The Trial Practice Tips Weblog

A Closing Argument That Went Too Far

As an article from Law.com makes clear, you can call a defendant a lot of things during closing argument--but don't call him a terrorist. According to "'Inflammatory' Closing Leads to New Arson Trial," by Shannon P. Duffy, the closing argument of an Assistant U.S. Attorney, which took place the day before the first anniversary of 9/11, included these lines:

Standing here knowing what date today is I am very, very reluctant to use the term I'm going to use, but, frankly, I think this defendant warrants that term, and that term is terrorist.

There are many different kinds of terrorists. We all know too well the kinds of terrorists that caused the attacks of the anniversary so-to-speak we will mark tomorrow. But there are very different kinds of terrorists, and I think this defendant is one of them.

The defendant's lawyer didn't object, but the reviewing court held that the comment was prejudicial, and combined with other problems constituted "plain error." In ordering a new trial, the appellate court wrote: "We cannot know, given the evidence that came in, whether [the defendant] was convicted because the jury believed him to be an arsonist and the illegal possessor of a gun, or because it thought him to be a violent and dangerous man, a 'terrorist' of sorts."

Controlling Abusive Counsel with Video Depositions

There are many reasons to consider video depositions. If the witness won't be present at trial, for example, the jury will appreciate being able to watch the deposition on a TV monitor, as opposed to having it read to them by lawyers. Even when you know the witness will be present, a videotaped deposition can be more impressive as a vehicle for impeachment than the alternative. Some judges will even allow portions of videotaped depositions to be played during opening and closing.

Here's another reason to consider videotape: it will have the effect of making your opponent strangely silent, even if he's apt to be irrational and abusive when the camera's not there. He'll still make objections when appropriate, but they're likely to be made in a much more even tone of voice, without all the histrionics. Think about it next time you're matched up against one of your city's savage beasts.

Not Every Potential Witness Needs to be Deposed

It's been said that informal discovery has become a dying art. If it's true, it means that many witnesses are being deposed who probably don't need to be. Ask these questions before filing a deposition notice:

• Is the witness friendly to your side? If so, and if the witness is available for trial, there's often no reason to give the other side a preview of the testimony. Find out what you need to know through informal means of discovery--a phone call or a meeting at Steak 'n' Shake.
• Even if the witness is not a "friend," have you tried informal discovery anyway? If there aren't any ethical barriers to talking to the witness directly, try to arrange a meeting. If you're worried that the witness might change his story and needs to be pinned down, think first about witness statements rather than depositions.
• Is the deposition worth the expense? One of the advantages of informal discovery is that it saves money. Of course, it may also mean that you're faced at trial with cross-examining a witness you've never deposed. But if the criminal lawyers can learn to do it--not to mention the "old-timers"--so can you.
• Do you really want to preserve the testimony in a deposition? As James W. Jeans points out in his book Trial Advocacy, "[T]he information you receive might hurt more than it helps. Furthermore it is preserved, to be available at trial even if the witness dies, is transferred to Perth, Australia, committed to an institution or otherwise 'unavailable.' And, one more demerit, you might legitimate evidence that would not have been received at trial. Deposition taking will waive certain witness incapacities and certain lines of inquiry will waive privileged testimony."

These are all good reasons to think twice before filing a deposition notice.

Challenging Personal Jurisdiction in Illinois

In Haubner v. Abercombie & Kent International, Inc., No. 1-03-2219 (1st Dist. 6/30/04), the First District held that an out-of-state defendant waived its objection to the circuit court's alleged lack of personal jurisdiction when it served a request for admission on the plaintiffs. In the following passage, the court explained the proper way of challenging personal jurisdiction:

Defending Depositions: Don't Let Your Mind Wander

You're trying your best to defend a deposition, but you were up late, you're tired, the room's hot, and the guy who's asking the questions is the most boring lawyer who ever lived. What happens? For a humorous take on defending depositions, read the post "And I Shall Call Her Roxanne" by the pseudonymously-named author Rufus T. Firefly of the weblog Running With Lawyers.

Those Pesky Arbitration Clauses

There is a developing body of case law in Illinois dealing with the effect of arbitration clauses on a plaintiff's ability to prosecute a class action. The latest case is Ervin v. Nokia, No. 5-04-0057 (5th Dist. 6/22/04).

In Ervin, the plaintiff filed a class action against Nokia and AT&T for alleged defects in a Nokia cell phone. AT&T was able to get out of the lawsuit by arguing its agreement with plaintiff included an arbitration clause. After the trial court granted AT&T's motion to stay the proceedings and compel arbitration, Nokia argued that it should also be allowed to enforce AT&T's arbitration clause, even though it was not a party to the agreement. The trial court rejected Nokia's argument.

In affirming, the Fifth District disagreed with the three theories advanced by Nokia: (a) that Nokia should be allowed to enforce the arbitration agreement as AT&T's alleged agent; (b) that Nokia should be allowed to enforce the arbitration agreement as a third-party beneficiary; and (c) that Nokia should be allowed to benefit from the arbitration agreement under a doctrine of equitable estoppel.

Preparing to Take a Deposition

The National Institute for Trial Advocacy (NITA) offers a sample chapter from one of its books about depositions: "Preparing to Take the Deposition" (pdf). The chapter contains a lot of useful advice, subdivided into these topics:

• Your Frame of Mind


• Creating the Deposition Outline


• Research the Law


• Identify All Available Facts


• Construct Your Theory of the Case


• Identifying the Opponent's Factual and Legal Theories


• Generating Questions


• Organizing the Deposition Outline


• Using the Outline at the Deposition


• A Final Word About Preparation

John Edwards, Trial Lawyer

In honor of the Kerry-Edwards ticket, I'm posting a link to a January article from the New York Times: "In Trial Work, Edwards Left a Trademark," by Adam Liptak and Michael Moss--

In 1985, a 31-year-old North Carolina lawyer named John Edwards stood before a jury and channeled the words of an unborn baby girl.

Referring to an hour-by-hour record of a fetal heartbeat monitor, Mr. Edwards told the jury: "She said at 3, `I'm fine.' She said at 4, `I'm having a little trouble, but I'm doing O.K.' Five, she said, `I'm having problems.' At 5:30, she said, `I need out.' "

But the obstetrician, he argued in an artful blend of science and passion, failed to heed the call. By waiting 90 more minutes to perform a breech delivery, rather than immediately performing a Caesarean section, Mr. Edwards said, the doctor permanently damaged the girl's brain.

The article gives the outcome of the trial and recounts some of the highlights of Edwards' career as a lawyer.

Rule 213(f) Disclosures: More Is Better

Illinois Supreme Court Rule 213(f) states: "Upon written interrogatory, a party must furnish the identity and addresses of witnesses who will testify at trial." The rules also requires a statement about the subjects on which each witness will testify, in addition to other information depending on the witness's status as a lay witness, independent expert witness, or controlled expert witness.

When giving the subject of a witness's testimony, how much detail is required? The recent case of Kim v. Mercedes-Benz, 1-03-1270 (1st Dist. 6/17/04) gives one answer.

A US Supreme Court Review

From the New York Times: "The Year Rehnquist May Have Lost His Court," by Linda Greenhouse.

After arguing that "it is possible that the 2003-04 term may go down in history as the one when Chief Justice William H. Rehnquist lost his court," the article reviews this year's key Supreme Court decisions in these categories: Detainees, Politics, Criminal Law, Privacy, Discrimination, Federalism and Regulation, Speech and Religion, and Jurisdiction.