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Elliott Wilcox shares another great post from his Winning Trial Advocacy Tips blog.  I know I rant and rave about how wonderful this blog is and I fear I may be accused of a man-crush on Elliott, a gentleman I have never spoken with, much less met.  But there is so much crap spread by those who think that they know something about trial preparation and trial advocacy that when someone actually shares something of value I feel compelled to applaud it - loud and often.  Elliott gets it and, more importantly, he shares it.

The latest cheer goes out for a post titled "How to Detect Non-Answers During Cross-Examination."  Here is an excerpt:

To become a quality cross-examiner, you must master the ability to critically listen to  witness’s answers and identify the weaknesses, fallacies, and evasions in their responses. 

One of the more common evasions you’ll need to recognize is the “non-answer.”  Expert witnesses and well-prepped witnesses are the best masters of the “non-answer.”  At their finest, their responses don’t even appear to be evasive.  They’ll make it sound like they’ve answered your question, but in fact, they’re completely side-stepping it.  They do this by telling you something that you hope to hear or giving you a response that sounds like what you need to hear.

Elliott goes on to list nine examples of non-answers to questions.  Here are two of them:

Non-Answer #1:   Completely Avoiding the Issue

Q: Does this skirt make me look fat?
A: I love you.  (Or you can try Dave Barry’s response: Sticking a fork in one or both eyes to avoid answering… it’s much less painful!)

Non-Answer #2:   Describing Expected Procedures

Q: Did you request a CAT-scan?
A: It’s normal procedure to request a CAT-scan in those circumstances. 

Q: When was the President informed of your decision?
A: Protocol demands that the chief executive be immediately apprised of matters like this.

Thanks, Elliott.

 

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Those of you over 30 will remember James Carville's message to the Clinton campaign in 1992:  "It's about the economy, stupid."  

Well, trying cases is about persuading jurors to your client's point of view. Sure, you must prove-each-element-of-your-cause-of-action-by-a-preponderance-of-the-evidence, but you must do so in a way that keeps the jury engaged, that motivates them to act favorably to your client.

Maxwell Kennerly, one of my favorite bloggers, has written a great post on this subject.  He explains that a trial lawyer must

• tell the client's story;
• tell the client's story coherently;
• tell the client's story concisely;
• tell the client's story persuasively; and,
• introduce all evidence necessary to the claim or defense in compliance with the rules of evidence;

      one witness at a time.

Maxwell  then shares with us a memo written by David Mamet, a television producer of The Unit and other shows, and challenges us to incorporate Marnet's demands of his writers into our trial preparation.   As Maxwell explains, this memo helps us understand that the jury, like a television audience,  "must see all of the evidence necessary to the case, but if the testimony is not propelling the jury forward with a simple, straightforward purpose, then it is either superfluous or incorrectly prepared."

I learn more from Maxwell's blog posts than I do from the typical CLE presentation.  Thanks, Maxwell, for sharing your knowledge with us.

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Paul Luvera does a nice job in this post  hitting the high points of David Ball's book Ball on Damages.  

An excerpt: 

[W]e must shed our law school training about advocacy and learn to present cases consistent with the way that people really make decisions. You were probably taught in law school to carefully examine all of the facts and law, following which you were expected to analyze intellectually in order to arrive at the right decision. You were probably taught to speak and write as an intellectual or like a scholar might. Law students try to sound like intellectuals to impress everyone. The problem with approaching a trial in that manner is that it doesn’t work when we are talking about groups of people we call jurors..

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Some of you are a little young to remember Irving Younger, the great trial advocacy teacher.  Professor Younger developed the "10 Commandments of Cross Examination" that were taught in trial advocacy programs across the country for many, many years.

Experienced trial lawyers would take issue with some of Younger's  commandments, arguing that from time to time they should be ignored.  I agree, but that does not mean that they do not have value.  

Here is a copy for your reading pleasure.

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Winning Trial Advocacy Tips is one of the best blogs for trial lawyers in the entire blogosphere.  Elliott Wilcox repeatedly delivers useful, timely information of interest to those of us who try cases.  I encourage you to add it to your regular reading list.

Today, I share with you his post of tips to keep your witnesses happy and gain their cooperation.  He is, as usual, dead-on.  Ignore his advice at your peril.

An excerpt: 

1. Tell your witness EXACTLY where to go.  I normally try cases in our downtown courthouse, and I’ve been to all of the outlying courthouses for miscellaneous hearings.  But I’d never been to this courthouse before.  The courthouse was located at the jail complex, and I didn’t know which building I was supposed to go to.  I had to poke my way around a little bit before I was able to find the right building.  Once I finally found the right building, I had no idea which floor I was supposed to go to, and I had no idea which of the two courtrooms I was needed in.  Even when I found the right courtroom (which was behind bulletproof glass) I wasn’t sure if I was supposed to wait outside with everyone else or if I was expected to ask a guard to let me inside.

Even if you think your witness knows their way around the courthouse, don’t assume that they know where to go.  Tell them not only where to go, but where they should park.  If there is more than one building, tell them which one they’ll go to.  Tell them how to navigate through the metal detectors.  Once they’re inside the building, which floor do they need to find?  Which room?  Should they stay outside the courtroom, or should they walk inside?  Remove all doubt from their heads — tell them exactly where to go.

 

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I am an optimist.   Nevertheless, I attempt to have a "Plan B" in the event things go wrong.

For example, consider a case that Rebecca Blair and I tried a few years ago.  We needed a computer in the courtroom.  But because both of us have been around long enough to know that  things can go wrong, we brought a back-up computer with the same information loaded on it that we had loaded on Computer 1.

Computer 1 died.  No problem.  Plug in Computer 2.  It worked for a day or so.  Then it died.  A third computer was brought from the office with relatively little downtime (we had the info we needed on a CD) and it survived until the end of trial.

I use this example to demonstrate that even with appropriate planning stuff happens.  If you don't plan at all, I can guarantee you that stuff will happen.

Here is an excellent blog post on this subject from a wonderful blog, Winning Trial Advocacy Tips. Titled "What's Your Emergency Plan for Jury Trials, " the post does a very nice job describing why we need to plan for the unexpected and gives several fine examples of what can go wrong at trial.

Here is an excerpt from the post:

Being a trial lawyer is kind of like being a top notch surgeon performing an appendectomy.   Removing the appendix is easy.  Heck, I could probably teach you how to do it in a 30 minute seminar.  But surgeons don’t get paid the big bucks because they know how to remove the appendix — they get paid the big bucks because they know how to respond to the thousand different complications that can arise while you’re removing it.

That’s why you get paid the big bucks.  Trying cases is pretty easy. A high school student could probably do it if everything went according to plan. But things never go according to plan, and that’s why you get paid the big bucks.  Script out your responses to all of the different scenarios before trial begins, and you’ll be the lawyer representing the prevailing party, rather than the lawyer apologizing to your client.

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The Winning Trial Advocacy Tips blog has a great post titled "Sources for Closing Argument Stories."   The post identifies nine different sources for stories that can be used in closing arguments.

Here is brief excerpt:

1. Aesop’s Fables. Aesop’s Fables contains dozens of valuable themes for use in your next trial.   By weaving these fables into your closing argument, you’ll help jurors immediately understand the underlying values of your arguments and see why your client deserves to win.  The Tale of the Sour Grapes, the Tale of the Lioness and the Vixen, the Tale of the Wolf in Sheep’s Clothing — these stories will not only educate your jurors, they’ll also entertain them.

 

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