Articles Posted in Litigation Strategies

You give your opening statement. The defendant gives her opening. Who do you call as your first witness?

Too many plaintiffs’ lawyers – particularly in car accident cases – spend too little time on this question, because scheduling conveniences dictate the order or because they think the most important witness should be the first or last witness.

In his book “Damages 3”, David Ball provides a list of four things you want from your first witness:

• Provide an Overview of the Case: Ball says the first witness should be someone who can tell a significant part of the overall story. Probably the ideal witness is someone who can establish what the defendant did and give some preview of the harm that was caused. In a truck accident case, for example, it would be the witness who saw both the truck accident and the immediate harm that was caused.
• Introduce the Harm: The first witness should be someone who saw the initial harm, assuming it is a case where the initial harm is substantial. Again, a witness on the scene usually meets this criterion.
• No Stake in the Outcome: Clearly, this does not include the spouse or even a close family member of the client. Realistically, you can’t get this in every personal injury case. But the closer you can get to “no dog in the fight” the better.
• Cross-Proof: I think this is the most important of all: a witness that cannot be effectively crossed. I think this is the most important factor on this list. It is also the most difficult.

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I love talking to jurors after a trial. You spend days looking a seven or eight people (6 plus alternates in Maryland) and you get to know them. Sort of. But, really, you have no clue. Because jurors are incredibly poker faced. If they are showing “how to avoid giving tells as to your emotions” videos in the jury assembly room, I would not be the least bit surprised.

I found this article on Roger Clemens’ steroid trial interesting in this regard. These jurors sat through only two days of trial. Some attorneys say that jurors make up their minds during opening statements. I think that is wrong, particularly in a case like this where all the core facts are in dispute. Still, jurors start leaning in certain directions and develop in opening statements the lens from which they will view the witnesses at trial.

The Clemens trial is a classic example of a case where talking to the jurors has actual value for the parties. What arguments were they buying? Even assuming the prosecution could prove its case, do you think it was a crime? What did you make of Mr. Clemens’ demeanor during the trial? These are a few of the thousand different questions you would want to ask because these jurors make up the ultimate focus group – they make it past voir dire and onto the jury. Continue reading

Plaintiffs’ lawyers put a lot of energy into writing what we call a demand: a letter that sets forth the injured victim’s case and attaches the medical records.

I sometimes use the phrase “demand” even though I don’t like it. Inherently, battles with insurance companies in these cases are adversarial. So, because we already have enough friction, the wisdom of loading our terminology with demand is probably a terrible idea. Really, if we will call it a demand, we should load it up so it is more like “Terms of Your Surrender If You Want to Avoid War.” A better name that would be more conducive to the settlement would be “Resolution Without Litigation Package.”

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While preparing our client to testify at trial on Tuesday, I had a hard time getting her not to mention that she had received workers’ compensation benefits. So many of her choices were pushed by what workers’ comp would or wouldn’t do. When you are coaching someone to be as honest as possible, it’s hard. Tell the truth about EVERYTHING… oh, but not this.

Jurors are not told about the existence of insurance, either health insurance or liability insurance. There is good reason for this in theory: jurors are more likely to increase their award if they don’t know an insurance company is behind the defendant and they also will not award medical bills that they assume were paid by insurance. They are also not told that health insurance companies and workers’ compensation insurers expect to be paid back if the jury awards plaintiff compensation.

Thankfully, our client did well – no mention of the workers’ compensation insurance that paid her medical bills and lost wages. Then the president of the defendant company testifies and promptly blurts out that his company has had few accidents, which is why their insurance premiums are so low. For good measure, he repeats himself. One juror later told us he remembered that he let insurance slip but quickly added, “We figured there was insurance.” Another juror chimed in, “This case was more like a workers’ compensation claim.” This figured in their math too. They figured she would not pay $151,000 in medical bills back to her doctors although they awarded it anyway because good jurors follow the law.

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Our clients were awarded $2.5 million in a Montgomery County wrongful death medical malpractice case earlier tonight.

It is late. I’ll have more thoughts tomorrow, including my thoughts on just how seriously this jury took the idea of public service. Just a great story. In the meantime, congratulations to our wonderful clients who tragically lost their husband/father, Rod Gaston who worked up and tried the case for us, and to the lawyer who referred the case to us.

One thing I like about David Ball’s “Damages 3” is his willingness to talk about tough issues that personal injury lawyers deal with but no one really talks about in polite conversation much less in a trial advocacy book.

In his book, Ball writes about attacking stereotypes head-on with juries. Although things are changing a bit in recent years (like him or hate him, Doug Christie is a part of the solution), discrimination against fat people is one of the few remaining politically acceptable outposts for bigotry and discrimination. Ball says that jurors particularly associate fat people with being lazy, greedy, sloppy, and worse. Ball does not say this but let’s face another fact: people are harder on fat women than they are on fat men.

Are these stereotypes ridiculous? Of course. It is criminally ridiculous. But trial lawyers don’t have the luxury of climbing above the fray on our high horses. Lawyers have to take their juries as they find them and live in the real world. In our real world as plaintiffs’ lawyers, we are required to give jurors the facts they need to conclude that the plaintiffs deserve the compensation we believe they are entitled to.

Personal injury lawyers instinctively know this. So many of us counter this groundless assumption with the empty and the trite. “She’s was always on the go” or “She had barrels of energy” is the testimony often elicited. Continue reading