November 01, 2015

Trial Elegance

Robert Feinberg
From From the Trenches: Strategies and Tips From 21 of the Nation's Top Trial Lawyers, Chapter 2
Courage is being scared to death, but saddling up anyway.
—John Wayne

The Rug Pulled Out on Opening Statement

Years ago I tried a medical negligence case that began with a twist. Trial preparation had been intensive. The plaintiff was alleging millions in damages. The client was nervous and high maintenance. Months of planning and careful thought had gone into trial strategy. My opening statement was carefully crafted. We engaged a special team of jury trial consultants earlier in the trial preparation process to help us conduct a few mock trials and develop and refine our trial themes. Much of my opening statement was taken from what we had learned from those mock trials.

Fancy visuals with key deposition testimony excerpts were all set. State-of-the-art trial computer programs were ready with a special team of our IT gurus to project our case in easy-to-read slides on a big screen. My plan was to use the slides instead of notes. Why would regular notes be needed with the slides to guide me?

Now, on the first day of trial, opposing counsel—who has been a thorn in my side for the entire two years leading up to trial—approaches me and asks me what is in my slide show. Of course, I respond that it is my opening statement. Snarling, she demands to know what is in my opening and what specifically is on those slides. I politely remind her that she will hear my opening when everyone else in the courtroom does. After all, why should she hear my opening before I give it, right?

Opposing counsel is insistent. She is agitated. She thinks she has the right to know what is in my opening statement. Why? I haven’t asked to know what is in her opening statement. She bristles and twitches and asks the judge to talk outside the presence of the jury, which we had finished selecting just minutes before. The jurors look annoyed. They thought they were about to hear opening statements. In-house counsel for my client, a large hospital, and the physician whose care is at issue both look at me with curious, raised eyebrows. Even the judge seems a bit perplexed. But she excuses the jury to hear what counsel has to say.

“I am entitled to know what is on counsel’s slides, Your Honor.” The judge looks at me and says simply, “Counsel?” I explain to the judge that my opening statement is on the slides. Opposing counsel interjects that she wants to make sure nothing inappropriate is on the slides. The judge nods at me, directing me to explain with more specificity what is on the slides. Bullet points for my opening, I say, including deposition testimony excerpts. And then opposing counsel, with ridiculous jubilance, argues that deposition testimony cannot be used in opening statement.

I ought to be able to explain what the evidence will show; never before had an opposing lawyer tried to prevent me from using deposition testimony during opening. But the judge is buying opposing counsel’s argument.

“Trial testimony may play out differently from the deposition testimony,” says the judge, as she rules that I am not allowed to use slides containing deposition testimony in my opening.

This is like a punch to the gut, the wind knocked out of my lungs. I can feel the throb of my pulse. My client looks a paler shade of white. Big money, time, and resources were spent on the mock trial to develop the “perfect” opening statement. And the entire opening is in those slides. Key deposition testimony is interwoven into each slide. No way to salvage the visual presentation at this stage of the game. And the clock is ticking; opening is about to start.

How is a lawyer supposed to explain to the client what just happened? How do you tell the client, minutes before opening statement, that your presentation is a nonstarter?

Opening statement is critical. In my view, jurors do not decide who wins based on opening statements. But openings make jurors decide who they want to win. This is an important distinction. Jurors generally tend to take their oaths seriously; they try not to decide on a verdict before all the evidence is in and final arguments are presented. But jurors are human. They pick favorites. Jurors will filter every piece of evidence and tidbit of testimony through the lens of who they want to win. And make no mistake, they decide who they want to win from the outset. First impressions are critical. And so the opening is your opportunity as a trial lawyer to lead the jurors to your camp.

We have five minutes before the judge calls the jury back into the courtroom. And then I will have to do the opening. Without slides. Without deposition excerpts. Without notes—because those slides were the notes.

Trial lawyers are made here. In this sacred place. This place is made up of heart and mind and of everything that you are and can become as a trial lawyer. You know your case. You have lived with it for years. You are ready.

So what did I do, you might ask? Well, I did what I had to do: “saddled up,” as John Wayne used to say. Trial lawyering is not for quitters. You have to deal with all sorts of nonsense that will be thrown your way.

I huddled with my clients and defense team. I looked them straight in the eyes and said we would be fine. I could see their skepticism. We had practiced the presentation many times. They all really liked it the way it was. They felt comfortable with it. But I reassured them. Unexpected rulings happen. Trial is a marathon, not a sprint. We are going to be fine.

Keeping the team together and optimistic was the least of my worries. I still had to figure out what I would say to the jurors. All of the confidence I projected to my team and to others in the courtroom was an illusion. I was deeply concerned. But I had a plan.

I had a printout of the slides handy from my practice sessions. It was covered in scribbles, but it contained the key items that I would need to talk about—and so it was that I found my new road map. Besides, I knew the material anyway. I just had to breathe, relax, and talk with the jurors, who of course are simply regular folks.

Settling into the opening without all the fancy gizmos was actually very liberating. A strong connection began to develop with the jurors. Our opening talk was between me and them. Somehow it was more intimate.

At the end of the trial I spoke to the jurors and they said they really liked the opening. They said that they trusted me from the beginning because I was honest with them, warts and all. I became their guide for the trial. Credibility is crucial for a trial lawyer. It is more important than intelligence or quick wit or fancy computer programs. A jury must believe you are telling them the truth. Be bold—and not afraid—to talk with jurors about the weaknesses in your case from the start. They will appreciate your honesty. And it will distinguish you as the truth teller, the lawyer they can and should believe. By the time final argument rolls around, they will listen and have open minds and hearts to the action that you will ask them to take.

Punishing Your Own Client in Front of the Jury

Let me start this section of the chapter with a warning. Do not do what I am about to suggest without client approval. And if you are an associate, do not do what I am about to suggest without partner approval. And if you are a junior partner, do not do what I am about to suggest without senior partner approval.

The title of this subsection ought to raise your eyebrows. Why on earth would an attorney want to punish his own client—in front of the jury no less? Allow me to illustrate with a short story.

Your opponent (let’s call him Jack) has made some hay during discovery about your client’s (let’s call him Bill) prior felony drug conviction. Jack hammed it up during poor Bill’s deposition—essentially trying to tear down Bill’s credibility. Jack used the felony history during mediation to explain why Bill should not be believed by the jury and why Bill’s past makes Jack’s claim worth millions of dollars.

Jack’s case is not worth millions—not even close—and he is trying to leverage a bad fact for the defense (the prior conviction) into a settlement for more than what the case is worth.

So then, we are off to trial. Jack decides not to mention in opening that Bill is a convicted felon. He thinks he is being clever by waiting until cross-examination to drop the bomb on the defense.

The time comes for Bill’s direct examination. You start with the basics. Bill introduces himself to the jury, describes his work history, and so on. Then you slowly bridge to the troubled spot in Bill’s past and dig down deep into it.

You excoriate Bill—right in front of the jury. Punish him. Get him to agree that what he did was bad. Make him own it. You don’t hold back at all. If you hold back, the jury will know it. You genuinely punish Bill in front of everyone. Bill admits wrongdoing, and explains how that part of his life is behind him, and then you slowly move back into your defense.

You carefully move on from there and thoughtfully lay out the defense position.

Let’s think about what we have done here. First, we have stolen Jack’s thunder. Bill’s conviction was going to be Jack’s Perry Mason moment. Now he has nowhere to go with it. Second, we have established credibility. We faced a challenging hurdle head on and were completely honest with the jury. Third, and perhaps most important, we have already punished Bill. The jury does not need to punish him again by its verdict because he has already been punished. They might even feel a little sorry for Bill.

But let’s end this section by repeating the warning with which I started. Moves like this can be risky and backfire. You can end up with a really mad client who thinks you were too rough with him. The jury may hold the conviction against him nonetheless. There are countless ways this approach can go wrong. So make sure your client knows exactly what you are planning. Confirming your conversations in writing on a subject like this is a good idea. Vetting the idea with others is wise.

Sweet Potato Pie

As a newly minted baby lawyer, I started where all trial lawyers should: the district attorney’s office (although in Arizona we call it the county attorney). My first felony jury trial was State v. Savanah. The pressure was on full blast—at least in my mind—and I wanted to prevail and impress my superiors.

Mr. Savanah was charged with theft and assault on a police officer, Captain Jay Swart. The essential facts are these: the governor of Arizona was hosting a lovely event out on the lawn at the state capitol. The capitol police were present to ensure that the politicians, business leaders, and various other invitation-only VIPs were protected in this downtown, metropolitan area. Captain Swart, a tall, well-built, very smart, well-spoken police representative, was my star witness. My good fortune was unbelievable—a jury will love a police officer like Captain Swart every time. Mr. Savanah, a man with dreadlocks, wanted to get a plate of the food they were serving at this event. He shimmied past security and got on line for the buffet. Captain Swart told him he had to leave and began to escort him away from the buffet table. Mr. Savanah pulled away rather abruptly; Captain Swart reached out to grab him, and the two ended up in a brief tussle. Neither was injured in any significant way—there may have been a minor scratch or a bruise. But Mr. Savanah was charged with theft of the food, assault on a police officer, and resisting arrest.

I actually kind of liked Mr. Savanah. He was a peaceful, Rastafarian type. He appeared relaxed, genteel, and harmless. I relayed to him, through his lawyer, a real good plea offer, figuring that the case would resolve short of trial. How can a criminal defendant facing felony charges turn down a misdemeanor disorderly conduct? But he does. And the case goes to trial.

As I begin my case-in-chief, all is going well. Swart testifies. He is polished, professional, impeccably dressed, and well mannered with the jury. He holds up well under cross-examination by Mr. Savanah’s lawyer, a highly experienced criminal defense attorney 20 years my senior. I call a few other collateral witnesses—all of whom support my case—and then, on behalf of the State, I rest my case. This case appears to be a slam dunk.

Mr. Savanah now has an opportunity to put on a defense. Mr. Savanah has only one witness—himself. He describes, in detail, the same basic story as Captain Swart and the other State’s witnesses. But he does so earnestly and intensely. He is nice, polite, and quite likable. He describes how he walked onto the lawn, thinking it was a happy festival, with all welcome, and that he thought he could stop by and get a plate of food. He was hungry. I admit, his forthright approach did worry me. I could tell the jury liked him.

In a criminal trial, the prosecutor never knows if the defendant is going to testify until he takes the stand. Oftentimes, the prosecutor has no idea what the defendant is going to say. Prosecutors must be ready and limber to adapt to whatever the defendant’s testimony may bring to bear. And so here I am, in my first trial, against an experienced defense lawyer, and now I have to cross-examine Mr. Savanah, this really nice man who just wanted to join the party.

Experienced lawyers try to avoid asking questions at trial to which they do not already know the answer. Most have a war story or two to illustrate this point. And so it was, on cross-examination that I had to ask Mr. Savanah why he felt he had the right to trespass into this important function hosted by the governor.

Mr. Savanah looks down, with hat-in-hand deference, then looks at the jury, slowly and carefully, and then he looks at me, and with a tear streaming down his face says with honest sincerity, “Sir, I respect you, and I respect Captain Swart, I’ve never hurt anyone in my life, and all I wanted that day was a piece of sweet potato pie.”

Thump. This is probably a good time to talk about the doctrine of jury nullification. Sometimes a jury knows that a defendant has technically committed the crime charged (or the civil infraction alleged in a civil matter). But the jury—consciously or subconsciously—ignores the law. They want to give the defendant a pass. Nullification happens all the time in courtrooms across America. Jurors have their own sense of justice. Jurors feel the need to right wrongs. They want fair results. If they believe the law is too harsh in a given case, they just might not follow it. Jurors are regular people, and even though typical jury instructions tell them to avoid being swayed by sympathy, many times they are.

Disappointed by my own cross-examination, I collected my thoughts and reworked my final argument over the lunch hour. Mr. Savanah essentially admitted the crimes. But I know the jury could nullify.

I ultimately won the conviction. When I spoke to the jurors afterward, they appreciated my final argument. I was humbled during final argument, and I just decided to chat with the jurors, from the heart, about Mr. Savanah. I owned up to everything. Yes, Mr. Savanah is nice. Yes, he is sympathetic. Yes, I even like him and they probably do too (be careful here because lawyers are not really supposed to vouch—but I find it’s not usually a problem if you say good things about the opposing side). Anyway, I talked through it with the jurors. And they understood. And they ultimately decided to follow the law. Note the emphasis on “they.” I did not demand that they follow the law. I did not tell them that they must follow the law. I simply told them what the law said, and that it was up to them. People do not like being told what to do. People believe their own conclusions. The best trial lawyers are the ones who do not tell jurors what they must do, but who create an environment in which the jurors conclude, on their own, to do the right thing. Of course, the “right thing” depends on the packaging. And therein lies the art of the trial lawyer.

The Tell-Tale Heart

Defending medical malpractice actions can be challenging. Sympathy is often a factor. I defended a physician against a case brought by a man attached to a very large machine, which was serving as his heart. His natural heart had failed. This machine was keeping him alive. Nowadays assistive heart devices are relatively compact, but this was several years ago. The machine keeping this man alive was massive—it seemed to be the size of a small elephant. It stood prominent in the room, looking like something one might see on Star Trek.

This man was bedridden and very ill, so we had to take his trial testimony on video in the hospital. The big heart machine was audible during this trial deposition but not too terribly intrusive at the time. Every couple of seconds it made a thunking sound. But it did not appear overly loud in the hospital.

Unfortunately, the effect was far different in the courtroom setting. When the video was played, the heart machine brought a menacing “THUNK, THUNK” that echoed through the hallowed courtroom. We tried in limine to see if there was a way to limit that sound, but that effort fell flat. So the jury was left to hear this loud, ominous thunking during the plaintiff’s testimony. To make matters worse, by the time of the trial, the plaintiff had died. His wife and two young children remained as plaintiffs.

Understandably, the family was distraught over the loss of their patriarch. A devoted husband and father, this man passed too soon—he was only in his early 50s. The family wanted someone to blame. They were very bitter. They were angry. My client—the doctor—became their dark focus, the personification of evil in their eyes. I came to know the doctor well during the litigation. His name was Stanley. In truth Stanley was simply a nice, plainspoken guy who did the best he could with this patient.

The sound of that heart machine became the family’s emblematic battle cry and a manifestation of their deeply rooted, immense grief and pain.

No one really wanted to talk about the ominous pounding. Doing so would be a semantic tap dance. If plaintiff’s counsel talked about that sound, it could be viewed as pandering. If defense counsel talked about it, it could be perceived as disrespectful to the decedent.

But I figured the best way to talk about it with the jury was honestly. And I did. The video of the decedent was played first—so the dead man linked to this foreboding sound was the first witness the jury saw. His testimony—from the grave—made quite an impression, as one might imagine. The witness that followed was plaintiff’s expert cardiologist. He did a nice job on direct. But then on cross-examination, I took an extra few minutes with the plaintiff’s expert to discuss the sound of that machine. We unpacked it, together, and explained to the jury why the machine was making that noise, how it kept the plaintiff alive for the period of time that it did, the mechanisms for how it worked, and so on. We demystified the sound. Rather than beat up the opposing expert, I joined with him to educate the jury.

Afterward, we tried a real nice case. Both sides did a fine job. When the jury came back with a defense verdict, I was interested, as always, to speak with them about their thoughts. I was humbled to learn from them that they trusted me to guide them through the trial. The jurors said that my talk with the plaintiff’s expert helped them understand how the machine worked, which they appreciated, and they felt like they could trust me to explain the case to them.

Always be honest and credible as a trial lawyer. It will serve you well. You do not make the facts. You just deal with them. Jurors know when you are blowing smoke in their direction. The collective wisdom of the jurors will sniff out nonsense. The best way to win trials is to be clear, direct, and straightforward and, in the process, gently guide the jurors to their own conclusion that you are right and the other side is wrong.

This One Has a Face

I prosecuted a burglary case once where I had virtually no evidence. No prints, no DNA, no video; all that I really had was the eyewitness testimony of the homeowner (Steve), who came home while the burglary was in progress and saw the suspect run furtively past him out the front door.

Eyewitness testimony is notoriously unreliable. (For an interesting research project, take a look at some of the statistics and expert reviews on this point when you have time.) A good defense lawyer will exploit mercilessly the holes in eyewitness testimony. Here we had not just eyewitness testimony, but Steve was open to attack:

Defense Lawyer: It was dark?

Steve: Yes.

Defense Lawyer: The suspect was running?

Steve: Yes.

Defense Lawyer: In fact, he whizzed past you?

Steve: Yes.

Defense Lawyer: And you were very nervous?

Steve: Yes.

Defense Lawyer: And scared?

Steve: Yes.

Defense Lawyer: So then, no other evidence ties my client to this crime except your quick, in the dark, glance during a time when you were nervous and scared, does that about sum things up here?

Steve: I suppose that’s true.

While my direct examination of Steve went fine, the cross-examination was brutal, as illustrated above. The doubt in the jury’s faces was obvious after the defense lawyer’s cross-examination. I felt deflated.

Thankfully the judge needed to take a short break after this surly cross, and I had the chance to speak briefly with Steve. I asked Steve whether there was anything—from his point of view—that could strengthen his testimony and help undo the damage the defense lawyer had just done. And to my surprise, he had a game changer.

I learned from Steve, in that moment, that he is an artist. I was puzzled, wondering why that made any difference in his testimony, but here is how my redirect played out:

Prosecution Lawyer: Steve, at the break you told me you are an artist?

Steve: Yes, I am.

Prosecution Lawyer: Why is that important?

Steve: Well, I like to draw people’s faces. I find them very interesting. Sometimes I see a face on the street and then draw it when I come home. I have become quite good at remembering what people look like so that I can draw them.

Prosecution Lawyer: And how does your experience in this way help you identify the defendant in this case?

Steve: The way I see it, most burglaries are faceless. A thief comes into a family’s home and takes their personal belongings and then they are gone. Now I understand the points that the defense attorney has made. They are good points. But this one has a face. I saw the face. I remember the face. It is that face, sitting at the defense table. I am absolutely sure of it. I have no doubt in my mind.

Shazam! I said nothing else. I looked at the jury, raised my eyebrows, and simply sat down.

The jury deliberated for about 20 minutes before coming back with a conviction. I spoke to the jurors afterward. Steve being an artist was the key piece for all of them. The fact that most burglaries are faceless—but that “this one had a face” was very powerful imagery for them.

Please try to get to know your witnesses. One never knows what personal gems may be helpful.

The Art and Science of Evidence

Trial is about evidence. We present evidence, object to it, argue about what it means, and ask the jury to find in our client’s favor based on what it shows. The impact can be devastating if the judge excludes key evidence. Likewise, the admission of evidence that should have been excluded can be a game changer. So then, I am always amazed how often lawyers appear in trial without mastering the evidentiary rules. The rules of evidence are relatively short. One can read them front to back in about an hour. Good trial lawyers always review rules of evidence shortly before trial. I suggest you review them carefully and in detail. Be ready to cite to them from memory.

Objections at trial should be limited to one or two words. A short phrase at most. Brief explanations may be offered if the judge asks for more detail. You do not want to look like you are throwing up roadblocks in front of the jury. Sometimes it may be wise not to object, even if the evidence is objectionable. Remember, the jury wants to hear everything. When a lawyer objects, the jury knows that the lawyer does not want them to hear something. And if the jurors find themselves nodding off, they will most surely jump to attention when they hear an objection.

I like to give considerable thought to the evidence before trial and consider when and how objections should be made. Pretrial motions in limine often make sense. But choose them judiciously. Use neither forms nor routine, boilerplate nonsense as the basis for motions in limine. Instead, bring focused, precise, and meaningful evidentiary issues to the court’s attention. Too often lawyers are afraid of missing something and they print out a bunch of jargon that was used in prior trials. The judge will most certainly see through that approach and his or her rulings will likely reflect the same level of thought. So pick the key battles. Let the judge know why a single piece of evidence is relevant, how it fits into your case, and that you will be able to lay an adequate foundation for its admission. Judges would rather be presented with three or four thoughtful arguments than a panoply of rote, standardized papers.

While in limine presentations serve their purpose, the artistry of lawyering is done on one’s feet, in the tumult of battle, with the jurors as onlookers. Stand when you object. And no hunched over, halfhearted meek objections either. Exude confidence. Stand straight. Be deliberate. Look the judge in the eye. “Objection, hearsay.” Stay standing and attentively await the judge’s ruling. Sit down once the judge  rules. Show neither pleasure nor displeasure in the ruling. Treat each objection in a businesslike manner. Hemming and hawing or showing nervousness surrounding objections is bad form. And gloating when the judge sustains you is even worse. You are the trusted guide in the courtroom. Your credibility must be maintained regardless of the ruling. Be the skilled teacher rather than the crazed politician. Be the trusted confident who listens well and speaks only when needed. Be wise and firm, in both the words that you choose and the movement of your body. Project respect, deference, and acceptance of the judge’s evidentiary rulings. The jury is always watching—that I promise.

When you are on the receiving end of an objection, be prepared to have a one or two word response. For example, if the opposing counsel objects on hearsay grounds, be ready to respond, “Effect on the listener.” You want to know the hearsay rules cold. You want to know what is and is not hearsay. You want to know the exceptions to hearsay. And you must be lightning-quick. No time exists to open up the rules while the jury is watching to find what hearsay exceptions might apply.

Evidentiary rules can be tricky. Oftentimes judges have a difficult time with them. Careful thought and preparation must be given to make the judge’s job as easy as possible. Cue the judge in to the fact that you are laying foundation for the admission of a document or other evidence in advance of doing so. Mark the evidence for identification. Before asking the judge to admit the evidence, wave it around, show it to the witness, ask the witness what it is, how it works, why it fits into this case—by the time you ask the court to admit the evidence, its foundation, authenticity, and relevance should be abundantly clear. But be prepared to go through it again; if the judge is thinking about something else at the time, he or she might need for you to run through it once more.

Dressing and Acting the Part

Trial provides a stage. Lawyers in this way can be thought of much like actors. For many jurors, the script has been written and they expect lawyers to dress, talk and act like those whom they have watched on TV and in movies. Obviously, the real world is different from Hollywood. Typically, good lawyers can grab jurors’ attention in opening. The case is fresh and new at that point, and the jurors are eager to hear about the case. But the testimony can quickly become boring. Jurors commonly look for ways to entertain themselves.

After a month-long, hard-fought trial, I was once surprised to learn from the jurors afterward that they had given all the lawyers nicknames. For good or bad, they had named me “Don Juan.” They had named my law partner “Dapper Don.” Neither thankfully as bad as what they had named opposing counsel, which was “Dragon Lady.”

In other cases, jurors have commented on my shoes, briefcase, and watch. Jurors will notice details. Be sure you and your client dress and act appropriately. Nicely tailored, clean, neatly pressed suits are tools of the trade. Quality leather shoes look professional. An elegant timepiece is a nice touch. No big, gaudy watches or flashy diamonds. A professional, well-worn leather briefcase is signature to the seasoned lawyer and should be chosen with care.

Courtroom decorum is becoming somewhat of a lost art. But it is important that we as lawyers be polite, courteous, and well spoken. We should strive to be genteel and gracious in the courtroom. Jurors will look to the gracious lawyer as their trusted guide. The harsh, loud, obnoxious lawyer will be viewed with suspicion and probably disdain. Rise above the contentiousness and relax your face muscles, and smile where appropriate. It is even okay to lighten the mood with a quirky comment where appropriate. Not that I would suggest this, but when I was an associate years ago, one of the senior partners, a veteran trial lawyer, in response to a wacky question from opposing counsel, stood up and said: “Objection, your honor. Simply extraneous and weird.” The jurors seemed to enjoy that moment.

Find your true courtroom voice. Be yourself. Strive to be honest, humble, and real. The jury will like you. The judge will admire you. And your clients, hopefully, will thank you.

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Robert Feinberg

Robert Feinberg has a broad-based litigation and trial practice. An experienced trial lawyer of over 20 years, he handles a wide variety of complex litigation, including healthcare, criminal defense, general commercial, defamation, products liability, and personal injury. A former criminal prosecutor, Robert now defends those accused of criminal offenses and conducts internal corporate investigations involving theft, fraud, and other misconduct. Robert’s healthcare litigation practice centers on the representation of hospitals, laboratories, and other healthcare facilities, and physicians, nurses, and other professionals.