomatic patients from those with pain.
Continue Reading Posted inMedical Info, Trial Techniques |Comments (1) |Permalink

Once You Have the Answer You Want. Leave it Alone.

Some excellent advice from Evan Schaeffer at the Illinois Trial Practice Blog:

Once you get good testimony at a deposition, you're best to leave the testimony alone. Take the good answer from the witness and move on.

It seems like obvious advice, but some lawyers can't wait to read the good answer in the printed transcript. Perhaps not believing their good fortune, or perhaps wanting to relive the excitement of the five minutes when everything was going their way, they return to the question again a little later in the deposition. They ask the question to which they got a good answer a second time.

Why give the witness a chance to change or explain his answer? I can think of only a couple of reasons, neither of them very good: (1) You're not sure whether you've pinned the witness down or (2) you can't remember what the witness said.

I have to say that I’ve seen this more than once. When you get good testimony, don’t give the witness a chance to rehabilitate himself.

For more information on depositions, check out Evan’s excellent book: Deposition Checklists & Strategies.

Posted inOther / Misc, Trial Techniques |Comments (1) |Permalink

Two Books on Building Cases

In a recent discussion, Kenn Suggs recommended the following books:

Ken’s not only a past President of AAJ, but also a helluva trial lawyer. So when he takes the time to give advice, I listen. My copies of those books just arrived from Amazon and I’ll write more about them as I read them.

Thanks for the tip, Ken.

Posted inDecision Making, Themes / Arguments, Trial Techniques |Comments (2) |Permalink

How to Challenge an Expert with Excellent Credentials

In DesKuys v. Berkowitz, the plaintiff received a $1 Million Dollar Verdict.

Bernard Smalley obtained a million dollar verdict after the defense lawyer argued that his expert witness, with an 86-page resume, must be believed.

In rebuttal, Bernie told the jury that Richard Nixon had a longer resume, and he lied. Ouch.

The moral of the story is that a long resume doesn’t always equal credibility.

Posted inThemes / Arguments, Trial Techniques |Comments (1) |Permalink

Don't Keep the Jury Waiting

Fellow trial attorney Ronnie Richter was recently on jury duty and had the

I was recently called for jury duty in Charleston County.  I did not get picked (surprise) to sit on a jury, but was called on 3 separate occasions to the jury assembly room.  I spent my time trying to observe and listen to what was being said.  I offer the following observation to my brother and sister trial lawyers.

Forcing the jury panel to wait absolutely sucks the energy out of them.  We are doing ourselves a GRAVE injustice when we arrive at the courthouse and continue a dialogue with the court or opposing counsel that causes the jury to wait.  On one occasion, we were asked to report to the assembly room by 2:30.  By 2:40, you could feel the tension, and comments such as “now they are on my time” were overheard. 

When the judge showed up a little late and commented that he and the lawyers were working, the jury muttered “yeah, but you’re getting paid.”  On another occasion, we were asked to report by 9:30.  The clerk did not appear until 10:00.  In the interim, I overhead the jury commenting on how much lunch cost the day before and how much money their service was costing them. Continue Reading Posted inPresentation, Trial Techniques |Comments (0) |Permalink

Try a Medical Mis-Management Case

I have a number of notes from seminars that I’ve attended the past year and I don’t know where the information came from or who said it. It’s good stuff, so I  am going to post it without attribution. Please let me know if you’re the one the information came from and I’ll change the post to reflect that.

Medical malpractice cases are becoming harder and harder to win. Doctors have done a good job of publicizing the ‘problems’ with medical malpractice, how their insurance is too high and how they’re being run out of the state because of the bad environment.

Of course, if you go to the doctor’s parking lot of any hospital, you’ll see a lot of BMW’s, Lexus’s and Mercedes’. You won’t see a lot of 1976 Ford Pinto’s, or 1982 Taurus’. And of course, if it is so bad in this state, they don’t say where it is better for the doctor to go to. Also, when all of the doctors are being run out of the state, the State Medical Board shows more and more doctos coming into the state.

Regardless of the facts, the ideas are still in the head of the jury pool.

Try calling your case a case of medical mis-management, instead of medical malpractice. The idea of malpractice in the jury’s mind means that the doctor was wrong. That he was intentionally wrong. That the Plaintiff is blaiming the doctor for being wrong. That the jury has to blame the doctor for being wrong. That the doctor was a bad doctor.

Juries are reluctant to do that. Instead, call it a case of medical mis-management. That the doctor made an error and didn’t manage the case properly.

 Everyone, has seen good people mis-manage things at times. It’s a way for the jury to find for the Plaintiff wihout blaming the doctor as much.

Posted inThemes / Arguments, Trial Techniques |Comments (3) |Permalink

I Know Nothing!

Sgt Schultz

 What do you do when a corporation

  • Doesn’t do an inspection?
  • Doesn’t have any incident reports?
  • Doesn’t keep any records?
  • Doesn’t know what employees were working at the time of the incident?
  • Doesn’t have any document creation or retention policy?
  • Doesn’t have any written policies or procedures at all?

Or to put it a Southern way. What do you do when a corporation doesn’t know nuthin’ about nothing?

We’ve all encountered situations like that, both in life and the practice of law. We had a situation of that nature and for a demonstrative exhibit at closing arguments, we had a blow up of Sergeant Schultz from Hogan Heroes.

What kind of person can know absolutely nothing about nothing? One who is purposefully and studiously looking the other way. It’s hard to make a man see, when he makes his living by being blind.

Posted inPresentation, Trial Techniques |Comments (3) |Permalink

Do You Talk Like a Talking Head?

I went to a seminar awhile ago and gave a presentation. There were a lot of accomplished presenters there that had very impressive academic backgrounds. I looked forward to listening to what they had to say. But you know what? They didn’t say anything.

They covered their background, told an anecdote or two that was totally unrelated to the topic or helpful to the audience in anyway (because it didn’t share helpful information, it conveyed how clever the speaker was). Much of the talk included gobbledy gook language. Every profession has their own lingo, but talk English to people. Hopefully as trial lawyers we’re better at this than most.

One of my favorite questions is “What does that mean?” I was at LexThink a few years ago and talking to someone and asked him what he did. He gave me a rambling corporate speak that really didn’t tell me anything. Okay. What does that mean? Again random corporate speak. Okay. What does that mean?

I had to ask him three times what that meant before I got anywhere close to an answer. The answer was we deal with standardizing innovation and new ideas, so that people can respond to them, improve them and have an objective way of determining which are the best ideas, which are working and which are not. Ahhhh….well, then. That’s pretty cool. Then just say that.

When he first started talking, such gibberish was coming out of his mouth that I was thinking to myself “This guy is either a genius, or an idiot, but I can’t figure out which one”. It turns out that he’s a genius. He used to work for one of the big 8 accounting firms as a senior consultant and he was really doing neat stuff. But he had a hard time saying that.

Make it simple. Talk like a person.

Posted inPresentation, Trial Techniques |Comments (3) |Permalink

Frivolous Lawsuits and Frivolous Defenses

If you’re in a jurisdiction that allows voir dire (South Carolina doesn’t), here are some ways to combat the defense talking about frivoulous lawsuits:

  • Acknowledge Frivolous Lawsuits – Get them talking about them. “Who here doesn’t like frivolous lawsuits? Please raise your hand.” And then raise your hand. My client and I don’t like frivolous lawsuits, it’s taken us two years to get to trial. What makes a lawsuit frivolous? Do you think that all lawsuits are frivolous? If someone was seriously hurt do you think that would be frivolous? What would you want them to show to make it a real case? The key is to
  • Ask About Frivoulous Defenses – Here’s the key. “Do you think that only the people hurt bring frivolous lawsuits? Do you think big companies/insurance companies… sometimes file frivolous defenses? Do you think that sometimes they fight legitimate claims just so they don’t have to pay them?”

By asking about frivolous defenses, you do several things. You get the jury members thinking about defendant misconduct, plus you get on a more ‘equal footing’ with the defendant. Instead of just thinking about the McDonald’s coffee case, they’re also thinking of corporate misconduct and you have a much more fair environment.

Posted inDecision Making, Trial Techniques |Comments (2) |Permalink

Practicing Good Faith

Frequently, an insurance company won’t deal with the facts that are presented. They’ll pretend that the facts don’t exist or don’t apply to them. Some of this is posturing, but taken to an extreme it can show bad faith on the part of the insurance carrier.

In dealing with a difficult insurance company it’s important to document what has been done and what the phone conversations are. Some of my friends call this setting the insurance company up for a baf faith claim.

I prefer to give the insurance companies an opportunity to practice good faith. I prefer to document what the situation is and believe that the insurance company will do the right thing. A lot of times they do. Sometimes they don’t. But I find it better to think in terms of giving the insurance companies the opportunity to practice good faith.

If the company will still not do the right thing, then you can still file a bad faith action and everything will be documented, but I try not to assume that the insurance company will not do the right thing if the correct facts are shown to them.

Posted inSettlement, Trial Techniques |Comments (0) |Permalink

Be Careful of Ultimatums When Negotiating

The Cat Goes or I Do


When you are negotiating, you want to have a strong position.

However, you don’t want to put yourself in a position where you can’t change your position and don’t have room to maneuver.

You also don’t want to issue an ultimatum that you aren’t afraid to back up.

Sometimes during the negotiating, you will have to reach an impasse and have to file suit or go to trial, but you want to leave yourself an out for further negotiations.

This classified ad shows what happens when you issue an ultimatum and the other party calls your bluff. I’m not certain this is a real ad, but it looks and feels like it is.

Posted inDecision Making, Settlement, Trial Techniques |Comments (0) |Permalink

How to Ask a Vague Question

I was in depositions yesterday on a car wreck case. There was a dispute about how the collision occurred. The other side disputed how the responding officer stated the collision happened. Honestly, the other side was not a good historian, was a bit cantankerous and the deposition lasted much longer than is typical in this situation. After his deposition, we took the wife’s deposition and had the following exchange:

Q: You were present for your husband’s deposition and heard everything he said?

A: Yes.

Q: Do you agree with everything your husband said?

A: Good heavens, No.

Q: Let me reprhase that. Regarding how your husband described the car wreck, the speeds, and the position of the vehicles at the time of collision, do you agree with all that?

A: Yes.

Sometimes you have to be more precise. (I typically don’t like compound questions, but I already knew that she didn’t have an opinion that was different than the husband’s).


Posted inPresentation, Trial Techniques |Comments (0) |Permalink

Great Book on 'Tort Reform' (Corporate Welfare)

I’m reading an amazing book. Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue by Stephanie Mencimer.

The book talks about how the Chamber of Commerce has used a concerted effort over a period of twenty five years to take away people’s access to the courthouse. As a plaintiff’s attorney, I was aware of the basics, but she really does a great job of detailing how the Chamber of Commerce used tactics from the tobacco lobby. They also used ‘astroturf’ tactics from political situations, using ‘pretend’ grassroots organizations to show ‘popular’ support for a corporate cause.

You have to love a book that starts with the John Adams quote:

“Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

Stephanie also writes the excellent blog, the Tortellini, that gives tort reform update.

Other great articles by Stephanie include the following:

A lot of, lot of great information, and detailed investigative reporting from Stephanie. Thanks for fighting the good fight.

Posted inCorporate Welfare, Trial Techniques |Comments (0) |Permalink

Taking the Jury With You

WeeblesIn the current issue of SCTLA’s Bulletin, Vernon Glenn of Charleston, writes an article of what works for him. There’s a lot of good stuff in there, but one tip particularly struck home with me.

Vernon suggests getting an empty egg carton and filling it up with Weebles. Getting 12 Weebles (or other generic characters) to fill up the carton. Some old, some young, some with differing ethnic characteristics and a diverse background.

When doing trial prep, have the egg carton with your little jury on it front and center and think about how the arguments would sound to various members of your jury.

When not doing trial prep, Vernon keeps his egg carton jury sitting on his desk, so that they will ‘see’ all of his decisions and he will keep their deliberations in mind. What a great idea!

Vernon also writes the fabulous Vernon Holds Court. A well written, but intermittent on-line newsletter. I’ve begged him to put in an RSS feed, but he’s not quite there yet. Hopefully, we’ll get him in the rank of bloggers soon.

12 eggs in a carton. 12 jurors in a jury. Coincidence? I think not.

Posted inOther / Misc, Trial Techniques |Comments (1) |Permalink

Making Transcripts of Client and Witness Interviews

When putting together mediation packages, I had been using the following method for obtaining transcripts of witness statements:

1. Have Investigator Call Witness and Create a Recorded Statement in Digital Format.

2. Investigator sends Digital Statement to My Office using

3. Transcribe Digital Statement by sending it to

Today, I had an even better idea.

1. Call the witness on the phone.

2. Using conference calling, add as a "third" caller.

What does this do?

You question the witness and at the end of the call hang up. Between 15-30 minutes later, you'll have a transcript of the interview e-mailed to you along with a digital recording of the conversation. You get the automatic recording and the transcript in one fell swoop.

By setting up a conference call with Speak-Write, you eliminate the need to for having the equipment to digitally record the conversation yourself and you eliminate the need to hiring your investigator to take the statement. You also eliminate the cost of the investigator.

You can also use this to take a recorded statement from your client. You can put the phone on speaker and call Speak-Write. You will get a transcribed copy of the interview and also the digital recording in the client's own voice.

Once you have the digital recording, you can use clips of that in your mediation package, to refresh the witness's memory or other uses. Neat stuff.

Posted inSettlement, Tech Trends, Technology, Trial Techniques |Comments (2) |Permalink

Good Book on Jury Decision Making: Facts Can't Speak for Themselves - Reveal the Stories that Give Facts their Meaning

I’ve been reading Facts Can't Speak for Themselves: Reveal the Stories that Give Facts their Meaning by Eric G. Oliver recently. A fascinating book on how to present information to help jurors learn and how the decision making process works. Here’s a synopsis of the book:

Legal decision makers construct their own case story version when judging a case. In fact, they reauthor their own version of the case story presented to them several times before arriving at the one they use to decide the case.

Their individual stories influence the verdict as much as individual backgrounds and beliefs, or the attorney’s case presentation in court. This groundbreaking book offers straightforward steps for trial professionals to identify and use these stories to refine the most compelling presentation for listeners to judge. Learn:

  • How and why legal decision makers construct their own case stories and use them to decide a case
  • The importance of crafting and communicating a case to decision makers as a story and why it can be the most direct and influential way to address decision makers
  • Which focus groups best reveal the range of stories versions listeners can build from your case
  • How to run voir dire like focus groups and focus groups like voir dire
  • Why you should never ask focus group members which side in a case they like
  • Why you should think twice before ever again asking a ‘why’ question in voir dire or focus groups
  • How to take full advantage of the only four channels available to deliver any legal case Sample Chapter Contents
  • The ‘Problem’ with Focus Groups
  • Packaging the Facts: Theme, Scope, Point-of-View, and Sequence
  • The Process of Story Growth
  • Decision Making Biases or Heuristics
  • Hot Topics and ‘Silver Bullets’
  • Theme and Story Elements
  • Three sample opening statement sections
  • Appendix includes printable focus group polling forms

It’s good stuff. I’ll write more as I get further through the book.

Posted inDecision Making, Trial Techniques |Comments (2) |Permalink

A New Way to Settle Workers Comp Cases

I was talking to Karen Shelton a lifecare planner, the other day about a new way she had been dealing with permanent and total workers comp cases. The old model is max out the client as permanent and total and to leave the medical bills open. We would also recommend that the client not file for SSDI until his workers comp case had resolved, not wanitng it to interfere with the workers comp case.

If you do a future costs workup for most of the workers comp clients, the dollar value is so high, that the inusrance company and defense would never pay it. Instead of doing a future costs workup, Karen does Medicare Setaside Allocation, the costs of administering the MSAT, Medicare B costs, Gap insurance cost, supplemental insurance cost, Medicare D costs, plus other prescription or any other costs. This will typically be dramatically less than a future costs workup ($170,000 against $400,000 for a future costs workup). 

Okay fine. What does that get the client? He already had his meds for any work related injury paid for by the workers comp insurance carrier. How does this benefit him?

  • Client is Dealing with Medicare and Not Workers Comp Insurer – Meicare is almost universally accepted and medical providers are used to dealing with them. Some insurance companies are very difficult to work with. (If you’ve practiced in workers comp, you know this is an understatement). 
  • All Injuries or Illneses are Covered –  In workers comp, the insurance company is only responsible for the injuries related to their workplace injury. Once the client is under Medicare, they will be covered for any illness or injury. So while, a person with a failed back surgery might get medical care and pain medications for his back, once they are under Medicare, they can go to a doctor for the flu, a sore throat or a broken arm years after their case is over.
  • Client’s Medicare Expenses will be Covered – Nearly all permanent and total cases will qualify for SSDI. However, Medicare isn’t free. Medicare A is free, Medicare B isn’t. The new prescription plan for Medicare D costs money. There are office visit co-pays, there are prescription co-pays. There are other out of pocket expenses. Your client is going to have to pay these for the rest of thier health insurance, even if their meds are left open for their work related injury. By settling the case this way, all their out of pocket expenses will be covered.

Why would the defense or insurance company want to settle the case this way?

  • It’s Cheaper – They save a few hundred thousand dollars over the life of the case.
  • It Closes the Case – Insurance companies are all about allocating risks. By settling and closing the case, they are eliminating any potential catastrophic costs (future surgeries…).

What are the downsides or caveats? Well the person has to qualify for Social Security. If you settle the case this way and the client is not on Medicare and doesn’t qualify for Medicare, you are doing them a disservice.

Interesting stuff. I believe that Karen is the only one in the country doing this.

Posted inSettlement, Trial Techniques |Comments (1) |Permalink

Talk to the Insurance Adjuster

I just got back from the Settlement Institute, a special invitation only seminar on settling cases put on by John Romano. John was gracious enough to invite me to be one of the speakers for the seminar. In exchange, I got to sit through and learn a tremendous amount from some incredible people. If you get the chance to go to this seminar, go. The single best advice was to talk to the the insurance adjuster and send information as you get it.

I have tended to put a big complete package together. All of the medical records, a functional capacity evaluation, future meds workup, supporting medical information, vocational report and so forth. John’s advice was to send the information a piece at a time and let them know what’s coming, even if you don’t have it. Also, if they need information on your client, provide it ahead of time. The adjuster is going to get it anyways, so let them know it’s coming and send it to them a piece at a time. This allows the adjuster a chance to re-evaluate the case as they go and realize that the case is worth more than they initially valued it for. It also allows them to readjust their reserves.

The best line of the seminar belonged to Vincent Leonard of Searcy, Denney, Scarola, Barnhart & Shipley in West Palm Beach. Vincent worked with Allstate for 19 years. He said that they were very familiar with the lawyers who never went into a courtroom. According to Vincent “If you’re allergic to the courtroom. Take some benadryl and get over it”. Good line and good advice Vincent.

Posted inSettlement, Trial Techniques |Comments (0) |Permalink

Mistakes Made by Trial Lawyers

As I mentioned before, at the Fall Retreat of the Southern Trial Lawyers we did an unconference. One of the topics put forth was ‘Screw Ups We Have Made’. First off, it’s hard to get trial lawyers to admit to any type of mistake, but it was a very interesting and useful discussion. The conversation was very frank and open, but I only took generic notes. Here are the top mistakes made:

  • Accepted a Case that they Shouldn’t.  – A case with bad facts or an extremely difficult client.
  • Overtried a Case.  – They believed too much in the case. What was a good small case, trying to make it a good big case didn’t work.
  • Letting their Caseload Manage Them Instead of Vice Versa.  – I think we’ve all had this problem at one point in our career.
  • Didn’t Take Into Account the Client When Accepting the Case – The jury is going to award money to the client and not the attorney. It doesn’t matter how good the case looks on paper, if the jury really, really won’t like the Client be careful in accepting the case.
  • Didn’t Manage Client Expectations – When the lawyer got twice as much money as they ever thought that they would get on the case and it wasn’t nearly enough for the client.
  • Didn’t Listen to Gut Feelings – When there was a bad feeling about the liability, damages or client and ignored it because the gut feeling because it was a high dollar case
  • Got Sidetracked by Side Issues – Got caught up in the litigation and didn’t focus like a laser on what the defendant did wrong.
  • Sued the Mayo Clinic in Minnesota – Everyone in town worked there, had a relative that worked there or made their living directly or indirectly from the clinic. The attorney got a defense verdict.

Looking at the list like this, those are all pretty self explanatory and common mistakes. It’s good to discuss issues that come up and re-evaluate now and then.

Posted inOther / Misc, Trial Techniques |Comments (0) |Permalink

Guest Post on Explaining Money Damages to the Jury

A while ago, I wrote about showing damages to the jury - why are they awarding money?.  A standard defense tactic is to complain that the injured party is greedy. "A terrible accident happened and they got injured. Now what do they do?? Come here and ask for money. Money." The defense makes it sound dirty as if that wasn’t the only remedy available.

Michael Atwater wrote a response on how he deals with this standard tactic and explains to the jury why we are asking for money. Take it away Michael:

One of the things that I do in my closing is to first explain the damages and ask the jury for a verdict which fairly compensates my client. 

Then I wait for the defense attorney to predictably tell the jury that my client is there looking for money. 

When I get back up, I walk over to the jury box and pick up the ambulance bill.  I tell the jury that a few days after the accident, while my client was at home recuperating, his wife (or another family member) brought in the mail from the mailbox.  As my client is there perusing the mail, he sees a letter from York County EMS. 

He recalls that they are the ones who initially treated him at the scene and transported him to the hospital from the accident which was caused by the defendant.  He open the envelope and unfolds the paper inside.  And what do you think that the EMS folks are seeking from my client as a result of his accident?...........MONEY! 

I repeat this with the ER bill and the subsequent bills. 

Then I explain to the jury that they must award my client the amount of these bills because he legally owes them and will be left holding the bag for the defendant's actions if the jury doesn't award this money.  I go on to explain that this money is owed to and will be paid to the medical providers. 

I tell the jury that if they only award an amount equal to the medical bills (the defendant many times concedes that the Plaintiff should get the ER bill), then they have given my client NOTHING.

I re-explain the issues of non-economic damages and again ask the jury for a fair verdict (with a suggestion of what would be fair).

I have had a great deal of success with this approach.

Thanks for the thoughts Mike. I think that’s helpful and a good idea.


Posted inThemes / Arguments, Trial Techniques |Comments (3) |Permalink

Dan Abrams on the Media and the Law

Dan Abrams was the keynote speaker for our annual Convention. Linda Franklin, our director at the South Carolina Trial Lawyer’s Association has done a fabulous job of getting speakers. Before Dan, we had Tom Mesereau, Mark Geragos, Wolf Blitzer and John Dean. Dan gave is with MSNBC and covered all of the big legal ‘media events’ in the last ten year. Dan made two good points.

If you have a case where there’s a media circus, the lawyer needs to get in front of the media and manage it. Of course, when talking about the media, there is only so much you can ‘manage’ them, but at least you can direct them somewhat. The example Dan gave was the Jon Benet Ramsey case. With their first legal team, the Ramsey’s kept mum and didn’t take a proactive approach to the media.

The second point Dan made was that if you talk to the media, it’s important to talk to the media. Talking to the media and then stonewalling, is much worse than refusing to talk in the first place. The example Dan gave was the Gary Condit case. Gary Condit went on television and did an interview and talked about everything except what people wanted to hear about his relationship with Chandra Levy. Gary kept saying “I don’t want to talk about that out of concern for the Levy family”… That actually makes the situation worse.

Thanks for coming and talking to us Dan.

Posted inOther / Misc, Trial Techniques |Comments (0) |Permalink

Do Your Job as a Lawyer

Ouch. That’s a harsh headline. But if you don’t do your job, don’t be surprised if the jury doesn’t do your job for you. Here’s what I mean.

  • If you don’t care about your client, don’t be surprised if the jury doesn’t care about your client and gives you a low verdict.
  • If you can’t be bothered to dig through all of the facts and figure out what the case is really about, then don’t be surprised if the jury doesn’t figure it out either. You’re the attorney, with lots of time to figure the case out. If you can’t boil it down to the basics, don’t expect someone to do your job for you.
  • If you can’t find the human drama and the storyline in what your client has gone through, don’t be surprised if the jury doesn’t either.

It takes a lot of work to boil things down to the basics. It’s easy to write a 20 page appellate brief. A two and a half page brief takes about ten times as long to write. Of course, which one is more effective? The shorter one of course.

A number of years ago, I was doing a zoning appeal. The attorney handling the case in front of me went on for over 20 minutes. The zoning board told him that he made a very convincing argument and they were willing to vote for him, but they were unable to tell what it was that he wanted them to do. Ouch.

It’s our job to present as simple of a picture as possible. It’s also our job to present as human a picture as possible. It’s not a soft-tissue case. His name is Tony and this is how the wreck has effected his life…

Posted inThemes / Arguments, Trial Techniques |Comments (0) |Permalink

Just Because Juries Don't Know Legal Language, Doesn't Mean They Aren't Smart

Evan Schaeffer of the Illinois Trial Practice Blog, has a great post Communicating with Juries by Acting Like a Regular Person: Is It Even Possible?. As Evan says:

… To put it another way, I remember what it was like to be a typical juror. Here's the key: I wasn't stupid. Despite my lack of legal education, I happened to be damn smart--smarter that I am today, I'm pretty sure. My only failing was that I hadn't yet been indoctrinated into that cozy group of professionals who knew the meaning of words like tort, strict liability, negligence, and demurrer, and who sometimes looked down at those who didn't.

I think you get the point. Try it yourself. By thinking back to a time before law school, you too might be able to get in touch with your inner regular person. I'm certain you'll find that he was smart, articulate, and intellectually engaged. He probably had a wealth of personal experience. If a snotty lawyer had stood up in front of him and said that he was going to "attempt to keep things simple" so that "even a non-lawyer could understand"--well, your inner regular person probably would have been a tad offended. He'd probably have asked the lawyer to get the hell off his pedestal and start acting like a regular person.

He makes a good point. There’s a whole world of smart people that aren’t lawyers. The entire post is worth a read.

Posted inPresentation, Trial Techniques |Comments (1) |Permalink

Telling a Story in Opening Statement Through the Eyes of A Truck

My good friend Steve Moskos from Charleston, just got a great verdict in Manning, South Carolina. It was a case where a dealership took in a rebuilt wreck and even though they knew about the substantial damage to the truck, sold the pick up and failed to disclose the previous damage. In addition to trying a good case, Steve presented his opening statement from the first person perspective of the damaged truck. Here is what Steve has to say:

In my opening, I told the story from the point of view of the truck.  I was a bit nervous about whether it would come off okay, but it worked pretty good.  I used things like "I was built Ford tough" and " a deer ran out in front of me.  The driver jerked the wheel.  I heard something snap.  I lost control I rolled on to my side.  I heard glass smashing.  I felt the pavement tear holes in my metal as I slid down the asphalt." …

 To say the least, the jury stayed awake.  It was a refreshing change.

What a great idea. I’m a big fan of taking the facts and telling a story. What better way to tell a story of the wreck, than through the eyes of the truck that experienced it. Thanks for sharing that idea with us and congratulations on your client’s verdict.

Posted inThemes / Arguments, Trial Techniques |Comments (5) |Permalink

Article on ATLA Name Change to American Association for Justice

The ABA Journal has published an evenhanded article on the ATlA name change: ATLA Trades ‘Lawyers’ for ‘Justice’. Chris Mather, ATLA’s communication director said:

"Some of the most powerful corporations have spent millions of dollars to dismantle the civil justice system," she says. "The Fight for Justice Campaign is exactly what it says it is."

David Ball was quoted as saying:

"Their decision to do this did not take into account the single biggest problem that trial lawyers already face, which is how the jurors who already don’t trust them are going to respond," says David Ball, a jury and trial consultant in Durham, N.C. According to Ball, approximately 30 percent of individuals in most jury pools distrust lawyers. They’ve been misled, he says, by tort reform groups.

I was quoted as saying the following:

David Swanner, a Myrtle Beach, S.C., plaintiffs lawyer, is also in favor of ATLA’s new name. "But I’m very proud of being a trial lawyer and being called a trial lawyer," he says. "I wouldn’t change that at all."

That was the only quote from a lengthy interview. But, if I could have picked the one quote, that would have been the one. It’s a good article and worth reading the whole thing.

Posted inCorporate Welfare, Trial Techniques |Comments (2) |Permalink

Great Source of Information on the Back

An Orthopedic Group in Colorado Springs has set up a Spine School on the internet. A lot of great information in simple to read and easy to understand format. Their Spine School includes general information on the anatomy of the back, general problems with the back, tests and procedures to fix the back.

It’s a great resource for clients with back problems, or anyone in your firm that is new to injury work. Thanks to Janabeth Fleming Taylor for the heads up.

Posted inMedical Info, Trial Techniques |Comments (1) |Permalink

Start Your Case with Jury Instructions

One of my favorite quotes in life is from Alice in Wonderland by Lewis Carroll:

Alice: Would you tell me, please, which way I ought to go from here?
Cheshire  Cat: That depends a good deal on where you want to get to
Alice: I don't much care where.
Cheshire Cat: Then it doesn't much matter which way you go.

You have to know where you’re going, to make decisions about what the right direction is.

The very last thing that jurors hear before they begin their deliberation are the jury instructions. So it’s important to build the case around the jury instructions. I like to draft the jury instructions before I draft the complaint. Of course they will change or be modified as new facts emerge, but it helps to have a guidepost. I review the jury instructions before:

  • Drafting the Complaint
  • Preparing Themes for the Case
  • Analyzing the Facts of the Case
  • Taking Depositions
  • Answering Discovery Requests
  • Preparing for Trial

If you know where you’re going, the decisions on how to get there become much easier.

Posted inThemes / Arguments, Trial Techniques |Comments (2) |Permalink

Visual Communication Style for Lawyers is Taking Off

Visual communication has been around for awhile. It consists of ‘anchoring’ arguments with a visual image. If you’re talking about a person, show their picture. If you’re talking about a doctor’s office, show it’s picture. It doesn’t have to be fancy, but even if you’re in a contracts case, show a picture of the outside of the office of the company that breached the contract. People respond to and remember things better when there is a visual.

I was in Columbus, Ohio recently for the Ohio Academy of Trial Lawyers annual Convention and gave a presentation using the visual communication style. It’s a style that has been perfected and popularized by Cliff Atkinson in Beyond Bullet Points: Using Microsoft PowerPoint to Create Presentations That Inform, Motivate, and Inspire. I was pleasantly surprised when a number of people came up to me after the presentation to talk about Beyond Bullets and the visual comminication style. The person giving a presentation after me used the visual communication style as well.

If you want to know more about the visual communication style, go to Cliff Atkinson:s blog, Beyond Bullets or look at Garr Reynolds Presentation Zen blog. Garr has a different take on the same principles. I love them both.

Hmm…..I wonder if Cliff Atkinson:s success with Mark Lanier on the first Vioxx case has anything to do with his new popularity?

Posted inPresentation, Trial Techniques |Comments (2) |Permalink

Be Specific About Your Client and His Injuries

According to studies, 66% of the people support having caps on non-economic damages when no other information is provided. However, 55% of the people opposed putting an artificial cap on non-economic damages. And when discussing children, senior citizens or stay at-home moms who the caps would have the most effect on.

So there is wide support for changing the system or ‘tort reform’, but it’s a shallow support that doesn’t run deep. So the moral of the story? Tell the jury about your client. Tell them about his injuries and how it affects his life.

Make sure that the jury understands the human aspects and that the injury happened to a person and we’re not talking about a back surgery.

Posted inThemes / Arguments, Trial Techniques |Comments (2) |Permalink

Another Look at Trial Lawyer's Images

This morning’s Hagar the Horrible by Chris Browne has a reminder of our image in the community. It starts off with Hagar and Lucky Eddie pulling guard duty in the middle of the night. Hagar shouts out:

“Halt! Who goes there – Friend or Foe?”  the response is:

I am just a friendly lawyer dedicated to helping the little guy in his unending battle against the forces of Evil, with no thought of personal gain whatsoever”. 

Hagar turns to Lucky Eddie and says


Ouch. And the worst part about it is that he didn’t use lies or misinformation. He used our own language against us. Double Ouch. Large corporations and their organizations have made a concerted effort to put down the jury system, which is the only method the average guy has to fight back against large corporations and the government.

But, the commercials of a few of our plaintiff’s brethren don’t help. The ‘Heavy Hitters’, the ‘Strong Arms’, the commercials for ‘One Call, That’s All’ don’t help us. If you don’t think we have a changed jury pool, then this comic strip should be a wakeup call.

It’s way past the time where we can tell people that we are doing good. We have to show them we’re doing good. We have to be willing to help people in ways where there isn’t a reward or payoff for the lawyer. Things like passing out bike helmets to children, buying copies of ‘To Kill a Mockingbird’ for junior high students, having fingerprint registration/identification for parents at County fairs…, providing information on the internet for people that need help. There are a ton of ways we can help and change public opinion.

Right now, ATLA is grappling with the issue of our image. That’s a good start. But it’s not enough to change our image. We’re no longer perceived as the good guys in white hats. We have to change what we do.

Posted inCorporate Welfare, Trial Techniques |Comments (1) |Permalink

Rules of the Road: Great New Trial Book

Every now and then, a book comes along that is better than good and just spot on terrific. Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability is one of them. I was hearing good things about this book and saw this plug by David Ball:

Rules of the Road does not belong on your bookshelf or your desk; it belongs in your mind. Get it there before you even think about your next trial. It contains two special joys: It teaches something usable on almost every page, and what it teaches is dead-on right.

The book talks about the main defenses that defense lawyers use to defeat otherwise good cases:

  • Complexity
  • Confusion
  • Ambiguity

I can attest to that. I’ve been on the receiving end more than once. The book then talks about how to defeat the defenses of complexity, confusion and ambiguity from the client intake, through discovery and through the trial. I haven’t finished the book yet, but so far have been enjoying it immensely.

Posted inThemes / Arguments, Trial Techniques |Comments (2) |Permalink

Great Legal Quotes on Justice

Janabeth Taylor pointed me to some quotes on justice. These seem more applicable to a criminal law case, but they were still entertaining. Some of the quotes are listed below:

The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. ~Oliver Wendell Holmes, Jr., The Common Law

There is no such thing as justice - in or out of court. ~Clarence Darrow, 1936

Justice is open to everyone in the same way as the Ritz Hotel. ~Judge Sturgess

People who love sausage and people who believe in justice should never watch either of them being made. ~Otto Bismark

If the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law. ~Lysander Spooner, Trial by Jury

This is a court of law, young man, not a court of justice. ~Oliver Wendell Holmes, Jr.

The state calls its own violence law, but that of the individual crime. ~Max Stirner, The Ego and His Own

The law condemns and punishes only actions within certain definite and narrow limits; it thereby justifies, in a way, all similar actions that lie outside those limits. ~Leo Tolstoy, What I Believe

Posted inThemes / Arguments, Trial Techniques |Comments (0) |Permalink

Contaminated Bone and Tissue Scandal

Mark Zamora of A Georgia Lawyer points to a Philadelphia Daily News article on the widening bone scandal:

Biomedical sold parts to unknowing tissue banks across the country that used them for tissue transplants for trusting patients, Brooklyn prosecutors said. Some of the parts also were turned into bone paste, skin grafts and dental implants.   …

The D.A.'s office is investigating how many Philly corpses were dissected, how much money was exchanged for the work, and how several funeral homes began a contractual relationship with BTS.

What’s the big deal? Contaminated bones can create a host of problems for the recipient. At the Southern Trial Lawyer’s Convention, Don Keenan gave the analogy “Picture leaving hamburger out on the counter for 16 hours. There is no way you could properly prepare it, that it would be fit to eat.” That’s what they’re doing with the contaminated transplants. Once the tissue and bone is contaminated, there is no way to make it suitable for use. Check out Mark’s blog for more info.

Posted inMedical Info, Trial Techniques |Comments (1) |Permalink

Use Junior High Students as Informal Sounding Boards

David Ball gives the tip of using junior high students to explain your case. And not the ‘A’ students either. Use your run of the mill, average ‘C’ student. If you can explain your case to them and they get it, then odds are strong you have simplified it enough for a jury.

If you can’t be bothered to do the work to figure out what your case is about, don’t be surprised if the jury doesn’t do your job for you. The simpler you make it, the better.

Posted inThemes / Arguments, Trial Techniques |Comments (0) |Permalink

Structure for Opening Statements

As longtime readers already know, I’m a big fan of David Ball’s book on Damages. David suggests a structured approach to opening statements. I had been using David’s structure before, but hearing Bruce Stern at the ATLA Convention and Ken Suggs at Auto Torts reinforced this approach.

  1. Rule and consequence
  2. Story (of what the defendant did)
  3. Blame (Who are we suing and why)
  4. Undermine (What is wrong with the liability defenses?)
  5. Damages (What are the losses and harms?)
  6. Money (What do you want?)

One of the primary goals of the opening statement is to prepare the jury to understand that your case is about determining harm and setting damages (to fix, help and make up for) as opposed to just determining who is right and wrong. You want the jury focusing on the degree of the harm, and not just who is right and wrong. I can’t recommend David’s book highly enough. You should also go to ATLA’s Damages Seminar that David gives, if you get the chance.

Posted inPresentation, Trial Techniques |Comments (1) |Permalink

Ask the Jury for a Socially Conscious Verdict in Closing Arguments

I’m looking at the notes in my computer and I still have a lot of notes from conventions from the summer, fall and winter of 2005 and we’re fast moving into the Spring of 2006. I know that the world of blogs likes to be as up to the minute as possible, but I’ll turn the notes into blog posts if it’s good and useful info even if  it’s a little late. Here’s a tip from Pete Law, from Southern Trial Lawyer’s Association Fall Retreat.

Peter asks the jury for a ‘socially conscious’ verdict, or in other words a reasonable verdict. He tells the jury what he’s going to prove and asks for a socially conscious verdict that meets with community standards. Saying “We don’t want a reckless award, it’s not good for him, it’s not good for us, it’s not good for the civil system and it’s not good for the community. We do want a fair award. That’s the number you should give. Don’t give more, don’t give less.”

And then you have to justify the number you asked for. But let the jury know that you don’t want a crazy number, just a socially conscious verdict.

Good tip. Thanks for the advice Peter.

Posted inThemes / Arguments, Trial Techniques |Comments (4) |Permalink

Bring Your Client to the Deposition of Difficult Doctors

Rodney Pillsbury gives the excellent suggestion of bringing your client to the deposition of a treating physician you think might say negative things about your client. It is much more difficult for a person to that someone is lieing and malingering if that someone is sitting in the room watching.

Good point Rodney and thanks for the tip.

Posted inPresentation, Trial Techniques |Comments (0) |Permalink

David Ball Updates his Book on Damages

I was bopping around Amazon, looking for new trial books and found that David Ball has updated his book on damages. In fact, it is the essential update. You can get it here: David Ball on Damages: The Essential Update, A Plaintiff's Attorney's Guide for Personal Injury and Wrongful Death Cases.

David has updated it to deal with the poisoned atmosphere after all of the corporate welfare legislation that we have mistakenly allowed to be called ‘tort reform’. One of the things that I really like about this book is that it shows lawyers ways to give their favorable jurors arguments to use and win discussions with non-favorable jurors in the jury room.

This squares with neuro-linguistic programming principles that when people internalize arguments, they believe them much more than when they are just told them. In a simpler era, that would be ‘Show. Don’t tell.” It’s a great update to an already great book. This is one of a handful of books that I read and reference so much that I buy two copies, one for the house and one for the office.

Posted inThemes / Arguments, Trial Techniques |Comments (2) |Permalink

Conducting Your Own Focus Groups

A friend recently asked me some questions concerning in-house focus groups. Rather than send him an e-mail back, I thought it would make a good post. Focus groups. What is the best way to conduct them? Ideally, you would have a group of about 20–25 people, have them listen and respond to your presentation, then break them up in 3 groups of six people (2 in favor, 2 neutral and 2 against) and dismiss the rest of them. Then you would repeat the process and go through 3–5 iterations until you had perfected your case and seen every possible juror outcome from the very best to the very worst and everything in between. However, most cases can’t support the $15,000 – $25,000 cost of doing the full blown focus groups.

We do most of our focus groups in house for about $500. They cost about the same as a deposition, take about the same amount of time to prepare for and give you lots of information. I learned how to do  focus groups from David Ball’s aptly named book  How to Do Your Own Focus Groups: A Guide for Trial Attorneys. Here are his questions:

Continue Reading Posted inDecision Making, Trial Techniques |Comments (2) |Permalink

Richard Jones on Trying Inadequate Security Cases

I’m still getting caught up on posting notes from previous seminars. At the Southern Trial Lawyers Fall Retreat, Richard Jones a lawyer from Atlanta who specializes in inadequate security cases gave us an update on these cases which have become immeasurably harder to try in the age of ‘tort reform’.

The problem you have to contend with in inadequate security cases is that the management had actual knowledge of criminal activity on their premsies and did nothing. However, regardless of policy management never makes reports of any criminal complaints in the area. So what do you do?

Beat the bushes.  Go up and down the hallways and talk to the people. Talk to the people pre-suit. You have permission to be there (from client/tenant). Get the police reports for the apartment complex. Talk to the police officers. Talk to the victims. But it’s important to get out there fast before the witnesses move away or otherwise disappear. Continue Reading Posted inThemes / Arguments, Trial Techniques |Comments (0) |Permalink

15 Key Deposition Techniques in a Medical Malpractice Case

We have a guest post today from Gerry Oginski, a medical malpractice lawyer in Great Neck, New York. This is a great post from Gerry. You can read more from him at his weblog or visit his firm website.


WARNING: Preparation is the entire key to a doctor’s deposition. You must spend countless hours reviewing the entire file, reviewing all the medical records, notes and entries in the chart. You must know and review your theory of liability, causation and damages before you begin to review the file. You must keep track of anything in the chart that will help you in your quest to prove each element of liability, causation and damages.

1. Most lawyers ask the same boring questions at the beginning of every deposition:

a. State your name and address
b. State your qualifications, pedigree, schooling, etc.

Comment: OK, this is fine, but very boring and very expected by defense counsel and the doctor. Mix it up a bit. I advocate never starting a doctor’s deposition this way. Why not go right to the heart of the case with the very first question? Continue Reading Posted inOther / Misc, Trial Techniques |Comments (5) |Permalink

Great Closing Argument to show that Client Only Gets One Trial

We know to tell the jury that our client only has one trial and that they can’t come back and ask for more. That this is their one day in court. The horrible cliche, ‘one bite at the apple’. As if that ever convinced a juror. But how do you convince the jury of the importance of their award? This is the argument that Peter Law gave at the Southern Trial Lawyer’s Fall Retreat.

The phone call.

Why is your decision so important? Why is it so significant?

I want you to imagine that 15 years from now, that I get a phone call from my client. He calls me and says “The verdict is not enough. I’m having medical problems and there’s no money for it. I need some more money. Get that jury back together, they didn’t consider this and tell them they didn’t give me enough. It isn’t fair. I want my leg.”  And I’ll have to tell him “We can’t get them together. Their decision is final. That’s it. It’s binding. What you have is what you got.”

So he hangs up the phone and calls the judge in the case. The judge will have tell him "I’m sorry. I told them to be fair and that their verdict is final. That their decision would have to last your whole life.”

So he calls the defense attorney.  And the defense attorney tells him “I’ll tell you just like I  did in court. It’s too bad you got hurt, but it’s your fault.” Then the defense attorney hangs up on him.

Your verdict is final and has to stand the test of time.

What a great way to highlight the finality of their decision. Obviously, this is a stripped down version, you should add your own details to make it more dramatic and fit your style.

Posted inThemes / Arguments, Trial Techniques |Comments (1) |Permalink

Ease the Juror's Worries About Determining Damages

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:

  • Do we really have to make the decision about money?
  • How can we decide what to award?
  • Won’t the judge determine the amount?
  • Won’t you give us guidelines?
  • How can I possibly put a value on a human life?

By helping the jurors determine how to come to an amount, you will be easing their anxieties and helping to get a larger verdict. Let the jury know that you will show them how to calculate and come up with a number. Tell them that the amount of damages should equal the amount of harm.

Posted inDecision Making, Trial Techniques |Comments (1) |Permalink

The Case on a Single Page

While in Atlanta for Auto Torts, in addition to my South Carolina buddies and meeting Atlanta friends Richard Jones and Mark Zamora, Gary Hill came out to join us. One of the great things about having a weblog is the people that you meet. Gary is considering starting his own blog, so I was able to con Gary into writing a guest post. Take it away Gary:

Being overwhelmed by a large case can be demoralizing. Reducing the entire case to a single page can add perspective and a sense of control.

Place a single sheet of paper in the landscape position and fold it in half and then in half again. There are now eight sections.

Name each section: PreTrial motions, Voir Dire, Opening Statement, Witnesses, Evidence, Charges, Closing Argument. List only what you need in each category to put up your case.

This exercise will often point to gaps in the case, suggest themes, or trigger changes in the presentation of the witnesses, evidence or argument. You can also keep this summary of the case in the inside pocket of your suit coat as a security blanket at trial.

What a great idea. A very simple way to reduce the case to it’s basics and make certain that you focus on what is important. Thanks for the guest post Gary.

Posted inOther / Misc, Trial Techniques |Comments (0) |Permalink

Pharmaceutical Companies Use College Cheerleaders to Boost Drug Sales

Well you learn something new every day. It’s no surprise that companies tend to hire good looking people for their sales team. But pharmaceutical companies are taking this to new heights by hiring college cheerleaders as pharmaceutical reps. They don’t look for

'They don't ask what the major is,' Mr. Williamson said. Proven cheerleading skills suffice. 'Exaggerated motions, exaggerated smiles, exaggerated enthusiasm - they learn those things, and they can get people to do what they want.'"  ….

…In an interview, Mr. Reidy remembered a sales call with the "all-time most attractive, coolest woman in the history of drug repdom." At first, he said, the doctor "gave ten reasons not to use one of our drugs." But, Mr. Reidy added: "She gave a little hair toss and a tug on his sleeve and said, 'Come on, doctor, I need the scrips.' He said, 'O.K., how do I dose that thing?' I could never reach out and touch a female physician that way."

I gotta tell you. I debated in high school, was an interrogator in the Army and am now a trial lawyer. I’m speechless (and this doesn’t happen often with me). If you want to know why I’m a plaintiff’s attorney, this is it in a nutshell. (Thanks to John Day of Day on Torts for the heads up on this).

Posted inCorporate Welfare, Trial Techniques |Comments (0) |Permalink

Focusing on What People Need to Hear

PowerPoint gets a lot of bad press. There’s nothing wrong with the software, but there’s a ton of bad PowerPoint presentations out there. I think PowerPoint allows a bad presenter to give bad presentations more easily. Cliff Atkinson’s book Beyond Bullet Points: Using Microsoft PowerPoint to Create Presentations That Inform, Motivate, and Inspire does a great job of moving away from the horrific presentations we’re used to.

Cliff urges us to consider what the audience wants to know and how the information will help them. Then take that information and put it in a classical Greek story format so that you’re not just giving facts, but telling a story. Good stuff. Cliff has also set up a template to help people storyboard and turn their information into a story. As a trial lawyer, I appreciate Cliff’s structure and find it helpful, but don’t feel the need to follow it 100% of the time.

I’ve also been reading Presentation Zen by Garr Reynolds recently. Garr uses the same concepts as Cliff; e.g. getting away from bullet points, working to focus on what the audience wants to hear and using carefully selected graphics to anchor the points. Garr is an American living in Japan and when focusing on simplicity he focuses on a zen approach. As Garr quotes "Simplicity means the achievement of maximum effect with minimum means." — Dr. Koichi Kawana

For trial lawyers this is important stuff. How do we get across information so that people will actually understand and accept the information? It’s not enough that we say things, it has to be understood, accepted and internalized by the juror or audience member. If we don’t have that, we’re just talking in the wind.

Posted inPowerPoint / Presentation, Presentation, Trial Techniques |Comments (2) |Permalink

Use Simple Words When Talking to a Jury

Of course, this is pounded into us repeatedly. Talk like a person and not a lawyer. Don’t use a big word when a small word will do. It is better to get your themes from People magazine and the Enquirer than from Plato and Charles Dickens. It doesn’t matter how fancy you are if no one knows what you’re talking about. I was reminded about that when I ran across this great quote from David Ogilvy, the advertising giant of Madison Avenue:

I once used the word OBSOLETE in a headline, only to discover that 43 per cent of housewives had no idea what it meant. In another headline, I used the word INEFFABLE, only to discover that I didn't know what it meant myself.

Yep. Keep it simple. Keep it short.

Posted inThemes / Arguments, Trial Techniques |Comments (0) |Permalink

Dealing with Preponderance of the Evidence in Closing Arguments

More tips from David Ball in dealing with preponderance of  the evidence in closing arguments:

“What that means is more likely than not. [Use the hands, the visual is more important to the juror than the words].

You’re allowed to have doubt. You can have all the doubts on both sides, as long as when you come down to it, you think it’s more likely than not. Continue Reading Posted inThemes / Arguments, Trial Techniques |Comments (0) |Permalink

Beware of Tort Reform's Effect on Jurors

Following up on Howard Nations’ presentation at the Southern Trial Lawyer’s Fall Retreat. Howard talked about how we were two steps behind before we uttered our first words. When the country is at war in two countries, bankruptcies are at record levels and the price is over $3 a gallon and the President gets on the television and tell people that trial lawyers are the biggest problem facing this country, people believe it.

When so many states are changing the laws and basic ground rules of the civil justice system and calling it tort reform, people believe it.

This has a profound effect on potential jurors. Just the fact that state legislators are enacting tort reform means that there was a problem that had to be fixed. Regardless of the facts. I was there at the statehouse (although not nearly as much as Fayrell Furr, John Nichols, Preston McDaniel and our wonderful staff at SCTLA) and the legislators admitted that the facts were on our side, that there was no huge litigation explosion, but that the business community was demanding changes.  Those of us who have been watching have seen a concerted and very successful campaign by the U.S. Chamber of Commerce over the past 25 years that has been based largely on anecdotal information and fiction.

There has been tort reform. There is a problem. Trial lawyers are the problem. That is the attitude that jurors are bringing to the courthouse. We need to understand that and address that issue or else we have lost before we start. And we sure as heck better not fall into the stereotypical ‘trial lawyer’ cliche/stereotype of being fast and loose with the facts or else we’re sunk.

Posted inThemes / Arguments, Trial Techniques |Comments (0) |Permalink

Anesthesiologists Work on Reducing Patient Errors

I was doing an internet search to find out more about the great work that the anesthesiologists had done in reducing patient errors and found this article from the Institute for Safe Medication Practices:

The 1999 Institute of Medicine report, To Err is Human, identified anesthesiologists as a rare exception to its sweeping criticisms about the lack of professional medical societies or groups that have demonstrated a visible commitment to reducing errors. And the high regard is well deserved. In 1985, the American Society of Anesthesiologists provided $100,000 to launch the Anesthesia Patient Safety Foundation (APSF). Despite some angst, the APSF decided to admit not just physician members, but also nurse anesthetists, insurers, and anesthesia equipment companies, bringing together a broad range of interdisciplinary stakeholders. The risk paid off.

Since then, the APSF has galvanized safety research and prompted significant changes in how anesthesia care is provided. From high-tech simulation mannequins that are used to help anesthesiologists recognize and respond to life-threatening conditions, to pulse oximetry, capnography, non-flammable anesthetics, and other safety features and practices that have been adopted as standards, the APSF has helped reduce anesthesia fatalities from 1 in 5,000 cases to 1 in 200,000-300,000 cases. As anticipated, better patient outcomes have also resulted in fewer lawsuits; anesthesiologists typically pay less for malpractice insurance today than 20 years ago.

Focusing on reducing medical errors, helped patient outcomes and there were less injured people suing for being hurt. Hmm…… People aren’t lining up, hoping to be injured so they can sue. Good for the anesthesiologists. I hope other doctors follow their lead. I know ATLA is starting to work on focusing the medical profession and legislation on reducing patient errors.

Posted inCorporate Welfare, Trial Techniques |Comments (0) |Permalink

Beware of Generational Differences in Jurors

We all know that major events can effect a generation. Think the Depression, World War II and the Vietnam War. But much smaller events can help shape attitudes and thought processes. I’m 41 years old and was born in 1964. Watergate was on television when I was about 10 years old. I wasn’t old enough to really  know what was going on, other than it was something major that the government had done wrong and that it was always on television. Couple that with my father growing up on a farm in the flatlands of Texas, pretty much guaranteed that I would be a plaintiff’s attorney.

When I was in law school, I was talking to someone that was just 5 years younger than me. He ‘came of age’ during the malaise of the Carter years and then the Reagan years. He had a totally different attitude towards government. Rather than a healthy skepticism towards government, he believed wholeheartedly in governmental triumphalism (with a conservative bent of course).

Over the weekend, at the STLA Retreat, Howard Nations gave his excellent presentation on generational attitudes of Generation X and Generation Y jurors. With the top end of Generation X hitting 40 years old, nationwide half of your jurors will be Gen X or Gen Y jurors.

Posted inDecision Making, Trial Techniques |Comments (0) |Permalink

Don't Describe the Plaintiff as the Victim

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).

The Retreat was at Atlantis on Paradise Island in the Bahamas. While there, I was the opening act at Jokers Wild, the comedy club at Atlantis on Friday and Saturday night. It was my first performance away from Myrtle Beach and a lot of fun. Pics are here.

Posted inPresentation, Trial Techniques |Comments (0) |Permalink

Evan Schaeffer on The Dangers of Winging It in Depositions

Evan Schaeffer at the Illinois Trial Practice Weblog has a great post on The Dangers of Winging It in Depositions. Some of the questions Evan asks:

  • What are the goals of the deposition? Are you merely gathering information or can you also get helpful admissions from the witness? How do you plan to achieve your goals?
  • Do you plan to exhaust the witness's memory on certain issues? Which ones? Why those issues and not others? When you're finished, will the witness really be pinned down, or have you left some open doors for him to wiggle through later?
  • Have you reviewed the pleadings? If not, why not? Have you looked at the discovery responses and documents? Which ones do you plan to use at the deposition, and why?
  • Have you considered the way the witness might fit into your plan for trial? Have you even thought about trial? How will the witness support or detract from your legal claims or defenses?

Good stuff, Evan. Check out the entire post. He has a good list of questions to review when preparing for a deposition. An interesting comment on the post also states that the people most likely to make mistakes are those with too much experience as they get overconfident. I can understand that.

Posted inPresentation, Trial Techniques |Comments (0) |Permalink

Ken Suggs Article on the Problems with Vioxx

Ken Suggs, the current President of ATLA has an excellent op-ed article in the The State, the Columbia paper:

…Merck executives produced a document called “Dodgeball” to train their drug reps how to “dodge” questions from doctors about the cardiac dangers of Vioxx. Doctors who weren’t fooled by Merck’s deceptive marketing of Vioxx were targeted by the company. Merck worked to discredit these doctors and even threatened Stanford University scientists who questioned the drug.  … Continue Reading Posted inCorporate Welfare, Trial Techniques |Comments (0) |Permalink

Agencies' Rules Quietly Enable Tort Reform

The Washington Post today has an article on how Federal Agencies' are Changing Rules to  Quietly Enable Tort Reform:

"The Bush administration realizes it's impossible to get the broad-based tort reform the business community would love. There has been a conscious effort to take small steps," said Glenn G. Lammi, chief counsel of the Washington Legal Foundation , a pro-business public-interest group.

Let’s be clear about this. When they say ‘tort reform’, they mean take away the rights of injured individuals. What they are doing is saying that if a product meets the federal safety requirements, it will be by definition be considered safe. Hmmm… It seems like whether a product is safe or not, should determine whether it’s safe. One last quote from the end of the article:

Continue Reading Posted inCorporate Welfare, Trial Techniques |Comments (1) |Permalink

Question and Answer on the Vioxx Cases with Mark Lanier

The Texas Lawyer has a good article on The Vioxx Verdict: Q & A with Mark Lanier. A sampling:

Q: What was the biggest obstacle you perceived going into the trial?
A: Mark Lanier: Causation. Bob Ernst's autopsy report stated that the cause of death was arrhythmia secondary to coronary atherosclerosis.  While Bob had some type of clot or thromboemboylic event that caused the arrhythmia, Merck was splitting hairs saying that no studies ever linked Vioxx to arrhythmias.  While this assertion was patently wrong, it could have been easily confusing to a jury.

Q: This case was supposed to be "unwinnable" because Ernst died of an arrhythmia, not a heart attack. Do you truly believe Vioxx contributed to his death, or does it only matter that you convinced a jury of such?

 A: Lanier: Not a doubt in my mind. Everyone agreed the arrhythmia was caused by "ischemia" or inadequate oxygen to the heart. Ernst had 50 - 75 percent blocked arteries. Those are open 25-50 percent. They were open enough that he ran marathons, competed in triathlons, rode a 62 mile bike race a week earlier, ran 5 miles that day. His heart got plenty of oxygen for those stresses. So the question is: either he had a clot (our position) or for some unknown reason while sleeping his heart's oxygen requirements exceed the needs while running a marathon. Merck took the absurd position that Ernst's heart was having excessive oxygen requirements while sleeping. They actually had experts say that Ernst must have been having really bad dreams or sleep apnea. What is more likely, a clot?

Q: What piece or pieces of liability evidence did the jury consider most important in their deliberations?
A: Lanier: The sales documents on liability. The medical textbooks on causation.

The entire question and answer session is worth a read. Thanks to John Day of Day on Torts for the heads up on this article.

Posted inOther / Misc, Trial Techniques |Comments (0) |Permalink

A Tale of Two Penguins and a Story of Worldviews

One of the surprise hits in movie theaters this summer is March of the Penguins. It’s a fantastic documentary showing the penguins mating rituals, including a 70 mile trek through one of the world’s most hostile environments to find a mate. If you haven’t seen it, it’s definitely worth checking out. But what struck me about this movie was two opinion pieces that talked about the movie.

George Will of the Washington Post uses the penguins odyssey to question Intelligent Design:

"March of the Penguins" raises this question: If an Intelligent Designer designed nature, why did it decide to make breeding so tedious for those penguins? …  It is so grand that nothing is gained by dragging an Intelligent Designer into the picture for praise. Or blame.

Maggie Gallagher discussing the same movie, sees the hand of God:

I don't know Jordan Roberts' agenda, religious or otherwise, but it is hard not to see the theological overtones in the movie he remade. Beauty, goodness, love and devotion are all part of nature, built into the DNA of the universe. Even in the harshest place on the Earth (like 21st-century America?), love will not only endure, it will triumph.

Same movie. 100% opposite opinions. What was the difference? The writer’s worldview. They saw some spectacular footage and superimposed the video onto the worldview they already had. It makes you wonder when you tell a jury something, what spin their worldview is putting on it.

Posted inDecision Making, Trial Techniques |Comments (1) |Permalink

Evan Schaeffer is Speaking on Vioxx at AEI

Evan Schaeffer will be on a panel discussion on the panel discussion on the Vioxx verdict at the American Enterprise Institute. If you’re not familiar with the AEI, they are one of the leading conservative think tanks.

Notes from the program header read: 

The AEI Liability Project seeks to promote a better understanding of the scope and consequences of the liability crisis and to help ensure that political or legal reform efforts are aimed at the appropriate targets. (emphasis added).

From the AEI Liability Project Mission Statement:

Plaintiffs’ attorneys are suing on claims without tangible harms, with billions of dollars of judgments and settlements for injuries that are purely hypothetical;

Man. Billions of dollars on hypothetical claims?? That must be in another jurisdiction. Because if that was the case, I surely would have retired and would take my private jet down to the Carribean.

 Evan consistently invites dissenting opinions and voices on his blog. I admire his efforts at engaging the other side head on. Unfortunately, I don’t think there is any room for common ground. It’s not a question of finding consensus on ideas and working from there. These people are out for the destruction of the jury system. More on that later, but good luck to Evan and kudos for being a voice of reason on the panel.

Posted inCorporate Welfare, Misc, Trial Techniques |Comments (0) |Permalink

Legal Urban Legends Hold Sway - Los Angeles Times

The LA Times gets it right on it’s article Legal Urban Legends Hold Sway

Merv Grazinski set his Winnebago on cruise control, slid away from the wheel and went back to fix a cup of coffee.

You can guess what happened next: The rudderless, driverless Winnebago crashed.

Grazinski blamed the manufacturer for not warning against such a maneuver in the owner's manual. He sued and won $1.75 million.

His jackpot would seem to erase any doubt that the legal system has lost its mind. Indeed, the Grazinski case has been cited often as evidence of the need to limit lawsuits and jury awards.

There's just one problem: The story is a complete fabrication.

The story talks about the fictional Stella Awards that makes the rounds of the internet of outrageous lawsuits. All of the stories are made up and completely false. Whenever I receive one of these, I do a ‘Reply to All’ and send them information on how these stories are fake. If you want to show that the legal system needs improving (and what in life doesn’t need improvement), you don’t start off with lies. Congratulations to the Los Angeles Times for getting it right.

Of course, just because they are a complete and total fabrication, doesn’t mean that the stories aren’t poisoning our jury pools.

Posted inCorporate Welfare, Trial Techniques |Comments (3) |Permalink

Telling Stories to Win the Jury

Marketing guru Seth Godin tells how storytelling is essential to winning over the jury:

I am from Brighton in the UK and read your blog on a regular basis. Last night I saw the concluding episode of the Michael Peterson 'Death on the Staircase' trial in the US (Durham). This morning I read your 'Liar's Blog' and it got me thinking. It seems to me that the prosecution told stories that matched the worldview of the jury. The defence however seemed to focus on the facts. Who won? The story tellers! …

Why can't a judge assess whether a lawyer is 'marketing' to the jury? It seems that the media are driving lawyers toward a marketing approach to justice. To focus purely on facts is to risk losing the case. All a lawyer has to do is understand the prevailing worldview of the jury (even select a jury with the appropriate worldview) and then tell the right story. Frightening!

An interesting post, that catches the point, but also misses it. Storytelling is important to help people learn and understand the facts. However at least from a Plaintiff’s perspective, it doesn’t matter how much you appeal to people’s world views and how powerful a story you have, if the facts aren’t on your side.

Posted inThemes / Arguments, Trial Techniques |Comments (2) |Permalink

Laying a Foundation to Impeach a Witness at Deposition

Evan Schaeffer recently wrote a post on How to Start a Deposition at his Illinois Trial Practice Weblog. It’s a good post for young lawyers on how to get started. That reminded me of the opening questions that I use to lock a witness down in the event that the witness needs to be impeached at trial:

  • Is there any reason you can’t do the deposition today? We have to do this at some point, but is there any reason today is any worse than any other day?

  • Are you under the influence of alcohol, prescription drugs or anything else that would affect your ability to understand or answer my questions?

  • Have you ever given a deposition before? (If so, find out when and under what circumstances. What other depositions have you given?)

  • The purpose of this deposition is twofold. First, this is my only chance to talk to you. I want to hear your side of the story. So, if I ask a question you don’t understand for any reason, please ask me to rephrase the question. If I ask a question that’s too long, if I use a lawyer word, or if for some reason you just don’t understand what I’m asking, please don’t answer the question. Ask me to rephrase the question. Would you do that for me?

Continue Reading Posted inPresentation, Trial Techniques |Comments (3) |Permalink

Trial Lawyers Ads Create Image Problem

More on the LA Times about how the spokesman for the American Tort Reform Association says that lawyers create their own problems:

In fact, Schwartz said, over-the-top self-promotion by some trial lawyers have made the best case for the need for change. "Their ads making things seem as if it's just free money" have done "more to convince the American public that we have jackpot justice than anything put out by any tort reform organization — including the 'looney lawsuits' stories," he said.

Recent research shows that 40% of people get their info on lawyers exclusively from the media (TV, newspaper) - they have 40% unfavorable , 28% favorable impression. Twenty percent say that lawyer advertising are their main source of information about lawyers. This group has an 84% negative, and 10% positive impression of lawyers and the legal system.

Oof. We have met the enemy and he is us.

Posted inCorporate Welfare, Trial Techniques |Comments (3) |Permalink

New Category of Corporate Welfare

I’ve added a new category to deal with the corporate welfare and legislative interference with the legal system. This is commonly known as tort reform. Hmm….. Let’s look at the definition of the word reform:

  1. To improve by alteration, correction of error, or removal of defects; put into a better form or condition.
  2. To abolish abuse or malpractice in: reform the government.   or To put an end to (a wrong). See Synonyms at correct.
  3. To cause (a person) to give up harmful or immoral practices; persuade to adopt a better way of life.

So we have that the current legal system is an error or defect, or an abusive process or a harmful or immoral practice. Wow. Lets’ look at  some alternate definitions: Continue Reading Posted inCorporate Welfare, Trial Techniques |Comments (1) |Permalink

The Jurors Duty is to Tell the Truth, The Media's Duty is to Sell Papers from Tom Mesereau's Speech

I’m going to do a series of seven posts on Tom Mesereau’s speech at our Summer Convention. I had never met Tom before last week. He spent the entire Convention with us, was very friendly and easy to talk to. I was very impressed by his generosity and willing to talk to us. I took good notes, but not exact notes and will be paraphrasing in these posts. So the thoughts are Tom’s, but the words are mine. In other words, don’t blame Tom if I’m less diplomatic than him.

After his talk, the newspapers ran the story along the lines of ‘Media gets it Wrong’. Actually Tom started off by contrasting the different responsibilities of the jury and the media. The jury has a responsibility and an obligation to listen to the evidence and follow the judge’s instructions on what the law is. Based on that, the jury is supposed to determine the truth. They listen to their gut, they pay attention to the witnesses and the facts, they discuss and argue with each other and come to the truth. That is the jury’s obligation and one they take seriously. Continue Reading Posted inThemes / Arguments, Trial Techniques |Comments (2) |Permalink

Most Hospitals Don't do Well on the Basics of Medicine

The New York Times has an article about the Department of Health and Human Services study that was published  in the New England Journal of Medicine last month where hospitals were graded on the basics:

JUST about everyone in medicine agrees that a patient who shows up in the emergency room with a heart attack should be given aspirin. That simple treatment has been proved to cut death rates by nearly a quarter.   …

Over all, Long Island hospitals delivered appropriate treatment to heart attack victims 92 percent of the time, to heart failure patients 84 percent of the time, and to pneumonia patients 75 percent of the time.  …

"We really should be close to 100 percent on all of these measures," said Dr. Ashish Jha, a Boston physician and author of one of the national studies published last month. "There's not much controversy about whether giving antibiotics to someone who has pneumonia is good or not."

And the hospital’s response to this study saying they aren’t consistently doing the basics? Continue Reading Posted inMedical Info, Trial Techniques |Comments (0) |Permalink

Read Depositions to Jurors instead of Video Depositions

A tip from David Ball that I find surprising. David is fond of saying that trials are human events. He cautions against using video depositions at trial. And if you do need to use a video deposition, keep it down to ten minutes before the jurors tune out.

With the advent of Sanction and the ease of showing video depositions at trial, I had become a big fan of video depositions for the doctors depositions that were not cost effective to bring to the courtroom.

David suggests getting someone that reads well, not a professional actor, just someone with a good voice that reads well to read the doctor’s deposition. I was surprised that he felt that was more effective than hearing from the doctor himself. The answer is that trials are human events and that jurors react better to a live person, rather than a talking head on a video.

P.S. – If it seems like I’m posting a lot from David Ball, I am. I took my own advice to learn from the smartest people I know and meet with David once a month to learn the latest tech.

Posted inPresentation, Trial Techniques |Comments (3) |Permalink

Get the Jury Used to Preponderance of the Evidence BEFORE Closing Arguments

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: Continue Reading Posted inDecision Making, Trial Techniques |Comments (0) |Permalink

Focus the Jury on the Harms and Losses

Jurors have been bombarded with the images of ‘tort reform’. They have been bombarded with stories of how juries have gone wild. When sitting on the jury, they anxiously glance around to see who all of the crazy bastards are. Not only do they not trust us as attorneys, they are also distrustful of each other.

According to David Ball, we have to change our tactics to survive. He suggests building the theme that the only things the jury is allowed to consider is the level of harm and the level of losses.

But it’s not enough to throw that out in closing arguments, you have to build it from the beginning. From voir dire, through your opening statement, direct and cross examinations as well. For a way on how to include the information on your opening statement, look here.


Posted inThemes / Arguments, Trial Techniques |Comments (0) |Permalink

Tell Jurors Why You're Showing Them Damages

David Ball says that sometimes jurors get upset at damages witnesses saying “Why are they telling me that the guy had such a hard time?? They’re just trying to play on my sympathy and tug on my heart strings.” and will rebel against that. The solution? Tell the jury why you are showing them this information. Start with your opening statement. Let the jury know why you are going to show them the damages information.

“We’re going to be showing you what Joe went through. We won’t be doing this to get your sympathy, the time for sympathy is long past, we are here for compensation. We expect that the most important job you have on the jury is to decide how much money this case is worth. The most important job will be to determine the level of losses and the levels of harms that Joe has. We’re giving you that information so you can determine that.”

Let the jury know that:

  1. You are NOT attempting to tug at the heart strings.
  2. Damages are central to the case. That they need this information, it’s important to the case, important to their decision and they it to do their job.

I agree with David on this. I remember a Budweiser commercial at the last Super Bowl where it showed a soldier coming home from overseas being greeted by his family. It was very warm and touching, but had nothing to do with beer. Being retired military it hit a nerve that they would use the sacrifices of young soldiers and their families to sell beer. It seemed gratuitous and out of placeand it angered me.

Posted inThemes / Arguments, Trial Techniques |Comments (0) |Permalink

Trial Tips from Geoffrey Fieger

Evan Schaeffer at the Illinois Trial Practice Weblog, recently saw a presentation by Geoffrey Fieger, Dr. Kevorkian’s attorney. Evan shares advice from Geoffrey Fieger on Trial Practice Tips (think like a person, not a lawyer), Direct Examination (don’t over rehearse your witness), and Voir Dire (look at body language more than the response).

Evan consistently has great trial tips and advice on his weblog. I feel a bit remiss that I don’t link to his Illinois Trial Practice Weblog more frequently, but if I linked to every good post, I’d have links to his entire blog on here. If you haven’t added Evan’s blog to your news aggregator, you should. It’s the best blog on trial practice on the net.

Posted inTrial Techniques |Comments (4) |Permalink

Smart Boards Replacing Chalk Boards

While we lawyers have been slow to adopt smart boards, smart boards have been replacing chalk boards in the classroom:

Wired News reports on the rapid growth of interactive, computer-driven whiteboards in classrooms…smart boards are being used in more than 150,000 classrooms in the U.S, with even more being put to use in 75 other countries. The boards let teachers and students share assignments, surf the web and even edit video using their fingers as pens. And, by all indications, the market for the devices is booming, with more than a dozen manufacturers in the field, although one company, Smart Technologies, has a 60-percent market share.

It looks like we need to start catching up to the schools. I’ve had been using a projector and multi-media for 5 years, but don’t have a smart board yet. It looks like that just jumped up my tech priority.

Posted inPowerPoint / Presentation, Presentation, Technology, Trial Techniques, Trial Technology |Comments (2) |Permalink

Thoughts on Juries

Tom Peters responds to the Michael Jackson verdict.

None seemed enamored with Jackson in the least. But they treated him as any defendant should be treated, and came to what they collectively thought was the appropriate decision.

Especially interesting are some of the reader comments on what they believe of the jury system. I think while there is surface cynicism, most people have a deep respect for juries.

Posted inDecision Making, Trial Techniques |Comments (0) |Permalink

Use Your Opponents Expert Witness on Causation to Be Your Witness

Get the most out of every witness. Even if they’re not your witness. For example, you have a client that has  post traumatic stress syndrome after a serious wreck, or after having lost a loved one from an act of careless negligence. The defense will put up a psychiatrist stating that your client doesn’t have depression.

Don’t argue with the doctor’s diagnosis that your client doesn’t have depression, but use the doctor to show that depression is serious, real and debilitating. Something like this:

  • Doctor, this depression that you say my client doesn’t have. You have a psychiatric practice, don’t you?
  • Doctor, you treat patients for depression?
  • Doctor, you believe that depression is real, don’t you?
  • And some of your patients do have this?
  • Doctor, you have seen it become debilitating to the point where they can’t work?
  • Doctor, sometimes it gets to the point where they can barely even move from the depression?

The jury can determine whether your client is depressed, but the defense doctor will bolster the seriousness of depression. It also sounds better when you get the information from their witness.

Posted inTrial Techniques |Comments (2) |Permalink

Defusing a Powerful Animation: Using Your Opponents Exhibit Against Them

I found this Law Technology News article on Defusing Powerful Animation (free registration required) from  Monica Bay’s blog, The Common Scold. It talks about a pedestrian / car case in California where the pedestrian suffered brain damage and the plaintiff’s attorney did a video animation / simulation.

King used PC Crash software, which helps users create 3-D collision simulations and reconstructions. His animation was used as the cornerstone of the plaintiff's case, Skrzypek explained, and was based almost completely on defendant Dillon's deposition answers.

It was clear that the plaintiff's side thought the recreation would be very damaging to her credibility, he said.

But the defense team managed to defuse the impact of the animation. Langley played the animation in slow motion throughout his cross of the reconstructionist. He also played it during his closing argument, stopping it at key points to question the assumptions the plaintiff used creating it.

"His ability to replay the animation and put our side's spin on it undercut the plaintiff's representation that the animation represented how the accident truly happened," said Skrzypek.

Use your opponent’s evidence against him. That’s the what they teach in jujitsu. It works in the law, too.

Posted inTechnology, Trial Techniques, Trial Technology |Comments (0) |Permalink

Book Review: Neuro-Linguistic Programming for Dummies

I love the Dummies series of books. Their specialty is breaking a topic down, highlighting the important parts, pulling out a few tips and throwing in a bit of humor. I have 23 Dummies books, everything from software programs, accounting, fitness, Spanish and even a Sailing for Dummies book. Here is my previous post describing NLP.

A basic question of Neuro-Linguistic Programming is “If you keep doing the same thing you’ve always done, how do you expect to get different results?”  The concept is to define the results you want, then take a look at your behavior and see if your behavior moves you closer to your desired results.

If you were looking for an introduction to NLP, Neuro-Linguistic Programming for Dummies is a great book. It describes the four pillars of NLP, how to change beliefs, the logical levels of NLP, the difference between the conscious and unconscious mind, creating rapport, determining and achieving outcome orientation, anchoring, discovering meta-programs and storytelling to reach the unconscious.

What can you use NLP for?

  • Trial Skills: Negotiating win-win solutions, creating powerful presentations, and connecting to your audience.
  • Non-Trial Skills: Managing personal and professional relationships, Developing yourself, managing your time and precious resources, being coached to success, increasing your health, and getting the job you really want.

The best part? The stuff really works.

Posted inDecision Making, Trial Techniques |Comments (1) |Permalink

Comedy Workshop for Trial Lawyers - June 10/11 in Myrtle Beach

Have you ever wondered what it would be like to do stand-up comedy and be on stage? Now is your chance. I recently took a comedy workshop with Manny Oliveira at the Comedy Cabana. A lot of  lawyers said they wish they could do that, so we put a 2 day class together. The class will be Comedy Workshop for Trial Lawyers: Building Trial Skills Through Stand-Up Comedy at the Comedy Cabana on June 10 and June 11. The skills in stand-up comedy are exactly the same as in trial work (public speaking, presentation, going with the flow), but used in a different environment.

In the class, you will learn how to put material together, edit the routine, prepare for the stage and then go on stage and perform on Saturday night.

When you sign up, we’ll send you a DVD from Manny Oliveira on how to get started with the material and things to think about. You’ll also get a workbook to fill out and bring to class. The schedule will be:

Friday, June 10:

  • 10:00 - 11:00 Principles of Public Speaking
  • 11:00 - 1:00 Developing Material - Mind to Page
  • 1:00 - 2:30 Lunch
  • 2:30 - 3:45 Writing Workshop
  • 4:00 - 5:00 Performance Workshop - Page to Stage

 Saturday, June 11

  • 10:00 - 11:45 Performance of developed material
  • 12:00 - 1:00 Final Edit Performance of Material
  • 1:00 - 2:30 Lunch
  • 2:30 - 4:00 Final Program Rehearsal
  • 7:00 - 9:00 Showcase

Our showcase performance at the Comedy Cabana is at 7:00 p.m. on June 11, 2005 in Myrtle Beach. Come out to the show if you’re in the area. Bring your friends. It promises to be a lot of fun.

The cost for the workshop is $300, which includes the showcase performance, workbook and DVD. If you’re interested in attending the class, send me an e-mail. If you’re coming from out of town, we can help with accommodations.

Posted inPresentation, Trial Techniques |Comments (1) |Permalink

Trying a Case with 3 Witnesses

Mark Zamora, of A Georgia Lawyer, tells the story of Matt Flournoy who recently tried a case in Cobb County, Georgia. The lady broke her ankle in a car wreck and had $30,000 in meds. They didn’t call any doctors or introduce any medical bills. The plaintiff was a waitress at Shoney’s and with a broken ankle, it is difficult to be on your feet all day. Matt says:

We called only three witnesses to the stand: the police officer, the Defendant, and Melissa Milo, the Plaintiff.

We wanted to keep it simple. The jury appreciated that.

We did not ask for any lost wages ( about one year's worth ).

Melissa was a waitress at Shoney's at the time. It would have been difficult to prove her lost wages based on tips. We had no supporting evidence and We did not want to over reach.

A Cobb County Jury of 12 returned a verdict for $536,000 that was for Melissa Milo's pain and suffering damages only."

Matt focused in on what was truly important and pulled away all of the rest. That kind of focus can be difficult for lawyers who are taught to put in everything, including the kitchen sink. That’s a hard thing to do, to try a case without a doctor, but they were successful with that strategy.

Posted inTrial Techniques |Comments (1) |Permalink

Framing a Worldview at Trial

Robert Spanner has a great article entitled Framing a Worldview at Trial in this month’s Tips from the Trenches on the online publication of the ABA’s litigation section. Robert talks about how important framing and a theme is at the time of trial.

But cognitive research—and experience—teaches that it is actually a mistake to refer to the opponent's theme, to use the opponent's terminology—even in the most scornful adjectives – and to remind the jury of the evidence supporting the opponent's case, because every time that happens it reinforces the opponent's account of what the case is about, and defines the issues in the case as the issues that the opponent has selected to try. …

Continue Reading Posted inDecision Making, Themes / Arguments, Trial Techniques |Comments (3) |Permalink

How Juries Think About Punitive Damages

The lawyers at Quinn, Emanuel (there’s no individual byline have written a good article on How Juries Think About Punitive Damages -The Empirical Evidence. One of the money quotes:

The studies also revealed an "anchor effect." The "anchor effect" refers to the tendency of juries to latch onto any numbers presented to them as the "anchors" for their calculations when they receive little or no guidance from a court in setting dollar awards. As a result, plaintiff 's attorneys who ask for a higher figure typically receive a larger award. One study presented cases that were identical except for plaintiff 's closing argument. One requested punitive damages of $15 to $50 million while the other requested a range of $50 to $150 million. The corresponding awards averaged $20 and $52 million, respectively.

That goes along with what I was talking about with the lawyer’s suggestion of an award being a high anchor for the jury. Thanks to Evan Schaeffer at the Illinois Trial Practice Weblog for pointing out the article.

Posted inDecision Making, Themes / Arguments, Trial Techniques |Comments (0) |Permalink

Describing Life Care Plans to Juries

According to David Ball, there is no such thing as a life care plan anymore. What we are really putting together for our client’s is a minimum life care plan. This is the minimum humane level of care for the safety and comfort of our client. Lifetime costs for medical treatment gets expensive. But we need to convey to juries that this big number is actually a floor and not a ceiling.

If new processes are developed in the future that can assist the client, there’s no money for it. This is a minimum life care plan.

If new medical techniques are developed, there’s no money for it. This is a minimum life care plan.

The life care plan calls for home health care of 8 hours during the day. The life care plan does not call for someone to be there in the evening or to spend the night with them. This is a minimum life care plan.

If she wakes up in the middle of the night in pain, there is no one to care for her. This is a minimum life care plan.

Continue Reading Posted inTrial Techniques |Comments (1) |Permalink

How to Be a Better Trial Attorney

This post is for the younger attorneys, because most of the advice will be obvious to experienced attorneys.

  1. Join Trial Lawyer Associations – If you want to be a trial lawyer, hang out with other trial lawyers who have already been there. Join ATLA and join your state TLA. Go to their seminars, go to their conventions. If you’re just starting out, go to as many as you can afford (or go to one more than you can afford). Listen to what people are saying and talk to the other lawyers. You’ll learn an awful lot about being a good trial lawyer, just by hanging out with good trial lawyers.
  2. Go to ATLA Colleges – The ATLA colleges are about as good as it gets. Start out with the Essentials of Civil Litigation and work your way from there as your budget and time allows. When I was a younger lawyer, I would sign up for a college every time I got a sizeable settlement in. You can learn more in several days than you would in years otherwise. One of the great things about the ATLA colleges is that they will match you with people with similar experience. If you’re brand new, they’ll put you in a group of people that are new to relatively new. If you’ve been practicing for 10 years, they’ll group you with more experienced attorneys.  Going to the colleges also gets you hanging out with other trial lawyers.
  3. Participate in Listservs – SCTLA has a wonderful listserv that is very active. When I talk to people from other states, their listservs are not nearly so active or helpful as ours. My guess is that perhaps being a smaller state and the lawyers knowing each other more, we get more participation. Either that, or the people are just nicer in South Carolina. Get on the ATLA listservs, get on your state listserv and if your state doesn’t have an active listserv, join the San Antonio Trial Lawyers Association listserv, which is recognized as one of the best in the country. Continue Reading Posted inTrial Techniques |Comments (1) |Permalink

Ten Minute Mentor: Great Resource of Video Talks from the Greats

Imagine being able to sit down with one of the best lawyers in the state for 10 minutes of advice. Now multiply that by 100. That’s what the Texas Young Lawyer’s Association did. They took a video production crew around the state for several months, videotaping 10 minute presentations from some of the best lawyers in Texas. Robert Ambrogi describes the project well:

In cooperation with Texas Bar CLE, TYLA created a library of short video presentations by some of the state's best-known experts on key points of law, firm-building, tactics and personal development. Anyone -- no need to be from Texas to find value in this series -- can hear veteran trial lawyer Harry M. Reasoner of Vinson & Elkins tell how to structure a legal argument, "King of Torts" Joseph D. Jamail discuss the lawyer's role in society, and Haynes Boone co-founder Michael M. Boone tell how to build a law firm that will last.

The site is Ten Minute Mentor. You can browse by topic, or by author. A lot of the information is not Texas specific. The best part of it is that it’s free. The project is described as “Concise. Practical. Free."  Yep.

[Note: I’m slow to post about this great resource. In addition to Robert Ambrogi, MyShingle, Illinois Trial Practice Blog, Al Nye the Lawyer Guy and Jim Calloway’s Law Practice Tips Blog have also gotten out the word.]

Posted inPractice Management, Presentation, Resources, Trial Techniques, Websites/Weblogs |Comments (0) |Permalink

Preponderance of the Evidence Applies to Damages

Jurors have all seen Law and Order and all those other crime dramas where the burden of proof is beyond a reasonable doubt. So we’re all used to explaining that the burden of proof in a civil case is the preponderance of the evidence. And it’s fairly easy to explain that preponderance is a standard of more likely than not and show the balancing of scales with outstretched hands.

But how many lawyers tell jurors that the amount of damages only needs to be decided by a preponderance of the evidence?

In his Summer, 2004, ATLA presentation, David Ball explained recent focus groups where they were finally able to get juries to determine damages by a preponderance of the evidence.  

Continue Reading Posted inTrial Techniques |Comments (0) |Permalink

Lawyers are Unpopular, But Others Are Disliked More

In a recent ATLA survey, few people liked lawyers. However, corporate trial lawyers were disliked more than trial lawyers. 2/3 of the people surveyed have a more favorable view of lawyers who represent people rather than companies. 85% of those surveyed trust juries more than politicians. 9% trusted politicians more than juries.

91% believe individuals should have more rights than corporations. Yet 75% believe corporations have more rights than individuals and that number is rising. People don't want their rights limited to assist corporations.

Continue Reading Posted inTrial Techniques |Comments (0) |Permalink

Some Great Legal Quotes for Closing Arguments

A few days ago, Stephen Suggs posted some great quotes to our SCTLA listserv. When I called to see if he would mind if I shared these with the rest of my readers. Stephen thought that would be great, but admitted that he had copied a number of the quotes from Gary Green’s website. Anyway, thanks to Steve and Gary here are the quotes for your pleasure:

If you do not have the basis for an argument, abuse the plaintiff. - Cicero

Law is a pledge that the citizens of a state will do justice to one another. - Lycophron, 3rd Century BC Greek poet and scholar

Wherever Law ends, Tyranny begins. - John Locke, 17th Century English philosopher

It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that's pretty important. - Dr. Martin Luther King, American Civil Rights Leader Continue Reading Posted inPresentation, Trial Techniques |Comments (1) |Permalink

The Difference Between Lightning and Lightning Bug

Mark Twain famously said “The difference between the right word and the almost right word is the difference between lightning and a lightning bug.” As lawyers, we know that the words we use are very important. A recent ATLA survey gives some insight into what words we should use at trial.

  • People like businesses, organizations and associations. People do not like corporations.
  • People like companies. They do not like industries.
  • People like the Chamber of Commerce, the American Medical Association and hospitals. They do not like the insurance industries and HMO’s.

Words make a difference. Words matter.

Posted inPresentation, Trial Techniques |Comments (0) |Permalink