The Judge Taught me How to Tie an Expert's Hands

Yesterday, I finished a nine-week legal malpractice trial receiving an 8-figure verdict. The judge, before whom I tried the case taught me an important lesson concerning experts when the defense attorney sought to tie the hands of one of my experts.
Near the end of my case, I am arranging exhibits and demonstratives I intend to use with my valuation expert. He is the lynch pin of the damage verdict I obtained against an attorney who ruined a business that was the first to the American market with an organic tequila. My expert has prepared valuation figures for the business to establish the harms and losses the malpractice caused. My opponent is a wily old strategist who over almost 45 years has established not only a formidable reputation for winning impossible cases, but an almost perfect 155 and 3 trial record.
Defendant's Attack on My Expert
Before the court room attendant ushers the jury into the courtroom, my opponent rises and argues that my expert, who will deliver the big damage testimony for me, should not be allowed to testify because "There is no factual basis to support the opinion."
I respond, "Your honor, my opponent is mistaken. The expert has spoken with an officer of the company he has identified as a comparable business. He obtained the information confirming the assumptions he made and testified to during his deposition."
The attack on this most important witness begins when the defense attorney seeks to prevent his reference to the information from the company officer.
The judge asks, "On what basis do you think I should exclude the testimony of the expert?"

Defense counsel smiles and says, I took his deposition. He hadn’t talked to the officer when I took his deposition. At the conclusion of the deposition, I asked the wrap up question I ask at the end of every expert deposition to limit the expert to his opinions expressed during the deposition.
The Judge's Lesson
The judge leans back, smiles, and asks, "Can you please read me how you wrapped up the deposition, because I can’t rule in a vacuum."
With no small glee defense counsel picks up his highlighted transcript and reads,

"Question: In the conversation we have had today, we have covered all of your opinions that you presently intend to voice at trial, have we not?
Answer: Yes, as I said, other than maybe some rebuttal testimony to your expert if you have an expert.
Question: so if in fact, you have some new opinions with regards to either your original task in this case or in rebuttal, would you be sure and tell Mr. Young?
Answer: sure."

The Defense attorney smiles and adds, "You see, your honor, he is bound to his opinions."
The judge says, "Mr. Defense attorney, you are in the top 1 or 2 % of the attorneys who have ever tried a case in my department, but on this matter, you didn’t quite get there. You let the cat out of the bag as to a weakness the expert had and Mr. Young went out and propped up the testimony to make sure it’s admissible. Why you asked questions to tip Mr. Young off to a weakness is anyone’s guess, but you left the door open for him to do so. You see his expert has not formed a new opinion, he just got the information to make sure the opinion was admissible."
"But your honor, he can’t bring in that testimony."
"Oh I disagree Mr. Defense attorney. You haven’t tied anything down. You left the door wide open and Mr. Young has walked through the door. When I was trying cases and taking expert depositions, I would end with the following:

‘Mr. Witness, during this deposition, have you provided to me all of the opinions that you have formed and are prepared to deliver at trial?’ But then I went further. I asked, ‘If after this deposition, you perform any more calculations, and studies, or learn of any new facts or information from any source whatsoever concerning your opinion, or if the attorney employing you asks you to do any more work, will you inform your attorney so that she can tell me? We are going to adjourn this deposition now, but I am not terminating it. I will keep this deposition open so that if you do perform anymore calculations, or studies or learn of any new facts or information from any source, and you advise counsel, we can reconvene this deposition so that I can explore any new information, calculations, or opinions you may develop between now and the time you ascend the witness stand in trial.’"

My expert took the stand and delivered his testimony, including reference to the conversation with the company officer – and the judge was right to allow it.
Many times we ask overly broad "wrap up" questions thinking we have protected ourselves when in fact we have protected nothing. I will be using the judge’s tactic to make sure that experts I depose never get the wiggle room my expert got in this trial. And by the way, if feels great to tell you, my opponent's record is now 155 and 4!
Join Our Next Question/Answer Webinar - It's Free
Do you have questions about litigation, tactics, or trial? Join Steve Young on March 25, 2015 at 5:00 pm PDT for a question and answer session. Be sure to get on my email list to find out how to register for this FREE session.

Charity on the Subway - Who Blessed Who?

Several weeks ago, I rode the morning subway to Los Angeles to attend a deposition. An older man, bent over, lean, unbathed, walked through the subway car, hat in hand, begging. Everyone ignored him and turned from him. I tossed a handful of change into his hat.
He said, “God bless you.”
Without thinking, I said, “I hope he does.”
My stop came and I exited the subway. I did not know which direction to go to get to the proper exit. I was walking to the stairs and saw the man walking ahead of me. I asked him for directions.
He articulately described how I could get to where I was going, then he said, “But you got off one exit early — reboard the train and go to the next stop. It will be much easier.”
I said, “Thank you for blessing me.”
He smiled and said, “It’s not me who blesses. I just provide the opportunity for receiving a blessing."
Since that morning I have thought often about the lesson the man taught me. As I spend my overworked life concentrating on accumulating education, money, things, status, power, I miss the opportunities to add meaning to my life, not because I lack the desire, but because my focus confuses me as to what is really important.
No one paid attention to him. No one cared for him, and yet in a moment, he shared with me something truly important to me. I suspect that he would have given me directions regardless of whether I put money in his hat or not. The directions did not matter that much in the grand scheme of things, but imagine the personal loss I would have suffered had I not spoken with someone who everyone else ignored. He taught me that sometimes charity's greatest gift is to the giver, not the recipient. I had an experience with a truly noble spirit who many thought of as having little worth. I recognize him as having shared with me, the blessing of perspective.
How many opportunities do we miss to live because we are concentrating only on making a living. At the end of the day, it will be the experiences of meaning that have shaped us and made us what we will become that matter the most – it will be the blessings we receive for caring for others that will matter most to us, and those who fondly will remember us.

Would you have gone to jail for a client?

DO WHAT IS RIGHT, LET THE CONSEQUENCES FOLLOW

I believe we must do what is right, let the consequences follow. The challenge is that sometimes the consequences are negative. Twenty years ago I had an experience that had me saying, "I never felt more humiliated for doing the right thing." A friend of mine summarized it differently: "Young you big dog! You can't call yourself a trial lawyer until some asshole judge has put your butt in jail for contempt!"

I didn't know if my friend Rob Gill from Louisiana was trying to comfort me, teach me, or was lying to me. I had called to ask Rob, a criminal defense specialist I became friends with in 1996 when we both attended Gerry Spence's Trial Lawyer's College for advice on defending a contempt of court.

THE CHAMBERS CONFERENCE

The fat jowled judge with the ruddy imprint of alcoholism in his cheeks, made no secret of his disdain for my Palestinian client. My client was born in Columbia, spoke Spanish, and had never been to the Middle East, but that made no difference to the judge. He set out to scuttle the case, and drive the case to the result he wanted. I weathered every storm during the trial, and wondered what the judge had up his sleeve when he invited counsel into chambers. "Well how do you think the jury will rule?" Opposing counsel felt he would win. I disagreed, feeling my witnesses were convincing on the issue of interference with a commercial lease my client guaranteed. "Are you kidding?" the judge asked, "I didn't believe a damn thing those towel heads said."

I was aghast, but that didn't stop my mouth from running. "What did you call my clients? Are you kidding? I can't believe you said that."

The judge did not appreciate my outrage. "Don't tell me you are one of those bleeding-heart, let's all get along types."

"No, I'm one of those a judge shouldn't be a bigot types."

"Get out of my chambers," the judge said without disguising his resentment.

I happily left. I returned to the courtroom where my client was waiting for the verdict. "I think we're in trouble. Even if we win, the judge will scuttle us."

"Why do you think that?" my client asked.

"You won't believe what the judge just said."

"What?" my client asked. I recounted the chambers conversation to my client. He felt the same way I did.

THE VERDICT COMES IN

The next day the jury gave its verdict. The judge excused the jury and did something I'd never seen before nor since - he excused opposing counsel to sit in the hallway. When counsel left the courtroom, the judge said, "Mr. Young, the bailiff reports to me that you said things to your client about me yesterday that were very unflattering. I don't appreciate it and I am finding you in contempt."

"Well your honor, as long as we are sharing our feelings, I want you to know that last night I filed with the Supreme Court Chief Justice, a complaint about your racist comments yesterday." (Note: the judge had retired and was sitting by assignment from the Chief Justice.)

"Racist comments? What are you talking about?"

"Your comments yesterday in chambers when you referred to my client as a towel head."

"I never said that."

"You most certainly did and opposing counsel was there to hear it."

"Bailiff, get opposing counsel in here. I want to get to the bottom of this."

When my opponent had entered the court room, the judge said to me, "Okay Young, ask him."

I didn't think it was my place to do so, but never being to yield control if it's offered to me, I said, "Yesterday when we were in the judge's chambers, did the judge call my client a towel head?"

Counsel's eyes got big. I could tell he was weighing his options and how to escape unscathed. "No." A long pause followed. "That's not what he called him"

"There, see Young . . . "

"Just a minute your honor," I said. Then turning to counsel, "What did the judge call my client."

"Well I thought he was kidding."

I said, "There is no place in a courtroom for kidding about someone's race. Tell us what he said."

Then something happened I didn't expect, but it didn't surprise me. The judge leaned over the bench and said to the reporter, "Off the record." He then looked at me with a sneer and said, "Young, I order you to pay the clerk $1000 before you leave the courtroom."

"Your honor, I don't have my checkbook with me so I can't give the clerk a check. If I did have my checkbook with me I couldn’t give the clerk a check because I don't have $1000 in my checking account, and even if I did, I would go to jail before I paid the $1000."

The judge said, "Bailiff. Take him into custody. Mr. Young I hope I live long enough to testify at the state bar proceedings when you lose your license."

THE JUDGE THROWS ME IN JAIL

I was taken passed many of my friends, in handcuffs on the way to the basement holding cell. The deputies there took my shoelaces, my neck tie, my belt and everything in my pockets. They disassembled my wallet and inventoried it. The process took about an hour. I was then put in isolation because I was a civil prisoner and not a criminal prisoner.

I used my "free calls" and tried calling several friends including a court of appeal justice. None of them answered because it was the lunch hour on a Friday. I then called my office to talk to my partner. "Roland, I need you to file a writ of habeas corpus. I'm in jail and it's a wrong. Get me out." I was then taken to the cell, which had only solid walls and no bars or windows. I was in solitary and could not see or talk to anyone. Time passed very slowly. By my estimate, it was about 4:00 and the deputies were processing the criminal prisoners to return them to county jail for the weekend. I was worried that I would be forgotten, and would spend the night in my solitary cell, without light, for the whole weekend.

At about 4:30, a deputy came for me. "Your partner is at the clerk's office bailing you out. Let’s go through the inventory make sure you get everything back and we'll head to the courtroom." When I got to the courtroom, I was in for another surprise: The judge left early. The report I got was that he heard my partner was at the clerk's office and left because only he could order me released.

A friend of mine, a judge, came to the department, ordered me released and said he didn't care about the "release" rule. Here is where the saga began. I had to file post trial motions in the case. I didn't want the judge to hear them, so I filed a motion to disqualify the judge. A judge in another hears disqualification motions filed in our county. The Judge filed an opposition to that motion that stated, "I didn't call Mr. Young's client a 'towel head. I called him a camel jockey. I have a Lebanese nephew and we use that term to joke with him. I don't use it in a prejudice way. It’s for humor."

I GO TO THE COURT OF APPEAL

I filed my challenge to the contempt in the Court of Appeal and included the Judge's declaration as part of the record. When the oral argument in court of appeal, I stood to argue and began, "This appeal presents the issue of whether an attorney client conversation in a court, overheard by a bailiff, concerning a prejudiced remark by the judge can serve as a basis for a contempt."

The Chief Justice David Sills interrupted my argument. "Mr. Young. Do you think there grounds for the County to oppose your application here?"

I answered, "No your honor."

"Can we dispense with oral argument then?"

"I understand what you are saying your honor, and I would if I knew the other justices felt as you do about this matter."

His honor replied, "Oh you can assume we all feel the same."

"Your honor, I submit." It was my shortest argument ever in the Court of Appeal. Several weeks later, the opinion came out. It excoriated the judge for his comments and for the manner in which he conducted himself as it related to me and alleged contempt.

THE LESSON IN ALL THIS:

Opposing counsel did not have the courage to answer forthrightly about the judge’s misconduct. He owed it to the system and to my client to have been honest. As a result, I suffered, and the system suffered.

We must have courage to stand against things that are wrong, regardless of our concerns about personal inconvenience or detriment. I stood up to the judge. Opposing Counsel should have stood with me because the judge was just wrong.

A POST SCRIPT

There is a footnote to the story. After the contempt citation was entered against me, an organization concerned about discrimination approached me and asked what they could do about what had happened. I suggested that I could ghostwrite a letter to the Chief Justice of the Cal Supreme Court expressing the chagrin the organization felt that a judge would use such a reference during a case. I expressed in the letter how a court must be the one place of all places where any member of a minority or group could feel safe that fairness and justice would prevail. The president of the organization signed the letter and we sent it off. Several years later I learned that the letter that the  California Judicial Counsel was using the letter to train new judges in ethnic sensitivity in an effort to prevent a recurrence of what I experienced. I like to think my time in jail for contempt redounded to benefit of all when in court

Finding Imbedded Bias During Jury Selection

During jury selection, the trial attorney faces strangers who resent being asked personal questions without their permission. In this week's article, I discuss my teenage trip to East Berlin and what I learned there about finding the lurking roots of prejudice that can derail your case. You can read about it at YoungonTrials.com  http://wp.me/p4QXUK-4n

 

Dont' forget that October 25 I am presenting part two of the six-part webinar on jury selection I call, "Taking the Dire Out of Voir Dire." You can finding information and the sign up page at MasteringtheCourtroom.com

Thank you,

Steve

Do What is Right, Let the Consequences Follow
I believe we must do what is right, let the consequences follow. The challenge is that sometimes the consequences are negative. Twenty years ago I had an experience that had me saying, "I never felt more humiliated for doing the right thing." A friend of mine summarized it differently: "Young you big dog! You can't call yourself a trial lawyer until some asshole judge has put your butt in jail for contempt!"

I didn't know if my friend Rob Gill from Louisiana was trying to comfort me, teach me, or was lying to me. I had called to ask Rob, a criminal defense specialist I became friends with in 1996 when we both attended Gerry Spence's Trial Lawyer's College for advice on defending a contempt of court.

See the rest of the story at YoungonTrials.com


ANNOUNCEMENT:

On October 11, 2014, I will present the first session of my six-part webinar on jury selection that I call, "Taking the Dire out of Voir Dire." The sessions will cost $97 each, but if you are one of the first 25 to enroll for the first session, you will get first webinar for half price.

Go to MasteringtheCourtroom.com and sign up today.
Thank you,
Steve

Joan Rivers' Greatest Lesson to Us.

I inherited my love of comedy from my mother. She had two favorites: Phyllis Diller and Joan Rivers. My mother’s love for Joan Rivers spawned my love for her. Every Friday night my Tivo records the latest installment of Fashion Police, Joan Rivers’ last platform from which she launched her blue and irreverent assaults on celebrity foolishness.



While couched in terms of fashion and clothing, Joan’s sharp-tongued and absolutely fearless humor was more about people acting out in the public eye. She succeeded by saying what everyone else was thinking. She was at her best when she ventured (as she often did) into the blue, "I don't think I'm good in bed; my husband never said anything, but after we made love he'd take a piece of chalk and outline my body."

To read the rest of this post, go to  http://wp.me/p4QXUK-45

Stories: Campfires and Courtrooms

From man's earliest times, telling stories has been how we entertained each other late at night around the fire, communicated the joy of the hunt, and shared the pain of loss. As trial attorneys, we are the inheritors of the tradition of story.

You can read the rest of this post at:  wp.me/p4QXUK-1V

Don't forget to sign up for my jury selection webinar that I will present in September. Go to YoungonTrials.com

Steve

Robin Williams: In the Moment, In the Trial

Robin Williams was an important part of my law school experience. In 1978, I was a second year law student, supporting a wife and our eight-month-old son while attending school full time. My schedule was crowded. In the morning I went to classes. When classes were finished, I drove to a law office where I worked every day until 7:00 p.m. I’d return home, eat dinner with my wife and son, then go to the library to study until 11:00 p.m.
Tuesday nights were different. After Tuesday dinner I engaged in a luxury to preserve my sanity: I watched the insanity of Robin Williams on Mork and Mindy.

 
Robin Williams' "in the moment" approach to comedy and life teaches trial lawyers how to avoid being "the same." I relate the story of  how I delivered a opening statement sitting on the floor in front the jury box. You can read the rest of this post at http://wp.me/p4QXUK-2A

I've moved

I have opened a new blog site to better serve you. You can find it at: YoungonTrials.com

Please check there weekly for my latest posts on trials.

Please Nominate YoungonTrials for the ABA Journal’s Top 100 Legal Blog Awards

Each year the American Bar Association solicits nominations for its annual list of the 100 best legal blogs. The invitation says:

Use the form below to tell us about a blog – not your own – that you read regularly and think other lawyers should know about. If there is more than one blog you want to support, feel free to send us additional amici through the form. We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy – you have a 500-character limit.

I’m asking my readers and fans to nominate YoungonTrials for that honor. The ABA accepts submissions only until 5:00 p.m., September 8, 2014.

Hit any blue word in this post and it will take you to the ABA's nomination form. Thank you for taking the time to nominate YoungonTrials.blogspot.com.

Does Silence at Trial Scare You?

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

Imagine you are sitting at counsel table, facing your first venire panel. You are going to pick your first jury. The judge says, "Counsel you may inquire."

You collect your papers and notes. Your prepared questions are just out of reach so half standing you push your chair back and bend over to pick up the errant sheet. Now you stand erect, sliding your chair with the backs of your knees. You sweat inside your clothes and clear your throat as you walk to the podium near the jury. A pit forms in your stomach. The hair on your arms stands on end. You are in fight or flight mode.

 

You arrange your papers on the podium, then rearrange them. You look at the jury box. All the potential jurors are watching you. You clear your throat. "Ladies and Gentlemen." You are really nervous. You have researched this. Anyone who would listen has heard about your upcoming trial. Everyone gave you advice on how to "voir dire" the jury. How's this working for you now?

 

"In this case my client is a small business person. The Defendant is a competitor who . . ."

 

"Counsel, this is not opening statement," the judge interrupts.

 

"Sorry your honor." You pick up your list of questions. Again you clear your throat and begin, "Has anyone had an experience where someone did not play by the rules?" No one says anything. You look right, look left. Still no one responds. "Nobody. Okay. My next question is, ‘Do any of you have a professional license?’"

 

WHAT HAS JUST HAPPENED?

 

A jury selection is like a cocktail party. You are talking to people you don’t know. As attorneys, we expect to ask a series of questions of complete strangers, and because the judge has put them under oath, they should answer every question honestly and forthrightly. It isn’t going to happen.

 

The first problem with our attorney in the example is that he acted like an anxious teenage boy on a prom date. He wants to get right to the good stuff without investing any time in the lead up. The attorney did not give the jurors time to feel comfortable with him. The attorney certainly did not share anything of himself with the jurors. He feels like the jury is cold because his questions supposedly fell on deaf ears.

 

The question, "Has anyone experienced someone who did not play by the rules?" is a fabulous question for a case where someone has done something anti-competitive, or injured someone by negligence, or any number of cases. If the question is a good question, why didn’t the jurors respond?

 

A FEW SECONDS ISN’T ENOUGH TIME FOR JURORS TO RESPOND TO THOUGHT-PROVOKING QUESTIONS.

 

Jurors need time to ponder deep questions - and your questions should be deep questions so you must give them time with every question. A few seconds isn’t enough time for jurors to respond to thought-provoking questions. The deeper your question, the longer jurors will need to process it and respond.

 

If you ask a question that seeks only information, such as, "What do your adult children do for a living?" the jurors’ answers will come quick. We recall, process, and respond.

 

On the other if you ask deep questions that the jurors must ponder, you must give them time. For example, "Name three people who have had the greatest influence on you." Could you answer that question without taking time to ponder? Of course not. It takes time to think over your life, consider the turning points in your life, and analyze the reason for those turning points. Then you have to think back over all the important books you’ve read, and all your teachers and religious leaders, and finally get back to your parents. After that quick analysis, you have to process all your choices to whittle the list to only three. It is not a quick process.

 

Effective jury selection is a series of deep "processing" questions rather than informational questions. The power of the questions however is lost if you are impatient.

 

WHEN THE JURORS JUST STARE AT YOU – DOES THAT MEAN "NO?"

 

When you ask jurors thought-provoking questions, there may be a long silence. Don’t interpret the silence as a "No." Jurors really want to answer your question because we are honored by people who ask deep questions of us. Remember the cocktail party. "Fluff" questions rarely make an impression. You will be remembered after the party if you ask a deep question related to a tidbit shared by someone in your conversation. The same is true of jury selection.

 

GIVE YOUR JURORS TIME TO THINK ABOUT YOUR GREAT QUESTION(S).

 

Unfortunately, silence is an oppressive weight pressing down on us. Attorneys feel "the jurors must talk to me or I am a failure." When jurors greet our questions with silence, we feel the urge to quickly advance to another topic, hopefully one that will generate a better response. That’s probably what our young attorney felt. When he saw that the jurors weren’t responding (aloud) to his question, he jumped to his next topic. But if he’d simply given the juror more time to answer, he would have received a response, and would have been able to learn more about the jurors.

 

 Here is a process for posing deep questions.

1. Ask the question(and tell them how they should respond): "By show of hands, has anyone here ever had an experience where someone did not play by the rules?" 
2. Show them how to respond: While asking the question, raise your hand in the air. (Telling them how to respond and then showing them how to respond triggers mirror neurons in their brains making their brains feel they are raising their hands and answering the question.)
3. Pause. Don’t rush. Let your jurors process your great question. The longer it takes the better your question was.
4. Look at your jurors. While you’re pausing, scan the jurors. They will be encouraged to talk by this simple step. You will see someone who will want to talk. I can’t explain how, but you will know.
5. If no one raises a hand. Pick someone and ask, "Mrs. Jones, what was your experience with someone who did not play by the rules?" By asking her directly, you will get a great response. 
6. Ask the juror to tell of the experience. Mrs. Jones will have an answer because everyone has met people who did not play by the rules. Ask, "Tell me what happened." She will share. Allow her the time.
7. Follow up. After Mrs. Jones’ answer, you will be off and running. Ask other jurors about their experiences. "Anyone else? Mr. Gomez, what about you?" Then go deeper: "Why do you think rules matter?" "Is our society built on the idea that everyone breaks the rules?" etc.

THE FINAL LESSON IS EASY – GIVE THE JURORS TIME FOR YOU TO LISTEN TO THEM.

 

If the attorney asks a question, then moves on without asking the jurors to answer, he sends the message that what the jurors think and feel doesn’t matter. The jurors feel that the attorney has a check list of questions to get through and they are just there as his audience. We gain power with the jurors when they feel that we honor them as persons worthy of listening to and caring about.

 

JOIN MY JURY SELECTION WEBINAR SERIES

 

I am developing a webinar series on a unique method I have developed for conducting jury selection that facilitates the interchange between jurors. I intend to make this a 6-session webinar and go in depth on how to become powerful at voir dire.

Please send me an email at bestlawyer@aol.com

and I will add you to email list. Also, you can be invaluable in developing the program. Send me questions you have or experiences you’ve had picking juries. 

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

PERMISSION

WANT TO USE THIS POST IN YOUR NEWSLETTER, WEBSITE, OR BAR ASSOCIATION PUBLICATION?

You can, as long as you include the following blurb with it: "Steve Young publishes the YoungonTrials blog.  Sign up free reports and notices of new posts at YoungonTrials.com

Mandela's Lessons for Lawyers

July 18, we celebrated Nelson Mandela Day. In 1964, Mandela was one of eight leaders of the African National Congress convicted on four broad charges and sentenced to life in prison. He served 27 years before his release and later election as South Africa's president. Despite the court system's mistreatment of Mandela, he resolved to be positive. He challenged everyone to change things for the good. In honor of Nelson Mandela, here are some quotations from which lawyers can learn lessons about law and trials:

LEARN SOMETHING EVERY DAY
"Education is the most powerful weapon which you can use to change the world." – Nelson Mandela

Through education, we became lawyers. Many of us come from families that were financially challenged. Education was a stepping stone for us to enter a profession that gives us the potential not only to create great wealth, but more so a profession where one person can change the course of history.

My father, who was not an attorney, told me stories of his friend, Edgar Denny. Edgar was my scout master, and an attorney. He represented three former employees of US Steel. US Steel had fired the three shortly before they were to retire, and denied them their retirement benefits. When it was time for trial, US Steel flew a cadre of attorneys from the east coast "to teach that country boy a lesson." My father would pause in telling the story, because he could not say it without laughing, "Edgar not only kicked their asses all over the courtroom, he kicked their asses all the way to the airport." Education is the most powerful weapon we have to change the world, if only in the life of one person, our client.

DO YOU FEEL FEAR?
"The brave man is not he who does not feel afraid, but he who conquers that fear." – Nelson Mandela

Some allow fear to prevent them from stepping into what Gerry Spence calls "the killing pit." He told me once, "A court room is a fearful place. Nothing pleasant happens here. I have never heard a symphony in a courtroom. Children don’t play here. Flowers don’t grow here. Birds don’t sing. Butterflies never flitter in a courtroom, there are no windows, the sun does not shine. Only misery, pain, suffering, death, and anguish come here. Why do you think the judge wears black?"

But there is magic in fear. It is by fear that we know we care and are alive. If we did not care, there would be no hesitation – it would not matter to us. It is by loving our client, caring what happens to them, that we become alive.

Early in my career, fear crippled me -- because I allowed it. Now I use it to assure myself I am doing the right thing. I walk to it, wrap my arms around it, and acknowledge it. In doing so, I know, and you can too, that I care. That assurance can lift us to great things.

MAKE YOUR HEART AND YOUR HEAD PARTNERS
"A good head and a good heart are always a formidable combination." – Nelson Mandela

Being smart about what you do is as important as caring and embracing your fear. I call it "being in the moment." Anger leads to poor decisions. It happens frequently; I saw it again today. The court ruled in my favor on a law and motion matter. That presented a calendaring issue for the other side concerning trial. I offered two solutions. Opposing counsel was so angry about the ruling that her response was an attack on me. The judge, recognizing what was going on, said, "Fine. Motion granted. Counsel you don’t have to accept the accommodations Mr. Young offered you. Trial date to remain."

The attorney let emotion prevent her from making a decision the client needed. Her ego interfered with her client’s best interests. Let your heart give you passion, let your head be the governor to express the passion at the right time, and in the right manner.

LIVE BIGGER
"There is no passion to be found playing small — in settling for a life that is less than the one you are capable of living." – Nelson Mandela

"Imagine" is very powerful word when used to begin a story. When we use it with a jury they are transported into the tale of our client’s story. We can accomplish the same in our professional lives. We can "imagine" ourselves slaying dragons. When we see ourselves doing so, it becomes our reality.

Your dragon may be taking on an unbeatable opponent, handling the unwinable case, facing an angry judge, caring for the unlovable client. Aspire to be great. Aspire to live the life you are capable of living. You will be great if you resolve that nothing will stand in the way of your greatness coming through. Go to trial. Take a chance. Follow your dreams.


I'M CREATING A WEBINAR ON JURY SELECTION

I am developing a webinar series on a unique method I have developed for conducting jury selection. It facilitates conversation with jurors. I intend to make this a 6-session webinar and go in depth on how to become powerful at voir dire.

You can help me develop these programs and assure that I cover every important issue. Please send an email to Bestlawyer@aol.com with your questions about jury selection.

If you me to notify you when the webinars will go live, send me an email with your name and a request for notice.

Teachers and Losing. What All of Us Can Learn From Teachers.

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

Kim Davis, a middle school teacher in North Carolina, responded to my blog post entitled "Three Comments About ‘Losing’ a Trial." She entitled her response: Three Simple Truths about Lawyers and Teachers.

She had received her end of grade testing results for her students and felt "disappointed, thrilled, and sad." She felt the three points I made as an attorney dealing with losing, were instructional for teachers. She responded to my three "lawyer" points by applying them to the challenge of teaching.

1. It’s not about you. She draws the parallel that end of grade testing results are NOT a personal validation or invalidation of a teacher.

2. The Facts. Teachers cannot control the "facts" going on in students’ lives that interfere with the ability to learn, concentrate, or even attend class daily. She says, "They are just facts. No matter how much we love them, work with them, encourage them, the facts are… the facts. Teachers, you know what I mean."

3. Measuring your Wins and Losses. "One test, one day, does not measure whether I am an effective or ineffective teacher. Teachers cannot measure wins and losses by test scores exclusively. We have to measure wins in the lesson the kids won’t stop talking about, or the Socratic seminar that continues at the lunch table long after the teacher has left, or the note you receive, ‘you made me believe I could do math.’ The wins also come from parents who say incredibly kind words to us at unexpected times, or a student who you taught years ago, tells you how much he loved your class. Those are our wins."

Her email was much longer, but you get the idea. I want to share my response because I believe everyone needs to know what teachers know:

MY RESPONSE TO A GREAT TEACHER

Dear Kim,

Until recently, I taught a religion class every school day to 20 high school students. I have done so for three years (this time) and for a total of seven years. We met each school day at 6:30 a.m. I learned more about talking to juries from those students, than I ever learned from a law professor.

Teaching taught me:

1.  Yesterday's lesson (no matter how good) doesn't mean a thing when I stand up to teach today;

2. I don't know what I will say today that will be the most important thing in one of my student's lives - and if I learn sometime in the future, I probably won't remember saying it;

3. Sometimes showing up matters more than anything;

4. My best lessons have been when I threw out a tremendous lesson plan and taught what the students' questions led to; and

5. Loving and caring about the students trumps expertise and honoraria every time. Through it all parents' appreciation at the end of the school year doesn't matter nearly as much to me as a hug and a tear many years later with a student who tells me I changed their life.

I agree with you on another major point - "No child left behind" testing does not measure a teacher's ability, nor success in the classroom. I feel it is a tool invented to justify disassembling public education. There is no way a test can measure the impact of a teacher who loves and cares about their students, unless the measure is conducted on the students' success as people, 20 years after the class concludes.

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

I WANT TO HEAR FROM YOU.

Email me at Bestlawyer@aol.com. Let me know what "losing" means in your occupation and why it makes you better.

Jury Selection: Can You Be the Matador Facing the Charging Bull?

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

You Can’t Get Them Out of the Jury Box With Dynamite.

A potential juror is an animal of strange mien. Upon receiving a jury summons, they may have called friends asking, "How can I get out of jury service?" When they arrive on the fateful day and sit in the jury assembly room, they pray they are not called to the courtroom. When their name is read and they are sent to a courtroom, they calculate the odds of escaping the 12 seats in the box, because the last thing they want is to be put on a jury, until . . . they are put in the box. Then a strange phenomenon occurs. You as an attorney, facing these people who are so resistant to being on a jury, can’t get them out of the jury box with dynamite.


I have seen it over and over again. I finally figured that the reason someone who wanted more than anything to not get on the jury, is suddenly in love with the jury box. No one wants to be rejected. No one wants to hear, "You aren’t good enough for our jury." They rue the walk out of the jury box with all eyes in the courtroom focused on them as they pick up their book, their coat, their bag and are told to return to the assembly room – "We don’t want you on our jury,"

With this dynamic in mind, I had no idea what I was going to do during jury selection on a very big case. Both sides had exercised all their peremptory challenges (because there were horrible people for both sides in that venire panel). The clerk seated four additional prospective jurors. I felt I was in trouble when I arose to ask my questions and prospective juror number 11 crossed his arms and glared at me.

No One Will Admit, "I Am Prejudiced."

Most attorneys I have encountered do not know how to establish the foundation to dismiss a juror for cause. No one will admit, "I am prejudiced." A few will say, "I can’t be fair," but don’t stake your case on that happening.

I posed opening questions to Juror number 11. His answers scared the hell out of me. I had to stand there like the bull fighter who stares into the charging bull’s eyes no matter the fear in his heart. I had to absorb his abuse knowing I had no peremptory challenges left.

It’s not easy having your client attacked in front of the other jurors. It’s not easy remaining calm when you’re attacked. I worried, would this affect the other jurors? Were his answers ruining any chance at a fair trial?

My matador’s cape suddenly seemed very small as the beast charged my case.

I don’t know where it came from, but I responded with an observation, "Sir, you seem to me to be a person who is highly principled."

He acted like he did not know how to respond to this after his attacks. "Well, I yes I think I am."

"Your principles are very important to you aren't they?"

"Yes."

"Are you concerned that if you sit on this jury that you will be asked to set aside your principles by the attorneys or the judge or the law?"

"Now that you mention it, I guess that you’re right."

"And you don’t like that do you?"

'No."

"That really bothers you doesn’t it? Because your principles are really important to you aren’t they?"

"Yes they are."

"They are important to you because they make you who you are don’t they?"

"Yes they do."

"You wouldn’t give them up would you, not for anyone?"

"I hope I wouldn’t have to make that choice."

"No one should have to. Let me ask you this. What if during this trial someone tells you that you must do something that you think is contrary to your principles?"

"Like what?"

"What if the judge instructs you and the other jurors that if you find certain things, you have to give an award that is against what you think is right? That would be asking you to give up your principles wouldn’t it?"

"Yes, I guess."

"Would you do it?"

"Do what?"

"Give up your principles that you hold dear, would you give them up?"

"I don’t think I would like that."

"None of us would like that, but what I am asking is: would you set aside your principles to rule in this case?"

"I don’t think I would."

"Why not?"

"I think principles are what make us who we are. A man without principles is not much of a man in my view."

"Exactly. You have summarized what you feel in that one sentence haven’t you? If you relinquish your principles, you relinquish yourself."

"Yes that’s right."

"And that’s true whether it is me asking you to do it, or the defense attorney, right."

"That’s right."

"What if it’s the judge asking you to put your principles aside? What if he instructs you that are to do something and you don’t agree with it?"

"I wouldn’t do that."

"It doesn’t matter what it is he’s telling you, if you feel it’s against your principles, you’re not going to do it are you."

"No."

"What if the judge is instructing you on the law and you think the law is contrary to your principles. You wouldn’t follow the instruction would you?"

"No."

"Because you won’t do something that is against your principles, even if it’s the judge telling you to do it, right?"

"That’s right."

"Thank you for your honesty, sir. It takes a brave man to tell a judge that your principles are more important to you than what the judge might instruct you to do."

When time came to challenge the potential jurors for cause, I succeeded over my adversaries arguments to get the principled man excused because he told the judge that he would not follow the instructions if they conflicted with his principles. Less than this and the court will probably not strike for cause and you better have a peremptory in your bag.



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


Would You Please Help Me?

I am in the process of developing a free webinar series on a unique method I have developed for conducting jury selection. This method facilitates juror interaction and the development of relationships in the jury. I intend to make this a 6-session webinar and go in depth on how to become powerful at voir dire. You can help me develop these programs and assure that I cover every important issue. Please send an email to Bestlawyer@aol.com with your questions about jury selection. If you are interested in getting a notice when I'm ready to launch the webinars, send me an email with your name and request a notice.

What Keeps You Out of Trial?

"The decision to go to trial is the essential first step for anyone who wants to be a trial lawyer."

 My First Attempt at Trial.

It was 1983. I was sitting in court tightly clutching my file. My clients were two real estate agents sued by the purchaser of a home. The purchaser claimed the agents failed to disclose that water inundated the property. The opposing attorney had photos of mushrooms growing under a carpet that she hoped would prove water inundation.

I did not know opposing counsel. I knew she was a solo practitioner and I knew I was from a small firm -- for all the good that did me. I asked more experienced attorneys in the litigation department what to do at trial. The best advice I received was, "Make sure your shoes are shined." I did not know was that my opponent was facing her first trial, just as I was.

It was a small case. The whole file fit in a very thin redwell folder. My clients sat with me in court. My heart pounded in my chest as I waited for the master calendar judge to take the bench. I couldn't catch my breath as I waited.

The judge took the bench, called our case, and sent my opponent and me into the hall to discuss settlement. We ended up settling the case rather than going to trial. Many years later I talked about that "trial" with my now friend. By then she was a formidable trial attorney, who has now retired from trial and is a much in-demand mediator. Turns out she was just as afraid of that first trial as I was and she was just as ill-equipped to try the case as I was. We shared something else. Both of us decided, independently, that if we were going to be trial lawyers we couldn't let fear prevent us from going to trial.


My First Jury Trial.

The decision to go to trial is the essential first step for anyone who wants to be a trial lawyer. My first jury trial came when my love for my client and need for justice exceeded my fear for how I looked. Shirley was an undocumented Mexican house cleaner who was facing foreclosure of a mechanic’s lien for improvements made to her house by fraud. Before suing, the contractor removed the improvements. The foreclosing contractor  received payment in full from Southern California Edison, and was prosecuting the foreclosure to get the money for utility. I filed a cross complaint against both the contractor and So Cal Edison. When trial commenced, I succeeded in getting the foreclosure suit dismissed and moved into the plaintiff’s chair on my cross action. My client had only $15 in medical specials because she could not take time off work to go to the free clinic for more medicine. The jury awarded $450,000 against the cross defendants.


What Are the Steps to Becoming a Trial Lawyer?

I shared these two examples for four reasons: 

First, everyone is nervous and afraid of trial. If you’re not afraid in your first trial (in your first 20 trials) then you don’t care for your client and you have the wrong case. Fear tells you that you are alive. Fear tells you that you want to do well. Fear tells you that you care for your client and the result.

Embrace your fear. Walk toward it, wrap your arms around your fear. As soon as you embrace and acknowledge fear, it goes away. Fear is like a dark secret that cripples you. You are afraid someone will learn your secret. You hold it close and agonize over it -- until you make public the secret you fear to reveal. When your secret is known, it no longer has control over you.

Second, if you truly care for your client and his or her case, the jury will see that your client is worthy of their help, because you cannot hide how you feel from the jury. You don’t have to vouch for your client or their case, the jury will feel it as you present your case. In my foreclosure case our central damage component was emotional distress. I had no experts. No fancy psychologist was going to take the stand, no doctor was coming to testify. Shirley could not afford to visit a doctor much less employ one for trial at $5000 for a half day. All I had was were lay witnesses: three women Shirley cleaned house for, and Shirley's twelve-year-old son. I started plaintiff’s case with three rather toady women telling the jury about Shirley, and how honest she was, and how they had noticed her crying while she worked at their houses. One of the women was the wife of the litigation partner in my firm. She told her husband, "You will take this case. You will help Shirley." Of course he assigned the case to me as the junior attorney in the firm.

I put each of those women on to show the jury that Shirley was worthy. I ended the case with my last witness, Shirley’s twelve-year-old son, who was the greatest witness I have had in almost 200 trials. He wasn't articulate nor particularly intelligent, but he loved his mother and he took the stand in the innocence of youth to tell his story. He lived with his mother and two brothers in a small house in the barrio, but it was his family’s house.

I call him to the stand. I ask, "Are you afraid?"

He looks up at the judge then at the jury and says, "I’m really scared."

I ask, "Who lives in your house with you?"

He answers, "It’s only me, my mother and my two brothers."

"Tell us about your brothers." The defense objects at this point. The judge overrules the objection as bearing on the credibility of Shirley’s emotional distress at the threat to take her home and leave her homeless with three sons.

"There’s Juan who is ten, and Luis who’s six. Luis is special."

"What do you mean?"

"Luis is our baby and always will be. He has downs." At that, tears fill my eyes. The examination becomes emotionally difficult for me, because my mirror neurons kick in and are mirroring the jury’s response.

"Tell me about your mother before 1982."

"She was always happy and does everything for me and my brothers. She’s my mom."

"Did you notice a time when that changed?"

"Yes, but my mother never said anything."

"How did you know then?"

"Well, every night my mother came to our bedroom. All three of us boys slept in one room and mother slept in the other bedroom. She talks to us every night, then we’d have prayers. She tucked each one of us in, kissed us good night, then closed the door. Every night I heard her go into her room. Every night I heard her through the wall crying. Every night she cried."

"Did you know why she was crying?"

"Not until two weeks ago when you came to our house to meet me and my brothers. When you told me why you were there and what these people [he pointed at the defense table] were trying to do to my family I knew. She started crying at the time you said the suit started. She was crying for our family."

"No further questions of this witness your honor." The defense tries to cross examine my star witness. I figure the jury assessed $10,000 for each question they asked trying to discredit my 12-year-old superstar.

My point, don’t be afraid to be emotionally honest with the jury. If you are feeling something, let it show. You must learn to stand naked before the jury, hiding nothing and be absolutely honest with yourself and your jury.

Third, read the evidence code. It is very short. I am surprised by the number of attorneys I encounter who have never read the evidence code, much less the code of civil procedure. Those are the tools of our trade. You should resolve right now, even if you don’t have a trial on calendar, to read the evidence code, the rules of court, and the code of civil procedure. You will gain a lot of confidence by knowing you've done something your opponent has never considered.

Finally, recognize that it does not take that much to answer, "Ready." You need a witness list, an exhibit list, a short summary of the case for the judge to read during jury selection, jury instructions and a verdict form. Each of your exhibits needs to be marked. That’s it.


Answer "Ready," and Just Do It.
All you need to do to be a trial lawyer is decide to go to trial, then care for your clients and care for yourself. You will find doing so makes you invincible in trial. You will not win every case, but you will love fighting the fight for clients you love.

　

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 Amazon.com for only 99 cents each. One is called "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.

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 Amazon.com 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.

Three Comments About "Losing" a Trial

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

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.

 AN OUT-OF-THE-BOX APPROACH

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.


WHY DID THIS WORK?

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.


A FURTHER NOTE:

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 Amazon.com 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.

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 Amazon.com 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.