Trial

January 6, 2010

Choice of Words at Trial and Deposition

Once again, Winning Trial Advocacy Tips has an excellent article for those of us who try cases.

Here is an excerpt:

There’s something strange about how our brains work. For some reason, our brains don’t seem to comprehend the word “Don’t” very well. In fact, our brains have the power to completely ignore that single word while still hearing every other word in the statement. It happens on a subconscious level. When we hear the word “Don’t,” we ignore that word and follow the rest of the command. If you’ve ever coached sports, you probably noticed the difference between telling an athlete, “Don’t miss this shot” vs. “You’re going to make this shot.” When you tell players, “Don’t miss this shot,” they’re more likely to miss. For some reason, “Don’t” gets lost in the shuffle, leaving only the command: “MISS THIS SHOT!”

December 28, 2009

Social Networking and its Impact on Trials

by The Law Offices of John Day, P.C.

Philip Brown, author of MS Litigation Review and Commentary, has an interesting post on the impact of social networking on the work of trial lawyers.

An excerpt:

I have talked with lawyers who are worried about a juror going home and researching parties on social network sites. What if a juror does that and discovers that the juror has a mutual friend with the party or belongs to the same club or religious group? Could that impact the juror’s decision in the case?

December 22, 2009

Use of Notes At Trial

by The Law Offices of John Day, P.C.

Winning Trial Advocacy Tips continues to be a great source of information for those of us who try cases. This post, called "The Proper Use of Notes," does a fine job explaining how – and how not – to use notes at trial.

An excerpt:

When preparing the notes that you’ll bring to court, instead of writing out a word-for-word script, write down only what you need. Rather than full sentences, use brief phrases or single words. Besides, when you’re in the heat of trial, your eyes won’t easily focus on full sentences like “Mrs. Johnson, would you please tell us how you know the defendant?” All you’ll really need is a quick reminder, like “RELATIONSHIP?” or “KNOWS DEFENDANT?” to prompt the correct question.

December 17, 2009

Should You Call A Witness a Liar?

by The Law Offices of John Day, P.C.

Winning Trial Advocacy Tips has a great post on the subject of whether you should ever call a witness a liar.

An excerpt:

Because we’re lawyers, we don’t have any problems believing that someone will take the stand and lie to us. But jurors don’t think like that. Maybe they’re more optimistic than we are, or maybe they don’t get lied to as often as we do, but most jurors I’ve met prefer to think that any witness who takes the stand is going to be honest with them. (Yes, they even expect 10x convicted felons to tell the truth.) If you attack a witness’s testimony by calling him a liar, you’re going to need toprove that he lied. If you can’t prove that he lied, you face an uphill battle trying to get the jury to disbelieve his testimony.

December 15, 2009

Court Blocks Effort to Withdraw Fifth Amendment Assertion at Civil Trial

by The Law Offices of John Day, P.C.

Defendant asserted his Fifth Amendment privilege against self-incrimination throughout the discovery phase of a civil trial. During the fourth week of trial he attempted to waive the privilege and give substantive testimony.

The Wisconsin Court of Appeals upheld the decision of the trial judge to prohibit the the witness from withdrawing his assertion of the privilege. The Court explained as follows:

Invoking the privilege during discovery only to later withdraw the privilege may give the invoking party a decided advantage in that he or she can delay having to answer questions until after having had the opportunity to watch the adverse party’s case develop. It allows the invoking party to conceal information and then tailor the invoker’s own version of the events to meet the opposition’s theory of the case and the evidence garnered in support of it.

December 1, 2009

Free Software for Trial Lawyers

by The Law Offices of John Day, P.C.

The good folks at the Winning Trial Advocacy Tips blog have assembled some more great information of interest to trial lawyers. This post is titled "Free Software for Trial Lawyers‘ and features a dozen free or almost free programs of interest to lawyers who try personal injury and wrongful death cases.

An excerpt from the post:

IMAGE EDITING PROGRAMS

November 24, 2009

Sources for Closing Argument Stories

by The Law Offices of John Day, P.C.

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

Here is brief excerpt:

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

October 19, 2009

Organizing Evidence for the Jury

by The Law Offices of John Day, P.C.

Jim McElhaney is one of the best-known trial advocacy professors in the country and his "McElhaney on Litigation" columns in the ABA Journal are read by hundreds of thousands of lawyers each month.

"Give Chronology a Timeout" is in the October, 2009 edition of the ABA Journal and is a re-print from an article published seven years earlier. Those of you who attend AAJ seminars will find that it promotes what plaintiff’s lawyers call "storytelling."

October 16, 2009

More Tips From Paul Luvera

by The Law Offices of John Day, P.C.

Paul Luvera’s blog, Plaintiff Trial Lawyer Tips, includes a recent post from Paul titled "My General Views About Plaintiff Trial Work." I recommend the entire post to you, but here is a excerpt to wet your appetite for the rest:

Most important, our trials must be focused and limited to this approach. We should not just wing it and start talking because we all talk entirely too much and we are very boring people to jurors and judges. This requires discipline. It means we must abandon the idea that we are charming people the jurors and judges enjoy listening to, or that we need to demonstrate to the witness or the judge or our opponent how intelligent we are, or how well informed we are, or even that we are right. The truth is that it requires a lot of self control to try a big picture case because we don’t care what the witness or our opponent thinks of our intellectual ability, our knowledge of the subject matter, etc., etc. All we care about is the impression on the jury. It is the ability to stop making us the center of attention and instead make the jury the center of attention. In the end, it is our ego that drives us to intellectual battles that hurt our case.

October 14, 2009

Mistrial and Sanctions Affirmed When Lawyer Violates Order on Motion in Limine

by The Law Offices of John Day, P.C.

Unfortunately, I have been in a trial where opposing counsel repeatedly violated a Court’s order on a motion in limine. Therefore, I must admit I took some pleasure in reading this opinion where the Roman Catholic Diocese of Burlington, Vermont was sanctioned because its counsel violated such an order. The sanction? A mistrial and an award of $112,000 in sanctions.

This is how the Court summarized what occurred that gave rise to an award of sanctions:

Before the June trial, plaintiff filed a motion in limine to exclude any reference to a sexual relationship between Willis [a Roman Catholic priest] and plaintiff’s brother. The trial court granted this motion, stating that "[d]efense questions about this subject are barred as being irrelevant to the case before the court." During its cross-examination of plaintiff, defendant inquired into this relationship. The court sustained numerous objections from plaintiff during the cross-examination. During a break in the trial, the trial court entertained plaintiff’s motion for a mistrial and costs. At that time, defendant indicated that it wanted reconsideration of the pre-trial ruling prohibiting it from showing that plaintiff’s brother and Willis had a sexual relationship. The court orally granted plaintiff’s motion, followed by a written ruling when plaintiff moved for the imposition of costs. The court concluded that during the cross-examination, defendant’s attorney "repeatedly and deliberately violated the court’s pre-trial ruling by asking questions which were designed to tell the jury about this relationship." The court granted plaintiff’s motion for mistrial "because nothing short of a mistrial could have cured the prejudicial effects of defense counsel’s repeated violation of the trial court’s pre-trial ruling."