Winning Trial Advocacy Tips shares another great post – this one called "Sticking Thoughts in Your Jurors’ Brains."
An excerpt:
Repetition helps us remember, but it can also bore us to sleep. As the trial lawyer, your goal is repeat the information often enough that your jury remembers it, but without putting them to sleep. Here’s the good news: You can repeat repeat important information without boring your jurors, just so long as you follow a few simple guidelines.
Justice William C. Koch referenced an article by Joseph H. King, Jr. about per diem arguments in his concurring opinion in Elliott v. Cobb, W2009-00961-SC-S09-CV (Sept. 23, 2010). Elliott recognized that lawyers in medical malpractice cases tried in Tennessee have a right to argue the monetary value of the case but cannot argue the amount sued for in the ad damnum. Here is the majority opinion by Justice Sharon Lee. Justice Koch’s concurrence made it clear that the Court was not addressing the issue of the appropriateness of per diem arguments.
Professor King’s article is copywright protected so I cannot share it with you. You can order the entire article on Westlaw or through the University of Tennessee Law Review. The title of the article is "Counting Angels and Weighing Anchors: Per Diem Arguments For Noneconomic Personal Injury Tort Damages." It can be found at 71 Tenn. L. Rev. 1 (Fall 2003).
You can get a feel about the article from this language quoted from the article’s Conclusion: "More fundamentally, per diem anchoring exacerbates the ill-defined nature of damages for pain and suffering. In so doing, per diem anchoring undermines the central goals of tort law."
Winning Trial Advocacy Tips has an excellent post on how to improve the reading of depositions at trial.
An excerpt:
4. Tab the appropriate pages. Just like on the radio, you want to prevent the courtroom from filling with “dead air.” When your witness is flipping through pages of the transcript, trying to find what portion he’s supposed to read next, it breaks the flow of your presentation and gives the jurors’ minds an opportunity to wander away. Prevent “dead air” by tabbing the witness’s transcript, so he clearly understands which portion to flip to next. Combined with the highlighting, this little bit of extra effort will make it much easier for your witness to smoothly present the transcript.
Trial Lawyer Tips has this great post on the need to be aware of what is happening in the courtroom and changing your game plan as the need arises.
Tennessee has pattern jury instructions for civil and criminal cases, but our federal judicial circuit only has pattern instructions for criminal cases.
Here is a list of the federal circuits that have pattern jury instructions in civil and criminal cases, as well as a link to those instructions.
The Tennessee civil instructions are for sale for an outrageous price – $283. If you need to purchase them, go here. If you need financial assistance to buy this book (which is updated every year with the publication of a new book, not a pocket part that can be inserted into the back of the old one) learn more here.
I have said for years that it is essential that lawyers trying tort cases must visit the scene of the events to adequately prepare for trial. Now, Winning Trial Advocacy Tips has written a post called "Trial Lawyers at the Scene of the Crime" that does an excellent job of explaining why it is so important to do so.
Trial Fusion is a software program designed to make it easier to keep track of exhibits at trial and publish them to the jury. Read more about it here. A three-minute video explaining the program is here.
Plaintiff had the obligation to seek attorneys fees in a case by a date certain. Plaintiff”s counsel and defense counsel agreed on multiple occasions to extend the deadline so that they can negotiate the fee issue, but Plaintiff failed to file a written stipulation concerning the extension with the Court as required.
Negotiations break down. Plaintiff seeks fees. Defendant objects, admitting that they agreed to extensions of the deadline but fault the plaintiff for not filing a written stipulation. Trial court agrees and strikes the fee request.
The California Court of Appeals called "bullshit." "Admittedly, the law frowns on an attorney‟s neglect to comply with a clear rule. However, it positively glowers at another attorney‟s exploitation of such neglect as an excuse to break his word." Ron Burns Const. Co. v. Moore, (Cal. Ct. App. – May 11, 2010).
Elliott Wilcox shares another great post from his Winning Trial Advocacy Tips blog. I know I rant and rave about how wonderful this blog is and I fear I may be accused of a man-crush on Elliott, a gentleman I have never spoken with, much less met. But there is so much crap spread by those who think that they know something about trial preparation and trial advocacy that when someone actually shares something of value I feel compelled to applaud it – loud and often. Elliott gets it and, more importantly, he shares it.
The latest cheer goes out for a post titled "How to Detect Non-Answers During Cross-Examination." Here is an excerpt:
To become a quality cross-examiner, you must master the ability to critically listen to witness’s answers and identify the weaknesses, fallacies, and evasions in their responses.
Those of you over 30 will remember James Carville’s message to the Clinton campaign in 1992: "It’s about the economy, stupid."
Well, trying cases is about persuading jurors to your client’s point of view. Sure, you must prove-each-element-of-your-cause-of-action-by-a-preponderance-of-the-evidence, but you must do so in a way that keeps the jury engaged, that motivates them to act favorably to your client.
Maxwell Kennerly, one of my favorite bloggers, has written a great post on this subject. He explains that a trial lawyer must
Day on Torts