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.

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

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.