The Trial Practice Tips Weblog

A Free Cross-Examination Tip from ATLA

ATLA's website offers this advice: "Don't Be a Slave to Your Cross-Examination Script," by Jerome F. O'Neill.

Everyone who conducts cross-examination has a script . . . . Whatever that outline is, never follow it slavishly. There is nothing better than seeing your adversary cross-examine your witness and not listen to the answer, thereby missing a critical fact which they could exploit further during the cross-examination.

Ask the question and continue to look at the witness until the answer is complete . . . . This information is too precious to save a second or two by looking down to ask the next question. Besides, if you listen to the answer in the broadest sense of that term, you will find that your planned next question may be different than your outline suggests. It also may well be much more effective than the question you planned in advance.

You'll find more tips here. Hat tip: Trial Ad Notes weblog.

Help for Lawyer-Photographers

Here's help for lawyers photographing vehicles involved in an accident: "Ten Tips for Photographing Vehicles for Litigation," by Jack Murray. You'll find these headings:

• Understand the Mission
• Eight Major Photos
• ID the Vehicle
• Angle of Camera to Damage
• Bumpers
• Highlighting
• Filters
• Color Cards
• Seat Belts
• Fill Flash

The next time you head out for a photo assignment, remember to take this article with you!

A Post for Paralegals

At the South Carolina Trial Law Blog, David Swanner has some tips for paralegals who want to get ahead: "6 Tips to Paralegals from David Swanner."

As a lawyer who works with paralegals every day, I couldn't agree more with these tips. You'll find more from David about paralegals in two areas of his weblog:

• Things Paralegals Want to Tell Their Lawyers
• Things Lawyers Want to Tell Their Paralegals

 

Justice Breyer Featured in a Book on Writing Style

In The Sound on the Page: Style and Voice in Writing, Bed Yagoda has collected comments about writing style from a variety of contemporary writers such as Camille Paglia, Tobias Wolff, Dave Barry, Cynthia Ozick, and James Wolcott. In a section called "Persuasive Writing," the featured writer is U.S. Supreme Court Justice Stephen Breyer.

Beginning on page 169, Yagoda has published a four-page quotation from Justice Breyer about his writing philosophy, the way he uses his law clerks, and his thoughts about Justice Scalia's style. Some excerpts:

I try to write clearly. I assume that my audience is not just lawyers and judges. Still, my first objective nonetheless is to write so that the judges, who must apply what I write, can understand me. Lawyers must be able to use the opinions and explain them to the clients. But the court has a broader audience. . . .

My writing is quite regimented and disciplined. My law clerks first write a fairly lengthy memorandum or draft. I take that and then go back and reread the briefs. Afterwards I sit at the word processor and write an outline . . . I then use the outline to write a first draft of the opinion . . . It typically takes me two drafts to translate my thoughts into an understandable written form. Once I've reached that stage, I can try for better phrasing. . . .

I respect other writing styles that are different, yet effective. Justice Scalia, for example, has a dramatic approach. He is colorful and he doesn't misplace his metaphors; he always has a good reason for using them as he does. . . .

In line with my efforts at instilling a conversational quality to my writing, I follow the example of Justice Arthur Goldberg (and Judge Posner) and do not use footnotes. I believe most footnotes are distracting.

Although Yagoda's book about writing style isn't written specifically for lawyers, lawyers will find many useful things within its pages. And the book is certainly recommended for lawyers who write for publication on the side; personally, I'm finding it fascinating.

Juries and Punitive Damages

From the law firm of Quinn Emanual: "How Juries Think About Punitive Damages: The Empirical Evidence"--

Juries ignore their instructions. Juries don't understand their instructions. Juries can't remember their instructions even minutes after reaching a verdict. These are not the conclusions of a cynical trial lawyer, but some of the findings from a recent empirical study of how juries think about punitive damages.

Not surprisingly, studies of punitive damages have concluded that although juries feel about the same amount of "outrage" over a particular incident, there is often little agreement about how to translate this outrage into a dollar award. Other conclusions can be found in the full article.

The "Raise or Waive" Rule

Howard Bashman's article, "Waiving Goodbye to Your Best Issues on Appeal," begins like this:

What issues can a losing party raise on appeal? With very few exceptions, only those issues that the losing party has properly preserved while the case was pending before the trial court. This so-called "raise-or-waive" rule is a central precept of appellate litigation in the United States.

According to Bashman, "As commonly understood and applied, the raise-or-waive rule is fair both to the parties and the trial court. Finding an issue waived on appeal is, however, a harsh remedy, and therefore appellate courts should resist the temptation to expand the rules that allow for a finding of waiver beyond their usual boundaries."

More After-the-Fact Trial Blogging

To my knowledge, there hasn't been a lot of trial blogging, except the occasional after-the-fact report.

When I once dabbled in trial blogging, I wondered what I was going to say if I lost. Would I say nothing? That wasn't likely, as it would be too obvious that something bad had happened. Would I list my mistakes, like Lawrence Lessig? That wouldn't work either--some clients are very fast to turn on their lawyers, especially when they admit error. I didn't want my post to be Exhibit A in my client's malpractice case.

As it turned out, the case settled, so there was really nothing to report. But I was reminded of the difficulties of trial blogging by a recent post at BeldarBlog: "Progress report from the courthouse trenches."

In some after-the-fact trial blogging, Beldar reports that he won the trial but didn't do as well as he had hoped. Now he half-promises to post some thoughts "about broad changes in jury attitudes, perhaps due to public concern about 'tort reform'."

That would be interesting. I hope Beldar posts those thoughts.

A Review of CaseMap

Although I own the CaseMap litigation software, I haven't been using it very much lately. I'm not sure why, but it isn't because CaseMap is difficult to figure out--it's not.

In any case, Al Nye's review of CaseMap 5 on his weblog, Al Nye The Lawyer Guy, has served as a reminder that I should give CaseMap another try. Perhaps I'll do a review of my own someday.

The Ten Minute Mentor: Video Presentations for Free

It's a great idea--free video presentations by experienced lawyers. You'll find them at The Ten Minute Mentor, a site sponsored by the Texas Young Lawyers Association and the Texas Bar CLE. Typical of the video presentations is this one: Tips for Conducting an Effective Voir Dire.

Hat tip to Jim Calloway, who learned about the site from Robert Ambrogi.

During a Deposition, Is It Ever Appropriate to Threaten Violence?

Here's a deposition-related post that I did at Notes from the (Legal) Underground, but which is also appropriate for posting here: "Tip for Litigation Attorneys: Make Sure You're Really Off the Record Before Turning to Another Lawyer to Say 'I'll Fucking Kick Your Ass'"