The Illinois Trial Practice Weblog

Not the Answer You Want? Take Care in Phrasing the Question

From The Psychiatrist Blog comes news that "witnesses are potentially highly suggestible and words are important"--

In one example participants were shown a 30 second videotape of 2 cars colliding, then they were asked questions about the collision. Some participants were asked "About how fast were the cars going when they hit?’ For other people the word ‘hit’ was replaced by ‘smashed’, ‘collided’, ‘bumped’ or ‘contacted’. These words have very different connotations regarding both the speed and force of impact, and this was reflected in the estimated speeds given.

In one example participants were shown a 30 second videotape of 2 cars colliding, then they were asked questions about the collision. Some participants were asked "About how fast were the cars going when they hit?’ For other people the word ‘hit’ was replaced by ‘smashed’, ‘collided’, ‘bumped’ or ‘contacted’. These words have very different connotations regarding both the speed and force of impact, and this was reflected in the estimated speeds given.

In short, be aware of the connotations of the words you choose. It's an important point not only when you're questioning a witness, but also when you're addressing a jury. Meanwhile, if you're on the other side of the table, be on the alert for objectionable misuses of too much "suggestion." A question about the speed of two cars that had "smashed," for example, would lack foundation if the smashing hadn't yet been established by the witness. The question would also be vague and, perhaps, argumentative.

Thanks to a reader for tipping me off to the post at The Psychiatrist Blog.

What to Do When Your Cross-Examination Fails

What can you do when your cross-examination fails not because of your own incompetence, but because the witness is so, well, slippery?

One answer: During closing, talk about what happened. You might even call the witness a "greased pig."

Full details at The Maryland Injury Lawyer Blog.

Closing Argument: Comparing Your Experts to Theirs

Juries in personal injury cases generally hear two versions of the medical facts, each presented by an opposing group of experts. If this isn't confusing enough, there's also testimony about the medical facts from the treating doctors, who may not agree with any of the experts. The treating doctors might disagree with each other too.

How can you help the jury sort it out? If the better set of experts and treating physicians is on your side, emphasize this point with a chart that compares your doctors and experts to their doctors and experts. Here are some points of comparison you might use:

• Where the doctors went to medical school;
• The doctors' board certifications;
• The doctors' research interests;
• The doctors' publishing history;
• The doctors' teaching experience.

In closing, you can use the chart to point out that the most qualified doctors and experts support your view of the case. Example: "You heard a lot in this case about a diagnosis of adhesive capsulitis, which was presented mostly through the testimony of Dr. Jones. Remember Dr. Jones? He's the doctor who said he's not yet board certified, though he's 'working on it.' Let's take a closer look at Dr. Jones--let's compare his credentials to those of Dr. Smith, who disagreed with him about the diagnosis of adhesive capsulitis. Dr. Smith should know about adhesive capsulitis. He's treated it every single day, day in and day out, for more than twenty-five years. He's published more than thirty articles specifically on the topic -- adhesive capsulitis has been his primary research interest since just after he graduated from Harvard medical school. Not only is Dr. Smith board-certified in orthopedic surgery, but he helps to write and administer the board-certification exam to new doctors and teaches orthopedic surgery to medical students. Now let's look at Dr. Jones. Dr. Jones isn't board certified, has never published on adhesive capsulitis, and has only done original research about knees, not shoulders. Although he treats shoulders in his practice, he's only been doing it for two years--no, sorry, only a year and a half, only eighteen months."

The example is a little over-the-top but you get the idea. Although the example relies on only a few points of comparison, there might be many others in any given case. Don't wait until your closing argument to start thinking about them. Instead, get into the habit of viewing the medical part of the case through a points-of-comparison lens. If you do, you'll automatically think about comparisons as you prepare the case, especially when you review C.V.s and depose the treating doctors and experts.

Do You Believe in Your Case?

At DennisKennedy.blog, a post by Dennis Kennedy titled "Great Advice on Public Speaking" suggests that a speaker's performance improves in proportion to how passionate he or she is about the topic.

It's definitely true. A little passion goes a long way towards ensuring an audience will listen to a message. Throw in some enthusiasm and they may even embrace it.

That these principles apply to a lawyer's performance at trial or motion hearings is obvious. How can you expect a judge or jury to believe in your cause unless you believe in it first?

Admittedly, not every lawyer has the luxury of working exclusively on causes in which they believe. If you happen to lack enthusiasm for your cause, what can you do about it? First, try to make sure it's not too obvious. Second, think about how it affects the settlement equation. Your own lack of enthusiasm often says a great deal about the merits of a case. 

A Fantastic Article about Opening Statement

In "The Opening Statement: Coming Soon to a Theatre Near You," the distinguished lawyer Michael Jones emphasizes the importance of telling a story. Jones's article, which itself tells a story, focuses on a trial in New Orleans:

Though not familiar with opening statements, these jurors’ everyday lives fully acquainted them with stories of all kinds, soap operas, comedies, movies, and dramas. Despite being new to an opening statement, they were fully familiar with other types of speeches, most especially sermons and political speeches.

To begin with, every movie they had ever seen had a title, which to a greater or lesser degree signaled to them something about its content, whether “Waiting To Exhale,” “Jurassic Park,” “The Exorcist,” “Lord of the Rings,” and so on. Every soap opera that they had ever seen had a title: “The Young and the Restless,” “Days of our Lives,” “As the World Turns.” And, in black churches in particular, every sermon they had heard had a title. Such sermon titles often were memorable and creative, such as those of the Reverend Leo Daniels, “What in Hell Do You Want;” the Reverend Samuel Wright of Monroe, Louisiana, “Pass the Peas;” and the Reverend Hersy Jones, Jr. of Shreveport, Louisiana, “The Next Family Reunion.”

Like the rest of us, since childhood, they knew about, could identify with, and are moved by stories.

In the article, Jones related how he gives his opening a title--his was "The FulFillment of a Medical Prophecy"--and how he tells a different, but consistent, story during closing. It's a short article that packs a punch, and one that's worth placing into your research folder about opening statement.

Help With Organizing Openings and Closings

Even if you don't use Powerpoint to present your case to a jury, take a look at Dennis Kennedy's review of Cliff Atkinson's new book Beyond Bullet Points. Since the success of your openings and closing depends upon effective communication, I think the Atkinson book would be an interesting addition to the more traditional trial-practice books on your shelf.

Cliff Atkinson, by the way, is the author of the Beyond Bullets weblog.

Objecting to an Opponent's Closing Argument

In Velarde v. Illinois Central R.R., No. 1-02-1859 (1st Dist., November 8, 2004), the defendants took issue with various statements in the plaintiffs' closing argument.  For example, the plaintiffs' lawyer argued as follows about a railroad collision leading to brain damage in one of the plaintiffs, Lilia Apulello:

Lil[ia] Apulello will not get her life back. Lil[ia] Apulello will not get her brain back. Her husband will not get his wife back. Her sister won't get her sister back.

The defendants also took issue with other parts of the closing argument. However, defendants' counsel failed to object at trial, a fact that figured into the appellate court's decision to affirm the judgment.

An Outline for Closing Argument

Lawyer Ervin A. Gonzalez presents his outline for closing in his short article, "Closing Argument." Gonzalez recommends that lawyers walk freely about the courtroom rather than using a podium and not rely on notes. The closing should be organized something like this:

• Give a basic greeting;
• Explain the difference between criminal and civil trials;
• Discuss the standard of proof;
• Summarize the proven facts of the lawsuit in story form;
• Make use of demonstrative aids;
• Rebut the other side's anticipated arguments without attacking the opposing lawyer;
• Move on to damages. The plaintiff should spend at least 35% of the closing discussing them, while the defense lawyer should focus more on liability;
• Conclude with a strong ending.

Another Closing Argument That Went Too Far

From the Detroit Free Press: "Harassment verdict is overturned," by Dawson Bell--

The Michigan Supreme Court struck down a $21-million jury verdict in a sexual harassment case against DaimlerChrysler on Thursday, finding that flamboyant attorney Geoffrey Fieger had improperly appealed to juror bias.

Fieger, the court said, likened his client to a Holocaust victim mistreated by a heartless German corporation.

The 4-3 court majority ordered a new trial for millwright Linda Gilbert, the victim of multiple crude taunts, anonymous vulgar cartoons and other emotional abuse.

Although Fieger was scathing Thursday in his criticism of the majority justices -- whom he described as "the most radical and extremist . . . in the history of the United States" -- the court was unanimous in finding the verdict was excessive.

It was at least the third time in recent years a Michigan appellate court has tossed out a multimillion dollar award to a Fieger client, each time citing his over-the-top rhetorical appeals to the emotions of jurors.

Thanks for the link to Ernie the Attorney. My first post on over-the-top closing arguments, in which a defendant was compared to a "terrorist," was here.

How John Edwards Spoke to Juries

Over the weekend, I caught part of a "CNN Presents" program about John Edwards, which contained a segment on Edwards' career as a personal injury lawyer.

By now, everyone has heard about Edwards' successes, but the program included some interviews with lawyers and judges who'd seen Edwards in action. Here's how one judge summed up an Edwards closing argument: "It was like he was leaning over the fence, talking to his neighbor."

It seemed to me like a style all lawyers should emulate, so I decided to pass it on here. For more advice about how to speak to juries, see my earlier post titled "Gerry Spence on Common Speech."