Tag Archives: McElhaney

Will You Give These Jurors What They Want?

jury1A couple of weeks ago, I sent fellow blogger and trial consultant Rich Matthews an email asking if he would comment on a post I was thinking about writing. It would be called “Avoid These Five Ways Of Alienating The Jury.” I was expecting him to provide a laundry list of “don’t dos” if you want to stay on a jury’s good side, such as wearing a bow tie,† showing up late, interrupting witnesses, etc.

Instead, Rich offered a much shorter list of ways–just two–to give the jury what they want and expect. On reflection, Rich’s list of “dos” made much more sense than my proposed list of “don’ts”. Here’s what Rich said:

“I think jurors want two and only two things from counsel, and get alienated easily when these are violated: help with understanding the material, and not wasting their time. That’s it. As obvious as that might sound, all courtroom lawyers should do a really honest reflection on their own trials and notice how many times they run afoul of either or both of these unconscious demands jurors have. That third witness you put on to say basically the same thing? Wasting jurors’ time, and they will resent you for it. That technical witness who was not understandable to them? Flunked both. A closing argument that didn’t explain [relevant rules, damages, verdict form, whatever] well enough? Didn’t help them with the material. I suggest that as counsel is planning the trial sequence, run everything through that filter; will it help jurors understand the material, and does it waste their time as THEY will judge it? Unless it’s ‘yes’ to the first AND ‘no’ to the second, leave it out. (Bonus hint: the first place to look is your witness list. Most of the time, lawyers would be better served to use fewer witnesses than they do. Wasting time in this manner just frustrates jurors if they don’t perceive each additional witness is adding new information or understanding.)”

Rich’s suggestion that what the jury wants most is help understanding the material echoes a point Professor McElhaney makes in the opening chapter of Litigation, entitled “The Guide.” He writes:

“You are the guide who knows the territory, the one who can be trusted to steer the jury straight throughout the entire trial.

Does it work? Imagine for a moment: Suddenly you find yourself in the middle of an unknown swamp. You don’t know where you are or how you got there. All you know is that somehow you  have to find your way out. You have no compass. There are no roads or trails, no signs or maps, no shadows or guiding stars. As you look around, you see two people, each saying there is only one way out. The problem is, each one is pointing in a different direction.

Which one do you follow–the one who has the suitcase with the collapsible legs, who wants to sell you one of the watches on his wrist; or the one who is pointing out landmarks and is helping you understand the terrain?” (Litigation (ABA 1995), at 4.)

Rich’s point about not offering duplicative testimony which the jurors judge as a waste of their time brings to mind this comment by another notable trial advocacy guru, Professor Thomas Mauet. In his Fundamentals of Trial Techniques, Professor Mauet points out that:

“Whom you call as witnesses to prove your case is frequently not an issue. You simply must call the witnesses you know of to establish a prima facie case, and there is no room for choices. Most of the time, however, you will have choices. . . In deciding to call certain available witnesses, remember the following considerations:

1.  Do not overprove your case. Many lawyers call far too many witnesses, thereby boring the jury or, even worse, creating the impression that the lawyer doesn’t have confidence in her own witnesses. In general, calling a primary witness and one or two corroboration witnesses on any key point is enough. It’s usually best to make your case in chief simple, fast, and then quit while ahead.” (Fundamentals of Trial Techniques (3rd Ed. 1992), at 388-89.)

I think Rich’s approach to giving the jurors what they want–rather than trying to walk on eggshells not to alienate them–is by far the better approach. Thanks, Rich!

†Truth be told, I have no problem with bow ties, and I expect most jurors don’t, either. A bad, porno movie mustache, on the other hand, will not be tolerated (except by jurors with their own bad, porno movie mustaches).


Some Ways To Take Down Your Opponent’s Expert

0412rodneytrial6Here are some ideas, courtesy of Professors McElhaney and Mauet, on effectively cross-examining your opponent’s expert witness at trial.

1. Make Him or Her Your Own Expert. Professor McElhaney suggests you look for places where your opponent’s expert agrees with your theories in the case. For example, if, in a personal injury case, both experts mostly agree on the severity of the damages and future treatment, but differ on causation, focus on where there is agreement. He says:

“Note that the defendant’s own doctor admits that the plaintiff will be subject to sudden seizures for the rest of his life; that this form of epilepsy can only be treated, not cured; and that the plaintiff’s condition can put him out of work as a machinist and means he can never drive again.

If you have a strong case on causation, you may decide it is better to make this witness your own on the issue of damages than to try to beat him down on the subject of cause.” (Litigation (ABA 1995) 165.)

2. Attack His or Her Qualifications. “No matter how well-qualified the witness,” McElhaney reminds us, “there is always a higher level he has not reached.” (Id.) Used subtly, this can also serve to bolster your expert’s credibility if he/she has better credentials.

3. Narrow His or Her Expertise. Professor Mauet  points out that, “[o]ften an expert will appear to be highly qualified, yet his actual expertise and experience are in areas different from those involved in the case. The cross-examination technique is to build up the witness’ real expertise, then show that this particular expertise is not directly applicable to the type of case on trial.” (Fundamentals of Trial Techniques (3rd Ed. 1992) at 266.)

4. Attack His or Her Facts. I see two possibilities here. One is if you can establish an opinion rests on a faulty or controversial factual premise, such as a date, measurement or time. The other, highlighted by McElhaney, capitalizes on the fact the expert did not do factual investigation himself, but is relying instead on the reports of others. He gives an example of an effective examination:

“Q. Doctor, can we agree that your opinion can be no better than the information on which it is based?

A. Well, yes, I guess so.

Q. If the information you have is not accurate, then the opinion would have to suffer too?

A. Of course.

Q. Which is why you would rather gather the information yourself than have to trust some source you have not worked with before?

A. Absolutely.

Q. But you were not given an opportunity to do that in this case?

A. Well, not exactly. No, I wasn’t.” (Litigation, 167.)

5. Vary The Hypothetical. McElhaney explains this approach as follows:

“You are permitted to change the facts around to see at which point they alter the expert’s opinion — depending on whether the question on direct examination originally was asked as a hypothetical.

You can insert facts you feel were left out on direct, or take out facts you feel should not have been included.” (Id.)

Let me go on record here that I view this as an advanced technique, and an opportunity to ruin an otherwise solid cross-examination. Ideally, you would have covered this ground with the witness in a pre-trial deposition, so you know what the answer should be and can hold the witness accountable if he/she strays. Otherwise, an experienced expert might hand you your head on a stick if you are not meticulously prepared.

6. Use The Expert To Bolster Your Own Credibility. Mauet suggest it can be “useful to cross-examine an expert to establish your own expertise in the subject. You can do this by defining technical terms or describing technical procedures and having the expert agree that you have defined or described them correctly. Use a treatise to obtain accurate definitions and descriptions. If this expert disagrees, you can impeach him with the treatises.” (Fundamentals, 267.)

7. Establish His or Her Compensation Bias. Mauet writes: “Inquire into professional fees charged and whether they have already been paid.” But he reminds us to “[k]eep in mind . . . that trials are a two-way street. Your opponent can do to you what you contemplate doing to him. Before pursuing this approach, make sure your own experts are less vulnerable than your opponent’s.” (Id., 266.)

8. Identify Additional Steps The Expert Did not Take. Mauet suggests we “[d]emonstrate that the witness did not do all the things a thorough, careful expert should have done. Demonstrate that a variety of tests could and should have been performed to arrive at a reliable opinion in this case.” (Id., 267-68.)

There. Now go get ’em.


What Your Presence Tells The Jury Before You Say A Word

pokliI’ve previously written about how young lawyers enjoy an undeserved reputation for honesty. It’s a gift. Don’t squander it.

Similarly, when jurors encounter a trial lawyer for the first time, the lawyer’s mere presence in the courtroom says many things before the lawyer opens her mouth. This observation comes from the trusted Professor McElhaney. In a chapter from Litigation (ABA 1995) entitled “The Most Important Witness,” he suggests that a trial lawyer’s presence in the courtroom implicitly says to the jury:

  • “I have studied the facts and understand what this dispute is all about. You can trust me to steer you straight.
  • I have carefully screened the witnesses. I will only call those who will tell you the truth.
  • I know the law that governs this case. Justice is on our side.
  • If I introduce evidence, it is because it is important.
  • If I leave something out, it is because it is not important.
  • And If I attack a witness, it is because he is not telling the truth.” (Id. at 9.)

Of course, just as with a young lawyer’s unearned reputation for honesty, each of the above assumptions can be quickly proven wrong. Witness choice is a perfect example. While you sometimes have no choice but to present a dodgy witness, this should not be undertaken lightly. As Professor McElhaney points out:

“[T]he very act of putting the witness on the stand implies that you are vouching for his credibility. . . . Whom do the jurors blame for a bad witness? Listen closely to the comments clerks and bailiffs hear every day. ‘I wonder where she got that guy?’ ‘Where did he dig him up?’ ‘Can’t he find someone better than that?'” (Id. at 11.)

Another opportunity to prove the jury wrong in their initial positive impression arises from how you organize your evidence presentation, including direct examination of your witnesses. How you conduct the examination, what you leave in and what you leave out can affirm or undermine the assumption that “If I introduce evidence, it is because it is important.” As McElhaney says it:

“A confused, rambling examination suggests a disorganized understanding of the facts. Not only does it fail to tell the story effectively, a poor direct examination is the living picture of a guide who cannot be trusted to lead a jury through the thicket of facts in the case.

Dwelling at length on small points is a little different. At first it suggests that the seemingly insignificant detail will become important later on.

Why? Just putting it in the case says it is worth the jury’s while.

So the first time the fact that took so long to explain turns out to be meaningless, the jury feels cheated. When it happens again, they wonder whether the lawyer is trying to kick sand in their faces or is just inept.” (Id.)

The jurors are your friends, your students and your wards. Don’t kick sand in their faces.


Should You Quiz Jurors Whether They Watch Law and Order?

polikujThe Wall Street Journal recently mentioned a UC Irvine doctoral student who “worries,” in a forthcoming academic paper, that realistic police procedural dramas (i.e., cop shows) significantly impact potential jurors.

Specifically, he’s “concerned the show’s influence may be leaving jurors with a distorted view of how investigations are conducted and the judicial system works. The world of Law & Order,† he says, is one in which prosecutors and police give off a soft glow of righteousness, while public defenders and defense lawyers toil under a harsh light.”

The WSJ quoted from a draft of the paper:

“The police and prosecutors in this view are portrayed as the “good guys” keeping the people safe from a dangerous world of criminals, and their tactics, regardless of how draconian and unconstitutional they may be, are necessary to get the job done effectively and expeditiously. On the other hand defense lawyers, the occasional by-the-book ADA, and even the Constitution are portrayed as impediments to justice. They obfuscate and distract from the correct outcome – a guilty verdict. The show suggests that if a suspect isn’t guilty, he or she isn’t brought to trial. The cops end up with the right person.”

This struck me as quite a mouthful, particularly when I read that the author “concedes that he doesn’t have empirical evidence to support his suspicion.” Aren’t academic papers supposed to rely on empirical evidence? (Unless they appear in the Journal of Speculative Philosophy?) I’m sure the paper, when it appears in an upcoming issue of the Law and Psychology Review (where it is indeed destined), will someday be cited as authority why medical malpractice plaintiffs should routinely challenge potential jurors who grew up watching Marcus Welby.

Snarky jokes aside, and recognizing that neither the doctoral student nor I are truly “experts” on this, I solicited input from jury consultant and Juryology blogger Rich Matthews. It turns out Rich had seen the paper and didn’t think too much of it, either. He described the author’s concern as both “much ado about nothing new” and the exact opposite of how it really works. He said, “It has always been the case that people have a psychological need to believe that police and prosecutors conduct their work competently and honestly. Thus TV didn’t create that mindset but rather plays to it in the form of police and law enforcement shows since the dawn of television.”

Makes sense. But even if the TV -show-shaping-our-views hypothesis is sketchy, that doesn’t mean it wouldn’t be useful to know what kind of TV prospective jurors watch or don’t watch. I’m not suggesting this always makes good voir dire, but, as Rich points out, jury experts are interested in “what pre-sets citizens have when they come into court, and how they play into one’s specific case.” If the TV shows we watch reflect our need to believe our “doctors are caring and unfailingly accurate,” couldn’t that indeed be useful in a malpractice or medical device case? If we watch a police procedural because we have a “need to believe” our police officers, would knowing your jurors are rabid Law & Order fans be interesting in a case where the outcome may hinge on an officer’s testimony and believability?

Or not. Feeling in my bones that cold dread of Kierkegaardian ambivalence, I consulted Professor McElhaney’s views on voir dire. In a chapter called “Picking a Jury” in his Trial Notebook (Third ed. 1994), he doesn’t address whether a prospective juror’s TV proclivities are necessarily useful, but he does reaffirm that, among the uses of voir dire, you want to “figure out whom you are talking to.” (Id. at p. 123.) After all, he says:

“You would never dream of giving a Law Day speech without knowing whether the audience was a political reform organization, a group of retired workers, or a class of high school students. One of the most important things you can do in jury selection is to study the jury. Find out what the jurors like and don’t like.” (Id.)

The upshot, I guess, is that, if you’re interested at all in what jurors watch, it’s not because you’re worried their views have been shaped by those shows, but because what they watch may reflect how deeply they hold certain beliefs in the first place. I continue to have my doubts.

†Brief aside: Wasn’t Law & Order just more classic back when there was just one show and Chris Noth and Paul Sorvino were in the cast?


What’s In Your Trial Notebook?

siss080024a14It’s probably my mind playing tricks on me, but I have a foggy memory, from younger days, of removing my belt and shoes in order to forge through the security screening apparatus and into the United States District Courthouse for the Central District of California, for the sole purpose of witnessing a senior lawyer from my law firm trying an insurance bad faith case against Mike Piuze, who was something of a legend around Southern California courts at that time.

Once I got past the screening and the nonsense and made my way up to the courtroom, I entered just as my colleague was finishing a cross-examination of one of Piuze’s witnesses. It wasn’t this examination that captivated me–I actually have no memory of it–but rather seeing Piuze sitting at counsel table, alone, with nothing in front or around him but a single yellow legal pad.

As I say, my memory might be fooling with me, but the picture I carried away from that visit to the courthouse was of Piuze in trial against some behemoth insurance company armed only with his brain, a notepad, and his ego.

Well, whether I’m accurate in my recollection about what Michael Piuze takes with him to trial, most of the rest of us mere mortals generally bring along something called a trial notebook. I know that I’ve assembled several over the years, many for senior partners and a few for myself. It seems everyone includes a little something different in their trial notebook. For this post, however, I thought I’d consult that sage don of all things trial-related, Professor James McElhaney.

Ironically enough, the first chapter of McElhaney’s Trial Notebook is devoted entirely to the topic of assembling and using a, well . . . trial notebook. Clearly addressing us at what he presumes to be the brisk and hazy dawn of our careers, McElhaney writes:

“There are many rewards to using the trial notebook system. First, and probably most important, is that it helps you find things during trial, from particular passages in a deposition to the right response to your opponent’s objections. . . . Second, if you are a junior in a firm, the trial notebook can help you in two ways: it can let a senior review your work in advance of trial, and it will impress your senior that you know what you are doing.
Third, if you prepare a good trial notebook, it is much easier for a colleague to take over if anything should keep you from trying the case.” (Id. at 4-5.)

Fair enough. But what should you include in your trial notebook? Here’s what McElhaney suggests:

1. A Table of Contents and Index.

2. Analysis of the Case. “Here is the place for all sorts of notes, whether formal or informal, that go to make up your battle plan–from ideas about preliminary motions and jury selection to thoughts about final argument and requests for instructions.” (Id. at 6.)

3. Analysis of the Opponent’s Case.

4. Proof Checklist for the Case.

5. Jury Selection. “What you do during voir dire is a subject all to itself. But whether you get to ask the veniremen questions or it is all done by the judge, you cannot tell the players without a scorecard. For this you need a chart, a group of squares assembled like a map of the way the panel of prospective jurors is arranged, in which to write their names and make some notes.” (Id. at 7.)

6. Opening Statement.

7. Stipulations and Pretrial Order.

8. Witnesses. This should not only include the witnesses’ names, addresses, multiple telephone numbers and an indication whether they have been subpoenaed, but also “a short paragraph (just one or two sentences) explaining why this witness is being called to testify: just what it is you expect to prove with this person.” (Id. at 9.)

9. Examination Outline(s) for Witnesses.

10. Proof Checklist for Witnesses.

11. Deposition Index.

12. Documents and Exhibits. Here, McElhaney envisions both a list of documents and the documents themselves. Unless your case concerns a fender-bender or a simple breach of contract or debt owed, chances are you will want to break down the witness examination outlines, deposition index(s) and document and exhibits into their own separate notebooks. Experiment until you find what works right for you. One thing I’ve found really useful, though, is to include a page for every important exhibit on which you anticipate your opponent will make evidentiary objections; here you write an argument or two, or case or code citations to answer each objection. Much easier than thinking on your feet, though you have to do that, too.

13. Evidence and Procedure Memoranda. (See the last sentence of the last paragraph–unlike McElhaney, I don’t give this its own place in the notebook, but try to tie the anticipated objections and responses to particular exhibits or even witnesses. Again, find what works for you.)

14. Final Argument.

15. Motions and Requests for Instructions.

Again, you will want to experiment with what kind of trial notebook fits your style. Big cases, tried by teams of big firm litigators, spawn multitudes of notebooks, each individually devoted to a particular motion, or witness. But even in these circumstances, I think it is helpful to have a single, core trial notebook–a space where you bring it all together, and develop (and modify) themes and strategies. If you don’t want to call it a trial notebook, call it a playbook. But, unless you’re Michael Piuze, you’ll probably do better at counsel table armed with something more than a legal pad.


Three Ways To Control An Evasive Witness On Cross-Examination

Least Weasel

Least Weasel

One of the biggest challenges of cross-examination can be maintaining control of an intentionally difficult or evasive witness. Professor McElhaney warns that, “once you lose control of a witness, it is hard to get it back.” (Litigation, at 124.)

What are we talking about? Let’s say you ask a witness something he doesn’t want to admit, such as a doctor who doesn’t want to admit he elected not to perform a useful diagnostic procedure (and he probably should have). So, instead of agreeing, “No, you’re right. I did not perform a spinal tap on the patient,” the witness launches into the following:

“I’m afraid you don’t understand the distinct risk involved in an invasive diagnostic procedure such as a lumbar puncture or spinal tap, as it is called. In addition to considerable expense and pain, there is a real possibility of permanent neurological injury.” (Id.)

Blah. Blah. Blah.

McElhaney offers these suggestions to deftly maintain control when you come up against a witness who evades, changes the subject or answers a different question.

Simply Re-Ask The Question Verbatim

This is especially powerful if the members of the jury have listened closely and it is a simple question, devoid of ambiguity. They, too, are thinking “Speaking zie English?” and losing respect for the witness minute-by-minute.

Re-Ask The Question In A Way That Demonstrates Your Witness Is Behaving Weasel-Like

Going back to the above example. If the original question, which drew the evasive response was: “Doctor, did do a spinal tap on the patient?” it can be effective, when re-asking the question, to phrase it as follows:

“Pardon me, Doctor, does that mean you didn’t do the spinal tap on Mr. Murphy?” (Id. at 125.)

This has the double benefit of establishing, not only that the doctor did not perform the test, but also that he was being evasive.

Tell The Witness You’re Re-Asking The Question

This is perhaps best used when the witness has twice tried to evade the question or answer a different one. On the third try, it should go something like this:

“Doctor, we’re talking now about what testing you performed on your patient, Mr. Murphy. I’ll ask you again, you didn’t perform a spinal tap on Mr. Murphy, did you?”

The good professor also suggests (1) you keep your questions on the short side, since longer questions, with more qualifiers, create more opportunities to subtly disagree or qualify an answer; and (2) try to adhere to the rule against asking open-ended questions, since you’re opening the door and basically asking the witness to assume control and talk about whatever he wants. (Id. at 126.)


One Way To Object Without Garnering Juror Resentment

yhuOne of our most important jobs during trial is to object, when necessary, to prevent the improper admission of evidence. But doing this job, even properly, is not without its risks. Chief among these is the risk of alienating jurors or garnering resentment because it is obvious–assuming the objection is sustained–that you have succeeded in hiding some quantum of information from the jury. After all, they’ll wonder, if your client’s case is so obviously a winner–as you said in your opening statement–why this need to hide facts from us?

As always, the wise Professor McElhaney has something to offer on this topic. In his Trial Notebook (3rd. Ed.), he suggests we learn and practice how to make objections understandable to the jury. He even suggests they can be made appealing. He writes:

“It is true that objections are supposed to be made to the bench, not to the jury or opposing counsel. In fact, addressing either your adversary or the jury is an invitation for a reprimand from the judge. On the other hand, there is no rule against making objections so that the jurors understand the basis for your objection and perhaps even sympathize with your position, rather than concluding you are pulling some lawyer’s trick to keep them from hearing the whole truth.

Essentially the idea is to state a legally sufficient objection–one that is specific and accurate–which a layman can understand and appreciate, and do it in five to ten seconds. For example, ‘Objection, leading,’ may win a ‘sustained’ from the judge, but will not really help the jury understand what you have done. ‘Objection, Your Honor, leading. Counsel is putting words in his witness’s mouth,’ lets the jury see that your adversary has been doing the testifying.

The time limitation is very important, since if you take too long, you are inviting attack for making a speech. With some work, even the most difficult concepts can be understandably compressed in a short time. Instead of saying, ‘Objection, hearsay,’ you might say, ‘Objection, Your Honor, the jury can’t tell whether some casual bystander this witness overheard was telling the truth. This is hearsay.'” (p.327)

McElhaney goes on to point out that, while it may seem like fine trial lawyers who make well-phrased objections do so extemporaneously, the truth is that such language is generally developed and practiced in advance.


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