“Always one thing at a time. Why must you put out your facts like gold coins, Frau Richter?”
-John Le Carre, A Most Wanted ManI recently spent several days preparing inexperienced witnesses for their first depositions. Because it gives me an opportunity to be a teacher of sorts, I find this kind of preparation to be one of the more enjoyable aspects of lawyering.

One point that I feel can never be taught or practiced enough is for the deponent to understand when she has said enough in responding to a question. In other words, when to shut up.

It’s far too simplistic to teach a neophyte deponent “Just answer yes or no.” While that may indeed be excellent advice when the best possible answer is yes or no. And, assuming the deponent knows when the best possible answer is yes or no, answers correctly and stops there, then that tactic makes sense. But over the course of a deposition that lasts several hours or several days, there are going to be a lot of questions that simply cannot be answered using the “yes or no” strategy, and so I won’t have adequately prepared my witness.

This issue becomes particularly sticky in situations in which the examining lawyer does not possess a complete understanding of the subject matter and needs the deponent to guide him. In the arena of employment litigation we see this frequently. A plaintiff’s lawyer will have no practical understanding how the defendant’s business–say, manufacturing plastic widgets–actually operates. While the lawyer could learn everything he needs to know from his own client, I often find he will try instead to do this through deposition of a company Person Most Knowledgeable (PMK) witness.

When preparing such a witness, I begin by asking them to imagine that they are in a completely dark room, groping by hand to find familiar objects–a chair, a picture frame, a light switch! This, I tell the witness, is exactly what the examining lawyer feels like, and he is asking you to take his hand and guide him through the dark to the light switch. The all too human temptation, I warn the witness, is to do whatever you can to guide the helpless lawyer. This is not because the witness feels any affinity for the lawyer–probably the opposite. Rather, it is because the witness incorrectly perceives that, by helping the examining lawyer, she will more quickly bring the deposition to an end, which is what she wants more than anything.

The problem is that helping the examining lawyer will actually have the opposite effect. Every morsel of information the witness offers will give the examiner one more possible avenue to explore, one more path to go down. Instead of shortening the deposition, the additional information makes it go longer, and increases the likelihood that something damaging will make it onto a transcript. I teach that even the most experienced witnesses fall prey to this fallacy. With experts it can be even worse; they can have a tough time shutting up because the deposition gives them the platform they crave in order to showcase their special knowledge and smarts.

The question becomes, then, how to teach a prospective witness when enough is enough? Surprisingly, my favorite guru, Professor McElhaney, does not provide a great deal of guidance. In Litigation, he offers a list of rules to impress upon your client or witness about an upcoming deposition. Number 6 is, “Answer the question — not some other question–just the question you are asked. Say no more than is necessary to answer the question. Do not volunteer extra information or explanations.” Id. at 42.

That’s probably as good summary of the rule as there is. What’s left? Practice! In your mock deposition, take the witness through a lot of questions that she can either answer briefly, or ramble on.  Whenever you find her rambling, cut her off. Practice this as much as necessary until she understands the concept.

And then practice some more!

[This article was previously published in the November 2, 2014 issue of California Litigation]

“Believe it or not, the composition and layout of some of my images fall precisely . . . within the Golden Ratio!” –Henri Cartier-Bresson

“I love the smell of napalm in the morning.” -Lt. Col. Kilgore, Apocalypse Now

When I was a young man, my father, a professional cinematographer, taught me the basics of photography. We worked in black and white, with his two cameras: a gracefully aging twin-lens Rolleiflex and a Nikon viewfinder that, even then, was already “vintage.” I attempted portraits of our Great Dane, architectural studies of our house, and still life compositions of houseplants. We even built a first rate darkroom in our basement. Though he could at times be a complicated, difficult man, I hold fond memories of the time spent with my father learning photography.

One lesson I vividly recall was his early counsel against recklessly burning through film in the gamble that I might get a single decent shot. “Any idiot can snap a hundred pictures,” he would say, a good cameraman takes his time, measures the exposure, and composes the shot.

It is interesting how rudimentary lessons we are taught in the context of one discipline often translate well to another. Here I’m thinking about the litigator’s craft. We have at our disposal a wide arsenal with which to conduct discovery, the core activity of building a case or developing a defense. Yet, just as “any idiot” with a camera and a motor drive (that relic from a bygone era in photography that advanced film with such alarming speed and a satisfying, if not utterly thrilling, sound — I acquired one for the brilliant whirring noise alone) could snap off perhaps a hundred shots in a single minute, hoping for just one good photograph, any lawyer deserving that “i”-word label can recklessly avail himself of the entire arsenal of discovery tools, hundreds of interrogatories, admissions and document requests, in the vain search for a single useful item of evidence.

Now, if that single item of evidence wins the case or appreciably improves a client’s bargaining position, it could be worth it, but only if the evidentiary value is not outweighed by the time, corresponding expense, and potential heartache of the ruthless search. But, like a reckless shutterbug who fails to appreciate the beauty of celluloid economy (anybody remember film?), it seems that many lawyers lack the experience, wisdom or restraint to recognize when the wasted time and expense of “scorched earth” style discovery will vastly outweigh any benefits.

Readers of my blog know that, when trying to sketch an image of professional incompetence, I often trot out an earlier iteration of myself as a dashing model of brazen, inexperienced ineptitude. Because it sweetens a bitter pill, I’ll do so again here. As a young grunt toiling at an insurance defense firm, I was often tasked with preparing written discovery, a job I took seriously. Probably every litigator practicing in California state courts knows there is a statutory limit to the number of interrogatories and requests for admission permitted under our state’s Code of Civil Procedure: 35. But, let’s face it, if you’re a second-year associate bent on Absolutely Annihilating the other side, 35 interrogatories is not enough. Oh, no. That’s not nearly enough. Fortunately, for eager young would-be Ninja Assassin litigators, the California Code allows us to serve an essentially unlimited number of interrogatories or RFAs, provided we include a declaration affirming the extra discovery is “warranted” because of the “complexity or the quantity of the existing and potential issues in the case,” the “financial burden on a party entailed in conducting the discovery by oral deposition,” or propounding burdensome written discovery makes sense because it affords a responder “the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.” Well, of course my 135 or so handcrafted, “wait ’til they have to answer these babies,” special interrogatories were always “warranted.” Why? Because I swore in a declaration that they were. Quod erat demonstrandum.

Before you conclude that 135 special interrogatories could have in any way been “warranted” because of the “complexity or the quantity of the existing and potential issues” in most of my cases, let me dispel you of this notion. We weren’t litigating over the patent to an iPhone component, or the copyright to Coming To America. These were typically cases about whether the design of a product hurt someone. While it’s true the issues were more complicated than “What was the color of that banana you slipped on?” the universe of relevant, discoverable evidence was not infinite. But I didn’t see it that way.

So I marched ahead with my flurry of interrogatories. Thirty or so days later, I received pages and pages of nonsense. Boilerplate objections, mostly, with the occasional substantive morsel. Few readers will be surprised to learn that I rarely — actually never — unearthed a detail with hundreds of discovery requests that I couldn’t just as easily have learned with thirty-five or fewer interrogatories. With interrogatories, it was not just a question of quantity. I rarely gave any thought back then to timing of interrogatories, particularly contention interrogatories. I did not, for example, consider that asking many of the same questions by interrogatory that I would later ask in deposition was simply creating an opportunity for my opponent to educate his client how to respond when the same questions were later asked on the record. We all know that lawyers, not clients, answer interrogatories.

I have since become a bigger fan of depositions over contention interrogatories as a substantive discovery tool, in which case asking the same question twice, in two different formats, is just a waste of time of paper. That’s not to say I didn’t also occasionally overdo it with depositions. After all, I reasoned, why dispatch an investigator to interview a peripheral witness to see if she had anything important to say, when I could spend thousands of my client’s dollars and inconvenience everyone by putting them under oath and creating a record?

Who gains and who loses with my old “shotgun” approach? The only winner in this style of discovery could be the lawyers, since discovery is second only to trial preparation as the most expensive aspect of any case. Clients don’t gain, since they’re presumably financing the fact-finding exercise. Already clogged courts grow even more burdened with time-consuming discovery disputes. Ultimately, even lawyers will lose in the long run, as clients ultimately migrate to lawyers and firms that make efficiency a priority.

Practicalities aside, however, I want to suggest there is a larger reason to temper the urge to litigate with a flamethrower, leaving the ground scorched, the parties depleted and parched. It is this. Back when my father and I were toiling away with viewfinders and light meters, he wasn’t so much worried about the quantity of film I would burn (though that was not completely inconsequential). Rather, his goal was to shape me into a better photographer. One who acts more like a serious artist, who plans and composes, who takes care. This translates easily to our profession. As litigators practicing our craft, we should remember that we aren’t paid handsomely to generate make-work. There is always a goal to discovery. We are trying to unearth evidence that is not only admissible, but also useful. In this instance, less can yield the same or more — and better.

I remind myself that only a fraction of readers will be familiar with that cultural chestnut, Sanford and Son. You might ask: what’s worse, 70s era sitcoms built upon dismal racial stereotypes, or our present preoccupation with reality television showing us, in ever higher definition, how awful we really are? I digress, however; that’s a topic for a different blog.

Instead, let’s discuss “junk science.” In the majority of cases tried before a jury, the parties will desire to present the testimony of an expert in some field, such as injury or disease causation, standard of care or mental capacity. Of course, the opposition will want, if possible, to preclude this evidence. Popular techniques to preclude the evidence involve arguing either (1) that the expert is not really an expert at all; and/or (2) his opinion is not scientific–and thus likely to mislead the jury.

In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held for the first time that, to be admissible, scientific evidence must be both scientifically valid and properly applicable to the facts at issue in the case.  The key here is scientific validity. To put this in historical context, the prevailing standard before Daubert derived from Frye v. United States. Under the Frye standard, expert opinion based on a scientific technique was only admissible where the technique was generally accepted as reliable in the relevant scientific community. This was also termed the “general acceptance” standard.

In theory, the Daubert Court was interested in weeding out “junk science,” though it used the term “absurd and irrational pseudoscientific assertions.” Later, in Kumho Tire Co. v. Carmichael, which extended the Daubert holding, Justice Scalia, in his concurring opinion, wrote that that a trial judge has “discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky.” Don’t call me fausse.

What is this “junk”? Justice Stevens gave one illustration, in General Electric Co. v. Joiner. He said:

“An example of ‘junk science’ that should be excluded under Daubert as too unreliable would be the testimony of a phrenologist who would purport to prove a defendant’s future dangerousness based on the contours of the defendant’s skull.” 522 U.S. 136, 153, n.6 (1997) (Stevens, J., concurring in part and dissenting in part).

Oh, if only this worked! Alas, it would probably be about as accurate as the use of Penile plethysmography to convict sex offenders. This marginally invasive (I’m sure) test measures blood flow to a defendant’s penis to determine the level of sexual arousal as he is exposed to sexually suggestive content. That truly is “junk” science. (I couldn’t resist.) I can only assume the test, its use, or both, were conjured by someone who really liked Burgess’ Clockwork Orange.

Because I’m in a particularly philosophical mood, I’ll point out that one era’s “junk” is another era’s treasure. See, e.g., Copernican Revolution, Newtonian physics, Einsteinian Relativism, quantum mechanics, Mendelian inheritance. This phenomenon is known as a paradigm shift. Picture the egg dripping from Justice Stevens’ face when, in 2056, the last brain-researcher finally concedes that comparison of the contours of an individual’s skull is in fact the very best way to predict his propensity to inflict future harm.

In 2000, Federal Rule of Evidence 702 was amended in response to the line of cases starting with Daubert and culminating with Kumho. That rule now limits the testimony of an expert as follows:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.”

Interestingly, many federal courts have resisted applying Daubert and the amended FRE 702. A sweeping article by George Mason University Law Professor David Bernstein, pointed out that, fantastically, many judges were either unaware of the amendment to one of the most important rules of evidence (really?) or they deliberately ignored it.  See, Bernstein, “The Misbegotten Judicial Resistance To The Daubert Revolution,” 89 Notre Dame Law Review 27, 50 (2013).

A 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).

On Wednesday, a 12-member New York jury returned a verdict against Michael Steinberg, a senior portfolio manager with hedge fund SAC Capital Advisors LP, finding him guilty of trading using inside information that allegedly passed through four people before it reached him. An article in today’s Wall Street Journal about the deliberations of the jury forewoman, Demethress Gordon, provides a glimpse into how jurors bring their own experiences to the deliberation process, sometimes filling gaps left open by the trial attorneys.

Ms. Gordon entered the deliberations convinced Steinberg was innocent. The evidence against Steinberg included tips passed to him from his subordinate, an SAC analyst named Jon Horvath, about Dell and Nvidia. Steinberg allegedly placed trades within minutes after receiving the information from Horvath, who was a cooperating witness in the government’s prosecution. Ms. Gordon was initially not convinced by the evidence that Steinberg knew the tips were the fruits of confidential, “inside” information. She rationalized, as the story points out, “he [Steinberg] was the boss and relied on his staff to supply him with information they knew to be proper.”

Following the first day of deliberations, however, Ms. Gordon attended a screenwriting class “that happened to focus on the subtext of characters’ actions.” This made her receptive to an analogy offered, during the second day of deliberations, by another juror “who told her to imagine walking through the door. ‘He told me to go through the door,’ she said. ‘I understood what he meant, without him having to say, ‘Walk to the door. Turn the knob. Step through it.'” It “suddenly clicked. People can understand more than they are told . . . Mr. Steinberg must have known the information he received was based on nonpublic information . . . even if it wasn’t explicitly made clear.” After Ms. Gordon changed her mind and explained her reasoning to the sole remaining hold-out, who agreed, the jury returned a unanimous guilty verdict.

This perfectly illustrates how jurors will sometimes draw from their own outside experiences or intuitions to fill a problematic chasm in the elements of a case (or a defense). While I don’t know more about the evidence either side presented, this suggests to me (1) that the prosecutor did not have or put forth sufficient evidence that Steinberg would have understood, explicitly or implicitly, that the analyst’s tip was inside information (though it is telling that 10 of 12 jurors were apparently ready to convict at the end of the first day of deliberations), and/or (2) Steinberg’s defense attorney did not sufficiently anticipate and exploit this gap in the evidence. Either way, it’s interesting to be a fly on the wall.

Here are some ideas, courtesy of Professors McElhaney and Mauet, on effectively cross-examining your opponent’s expert witness at trial.

1. Make Him or Her Your Own Expert. Professor McElhaney suggests you look for places where your opponent’s expert agrees with your theories in the case. For example, if, in a personal injury case, both experts mostly agree on the severity of the damages and future treatment, but differ on causation, focus on where there is agreement. He says:

“Note that the defendant’s own doctor admits that the plaintiff will be subject to sudden seizures for the rest of his life; that this form of epilepsy can only be treated, not cured; and that the plaintiff’s condition can put him out of work as a machinist and means he can never drive again.

If you have a strong case on causation, you may decide it is better to make this witness your own on the issue of damages than to try to beat him down on the subject of cause.” (Litigation (ABA 1995) 165.)

2. Attack His or Her Qualifications. “No matter how well-qualified the witness,” McElhaney reminds us, “there is always a higher level he has not reached.” (Id.) Used subtly, this can also serve to bolster your expert’s credibility if he/she has better credentials.

3. Narrow His or Her Expertise. Professor Mauet  points out that, “[o]ften an expert will appear to be highly qualified, yet his actual expertise and experience are in areas different from those involved in the case. The cross-examination technique is to build up the witness’ real expertise, then show that this particular expertise is not directly applicable to the type of case on trial.” (Fundamentals of Trial Techniques (3rd Ed. 1992) at 266.)

4. Attack His or Her Facts. I see two possibilities here. One is if you can establish an opinion rests on a faulty or controversial factual premise, such as a date, measurement or time. The other, highlighted by McElhaney, capitalizes on the fact the expert did not do factual investigation himself, but is relying instead on the reports of others. He gives an example of an effective examination:

“Q. Doctor, can we agree that your opinion can be no better than the information on which it is based?

A. Well, yes, I guess so.

Q. If the information you have is not accurate, then the opinion would have to suffer too?

A. Of course.

Q. Which is why you would rather gather the information yourself than have to trust some source you have not worked with before?

A. Absolutely.

Q. But you were not given an opportunity to do that in this case?

A. Well, not exactly. No, I wasn’t.” (Litigation, 167.)

5. Vary The Hypothetical. McElhaney explains this approach as follows:

“You are permitted to change the facts around to see at which point they alter the expert’s opinion — depending on whether the question on direct examination originally was asked as a hypothetical.

You can insert facts you feel were left out on direct, or take out facts you feel should not have been included.” (Id.)

Let me go on record here that I view this as an advanced technique, and an opportunity to ruin an otherwise solid cross-examination. Ideally, you would have covered this ground with the witness in a pre-trial deposition, so you know what the answer should be and can hold the witness accountable if he/she strays. Otherwise, an experienced expert might hand you your head on a stick if you are not meticulously prepared.

6. Use The Expert To Bolster Your Own Credibility. Mauet suggest it can be “useful to cross-examine an expert to establish your own expertise in the subject. You can do this by defining technical terms or describing technical procedures and having the expert agree that you have defined or described them correctly. Use a treatise to obtain accurate definitions and descriptions. If this expert disagrees, you can impeach him with the treatises.” (Fundamentals, 267.)

7. Establish His or Her Compensation Bias. Mauet writes: “Inquire into professional fees charged and whether they have already been paid.” But he reminds us to “[k]eep in mind . . . that trials are a two-way street. Your opponent can do to you what you contemplate doing to him. Before pursuing this approach, make sure your own experts are less vulnerable than your opponent’s.” (Id., 266.)

8. Identify Additional Steps The Expert Did not Take. Mauet suggests we “[d]emonstrate that the witness did not do all the things a thorough, careful expert should have done. Demonstrate that a variety of tests could and should have been performed to arrive at a reliable opinion in this case.” (Id., 267-68.)

There. Now go get ’em.

I’ve previously written about how young lawyers enjoy an undeserved reputation for honesty. It’s a gift. Don’t squander it.

Similarly, when jurors encounter a trial lawyer for the first time, the lawyer’s mere presence in the courtroom says many things before the lawyer opens her mouth. This observation comes from the trusted Professor McElhaney. In a chapter from Litigation (ABA 1995) entitled “The Most Important Witness,” he suggests that a trial lawyer’s presence in the courtroom implicitly says to the jury:

• “I have studied the facts and understand what this dispute is all about. You can trust me to steer you straight.
• I have carefully screened the witnesses. I will only call those who will tell you the truth.
• I know the law that governs this case. Justice is on our side.
• If I introduce evidence, it is because it is important.
• If I leave something out, it is because it is not important.
• And If I attack a witness, it is because he is not telling the truth.” (Id. at 9.)

Of course, just as with a young lawyer’s unearned reputation for honesty, each of the above assumptions can be quickly proven wrong. Witness choice is a perfect example. While you sometimes have no choice but to present a dodgy witness, this should not be undertaken lightly. As Professor McElhaney points out:

“[T]he very act of putting the witness on the stand implies that you are vouching for his credibility. . . . Whom do the jurors blame for a bad witness? Listen closely to the comments clerks and bailiffs hear every day. ‘I wonder where she got that guy?’ ‘Where did he dig him up?’ ‘Can’t he find someone better than that?'” (Id. at 11.)

Another opportunity to prove the jury wrong in their initial positive impression arises from how you organize your evidence presentation, including direct examination of your witnesses. How you conduct the examination, what you leave in and what you leave out can affirm or undermine the assumption that “If I introduce evidence, it is because it is important.” As McElhaney says it:

“A confused, rambling examination suggests a disorganized understanding of the facts. Not only does it fail to tell the story effectively, a poor direct examination is the living picture of a guide who cannot be trusted to lead a jury through the thicket of facts in the case.

Dwelling at length on small points is a little different. At first it suggests that the seemingly insignificant detail will become important later on.

Why? Just putting it in the case says it is worth the jury’s while.

So the first time the fact that took so long to explain turns out to be meaningless, the jury feels cheated. When it happens again, they wonder whether the lawyer is trying to kick sand in their faces or is just inept.” (Id.)

The jurors are your friends, your students and your wards. Don’t kick sand in their faces.

I found a fantastic interview of trial legend Edward Bennett Williams from the Winter, 1986 issue of Litigation which I intend to read and re-read like the Bible.

Among the myriad of topics he discusses was the kind of “team” he works with at trial, which led to a discussion of trying “big document” cases. Many lawyers, even seasoned trial lawyers, tend to make the assumption that the bigger the issues to be decided by the jury, the more witnesses and paper–documents–are needed to prove a party’s case or defense. If an outsider was to simply look at the kind of discovery conducted in any big case, he or she would easily assume that, if the documents were worth seeking in costly discovery, they must have been germane and, ultimately, indispensable to winning.

Williams takes issue with this kind of thinking. He suggests that, in all but the most complex cases, lawyers tend to “multiply documents” unnecessarily. In the end, being unnecessarily document intensive does not further their clients’ interests or bring them closer to victory. Responding to interviewer Priscilla Anne Schwab, Williams says:

“Mr. Williams: I was brought up in a school of practice in which one person tried a case and tried it in toto. Even with some help, in the courtroom there was only one voice. And I like that.

Ms. Schwab: What about a complex case, say, an antitrust action with thousands of pages of documents, hundreds of witnesses. How can you handle that in a courtroom singlehandedly? With total control?

Mr. Williams: My impression of that so-called ‘big document’ case is that 95 percent of the documents are worthless. Just piles of paper to impress the jury. One of the great tragedies of litigation today is these paper wars. The whole profession gains nothing but disrepute when one of these big firms puts 21 lawyers on a case, and they start multiplying documents, paper times paper.

Now obviously in a few cases, the issues are so complex that there are, maybe, thousands of documents. But my experience has been that law firms multiply paper unnecessarily. They make litigation more prolific than necessary. They don’t have an instinct for the jugular. They don’t isolate the major issues of the case and simplify them into comprehensibility. And they engage in massive overkill in discovery.

Ms. Schwab: But there always seems to be a need for more discovery. You say yourself you must uncover every fact, however remotely relevant.

Mr. Williams: True, but discovery today is not used primarily to uncover facts. It’s used to delay, to obfuscate, and, too often, to replace real investigation.” Litigation, Vol. 12, No. 2, Winter 1986, p.30.

As an armchair expert on the topic of laziness, I wonder if the tendency to use excessive discovery rather than going “for the jugular,” as Williams puts it, stems from the fact that isolating “the major issues of the case and simplify[ing] them into comprehensibility” takes really hard work and focused thought. I suspect this is part of it. I suspect the other part is related to the fact that there is big money in putting armies of lawyers on cases and multiplying paper. Cynical me!

Whatever the cause, the end result brings clients no closer to victory. So, even if you feel the need to burn everything to the ground in discovery, remember when it comes time to try the case to isolate the major issues and “simplify them into comprehensibility.”

I’ve written before about the wisdom, in the context of a jury trial, of obtaining pretrial orders by the judge excluding or significantly limiting certain items of evidence you anticipate will be offered by your opponent. The typical vehicle for obtaining this relief in American courts is by filing a motion in limine. This term is derived from Latin, and means “at the threshold.”

Why do courts entertain such motions? If one party attempts to introduce objectionable evidence, whether by an examination question or offering an exhibit, in front of the jury, it may be impossible to “unring the bell,” or make the event 100% harmless, for two reasons.

First, if the question or exhibit is damaging enough that the jury gets the gist of its import before the judge  sustains your objection, the practical effect is little different than if the evidence had come in without objection. (Worse, in some ways, if you recognize that the objection itself may “wake up” jurors and alert them that what they’re about to hear–or not hear–is important.)

The second, more subtle reason, which I’ve previously described, is the assumption on the part of jurors whenever they hear you object, particularly if it is sustained, that you are trying to hide something from them–probably the truth. As I’ve said, this can garner juror resentment.

Motions in limine are great fun to write if you are an associate. I say this only partly in jest because they actually can be both interesting and game-changing, if done well. Plus they help young lawyers learn to use and argue the rules of evidence in a way you never learn them in law school or when studying for the bar.

Now, if we take this kind of pretrial strategic thinking to a higher level, there are even more subtle considerations to consider and decisions to decide. One involves comparing a motion in limine with a different kind of document called a trial brief. A trial brief is often a concise memorandum of points and authorities that delineate an important narrow issue and identify and apply authorities to persuade (under the guise of education) the court to adopt your favored position. It is also common for parties to file a single trial brief, which provides the court with a roadmap of all of the issues, the expected evidence, and how they should be decided. I’m referring in this post to the kind of brief that addresses only a discrete issue or cluster of issues.

In general, motions in limine focus on evidentiary issues and trial briefs on issues of law, such as how the jury should ultimately be instructed. But the difference isn’t always clear. For example, if you expect a massive argument over a specific jury instruction, it might be appropriate to separately file a trial brief to persuade the judge that only your instruction is appropriate. But this debate can also give rise to evidentiary issues. If certain areas of inquiry would be irrelevant or inappropriate if the judge ultimately sides with the position in your trial brief, it may be wise to also file a motion in limine to urge the court to limit potential unwanted or damaging evidence.

Finally, the timing of trial briefs is another consideration. They can be filed before trial, along with any motions in limine, or you can prepare and hold–do not file–a “pocket” brief  until the issue is “ripe” for adjudication. When, in the context of an argument, the judge asks, “Counsel, do you have any authority on that?” “As a matter of fact,” you say, “we do!”

Three additional points about motions in limine. First, lawyers have greatly overused them; some judges consider such motions to be an irritant. Be wary of this and save them for issues that really merit advance consideration by the judge. Then brief these issues well–don’t just assume because you raise an issue and cite an evidence code section that you’ll prevail. It’s vastly better to select a very few key evidence issues and brief each thoroughly, than to file a motion on every anticipated shard of evidence. If the issue doesn’t merit serious briefing, it probably doesn’t merit a motion.

Second, it is an absolute waste of everybody’s time to file “obvious” motions, which simply repeat well-established evidence rules. For example, most trial judges and lawyers know about the prohibition of evidence of insurance coverage. Why waste paper and time making a motion on such an obvious point.

Third, most jurisdictions require parties to “meet and confer” before filing motions in limine to see if the issue can be resolved among the lawyers. Even if you are in a jurisdiction that does not have such a rule, there is no reason not to meet and confer and try to resolve the issue before you spend your client’s money needlessly.

Both motions in limine and trial briefs can significantly impact the outcome of a trial. By resolving evidentiary issues that the jury never needs to know about, or educating the judge about how she should rule on important legal issues, these documents can effectively shape how a case is tried. Don’t be afraid to use these tools, but use them wisely and strategically.

It’s probably my mind playing tricks on me, but I have a foggy memory, from younger days, of removing my belt and shoes in order to forge through the security screening apparatus and into the United States District Courthouse for the Central District of California, for the sole purpose of witnessing a senior lawyer from my law firm trying an insurance bad faith case against Mike Piuze, who was something of a legend around Southern California courts at that time.

Once I got past the screening and the nonsense and made my way up to the courtroom, I entered just as my colleague was finishing a cross-examination of one of Piuze’s witnesses. It wasn’t this examination that captivated me–I actually have no memory of it–but rather seeing Piuze sitting at counsel table, alone, with nothing in front or around him but a single yellow legal pad.

As I say, my memory might be fooling with me, but the picture I carried away from that visit to the courthouse was of Piuze in trial against some behemoth insurance company armed only with his brain, a notepad, and his ego.

Well, whether I’m accurate in my recollection about what Michael Piuze takes with him to trial, most of the rest of us mere mortals generally bring along something called a trial notebook. I know that I’ve assembled several over the years, many for senior partners and a few for myself. It seems everyone includes a little something different in their trial notebook. For this post, however, I thought I’d consult that sage don of all things trial-related, Professor James McElhaney.

Ironically enough, the first chapter of McElhaney’s Trial Notebook is devoted entirely to the topic of assembling and using a, well . . . trial notebook. Clearly addressing us at what he presumes to be the brisk and hazy dawn of our careers, McElhaney writes:

“There are many rewards to using the trial notebook system. First, and probably most important, is that it helps you find things during trial, from particular passages in a deposition to the right response to your opponent’s objections. . . . Second, if you are a junior in a firm, the trial notebook can help you in two ways: it can let a senior review your work in advance of trial, and it will impress your senior that you know what you are doing.
Third, if you prepare a good trial notebook, it is much easier for a colleague to take over if anything should keep you from trying the case.” (Id. at 4-5.)

Fair enough. But what should you include in your trial notebook? Here’s what McElhaney suggests:

1. A Table of Contents and Index.

2. Analysis of the Case. “Here is the place for all sorts of notes, whether formal or informal, that go to make up your battle plan–from ideas about preliminary motions and jury selection to thoughts about final argument and requests for instructions.” (Id. at 6.)

3. Analysis of the Opponent’s Case.

4. Proof Checklist for the Case.

5. Jury Selection. “What you do during voir dire is a subject all to itself. But whether you get to ask the veniremen questions or it is all done by the judge, you cannot tell the players without a scorecard. For this you need a chart, a group of squares assembled like a map of the way the panel of prospective jurors is arranged, in which to write their names and make some notes.” (Id. at 7.)

6. Opening Statement.

7. Stipulations and Pretrial Order.

8. Witnesses. This should not only include the witnesses’ names, addresses, multiple telephone numbers and an indication whether they have been subpoenaed, but also “a short paragraph (just one or two sentences) explaining why this witness is being called to testify: just what it is you expect to prove with this person.” (Id. at 9.)

9. Examination Outline(s) for Witnesses.

10. Proof Checklist for Witnesses.

11. Deposition Index.

12. Documents and Exhibits. Here, McElhaney envisions both a list of documents and the documents themselves. Unless your case concerns a fender-bender or a simple breach of contract or debt owed, chances are you will want to break down the witness examination outlines, deposition index(s) and document and exhibits into their own separate notebooks. Experiment until you find what works right for you. One thing I’ve found really useful, though, is to include a page for every important exhibit on which you anticipate your opponent will make evidentiary objections; here you write an argument or two, or case or code citations to answer each objection. Much easier than thinking on your feet, though you have to do that, too.

13. Evidence and Procedure Memoranda. (See the last sentence of the last paragraph–unlike McElhaney, I don’t give this its own place in the notebook, but try to tie the anticipated objections and responses to particular exhibits or even witnesses. Again, find what works for you.)

14. Final Argument.

15. Motions and Requests for Instructions.

Again, you will want to experiment with what kind of trial notebook fits your style. Big cases, tried by teams of big firm litigators, spawn multitudes of notebooks, each individually devoted to a particular motion, or witness. But even in these circumstances, I think it is helpful to have a single, core trial notebook–a space where you bring it all together, and develop (and modify) themes and strategies. If you don’t want to call it a trial notebook, call it a playbook. But, unless you’re Michael Piuze, you’ll probably do better at counsel table armed with something more than a legal pad.

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.)

One of our most important jobs during trial is to object, when necessary, to prevent the improper admission of evidence. But doing this job, even properly, is not without its risks. Chief among these is the risk of alienating jurors or garnering resentment because it is obvious–assuming the objection is sustained–that you have succeeded in hiding some quantum of information from the jury. After all, they’ll wonder, if your client’s case is so obviously a winner–as you said in your opening statement–why this need to hide facts from us?

As always, the wise Professor McElhaney has something to offer on this topic. In his Trial Notebook (3rd. Ed.), he suggests we learn and practice how to make objections understandable to the jury. He even suggests they can be made appealing. He writes:

“It is true that objections are supposed to be made to the bench, not to the jury or opposing counsel. In fact, addressing either your adversary or the jury is an invitation for a reprimand from the judge. On the other hand, there is no rule against making objections so that the jurors understand the basis for your objection and perhaps even sympathize with your position, rather than concluding you are pulling some lawyer’s trick to keep them from hearing the whole truth.

Essentially the idea is to state a legally sufficient objection–one that is specific and accurate–which a layman can understand and appreciate, and do it in five to ten seconds. For example, ‘Objection, leading,’ may win a ‘sustained’ from the judge, but will not really help the jury understand what you have done. ‘Objection, Your Honor, leading. Counsel is putting words in his witness’s mouth,’ lets the jury see that your adversary has been doing the testifying.

The time limitation is very important, since if you take too long, you are inviting attack for making a speech. With some work, even the most difficult concepts can be understandably compressed in a short time. Instead of saying, ‘Objection, hearsay,’ you might say, ‘Objection, Your Honor, the jury can’t tell whether some casual bystander this witness overheard was telling the truth. This is hearsay.'” (p.327)

McElhaney goes on to point out that, while it may seem like fine trial lawyers who make well-phrased objections do so extemporaneously, the truth is that such language is generally developed and practiced in advance.