The Art of Advocacy

The best way to refute: know your opponents' case better than they do

Thu, 15 Mar 2012 13:40:13 -0500

When Abraham Lincoln was asked his secret for winning lawsuits, he reportedly replied that he understood the opposition case better than the opposition understood its own case. Lincoln was articulating a basic truth about trial strategy: that winning involves the art of immunization and refutation. In simplest terms, this means persuading the judge and jury that your argument makes more sense than the opposition’s – something you can only do when you know the opposition’s case as well as your own. Yet immunization and direct refutation are two important aspects of persuasion that -- while understood by many -- are mastered by few.

In refutation, you reveal weaknesses in your opponent’s argument in a way that makes them unacceptable to the judge or jury. To prepare a good refutation, consider all possible points you can use to undermine your opponent’s case. Use “blocking” to identify the best ones. Blocking involves writing the opponent’s main points in an outline or diagram form, followed by a list of refutation points. Once you have blocked your opponent’s argument, you can more easily select the points you need to refute and the method of refutation that will work best. Be selective in choosing what to refute: you want to go with the strongest points and not over-saturate your listener.

Methods of refutation can include immunization, direct response and rebuttal. Immunization involves introducing your own case’s weak points before your opponent has the chance to introduce them for you. Proper immunization shows your listener that you have considered all sides of the case – both sides’ strengths and weaknesses -- and are convinced that your position is the only one that makes sense. When you are the first to present an argument, provide an explanation of any week points in your case up front. This often has the added benefit of putting your opponent off balance so that he or she cannot present an effective response.

There are two basic types of immunization: forewarning and inoculation. Forewarning involves alerting your listener to what you anticipate your adversary will argue. In a personal injury case where contributory negligence is a defense, you might argue: “The defense will contend that Mr. Smith was also negligent and that his contributory negligence bars his right to recover from the defendants.” Alerting your listener to the opposing point of view prepares your listener to absorb the opponent’s attack without abandoning your point of view.

Inoculation involves forewarning followed by some explanation of why the adversary’s argument is defective. This fuller explanation can be reserved for a subsequent time, such as during rebuttal, but it is sometimes better to give a full explanation at the outset of your argument. This is particularly true when you know the defense is going to raise a crucial issue in the case and you want your listener to hear your version and explanation first.

Before you attack your opponent’s argument, however, you must first have built a superior case of your own. Almost all refutation involves not only destroying your opponent’s view of the case but also substituting your own theme or version. Exceptions are limited but do exist. For example, if you are arguing that your opponent has failed to satisfy a burden of proof, you may not need to present a counterpoint.

When you create a positive theory you do more than simply give your listener a more believable alternative scenario. A positive theory may also help persuade the judge or jury that the other side’s burden of proof has not been met. In a case where contributory negligence bars recovery, a plaintiff may want to emphasize the defendant’s own negligence as she argues that she was not contributorily negligent. The theory here is that the stronger your argument regarding the defendant’s negligence, the less likely the judge or jury will find the plaintiff’s negligence contributed to the event.

As you study your opponent’s case, consider whether the opposing side is staying true to the facts or running contrary to the evidence. If your opponent’s argument plays fast and loose with documents or testimony at key points, prepare to demonstrate this to the listener. This is a key part of refutation, and it is important in these instances to use a direct and forceful approach: “Don Smith never testified that the light was green. Let us review what Don Smith actually said.” That said, do not select insignificant factual errors for attack. Doing so may annoy your listeners and come across as a waste of time.

As part of your direct response, you may also find opportunities to challenge your opponent’s evidence. For example, you can show an opposition witness’s bias by revealing that an alibi witness is the defendant’s mother or spouse, or that the government’s witness is testifying as the result of a plea bargain.

You may also find opportunities to demonstrate that your opponent’s version of the case is improbable or that it is based on irrelevancies or minor evidence that has been given undue weight. Additionally, you can also point out where significant evidence has been ignored by the other side. Take the following example: say that during argument in a civil case for assault, your opponent argues that the plaintiff was the first aggressor. However, your opponent avoids sharing the fact that before arriving at the scene, the defendant went home and searched for an old hunting knife that he brought with him to the scene. Clearly, you would argue that your opponent ignored the very conduct that shows the defendant’s intent.

There are many more ways to refute opposing points in a trial. In my book, The 12 Secrets of Persuasive Argument, I review them in more detail. The bottom line is, study your opponent’s case carefully. It could be the difference between winning your case and losing.

Thurgood Marshall and the value of moot court

Sun, 12 Feb 2012 14:07:07 -0500

Recently I was reminiscing about a day long ago when I met briefly with one of our country’s most admired and iconic men – Supreme Court Justice Thurgood Marshall – and what I learned from him about the value of moot court in preparation for trial. I had shared my recollections in a speech I presented at a ceremony of the American College of Trial Lawyers but I think the values of the lesson are worth sharing here as well.

I was an 18-year-old college student when I had the opportunity to meet with Justice Marshall, who was then Solicitor General of the United States. I had been writing a thesis about him for a college class and thought it might be interesting to meet him in person. I called and explained myself to his secretary who laughed at my apparent naiveté but remarkably arranged the meeting. Once I was at his office, Justice Marshall made me feel comfortable and at ease almost instantly. He had a great buoyant laugh and a wonderful, slightly baudy sense of humor. Once we got down to business, I questioned him about Brown v. Board of Education.

This is what he told me: In preparing for oral argument in the Brown case, he had conducted a moot court session at Howard University Law School. Shortly thereafter he was scheduled to begin oral arguments before the United States Supreme Court. As a young college student, I wasn’t familiar with the expression “moot court,” so he explained to me that moot court was the term used to describe a simulated argument for practice. With moot court, he elucidated, “You can iron out the wrinkles of your argument and observe the reaction of your listeners for purposes of strengthening your case.”

Justice Marshall went on to explain that the moot court session for the Brown case seemed to go on forever, with law students – in their roles as mock judges -- peppering him with an endless stream of questions. At around midnight, one particular student asked him a question he simply could not answer: “By this time I was shocked and also weary,” he said. “It was after midnight, but, young fella, the duty of a lawyer is to push forward. And so we did, and we worked out an answer.”

At this point in the story, Justice Marshall paused briefly, but then continued: “Then the day of the hearing, damned if one of the Justices didn’t ask the same question. I just looked at the Justice; put my hand on my chin, looked down and gathered my thoughts, and pow – right in the kisser -- nailed the question.”

This remarkable meeting confirmed my desire to become a trial lawyer. More than forty years later, I often think about my brief time spent with Justice Marshall and the stories he took the time to share with a young college boy who simply had the audacity to call him up and ask for an interview. I also think often about the value of moot court and what our country might be like today had not this great man also seen its value.

In trial, be visual: technology makes it easier than ever

Wed, 01 Feb 2012 19:12:13 -0500

“To see is to believe,” we hear quite often. For trial lawyers today, it’s an important message to keep in mind. Visual aids work wonders in the courtroom and thanks to the myriad technologies offered today, creating a visual impact has never been easier.

As a longtime Baltimore trial lawyer I regularly use visual aids ranging from simple charts and diagrams sketched on an easel to multifaceted PowerPoint presentations. The combination of high-tech imagery and low-tech witness examination often creates vivid, lasting memories in the minds of jurors. As technology has evolved, there are now even more ways to show exhibits in a courtroom. Keep in mind, however, that it is not sophistication that counts but how well the imagery persuades.

Studies indeed show that people are more likely to believe what they see than what they hear, but different people process information in different ways. With that in mind, it is best to vary your visuals so that your message is fully received, in one version or another, by each of your listeners. Some individuals are most receptive to logical and straightforward information – best expressed in charts, graphs and technical exhibits. Others benefit most from comparisons, stories, examples and familiar analogies. Photos and more vivid images may be a better conduit of information for this latter group. Increasingly, judges and younger jurors are far more accustomed to visual images than are older baby boomers, so it is more important than ever to maximize your use of visuals and their variety.

Remember, even with a heavy use of visual aids, uniformity and monotony will reduce their impact. Your challenge is to capture and hold your listeners’ attention throughout your arguments. After an hour of videotape, for example, move into a colorful, high-tech PowerPoint presentation, and follow that with information on a chart that you highlight using a manual pointer. The art of balancing demonstrative aids and testimony can be comparable to directing a play or film. When you show the evidence, how you display it and what you say about it play a role in how effective you will be.

As is true with the presentation of any evidence, the use of exhibits in argument should be strategic. Consider whether to use exhibits that already exist and were introduced as evidence during the trial as well as exhibits created solely to enhance your argument. In a contract dispute, for example, the written contract constitutes not only the formal embodiment of the agreement of the parties at the time but also concrete evidence of the parties’ true intent. You can argue effectively that it is not necessary to rely solely on the plaintiff’s present recollection of events surrounding the execution of the contract. Instead, you can find in the actual contract a record of the parties’ intent. You may, however, need to create a new exhibit for that contract to have maximum impact: Would a model or reproduction help hit the mark? Would a timeline help make the alleged sequence of events easier to follow?

Though most courtrooms today have projectors, monitors and other devices at the ready for attorneys to use, it is always advisable to meet with the judge’s law clerk or the court’s technology advisor to discuss in advance your technology needs, both generally and logistically. Details such as where a projector and monitor should be positioned for optimal juror viewing, and where best to set up your other demonstrative aids for maximum impact, are best planned out well in advance.

Another thing to consider as you iron out your visual aids is how to respond if opposing counsel seeks to use your exhibits. You may or may not find it appropriate to accede to the request. Your opponent might effectively discount or reverse the power of your exhibits and use them to his or her own advantage. On the other hand, you might appear ungracious or petty to the jury if you were to refuse. Therefore, discuss in advance how your opponent may use your exhibits. One of the advantages of PowerPoint or other downloadable presentations is that they are controlled from your laptop computer. When you are finished with your argument, you can turn off your computer and return to your seat. Rarely would opposing counsel gather the courage at that point to ask if he or she could use your laptop.

Finally, despite the numerous advances in technology and their ease of use, always come prepared for the worst. Be sure to have a backup copy of all your presentations, and make sure you have an appropriate programmer or technical advisor on hand in case something requires immediate attention. Know your visuals sufficiently so that you can face the jury while you present, and not focus your attention solely on the demonstration at hand.

Keep in mind that though demonstrative aids can be a powerful weapon in your arsenal, American juries can quickly become cynical if the gloss is stronger than the message you are conveying. High-tech presentations can be and should be used to support your argument, not detract from it.

Memories of a great Baltimore lawyer

Fri, 09 Dec 2011 16:23:41 -0500

Several weeks ago, the Bar Association of Baltimore City honored me with the Charles H. Dorsey, Jr. Mentor Award. While it is gratifying to be honored by friends and colleagues, what made this award even more special was that I knew Mr. Dorsey well and respected him deeply. As long-time Executive Director of Maryland’s Legal Aid Bureau, Mr. Dorsey was a champion of the poor and underprivileged. He was also a patient and dedicated mentor to young lawyers trying to give back to society. I was just a law student in the early 1970s when I clerked for him and the Maryland Legal Aid Bureau. Yet the lessons I learned during that time still impact me more than 40 years later.

I remember Mr. Dorsey’s words when I spoke with him after a particularly unpleasant encounter at the clerk’s office of the circuit court. I had gone to court to file some papers and the clerk was blatantly discourteous. It was clear she viewed work for the Legal Aid Bureau as somehow of less merit than other cases filed there. The encounter had left me both disheartened and frustrated. Yet Mr. Dorsey took the high road, as he always did.

“It is our job by the strength of words and persuasion to change this attitude, which is not just in Baltimore but in many jurisdictions in the United States – and even within the legal profession,” he said. “The best way to help change people’s minds about the importance and value in what we do is by our actions in becoming involved with those who need our legal assistance and are too poor to afford a lawyer.”

Mr. Dorsey’s words carried me through many other unpleasant encounters, and I still believe there is no higher service we can perform as lawyers than to support the Legal Aid Bureau and its goal of ensuring that even the poor and infirm have equal access to the legal system.

I also try to heed Mr. Dorsey’s example of mentoring young lawyers striving to be outstanding attorneys and community leaders. A few straightforward suggestions to that end:

· Find a mentor -- not just inside your office but also outside;
· Give your best to every assignment, no matter how small or seemingly inconsequential;
· Learn from your mistakes;
· Tailor your work or your legal arguments to your particular audience, noting carefully what resonates and what does not;
· Become involved in your local and state bar associations, as well as in your community and in the issues that matter most to you; and
· Exhibit civility, professionalism and high ethical standards in everything you do.

The media and you: think before you speak

Mon, 26 Sep 2011 09:46:57 -0500

During my many years of practice as a Baltimore trial attorney, I have periodically been involved in cases that have garnered a great deal of media coverage. I’ve learned that when it happens, it happens fast: calls come in all at once from multiple television stations and newspapers – and everyone needs to speak to you right away. Everyone is on deadline.

My advice is that, before fielding any of these calls, you should have your secretary tell everyone you’ll call them back within 30 minutes. Then, take a moment to ponder the following points:

First, consider ABA Model Rule 3.61, which prohibits counsel from making public statements that will have a high likelihood of materially prejudicing the proceedings. The rule does allow counsel to confirm or explain information that is in the public record, as well as provide notice that an investigation is in process, and status information about the case. Significantly, the rule also allows a lawyer to make a statement that a reasonable lawyer would believe necessary to protect the client from substantial prejudicial effects of recent publicity not initiated by the lawyer or the lawyer’s client. Regardless, consider the ramifications of the rule carefully.

Also, consider drafting a prepared statement to recite to any reporter who contacts you. Ideally, you should prepare this statement in advance -- even if you think there is only a remote chance you’ll be contacted by the media. A prepared statement helps protect you from two very real human tendencies – the tendency to ramble in response to a question without hitting the point directly, and the tendency to think out loud, thus risking the exposure of information you might not have planned to reveal. Remember: when talking to reporters, whatever you say is quotable.

A side note to this: “off the record” can mean different things to different people. Don’t make a comment first and then ask that it be considered off the record. Similarly, if a reporter agrees in advance to an off-the-record comment, make sure you both agree when “off the record” has shifted to “on the record.” Failure to clarify this can result in an embarrassing surprise on the publication's website or in its newspaper the next day.

This leads to my next suggestion: crystallize your message. People speaking to the media often complain about being misquoted. This is often the result of a reporter misunderstanding your comments or an editor choosing to delete that very portion of your comments that you believe was central to your message. You can minimize the frequency of these scenarios by being ready with a short, specific quote that advances your position crisply and clearly.

Notwithstanding all of the above, before you pick up the phone, consider the courtroom climate. Remember that anything you say to the media is surely to be read by the judge and opposing counsel. Certainly, if the court informally suggests that counsel limit remarks, you must be careful to abide by the court’s wishes.

Finally, despite the allure of fame and glory, weigh whether speaking to the media about the case is truly in your client’s best interest. Sometimes comments to the media can positively impact your case by making the media aware of public information that may be advantageous to your side. Other times, the risk of jeopardizing your case or your credibility with the court outweighs any advantage in speaking to the media. Don’t let you be swayed by the appeal of seeing your name in print.

(Adapted from "Think Before You Leap: Talking to the Media," a chapter I wrote for the book Lawyers and Reporters (ABA, 2000), edited by Robert L. Rothman.

Don't forget the five-minute rule

Tue, 30 Aug 2011 09:09:25 -0500

Trial lawyers be advised: don’t forget the five-minute rule. This rule pertains to the first five minutes of your opening statement. Some say it’s the most important part of the trial because jurors who form opinions about the case after the opening statement rarely change their minds during the rest of the case. And the first five minutes have the strongest impact.

The general rule is that, if you can’t engage your listeners immediately and take full advantage of the doctrine of primacy (also known as the first-impression effect), you might as well stay seated. The five-minute rule holds true whether you represent a plaintiff or a defendant, and whether you are the first to present the opening or the second.

When you present the opening for the plaintiff, the jury or judge will likely be hearing for the first time the nature of your case and what you will attempt to prove. When you represent the defense, you may confront the challenge of breaking the spell cast by the plaintiff’s counsel. In both circumstances, you had better present your side aggressively in the first five minutes or you will lose your listeners’ attention.

Here are four considerations for your next opening statement:

First, present a strong introduction. There are several ways to accomplish this. You might start with a compelling question that is central to the case, or you could start by telling a story. Humor and the creation of suspense are proven methods of captivating a jury. Another way to grab your jury’s attention right away is to begin with the main point of your case – but with no build up. For example: “In this case an innocent woman who dearly loved her husband is now falsely accused of hiring someone to kill him. Let me tell you about Mary Smith.”

Your second consideration should be to how to present a favorable impression of yourself. The judge or jury’s impression of you as a person directly bears on your persuasiveness. Demonstrate sincerity in your cause, compassion for the situation and appreciation for the attention of the listener. A courteous smile and a word of gratitude can go far. Be mindful to avoid obsequious behavior and body language that contradict for presentation. For example, when you introduce your client in a criminal case, keep your expression pleasant and your physical presence close so that the jury sees he is not a dangerous person or someone from whom to keep a distance.

Another thing to consider is the theme of your case. Every case should have a theme and, within the first five minutes of your opening, your judge and jurors should know what it is. Themes appeal to the organizational structure of our interpretation of events, they help listeners make sense of all the facts presented and they help hold listeners’ attention. The theme might embrace the facts of the case and reach to a higher or universal level. Here is an example: “This is the case of the careless landlord. He was careless because he failed to consider the safety of his occupants; he was careless because he failed to repair the screen door on the porch after he received numerous complaints; and he was careless because he could not care less about the children who lived there.”

Finally, once your theme is introduced, consider providing the judge or jury with a verbal outline of the main points and facts of your case. An outline can facilitate the learning process and help the listener focus on your theme as the case progresses. Studies show that we learn best when we are first provided with an outline of the subject matter that will follow.

Take the example mentioned above. If we want to outline the main facts of the case after we present our theme, we might consider something like this: “The landlord’s carelessness will be exposed by the following cold, hard facts: First, he ignored the calls of the child’s mother to repair the screen door; second, he did not repair the door even after receiving written notice from the neighbor that all the doors in the complex were defective and third, the landlord ignored his own contractor, who reported a problem with the defective door.”

While the first five minutes of the opening statement clearly offers challenges to any trial lawyer, these first five minutes also offer tremendous opportunities. They lay the groundwork for a winning case.

Know the judge as well as you know your case

Mon, 22 Aug 2011 11:32:44 -0500

When preparing for a trial, it is a given that you will spend much time preparing your case – focusing on the facts and law that are directly relevant to the matter in dispute. However, as I’ve learned from years as a trial attorney in Baltimore, a good pre-trial investigation also involves learning about the judge who will preside over the case.

As a trial lawyer, the more you know about the judge’s attitudes, beliefs, values, style, personality and background, the better able you will be to tailor your arguments to his or her predispositions. Many tools are at your disposal. Thanks to the Internet, numerous forums are available that may give you insight into the judge’s leanings and background that were not available years ago.

In addition to conducting online research, you should speak to the judge’s previous law clerks as well as other courthouse personnel and attorneys who have argued before this particular judge. There is no better way to gain insight into the judge’s style and idiosyncrasies that might have an impact on your case. You might learn, for example, if this judge is known to pepper counsel with many questions or if she tends to favor the government or the defense in criminal cases. You might learn if she has a short attention span or if she will likely have read your brief before oral argument – or if she’d likely just put it aside. Even details like whether she would be receptive to your moving away from the lectern are helpful in mapping out your strategy.

Say you learn from a previous law clerk that the judge disdains lengthy pleadings and, unfortunately, your complaint is very lengthy. When the court convenes and the judge asks if there is any business to discuss before proceeding, you might consider a response along these lines: “Your Honor, I would like to apologize to the court for the length of the complaint. Because this case is the subject of parallel proceedings in two other jurisdictions, we were compelled to present many facts that ordinarily would have been omitted.”

In this way, you confront the court’s concern in a pleasant manner before the judge ever addresses the issue, and you establish common ground and a mutual understanding.

As you conduct your research, be extremely mindful to avoid criticism of the judge or her style. I recall a trial in Baltimore several years ago during which two lawyers were in the courtroom before the judge entered. One attorney asked the other his opinion of the judge, to which the attorney answered that the judge was “in over his head.” The judge overheard the comments because the internal video and audio systems were inadvertently left on at the time. That did not set a good stage for the proceedings that followed.

Interviews with those around the judge will help you grasp her courtroom style, but you should also plan to read relevant opinions or other writings of the court so that you can gain an appreciation of the judge’s views. If those views differ from your position in your case, it’s best to know that before presenting your argument so you can work with or around the judge’s views most effectively.

You might confront the issue by stating to the judge, “I realize, Your Honor, that in the Baltimore Savings and Loan case you opined that a breach of fiduciary obligation is not an independent cause of action. Nevertheless, there are compelling reasons why you should consider modifying your view in this particular case.”

By doing this, you signal to the judge that you know and respect her view but that you want her to listen to your presentation with a mindset hospitable toward modification. You also remind the court that you are aware of the court’s standing on a particular point, have factored it into your argument, and you establish a common point on which your argument may begin.

Keep in mind that you sometimes may not want to attempt to persuade a judge to change a viewpoint because you believe the task is hopeless. In that event, you should focus on establishing the proper record for appellate review.

Though all of this research will be immensely helpful in preparing your case, bear in mind that there is no substitute for firsthand knowledge. If you are presenting a case before a judge for the first time, make every effort to observe the judge in action in several cases. Note the judge’s style, what she seems to like and dislike, how she relies on other cases. Then, tailor your presentation to her preferences. It is just part of the job of preparing your case for trial.

Protect trial by jury by limiting pre-trial discovery

Thu, 04 Aug 2011 14:24:39 -0500

As a longtime Baltimore trial attorney, I know that trial by jury is a unique and valuable feature of American government. In recent weeks, juries have come under a storm of criticism from members of the media following the Casey Anthony verdict. This criticism overlooks the historical importance of trial by jury, and the vital role that juries play today. Media criticism, however, is not the most serious threat to the continued existence of jury trials. Far more worrisome is the proliferation of costly pretrial procedures, which deter litigants in civil matters from pursuing their cases to trial. Without reform of these procedures, trial by jury is in danger of becoming a mere historical memory.

While the result in the Anthony trial was unpopular, it was not unreasonable. There was a sufficient factual basis for the jury to find the defendant not guilty based upon reasonable doubt. Even if the jury in the Anthony trial had erred, however, one aberrant verdict could not justify limitations on jury trials. Most statistical analyses report that jury verdicts on the whole are fair, reasonable, and appropriate.

History has shown the vital importance of juries to a free society of laws. While the ancient Egyptians and Greeks employed juries, our present system can be directly traced to the reign of King Henry II in 12th Century England. Henry sought a more rational method of resolving legal disputes than gruesome ordeals or trials by combat between the parties. He chose to place responsibility for fact finding in the hands of bodies of twelve individuals - jurors. The Magna Carta explicitly recognized a right to jury trial in 1215, after a group of nobles forced King John to accept limits on the authority of the crown.

English colonists brought juries to America, where the right to a jury trial became so important that the Declaration of Independence, in listing the colonists’ grievances, criticized George III, “for depriving us in many cases, of the benefits of trial by jury.” Since most colonial judges were appointed by the crown, colonists had relied on juries of their peers to defend them from arbitrary imperial laws.

After the colonies won their independence, trial by jury was a major issue in the debates over the formation of a new government. Ratification of the US Constitution almost failed due to its lack of an express requirement of civil juries. One distinguished Maryland attorney, Luther Martin, pushed hard for a jury trial requirement, which was eventually enshrined in the Seventh Amendment. Many states, including Maryland, have enacted similar provisions in their constitutions.

Juries are no less important today. In criminal cases, they serve as a check on overzealous prosecutions. In civil cases, jury verdicts advance the rule of law and influence social policy. For example, a verdict in a medical malpractice case might lead healthcare providers to render better treatment. And jury service is one of the few means, other than voting, that most citizens have for participating in government.

Conducting jury trials in the digital age poses new challenges, but these can be overcome with proper measures. While a juror may be tempted to use the internet to improperly research or discuss the trial, appropriate warnings from the court can deter such behavior. In a high-profile case, the court can “sequester” jurors, that is, require them to stay in a hotel out of contact with the outside world.

Unfortunately, other modern developments can prevent litigants from even bringing their disputes before a jury. In federal courts, less than one percent of all civil cases end in a jury trial. Since few lawyers have had the experience of litigating a jury trial, lawyers may choose to settle a case rather than risk a jury trial, to the detriment of their clients.

The primary reason for this state of affairs is the skyrocketing cost of litigating a civil case. Most, but not all, of this cost is attributable to pretrial discovery. Discovery is the stage of a case in which the parties, through their attorneys, request documents from each other, exchange questions (interrogatories), and conduct depositions (interviews of potential witnesses). In depositions, attorneys can spend hours arguing over the propriety of a question. Document requests are also problematic. Since companies and even individuals store most of their data electronically, the parties to a case can spend thousands of dollars retrieving, reviewing, and exchanging electronically-stored data, and thousands more fighting over the adequacy of these procedures.

Courts have struggled with these problems for decades, making little appreciable dent in the trend towards ever-more-costly civil litigation. Dramatic action is needed, such as re-writing the entire pretrial discovery rules for civil cases. The cardinal principle of the new rule should be: no pretrial discovery except that which is available in criminal trials, with judges retaining the power to make exceptions where warranted.

It is telling that pre-trial discovery in criminal cases -- which often involve life and liberty -- is far less expensive and time-consuming than in civil cases. Unlike civil cases, criminal cases involve no depositions or broad document request by the accused. In criminal cases, parties exchange witnesses and statements at specified times, counsel interviews the witnesses and they proceed to trial.

If courts eliminated much of the pretrial discovery in civil cases, legal fees and costs would go down, the litigants would be better served, and the vital institution of the jury trial may be rescued.

"Classical Rhetoric and the Modern Trial Lawyer"

Wed, 27 Jul 2011 10:32:34 -0500

While trial and appellate lawyers today strive for that one technique that wins the case, it is often helpful to review historical approaches to client advocacy in mining for strategies. As far back as ancient times, advocates used many techniques of rhetoric that are still of value in today's courtrooms, as I have found in my practice as a Baltimore trial attorney.

In "Classical Rhetoric and the Modern Trial Lawyer," an article I wrote for the Winter 2010 issue of the American Bar Association's Litigation magazine, I covered this subject in great detail. I was joined by two colleagues, Ronald Waicukauski and and JoAnne Epps.

The article is embedded below. Click on the "+" button at the bottom of the embedded screen to enlarge the type. If the article interests you, consider reading The 12 Secrets of Persuasive Argument, published by the ABA in 2009.

Classical Rhetoric

The US versus Canada: a friendly competition

Mon, 25 Jul 2011 10:22:39 -0500

It’s the United States versus Canada – but it doesn’t involve hockey or other winter sports. Rather, it’s a friendly competition in the courtroom featuring trial lawyers from the United States representing the plaintiff in a wrongful termination case against a team of Canadian lawyers representing the defense.

The program is called “Trial Practices in Canada and the United States: A Comparison.” It will be held on August 4, as part of the American Bar Association’s annual meeting next month in Toronto, Canada. This particular event is being hosted by the Litigation Institute of Trial Training ( “LITT”), the organization I founded several years ago to help young trial lawyers hone their skills.

In the program, two judges will preside -- one from the United States and one from Canada. A jury will also be rendering a decision. In addition to gaining valuable courtroom exposure, trial lawyers will have the opportunity to learn the courtroom protocols of our neighbor to the North.

Following the “trial,” we will feature a panel discussion about the differences in the trial practices in the two countries. Though in many ways our systems are similar, the differences are fascinating. In Canada, for example, all matters in the federal courts are heard and determined without a jury. Though in some provinces civil jury trials are available, the court can “strike the jury” if it determines that the factual issues are unduly complex. Pretrial discovery is also more limited in Canada. In Ontario, for example, a party is limited to a total of seven hours of deposition regardless of the number of depositions the party undertakes. Also, in Canada, counsel under some circumstances may answer for the witness and non-parties may not be deposed, with limited exceptions.

If you would like to attend the LITT program in Toronto next month, or if you’d like any additional information about the LITT program in general, please contact the ABA.

Mock trials are serious business

Sun, 17 Jul 2011 12:46:06 -0500

I’ve written many times about the importance of hiring good jury consultants and the value of conducting mock trials. The Casey Anthony trial provides a perfect example of why it’s worth going through that time and expense.

While the media and the public have responded with shock and outrage at the verdict, jury consultants – including those who worked on the case – say they weren’t surprised. As reported in the Palm Beach Post, two mock juries, one conducted for television and one for the defense, both resulted in not-guilty verdicts.

Hiring a jury consultant certainly doesn't guarantee a win for your side, but it definitely helps you build a stronger case when you present before a jury. Jury consultants not only help in voir dire to “unseat” potential jurors who are most likely to be unsympathetic to your client. They are also the most qualified people to help your team conduct a mock trial – and there is no better way than a mock trial to explore how your overall case and all its parts will play with a jury. If done correctly, a mock trial will reveal your strategy’s general and particular flaws as well as its strengths. It will also give a feel for how individuals will react to – and think about – the evidence and arguments you intend to present.

To get the most out of the process, you have to provide the jury consultant with a summary of the case from both sides, jury instructions and a verdict sheet. It is also helpful to offer a draft of the pretrial order, which you should be developing by the time you are ready to present a mock trial.

The jury consultant will engage a research studio where you will eventually present the mock trial of your case to a group of strangers. These strangers – selected by the studio – should match the profile of the actual jurors who will hear your real case. How can you be sure that the “mock jurors” will match the profile of the actual jurors? You can’t – but you can make an effort to come close. Within a month or two of the trial, contact the jury commissioner for the court and, if possible, obtain a copy of the current jury list. The list is often available, though not always. Your jury consultant will pass the list on to the studio or research center, which will recruit people from its database who match the profile of the actual jurors. The participants are usually compensated about $100 per day, though that can vary by jurisdiction.

Before you come face to face with the group, you may need to consider which aspects of your case you should present. Be selective. It isn’t often that you can – or would even desire – to present your entire case at mock trial, particularly if the upcoming trial is complex and lengthy. Focus on the key aspects of your case: perhaps the opening statement and closing argument, crucial witnesses and any area about which you feel uncertain.

A good jury consultant can work with you to identify your goals of the mock trial. You may want to discern the type of jury that would be supportive of your case or identify the type of juror who could be harmful. You may want to learn how you are received as counsel. You may also need to know what further information the jury believes should be presented on behalf of your client.

Once you’ve sorted this out, the consultant can help you develop questions for a focus-group meeting following the mock trial and mock-jury deliberations. From this you can glean which witnesses were perceived as more credible than others – and why. You can also learn whether particular strategies you devised were stronger or weaker than you imagined.

To make the mock trial worthwhile, you have to give the opponent a fair shake by presenting the opposing side, including opposing witnesses and opposing counsel. Given that you obviously won’t have your real opponents to assist, you can ask colleagues to portray the other side’s counsel and witnesses. You may also have video depositions at your disposal.

Jury consultants and mock trials don’t come cheap. They can range from less than $10,000 to well more than $100,000. If money is a big issue, consider working with a jury consultant to create a mock trial that only deals with opening statements and perhaps one or two witnesses. Worse comes to worst, assemble your office staff in the conference room for a few hours and use them as mock jurors.

The bottom line is that preparation for a trial is key to its success. And there is no better way to prepare than with a good jury consultant and a well-run mock trial.

Protect your right to appeal as you try your case

Sat, 09 Jul 2011 15:57:27 -0500

There will be cases in which victory will not be yours. In some of those cases, your client may want to appeal the court’s ruling. It is your job as her lawyer to protect this option to the best of your ability.

Bear in mind that appellate courts exist solely to review errors of law committed by the trial judge. In other words, your client cannot appeal simply because she wasn’t happy with the verdict.

Still, good trial lawyers try every case with a third eye – two eyes on the trial and the third on the record that an appellate court may ultimately review. They protect the appeal by making timely objections when appropriate and following up by a proffer when prevented from introducing evidence. Good trial lawyers get deeply familiar with the rules of procedure and evidence.

At all times during the trial, when good trial lawyers spot errors of any significance, they obtain a ruling from the judge. Without a ruling from the court, the trial lawyer has not preserved the right to appeal on that matter. Such was the fate of a lawyer who discovered what he considered to be jury misconduct. He never brought the matter to the attention to the judge. Ultimately, he found himself in court defending his omission.

This doesn’t mean that, as an alert trial lawyer, you must object to every infraction you see. Persistent objections will agitate judges and jurors alike, especially if many of these objections are overruled. A barrage of objections by you may cause jurors to think that you are trying to hide certain facts. Before you object, ask yourself: Will this objection help the case? Will it help in appeal? If not, it may be better left unspoken.

That said, certain objections are important in preserving an appeal: Be ready to object to summaries or charts coming into evidence that are not based on genuine data you have had the opportunity to inspect – or if that data is being misstated or mischaracterized by the opposing party.

Compound and leading questions, calls for a narrative, and “asked and answered” questions are often worthy of an objection, as are opposing counsel’s assumptions or misstatements of facts that are not in evidence, or that are argumentative or ambiguous.

Study the Federal Rules of Evidence, and, in particular, Federal Rule 404. This rule deals broadly with character evidence, providing that evidence of a person’s character is inadmissible to prove action in conformity with that character. It is only when character is an essential issue in a charge, claim or defense that the character evidence in question would be allowable. For example, if an individual is on trial for assault, evidence that underscores his peacefulness would be permitted. Federal Rule 404, and in particular, Rule 404 (b), which involves “prior bad acts,” is one of the most frequently cited rules of evidence. Objections can be made – and often are -- when the requirements of 404(b) are not fulfilled.

Be alert as well for times when your opponent asks a witness a question to which -- rather than answering -- the witness responds with a tangential narrative. At those points, you may need to object and ask that the testimony be stricken on the basis that the answer is not responsive or is otherwise improper. Similarly, it is your job to prevent lay witnesses from rendering opinions. Good trial lawyers will object when adverse witnesses stray from the facts of the case and into the realm of what they “think” or “assume.”

You must also object when a judge excludes your proposed jury instructions or gives a jury instruction to which you object. (Judges should give you an opportunity to make such objections at the bench.) If the judge does not grant your request to give a particular instruction, it is crucial that you include the proposed instruction in the record.

Oftentimes, trial lawyers are quick to object to comments and actions of opposing counsel and adverse witnesses, but less so when it comes to the judge’s questions. Keep in mind that objecting to a question or decision from the bench can be necessary to preserve the appeal. So too can the inclusion in the record of all exhibits. Before you rest your case, review all of the exhibits to confirm that you have not left anything out. It is a sad realization to discover, when preparing for an appeal, that the record is incomplete.

More about preserving and protecting the appeal can be found in chapter 11 of my new book, Anatomy of a Trial: A Handbook for Young Lawyers.

A lesson in building a good closing argument

Tue, 14 Jun 2011 12:04:32 -0500

Closing arguments are one of the most pivotal parts of a trial. A well-tuned closing argument will sway both the hearts and minds of jurors, and will resonate with them as they begin deliberations. Occasionally, however, the boundaries of appropriate advocacy get crossed as trial lawyers endeavor to win at all costs on behalf of their clients. According to the New Jersey Law Journal, one such situation came to light just last week in the Garden State: the New Jersey Supreme Court set aside a $1.75 million verdict, saying a plaintiff’s lawyer went too far in his efforts to sway a jury.

In the case of Risko v. Thompson Muller Automotive Group, the plaintiff’s lawyer reportedly told the jury that if, during deliberations, a fellow juror says he or she doesn’t believe in awarding damages of over a million dollars, that juror is “ignoring the law” and should be reported to the judge. Though taken to task by the judge for that and other remarks, the jury still convened and awarded well over a million dollars in damages to the plaintiff’s estate. Ultimately the case found its way to the New Jersey Supreme Court, which determined that, indeed, the plaintiff’s lawyer’s remarks warranted a new damages trial.

The court’s verdict serves as a reminder about how to build a good closing argument – and the pitfalls to avoid. Start with the facts of the case that best support your theme, follow that with case law that corroborates the facts you’ve named, and deliver your message with your own engaging, personable style. In other words, follow a trail of logical reasoning and stay away from remarks that could be considered prejudicial or overreaching. It isn't always easy to deliver an emotionally engaging, persuasive closing without slipping into manipulation or hyperbole. But it's a challenge one is best advised to meet.

Hot off the Presses: Anatomy of a Trial

Wed, 08 Jun 2011 17:16:08 -0500

My latest book, Anatomy of a Trial: A Handbook for Young Lawyers, is now available for purchase through the American Bar Association website. The book demonstrates the techniques of effective trial advocacy by drawing on two real-life trials: a white-collar criminal prosecution and a medical negligence case. As a Baltimore trial attorney, I represented parties in both these trials. The book provides an overview of trials and trial strategy, with chapters on voir dire, opening statements, direct and cross examination, closing arguments, and protecting your case in appeal.

The book also features insightful commentary from five distinguished jurists: Hon. Marvin E. Aspen (Judge, United States District Court for the Northern District of Illinois); Hon. Mark A. Drummond (Circuit Judge, Eighth Judicial Circuit, Illinois); Hon. Marvin J. Garbis (Judge, United States District Court for the District of Maryland; Hon. Paul W. Grimm (Chief Magistrate Judge, United States District Court for the District of Maryland); and Hon. W. Michel Pierson, (Judge, Circuit Court of Maryland for Baltimore City).

Advice for brushing up on your cross-examination skills

Mon, 23 May 2011 10:33:50 -0500

Which part of a trial is the most important? Lawyers may never agree on an answer to this question, but no lawyer would dispute the significant role cross-examination plays in proving one’s case before a judge or jury. My forthcoming book: Anatomy of a Trial: A Handbook for Young Lawyers, analyses cross-examination as one of several vital phases of a successful trial. Still, a number of excellent books present a full-court press on cross-examination and they should be on any young trial lawyer’s reading list.

One of the most valuable is Cross-Examination Handbook: Persuasion, Strategies, and Techniques, by Ronald H. Clark, George R. Deckle, Sr. and William S Bailey (Wolters Kluwer 2011). This book has it all, and I rank it as one of the best books on cross-examination in recent times. The subject matter is thoroughly covered, and the authors provide wonderful examples -- and checklists. Examples come from some of the most historic trials of the past one hundred years, such as Clarence Darrow’s famous cross of William Jennings Bryan in the Scopes Trial of the 1920s, and the cross of Senator Ted Stevens in his own trial three years ago. Chapters include constructing the cross, impeachment, and the ethical and legal boundaries of cross-examination.

Terence F. MacCarthy’s MacCarthy on Cross Examination (ABA 2007) is also a must-read for anyone seeking to improve his or her cross-examination skills. Mr. MacCarthy is the Public Defender Emeritus of U.S. District Court for the Northern District of Illinois. He is a masterful trial lawyer, teacher and writer. According to MacCarthy, a cardinal rule on cross is to control the witness with short statements in question form, all calling for a “yes” answer. Terry MacCarthy has taught scores of lawyers to succeed on cross using his methods.

Another helpful compilation is Steven F. Molo and James R. Figliulo’s Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers (Law Bulletin Publishing Company 2008). This book presents views of fifty esteemed lawyers on the art of cross-examination.

Finally, those lawyers who are truly committed to mastering cross should read The Art of Cross Examination, by Francis Wellman. Originally published in 1905, it is still in print. Wellman presents selections from some of the great cross-examinations of yesteryear, “whose extended experience makes them safe guides to follow.” With experts including Joseph Choate, Charles Russell, Abraham Lincoln and others, the book is a joy to read and a timeless and insightful guide to the fine art of cross-examination.