Tag Archives: Witness

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).


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.)


A Different Take On The Issue of Perjury

vbgfA strong editorial in the Wall Street Journal today by SNR Denton lawyer Matthew Lifflander discusses the economic impacts of lying, with a particular emphasis on perjury in court. I’m sure that, like any ethical issue, we all have different views on the importance of telling the truth and what would constitute a just and deterrent punishment for perjury.

I vividly recall being on vacation in Rome with a politically conservative close friend when the Republicans were all in a lather over the Clinton-Lewinsky scandal. I found it amusing that he was so indignant that our President would be caught blatantly red-handed lying about a blow job. On the other hand, what can we tell our children about the oath of perjury if our leader, our President, ignores it  with impunity?

As the title of his piece suggests, Mr. Lifflander comes at the issue of perjury from an economic, cost-benefit (what benefit? and to whom?) analysis. It’s no surprise to any litigator that the practice of committing perjury is alive and well in our system, whether the liars are alleged criminals, greedy plaintiffs or callous corporations and their executives.

What I like about the piece, however, is not the shift from a purely ethical to a hard-line economic analysis of lying. Mr. Lifflander does offer some compelling statistics about the cost of dishonesty. For example, he cites that, “[i]n 2011 NY City  paid $550 million in personal-injury and property-damage tort settlements and judgments . . . City lawyers have previously said that up to 10% of the claims . . . involve fraud or misrepresentation.” But, while compelling, these numbers don’t move me. I suspect this is because I’m still naive enough to believe one adheres to a policy of truth both (1) because any deviance from this policy threatens a reputation for honesty that I consider sacrosanct (I prefer not to do business with dishonest people), and (2) because it’s just the right thing to do.

Rather, what I like is that Mr. Lifflander offers suggestions on how to curb this rampant abuse. He endorses (1) creating a fund to pay for prosecution of perjurers (to be funded by small taxes on large personal injury judgments), (2) establishing a statutory civil tort to redress those who can prove they were victimized by perjury; and (3) a change to the law to authorize civil trial judges to punish perjurers through fines, sanctions or reductions in judgment.

I would throw out the first two suggestions. I abhor new “taxes” of any kind, and I’m not clear why successful personal injury litigants should be taxed to pay for prosecution of perjurers. If a tax is needed to raise the funds, it should be levied on everyone–not just successful litigants. Establishment of another tort is not the answer, either. Must new lawsuits be spawned off of the wrongs perpetrated during other lawsuits? Do we really need litigation-about-litigation, meta-litigation?

I do, however, endorse Mr. Lifflander’s third proposal: to make it easier for a trial judge to punish instances in which perjury has obviously occurred. There is nothing more frustrating that showing a judge clear and convincing evidence that a litigant has blatantly lied to the court, only to have it ignored. I remember my frustration during one evidentiary hearing in which I held up a real estate document in which it was obvious that the defendant had forged my client’s initials on an arbitration provision (obvious because, next to it, I had a version of the document obtained by subpoena that did not contain her initials), and the judge glossed over the issue. Are you kidding me? I thought. What kind of judge are(n’t) you?

The problem I see, though, is not that judges lack the authority to punish liars, but that many (most?) judges can’t be bothered to do it. The solution is probably not more legislation, but a change in the way judges–those in whom we place our trust to enforce the laws against perjury–view the crime. I doubt much will change on this front, however, until the public takes the crime of perjury and its consequences, ethical or economic, more seriously.


Learn One Thing From Every Lawyer You Meet

llkkExperienced lawyers speak about trying to learn something from every case you handle. This is valuable advice, and something most of us probably do without really thinking about it. But I’ve found it more valuable and interesting to try to learn at least one thing each from at least most lawyers I come across in the course of my practice. In many ways our professional education only begins in earnest after we finish law school, pass the bar and start plying our trade. I was fortunate to have a great mentor during these formative first years, but I recognize the reality that not every new lawyer is going to bond with a mentor.

In an odd way, however, every lawyer we encounter in our practice can act as a mentor of sorts and, if we’re perceptive, can open our eyes and help shape us into better lawyers. Let me offer a couple of illustrations. Let’s first take a positive example. Some years back, my partner and I defended a catastrophic product liability case against an older aviation lawyer. This guy, who is now retired, was quite literally a trial legend. He was sharper in his early 80s than most of us at our peak. Our case together resolved pretty early on, but I still had an opportunity to share an almost empty courtroom with him one morning while we waited for our judge to rule in chambers on an ex parte application.

What did I take away from the experience? Probably more than I realize, but what struck me at the time, and has stuck with me since, was the way in which he interacted with the courtroom clerk and bailiff. We’ve all seen how lawyers parade into courts and treat the courtroom staff with . . . let’s call it indifference, or sometimes worse. We litigators often see clerks and bailiffs as impediments to what we’re trying to accomplish. I know at my worst moments I’ve done it. But I saw how my opponent’s manner was different. When he spoke with the clerk and bailiff he engaged them. From his attention and questions, it was obvious he had a genuine interest in their backgrounds, their interests and families. It wasn’t a stretch to imagine he would take a similar interest during voir dire in the prospective jurors who would decide his client’s case.

We all know people who are have this kind interpersonal curiosity—they’re often very successful, as politicians, leaders—or trial lawyers. Why are they so successful? Because being interested—genuinely interested—is the first step in creating a bond, which involves trust. And the ability to garner trust can be among a trial lawyer’s greatest strengths.

Not every lawyer we encounter is worthy of emulation, and that can be a valuable learning experience, too. And we don’t learn only from seasoned lawyers, newbies who have a trait or style can help shape us, if we’re paying attention. In particular I’m thinking of a young associate I came up against a while back. I previously wrote about this guy. On the surface, he had a lot going for him. He seemed intelligent, charming and had scored a job working for an LA-based “Nader Raider” automotive product liability lawyer who boasted a string of six and seven-figure trial verdicts.

It wasn’t too long, however, before it became clear to everyone on our side of the fence that this associate had something of a . . . reckless relationship with the truth. Not only did he make calculated and blatant misrepresentations to our judge, but every telephone call or conversation with him was followed by a letter purportedly “confirming” several things that were either not discussed or never agreed upon. From this lawyer I learned how precious is a lawyer’s reputation for honesty. It is an undeserved gift; one that we must never squander.

Sometimes the way an opponent practices forces us to confront our intuitions about whether something is ethical or appropriate. We learn from this, too. For example, I am presently litigating a civil case against a pretty seasoned lawyer who spent the first half of his 35+ years practicing criminal law. There are numerous “independent” witnesses in our case—witnesses who would not be expected to have any inherent bias in favor of one side or the other. We’ve just wrapped up a long string of depositions, including several such independent witnesses. During these depositions, it has become clear that my opponent has gone out and met in person with every single witness in anticipation of their deposition. In some cases he literally spent hours with them preparing for their deposition.

Undoubtedly, readers will have different views on whether this is appropriate. There is another party in our case and its lawyers are adamant that our opponent’s behavior is the worst kind of slimy. And I’ll admit that my initial reaction was not positive. But after serious reflection, I’ve come around to think it’s not necessarily inappropriate, and could in fact be a prudent thing to do in some circumstances. It obviously leaves the witnesses somewhat vulnerable to cross-examination (“Now, how long did you spend with Mr. So & So preparing for your deposition today?”). On the other hand, my opponent knew before we went on the record what the witness was planning to say, and he could tailor his examination to capitalize on positive aspects, while anticipating and diffusing negative testimony.

I realized, too, that while this kind of interaction with independent witnesses might seem unusual in civil litigation (it is more common to interview witnesses through the medium of a third-party investigator), it is the most natural thing in the world in criminal law, where my opponent cut his teeth. After all, depositions and other prior testimony are rarely available in criminal trials; an interview is often the only way to know what a witness will say before he/she takes the stand. So, while I try to learn something (or a bunch of things) from every case, I also make it a point to try to keep my eyes open and learn something from every lawyer I’m up against.


Preparing Your Deponent For “Soundbite” Questions

Soundbite questions are a hallmark of depositions taken of Persons Most Knowledgeable (PMK aka Persons Most Qualified or PMQ) within an organization on certain topics.  Here are some examples:

“Does your company, manufacturer XYZ, have ethical considerations in the design of its products?”

“Does ABC Hospital care about the safety of its patients?”

“Was it important to your company that African-American employees not be harassed because of their race?”

Of course the answer to these door-openers is an enthusiastic Yes.  The problem is the inevitable follow-up:

“Then why didn’t you recall product 123 when you learned it was defective?”

“If you cared about preventing harassment, then why did you skip harassment training in 2011?”

These kinds of questions are intended to elicit soundbite responses that are, at best, only marginally relevant.  But they can leave a strong negative impression with the jury if they somehow get into evidence. You can object until you are blue in the face, and chances are slim that the colloquy ever gets read to a jury, but do you want to take that chance?  Even though I can’t anticipate every kind of soundbite question an opponent will ask my witness, I like to prepare her to recognize and effectively “manage” these questions. 

One of the best ways to limit bad PMK or PMQ deposition testimony is to make the witness really understand the scope of his or her intended examination.  For this purpose, I do not rely on the language of the deposition notice or subpoena.  Rather, I typically object to the deposition notice, which is inevitably overly broad or problematic for other reasons.  I then indicate, in the objection, that my client “will make a witness available who is knowledgable about . . .”  This gives me some measure of control over what is going to happen in the deposition.  For example, I never make a witness available to testify on ridiculously overbroad topics like “safety.” Rather, a notice asking for a witness on the “safety” of a product will get an objection promising instead a witness who is prepared to testify about “design considerations” or “testing.”  If opposing counsel receives my objection and has a problem with it, I expect he/she will raise the issue and we will hash it out before the day of the deposition.  Failing that, I take the position that the language of my objection governs for purposes of scope. 

Now, this may seem strident.  However, if push comes to shove and we need to appear before the judge, (1) I have not conceded anything and there is an opportunity to fully brief my client’s position; and (2) the burden is on the party noticing the deposition to move to compel, rather than having the burden on my client in moving for a protective order.  As Denzel Washington points out, in Training Day, “The shit’s chess, it ain’t checkers.”

Since I have had some say in the scope of the witness’ examination, I want to make sure the witness knows the boundaries of this scope.  After explaining this, I reinforce it by asking a series of mock deposition questions that fall just inside or outside the scope.  This practice helps the witness feel comfortable asserting that the question is outside the scope of her deposition.  I also teach her to listen for my objection that the question is outside the scope.

Unfortunately, while some examiners will walk away when the witness resists an invitation to give a soundbite, others are more persistent.  They will ask the same question over and over until they get a response, or slightly change the question until they get an answer they think is useful.  Preparing my witness for this kind of persistent examination requires consideration of my overall theme in the case.  For example, if my client made a single part that was incorporated into a larger product that is claimed to be defective, my theme might be that my client made the part according to a specification.  I teach the witness to restate this theme in a way that she finds comfortable, then help her to apply it in response to a variety of different questions.  Again, practice through hours of mock questioning is the only way to “train” my witness how to incorporate the theme into her responses.

The most important thing is to put my witness on notice that she is likely to be asked soundbite questions.  Since the questions can seem innocuous (“You care about safety, right?), and seasoned examiners know how to sandwich them in between more legitimate questions, it’s important for the witness to remain vigilant.


Should California Limit Length of Depositions?

California Assembly Bill 1875 would limit the deposition time to 7  hours, thus mirroring the Federal Rule.  There is currently no limitation at all for cases pending in California state court.  Is the proposed 7 hour limit a good idea? 

My experience tells me that most depositions in many kinds of cases can (and definitely should) be completed in less than 7 hours.  That said, I’ve had the issue repeatedly arise in employment discrimination and sexual harassment cases in which the plaintiff’s deposition cannot reasonably be completed in 7  hours.  In fact, the plaintiff’s deposition in a sexual harassment case involving multiple instances of conduct allegedly occurring over the course of 3 years could not be reasonably completed in less than 20 hours.

The good news with this California legislation is that it would exempt cases involving employment issues or which are deemed complex.  It would provide the parties a choice to opt-out by stipulation.  Expert depositions would also be exempt from the limitation. 

The stated purpose of the bill is to prevent attorneys from deliberately using the deposition to harass a party or witness or needlessly increasing the litigation costs of a case.  I’m not so sure.  While I’ve felt that some attorneys could be more organized with their examination and sometimes they seem to dwell on areas that ultimately bear no fruit, it is important that examiners not feel unduly rushed or constricted.  I could probably count on one finger or less the number of times I’ve honestly felt that an examiner was dragging out a deposition for a purpose other than legitimate fact gathering.  As far as harassment goes, I bet most people find the entire deposition process to be an exercise in harassment.  A lawyer intent upon harassing a deponent can do so as easily in 7 hours as 10, so is the law necessary?

On balance, I think members of the bar should think and act like professionals.  We should not engage in harassing behavior.  Nor should we drag out the length of a deposition unnecessarily.  If somebody gets out of line, there are remedies available, including a protective order and/or sanctions.  But I’d like to think we can govern ourselves without the need to be overregulated.  So let us decide for ourselves how long it takes to complete a deposition.

Oh, and please don’t ask after the first hour how long I think I’ll take for my examination.  That is just soooo annoying.


Et tu, Brute

You don’t want to “cross” Omar. The fun begins at about 1:22.


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