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325 Cards in this Set

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What is Looping?
The repeating of an answer given to emphasize content.
What is LOOPING?
This is a direct examination technique where the questioner repeats part of the previous answer in order to emphasize the event and lead the witness to the next event.

Example: Ms. Phillips how long did you work at EMS?
Answer 22 years
During those 22 years what were your duties?
Answer: I was a dispatcher.
What does a dispatcher do?
What are PROLOGUES?
This is a direct examination technique which helps the jury follow the testimony. It tells the jury where you are going.

Example: Ms. Phipps I am going to ask you first to tell us about yourself then to show us where you were standing and finally to tell us what happened that day
EVIDENCE RULE 1006
This is the "summary" rule which allows the proponent to summarize data in the form of a chart. This can be invaluable in presenting complex data in an understandable manner
MIAO

To get a piece of evidence into the record do the following:
Mark it
Ask the witness to identify it
Accredit it by going through 5 steps
a) Is it authentic?
B)Is it the best evidene?
C)Is it hearsay?
Offer it
RULE OF THREE


The Rule of three is a rhetorical device that helps the speaker speak with rhythm. Famous examples?
Friends, Romans, Countrymen
Of the people, by the people and for the people
We shall fight them on the beaches. We shall fight them in the streets. We shall fight them in our homes.
I came. I saw. I conquered.
It was preventable, obvious and predictable. "POP"
Themes
Examples of simple yet effective trial themes:
Corporate greed
Timeliness ahead of safety
An ounce of prevention is worth a Pound of cure
No one is above the law
Profit ahead of safety
Better safe than sorry
Look before you leap
a child is a poor man=s riches
Wheres the beef?
David vs. Goliath
recipe for disaster
an accident waiting to happen
Actions speak louder than words
Leaving an idea with the jury...Give an example of this
STILL BLAMING JANETTE

Try to use a memorable line and Aleave@ it with the jury to argue for you while the judge is charging. For example, Ed wrote this on the flip chart and closed. He left it flipped to that page during the judge=s charge. This was great. Another example of this technique is to publish the pictures or other documents to the jury at the end of your direct. This lets the jury look at them while the opponent is cross examining witness. (Gedney Howe)
What is the "some people" technique?
ARGUING DAMAGES TO THE JURY
( The Some people... technique)
One way of telling the jury what to give you on damages is to tell them "Some people would say this case is worth X other people would say this case is worth Y"
Ed says always ask for more because they will cut it.
What is THEMATIC REVERSAL?
Russ Herman talks about the concept of thematic reversal. The idea is that you take what appears to be a weakness in your case and reverse it. For example, in Janette's case we had a potential problem with the TV which they said she stole. Janette paid for the TV which seemingly confirmed it. Ed suggested that we handle this issue by saying that this demonstrates how traumatized she was by the whole ordeal. Ed suggested that janette say that well I knew I didn't steal it but my lawyer told me that they had accused me of stealing it so I just paid for it to get them to leave me alone. In this case we used a supposed weakness to help us on the damage issue.
The example Herman gave was the Urban Terrorist. The defense was saying that the hotel was not negligent because there was no way anyone could have stopped this guy. Herman turned this around by reframing the issue to why the defendant=s hotel was chosen. The issue is not whether this guy could be stopped but rather why he choose to strike at this hotel and the steps the hotel could have taken to make it more secure.
GIVE THREE WAYS TO DEAL WITH WEAKNESSES IN YOUR CASE
1) Exclude the weakness by evidentiary motions
Use motions in limine

2) Explain the weakness

Example: Yes my client was drunk at the time of the accident but he was the passenger not the driver.

3) Minimize the impact of the weakness. Use strong, weak, strong technique. Example given by Herman is in an opening where you start with strong point on liability, admit weakness and end on strong liability point. Yes John is a human being and he wanted me to tell you that he hd an alcohol problem at one time but he is in AA now and hasn't had a drink in 3 years.
TRY YOUR GOOD CASES DON@T SETTLE
One of the most important points that Ed made was that you should try your good cases not settle them. Take your shot! Don't be afraid. You will lose many but win big sometimes. As Henry said many lawyers are afraid to go to court. Don't be one of them.
MAKE THE CASE ABOUT MORE THAN JUST MONEY
John Quinn and numerous others have said that it is important to make the case more important than just for the Plaintiff. Example in case where woman got wrong medicine from pharmacy The lawyer argued that case was important not just to plaintiff but also to elderly people who got prescription filled. They also tied in fact that company had pharmacist there alone (to save money) and was overworked. (This was corporate greed over safety). This is not a case you will see on an episode of law and order but it is still an important case. It is an important case to....
HOW YOUR WITNESS LOOKS IS AS IMPORTANT AS WHAT THEY SAY
The jury will evaluate your witnesses by their appearance as well as their words. Be mindful of this don't put witnesses on the stand who look strange or wild. Example:
Janette's current boss was black and well spoken but he had a wild hair look. We choose not to put him on the stand b/c of appearance. REMEMBER the witness you don't put on the stand can't hurt you. Don't rely on your client to make this assessment.
Remember the stolen dog case with the witness from hell.
CONTROL THE ACTION
Be ready with motions in limine and other items to help control the action.
MIAMI COP
This is a memory device designed to help you remember the various purposes for which evidence of other bad acts may be admitted under 404 (b).
M=motive
I=identification
A=not an accident
M=mistake (absence of)
I=identity
I=intent

C=common plan or scheme
O=opportunity
P=plan
DEFINITION OF RELEVANCE
Example if a piece of evidence makes an issue in the case more or less likely. If a piece of evidence makes an outcome even slightly more likely it is relevant.
SUBPOENA DU JOUR
Be ready with blank subpoenas for documents to serve on opposing party during the trial. Ed calls this the subpoena du jour "subpoena of the day." The purpose is to gather important info and distract the other side from their preparation.
SUBPOENA DU JOUR
Be ready with blank subpoenas for documents to serve on opposing party during the trial. Ed calls this the subpoena du jour "subpoena of the day." The purpose is to gather important info and distract the other side from their preparation.
ALWAYS USE VIDEO DEPOSITIONS
If a person is worth deposing, they are worth doing as a video deposition. You can get great stuff from witnesses in video depositions that you would not get in a regular deposition. Body language etc. Also witness is much more likely to be forthcoming. Example AI don=t recall is a terrible answer in a regular depo it is not so bad for the Plaintiff in a video depo.@ Also remember at CLE redneck girl with her intonations. She would not have been so bad in a regular depo
ALWAYS GET A GENERAL VERDICT IF POSSIBLE
Always try to get a general verdict if possible. On appeal if there is sufficient evidence for any one of the causes of action then the verdict stands. When are you entitled to a general verdict?
Under South Carolina law the judge is given discretion to determine how a case should be submitted to the jury. Baxley v. Rosenblum 303 SC 340, 400 SE 2d 502 (Ct. App. 1991). To get a general verdict you should argue that the jury is capable of evaluating the evidence as to each theory of liability presented Madden v. Cox 284 SC 574, 328 SE 2d 108 (Ct. App. 1985). Likewise court has discretion to submit to jury written interrogatories.
TWO ISSUE RULE
Where a case is submitted to the jury on two or more causes of action and a general verdict is returned the verdict will be upheld if evidence supported at least one cause of action. Harold Tyner v. Firstmark 311 SC 447, 429 SE 2d 819 (Ct. App. 1993)
YOHO SUBPOENAS
Yoho subpoenas are subpoenas which require the doctor to reveal how much money he has been paid by insurance companies or defense lawyers. This is great stuff because it reveals defense whores. See Yoho vs. Thompson Scan subpoena put here
notecard hyperlinked documents\YOHO subpoena .wpd
CIRCUMSTANTIAL EVIDENCE
You can argue circumstantial evidence by arguing from the book and cartoon "Gullivers Travels" Do you remember that Gulliver was a seaman who was shipwrecked on a desert island? Do you remember that at first he did not know whether anyone else lived on the island? He didn't see any buildings or other people but as he walked along the beach he saw footprints..he then knew that there were other people on the island. That is an example of circumstantial evidence. The footprint was the circumstantial evidence of other people on the island. Lets look at what the footprints are in this case
PRIMACY AND RECENCY
Juries remember what they hear first and last. It is important to get them going with something they cannot disagree with. Start with your strongest point put a weakness or weaker point in the middle and end on a strong point.
FIRST WITNESS IS VERY IM PORTANT
Ed says that the first witness is very important that its sets the tone for the whole trial. It must be a witness that promotes your case but not the main witness. I think he means that the trial must build to a creshendo. The first witness must also be relatively invulnerable to cross. Sometimes we can call their witnesses as our witnesses but only if we know we can score
GET THE CLIENT COMFORTABLE IN THE COURTROOM
Try to put the client up late in the case if you can. This lets them see the story unfold and gets them more comfortable so they can be more relaxed.. This should help with their testimony
ARGUE TO THE JURY ON CROSS
Try to argue to the jury on cross to keep them involved. Ed did this well with Johnston. I can do this well. Remember cross I did in custody case
10 COMMANDMENTS OF CROSS EXAMINATION
1. Use short questions (Be brief)
2. Use plain word
3. Make statements don't ask questions
4. Be prepared
5. Listen
6. Don't argue with the witness. Score!
7. Avoid repetition
8. Don't allow witness to explain
9. Limit questions
10. Save it for summation
WHAT IS A BUZZ SAW QUESTION?
Example Mr. Jones were you making so much money that you didn't notice a deposition of $500,000 into your account. This is the buzz saw question
DON'T IGNORE YOUR WEAKNESSES
If you have a weak point in a case, you cannot ignore it and hope it will go away. An example was the Thompkins case. In that case the client (Mrs. Thompkins) was the weakness. I ignored the weakness and worked te case hard. In retrospect this case was doomed from the start because she could not give decent testimony. I ignored this weakness instead of assessing the case correctly.
DON'T TRY TO TELL THEM WHAT TO SAY
In the Thompkins case I tried to give client a signal. It backfired badly. Don't repeat that mistake. Remember I told her to ask them to repeat the question when I objected. She did...even on simple questions. It was obvious what had been done. TRULY A NIGHTMARE! LESSON LEARNED
YOU CAN LEAD AN ADVERSE PARTY IN A DEPO
Another hard lesson from Thompkins and Charles depos. You can lead in the depo if it is an adverse party. Good thing is that you can lead them too! See Rule 611.
MOTION TO HAVE ALL PRETRIAL MATTERS HEARD BY THE MASTER IN EQUITY
Lesson from Thompkins: Circuit court judges hate discovery disputes. Solution: Make a motion to have all pretrial matters heard by the Master in Equity (Particularly in Berkeley county)
WORK THE CASE BACKWARDS
One ATLA article suggests that you work the case backwards by determining what you need to prove to win. Get your jury charges and then build your evidence based on those.
Once you know what you need to prove then you can determine what evidence you need. Scan article and put as attachment here.
BE A DRUDGE IN THE OFFICE
Terry Richardson of Ness, Motley said in his audio tape that to be a great lawyer you have to be a drudge in the office. McDaniel says that no matter how good a paralegal you have that sometimes you have to pickup the phone and do it yourself. He also said that some of their best trial lawyers were people who they picked to be second chair lawyers. He seemed to say that being a great lawyer is more ab out hard work than anything else. Maybe there is hope for you!
PAPER WINS LAWSUITS
Richardson also said that "paper wins lawsuits." He meant that people tend to tell the truth when they think no one is looking. He emphasized the need to get the documents because they contain the truth.
SEVEN STANDARDS OF MEDICAL PRACTICE
Savlina wrote an article which sets out seven steps which are generally accepted by the medical community.
1) Obtain a complete medical history
2) Perform a thorough physical observation
3) Order appropriate diagnostic tests
4) Perform a differential diagnosis
5) Develop a final or working diagnosis
6) Provide appropriate treatment
7) Reassessment of diagnosis or treatment
See the attached article. This is an excellent overview of the reasoning process. This also provides a good outline of affidavit basis for expert.
notecard hyperlinked documents\Svalina Med mal article.pdf
notecard hyperlinked documents\The Seven Standards of Medical Malpractice.doc
GET THOSE INTERROGATORIES ANSWERED
Be aware that if you fail to answer interrogatories prior to the depositionBthe opposing side can ask that the deposition remain open. This could be deadly. Why give them wo cracks at the witness?
DON'T TIP THEM OFF ABOUT STRATEGY
Try to keep your strategy to yourself if possible or give misinformation. Remember Ed told Tiller that he didn't think black jurors would like Johnston. At this time we thought they would use a tape which would show Janette as being anti-black so Ed gave this info to Tiller to try to get Tiller to strike blacks. Also you need to keep in mind that the other side may not be giving you the truth. They may be giving you misinformation
GET THE BOOK ON THE EXPERT OR WITNESS
Always get the best possible information on a witness before taking their deposition. Get the book on the witness. A great example was Ken Brooke. If I had known about these convictions before the depo I could have set him up for trial. Also remember Defendant
in bicycle case. I did my homework and it would have been great stuff at a video depo. I let the cat out of the bag and then did not follow up well at trial. I could have read excerpts fro
TAKE THE CLIENT TO THE COURTHOUSE BEFORE TRIAL
Always take the client to the courthouse before trial. Put her in the witness box and go through her testimony. This gets her comfortable with the courtroom and lets her be more relaxed. Also a related idea is to have the client testify as late in the trial as possible
NEVER MISS AN OPPORTUNITY TO PERSUADE
Herbert Stern stated that an advocate should Anever miss an opportunity to persuade. He meant that we should always be on the lookout for chances to convince the judge/jury of the truth of our positions.
NEVER LOSE YOUR COMPOSURE IN FRONT OF THE JURY
This is critical. Jurors want you to be professional. They don=t like witnesses or lawyers who scream and get angry. Its OK and desirable to show emotion but not OK to lose your composure. This is a difficult skill. Ed was able to show anger but he seemed to present it only after he thought it was justified under the circumstances. I am prone to losing my cool. This is a character flaw that I need to correct.
BE POLITE AND RESPECTFUL TO BALIFFS AND COURT REPORTERS
Remember how Ed was very polite and respectful to the balliffs and court reporter. These people deal directly with the jurors and can help you or hurt you. If the court personel like and respect you those feelings will be conveyed to the jury.
WORK THE CASE EARLY OR DON'T TAKE THE CASE
Remember Thompkins vs. Trident. You can't work the case at the last minute and then expect to do well. If you don't intend to work the case from start to finish don't take the case.
RATTLE THEIR CAGES IF POSSIBLE
Try to do things which will make the other side uncomfortable. For example, in the Bicycle case I could have called the defendant as a witness. He obviously did not want me to do this. therefore I probably should have done it.
USE DEPOSITION EXCERPTS WHERE YOU CAN
Under rule 32 (a)(2)the deposition of a party may be used by the adverse party for ANY purpose. You can read excerpts from depositions into the record. This is particularly useful when you don't want to take a chance on losing control of the witness. The witness has no chance to explain. Please remember that you are required to give notice of the sections you plan to read to the other side. Also remember the idea of using video depositions at the start of the trial. This was suggested at an ATLA trial. This allows the jury to hear defense witnesses being cross examined without any rebuttal from the otherside. Butler from ATLA calls this "breaking the teeth of the defense lawyers."

Remember how uncomfortable it was for you in the case against David Devane where he re your clients deposition ino the record? you can use this to your advantage.
DOES IT TASTE LIKE CHICKEN?
Use humor or other interesting features of a witness to make them appealing to the jury. For example, in the Clayton case we used the fact that Janette had driven a backhoe for her dad and had done other interesting things to make her more appealing to the jury. Try to find something about a witness that the jury will like. Something that will personalize the witness make them more likeable more appealing. Another great example was the witness who ran the Ostrich farm. My question "does it taste like chicken" was great and spontaneous (shows what can happen when you relax). MORAL: find something interesting about every witnessBmake them real people. Another great example of this was the CLE tape where a truck driver was asked about his hobby of raising dogs. Before the Plaintiff's lawyer knew it the jury (and the judge) was interested in the story. The result was a verdict far lower than otherwise would have been
ITS HARDER TO RULE AGAINST SOMEONE YOU LIKE
The idea is that judges and juries are ruled as much by emotion as logic. They will punish people and lawyers they don=t like. This idea is closely related to the idea of why we personalize witnesses. If the jury knows you as a person it is much harder to rule against you. Tell the story..tell about the hobby. Remember what Robert Brown did he got his client to tell a story about coon dogs and pretty soon the jury was enthralled by the time the Plaintiff’s lawyer knew what was happening it was too late. The judge overruled the objection saying “he has a right to establish his witness” The Judge wanted to hear the story too! The jury gave a verdict against the Defendant but it was a much smaller verdict than it could have been.
PARAGRAPH METHOD OF DIRECT EXAMINATION
This is a method of direct examination suggested by Tigar. He says that you should imagine each paragraph as a picture that you want to convey to the jurors.

1) Imagine each paragraph as a picture of what you want to convey
2) Divide picture into as many aspects of information as necessary to avoid narrative
3) Each aspect becomes a separate question

You can use looping to draw out as much or as little info as you want about an area. Another way of approaching direct is to figure out what answer you want from the witness. The answer forms the basis of your outline. You don't have questions on your outline only answers.
RELAX
Beathe deeply. Learn to relax and take the "joe lawyer" role off. Be Lindsay Blanks not Joe Lawyer
SHE MADE A CHOICE
Using charts. You must be careful not to use charts which distract from your presentation. You must choose the moment to use the chart carefully. Build suspense if possible. Let me show you what she saw.....(builds suspense). Do you want to know what happened next? Let me show you.....
ONE IDEA PER SENTANCE
Keep it simple. Use one idea per sentance. This is good storytelling technique
WHISPER OPENING
Start soft. Be natural. See the language you use to describe the case

We all have rules to follow in our jobs and occupations don't we
ANCHORING
You can anchor with your hands example (baby) You can also use your hands (remember socks) Be careful about the anchors you use because they can emphasize certain portions of your case. You can use your hands as exhibits. You can also "bookend" by starting at one anchor and ending at the other. You can also anchor damages but be sure you start with a high number.
WHERE TO STAND
Stand on left of jury to talk about damages. Stand on right to talk about logic (liability)

You can also anchor a spot in time. Anchor a spot associate that spot with time. Use the courtroom as timeline.
EMOTIONS
Don't cry in open or close. You want to build the jury to a crescendo.
RHETORICAL QUESTION TO START
Try to open with a question or a statement that they must agree with. SMILE. YOU ARE HAPPY TO BE HERE.
APPROACH
Don't speak until you have looked at each juror. Use silence as a tool
PRACTICING PUTTING EMOTION INTO PRESENTATION
Practice yelling the words. This will help you put richness in the voice.. Practice exaggerating the loudness then go down (softer) Practice going from softer to louder.. This will tell you which way sounds better.
PACE
Slow down . Practice slowing down. When you slow down the pace you can get their attention by slowing the pace this adds emphasis. Really drag it out word by word
ENDING THE OPENING
If you thank them. Thank them all. don >t rush. Look at them.
ASSEMBLE TIMELINES THAT GO TO THE JURY ROOM
If you assemble timelines from the Defendants own documents often these can go to the jury room as an exhibit. (Rule 1006?!)

Vesper suggests that that we use compilation rule and get nurse
MOCK JURY
Summary of each side's main arguments and evidence
Mock jurors instructed in the law and given a verdict form
Mock jurors deliberations observed
Baseline attitude questionaire
Demographic questionaire
Plaintiff's presentation
Do questionaire to find out what people thought?
Defendants questionaire?
Do questionaire to find out what people thought?
Jury May submit written questions
Read jury instructions
Walk them through verdict form
One final questionaire
CONCEPT FOCUS GROUP
Issue oriented
mock jurors moderator
discussion format
more effective ealier in process helps determine people general views
IMPORTANT FOCUS GROUP ISSUES
Conduct mock jury in same venue as trial
Important because life experiences will vary based on economic climate and culture
Recruit jurors that match those in jury school
Census data, jury lists, attorney experience
Screen mock jurors (bias, security) (example breast cancer mock juror)
Stress confidentiality
Sign confidentiality agreement?!
Test the opposing side=s strongest caseBput up strongest case possible worst case senario
Face problems head on don=t run away from problems
Present balanced case presentations (each side addressing same issues)
Don=t tell jurors anything that would not be admissible at trial
Don=t argue with the jurors
Ask them what they want to hear
Do not let them know who sponsored the research
Video or audio tape the presentation watch them more than once
Go to last jury
Cost varies National Jury Project East
Don=t bring your client
emotionally difficult
No control over what they will take away from research
May attempt to change testimony to fit whatever
Do mock direct and cross of client on videotape
Test before lawsuit
Before discovery ends
To determine settlement value
Right before trial
INTRODUCTION OF WITNESS
Be conversational. Talk to them like you are talking to them in a bar. Have witness get out of box
CROSS
1. 1 fact-1 question
2. Repeat the question: Let them run
Ask the question until you break the witness down
3. Throw out the trash....and repeat the question
4. State the opposite
5. Thats a "yes"
6. Include the Ans. In Question
7. SegueBCall your shots
8. Summarize
9. Use exhibits
10. Gestures and pointing
SPRINGING THE TRAP
Question:
You would agree with me that the weather on November 21 was the worst in 2 year correct?
Evasive answer
Repeat the question
Evasive answer.
I'm going to ask you this one more time. Didn't you tell me before that before did you?

READ DEPO ANSWER
Is that a fact that you are contesting? Can we agree on that?
Voice drops as you approach
Let me refresh your recollection again (looking at jury).
DIRECT
Create visual pictures with loops example Answer "I saw a yellow car" What else did you see besides the yellow car.

Hand document
Get out of scene
Is that a fair and accurate representation of scene?
Have witness show document to jury
BUILDING SUSPENSE WITH EXHIBITS
Question: Is there something that would help the jury understand your condition? Vesper says that the jury will be thinking "Oh what is it?!"

Question: What would that be?

Have you seen this model before?

Does this model fairly represent the condition of your foot?
ENDING THE DIRECT
Ask open ended question emphasizing damages.
Loop it.

Pause

Loop

Pause again

SLOW DOWN
BRACKETING
Start with absurdly low number then give absurdly high number. If witness complains that you are not being fair then turn that around on her and say that you are only trying to get a Afair estimate@. GET AN EXAMPLE HERE
REPEAT THE QUESTION
On cross if the witness fudges repeat the question. Repeat the question. Approach. Vary focal variety and loudness. Approach. Right before pin down question take glasses off.
THROW OUT THE TRASH
The witness, on cross, may answer with extraneous matters in response. Example:
Question: If you had been going slower you could have made that turn correct?
Answer: Well, if it hadn=t been for the act of god with the ice I could have made that turn.
Question: Lets leave God out of this Mr. X, if you had been going slower you could have made the turn correct?
THEY HAVE FILED PAPERS WITH THIS COURT.....
The general rule is that you cannot read the pleadings to the jury but there is nothing wrong with saying "the defendants have filed papers withy this court saying....." Example in the Clayton case Ed said the accusations have been filed with the Court and will stay on the books for the next 200 years.
SETTLEMENT NEGOTIATIONS
Be nice. Keep working.
SETTLEMENT BROCHURES
pictures of client with friends
expert opinions
photos in casket
short summary of life
wedding photo
photos with children
Education and earning capacity
letters from friends
church friends
Settlement brochure:
letters from community
videos from therapy
pictures of client with friends
expert opinions
photos in casket
short summary of life
wedding photo
statement of law as to damages
videos from EMS
EMS tapes
911 tapes
Deposition excerpts
mortality tables
tax returns
funeral bill/medical bills
economist report
accident report
death certificate
settlement demand
statement of law as to damages
photos with children
Education and earning capacity
letters from friends
church friends
CLOSING NOTES
Nail it with first two witnesses or closing will not save you. Purpose of closing is to give jurors who are with you ammunition to argue your case in the jury room.
Liability vs. responsibility
What choices did the Defendant make during course of trial?
Chronologies used frequently
Predictable----four specific warnings
What was testimony about choices made by doctors?
Didn't even give patient a right to make a choice.
Obvious list reports
Preventable misread or did not read EKG
Jury remembers hooks POP give them evidence
CLOSING
Spend most of your time talking about damages not liability. What significant impact has this accident had on your life?
Prepare client in deposition take notes in to depo
How has this injury significantly affected your life?
Looking for examples bowling whatever
Talk to family and friends
What are you going to do with the money? (Ask client on direct)
Gotta say the number
Do a damage chart
HOW TO BREAKDOWN DAMAGES
economic lossB
Past medicals
future medicals
past lost wages
future lost wages
________-------------
Sub total
Human loss
injuries
past physical pain
future physical pain
past emotional suffering
future emotional suffering
past impairment
futrure impairment
past disability
future disability
past enjoyment of life
future loss of enjoyment of life
Total damages $________________
LOSS OF ENJOYMENT OF LIFE
Thirty years ago book
use numbers for 10-20 years ago
Get time capsule
All the numbers need to be looked at
ADL chart activities of daily living chart
tuesdays with Mauire
Precious present
who else do you know
cashier at
Go spend a day talking
DAY IN THE LIFE VIDEO
Focus on relationships with family
Show all things
Must show jury that there is some kind of hope
Test day in life video with focus group
USE FLIPCHARTS TO SETUP YOUR CLOSING ON CROSS
One technique that Ed uses on cross is to write down key answers given by the witness. Let the jury see you taking notes while witness testifies. During your closing use the notes. Let the jury view them and analyze the witnesses testimony
USE THE OPPOSING WITNESS TO HELP YOU WITH STANDARD OF CARE
In medical malpractice cases a defense witness who is asked to recount details of an injured patient's treatment may say "I don=t remember but I am sure I did what I normally do...." The witness almost always contends that he normally does things correctly and according to well established procedures. This gives you an opportunity to establish a standard of care Examples:
"Are you saying that you would normally see a patient in this critical condition at least once an hour? Why is this important?"
"Are you saying that you are the only nurse who would see this patient at least once an hour or is that a standard practice?"
Are you saying that you would see this patient once an hour because that is the standard that is expected of you and every other nurse in this situation.?
"Would you agree that if you did not check on this patient at least once an hour that you would have failed to conduct yourself in a way that would be expected of any nurse in this clinical setting?"
IF WITNESS IS EVASIVE
Repeat the question at least three times
LOOK AT THE EXPERTS FILE BEFORE TESTIFYING
Always check the experts file before testifying. Occasionally the defense lawyers will fail to cull documents from the experts file. Example, the lawyer asked for the experts file. The defense lawyer failed to remove a letter from the defendant to the expert telling him how to testify.
ORDER OF CROSS EXAMINATION
Accredit information first. Get the good stuff first. Extract all of the good stuff then turn on the witness.
SEQUENCE OF WITNESSES
David Ball says that the selection of the first witness is very important. The first witness should:
1. Must be crossproof by the defense. If first witness hold up under cross then jurors are likely to conclude that you are credible

2. Must be someone that can tell a significant part of story (not necessarily largest part) Either what defendant did or results of what he did.
3. Should be able to tell a little about harm done to client
4. Must have no stake in outcome of case. If client spouse testifies first jurors will view him with suscpicion b/c of stake in outcome.
Example first witness could be someone who saw the defendant car coming fast and swerving onto sidewalk where client standing
THINK TWICE BEFORE SEEKING SANCTIONS
When fighting discovery abuse sometimes seeking sanctions is more trouble than it is worth. Most likely outcome is a slap on the wrist and an order requiring compliance.
WALK IN YOUR OPPONENT=S SHOES
When planning a focus group try to anticipate the opponent's position. Put more energy into preparing their side than your side. In a focus group you must explore every important aspect of the case. Testing worst case scenario helps the trial team prepare for the worst the other side could bring.
IDENTIFYING LEADERS ON THE JURY PANEL
A leader can be very helpful or harmful depending on which way they lean. Who are leaders?
1) Look at occupation. Leaders in the workplace are likely to be leaders in the jury box. Examples: Managers, teachers, supervisors, administrators bosses and organizers. You can also have leaders on single topics. Also people with status (doctors, celebrities )
You should also consider that leadership is a comparative quality. A general is a leader in a roomful of lieutenants.
Jurors with previous jury experience tend to be leaders Do I need to get judge to ask whether any members of jury panel have served as jurors before?
JURORS CARE IF YOU CARE
Jurors give money because they care. If you don't care why should they? You can't fake this.

To make you caring real spend time with the client in their home. Spend time with their family. Take part in their activities. Be there. Share their lives beyond the time necessary to do business. One idea is to bring the client to your home for a day and for the lawyer to go spend a day with the client's family. Think about similarities between your client's misfortunes and your own. This compassion will help in front of the jury.
BEING YOURSELF
First rule is to be yourself. If jurors think you are putting on a front they. Choose the self that you are when you are among friends who are equals. Great lawyers are the same in court as they are outside court. Ask your friends if you are any different in front of the jury than with them.
AVOID THE GREEDY LAWYER STEREOTYPE
Leave the Lexus at home. Wear nice clothes but not extravagent clothes. No Rolex. No fancy pen
PUNITIVE DAMAGES
Jurors will be reluctant to give punitives (large awards) unless you can show some element of intentionality. Not that they intentionally hurt your client but that they intentionally put time or money ahead of safety. Jurors must decide that this defendant has done this activity over and over. USE A CHART TO SHOW EACH INSTANCE OF SIMILAR WRONGDOING. By showing past wrongdoing you can show probability of future wrongdoing. Use opposition witnesses to confirm the past instances. Pursue all three goals of puntives:
1) To punish
2) To keep them from doing it again
3) To warn others
ARGUE THAT PUNITIVES SHOULD BE LARGE ENOUGH TO SEND A MESSAGE
Explain that punitives must be large enough for the people who run the company to hear about it. Personalize the board of directors (give some names) in a distant city or the stockholders who will see the price fall because of the punitive damage verdict. Create a vignette in the meeting where the owners decide to change company practice.
RULE 15
Beware that if you let them try issues (even if not plead) then you have tried those issues by consent. Remember the trial against Jaskiwitz (White vs. Cassidy) I used various RTSC violations which were not plead. Jasckiwitz objected and Creech overruled the objection saying that the issues I raised were tried by consent.
YOU=RE GOOD, VERY GOOD
Remember Vesper's praise. Remember that you have worked hard to make yourself a better lawyer. Show some confidence. Don't be afaid to fail or get down on yourself
PATIENCE
Patience is a virtue but in negotiation it is also a weapon of incalculable power. If you can out-wait the other side you can usually out-negotiate them.
RESPONSIBILITY
As long as the world shall last there will be wrongs, if no man objected and no man rebelled, those wrongs would last forever.
COURAGE
Kill the snake of doubt in your heart, crush the worms of fear in your heart and mountains will move out of your way.
SOLDIERS AND SAILORS RELIEF ACT
This is a useful tool which allows a military defendant to protect himself. To get around this the opposing side can argue that the defendant's ability to defend himself is not materially impaired
BONUS POINTS
Be aware of unexpected scoring chances. For example "Your honor I have more questions for this witness but I am at the end of this section." Do you want to take a break to allow the jury to get to the coffee bar before it closes.?" You will score even if the judge declines.
HIDE NOTHING
Avoid objecting in the presence of the jury. You don't EVER want to be perceived as hiding anything. Also avoid cutting off a witness when trying to answer a question.
IGNORING JURORS
You should be constantly asking yourself what jurors are thinking, doing and seeing right now? Constantly remind yourself that everything you do or say will have an effect on the jury.
EYE CONTACT
You have to SEE jurors to convey credibility and create rapport. You have t watch jurors AS YOU TALK in order to know if you have made your point or if you need to explain further or put something another way. LOOK AT THEM.
USE VISUAL AIDS IN THE OPENING
Never omit using visual aids in the opening. Charts, photos, pieces of real evidence maps, documents, blowups

RULE OF THUMB: use one visual aid for each point you want to make in the opening plusCwithout fail!B a time line.
GRABBER
When you start your opeing the jurors minds are on everything else they had going on that day. You need to develop a forceful opening statement that draws their attention. Examples:

"Motherfucker, I'm going to kill you!"
John White will never walk again. Why not? Because John Thompson wanted to get to Forrest Gump on time."
There=s the drunk driver. And here=s the family with no father.
AAcme corporation did not spend $2.00 for a safety switch. So Allen Black sits here with no right arm.@
CASE CAPSULATION
A case capsulation is a brief (125 words or less) narrative overview of a case. This lets the jury see the overall context because listeners can more easily grasp the specifics when they are first told an overview. EXAMPLE "On April 3, 1991, John Smith drives his truck through a highway barricade of orange barrels at 85 miles per hour and slams head on into Allison Buforts Honda. He cripples her for life and causes permanent brain damage. An hour before the wreck, he'd had 5 16 ounce beers."
HOW TO GET BETTER
Read transcipts
watch 60 minutes (great examples of case capsulation and grabbers)
Work small cases as prep for big cases (example Robin Martin)
Practice using short concrete facts to tell stories
Write down every effective opening tactic you ever see including those used against you. Use it yourself next time.
Practice your opening
Read outloud 10 minutes each
USE ADJECTIVES AND MODIFIERS SPARINGLY
Use strong verbs (example "slam") but use modifiers infrequently. Example "poor Allison"

INSTEAD use concrete words Example don't tell them Athe weather was bad instead tell them "It was raining and sleeting. 29 degrees and the wind was blowing 29 miles per hour" Simply feed the jurors the facts from which they can draw their own conclusions.

The jurors will conclude on their own that the weather was bad. This could also be done effectively on cross because you will often have a hard time getting a witness to agree with a conclusion but if you state specific facts then the conclusion will be inescapable and the jury will think he is a liar for refusing to see the truth.
SEQUENCE IN THE OPENING
1. Grabber
2. Case capsulation
3. Introduce crucial terms and concepts
4. Tell the story
5. Catastrophe
6. Aftermath
7. Damages
8. Who you are suing and why
9. Undermining the opposition
10. How do you know?
11. Jury empowerment
REWIRE YOUR BRAIN
The brain is very adaptable and can be rewired to enable new skills. See Mozart and the Fighter Pilot
DON=T FORGET THE VOCATIONAL EXPERT
Remember that in comp cases a vocational expert is often very useful. It allows you to get compensation for loss of earning capacity instead of schedule injuries which can often be more. There are two statutes ( 42-9-10 and 42-9-20 In order to prove loss of earning capacity you need help from vocational experts. Remember the lesson from Phillips. Be prepared!!! Look at the case at least 45 days before hearing
HOW TO CONTROL STRESS
Breathe slowly and deeply
Accept those things you cannot change
Conquer performance anxiety by:
a) Avoid playing over negative senarios in your mind
b) Concentrate on your ideas and your goals rather than focusing on the bad things that can happen
c) Practice doesn't make perfect only perfect practice makes perfect
d)
HOW TO PUNISH PEOPLE WHO WITHHOLD DOCUMENTS
Great lesson here taught by Charles Norris. Baron Grier refused to turn over notes in a deposition. Grier said that the notes contained some of his impressions and therefore Norris was not entitled to the notes. Norris waited until time for Grier to move for protective order had expired ( Under rule ___ you have _----- days to move for a protective order if you are claiming a privilege.) Baron did not file for protective Order. Norris moved for motion to compel. As part of response to motion to compel Baron said that records had been destroyed. Norris then made a motion for sanctions asking for an jury instruction that the records destroyed would have been favorable to Norris. A copy of the motion and supporting memo is attached here.
BE AGGRESSIVE!!!
USE LOOPING IN DEPOSITIONS
Use looping to build rapport with the witness and lead them.

A. "He was interested in getting in the hotel business. And we entered into an agreement where I would develop three hotels for him, motels."

Q. (And now the loop) "What three hotels were those?"
WHAT DOCUMENTS DID YOU REVIEW FOR THIS DEPOSITION?
Always ask what documents they reviewed for this deposition. You are entitled to get those documents. Also it gives you clues to what they think is important. If you don't get those documents then you can make motions for sanctions (See card # 131)
OH MY GOD!
One way to assess a case is based on the "oh my god" factor. How much when you hear the facts do you go oh my god how could that happen. This helps you with liability from which flows damages. A jury will need to get angry to want to punish the defendants.When you hear the facts do you go "OH MY GOD!"?
STAGE TIME, STAGE TIME, STAGE TIME
The simple truth is that in order to get better you have to practice. Whether it is chess, trial work or public speaking there is no substitute for practice. How many tournaments did you have to play in before you won the state championship? The same thing applies to speaking or anything else. You must get up there and do it. Trial work is the same thing. You will have to try cases. there is no other way to get better. Remember "zen and the Art of Motorcycle maintenance" You can learn anything if you are willing to endure enough pain
USE THE PAUSE
Great speakers use the pause to emphasize points. The pause tells the audience that "this is important" it also gives the audience time to reflect on what you have said. The pause is especially important after asking the audience a rhetorical question. "Remember I don't have a Pentium 4 built into my brain."
THREE IN SERIES AS HUMOR DEVICE
Example You give a list of items I was worried about breaking down so I packed heavily. I took a compass... a map.....my mother. AMy mother@ is the unexpected third item. It is an example of creating and expectation in the mind of the audience and then changing up which creates the humor.
USING HUMOR IN SPEECHES AND TRIAL
Humor is extremely effective as a way of persuading people. Using humor relaxes people. When people are relaxed they learn. The best speakers use humor early in the speech. This relaxes audience and helps them be more receptive. Self effacing humor is best of all. It relaxes audience and lets them know that "hey I'm just like you." "I don't think I am any better than you."
MAKE A POINT TELL A STORY
David Brooks says that this is one of the most important lessons he learned. When speaking you should strive to link a story to each of your points.
LET NO ONE OUTPREPARE YOU
One of the lessons that I learned from the speakers CDS was that you should let no one outprepare you.
START A PERSONAL STORY FILE
Where do you get stories from? The best place is your own experience. You will be able to tell these stories better and you can use them for more than one lesson.
THE MAN WITH THREE ARMS
Be alert for logical inconsistencies and absurdities in the opponents position. Example was rape trial of Kennedy Smith. Key witness described how rape occurred but for it to have gone that way the Defendant would have had to have three arms. You can often turn around the opponents evidence and witnesses if you are careful.
BOOMERANG
Juries love boomerang effects. You should look for ways to use the opponents own witnesses or exhibits against them. Remember the witness (mother ) called by opposing party. You saw an opportunity to score with the witness by proving that she lived with a drug user for several years. This allowed me to use her to reinforce our theory that the father was a druggie.
HOW TO ARGUE REASONABLE DOUBT
You can argue reasonable doubt by saying that if there are competing reasonable theories that reasonable doubt requires acquittal. You must implant this in your questions and arguments Example "Officer so it is just as reasonable to assume the shot was fired at three o'clock as 4 o'clock correct"
TALK TO JURORS AFTER TRIAL
find out what they remembered best, what they found most useful, what offended them, and what was most persuasive. There is no better way to prepare for future trials.
USING PROPS
Remember that in plays they use props to illustrate points. Talking about a weapon is less effective than showing a picture of the weapon. Showing the picture of the weapon is less effective that the actual weapon. Better still get the witness to handle the weapon. Best of all is to let the jury feel the exhibit
ONE IMPORTANT POINT=ONE EXHIBIT
You should strive to have one visual exhibit per important point
PICK YOUR COMMISSIONER
Find out who the good and bad commissioners are. Is there a schedule that is available?
If you get a bad Commissioner (like Lyndon) try to get case continued. Remember that Trask continued a case to try to avoid a bad commissioner. I could use family court to avoid certain commissioners.
ITS 7 DAYS NOT 5 DAYS
Beware of certain myths that circulate. For example a common belief is that you have to give 5 days notice for a temporary hearing. Really you have to give 7 days notice since the rules state that Aany time period less than 10 days you do not count weekends@ You can never have a situation where the 5 days does not include weekends. Put Rule here
UNFAIR CLAIMS PRACTICES
Remember that the Claims Practices act makes an Insurance company civilly liable for obstructing claims and failing to pay claims w/o reasonable basis.
' 38-59-20. Improper claim practices.

Any of the following acts by an insurer doing accident andhealth insurance, property insurance,casualty insurance, surety
insurance, marine insurance, or title insurance business, if
committed without just cause and performed with such frequency as
to indicate a general business practice, constitutes improper
claim practices:

(1) Knowingly misrepresenting to insureds or third-party
claimants pertinent facts or policy provisions relating to
coverages at issue or providing deceptive or misleading
information with respect to coverages.

(2) Failing to acknowledge with reasonable promptness pertinent
communications with respect to claims arising under its policies,
including third-party claims arising under liability insurance
policies.

(3) Failing to adopt and implement reasonable standards for the
prompt investigation and settlement of claims, including
third-party liability claims, arising under its policies.

(4) Not attempting in good faith to effect prompt, fair, and
equitable settlement of claims, including third-party liability
claims, submitted to it in which liability has become reasonably
clear.

(5) Compelling policyholders or claimants, including
third-party claimants under liability policies, to institute
suits to recover amounts reasonably due or payable with respect
to claims arising under its policies by offering substantially
less than the amounts ultimately recovered through suits brought
by the claimants or through settlements with their attorneys
employed as the result of the inability of the claimants to
effect reasonable settlements with the insurers.

(6) Offering to settle claims, including third-party liability
claims, for an amount less than the amount otherwise reasonably
due or payable based upon the possibility or probability that the
policyholder or claimant would be required to incur attorneys'
fees to recover the amount reasonably due or payable.

(7) Invoking or threatening to invoke policy defenses or to
rescind the policy as of its inception, not in good faith and
with a reasonable expectation of prevailing with respect to the
policy defense or attempted rescission, but for the primary
purpose of discouraging or reducing a claim, including a
third-party liability claim.

(8) Any other practice which constitutes an unreasonable delay
in paying or an unreasonable failure to pay or settle in full
claims, including third-party liability claims, aris
AI CAN=T BELIEVE YOU SAID THAT!@
Under Rule 30 a party can make changes in the Aform or substance of the deposition testimony@ NEVER WAIVE READING AND SIGNING. How does this Rule interplay with rule that lawyer cannot discuss or suggest answers. It would also seem to imply that lawyer cannot recommend changes to deposition

e) Submission to Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign.
OPENING THE DOOR
Remember that otherwise inadmissible issues can be triable and argued if the other side opens the door. For example in Phillips vs. Phillips Mr. Phillips on cross said that Ms. Phillips had not tried to settle case. This allowed me to show our offer of settlement which showed that she had made settlement offers.
TRY TO GET JURY TO IDENTIFY WITH CLIENT
At all points during the case you should be thinking about how to get the jury to identify with your client. This can be done by eliciting testimony from your client which makes her like every other person. For example in cancer opening lawyer said "She faced every woman's greatest fear, every woman's greatest nightmare....." "But money was tight like money is tight for a lot of us." Examples also included planning party for 6th grade class and working for coworker. We all know someone like this and admire them.
DIRTY TRICKS
Get client to wear reflective sunglasses during deposition.
Drum your fingers during opposing party testimony.
WHAT MUST THE JURY BELIEVE FOR YOU TO WIN?@
Dianne Weaver suggests using the following idea as a way of analyzing you case. For example, in the failure to diagnose breast cancer case it was essential for the jury to believe that Ellen Ward was not the kind of person who would fail to keep an appointment with the doctor. So Dianne in her opening said Ellen was a very reliable person and cited examples:
"Ellen would fill in for coworker and if she said she would be there she would be there."
"If Ellen promised to do the party quite simply it was done."
"You will hear from her friends who have lost someone they could always count on."
" Ellen sent cards to friends on their anniversaries."
"Ellies Bible"
AWHAT MOST THE JURY NOT BELIEVE FOR US TO WIN@
You should also strive to figure out what the jury must NOT believe in order for you to win?
ATHAT IS THE BEST CLOSING I HAVE EVER SEEN OR HEARD@
Comment made to me by Ed about my closing argument in Clayton vs. Clayton
USING REQUESTS TO ADMIT
Some people suggest using Requests to Admit to narrow the issues and solve techincal problems that would otherwise plague you. See sample Requests that may help
notecard hyperlinked documents\Requests to admit.pdf

notecard hyperlinked documents\Using requests to admit.pdf

See also Requests to admit in wordperfect format (get RTA from Erin Smith case)
JOHN E. PARKER
How does this guy do it? He looks like a mortician but kicks ass. He got a 12 million dollar verdict in Orangeburg. He says the key is to have good factsBargue the public interest and keep hostile jurors off the panel. He says that in other counties that is not always possible.

Questions:
How does he pick juries?
What are his openings like?
How does he close?
What is the best way to improve?
IS CLAIMANT REQUIRED TO SHOW SHE LOOKED FOR WORK?
Under Coleman claimant is required to show that she looked for work?! (check this)
DAUBERT IN A NUTSHELL
Enclosed is an article which lays out the basic requirements of Daubert. If you need more detailed stuff remember that you can get tapes and materials from http://playbacknow.com/
Article attached notecard hyperlinked documents\Daubert in a nutshell.pdf
SAMPLE OPENING STATEMENT
Attached is an opening statement by Diane Weaver. This is an excellent example of how to give an opening using refrain. Also attached is a version of the opening which I annotated to help me understand it better. Maybe I should attach actual opening in a wav file?
USE PULLOUTS FROM EXHIBITS TO HIGHLIGHT FAVORABLE TESTIMONY
Remember what you did in Kaye Phillips. You pulled testimony from the medical exibits to highlight the points you wanted to make. See attached hyperlinks first is pullout from medical records hyperlinks two and three are charts asking rhetorical questions that are drawn from medical evidence
CRIMES OF MORAL TERPITUDE
You can cross examine on crimes of moral terpitude. See hyperlinked article on issue
PATIENCE
George Kefalos tells a story about springing a trap on an insurance company. He waited to ask a critical question until a 30 b6 deposition. Then he took away their alternatives in the deposition “closed the door.” Once the door was closed in the depo he used the answer as a basis for an offensive motion for summary judgment. He said that he waited over a year to spring the trap. Patience is indeed a virtue
THREE RULES FOR CROSS
This is taken from the tape by Dodds and Pozner “Killer Cross” They say that there are three (not 10) commandments of cross:

1) USE ONLY LEADING QUESTIONS
2) INTRODUCE ONLY NEW ONE FACT PER QUESTION
3) ALWAYS WORK TOWARD A GOAL
MAKE YOUR MEDICAL EXPERT A TEACHER
Dianne Weaver gives an excellent speech on direct of a medical expert. She says that you should make your doctor a teacher. Let him explain the basic anatomy (with a chart) of the injury. Get the expert off the stand and in front of the jury. Weaver emphasizes the jury and expert learning together. The more they know about the particular body part the more credibility they will give your expert. When the expert has to be cross examined the jury will be reluctant to abandon him because they have learned from him. It goes back to that old saying “tell me and I will forget, Show me and I will remember…involve me and I will understand” Weaver says you involve the jury by allowing your expert to teach them. As you teach the jury you are persuading. Weaver gives the example of allowing the expert to go through a standard neurological exam. She says you can see them in the hallway trying it out. Hyperlink to Weaver speech?
KILLER CROSS TECHNIQUES (THREE BASIC RULES
There are only three rules to remember:

1) Use ONLY leading questions.

2) Introduce 1 new fact per question

3) Structure the questions to work toward a specific goal one piece at a time.

This is taken from the tape by Dodds and Pozner on Killer cross. They say that cross can be an offensive weapon . If you follow these rules and prepare you can do well on cross.
KILLER CROSS TECHNIQUES (USE OF CHAPTERS)
Organize your questions into chapters. This will allow you to work from general to specific. Put the goal question at the bottom of the chapter.
KILLER CROSS TECHNIQUES (LOOPING
Pozner and Dodds suggest a technique called looping. For example suppose you get the witness to agree that a car was “speeding” thru an intersection. You like the word “speeding” and if you are not careful the witness will try to backoff of that word and say something like “well it wasn’t really “speeding” it was just traveling fast.” You don’t want to give them a chance to back off of “speeding” so Pozner and Dodds suggest using an innocuous followup question containg the word “speeding” so the witness’s sense of danger will not be aroused. For example:

Question: The blue car was speeding right?

Answer: Yes the car was speeding.

Followup: And the speeding car traveled thru the intersection? (In this question you don’t care that the car was going thru the intersection—that is not important—you are only trying to get the witness to agree again that the car was speeding without alerting the witness of you real intention.

Answer: yes.

P& D suggest not looping more than three times.
KILLER CROSS TECHNIQUES (DOUBLE LOOPS)
The purpose is to show the jury a relationship between two facts. For example:


Question: Mr. White is 6’5”

Answer: YES

Question: Mr. Blanks is 5’11”

Answer: Yes

Question: The 6’5” man struck the 5’11” man.

Answer: Yes
KILLER CROSS TECHNIQUES (SPONTANEOUS LOOPS)
In a spontaneous loop the witness tries to run and says something which you can use against them.

Question: When you looked down at your cassette player that’s when you struck Mr. X’s car.

Answer: Well I only looked down for a second.

Question: And during that second that’s when you struck his car.

Answer: Yes

Question: And during that second that’s when you broke his leg.

Answer: Yes

Question: And during that second that’s when you caused Mr. X to limp for the rest of his life.

Answer: Yes
KILLER CROSS TECHNIQUES (TRILOGY)
This is a technique which was explained very well by D & P. You take three facts and mix them with a theme and use it against he Defendant. For example:

They didn’t care that her drivers license didn’t match.

They didn’t care that the pictures didn’t match.

They didn’t care that the social security numbers didn’t match.

“They didn’t care” is the theme. The three facts are stated above.
KILLER CROSS TECHNIQUES (DON’T EVER GET ANGRY IN COURT)
D& P say that the person who loses his temper first in Court loses the case. Don’t lose yours. How do I improve in this area?
KILLER CROSS TECHNIQUES (MIRROR THE JURY ATTITUDES TOWARD THE WITNESS
D & P say that it is important to let your demeanor toward the witness mirror that of the jury. When you first stand to cross the witness you are full of adreneline and fired up. You are angry at the witness because you have lived the case. The jury can’t understand why you are angry because they aren’t angry yet. They don’t know the witness has lied. They can’t understand why you are angry. “LOW AND SLOW” should be your mantra.
KILLER CROSS TECHNIQUES (GO LOW AND GO SLOW and BRING HOME DOUGH)
Go low (low voice restrained demeanor) Go slow ( 1 fact per question build the chapters slowly 1 piece at a time) And bring Home the Dough
TELLING THE STORY (USING NARRATIVE AND STORYTELLING)
Put items from fiction book descriptions here
TECHNIQUES TO CONTROL ANGER
Go to internet. Gather materials on this.
GET STORIES OFF INERNET THAT PREACHERS USE
Go to internet. Gather materials on this
KILLER CROSS TECHNIQUES ( REVERSE THE WITNESS)
One of the techniques suggested by D &P is to reverse the question. For example:

QUESTION: You were the driver of the car.

ANSWER: Well yes and no blah, blah blah

QUESTION: So you weren’t the driver of the car.

ANSWER: Yes I was the driver.
KILLER CROSS TECHNIQUES ( TWENTY TECHNIQUES TO CONTROL THE RUNAWAY WITNESS)
Put 20 techniques here
KILLER CROSS TECHNIQUES (ASSESS HOW AGGRESSIVE YOU WANT TO BE WITH WITNESS)
Again you need to constantly assess how the jury views the witness. If the jury is likely to be sympathetic with witness (example child) you must be more restrained. If the jury knows this is a strong witness….(example defense expert) you can be more aggressive. You must always align yourself with the emotions of the jury and be no higher (no angrier than them). You can be lower but not angrier. Remember how Ed showed some anger but only after he was well into the cross of Johnson? Remember how he turned to the jury and argued directly to them on cross. An assessment of how aggressive you can be with the witness needs to be included in cross preparation.
30 B 6 WITNESSES
The rules allow you to compel a corporation or organization (government) to pick someone most knowledgable about a subject. This is useful to lock them into a story. George Kefalos suggests using 30b6 to get good stuff in depos and then reading depos. This has the advantage of being able to introduce testimony against them without the Defense being able to cross. Hyperlink is to 30 b5 and 30 b6 witnesses
BOOKENDING
This is a speaking technique where the speaker starts with a theme and then repeats or closes the theme at the end of the speech. Example in Weavers opening She says

Weaver starts theme ….

“You know the judge told you this was a case the estate of Ellen Ward
but its not really a case about the estate of Ellen Ward
its about Ellen.”

Weaver closes with….
“So you are here not about the estate of Ellen Ward you are here to meet her.”
NOTHING HAPPENS TO PEOPLE WHO DO NOTHING
“I WONDER HOW MANY YEARS I WAITED FOR MY FAIRY GODMOTHER BEFORE I FIGURED OUT THAT NOTHING HAPPENS TO PEOPLE WHO DO NOTHING.”
LOWER COURT BENCH WARRANTS
Remember that the jurisdiction of lower courts is limited and therefore strict procedures must be followed to get them served. These procedures are often not followed and can lead to areas where an alert lawyer can take advantage. Be sure to check Krystals case to see if procedures followed.
BOX TECHNIQUE OF CROSS
BOX TECHNIQUE OF CROSS
This was a technique I used with ______ Phillips on their witness. A sample is below. I have also seen this used by Andy Savage in Britt. CROSS OF CHIP LAVACHECK


Being a dispatcher is a challenging job isn’t it?
You have to be able to concentrate and deal with multiple crises correct?
You have to be able to deal with people who are frantic?
People who are upset and distraught.
WRITE YOURSELF A TELEGRAM
You should be able to summarize your case in a short 7-10 word telegram to yourself. If you can’t do this then you have not done enough work to understand the facts of your case.
BE ALERT FOR SERENDIPITY
An ATLA speaker described one of the purposes of discovery (Mcfadden). She described how she was handling a “little pregnancy case” and discovered that the company had treated all of its pregnant employees the same way. What started out as a small case had turned into a big case
COMPARATIVE NEGLIGENCE
Put good language here re comparative fault. Charge from Anderson book also maybe Nelson Concrete case
DON’T TALK ABOUT CASE TO MEDIA
Remember Krystal Herring case where she told you something which turned out not to be true. You then repeated her lie to newspaper. The lesson to be learned here is that you should never say anything to the media except “We will try this case in court and not in the newspapers.” You may then say something generic and uncontrovertable which you know is true. “My client spent 21 days in jail.”
YOU HAVE TO PUT IT ALL IN
Spence says that you must put it all in to a case. Put your guts into it or don’t go into it at all. You can’t win with just pretty oratory and great cross. Juries are smart. Juries know when you are not all in. If they think you are holding out on them they will hold out on you.” Remember the juror in the Cato case who said after the trial that I did not look like I believed my own case? Gert into it or don’t take it
CHECKLIST TO PREPARE MY EXPERT FOR DEPOSITION
Need to work here
USE VIVID EXAMPLES TO ILLUSTRATE LOSS
Spence gives the example of the wife who lost her husband. “our case of a widow whose husband had been ground up in the pulpwood machinery and splattered on the wall where he worked. ALL THAT WAS LEFT OF HIM WAS HIS PICTURE ON THE PIANO.” He was a good man, ann innocent man—never hurt a soul, a loyal employee who had worked his life away for the company but who was as important to them now as a worn-out part. WHEN HIS WIFE REACHED OVER IN HER SLEEP TO TOUCH HIM, WHAT SHE TOUCHED WAS COLD AND EMPTY, AND SHE WOKE UP AND CRIED OUT, BUT NO ONE HEARD HER, AND JUSTICE WOULD BE AS EMPTY AS HER BED IF WE COULDN’T BEAT THE COMPANY LAWYERS..”


He got angry right away; anybody would, I suppose, being treated like a thief when he knew he was in the right, when he knew it was I who was trying to steal justice. He fought back so hard he forgot how bad he hurt and he looked mean and I came off so reasonable, so just and right, that the jurors didn’t believe the old man…all they could remember was the mean part and his lawyer hadn’t shown the jury much.
WHAT ARE YOU DOING FOR THE NEXT 5 YEARS?
Before you take a case ask yourself what you are doing or plan to do for the next 5 years. Books to write accomplishments etc… You will invest that much time in a case by the time it winds its way through the appeals process.
USING EXHIBITS IN DEPOSITIONS
Get them to make a broad statement then go through specific examples where they contradict themselves. Example Spence TBF p.128 got witness to testify that entire Penthouse magazine was artful then went page by page and got witness to intial “artful” photographs
TACTIC: OPENING A SECOND FRONT
Sometimes it may be useful to try an attack in another area not so much to win in that area but to distract the opponent. Defense lawyers are particularly adept at this because they have the resources to fight on more than one front.
ALWAYS BE ON THE OFFENSIVE
A lawyer should always be on the offensive in every case. You should be forcing the opponent to respond to your moves not visa-versa. Also remember Eds comment about exposing yourself to motions from the other side. Spence TBF p.156. Remember that when attacked --counterattack
WHEN WINNING, DO NOTHING, SAY NOTHING
When in court and the judge is going to rule in your favor shut up. Say nothing do nothing
WATCH JURORS BODY LANGUAGE
Spence is constantly observing the jurors body language for clues about what they are thinking. “ They sat with their arms and legs crossed…they stared at me.”
SAMPLE OPENING BY SPENCE
See printed cards
HOW TO HANDLE OBJECTIONS FROM OPPOSING COUNSEL
“Penthouse is a corporation. It is entitled to have a representative here and it has Mr. Guccione. He is the gentleman sitting over thee in the brown velvet pants” (SPENCE WALKS TOWARD GUCCIONE. NOTICE HOW SPENCE SHIFTS THE SCENE TO KEEP JURY INTERESTED). “He is also founder, publisher and sole shareholder of Penthouse.” (SPENCE USES A DISRESPECFTUL TONE) Defense attorney objects again overruled. Spence turns and walks again toward jury speaking respectfully again. “Now the evidence is going to show you the kind of magazin this really is, and what kind of---“ (ANOTHER OBJECTION. DEFENSE LAWYER IS NOW ANGRY)

SPENCE NOW LOOKS AT COOPER and says very quietly “I would say, ladies and gentlemen of the jury, that the gentlemen for the defense will have the opportunity as soon as I sit down to answer me fully without me interrupting him because I don’t do that to attorneys.” (COOPER SITS DOWN. THIS IS THE WAY TO HANDLE OBJECTIONS)
DRAW THE OBJECTION
Why does Mr. Spence on behalf of his client believe this is an important case? Why does he contend that it is a case that may even have historical and—(AT THIS POINT THE DEFENSE LAWYER OBJECTS. SPENCE NOTES THAT THAT’S HOW HE WANTED THE JURY TO FIRST SEE THE DEFENSE LAWYER OBJECTING) This is an example of drawing the objection from the defense lawyer

The Judge sustains the objection but gives Spence a favorable ruling. Spence thanks the judge and continues….
HOW TO BUILD TRIAL DIRECTOR PRESENTATION FROM SCRATCH
Step #1 Decide what documents are the most important to your case.

Step #2 Scan in all documents. Note it is best to scan in .tif format so that you can use all of TD markup tools

Step #3 Scan directly to TD Document director or in a file where you can locate it so that documents can be easily retrieved.

Step #4 Move documents to case folder under Document director using Windows Explorer

Step #5 Decide on the proper order of the documents/photos

Step#6 Practice the presentation using the documents/photos in TD

Step #7 Decide if you want to markup any of the documents in your presentation. Practice the markups.
ASAP METHOD OF DELIVERING/WRITING SPEECHES
Step #1 What result do I
Intend to bring about by giving my talk?
Why am I giving this talk?
Who is my audience?
When will my talk be given?
Where on the program am I?
How long do I talk?

Step #2 What implausible prop should I use?
What are the pluses and minuses associated with my prop? (Ben Franklin map)
Add examples and explanations (Add to Ben Franklin map)

Step #3 What can I compare my prop with? (the subject for comparison is the intended result)

Step #4 Focus on one persuasion point at a time and with end result in mind—what pain will audience if they do not change the way I want? What pleasure will they gain if they do change?

Step#5 What are my strongest points?

Step #6 Place points in order strongest to weakest

Step # 7 Do any outline of prop points and persuasion points

Step #8 Write a bridge between prop points and persuasion points
This is always the same…What does ____ have to do with _______? What does this rubber ducky have to do with improving customer service?

STEP #9 Write the ASAP beginning
This afternoon I want to talk about this rubber ducky. In a moment I will show you what this Rubber ducky has to do with customer service. Right now I would like you to look at this ….
In a moment … I will show you

STEP # 10 What are the key words of the ASAP shell
Three pains preceded by refrain
Three rewards preceded by refrain
Call to action
Final link to prop


STEP #11 Polish final outline

STEP #12 Prepare for D-DAY

Number of rehearsals
Relaxation exercises
Focus on whom
What will I visualize?
How early will I arrive to stage the show?
CLOSING OF KEN SUGGS
I saw a the movie other night. It was a movie about the Vietnam War. It was not popular war but it was my war. And so I was interested in this movie. It was a movie starring Mel Gibson. It was a movie about Hal Moore who was the first general to lead trops in Vietnam. He took a group of men and trained them and flew them in to the northern highlands of Vietnam. And in the movie a battle ensued. And it was an amazing battle. Bullet are flying in on the men from everywhere. Mortars are coming in on the men from everywhere.They are completely surrounded by the Viewtnamese and they are outnumbered. And they are scared. It’s the first time they have been in combat even the officers. And most of them had never been in combat before
“ONE DEDICATED PERSON”
Never underestimate the power of one committed, dedicated person. Remember Martin Luther King. He lead a movement which changed the country and the world. His tools?! Speech and dedication. He was a leader who inspired people. He fought against all of the powers of the country and WON! If ONE person can do that…what can 50 dedicated people do? What can 100 dedicated people do? The answer is that dedicated people can do anything.
“BOX METHOD PLUS
Remember White vs. Cassidy cross method. Very effectively used. See below:
BOX of DEATH
Having the documents well organized and available makes cross much easier. Remember cross in
White vs. Cassidy!!!
REWARD THEM WHEN WE WIN
Remember to reward Rachel and Lisa when we win. Reinforce positive behavior
TAKE THE JUDGE’S LEAD
In Spence’s book Trial by Fire p. 202 Spence in his opening draws an objection by opposing counsel. The judge rules that Spence’s statement may go to the editiorial policy of the magazine and therefore is relevant. Spence quickly adapts saying “Yes, I should have used the words “editorial policy.” And Spence goes on ….

Whenever Spence gets in trouble he goes back to the safe words of the judge
READ A LITTLE TO EACH JUROR….
In Spence’s book he teels about how he read the article to the jury. He said that each page of the article was blown up 6 feet tall and he read the article “like a father reading to his children…slowly…” Trial by Fire p. 211
FIRST WITNESS
In Spence’s book Trial by Fire p. 208 he talks about selecting his first witness. He picked Bill Storms he wanted a “good first impressions, down home witness.” Spence intended this witness to make the jury identify with Kim Pring and her family.
NOTES FROM POZNER AND DODDS CROSS EXAMINATION COURSE (Some NOTECARDS also contain points from lecture)

TECHNIQUES FOR RUNAWAY WITNESS
Use low voice
Be calm

1. Repeat question
exact question repeated
2. Reverse the question
Oh no it was blue
3. Formal name
Mr. Ervin Blanks do you .....

4. Shorten the question

5. Hand goes up

6.finger

7. Head shake

9. Plant a flag–using chalkboard

10. Poster board

11. Court reporter

12. Unresponsive objection

13. Pretrial motion

14. Polite interruption

15. Exhaust the witness emotionally

16. If the truth is yes will you say yes.?

17. Elimination “I’m not sure I would call it a lie”

18. My question was ......”_________________”
That does not answer my question does it?
I’m not sure what the question was....

19. So your answer is yes....
LEARN FROM YOUR LOSES
John Edwards talks about how he learns from his losses. How he needs to know more. To understand more. How the lawyer needs to consider with more imagination how good people can view the world and life quite differently
COURAGE
I grew up knowing people like _____ and the strength of people like _____.. I grew up in their world. People who worked hard and when they took hits they rarely complained. In bad times they turned inward.
ABOUT JURIES
Jury trials are all about credibility—if a jury is to believe in your case—the jury must believe you. You must earn their trust and having earned it you must earn it again everyday.

Juries take in every movement, fact word hesitation and glance
SPEAK PLAINLY SPEAK THE TRUTH –THE WHOLE TRUTH
Juries do not want to be manipulated and deeply distruct anything that makes them feel bullied or hypnotized into a verdict. The best lawyers must be honest and plain in answering any doubts or confusions and you must know all the facts---all of them---otherwise the jury will lose faith in you.
“I DIDN’T KNOW ENOUGH TO BE COWED
Edwards talks about how he wasn’t experienced enough to be aware of all the dangers that could befall him. Edwards talks about how the judge told him that his settlement offer was ridiculous and that he would never get that much money.
VISIT YOUR CLIENT IN HIS HOME
Edwards talked about how, in his first malpractice case, that he would go visit his clients home. He says that this kept him focused on what the case was all about
EDWARDS OPENING
Edwards talks about his opening (p. 31) “ I feel like I have to tell you something before we begin: I’m nervous. I’m nervous because this is an important case. And most of all, I’m nervous because this is an important case. And most of all, I’m nervous because of EG Sawyer since the job I do for EG in this trial is going to count for his whole lifetime.” And I’m concerned because I’m not sure whether I’m up to the task. My jb is to speak for EG. I’m worried that somehow I’ll fail to make you understand first, what kind of person EG was, second what was done to him and finally what his life is like now. You see this is a story of a man whose life was destroyed by a hospital.”
OBJECTION!
The Defense lawyer was trying to rattle Edwards and was doing a good job. At a sidebar the judge told Edwards loud enough for the jury to hear “Whats the problem? Just get on with it.” The defense lawyer continued to object Edwards Responded beautifully HE POINTED TO THE DEFENSE TABLE “THEY ARE NOT GOING TO KEEP YOU FROM FINDING OUT THE TRUTH!!!”

Edwards was able to get out that a well-liked athletic salesman had fallen to drink entered St. Joseph’s and come out a permanently disabled soul ( Note how Edwards deals with problems in his case in the opening.”
CROSS EXAMINATION SHOULD BE TAILORED TO THE WITNESS
Edwards in his book ( p. 38 ) talks about the cross examination of a defendant doctor. He said the doctor projected an air of “patrician indifference” Edwards says that the worst thing you can do with such a witness is to attack him and get the jury to sympathize with him.

Edwards cross examines:

“ Would it be fair to say that you want the jury to believe that on September 9, 1978 when Mr. Sawyer entered the hospital, that he was suffering from acute and chronic alcoholism?”

YES

“But he walked into the hospital didn’t he?” Best you know? He was walking when he was there is that correct?’

YES

“And he could talk when he was there couldn’t he in September?”

Yes

“Could he walk when he left?” (NOT LEADING BUT ANSWER COMPELLED)

NO

“Could he talk?”

YES

“HE COULD?!”

“If he closed the trachea he could talk.”

“Very, very limited fashion though is that correct.”

“That would be correct”

“So something happened. Can’t we at least agree that something happened between September 9, 1978 and December 1, 1978 to Mr. Sawyer.”

“Yes”

You are certainly not asking this jury to believe that the man you saw here on Monday of this week is in the same condition he was on September 9, 1978?

“No”

PUROPOSE OF ABOVE WAS TO REFOCUS JURY ON THE TIME EDWARDS CLIENT WAS IN THE HOSPITAL
Next topic was Antabuse

Edwards asked Dr. TO READ ALOUD the maximum dosage for drug from Physicians Desk Reference Edwards then compared the maximum dosage with the administered dosage.

Edwards then turned to literature from the manufacturer which also showed max dose

“Dr. Could you point out for me all the written authority that would support a dosage of 1500”

HE could cite none

Edwards then crosses him on Dr. assertion that client’s drinking caused reaction.
Dr. acknowledged liver function tests had sgowed improved functioning which was inconsistent with continued drinking. Dr. also conceded “alcohol not detected” when blood alcohol test performed.
TRIALS ARE NOT WON BY THEATER BUT BY INTENSE PREPARATION
Edwards makes the point that trials are like basketball games they are won in practice not on the court
CROSS BASED ON ABSURDITY
Edwards p. 92 “Do you believe that during that one hour period you happened to listen to the heart rate everytime it went up and Doctor D happened to listen everytime it went down.
DRAFTING CLOSING ARGUMENTS
I don’t read from prepared text I organize a body of ideas then distill them down to a short series of points that are written out on a sheet of paper. This doesn’t lead to flowing rhetoric but allows the speaker to speak from the heart. Even though a speech written out verbatim would be better rhetorically it would not touch the jury. If the lawyer speaks directly and plainly he is able to convey what he truly believes.

A good closing argument should embody all of the trial’s most telling moments.
ALL THE FANCY TALK IN THE WORLD DOESN’T CHANGE WHAT THIE CASE IS ABOUT
This is a case about a couple from Winterville, SC and their 6 year old girl against the largest hospital in eastern North Carolina. That’s what it is.
ALIGN YOURSELF WITH THE JURY
We sighed along with you everytime the fetal monitor strips came out.
REMIND THEM OF THEIR RESPONSIBILITY
(TELL THEM THE CONSEQUENCES OF A DEFENSE VERDICT)
It is crass to assign a dollar figure to suffering. There is no higher calling than to sit on a case this important. You have a chance in this case to have such an important impact on the life of Jennifer Campbell. Even more important than that you have a chance to send a message that can’t fail to be understood.” “If you come back in this case with a defense verdict or a smaller verdict….the message you send will be clear and plain and that is: “Hospital we will not hold you responsible. We say to you you are a hotel. You have no responsibility other than that.” And you will put your stamp of approval not only on what happened but what will happen from this day forward.”
EDWARDS FELT OUTMATCHED IN LAW SCHOOL TOO
John Edwards states that his classmates were not mill kids they were the sons and daughters of urban professionals.They carried themselves with confidence, dressed well and spoke well without any bashfulness. “For the first time I felt out of place and wondered whether I was up to the task.
WHAT WORKED IN THE MILLS WILL WORK IN THE COURTROOMS AND IN THE SENATE
Edwards states that “what worked in the mills will work in the courtrooms and in the senate” “The right to dignity—at every level of society—is and must be one of the chief guarantees of a civilized society.”
FOCUS ON THE CASE BEFORE TRIAL
Edwards stated that a few weeks before a case came to trial he would spend 10-20 hours per day absorbing the depositions, poring over the medical charts and reference materials calling up other lawyers. You must cram yourself full of facts and theories. You must have a coherent theoiry of the case and a flexible outline for proving
HOW TO TALK TO A JURY ABOUT DAMAGES
“ I decided to list all the things that the son would miss” His father would not be there to teach him how to throw a curveball. Or how to drive a car. Or how to get over that first heartbreak. Or how to select a college. Or how to be a good husband. Or how to be a good father. But then I realized it was hopelessly inadequate. The real treasure in a father-son relationship was more than what you got it was what you shared. Soccer victories. Trips to anywhere—just going places together, the post office, the store for milk, whatever, wherever.
USE THEIR EXPERT TO BUTRESS YOUR EXPERT
CROSS OF OTHER SIDE”S EXPERT

Are you familiar with Dr. Lees (our expert) qualifications—the person you have been criticizing here today? Are you familiar with his qualifications?
YES
Are you aware that over the years he has consulted on almost a yearly basis with various agencies of the federal government? Did you know that?
NO
Are you aware that he’s consulted with I think 38 of the 50 state governments in the United States?
I WAS NOT
EXAMPLES OF REFRAIN
I WILL NEVER ACCEPT…..

I SOUGHT …… and I FOUND …..

ONE HUNDRED YEARS LATER…..

WE MUST….

NOW IS THE TIME…..

WE CAN NEVER BE SATISFIED (WITH OR SO LONG AS)……

WE HAVE FAITH…..

LET FREEDOM RING…..
CALL AND RESPONSE
I know you are asking today How long will it take? I come to say to you this afternoon that however difficult the moment however frustrating the hour it will not be long because truth pressed to the earth will rise again.

How long? Not long because no lie can live forever.
How long? Not long because you reap what you sow.
How long? Not long. Because the arc of the moral universe is long but it bends toward justice.

How long? Not long….
QUOTES TO REMEMBER
There is no greater power on earth than that of idea whose time has come. (Victor Hugo)
A man who is not willing to die for something is not worth anything (MLK)
The time for silence has ended (MLK)
Freedom is never given voluntarily by the oppressor. It must be demanded by the oppressed. MLK
“My feet is tired but my soul is rested. “(Sister Pollard)
Just open your mouth and let God speak (MLK)
There comes a time when silence is betrayal (MLK)

We are now faced with the fact that tomorrow is today. (MLK)
Truth crushed to the ground will rise again (William Cullen Bryant)
Because the arc of the moral universe is long but it bends toward justice (MLK)
DON’T LET THEM MESS WITH YOUR PEACE AND SERENITY
This is a lesson from the 12 steps program. Never let someone push your buttons…don’t let them disturb your peace.
CRAFTING AN OPENING STATEMENT
This card comes from the ATLA Stalwarts program. This presenter makes the argument that you MUST TELL A STORY IN THE OPENING. He says that we are used to arguing logically and that that is not how our juries think. We should tell stories because the storyteller will always beat the logician. He also argues that you must not try to argue in the opening. You should AVOID CONCLUSIONS and FOCUS ON GIVING A LIST OF FACTS THAT let the jury draw the conclusions for themselves. We should focus on how our client acted responsibly and the other party did not. We should focus on how our client followed the rules and the other party did not. We should focus on _____________________.
FIXING YOUR WEAKNESSES
Your weaknesses are
1) Lack of knowledge of the law
How can I fix it? Memorize elements
Read request to charge book
4) A tendency toward laziness
5) Failing to finish sentences
6) Poor storyteller
KAIZAN METHOD
Small steps lead to success. The author suggests that many times we are afraid to start a project
CASE DIAGRAM METHOD
This is a method of case prep suggested at ATLA. Good features is that it works well with Word Perfect so girls won’t be intimidated. Can you hyper link
PEOPLE RESPECT THOSE WHO HAVE THE COURAGE TO TRY
One lesson that I learned from the campaign is that people respect men who have the courage to try
ORGANIZATION HELPS REDUCE TIME SPENT IN “SEARCH MODE
Organization is not and end in itself. It is not an end result it is a process. Organization is intended to reduce time spent in search mode. The author suggests keeping a “master list”
USING THEIR EXPERT TO HELP YOU ESTABLISH CAUSATION
A good example that I heard was on cross of their expert
QUESTION: Dr. you have been pretty successful with X procedure before correct? In fact you have a record of 100% successful procedures correct?

ANSWER: YES
QUESTION: And if
TELL THE STORY IN THE OPENING BUT NOT TOO AGGRESSIVELY
In the Clayton case Ed opened by telling the positive about Janette. He told them enough about Janette to make them like her but not too much so that he was overselling the case. They were not ready to hear argument yet. When I heard the opening I was not overly impressed. It did not come across as slick. One of the keys to the case is that Ed followed up in Johnson’s cross by getting Johnson to admit many of the things Ed had just said in his opening. GET EXAMPLES HERE
DON”T BE AFRAID TO ADMIT WEAKNESS
Remember in Eds opening he said “I am a little nervous” but I will get over it. He also was not afraid to admit that Janette was not too sophisticated when it came to computers.
THE PROCESS OF LEARNING IS THE PROCESS OF PLAGARIZING
Do not be afraid to steal the ideas of others. Remember that Kennedy’s most famous phrase Ask not what your country can do for you; ask what you can do for your country. Was stolen from a speech given by Adolf Hitler (Koskoff p. 82
IF THE ONLY PROBLEMS YOU HAVE ARE MONEY PROBLEMS YOU DON’T HAVE ANY PROBLEMS
This is something that Jack Williams told me once when I was complaining about my problems. Your health is your ultimate asset and everything else is just secondary. Why aren’t you working out more
REPETITION IS THE MOTHER OF SKILL
Matt Morris used to say this and it holds true in everything. The more you do something the better you get.
WOULD YOU AGREE….
When crossing a witness try to say things positively rather than negatively. For example on cross:

Would you agree the bus is red? Is better than “isn’t it true the bus is red?”

Remember how Ed used this technique with some effectiveness in his cross of Johnston. (get cite here)
DO NOT GO INTO TOO MUCH FACTUAL DETAIL IN OPENING
You do not want to go into too much detail in the opening statement. You want to give them enough concrete facts to tell them why they should rule that way but not too much that you bore or overwhelm them
THERE WILL ALWAYS BE PEOPLE WHO SAY YOU CAN’T DO IT
Remember when Judge Jefferson laughed at our settlement offer? Remember the disdain of the prosecutor who said the Clayton case is worth nothing? There will always be people out there who don’t believe in the case. Ed Bell’s greatest gift is that he believes that he can get huge verdicts and so is not afraid to try cases.
DO A POST MORTEM OF HEARINGS
It would be useful to analyze hearing results in order to determine why I won or lost. I need to do a worksheet which I fill out after every hearing which can help me improve results. I can take items I learn and transfer to notecards for easy and frequent review.
WHAT TO DO WHEN YOU RECEIVE A MOTION FOR SUMMARY JUDGMENT
The basis for summary judgment is that there is no evidence in the record to support you claim. Consider taking depositions of Defense witnesses to get evidence in record to support finding. This is particularly important in federal court where the judges are much more likely to grant summary judgment.
CONSIDER MEDIATING DIFFICULT CASES
In cases that you could or probably will lose then you should consider mediation. A mediator can help you get more money from the insurance company. The mediator gives the insurance adjuster and defense lawyer some cover.
OLD SCHOOL
This is an example of a description that conjures up a frame. If you say someone is “old school” it means that they work hard, are diligent this is entirely a positive frame. We need to learn how to use this frame so that we can give concrete examples and then try to fit our case into their frame.
SINGLE INSTANCES OF PAIN
Give specific, concrete examples of pain and things they can’t do anymore.
Cusimano gives example of lady who he asked what can’t you do anymore?
“my three year old daughter used to laugh and run to me.”
“I couldn’t be the kind of wife that I used to be for 56 years”
We need to be sensative to the client
WHAT IS IT ABOUT OUR CASE THAT WOULD MAKE THE JURY ROOT FOR OUR CLIENT?
Your answer here
MOTHERS LOVE vs. FATHERS LOVE
Eric Fromm in the art of Loving says that there are two types of love: The love of a mother which is unconditional “You are the flesh of my flesh and the bone of my bone and I will love you no matter what…” A fathers love, on the other hand is conditional. “I will love you if yhou get good grades, get a good job etc.” Kushner says that people need to experience both kinds of love. Kushner says that God provides both kinds of love the harsh Old Testament love (father) and the Unconditional forgiveness New Testament (Mothers love). Kushner says people need to hear the same message from God that they do from their earthly parents
ALL PEOPLE NEED TO BELIEVE THAT THEY ARE GOOD
Kushner states that many times people come to church to reassure themselves that they are good. We give to charities to nourish our view of ourselves are caring generous people. This need to believe we are good people may be why we make excuses when we make mistakes. How do we explain our mistakes? We blame other people, we rationalize what we did, we make excuses. All of these are designed to reassure ourselves that we are good people.
THE STORY OF JACOB AS AN EXAMPLE OF A PERSON THAT GROWS
Kushner cites the story of Jacob from the Bible as an example of someone who grows. Initially Jacob was a trickster a person who made his way in the world based on guile and cunning. He lied to his dying father to steal his brothers (Esau) birthright.
WE OFTEN DISLIKE PEOPLE WHO REMIND US OF OUR OWN BAD QUALITIES
Kushner states that we often dislike people who remind us of our own bad qualities. For example in the Bible Jacob disliked Leah (his first wife) because he was tricked into marrying her. She reminds him of how he cheated others (his brother). Jung writes of “the shadow” the negative side of our personalities which we would like to pretend are not there. Jung states that the more we try to run from these qualities the more they follow us around like our shadows.
BAD HABITS
The Talmud says that first a bad habit enters our house as an invited guest. Then it becomes a member of the family and then it takes over the house.
WINNING WITH INTEGRITY
Kushner writes that too often we compromise our integrity to obtain some important goal. When we reach the prize we find that it was not worth obtaining or we wind up with neither the prize nor integrity.
SPIRITUAL STRENGTH TRAINING
Kushner writes that people cannot become complete without having to wrestle with their own demons. Like people who become stronger by “resistance training” we become stronger, more complete people. We strengthen our moral fiber by resisting temptation. “You must be tempted or you cannot be good.” Kushner also gives example of Martin Luther King who committed adultery. Kushner says that the lesson is not “if great people commit adultery it must be OK.” Instead the lesson is that great and good people can do bad things. It does not make them bad people it makes them human.
THE RING OF GYGES
In Plato’s Republic Socrates recounts the Myth of the Ring of Gyges. The Myth states that the ring is magic and has the power to make the bearer invisible. Socrates asks how an honest man would behave if he would wear the ring. Socrates says that the person would not take advantage of the ring because it would not be in his self interest. Nothing he could gain would be worth the loss of his integrity.
TWO DOGS LIVE INSIDE ME
A native American said that two dogs live inside him. One dog is mean. One dog is good. The good dog fights the mean dog all the time. Who wins? THE ONE I FEED THE MOST.
THE HARDEST CHOICES YOU WILL MAKE WILL BE BETWEEN GOOD AND GOOD
Kushner was told that the hardest choices he would make in his life were not been good and evil but between good and good. It becomes a matter of a time choice….you can either spend time with your family or serve on the school board. You do not have time to do both. We have a classic example of two values coming into conflict
INTEGRITY
Integrity means being whole, unbroken, undivided. It describes a person who is no longer at war with himself. The person who has integrity decides what is right and does it. Life is still hard but the person with integrity has all of his aspirations focused in one direction. Like the Karate expert who focuses all of his energy to break a board the person with integrity has all of his energy focused in one direction. One story that Kushner gives is about a man whose wife is pregnant. During the middle of the night she wakes craving a chocolate bar with almonds. Kushners friend got dressed got into the car and drove around looking for the Chocloate bar. He was not angry or resentful because he had integrated himself into the marriage to the point where he could banish any sense of resentment and feel only delight.
PACK RAT PSYCHOLOGY
I read an article in Discover magazine that talks about people who obsessively collect things. The article suggested that these people tend to be more intelligent than average, also more creative because they can always find a use for some item or imagine a use for the item. My mother is a combination of this psychosis with extreme codependence. She desperately needs to be needed. The article also said that there was a genetic link and that people with this disorder tended to have a relative of the first degree with the disorder. The article also said these people tended to be indecisive and have trouble focusing on one thing they always seem to have 12 things going at once. People with this disorder also tend to have trouble communicating they overwhelm their listen with every little bit of information. I should probably try to get a copy of this magazine
WHEN FACING A DILEMMA CHOOSE THE MORE MORALLY DEMANDING ALTERNATIVE
Kushner says that if words are difficult to say and hard for people to hear they are probanly Godss words. If they are easy to hear and easily excite the audience then they are your words. The point he makes is that Gods way is the most challenging way.
A SAINT VS. A GOOD PERSON
The difference between a saint and a good person is that a Saint never even considers going the wrong (immoral) thing. A Good person on other hand has to resist the temptation. A saint would never be tempted
FRIENDSHIP
Friendship has no biological purpose, no economic status, no evolutionary meaning. But a new friend can reintroduce a woman to herself, allowing her to look at herself with a new pair of eyes and a different midset…flaws can be recast as strengths self doubts lifted by acceptance. Friends are more likely than family to encourage change. Since friendships are voluntary it reassures us that people stay in the relationship because they genuinely like us not out of obligation. We need other people, we need to be needed by other people in order to be who we might be, who we yearn to be.
HOW TO LIVE A LIFE THAT MATTERS
Kushner suggests that the way to avoid feeling insignificant (without meaning) in the world is to reach out to people who need your help. Ann Landers suggests that the way to help teenagers with moodiness is to get them involved in helping others in the community. Let them feel important in someone else’s life. Remember what you always say: “Everyone needs to feel important, useful and appreciated.” The whole point of Kushner’s book seems to be summed up in the sentence that in order to live a life that matters…reach out to someone who needs your help. Kushner says that angels are people sent into our lives to nudge us into a direction we need to go. He says that rarely can we ALONE move mountains but by being good people we can as members of a community change the world.
HOW TO LIVE A LIFE THAT MATTERS
Kushner suggests that the way to avoid feeling insignificant (without meaning) in the world is to reach out to people who need your help. Ann Landers suggests that the way to help teenagers with moodiness is to get them involved in helping others in the community. Let them feel important in someone else’s life. Remember what you always say: “Everyone needs to feel important, useful and appreciated.” The whole point of Kushner’s book seems to be summed up in the sentence that in order to live a life that matters…reach out to someone who needs your help. Kushner says that angels are people sent into our lives to nudge us into a direction we need to go. He says that rarely can we ALONE move mountains but by being good people we can as members of a community change the world.

Example In the Bible there is a story about Jacob’s sons, Joseph. One day when they were out in the fields tending to the sheep Jacob sends Joseph to make sure the sheep are all right. Joseph cannot find them but he sees a man in the field and the man asks Joseph “What are you looking for?’ When Joseph tells him that he is looking for his brothers the man says “Oh yes I heard them say “Lets move on to Dothan” Joseph goes to Dothan and finds his brothers there and in a fit of jealous rage they sell him into slavery. Joseph was then sold to a caravan going to Egypt. He Pharaoh would have not had Joseph’s advice which made Egypt the only place in the Near East with abundant grain during the famine. Jacob’s family would never have migrated to Egypt. The Israelite people would never have been enslaved. There would have been no moses, no exodus, no 10 commandements. The entire history of the world would have chang
Kaizan Method
The Kaizan method is built on the idea of continuous improvement. The idea is that you improve a little each day and, over time, that leads to big improvement. Based on ideas of W. Edwards Deming who used these methods to improve American manufacturing during WWII. Deming’s ideas were transferred to the Japanese who implemented and improved them. These ideas were echoed by John Wooden who said “ When you improve a little each day eventually big things occur. When you improve conditioning a little each day eventually you have a big improvement in conditioning....Seek small improvements one day at a time. Thats the only way it happens..and when it happens it lasts.”
PSYCHOLOGICAL BASIS FOR KAIZAN
Kaizan technique is based on the idea that we subconsciously fear change. He idea is that people fear pain and will do anything to avoid it. People fear change because they feel threatened. Once they feel threatened the “flight or fight” mechanism takes over. There is a specific area of the brain the Amygdala which triggers the flight or flight. Example when a lion is charging it allows the brain to bypass the cortex (You don’t want to stand here thinking about it) Kaizan idea s to implement changes in VERY small steps and hereby avoiding triggering the flight or fight mechanism. You cannot create neural pathways without accessing the cortex. Bypassing the Amygdala allows you to access the cortex. Example one student was trying to start an exercise program so the instructor suggested that she start marching i front of the television for one minute each night. This allowed her brain to view this as nonthreatening and she was able to gradually increase her work and eventually implemented an exercise program.
OTHER REASONS PEOPLE FEAR CHANGE
People fear change because:

1. Activation of fight or flight mechanism;

2. We are afraid of things we cannot control. The more we care about something the more fear we feel. During rough patches we need to remind ourselves that fear is normal and a natural sign of ambition.
ASK YOURSELF QUESTIONS
One way to overcome this flight or flight is to ask yourself a very small question. Can you think of one small thing that would help us improve our process? “What shapes our lives are the questions we ask, refuse to ask or never think to ask” (Sam Keen) If you ask yourself the same question repeatedly our brain will have no choice but to answer the question. Your brain loves questions and his allows you to get past the Amygdala without triggering the response. If we ask small questions not big questions we keep he Cortex activated. The Cortex will respond with creativity and playfulness. When we ask big questions the Amygdala gets activated and shuts down the cortex wen we need it most. This is why people focus on mechanics of something small like where to place their hands o the ball rather than the big question of what happens if I make the shot? Is his what Klaus meant when he said that “sometimes our brains just work better than other times.” I think that I am particularly susceptible to fight or flight response. I should try the small question approach as well as focusing techniques to stay calm. This is why I was able to have so much success against Klaus after I beat him the first time. I was so “hyped” up in the games before I beat him the first time that I would choke. Remember when you were playing for SC Championship the first time against Hyder. Everyone (Doug) expected you to lose. You were very focused and aggressive. Remember game against Burnett–you choked...why? You put pressure on yourself. Thoughts like “I have to beat his guy...I should beat this guy...I am expected to beat this guy...people will think less of me if I don’t win.” All of these thoughts activate the fight or flight response.
IDEAS FOR WAYS TO STAY CALM
Listen to music
Ask yourself small questions
Focus on small aspects of the job (Ex. Basketball hand placement)
Practice relaxation techniques
Practice getting mad then relaxing (Ex workout then relax)
Take Yoga classes
Anticipate certain situations then your response to then (visualization)
DEPOSITION CAN BE USED FOR ANY PURPOSE
RULE 32 (a) (1)

Use of Deposition

Deposition can be used at
1) trial
2) hearing of a motion or
3) interrlocatory proceeding;

All or part of Depo can be used if:

1) Admissible under rules of evidence and;
2) Against a Party; and
3) Was present at depo or had notice of depo

Deposition can be used for any purpose

SCRCP Rule 32(a) (1)

Any deposition can be used by any party for purpose of contradicting or impeaching testimony of deponent as a witness or for any other purpose permitted by rules of evidence.
MARY CARTER AGREEMENTS
Mary Carter agreements are agreements where a party agrees to a limitation on damages against a party in return for his cooperation.
THE LONGER THE TRIAL THE WORSE FOR THE PLAINTIFF
In the bias seminar they make the point that the longer and more complicated the trial the worse for the Plaintiff. Two reasons: First you “water down” or dilute your evidence. You should be asking yourself “Do I really need to call that witness?” The more you put in evidence the less weight they will give your individual witnesses.
TRIALS ARE FOCUS GROUPS. FOCUS GROUPS ARE PRACTICE RUNS
“Experience is the name everyone everyone gives to their mistakes.” Focus groups give you experience. They are practice runs in which you make mistakes and correct them. Trials are focus groups: The only question is will they be your first or your last focus group?
Leaders
Look for nonverbal cues. They have an air of confidence about them. Look for it in their dress walk and manner of speech. Interaction with other members.
In voir dire ask whether any member has served as foreperson on a jury before.
Usually supervises other people
Fillers
Lack self esteem and are in professions that call for little or no intellectual ability. Often appear sleeping or disinterested in voir dire process. Professions that call for little or no intellectual ability
Followers (too busy)
Complains during voir dire that he is too busy and asks to be excusedIf selected role could depend on leadership qualities. It could be that the person really is very busy with professional activities and could become a leader if selected
Followers (not aggressive)
Walk and stance indicates lack of self esteem. Usually will not strike up conversations with other jurors. Usually follow orders from others.
Negotiator
Often possess high verbal skills. They will try to get others to talk about their feelings and thoughts on the jury.
Holdouts
Tough to tell. Look for someone with a rebellious nature. Look for unusual religion, occupation, or outside activities
CONSIDER USING SHADOW JURORS TO ANALYZE DURING TRIAL
One option is to hire “shadow jurors” to match the profile of the actual jury. These persons will listen to only the evidence that the real jury hears. At the end of each day the expert questions the shadow jury to determine whether strategy should be changed, evidence added or deleted.
AVOID THE HALO EFFECT
Jurors should not know who hired them to avoid the “halo effect” which would cause that individual to skew the results to be more favorable to the side that is paying them.
PERSONAL RESPONSIBILITY
The norm of personal responsibility states that the a person is “personally responsible” if he answers and accounts for his personal conduct. Plaintiffs must make every effort to show they are personally responsible in their family work and community. Plaintiff must show CONCRETE examples of how she has been personally responsible in the wake of incredible adversity. This allows us to reframe the juror perceptions and make the irresponsible defendants accountable for their actions. You should assume that the jury will apply a higher standard of personal responsibility to the Plaintiff than the Defendants.
PERSONAL RESPONSIBILITY
Don’t ignore personal responsibility. If you do it will come back to haunt you.
ITS NOT WHAT YOU THINK THAT’S IMPORTANT
Remember that its what the jury thinks that’s important not what you think. That is why focus groups are important because you need to know what their core beliefs are about your situation. Once you know what they think you can tailor your message to fit within their ideas.
USE THE PERCEPTUAL FILTER TO YOUR ADVANTAGE
People do not take in all the facts and then decide how they all fit together, instead people create their own trial story and then “adjust” the facts (ignore conflicting facts or misinterpret them) to fit their own version of the trial story. This is why when Cusimano gave them the killer fact on rebuttal that it did not matter because the jury had already made up their minds at that point. Jurors form their story and then “filter” all of the remaining evidence through that filter.
USE STORIES THAT MATCH PEOPLE’S EXPERIENCES
How do you match those experiences? What do you expect in ___________ situation?
If you know what their experiences have been you can construct your story in a way that they know.
INFORMATION (THINKING) SHORTCUTS
Jurors are overloaded with information during a jury trial. They use “shortcuts” to decide the case.
Example she was “turning, bluer, bluer and bluer” Focus groups focused on the fact that she was turning blue “Well of course she needed CPR because she was turning blue.” This can be the same as the Rules are a type of thinking shortcut.
THEME: THE NEED FOR PROTECTION
Mark Mandell argues that we should argue to the jury that our clients need protection from people like the Defendants. Mandell says that people have strong need to protect our loved ones and those close to us. We must stress that the Plaintiff wanted and needed and deserved protection by the defendant. Wasn’t protected and therefore was harmed. Mandell says that when jurors rule against our clients they are unconsciously trying to protect themselves. We must argue that the Plaintiff needs protection now because the defendants did not protect them before.

The need for protection provides a jury with a reason to identify with and help the Plaintiff. Jurors are unconsciuosly afraid what happened to the Plaintiff will happen to them. They need the protection the Plaintiff didn’t get.
WOULD YOU DO IT ALL OVER AGAIN?
Mark Mandell suggests that we should ask the Defendant whether they would do it all over again.

If no then the negative implications are obvious. If yes, then Mandell suggests the following argument:

He would do it all over again. He was in the wrong foot, and he knew it. He was doing experimental, untested surgery and he knew that. He misled Ka.thleen about what had happened, and he knew it. Kathleen was being followed by a private investigator—after she had trusted the Defendant for a second time—and he knew it. He dropped her as a patient, leaving her without a doctor, without a cure, without any real idea of what had happened to her, and he still did it. He went to her home for a Christmas party—she invited him into her home in an act of trust, and he was there only to spy on her, as if he had hired himself as a private eye—and he did this.

And he would do it all over again. What deep arrogance. His is an arrogance so widespread, so offensive, and so deep in him, it has numbed him to any sense of decency and responsibility. We cannot any longer be expected to trust him to know or to do what is right.

His arrogance will respond to only one thing—a strong message, strong enough to clearly tell that arrogance that it cannot, ever, ever, ever again do this to Kathleen or to anyone!

We need to let jurors know that we are turning it over them, for them to protect the Plaintiff, for them to protect the process and for them to be sure that this wrong never happens again.

WOW!
Personal responsibility
Plaintiffs must make every effort to show they are personally responsible in their family work and community. Plaintiff must show CONCRETE examples of how she has been personally responsible in the wake of incredible adversity
Trial story
Jurors construct a story to make sense of the evidence.
Jurors use their life experiences to fill in the details and understand the evidence.
Jurors will infer psychological states (i.e .,the Defendant was in a hurry)
Make it easier for the to construct a story by putting it in story order.
Try to bring out evidence which helps them construct stories favorable to you
Fundamental attribution error
The tendency to assume that if someone suffered an injury there is someone to blame. Defendants focus on situation rather than the Plaintiff. Information overload will make it more likely for the juror to make the fundamental attribution error. It is vital to make the Defendant decision maker more salient than a situation
Confirmation bias
Tendency of jurors to search for evidence that confirms their beliefs, to critically strutinize unconfirming evidence and to interpret ambiguous evidence in a way that is consistent with their beliefs.
Jurors expect people to act a certain way under certain circumstances and if the person fails to act that way jurors may feel the party has acted improperly.
Jurors focus on information that confirms their beliefs.
Jurors discount information that does not fit their beliefs.
Find out what schemas jurors will use to interpret the evidence. Once schemas are determined the lawyer can use them to tell the trial story
Anti-Plaintiff bias
Many people feel that people are too quick to sue rather than try to settle disputes. Some jurors are also inclined to blame the Plaintiff to avoid thinking they may suffer a similar fate. Especially when dealing with a severely injured Plaintiff they may feel anxious and blame the Plaintiff’s irresponsible behavior for the discomfort. Show that the Plaintiff behaved responsibly. Show that the Plaintiff is not the “type” of person who would sue
Empathy bias
Empathy motivates people to help those in need. Compassion is the key ingredient
Hindsight bias
Knowing the end of the story or outcome often persuades a juror that “of course the conduct would lead to injury”
Hindsight causes people to exaggerate what could have been anticipated in foresight.
People are usually unaware of the effect hindsight can have on their perception.
This bias can work against Plaintiffs and Defendants.
Norm bias
Causation is determined by jurors comparing what occurs to his or her own expectations of what normally occurs when injury is avoided.
The more easily the jurors can imagine the defendant acting differently the more likely they will find causation.
Belief perseverance bias
Tendency of jurors to, once a trial story is adopted, to cling to the story.
Early presented trial info has an undue effect on final judgment.
Even after trial story is discredited it still survives.
Present strong evidence early before trial story is adopted. Jurors will maintain this story even after vidence admitted which undermines or refutes the story.
Evidence that is contrary to the established story must be much more compelling.
Availability bias
The availability of information can influence perception. In the words of David Ball “A trial is about what it spends most of its time being about.” If the trial is focused on the defendant’s conduct jurors will focus on that conduct in deciding the case. If the trial focuses on the Plaintiff’s conduct the jury will focus on the Plaintiff as the cause of the accident. Focus on the Defendants conduct not the Plaintiffs or the situation
I LOVED YOUR CARDS YOU SHOWED US WHAT THE LAW WAS!”
Remember the lesson from the Nunnally jury trial. The juror complimented you after the trial on the jury instructions which you blew up and used. This was particularly effective because the judge charged on your charge. It was like the judge was rearguing the case for you. Nicely done Lindsay!
BE READY WITH VOIR DIRE TO HELP WITH GETTING A GOOD JURY
Remember the lesson from Nunnally where you got a good jury. Actually you deselected jurors who would be likely to be opposed to your client.
WE CAN ONLY PROCESS SO MUCH INFORMATION
Consider human thought and the limits of human ability. Humans use condensing tools “shortcuts” to filter relevant and irrelevant information out. Humans tend to think first and ask questions later. While all jurors are told to keep an open mind our perceptual apparatus and evolutionary wiring forces us to choose a beginning direction. It forces us to form an initial impression from even the smallest of data. The initial impression has a tendency to be retained, even in the face of significant contrary evidence, although it is not impossible to overcome. A Primary construction becomes increasingly entrenched as it is challenged as the holder is required to create or find more and more justifications for his or her position. The pre-decisional distortion (belief perseverence bias) is based on the order of evidence presented and how it is documented.
THE TRIAL STORY YOU CONSTRUCT SHJOULD INTERSECT WITH JUROR STORIE
Jurors use stories to make sense of what happened in the case. The points at which the trial story intersects with the juror stories. How do you identify the intersections? FOCUS GROUPS, VOIR DIRE
WHAT DO JURORS CONSIDER IN DECIDING WHO WAS RESPONSIBLE
1. The length of time available to act. (Plaintiff should make efforts to show that the length of time the Defendant had to respond was considerable. While the Plaintiff acts are required to be spur of the moment or instantaneous.

2. The actions rather than the inactions of the parties with the Defendants actions being the focus.

3. The normality or predictability of the actions: Did the events match the prewritten (expectations of the jury) Every time a person deviates from the expected script there is a point of blame. The script must be evaluated prior to trial and the Plaintiff’s deviations minimized and the Defendants deviations maximized.

4. Which party had the true knowledge or power to change events?

5. Events from the lives of jurors that are related to the case and the meaning that has been derived from these experiences as in the moral of the story or living lesson.

6. A number of damages related concepts such as who gets the money and what good the money will do as well as perceptual issues of how the jurors feel about the Plaintiff and
CHECKLIST FOR JURY TRIALS
(OVERCOMING JURY BIAS)
Go to jury instructions for elements and legal issues
What witnesses are available for each element/issue?
List facts necessary to win
a. Concentrate on defendant’s conduct
b. Bolster evidence of client’s responsible actions and emphasize defendant’s failure to act responsibly
List Exhibits and/or documents available to prove facts
Match facts and exhibits to witnesses topically especially:
a. The Defendant acted irresponsibly;
b. The Plaintiff acted responsibly
c. To remove juror suspicions
d. Develop availability evidence
Create charts matching facts we must prove and each exhibit necessary to prove the fact
Match fact with witness who will give most credible testimony
Determine what demonstrative aids to use with each witness
Follow same procedure for proof of damages
After preparing all potential direct witnesses select those who are indispensable
Avoid using witnesses who merely repeat testimony of another witness
Will this witness help on one element but cast doubt on another? If yes avoid the witness
Call witnesses by topics beginning and ending with emphasis on Defendant conduct
Do you have independent witnesses to verify the Plaintiffs claim for damages?

Friends and coworkers are best
Let friends moan and groan
Let friends talk about all the good Plaintiff does.
Have you asked the client about activities that show personal responsibility?
Volunteerism
Family
Children
Coaching
Shovel Walk for neighbor
Help with meals on whe
Will the jury like the Plaintiff?
Have you considered the various places to start the story?

Have you sequenced the opening to take advantage of favorable characteristics of the Plaintiff?
Is the Plaintiff personally responsible?
Establish job history
Family
Charity work
Coaching
No prior lawsuits
Have you performed a focus group to find out what the common experiences are with your situation?

Have you structured your story so that the Plaintiff is seen as performing as expected under the circumstances?
What are the strengths of the case?

What are the weaknesses of the case?
Have you considered the best order of witnesses to reinforce your version of the trial story?
Is your witness:
1) Truthful?
2) Openminded Does she concede when appropriate?
3) Fair—Does she appear fair?
Have you structured the direct so that the Plaintiff can stay on the stand as short a time as possible?
Have you drafted voir dire to establish that people should be held accountable if they break the rules (See notecard # ____)
Have you drafted jury charges and presented them to the jury first?
Have you visited the scene with the client?
Have you taken the client to the courthouse to rehearse?
Have you gone over logistics with the client?
Where to go?
Where to park?
When to be there?
Remind the witness to dress as if going to church
Has the client looked at video tape?
Have you anchored important issues in the case?
Have you thought about ways to get “big numbers” worked into the case?
Example Clayton business was worth 9.5 million dollars
Have you focused on the conduct of the Defendant not the Plaintiff?
Have you made a chart to contrast how the collision could have been avoided and the choices that the Defendant made.
Have you focused on the choices made by the Defendant?
Have you been through your direct examination with the expert witness?
Will the expert be perceived by the jury as an expert?

Is you expert:

1) Experienced?
2) Informed?
1) Well trained?
2) Smart?
3) Skilled?
4) Is the expert consistent with collegues?
Have you been through your direct examination with the witness?
Have you determined what the problems will be for your client?
Do you have a plan to innoculate against the problems?
Have you addressed in direct the questions the jurors will want answered?
What is your trial story?
Are the attitudes of jurors committed to helpful or harmful to your trial story?
Are you using powerful language?
Does the speech sound:
--hesitant
--uncertain
--overly emphatic
--apologetic
--subservient
Have you structured your opening with an emphasis on the conduct of the Defendant?
How to make Personal Responsiblity your issue
START IN VOIR DIRE

How many of you are required to prepare a sales plan or or a lesson plan?

How many of you are required to prepare paperwork for his or her job?

Who is held accountable on the job if he or she does not prepare or maintain
Appropriate records?

Do you feel the Plaintiff must accept personal responsibility for his or her choices?

Is the plaintiff accountable for his or her choices?

Who believes the defendant is accountable to follow the rules of the road or the his profession?

Who believes he or she is accountable if they break the rules?

Who would hold the Defendant accountable if they break the rules?

Who would hold the Defendant accountable if he or she ran a red light or made a left turn in front of the Plaintiff?

Who would hold the doctor accountable if he or she ran a medical red light?
PERSONAL RESPONSIBILITY ON DIRECT
Are you responsible for your conduct on the job?
Are you responsible for how you do your job?
Are you responsible for supervision?
Are you responsible to make sure the job is done right?

Are you responsible if your job is not done correctly?


Use examples that show responsibility:

Volunteerism
Family
Children
Coaching
Shovel Walk for neighbor
Help with meals on wheels

Try to get client to testify as short a time as possible
I relied on the Defendant to stop in time.
I relied on the Defendant to drive responsibly.
PERSONAL RESPONSIBILITY IN CLOSING
Emphasize the power of exercising responsibility
Tell jury you know have power of exercising responsibility by rendering a verdict
Then equate to Defendant
Examples:

The Defendant had the power to operate the car
The Defendant had the power to avoid a bad result
The Power to drive the vehicle responsibly rests with the Defendant

We all take responsibility in our jobs our lives and with our families.

Joe (The Plaintiff) has taken responsibility for himself
Joe accepts responsibility for his choices and judgment

CONTRAST the Plaintiff with the Defendant

The Plaintiff was responsible she went to the DX
She did what she was told to do


Rhetorical Question:

What responsibility will the Defendant take?
THINGS I CAN DO WHILE TAKING CARE OF BRYANT
1. Practice speaking technique
2. Review notecards
3. Watch ATLA tapes
4. Listen to ATLA tapes
5. Do notecards while sleeping
6. Fix notecard index
7. Work on case diagrams
SEQUENCING THE OPENING
1. Take the jury through choices made by the Defendant
2. Pose the Rhetorical question
3. Let the jurors conclude the Defendants conduct was wrong
4. Jurors need to understand the case in the context of the Defendants behavior
Example of sequencing:

Jason started drinking early that day. He arrived at the bar around noon. He has a beer. And then another. And then another and another and another. He tops that off with whiskey. Finally he has had enough. He staggers a little as he gets up from the bar. The bartender asks him “Are you all right” “Sure” he says. He gets in his car.He starts to get sleepy on the way home. On the way home he runs a traffic light killing the Plaintiff. Here the focus was on the Defendant’s conduct not the Plaintiff’s.

Another way to sequence so that it will have good effect is to start with traits that show client’s personal responsibility. An example is the opening by Diane Weaver. She talked about what a wonderful organized woman the Plaintiff was “She carried this little blue book—Ellie’s bible.” You build facts one on another and then the jury concludes before you even ask them the rhetorical question.
TRIGGER CARDS
When you are trying to implement a new habit. Put reminders around the house or office.
Example: Take your vitamins
HOW TO FIX COMMON SPEECH PROBLEMS
One way to get rid of “ums” and “uhs” and “okay” is to write the word on several small cards to be placed around the office. Draw a large “X” thru the word to remind you not to do it.
INNOCULATE AGAINST PROBLEMS
In order to maintain credibility with the jury you MUST bring out the problems yourself first before the opponent does. Remember Nunnally where you brought out the breathalizer reading and the accident. You did not wait for the officer to do it. Remember what Rachel said “you did not leave him anything to talk about.”
HORSE and RIDER
One of the key concepts in the emotional control seminar is the idea that we are controlled by two separate parts of the brain “the horse” which is the lymbic system and the “rider” which is the neo-cortex. The rider is the conscious center of the brain. It hears what you are thinking and can intellectually control your behavior. The horse is the not-conscious center of the brain where all of your habits are controlled. It controls your feelings and heavily influences your behavior.
The idea is that where you lose it your horse takes over
CONVICTION: “I see reality as it is
One conviction of people is that they believe they see people and events as they really are. Most people believe their own perceptions are free from distortion due to self interest, dogma or ideology. This is dangerous because people do believe they are biased but they believe that their biases help them see the TRUTH whereas other peoples biases prevent them from seeing the truth.
CONVICTION: Other fair minded people will see the world as I do.
A Corrallary to the above conviction is that when people have the same information theat I do ie, “the truth” they will reach the same conclusions that I have provided that they process the information in a fair objective way.
SUBLIMINAL PRIMING
This is the idea that you may influence decisions by deliberately activating the schemas of the decision makers.
EXPOSURE CREATES LIKING
Repeating a message increases the attractiveness of the message. However, TOO much repetition can elicit negative response.
PROCESS SUGGESTIONS
These suggestions are ambiguous leaving to the jury to fill in the details that fit his or her experience. “You can recall a time when you really understood the importance of rules.”
“You can recall when you realized for the first time that this particular doctor should have referred this patient to a specialist.”
INDIRECT SUGGESTION
You can encourage feelings of accomplishment and links decision with positive feeling. “You may be sitting in your favorite place doing this or that and you may notice a feeling of comfort and how good it is to just relax and you can look back on this trial and remember that special feeling about your service on this jury.”
COVERING ALL POSSIBILITIES AND PRESUPPOSITION
This technique diffuses resistence and encourages rapport. “You can recall when you realized that the defendant broke the rules of his profession. Perhaps it was early on, perhaps it was sometime in the middle or perhaps just recently when you had that certain feeling that an injustice had occurred.”
LINKED SUGGESTIONS
This technique links the first part of the suggestion to the next suggestion. “As you members of the jury, sit back and listen closely to the evidence you can begin to remember how many times this doctor really ignored the patient’s complaints.”
BRACKETING
This is an idea used in mediations. One party says to the other AI will come down to X if you will come up to Y@ For example I will come down to 100,000 if you will come up to 50,000. This allows the parties to hopefully meet in the middle. The other side with then come up with a Acounterbrack@ which starts the ball rolling.
Do you Really want to mediate?
Consider carefully whether you want to mediate your cases. If it is a case you want to settle for whatever reason (bad client, too expensive to try etc.) then you should probably mediate. In a case like Griffin it is probably not a good idea. All it does is help the defense bill time and help them get prepared better to tell them “We are not interested in mediation. If you want to make an offer go ahead otherwise I will see you in Court.” Also mediation wastes money which could be better spent on the case
EXHAUSTING THE WITNESS
One of the most important deposition techniques is to “exhaust” the witness’s knowledge on a particular topic. Examples:

Go at the witness from a number of different angles who, what, when, where. Also ask “is there anything else after every primary topic.

--Did anything else happen?
--Did he say anything else?
--Did you observe anything else?
--Have you told me everything you remember about the accident?
--Is there anything else you think I need to know?
--Is there anything else you know or remember that would be important to know if you were asking the questions?
--Is that everything?


Question: Give me all the reasons why you believe Dr. X adhered to the standard of care?

Answer: blah, blah, blah

Question: Have we now covered all the reasons why you believe Dr. X conformed to the standard of care?

Answer: For the most part yes.


Question: For the most part implies that there may have been some other reasons. Are here anymore reasons why you believe Dr. X conformed to the standard of care?

Answer: blah, blah, blah

Question: Have we now covered all the reasons why you believe Dr. X conformed to the standard of care?

Answer: yes

Question: Is there any other information you need to know before you can fully answer?

Answer: No

Question: Is there anything else you have asked for or need to see or review but haven’t been given?

Answer: No
SUMMARIZE AND RESTATE
This is another technique to be used in depositions. When good answers are buried in long answers:

Let me understand what you have told me…
What you are saying is …..
Let me make sure I get it…..
Are you saying that….

This prevents the witness from changing his testimony at trial.

Example:

Question: Let me see if I understand what you have said. You indicated that Dr. X conformed to the standard of care in several ways correct?

Answer: Yes

Question: The first way was in advising the patient of her alternatives correct?
Answer: Yes

Question: The second way was identifying the median nerve at the time of surgery right?

Answer: Yes

Question: The third way was in identifying the injury to the median nerve in the Post-op correct?

Answer: Yes

Question: Have we now covered all of the ways in which Dr. X conformed to the standard of care?

Answer: Yes

Question: Nothing else?

Answer: correct, nothing else.
BOXING TECHNIQUE
Establish the facts

Get an agreement on the facts by the witness