Friday, June 27, 2014

Qualify Your Expert Without Putting the Jury to Sleep.

What is the most boring portion of any trial? I’ll give a hint:

Imagine You are a Juror . . . 

A juror summons holds you prisoner for a civil trial. The witnesses have ranged from personable to downright boring. The plaintiff now calls a witness whose suit has a silk sheen showing it is more expensive than even the defense attorney's suit. His hair is immaculately styled. Unlike the other witnesses who were nervous when called, he exudes an air of confidence when he enters the courtroom. Unlike the other witnesses who seemed lost in the unfamiliar courtroom, he knows where to go to be sworn in, who to face, how to act.  He carries a box full of paper to the witness stand. You think, how long will it take to work through all that paper?

The plaintiff’s attorney first question to this witness seeks strange to you, "Please describe your educational background."  
The witness turns to the jury and smiles showing perfect teeth. He recites a list of prep schools, colleges and graduate schools. He talks about his degrees and expounds on his impeccable pedigree – none of which you have. This witness really enjoys telling you that he’s smart. 

The plaintiff’s attorney asks another question. "Have you published any books or papers?" Again the witness pivots to face you and smiles before beginning his answer. You pretty quickly understand, "This guy would never talk to me at a party." The longer he talks about himself, the more you dread having to listen to him. Forty-five minutes pass and finally the attorney asks, "Sir can you tell us how the accident happened?"

What is the Most Boring Part of Any Trial?

I pose my question again: What is the most boring portion of every trial? What is the phase of trial that most separates the jury from your case? During what part of trial does the jury least understand what the trial attorney is doing? It is the snore-fest called, "Qualifying an Expert."

I was subjected to this torture so many times that I adopted a different approach. I noticed jurors were just as bored as I was while my opponent qualified his expert. Unfortunately, I had already presented several expert witnesses during that trial and was oblivious to the effect it was having on the jury. I set about looking for a different way to present experts. Fortunately, television presented an answer. It wasn’t a method embedded in the plot, instead it was a marketing tool.

The Hook – How Television Keeps You From Touching That Dial

I noticed that at the end of a television program, the station did not play commercials. Instead, they played a short segment of the upcoming program that "hooked" the audience. The reason the programs are set up this way is to create interest so you remain with the program during the standard opening for the program, and the first round of commercials. A dead body, or a personal conflict, or a problem is thrown at you to get you thinking, "I need to know how she’s going to get out of this." It’s marketing. It works. If the hook is good enough, you will not change the channel even if it means missing your favorite program.

The regular presentation at trial does not use the hook. Instead of presenting something in which the jury may be interested at the beginning, the ordinary trial lawyer starts running the "credits" at the beginning of the show. Not a very deep hook. Do you think the jury would change the station if they could?

How Can We Use the Hook at Trial?

I developed a way of presenting experts that is loosely based on the "Hook." There may be a better way to do it, but this is what I am doing now.

I try to teach the jury as much as I can because most people have a natural curiosity and find learning interesting. When I first call an expert to the stand, I want to teach them what an expert is and why this witness is on the stand. I do this by asking:

"What is your occupation or vocation?"

"Can you describe what that is?"

Now comes the hook:

"Have I hired you to analyze aspects of this case and share opinions with the jury based on your expertise to assist the jury in ruling in this case?"

I’m introducing why the witness is at trial, and that the witness can actually help the jury with their task, thus creating a willingness to pay attention to someone who is there to make things easier for the jurors.
"Have you preformed your analysis?"

"Are you prepared to share your opinions with this jury?"
Here comes the critical component of my presentation: I want the jury to understand why I must walk the expert through their qualifications and the work performed to reach the conclusions. The jury, understanding this, knows it is important.
"Before I have you share your opinions with this jury, I need to walk you through what qualifies you to come into this trial to share your expertise with the jury. May I do that?"

After completing the discussion of the expert’s qualifications, I shift to the work to collect all the information and documents, and the steps taken to perform the analysis. It is only after I have done that, and the jury understands the work the expert performed, that I ask the opinions.

I feel the Hook method of presenting experts makes the use of experts more understandable to the jurors and helps them understand that the expert is there to make their task easier.

Check back each Friday for my posting of new installments of Young on Trial.

I have published two small books to help the ordinary person with employment issues. They are for sale at for only 99 cents each. One is called "You’re Fired!" and the other is called "I Quit My Job!" Please refer anyone who could benefit from direct answers to employees’ questions during difficult times.

Until next Friday, thank you for reading.

Friday, June 20, 2014

Three Comments About "Losing" a Trial

Announcing a change:
Please enjoy this post, then checkout my new location  Thank you, Steve

Today I lost at trial. While it bothers me, losing does not decimate me like it used to. I know I will win and that I will lose as long as I am trying cases; it is the way of the trial. There are several thoughts I have on winning and losing that are important to keep in mind if you are going to be a trial lawyer.

First: a trial is not a personal validation or invalidation of you as a person, or even you as an attorney. I feel that many attorneys don’t go to trial because they cannot bear the risk that a jury will find them "inadequate." There is an inherent fear that many attorneys have that prevents them from stepping into trial. This fear is a natural offshoot of the evolutionary selection that people go through to become attorneys.  To become an attorney you must live a life of exceeding others. You did not make college without excelling in high school. You did not make law school without excelling in college and on the LSAT. Many of your first year classmates found law school was not for them, and either flunked out or quit. You could not have graduated without excelling. You passed the bar. How many of your classmates did not? Throughout life people who become attorneys constantly heard how good they were, or received recognition for their abilities, or were validated for being "better." But at trial, at least half of the attorneys will learn that they are not good enough when the judge or jury rules in favor of their adversary. I believe many attorneys never go to trial because they cannot bear the prospect of being told, "You lost at trial. You are not good enough." A hint: IT’S NOT ABOUT YOU! If you spend your time worrying that the jury will rule against you, you will never try a case. Fear will grasp your heart and you will never enter the killing pit we call a courtroom. Set those feelings aside: you are good enough. Now get your butt into trial.

Second: the attorney does not make the facts. He or she was not there. Your client brought this steaming brown pile of facts to you and dropped it on your desk. No matter how you mold them and shape them and paint them in bright colors, the facts are the facts. Sometimes a client you represent is just wrong and will lose, no matter how good you are.

Third: your win/loss record is not a measure of whether you are a good trial attorney. Attorneys brag all the time that they have never lost a trial. Jacob Stein, the great Washington, D.C. trial lawyer said, "Show me a lawyer who has never lost a case and I will show you someone who either tried only one case, or is a liar." In truth, better lawyers’ clients lose trials to worse lawyers’ clients all the time (see Second point above). So how do we measure who wins and loses at trial? I contend my client can lose at trial (because of the facts) and I can be the winner at trial. If I try an unwinnable case (and I frequently have) and I get all of my evidence in, and my opponent cannot get all of his evidence in, if I make a better argument, etc., I win the trial, even though my client loses. My "win" in that case has several great benefits: I have had judges refer their friend’s cases to me after I lost in the judge’s department. Former jurors on a case I lost have come to me as clients. Opponents who prevailed against me have later come to me when their next case surfaced because they recognized who the better attorney was. Don’t think the loss is a loss. It is a learning experience and can produce great benefits, including future cash flow.

Announcing a change:
Please enjoy this post, then checkout my new location  Thank you, Steve

Friday, June 13, 2014

An Out-of-the-Box Approach to Controlling the Argumentative Witness

Imagine you are finally in trial after a hard-fought discovery and pretrial process. Your opponent has battled on every point, many times simply to oppose what you want. Your frustration grows as the court rules in your opponent’s favor on motions in limine (pretrial evidence exclusion motions) thus removing from your arsenal some of your best evidence. At each phase of the trial your opponent objects to everything. His strategy continues into your witness examination.

The judge says, "You may call your next witness."

You rise looking at the jury to gage their reaction and announce, "Plaintiff’s next witness is the Defendant, Josiah Wrongful."

Wrongful’s attorney rises, "Your honor we object to Plaintiff calling Mr. Wrongful in their case in chief."

The judge overrules the objection, "Counsel, Plaintiff can call and cross examine the Defendant during their case. Let’s get going."

It is now payback time for all the frustration you have felt throughout the case. You are prepared. Your deposition summaries are at hand and indexed. Each discovery response is marked and you have lodged the original request and response with the judge. Each exhibit you intend to use is arrayed, marked, and cross referenced to other relevant exhibits. You feel power and control racing through you veins as you rise to examine.

But the witness does not play straight. You ask limited questions, leading on cross. But the defendant does not answer either "yes" or "no." He pontificates. You try to cut him off before he can run away with another answer, but your opponent successfully urges the judge to allow the witness to answer the question. You start moving to strike the non-responsive portions of each answer, but watching the jury, you sense they do not understand why you are playing "attorney games" and trying to hide the truth from them.

You fall back to law school. You remember your professor taught, "Ask the judge to instruct the witness to answer the question." Unfortunately, the judge is not willing to do that and responds, "I think the answer is responsive."

What can you do? If the Defendant won’t answer your question straight, most of your prepared cross will not make sense, much less help you.


This suggestion is not for everyone, and definitely not for you if you are facing your first jury trial. It is something that I hit on one day when I was so in the moment at trial that it just came out and worked perfectly.

Assume the same scenario as I described above, but rather than struggling with the witness, simply recognize that the witness has a story he wants to tell and your questions are not going to get in the way, unless you use jiu jitsu and bring him under control.

I was in a trial, with a defendant on the stand, who wanted to argue every question with a narrative answer. I said, "Mr. Wrongful, there is obviously something you feel like I am not letting you say that you feel is important because you are not answering my questions. I am going to allow you to say whatever you feel you need to say to the jury. I am going to sit here, just let me know when you are finished so I can resume my examination."

I then sat down. Opposing counsel did not object, because I have just given the defendant free reign to speak. The judge perked up, looked over his reading glasses at the witness, not knowing what was going to happen, never having seen anything like this. A hush fell on the whole courtroom.

The defendant turned uncomfortably toward the jury and began to speak. You could hear a pin drop. Everyone wanted to hear how this would go. The Defendant spoke for a minute of two, said really nothing, and finally, almost apologetically said, "Mr. Young, please ask me your next question."

I wasn’t willing to let him off quite so easily yet. I asked, "Are you sure you don’t have anything else you need to say to the jury?" He assured me there was not.

I stood up and resumed my examination. If the witness wandered at all in his answer, I asked, "I’m feeling a little tension again between us, is there something else I need to let you tell the jury?"

Each time the Defendant responded, "No, no, ask me the question again." To which he provided a direct answer.


I was being fair to my opponent. The jury recognized that. When I stated what I believed the jurors were feeling, that the Defendant was being evasive and offered to allow him to talk directly to the jury without me asking questions, he turned to face a jury that was then really irritated with him. I watched the jurors’ faces. They were not friendly and open to the Defendant. Have you ever tried to talk to a group of people who feel hostile to you? That is what the Defendant was doing. The reason he didn’t speak very long is because the jury imposed their own control on him. He knew they did like that he was not playing by the rules. They did not like that he was not answering my questions.

The jury felt like he was wasting their time.

I have had people ask me, "Aren’t you worried about what the Defendant will say? Won’t the Defendant’s uncontrolled speech kill your case?"

My answer is "No." I don’t care what he says in that situation, because the jury is not going to listen to him anyway. Everything he will say, even if Defense counsel reads this at some later time and prepares a speech for their client, it won’t matter to me. The jury will not listen to the speech, and if it is a good speech, they will know the defense attorney prepared it, and really punish the Defendant. That’s because the Defendant is not following the rules, and all I have done is highlight that for the jury.

The proof of that is what happened each time the Defendant started to relapse, and I offered another "free go" at the jury, the witness said "No." That was because he did not want to face the punishing jury again. Once was enough, he did not want to go there a second time. Instead the response to my offer became, "No, just ask your question again.

I’ll answer it."

I don’t use this tactic often, maybe less than once every 10 trials. Opposing counsel who have heard of this tactic have tried to prepare their client with an organized speech. It hasn’t worked. That’s because it is not about the speech, it’s about how the jury reacts.


On occasions where I have used this tactic in trial, I don’t leave it at witness control. In closing argument, I always comment on what happened during that cross examination. It will sound something like, "Who is it that is unafraid of the truth in this case? The Defense insisted that every witness answer their questions with only a ‘yes’ or ‘no’. When I was examining, I gave everyone the chance to explain anything they wanted. I was not afraid of any answer because the truth makes you free. In fact, remember when I was cross examining the Defendant, and he wanted to give speeches rather than answer my questions? I didn’t fight him and insist, ‘just answer yes or no.’ Instead, I sat down and said, ‘tell the jury whatever you want.’ What does that tell you about truth in this case? I didn’t care what he said. All I cared about was you getting to see him and how he acted, even when he was given free reign to say whatever he wanted. That’s because we know that you know what the truth is and who is unafraid here."

When you feel comfortable in trial, try this sometime. It will take great courage, but that is what trial is about: doing the right thing, at the right time, for the right reason.

Check back each Friday for my posting of new installments of Young On Trial.

I have published two small books to help the ordinary person with employment issues. They are for sale at for only 99 cents each. One is called  “You’re Fired!and the other is called  “I Quit My Job!”  Please refer anyone who could benefit from direct answers to employees’ questions during difficult times.

Until next Friday, thank you for reading.

Friday, June 6, 2014

3 Problems with Opposing Medical Experts you can Solve with the AMA's Ethical Rules.

The Code of Medical Ethics of the American Medical Association presents fertile ground for counsel to cross examine opposing medical experts. In my experience, most doctors are unaware of these rules and in all cases violate the proscription against disclosing without permission, the plaintiff’s medical information derived from a medical / legal examination. 

Problem 1: The Physician Who Demands Payment to Testify.
Invariably when I serve a trial subpoena on a treating physician concerning a client, the doctor immediately demands that I pay an exorbitant fee and threatens to either ignore the subpoena if I don’t pay, or worse threatens to scuttle my case if the judge compels him to testify. Somehow doctors have elevated themselves to paid witnesses no matter their role at trial.

I respond, citing Rule 9.07 "Medical Testimony" of the AMA Ethics Rules, which provides:

"As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has a legal claim requests a physician's assistance, the physician should furnish medical evidence, with the patient's consent, in order to secure the patient's legal rights."

The ethical rules are silent as to any compensation to the doctor, and instead impose an affirmative duty on the doctor to appear and testify.

Problem 2: The Other Side’s Expert Hasn’t Treated a Patient in Years.
What do you do when you encounter the professional witness physician? You know the type; he does not treat patients but makes his living selling insurance medical examinations (IMEs) and delivering damning medical testimony. Rule 9.07 "Medical Testimony" addresses this and gives a rich source for cross examination.

"Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medical expertise."

A cross examination of a professional medical witness might sound like:

"Please tell the jury how long it has been since you treated a patient."

"Five years ago when you lasted treated a patient, what area of medicine was it in which you were treating that patient?"

"How long ago was it that you last practiced medicine in the area in which you are offering your opinion today?"

"Have you retired from the practice of medicine?"

"I mean, are you still using your medical school training and the experience you obtained caring for the sick and injured to generate income for yourself at the present time?"

"Is that income only from examinations related to court cases, like this one?"

"When you come to court to testify, you are paid as an expert witness , correct?"

"During the past five years, you sole source of income from your medical training has come from serving as a testifying expert for attorneys at trial, correct?"

"Are you a member of the AMA?"

"Please tell the jury what that is."

"Please look at Exhibit 47. For the record your honor, 47 is the American Medical Association’s Code of Ethics. Do you recognize that Doctor?"

"Tell the jury why you haven’t seen this in 30 years."

"Regardless of that, please look at Rule 9.07 "Medical Testimony" of the American Medical Association. It says, ‘Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medical expertise.’ Please tell the jury what ‘substantive experience’ means."

"Please tell the jury what ‘recent’ means in that rule."

"Please tell the jury why whether you have resigned your membership in the AMA."

"Did you resign your membership in the AMA because you did not want to be a member of an association that says that if you have not treated patients for five years that it is unethical for you to testify in that field?"

"No further questions."

Problem 3: The Opposing Medical Expert Assumes the Role of Advocate.
Who hasn’t confronted the physician at trial who assumes the role of advocate and argues not only the opponent’s case, but sets out to destroy your case, even if the testimony is not medically sound?

Rule 9.07 of the AMA Rules of Ethics tells doctors that they cannot be advocates:

"The medical witness must not become an advocate or a partisan in the legal proceeding. The medical witness should be adequately prepared and should testify honestly and truthfully. The attorney for the party who calls the physician as a witness should be informed of all favorable and unfavorable information developed by the physician's evaluation of the case."

"Doctor, are you here as an advocate for the defense?"

"What does it mean for a doctor to be an advocate in a case?"

"You know you cannot be an advocate, or else you violate the ethical rules of the AMA, correct?"

"You know that part of your obligation to remain neutral and not be an advocate requires you to tell my opponent not only the medical information favorable to his defense, but also the unfavorable information developed during your examination, correct?"

"Please list all the information unfavorable to the defense that you developed during your evaluation of the Plaintiff."

"Why didn’t you note that information?"

"Is safe to assume you did not share that with my opponent?"

"Is it also safe to assume that you did not intend to share that with the jury, unless perchance on cross examination, I asked you specifically about it?"

Note:  After getting the doctor to state for the jury that he is not an advocate, if the medical expert begins to slip back into the argumentative role, I bring them back by asking:  "Doctor, are you advocating again?"  When I do this, the doctor embarrassedly apologizes and affirms, "No, no please ask your question again, I try to answer it."

Check back each Friday for my posting of new installments of Young On Trial.

I have published two small books to help the ordinary person with employment issues. They are for sale at for only 99 cents each. One is called "You’re Fired! " and the other is called "I Quit!" Please refer anyone who could benefit from direct answers to employees’ questions during difficult times.  If you have any questions, you can email me, I'll answer.

Until next Friday, thank you for reading.