The Trial Practice Tips Weblog

This Year's Supplement to My Deposition Book: A Chapter on Breach of Contract

I've almost finished writing this year's supplement to my deposition book, Deposition Checklists and Strategies (James Publishing). This year I'll be adding a new, ninth chapter on breach of contract. It should be out in a few months.

The first eight chapters are these:

• Procedures and Strategies
• Vehicular Liability
• Premises Liability
• Products Liability
• Medical Malpractice
• Employment Cases
• Insurance Disputes
• Consumer Protection

For more information about the book, follow the link to my publisher's website.

Don't Alienate the Judge

When dealing with the judge at trial, try your obsequious best never to show any hint of irritation or disrespect.

That's the advice of Martin L. Grayson, who writes in his excellent, readable book The View from the First Chair: What Every Trial Lawyer Really Needs to Know:

In my opinion, one of the biggest mistakes an attorney can make is alienating the judge. You will put yourself and your client at risk of losing every close call, having every request for continuance or extension of discovery procedures summarily denied and, worst of all, having the judge signal the jury at trial that you are not trustworthy.

Good advice.

Book Recommendation: The View from the First Chair

In his book "The View from the First Chair: What Every Trial Lawyer Really Needs to Know," Martin L. Grayson defines a trial as follows--

[N]othing less than a six-dimensional merry-go-round-jigsaw-puzzle-demolition-derby all playing out in your mind while you sit relatively passively at counsel table, trying to concentrate on 12 things at once while listening to witness testimony.

This passage gives you the sense that Grayson knows what he's talking about and is going to tell it to you with a certain amount of wit.

Grayson wants you to think of his book as "a virtual mentor for attorneys." It's filled with the type of tips you don't get in a typical trial manual. Examples: a chapter titled "Thinking on Your Feet," a chapter on the proper uses of email, and a chapter on communicating with clients. These chapters are written and organized in a way that invites you to read the book from beginning to end, rather than skipping around from issue to issue.

Other highlights--

• A how-to for finding the best experts ("most attorneys have no idea how to find well-qualified experts," says Grayson);
• Useful tips for settling cases ("settlement is about psychology and rhythm; the numbers are just music in the background");
•  A technique for dealing with abusive counsel at depositions ("98 percent guaranteed to change the entire tone of the proceedings," according to Grayson--and I think he's right).

Throughout the book are sidebars containing the author's real-life litigation stories. Although the book is slanted towards defense lawyers, I'd recommend it to any type of litigator who lacks significant trial experience.

Next Year in My Deposition Book: Breach of Contract

The third yearly update to my book Deposition Checklists & Strategies is at the publisher, which means it's time to start on the next update. During the next year, I plan to write a new chapter, Breach of Contract, which will be added to other chapters with titles like "Products Liability" and "Insurance Coverage Disputes."

If you own the book (thanks in advance!), please send an email with any input or suggestions about the Breach of Contract chapter. The usual format is an overview of the law, a discovery outline, then some sample depositions. All emails are welcome.

Book Recommendation: Consumer Class Actions

Over the years, I've owned a couple of different editions of Consumer Class Actions, from the National Consumer Law Center. Although geared towards plaintiffs, defense lawyers will find it useful too. It comes with a CD-ROM and a number of different forms. On many issues, it's just as useful as Newberg on Class Actions. It has a better index too.

Another recommended volume from the same publisher is Unfair and Deceptive Acts and Practices.

The books cost $150 and $130 respectively.

Cross-Examination: Tips from a Pro

I've written before about Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers, edited by Steven F. Molo and James R. Figliulo.

One of the contributors, Peter C. John, has an article titled "Cross-Examination and Jury Ego," in which he advises lawyers to "lead but don't feed." In other words, you should aim to paint a picture for the jury which allows them to draw their own conclusion, the one you want them to reach. But you shouldn't make this conclusion too obvious, since the jury's "jury ego" requires it "to find the answer based on their own evaluation of the evidence, not yours."

If you force-feed the jury, it could be counterproductive. For example, you can demonstrate that the witness has changed his testimony time and again, but you shouldn't ask the follow-up, "Were you lying then or are you lying now?" Jurors will get the point on their own.

If you own (or can borrow) the book, check out the article. At the end, John gives some other general tips, including the following:

• "If you can score ten points in cross-examination, prioritize and only use five of them for maximum impact."
• "Never belabor your point so that witnesses can gather themselves and finally explain an answer."
• "Control the testimony by your questions, not the witness's answers, especially with expert witnesses."
• "Do not change your personality from direct unless it is an honest disbelief from the testimony or actual surprise. False reactions are obvious to the jury."

In addition to John's article, Your Witness contains another 49 articles from Chicago lawyers, plus an introduction by Scott Turow.

16 Books to Make You a Better Trial Lawyer

Here's an interesting Amazon reading list I stumbled upon accidently: "16 books to read if you want to become a better trial lawyer."

The list was compiled by D. Shane Read, an author himself who also happened to include his own book on the list. But that shouldn't stop you from reading it. The books are well-chosen and Read's short reviews make the list additionally compelling.

If you're the reading type, you might want to add some of these books to your library. I already own eight of them (and while counting, noticed that there are actually twenty-one books on the list, despite the "16" in the title).

A Recommended Trial-Ad Book That Won't Steer You Wrong

Although the book I am recommending today was written primarily as a law-school text, Trial Advocacy: Planning, Analysis, and Strategy is also an excellent resource for practitioners, especially younger lawyers working on their first trials.

Described as a "how-to book for trial lawyers," Trial Advocacy is full of practical information about all the areas of trial you'd expect: jury selection, opening, exhibits, direct, cross, experts, instructions, closing. The book also includes a DVD in which "experienced trial counsel present" a mock trial based on the materials in the book.

Here's a sample tip from the book, chosen pretty much at random from a chapter titled "Cross-Examination of Experts"--

The expert's opinion may be vulnerable in the following areas:

• The time the expert had or used in analyzing the data (the doctor examined the patient for ten minutes; psychiatrist did not examine criminal defendant until ten weeks after the crime);
• Information was incomplete (the engineer did not receive all the blueprints);
• Expert is making an incorrect assumption about the data (the expert assumes that the core soil sample he was given was from "quadrant 4";you will present evidence that the sample was from "quadrant 3," which invalidates the expert's calculation);
• Expert received faulty or biased data (much of the data is from an interested party);
• Expert's procedures or experiments for analyzing the data faulty, unreliable, left undone, or wrong (a mtallurgist failed to heat the metal to the appropriate temperature).

At almost 600 pages, it's a hefty book. You'll find a trailer for the DVD, sample documents, and ordering information at the book's companion website. You can also find the book at Amazon.

Epidemiology for Semi-Dummies

Products-liability lawyers who work on pharmaceutical cases, as I do from time to time, need to be have a working knowledge of the science of epidemiology.

A few years ago, I surveyed a variety of basic-to-intermediate epidemiology texts and selected Epidemiology in Medicine over a number of others.

Despite the title of the post, the book is no for-dummies tome. Written by Charles H. Hennekens and Julie E. Buring, Epidemiology in Medicine contains clear explanations of basic principles but becomes more and more advanced as the book progresses. Chapter titles include "Basic Concepts," "Types of Epidemiologic Studies," and "Analysis of Epidemiologic Studies," with emphases on "the role of chance," "the role of bias," and "the role of confounding."

For lawyers who need to understand epidemiological studies and depose experts about them, this book might be all they need. It's my solution, in any case. If you have another, please leave a comment.

Trial Notebooks: An Alternative Method

As an alternative to an earlier post, "A Method for Organizing a Trial Notebook," here's another method of organization, as suggested in a book by Leonard H. Bucklin--

• The Plan
• Summary
• Pretrial Orders
• Our Witnesses
• Their Witnesses
• Third-Party Witnesses
• Our Experts
• Their Experts
• Exhibit List
• Contacts
• Deposition Summaries
• Deposition Arrangements
• Damages
• Pleadings
• Admissions
• Trial Memo
• Motions in Limine
• Motions and Orders
• Voir Dire and Juror List
• Opening and Closing
• Jury Instructions
• Settlement
• Insurance

The list is from Bucklin's Building Trial Notebooks (James Publishing). I agree with Bucklin that "your trial notebook should be your primary file in a litigation case." As Bucklin adds, "When a litigation case is started, that is also the time to start your trial notebook for that case."

Related post: "Motivating Yourself for Trial: Start a Notebook Early."