Washington Trial Law : Washington State Trial Law & Litigation Lawyer & Attorney : Robert M. Boggs : Seattle, Spokane, Tacoma, Yakima, Vancouver

In the July issue of Litigation News published by the Section of Litigation of the American Bar Association there appeared a short article on "reasonable doubt".  In the article they quote Paul Mark Sandler of Baltimore on an effective way to describe reasonable doubt in a closing argument.  The quote reads as follows:

Let's assume we have a box, and in that box are a cat and a mouse.  We put the lid on the box; we walk away.  When we come back the mouse is gone.  Is there any reasonable doubt on what happened to that mouse?  But what if when we come back, we open the box and, lo and behold, there's a big hole in the side of the box.  Is there now reasonable doubt of what happened to that mouse?  Sure there is.  Well, let's turn to the holes in the prosecution's case . . . 

Great one for criminal lawyers.  I am still looking for one to describe "preponderance of the evidence" that is so compelling.

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Here is an older article from the Beyond Bullet Points blog that makes a good point about the titles we put on PowerPoint slides.  Cliff Atkinson  suggests that instead of a one word heading or a phrase use a complete sentence.  Instead of showing a slide entitled "Injuries" which then lists your client's injuries, use a sentence like "Injuries that Mr. Plaintiff sustained as a result of being run over by Mr. Defendant."  The sentence aids in the retention of the information and has been proven to work.

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I'm not one to advise attorneys to roll over and play dead when the court is obviously out in left field, but there are ways to do it and ways not to do it.  At The Practice they noted that stating the following to a judge after his ruling was not a good idea:

"Your honor, you don't cite any case or rule that supports your position. We want to know the authority for your decision."

I would like to add to that one one that I witnessed during an oral argument:

"Judge if you rule that way I'm just going to take you up on appeal .... "

What were they thinking?

 

 

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Face it, direct testimony is frustrating.  Both the attorney and the witness want to break loose with a long narrative answer.  But, of course, you can't do that so what comes out question by question seems to be a very slow, disjointed narrative.  However, it doesn't have to be that way.

A direct examiner can actually paint a vivid picture in the jury's mind with a serious of short declarative answers.  For example, consider the following passage from Pastime, a detective novel by Robert B. Parker (Spencer for Hire remember).  Read through it and see whether or not these consice sentences with very few adjectives paints a picture in your mind:

I went to Chez Vous, which was located next to an ice cream parlor behind a bookstore in a small shopping center on Massachusetts Avenue.  Four desks, four swivel chairs, four phones, four side chairs, and a sofa with maplewood arms and a small floral print covering.  The wall was decorated with flattering photos of the property available, and the floor was covered with a big braided rug in mostly blues and reds.  Two of the desks were were empty, a woman with blue'black hair and large green-rimmed glasses sat at one of the remaining desks speaking on the phone.  She was speaking about a house that the office was listing and she was being enthusiastic.  The other desk was occupied by a very slender blonde woman wearing a lot of clothes.  Her white skirt reached her ankles, nearly covering her black-laced high-heeled boots.  Over the skirt she wore a longiish ivory-colored tunic and a black leather belt with a huge buckle and a small crocheted beige sleeveless sweater, and a beige scarf at her neck, and ivory earrings that were carved in the shape of Japanese dolls, and rings on all her fingers, and a white bow in her hair.

Now take this paragraph and come up with the direct questions which will move the witness through this description at an even pace.  Get someone else to be the witness and practice your direct examination based on the facts in the paragraph.

I would suggest that when you are working up your own case for direct start with a story that has all the relevant facts that you need to get in and then work your questions so that the witness delivers the story sentence by sentence or even phrase by phrase.

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It is easy to lose a jury in opening, during direct and cross examination and during closing.  By the time a case goes to trial we usually have a command of the facts that often times is better than the witnesses'. And we certainly have a better command of the issues and the law.  This knowledge tends to produce what I would call skips in our delivery.  We know the facts so well that we jump from one subject to the next with all sorts of assumed connections that only we see or understand.  We may think the jury is following along with our mental processes but most of the time they don't.

One way to keep this from happening is to use sign posts.  Sign posts are an announcement of what is coming next.  For example: "Mrs. Jones I am now going to ask you some questions about things that occured between the time you left the store and the time you slipped on the ice." or, "[to the jury] I am now going to tell you about what caused the accident."  This lets the jury know what is coming and why you are asking the questions that you are asking.  It also is a good way for you to break things down in coherent, digestible bites.

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Mark Zamora at Trial Lawyer Resource Center has a good post on demand letters.  See also an additional comment by Ron Miller.  Mr. Zamora states the following:

Demand letters that do not demand a sum certain: With few exceptions, none of my demand letters states a dollar amount to settle. My clients always receive a copy of the demand letter sent out, and it has become too cumbersome to inflate a number in the letter only to have to convince our injured client to accept an offer that is lower than a stated amount. Exceptions of course are demand letters seeking policy limits.

I would like to add one additional comment to this from my perspective as a sometime defense attorney for school districts.  Demand letters that come with an inflated number get nowhere.  Every time we got a demand letter that asked for a number that was astronomical, the demand letter was essentially ignored.  We, the defense attorneys, were told to open a file and get ready to start discovery.  It was assumed plaintiff's attorney would be unreasonable.  On the other hand, demand letters without a number got more consideration as they were seen as an invitation to start some sort of dialogue on value.

And as a postscript.  In a mediation years ago where the initial demand letter had been astronomical, I distinctly heard from the room where the plaintiffs were caucusing a loud voice saying, "But what about the 12 million ......."

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I was recently reading an older post at  MyTrialBlog.com entitled "Presenting the Right Theory is the Key to Successful Trial Practice".  The blawger and author of the post, Mitch Jackson,  stressed how important it was to come up with the right theory and then stick to that single theory.  Everything you do in the case must support that theory.  This post reminded me of a case I had years ago where this point was driven home to me.

I had my hat on as a defense attorney and was defending a wrongful death case involving a five year old child who was killed in a parking lot at a school.  The plaintiff's theory was that the parking lot was nothing but chaos and confusion and therefor was an accident waiting to happen.  I approached the case from a proximate cause angle in that there was no proximate cause.  Assuming there was chaos and confusion it had nothing to do with this accident as the mother of the child  had safely escorted her child to the car but then left him on the traffic side of the car to get in on his own rather than putting him in the car seat and closing the door.  The child, once he was unattended, wandered away from the car and got in front of a pick up truck parked next to his mother's car just as it was leaving and was run over because the driver of the pick up could not see a small child who was in front of the truck but out of site.

Through out the trial I heard "chaos and confusion" and "an accident waiting to happen" over and over again.  During closing arguments the plaintiff's attorney just repeated this mantra over and over again and did not address proximate cause.  Of course during my argument I pointed out that the plaintiff's attorney never addressed proximate cause and I laid out the case for why there wasn't any.  During rebuttal I expected the plaintiff's attorney to address the proximate cause argument.  He never did.  He just once again said over and over it was all "chaos and confusion" and was an "accident waiting to happen.

The jury verdict was for the plaintiff.  I asked one of the jurors how in the world they found proximate cause.  Well, he said, it was an accident waiting to happen with all that chaos and confusion.  Point made.

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Over the years I have had the opportunity to sit many times as an arbitrator in all kinds of cases. If you get the opportunity to do the same I would highly recommend it. It gives you a tremendous insight into what judges experience when they are hearing and subsequently deciding a case.

The best thing I have taken away from that experience is this concept: “Make it easy for the judge.” The judge after all has a job to do. Whether he or she is deciding evidentiary motions during a jury trial or deciding the facts in a bench trial, the judge is engaged in mental effort. The easier you can make it for the judge the more likely you are to receive favorable rulings and judgments. Judges are human and humans, for the most part, will look for ways to make their jobs easier. Make sure you are the one that provides the easiest way.

Here is one example. In your memorandum supporting your motion or in your trial memorandum in a bench trial, try working into the memorandum the draft of the court’s ruling that you want supported with reasons. For instance, in a bench trial try concluding your memorandum with something along these lines:

After hearing the evidence in this case the Plaintiff believes that the court should make the following findings of fact:

1.      Fact one ….. The court should so find because …

2.      Fact two …. The court should so find because …

And should make the following conclusions of law:

1.      Conclusion one…This conclusion is based on …

2.      Conclusion two …This conclusion is based on ….

Now the court may or may not rule in your favor but you will have gone a long way towards defining the court’s focus in the case and hopefully leading the court your way. You can imagine that your “findings of fact” will in fact become the judges check list as she or he decides the case.

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When cross examining witnesses avoid adjectives.  The use of an adjective just invites an argument. For example:

Q: You were driving extremely fast?

A: No, I wasn't driving "extremely" fast.

Q: You were driving 30 miles per hour over the speed limit.  Wouldn't you say that that was extremely fast?

A: No, there was no other traffic and the road was wide and straight.  So while I was going 30 miles per hour over the speed limit, I was not driving "extremely" fast for the conditions.

The better questions would be as follows:

Q: You were going 65 miles per hour?

A: Yes.

Q: The speed limit was 35 miles per hour?

A: Yes.

The members of the jury will fill in "extremely fast" on their own.  While the witness may still try to slip in his excuse in response to the better questions, it is much less likely to happen. 

 

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