When I try a case with another lawyer (usually my partner, Laura Zois, if we are trying a large case), I always want to do the opening statement and direct examination of our client because I believe these are the most important components of a trial. Particularly the opening statement. I remember once seeing data that said that 90% of cases are decided in opening. I do not believe it is actually this high, but that number has always stuck in my head.
It is a great marriage because Laura believes you win by effectively cross-examining defendant’s expert and delivering an effective closing statement. When we have been successful trying a case, we both claim (to ourselves, of course) credit for the victory. It works out great.
Accordingly, I am going to blog a bit more over the next month or so about opening statements and direct examinations, starting today with direct examinations generally. I was looking today at Ralph Adam Fine’s The How-To-Win Trial Manual (Juris 3d rev. ed. 2005) and found an improvement I need to make in my direct examinations.
To illustrate his point, Fine uses an example from John Grisham’s The Runaway Jury (a really stupid but entertaining movie), picking up the story where plaintiff’s personal injury lawyer is examining the witness, a former high-level tobacco-company employee, about a long-missing document that demonstrated the tobacco companies in the book/movie knew that nicotine was highly addictive.
“Q: And the next paragraph?”
“A: The writer suggested [to the president] that the company take a serious look at increasing the nicotine levels in its cigarettes. More nicotine meant more smokers, which meant more sales, and more profits.”
Powerful testimony, but Fine contends that many of the jurors will miss all or some of it because of the call of the lawyer’s question, in this case “And the next paragraph?” But the manner in which many personal injury lawyers ask this question on a direct is by asking “What happened next?” type questions. Instead, he argues that lawyers should break down the components instead of letting the witness dump them all on the jury in one large package because not all jurors are paying attention at every moment. Instead he suggests questions such as:
Q: Did the writer of that memorandum suggest that the company do something about the nicotine levels in the cigarettes it was making?
Q: Did the writer suggest that the nicotine levels in the cigarettes be increased or decreased?
Q: Did the writer tell the company’s president how increased nicotine levels would affect the number of people who smoked?
Q: Would increasing the nicotine levels in cigarettes mean more or fewer smokers?
Q: More smokers than if the nicotine levels were not increased?
Q: Would this mean more or fewer sales?
Q: Would this mean more or less profit for the company?
Q: Would the profits be substantial?
This accomplishes three things:
(1) The jurors will know the answer even before the witness responds. This will cement these building blocks of the lawyer’s argument in the jurors’ minds, without relying on their own assessment of the credibility of the witness.
(2) The logical connection between increased nicotine levels and higher profits is made in small, incremental steps. Every lawyer knows that jurors fade in and out, you do not want to sneak attack the critical points of your case.
(3) It allows the lawyer to repeat the juicy stuff that the lawyer wants to resonate with the jury.
I think lawyers elicit some answers on foundation that make a “what happened next?” question harmless and helpful for the flow of allowing the witness to get out what he/she has to get out. But the moral of what Fine is saying is when a lawyer’s witness is spitting out the critical or even important testimony, the lawyer should make sure a carefully worded question (yet not leading) elicits that response that allows the plaintiff’s attorney to underscore the testimony the witness is offering. I will be vigilant to make sure I do not make this mistake in my next trial.
A part of the reason for the need for “what happened next?” type questions is that the lawyer is not in rhythm with his/her client. The solution: get in sync. How? By listening to your high school coach, music teacher, etc. Practice, practice, practice. I have always been amazed at how few personal injury lawyers take the time to make sure their direct examination goes smoothly. The solution to the problem is to keep doing it until you both have a rhythm. “What happened next?” often comes as a result of both the client and the lawyer not being prepared to work together to tell their story. The client stops where the lawyer does not expect him/her to so the lawyer continues the story by asking a “what happened next?” type question. If you practice, it improves the flow and helps solve this problem.