YourABA: March 2013
YourABA April 2013 Masthead

A ‘common sense’ approach to litigation

Kenneth P. Nolan

Kenneth P. Nolan

Lifelong Brooklyn resident Kenneth P. Nolan, who specializes in personal injury and wrongful death litigation, compares learning to thrive on the city streets to succeeding in the courtroom. The author of the new American Bar Association book A Streetwise Guide to Litigation said, “To thrive, you had to learn to compete, and to win you had to deal with all sorts of people …  Litigators also deal with all sorts of people — judges, jurors, clients, adversaries, witnesses.

“To be successful, we have to satisfy the cranky judge or stand up to an adversary’s venom,” he continued. “We have to deal with the Harvard-educated CEO and the plumber with the GED. We have to navigate the case from commencement to trial. And the solutions to problems that arise are not found in law reviews, law school texts or even through a Google search.”

Below he shares his “common sense approach to litigation” in which he applies what he learned on the Brooklyn streets to all aspects of a case, from investigation through closing argument: 

What are the top takeaways from the book that would apply to both young and experienced litigators?

The cliché is true: There is no substitute for hard work. Know your case — the law, the facts, how to perform the heart surgery, how to value stock options — better than everyone else. There’s really no substitute and no excuse. Yes, it’s tedious, time-consuming and ruins birthdays and vacations. So what? That’s what you get paid for.

Do it yourself. Do not rely on the investigator, an associate, a partner to go to the scene, interview the witnesses, woodshed the expert. I can assess credibility and effectiveness over a tuna on rye at the local diner. Don’t delegate.

Treat people as equals. Don’t be condescending. We know you’re smart and all. But individuals hate to be ignored or spoken to as if they’re children. Be patient; take the time to explain. You’ll be rewarded and learn that the bus driver is a wonderful woman with a wicked sense of humor.

What are your best tips on how to take a deposition?

Before you even prepare, you must plan. What do I want to obtain from this witness? What information, documents? What is he likely to say? Will it help me? Have a goal and prepare your outline with that in mind. Too many people rush into a deposition without contemplating who the witness is, what he knows and whether his testimony will benefit your case.

Sometimes it’s easy — the witness saw the event, or was present, or has knowledge of the procedures. But other times, the role is not clear — he’s in the chain of command, and maybe he’ll blurt out a smoking gun admission. Well, just as often such a witness will emphatically confirm your adversary’s position. Think it through before you serve the deposition notice.

Always have a written outline. And that applies to those who have taken hundreds of depos. An outline forces you to focus, and it will return you to your strategy after the questioning leads to an hour on an unexpected topic.

What is your advice on how to have successful settlement negotiations?

Again, know your case and your adversary’s. If the argument is that your client’s injury was caused by a pre-existing injury, have the expert report and medical records ready to proffer. If there’s an issue of law, have a short brief or a quote from a controlling case. Have the decisions ready to hand to the mediator. If you know your weaknesses, you can refute them quickly and effectively with argument and proof.

Be realistic. It’s easy to demand millions, but an outrageous demand or offer is insulting and ends any possibility of resolution. Have others evaluate your case because occasionally you are too wrapped up and can’t be objective. Make sure you speak with your client in detail not only about the process, but also the outcome. A client has to be prepared to negotiate. If the client is adamant, delay the discussion until your client softens. If your client demands a trial, advise the other side.

Don’t make promises you can’t keep. I’ll never pay more than … I won’t take a penny less than … When you capitulate, the word will spread that you’re all bravado and you’ll always acquiesce. This will hurt you in the future, and once a reputation is sullied, it’s nearly impossible to change.

What makes a successful cross-examination?

List certain admissions or information you wish to extract from the witness. Then plan on how to have the witness so testify. Consider all possibilities — what if he says “no” instead of “yes”? What’s my next question? Different scenarios must be pondered so that you’re prepared for all eventualities.

Ask short, “yes or no” questions. Do not give the witness room to explain. Be respectful but firm. If he tries to explain, cut him off; insist on an answer. Look to the judge for assistance if necessary. Obviously you can’t treat an elderly or sympathetic witness the same as a well-paid expert who makes a career (and a fortune) testifying. Realize who is on the stand and treat that person accordingly. But always check the jury’s reaction. There is nothing worse than going too far, being too harsh and turning a reviled witness into a sympathetic one.

Don’t be greedy. When you achieve your goal, shut up and sit down. Many solid cross-exams are ruined by asking one more question.

What makes a successful closing argument?

This is the fun part. Where you can jump about and scream and shout. But you have to be careful. Most jurors won’t be persuaded solely by emotion. You must summarize the proof in a clear and convincing manner. You must remind jurors of testimony, exhibits discussed days or even weeks ago. Emphasize the damaging admissions you extracted on cross.

Highlight your expert’s opinions. All of this has to be done in a logical and understandable fashion. No matter how eloquent you are, if the jury can’t follow or comprehend your argument, then it’s useless.

Refer to your outline during your closing. Don’t get carried away and forget essential elements of your case. Study the charge and repeat the words that the judge will use. Tell the jury what you have proved and how you’ve achieved it. When you quote an exhibit or testimony, show them. Demonstrative evidence is relatively simple to produce. Use it in closing. This will reinforce the power of your argument.

Tell the jurors what you want and why you are entitled to it. I want you to find the defendant negligent for the car crash. I want you to find that the defendant’s negligence was a proximate cause of my client’s injuries, and I want you to award my client $1 million for future pain and suffering … Let me show you how I’ve proved that the defendant was negligent.

Don’t assume the jury will know what to do. Tell them and use testimony, documents and other proof to justify your request. Always support your argument with evidence. Jurors will want you to show them why your client is entitled to a verdict.

How do you redeem yourself after making a mistake?

In most instances, it’s always better to admit error than try to hide it. Everyone makes mistakes, so when you mess up, tell the judge, jury, your client, your partners. Come clean. Usually candor will be understood and forgotten. Many times what I believed to be a disaster turned out to be just a bunch of sleepless nights. So immediately seek counsel from a more experienced practitioner. She may have been in a similar situation and provide a simple solution. Often there is a panacea that is available that you are not aware of.

Even if the error is consequential, reveal it. Take your lumps and move on. Mistakes don’t improve over time. You never want to hear: “Why didn’t you tell me when this occurred two years ago?” Now you’ve compounded your mistake with a lie. Remember Nixon’s Watergate. It wasn’t the burglary that forced his resignation. It was the cover-up.

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