Temper That Temper During Cross-Examination

“We got a kinder, gentler,
Machine gun hand” – Neil Young

There is the temptation, it’s almost primal, to be derisive, if not outright mean, when cross-examining a witness who has lied in the past or is lying on the stand. Even if it’s only theatrical, to provide an example to the jury how they should regard the witness with suspicion or contempt, it seems almost natural to treat her with disgust.

But it’s important to bear in mind that, even if the substance of the cross-examination establishes the witness is a liar or unsavory individual, the jury might not reward an examining lawyer–or his client–if he crosses the line. The real challenge, however, comes when litigating a case on the road, in a venue whose culture draws “the line” of civility differently than an attorney’s home court. I’m thinking here about an experience my colleague had some years back when he (a Los Angeles lawyer) tried a civil case in Hawaii.

I’ve visited Hawaii a few times, but never had an opportunity to conduct business of any kind beyond securing a reservation for dinner or a scuba dive. Frankly, I’ve never given a thought about how Hawaiian citizens would receive a cross-examination of a witness differently than someone from Los Angeles. But it turns out that they don’t cotton well to a lawyer who takes a harsh tone to a witness during examination. This became clear to my colleague (this is hearsay, of course, I wasn’t there) after he cross-examined an important witness using a less-than-gentle tone. Apparently it was clear to everyone in the courtroom that the jurors did not react well as the witness was being subjected to a tone of questioning we Californians might consider perfectly appropriate.

That night, in preparation for the following day of testimony, it was decided that our local counsel, a native Hawaiian, would handle the cross-examination of the next adverse witness. I am told the contrast between the his tone during cross-examination, gentle, less confrontational, like “a knife cutting through heated butter,” and my colleague’s examination the previous day, was palpable. Let me make clear that my colleague’s cross was not over the top at all,† just consistent with how we would take such a witness here in Los Angeles. The difference was simply that the Hawaiian jurors do not appreciate the kind of confrontational tone we might employ when addressing a witness in cross-examination.

This highlights a concern we should always have when litigating, or even transacting any king of business, in a venue that is culturally different from our own. When faced with a trial in a culturally unfamiliar venue, I would always recommend involving local counsel, if only to advise about these kinds of cultural differences.

†In fact, it was not a “temper” or anger issue, at all. The title of this post is probably an unfair misnomer.

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Putting Yourself In Prospective Jurors’ Shoes

In his chapter on Jury Selection, Thomas Mauet suggests we put ourselves in the shoes of the prospective jurors in order to identify with them and maximize the opportunities that come from voir dire. This is what he says:

“Put yourself in the shoes of a prospective juror. You recently received your notice to appear for jury duty. This morning you arrived at the courthouse, waited in the jury room most of the morning, read a pamphlet about jury service, and were finally called, with about 30 other persons, and brought to a courtroom. You just entered the courtroom and sat down. You can see the judge on the bench, and various other persons in the front of the courtroom. And then you wait some more.”(Fundamentals of Trial Techniques, (3d. ed.) p.23.)

Sadly, during all of the years I have reported for jury duty, I’ve never even made it into a courtroom as a prospective juror. So for now I have to try to imagine what goes through the minds of prospective jurors as they get seated and are questioned by the judge and the attorneys. Mauet helps us along:

“Most jurors have little or no experience in the courtroom. They are in the midst of strangers. They are apprehensive and intimidated. They are worried that their ignorance about the jury trial system will show. They are concerned about their life’s secrets being exposed.” (Id.)

It would never have occurred to me that prospective jurors worry about secrets being exposed. If I reflect on it, though, some people are very uncomfortable revealing, even to one other person, the most basic information, such as their occupation, education level, etc. Of course, voir dire questions often get more personal, including your past experience with the civil or criminal justice system, whether you’ve been a victim or sued. Knowing most of the jurors are uncomfortable, and some even petrified, what’s a trial lawyer to do? Mauet suggests we “turn it around.”

“Change from being a stranger to being the jurors’ friend. If they feel intimidated, reassure them. If they are among strangers, make them feel comfortable. If they are worried about their ignorance, help them become informed. If they are concerned that secrets in their past will be exposed, reassure them. In short, the jury selection process is an opportunity for a trial lawyer to become the jurors’ friend and guide by helping them understand the trial system, by reassuring that they do belong here, and by letting hem know that their participation is important to you and  your party.” (Id.)

Making strangers feel comfortable, reassuring them that publicly sharing their personal and family history is necessary and appropriate, is a pretty tall order. Is it possible? In some cases probably not. But Mauet’s point is well-taken. Recognizing the feelings and emotions of potential jurors, and attempting to connect with them in a way that is both human and humane, is surely the first step toward gaining their trust.

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Knowing Where Your Jurors Come From (Literally And Figuratively)

It is no exaggeration to say that I learn something (or many things) from every mediation or settlement conference I attend. I recently traveled to Fresno to attend a settlement conference before a talented and hard-working USDC magistrate judge. During the conference he made a point that had escaped me before, but hopefully never will again.

First some background. This was an employment discrimination case in which the plaintiff alleged harassment, retaliation and constructive discharge, which would require her to prove that her working conditions were so intolerable that a reasonable person in the plaintiff’s position would literally have had no choice but to quit.

Early in the settlement conference, the judge met briefly with the lawyers and parties altogether. He employed an interesting, but effective approach. He spent a bit of time talking about the parties’ respective cases, focusing on each side’s weaknesses. After a few minutes of this, he said “here’s where I see the range,” and proceeded to give us a bracket.* The bottom of the bracket was well above where my client, the defendant, was prepared to negotiate so early in the settlement conference. However, the top of the bracket was well below where we knew (from prior discussions with her counsel) plaintiff was interested in beginning negotiations. Thus, both sides were equally unhappy. The judge concluded this introductory session by excusing us to meet separately with our clients. If both parties were interested in negotiating within the judge’s bracket, we should return after lunch and continue the settlement conference. If either party was not willing to begin in the bracket, we were instructed to so advise the judge’s clerk and we would be excused for the day.

What I liked about this approach was how it cut through a lot of preliminary posturing. While I would not recommend it for a paid mediator, it was effective coming from a USDC magistrate judge. Both parties reluctantly agreed to negotiate within the bracket and, several hours later, we settled the case.

One of the things the judge pointed out when he was apprising plaintiff and her lawyer of weaknesses he perceived in her case related to where the jury venire would be drawn from if we did not settle. Had the case been pending in state court, jurors would have been drawn solely from Fresno county, which apparently enjoys a healthy mixture of middle and lower middle class jurors owing to a university and, if not thriving, at least sustaining local agriculture-based economy.

But, because we were in the Eastern District federal court, our jurors would be drawn, not only from Fresno county, but also from several surrounding counties. The judge pointed out that jurors from many of these surrounding counties will have been struggling financially since before the recession. Jobs are scarce. Many of these jurors, the judge said, will not be particularly sympathetic to the notion that any person who was lucky enough to have a job would voluntarily chose to leave, regardless how bad the conditions were.

Whether this hit home for plaintiff or her lawyer I don’t know. But I thought it was a pretty powerful point. Forum shopping is nothing new and our opponent had unsuccessfully fought pretty hard against our removal of the case from state to federal court. But, if you find you’re in a venue in which the jurors are not going to easily receive your client’s theory or conduct, it’s important to factor this into your strategy and presentation.

How do you figure out if you’re up against this kind of “region bias” on any particular issue? I had spent some time looking at census statistics for Fresno, thinking I was gaining some understanding about our potential jurors, completely overlooking the fact that a district court draws from outside the county. There’s your answer, though. Find out definitively where jurors for your courthouse will be drawn from and analyze that entire region. A better approach, though, might be to retain local counsel (always a good idea, in my view, if the case warrants the cost and you can find reliable local counsel).

Whatever you do, it’s critical to find out where your jurors will hail from, and be perceptive to possible “region bias” issues that could impact your client’s success at trial.

*Of his “throw out a bracket” approach the judge said he would normally never “just put a number out there,” but he was pressed for time that day, as he had meetings and a hearing he had to fit in around our settlement conference. Ironically, throwing out the bracket was probably the most intelligent thing the judge did all day.

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Recognizing Your Limitations As An Orator (Admit It, You’re Not Cicero)

I’ve discussed here and here the wonderful primer on trial advocacy Lee Horton gifted to me before he retired. In his discussion on opening statements, he says this:

“In making our opening statement, don’t try to be something you are not. While it helps, you do not have to be a great orator to give an effective opening statement. Practice giving your opening statement until you can closely track your written statement with only a few strategic notes. Emphasize the key points with voice inflection and, where appropriate, by the use of an exhibit, reading a small portion of a deposition, showing a video excerpt or drawing a diagram. Most importantly, be sincere and to the point. If the jury finds you make your points and sit down, they will listen to you because they will grow to expect that the points you make will be important.”

I find this to be solid advice for two reasons. First it acknowledges a truth: that many trial lawyers are not naturally gifted speakers. We obviously come to the profession from a variety of backgrounds, some of which might have included training and/or practice in public speaking. But many of us had only minimal training and experience in persuasively presenting information to an audience of 6-12 before we passed the bar.

The good news is you don’t have to have been born with the gifts of a Cicero, a Churchill or a Kennedy to effectively try and win cases. What is important is that you present the information in a way that both engenders trust and permits the audience–the jury–to follow along.

The other reason Horton’s advice is so valuable is because it highlights how we gain trust from jurors by making only the most important points each time we speak. There’s only a limited window that most of us will pay attention and follow a lecture. Don’t squander that window of time with facts that are not crucial to winning your case. As Horton notes, if you follow this practice from the start, the jury will trust you not to waste their time and attention. Again, “they will listen to you because they will grow to expect that the points you make will be important.”

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Horton’s Second Rule For Success At Trial

I previously wrote about my experiences with a unique trial lawyer (and war hero) I had the pleasure of working with too briefly before he retired, Lee Horton. Lee gave me a copy of a primer he wrote with the goal of preparing young lawyers to try their first case. In the preface, Lee listed 4 golden rules on which he premised his successful career as a trial lawyer, focusing largely on air-crash cases. I already described the first rule. Here’s the second:

“I always want to know the four or five facts it will take me to win and the corresponding four or five facts it will take me to lose. I try to develop these facts as a Chronology early in the preparation of a case.”

Right off the bat I’m suspicious: isn’t this overly reductive? Sure it’s possible to reduce the “crucial” facts of a dispute arising from an intersection fender-bender or medical malpractice to four or five for each side, but how do you apply this rule to a complex commercial or intellectual property trial?

Some answers to this objection come to mind. First, bifurcation, or separate trials, of certain issues may be an option. In the event of a bifurcated trial, it is not unreasonable to expect that each separately tried issue can be reduced to four or five crucial facts. But I think a better way of looking at this point–and how I imagine Lee himself would answer the objection–requires a fundamental philosophical recognition that we are much more likely to grab and keep the jury’s attention if we do limit the crucial facts to be focused on to merely four or five, regardless whether the case is a fender-bender or Apple v. Samsung. If you’re preparing for trial and you can’t narrow the absolutely critical facts to just four or five, then maybe you should take yourself back to the woodshed and narrow your focus. Finally, if you really are getting ready to try an ultra complex case that cannot reasonably be reduced to four or five crucial facts, then give yourself the luxury of six, or ten, or whatever. The point is to focus.

Now, the issue becomes how to decide which four or five facts are most crucial? In my own practice, I begin with the jury instructions I expect will be given at the conclusion of trial. The elements of the claims and defenses identify the crucial facts. Many will not really be in dispute. But of those that are disputed, it should be possible to identify just a few that, if proven, will win or lose the case.

The other component of Horton’s second rule involves developing the facts “as a chronology.” I recognize that not every story is told chronologically, but I suspect jurors appreciate stories that are. I know I would. Think about it this way: if you knew you were going to be tested at the end of a movie about exactly what happened, would you prefer the movie to be more like Usual Suspects or Gone With The Wind?† Because we experience our lives as a chronology, beginning with birth and culminating with death (or amnesia), most of us can “follow along” better if a series of important events are told to us chronologically.

Lee Horton carries this “rule” of distilling the case to four or five crucial facts, told chronologically, throughout the remainder of his trial primer. At the end, in the chapter devoted to closing argument, he again echoes the rule:

“I have told you in each of these presentations (almost like a broken record) that, prior to trial, I have a well-defined theme that is consistent with the favorable evidence and deals with the unfavorable evidence. This theme is supported by three to five foundational facts. By closing, the jurors have seen me go to great lengths to weave this theme, and its factual support, through every aspect of the trial. A good closing should have a clear beginning, middle and end. The beginning should have impact and briefly recite the theme and the 3 to 5 facts that support it. It should be followed with a story-like presentation of the evidence, with several ‘impact points’ to keep their interest high.” (Emphasis added.)

It’s too bad Lee retired before I got an opportunity to second-chair a trial with him. It would have been a great learning experience, I’m sure.

†For the record, I am a HUGE fan of complex, nonlinear narrative in fiction (Infinite Jest, Alexandria Quartet) and movies (Memento, Pulp Fiction). But I try to leave that passion outside the courtroom.

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Bargain Basement-Priced Focus Groups To Help See Strengths and Weaknesses of Your Case

I’ve been really fortunate over the years to get the opportunity to observe first-hand how focus groups and mock trials can help trial lawyers refine their strategy and presentation of cases.  They can also be useful in trying to estimate a potential adverse verdict range.  I say “fortunate” because the expense of these exercises generally renders them impractical to all but large institutional clients.  It was only because my firm represented such clients that I was able to get this first-hand experience.

Because I believe mock trials and focus group research are invaluable tools for any lawyer facing an upcoming trial or trying to understand how a real jury will value a case, I don’t think these exercises should only be available to huge businesses with deep pockets.  Instead, I believe there are far less costly alternatives to retaining a first class jury research firm which can produce results that are equally useful.

The first step is to figure out what you’re looking to get out of the exercise and how much you can reasonably spend.  I’m most familiar with the mock trial exercise, so we’ll use that format.  This requires, at a minimum, a suitable space and mock jurors.  “Suitable” space means a space that is sufficient to accommodate your jurors for presentation and deliberation purposes.  If, as I suggest, you simultaneously use two separate mock jury “panels,” it is helpful to have an additional room for the second panel to separately deliberate.  Suitable also means private.  While I always conceal the true identities of the parties, the case presentation, deliberations or post-trial mock juror “download” session should never be held in a public place.  Confidentiality issues aside (you don’t want your opposition to know you did this research), the environment should be as free as possible from unnecessary distractions.

Mock jurors–where to find them?  If you contact a jury research firm they will swear up and down that the exercise cannot be done without careful efforts to proximate the expected composition of your jury.  This may be sound reasoning, but it is unrealistic if you are trying to do the exercise on the cheap.  I’ve participated in several mock trials where we worked instead with a staffing agency to compose the mock jury with folks that approximated, as best as we could, what we thought the jury would look like.  Be prepared, not only to compensate the mock jurors for their time, but also to provide parking.  Thought should be given to providing food, assuming the exercise is going to last more than 3 hours.  It may seem cheaper to release the jurors to eat somewhere else, but valuable (i.e., expensive) time will be lost waiting for one or two stragglers to return from lunch.

If your budget just will not accommodate paying a staffing firm, you’re still not precluded from doing the exercise.  However, you still must find jurors from somewhere, which means employees, family and friends.  This might mean biases will come into play.  While unavoidable, this biases must be “factored into” the results of the research.

If the budget makes it possible, I highly recommend involving a jury consultant.  While some research can be done without one, it will be far less focused and productive.  The jury consultant will provide input on hiring the mock jury pool, draft appropriate questionnaires, frame the analysis, conduct the session(s) and oversee both the deliberations and post-trial debriefing.  Crucially, a good jury consultant will help synthesize the information gleaned from the exercise.  After all, jury research is most valuable if the data gathered is distilled into a set of useful conclusions.

To provide a concrete example of how this might work, my last mock trial  lasted one full day.  The mock jurors, hired through a local staffing service, arrived at our offices at about 10:00 a.m.  They were given a questionnaire not dissimilar from the type of questions a real jury might be asked in voir dire.  My colleague then presented an abbreviated plaintiff’s opening statement and I presented the defendant’s statement.  Another round of questionnaires followed, asking the mock jurors their initial impressions after hearing what the lawyers “expected to show.”  Each side then presented about one-half hour of “evidence.”  This was obviously highly abbreviated, but it included snippets of videotaped deposition testimony, readings from important documents, as well as other demonstrative evidence.  Some evidence was presented simply as “facts to be assumed.”  Another round of questionnaires followed, the jury deliberated for one hour and then we held a debriefing session.  Somewhere in there we excused the mock jurors for a brief lunch break.

Most interesting and informative was the post-trial debriefing session.  Certain important facts had been purposely withheld from presentation during the mock trial.  These were then revealed incrementally.  This allowed us to understand how a particular good or bad fact might impact the jurors’ deliberations.  We made major shifts in our theme and presentation at the actual trial (which we won!) based solely on the feedback we received during the debriefing.

There are countless variations on this approach.  You can eschew the evidence presentation and simply read facts the jurors should assume.  You can present a live, abbreviated examination of one or more witnesses, to see how they will likely be received.  There are situations in which both parties to a dispute conduct a mock trial as an ADR method to aid in settlement negotiations.  The point is that a party is not precluded from doing meaningful pretrial jury research simply because he/she/it cannot afford to spend tens (or hundreds) of thousands of dollars for the exercise.  In fact, here’s a secret: I have it on excellent authority that some of the best trial firms in the country always do pretrial jury research and often do it on the cheap, regardless of the client’s wealth.

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Jury Foreperson Was One Smart Cookie: Simple Takeaways From The Apple v. Samsung Trial

Bloomberg TV interviewed Vel Hogan, the foreperson of the jury in the recent Apple v. Microsoft patent trial, which returned a $1 billion verdict in Apple’s favor.  Undoubtedly future jury consultants will anchor entire PhD theses on this trial.  I don’t pretend to have the education and experience to do any kind of in-depth analysis.  But a few interesting points can be quickly gleaned from the interview.

Takeaway Number 1: Vel is smart.  But not just intelligent or wise.  He possesses the kind of intelligence, training and knowledge necessary to grasp much, if not all, of the technically sophisticated evidence presented during a patent trial.  According to my crack internet research, Hogan is VP of Engineering for Multicast Laboratories.  He holds patents and has been a member of the Silicon Valley tech community for over 30 years.  I would think most patent lawyers would be heartened to know jurors of Vel’s intellect are out there, available to be impaneled (particularly if your trial is conducted in a venue rife with tech engineers).  He said in the interview that the jurors were “inundated” with evidence.  Someone less intelligent or uninterested in technology could easily have been overwhelmed by the evidence and, rather than considering and re-considering the evidence–a great deal of which was highly technical — reached a verdict instead based the cut of John Quinn’s suits or because they like Apple’s TV commercials.

On the other hand, for the reason I am about to discuss (in Takeaway Number 2), many trial lawyers might be fearful of a juror of Vel’s intellect in this kind of case.  Purely from the interview, it does not appear Vel had any bias going into the trial or deliberations.  He owns no Apple products; his wife has a Samsung phone, but it’s not a smart phone.  If he had any bias that he concealed during voir dire, but that he brought into the jury room, it could have been a problem.  Why?

Takeaway Number 2: Vel served as a torch-bearing guide to most of the other jurors.  I speculate that it took the other jurors no time at all to select Val as their foreperson.   They knew from voir dire that he was a techie.  They probably paid attention to his expressions and slightest comments throughout the trial.  If/when he took notes, they either wrote notes themselves or wondered what they had missed that was so important.  He said in the interview that they started deliberations with a question and answer session, trying to clear up confusion some of the jurors had about certain issues.  Vel was thus their teacher, and their trusted guide in a way that none of the lawyers or witnesses could have been.  I suspect this was particularly true because I read about (and Vel Hogan alluded to)  Judge Koh’s frustrations with the lawyers for both sides throughout the trial.  The judge’s scoldings likely eroded the jurors’ confidence in the lawyers to guide them through the trial.  Thus, as a knowledgeable, likeable, apparently objective teacher and guide, Vel Hogan’s ability to influence the outcome of the trial was enormous.

Takeaway Number 3: Vel took the legal questions home with him and continued to deliberate.  He alluded during the interview to an “Aha” moment he had one night during the deliberations.  Before that, at the outset of the deliberations, he thought the verdict would likely be in Samsung’s favor.  But there was a single point that he struggled with (whether the No. 460 patent was invalidated by prior art).  He said that, after he internally resolved that struggle and decided he could defend the patent if it had been his own, much of the remainder of the deliberations went smoothly.  I speculate (with extra emphasis on that word) that the deliberations thereafter went smoothly because Vel, as the torch-bearing guide and teacher, had made his decision.  All that remained was for Vel to explain his own reasoning to the others.

Takeaway Number 4;  The jurors worked in a systematic fashion to reach their conclusions.  Several comments during the interview suggested that the deliberations were indeed deliberate.  They addressed the “simplest things first.”  If they hit a bump in the road, it would not derail their progress.  Rather, they suspended judgment on that point and moved on, with the plan to re-address the bump in the road informed by the outcome of their other deliberations.  In this way, they navigated their way (with their torch-bearing guide) through a veritable morass of evidence and instructions.

The interview is worth watching.  If I’ve mis-paraphrased Vel’s comments, please let me know.  I struggled with embedding the code, so the best I can offer is a link: https://bloom.bg/OkRkhk.

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What If The Jury Simply Cannot Comprehend The Subject Matter

I cut my teeth as a young lawyer doing almost exclusively automotive product liability defense.  What always amazed me, particularly in cases involving extreme tragedy (death, disfigurement, paralysis), was how the automobile manufacturers took these risky cases to trial–and won!  How was it possible to convince a jury to look beyond the tragedy and extreme suffering, consider the evidence about the design of a crucial component, understand that evidence, and return a verdict for the manufacturer?  Particularly puzzling for me was the fact that, as we neared trial, even I still did not completely understand the technology, and I was a reasonably educated person who had been living with the case for several months.

A very distinguished trial lawyer answered this question during a pretrial presentation to our client of one particularly challenging case.  He said that, in his experience presenting these cases to juries (and mock juries) all across the country, then debriefing the jurors after trial, it is clear that much of the technical nuances escape most jurors.  No amount of careful teaching with brilliant demonstrative exhibits can make a person with a high school education or less, who has never worked in the automotive industry and, frankly, doesn’t care much about cars at all, understand a component, and comprehend why a company chose design A over design B.

What does matter to these jurors, he said, is seeing the lengths to which the manufacturer went to understand what occurred and how the plaintiff suffered her injury.  If something failed, jurors like to understand how and why it failed, and particularly why a safer alternative design wasn’t available or why the design advocated by the plaintiff’s expert wouldn’t work or would have produced the same (or even worse) result.  This is why it’s so extremely expensive to take these kinds of cases to trial, particularly when it takes one or more full-fledged crash tests, using identical automobiles, to understand exactly what happened.

A corollary is that jurors appreciate learning how hard the manufacturer worked, and how carefully the component was tested, to assure that the car was as safe as possible for the driver and her passengers.  To the extent this can be woven into a story, with witnesses who do not drone on for days, the chances of keeping jurors awake to hear the ending improves.  I like to think this principle can be equally applied to any context  in which jurors are going to be asked to evaluate highly technical evidence.  It becomes less about how or why something works, and more about how much the defendant cares about learning what really happened in a given case.

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