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(323) 652-9451I 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.
Having the time and inclination to prepare as much as necessary–even over-prepare–really is a great equalizer when it comes to the trial lawyer’s craft. I had the good fortune to practice for a brief time with a distinguished aviation trial lawyer, Lee Horton, who gifted to me a primer he wrote years ago to help young associates learn how to try a case. In the Preface to this primer, he wrote:
“Whatever success I have had as a trial lawyer has been based on the following very simple rules. These are: 1. Recognizing that there are a lot of people smarter than I am, but only a few that can outwork me.”
I am saving the remaining 3 rules from his primer for future posts. But when I read this first rule I found it to be a comforting revelation. I rarely hold the opinion that I am the smartest guy in any room. But when I remind myself of this first “Horton Rule,” I am empowered with the notion that there is an additional X factor that I alone control: how much time and effort I devote to being the better prepared lawyer in the (court) room.
It can be difficult to know precisely how much preparation is necessary. I find that the first time I do anything I tend to heavily over-prepare. For example, I do not frequently argue before appellate courts. However, a few years back an opponent appealed a favorable ruling I obtained on an anti-SLAPP motion. Fully briefed, it came time for oral argument of the case. I knew that I would want to over-prepare because only then would I feel ready for my first appellate court oral argument. I also knew I didn’t want my client to bear the financial brunt of this need to over-prepare, so I queried a few of my partners who had more appellate experience about how long they would typically spending preparing for such an oral argument. While I ultimately spent about three times as much as my partners suggested, I only billed the client for a third of my time.
We can learn from other disciplines about how much preparation is enough. I studied piano as an adult, and my teacher had attended the Moscow Conservatory and often shared stories from his time learning from one great master or another. He once described how hard he would work to prepare for a solo performance: when he thought he had memorized every nuance of a piece he would set his alarm to go off in the middle of the night. He would wake from a deep sleep, go immediately to the piano and play the piece. Only when he could literally play the piece, including every nuance, while still half asleep did he know he was really ready to perform.
There are multiple ways in which excessive preparation can be a weapon. I have learned from judges and mediators that the party whose counsel is better prepared is always at a distinct advantage in a pretrial mediation or settlement conference. On the other hand, there is no rule that says you have to make your opponent aware how prepared you are. I am a great believer in treating opposing counsel as a mushroom (i.e., keeping them completely in the dark) when it suits my strategy. Sometimes I want the element of surprise that comes from not revealing how prepared I am until it’s too late for them to catch up.
Is there such a thing as over-preparation to the point of diminishing returns? Undoubtedly. The key is to have enough lead time to accommodate the preparation you need without sacrificing your health, including mental health. Like most everyone, I pulled the occasional all-nighter in college and law school. But it was exhausting then, and it would be really exhausting now. Definitely not a good way to start a trial.
In case this term is foreign to you, a “running objection” is sometimes offered by a party taking a deposition (or during a hearing or trial) when it appears that they are going to repeatedly encounter the same or similar objection. Here’s an example of how it would arise:
Examining Attorney: “Why did your supervisor finally decide you should receive discipline?”
Defending Attorney: “Objection, calls for speculation, lacks foundation.”
Examining Attorney: “Counsel, why don’t we just agree you’ll have a running objection, so you don’t have to keep interrupting?”
Defending Attorney: “Thanks for the offer, but I would prefer to address each question separately.”
There are probably a wide variety of reasons why attorneys offer running objections. I’ve even done it. First, on the surface they would seem to streamline the deposition process, saving both time and money, since each individual objection consumes time and transcript space. Why not give/take a running objection and cut down on the interruptions, shorten the deposition and transcript?
But I almost never accept the offer if I’m attending or defending a deposition. Why? First, while I’m not interested in impeding the search for truth, I don’t view my job at a deposition to include making the examining attorney’s job an easy one. If he/she asks a crappy question, it’s his/her fault, not mine. If this results in repeated or even frequent objections, then he/she should hone his/her deposition skills. It’s not my goal to interrupt the examiner’s flow–which is inevitable every time I make an objection–but it is an incidental benefit of objecting to protect the record. If the examiner want’s to reduce the incidence of these interruptions, he/she should ask proper questions.
Second, the principal purpose of making an objection is to preserve the objection so the judge can later consider it and make a ruling if the deposition transcript is used at trial (or as evidence in another capacity, say in support of a motion for summary judgment). The examiner has a choice, upon receiving the objection. He/she can push forward (assuming there has been no instruction to the witness not to answer) and require the witness to respond. Or, he/she can consider the objection, conclude it may have some merit and rephrase the question. The benefit to me, as the attorney representing the witness, is that my witness will potentially get a proper question. This is important where the objection to the question is that it is vague and ambiguous. While such an objection may not be ultimately sustained by a trial judge, it might prompt the examiner to rephrase the question so that my witness is responding to a question that is less vague, less ambiguous.
Finally, it can be cumbersome to obtain a ruling on a running objection. For example, in the context of an all day deposition, imagine I accept the offer of a running objection at 11 am, which ends up on page 45 of the transcript. The examiner continues to ask objectionable questions for the remainder of the day, but I stay mum based on the running objection. Later, the case proceeds to trial or a motion for summary judgment is filed, and a bad, objectionable question from late in the day is about to see the light of day. I want to obtain a ruling on the objection, but it becomes a cumbersome exercise, as I have to point the court back to a much earlier part of the transcript, where I obtained a running objection.
This is not to say that running objections are a bad idea. I just prefer, if I am defending a deposition, to deal with each question individually. If you do agree to a running objection, be sure to remain vigilant. If a question is objectionable for an additional reason not addressed by the running objection, it is important to raise the additional objection or risk waiver.
An illustration that’s closer to home. A little over a year ago, I had to seek an emergency continuance of a trial because I had been diagnosed with a detached retina which required immediate surgery and a month of recovery. One of my colleagues, knowing our judge well, said he thought there was only a “50/50” chance the judge would grant the continuance. This meant he thought there was a 50% chance the trial would not be continued!
I’m not sure how I could have simultaneously undergone invasive eye surgery and made an opening statement, but you can imagine how important it was to me that the judge grant my application for a continuance. Not only did I explain in my declaration, step by step, how my vision had rapidly deteriorated over the last few days causing me to insist on an emergency appointment with my doctor, I also attached a doctor’s note (which I had to basically dictate to his assistant) and a series of articles from the internet discussing my condition, how emergency surgery is required to avoid almost certain blindness, and how my head would need to be positioned face down during the recovery period. Fortunately, the judge granted the requested continuance, my surgery was successful and I won the trial! The point is to never assume the judge understands and will adopt your position just because you say she should–it’s crucial to explain why.
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.
Because my finger is ever tapped to the thumping pulse of civil procedure in our fine state, it only took me slightly over a month to realize there’s a new and improved way to lose your right to a trial by jury. Still, I’m guessing that this will be news to some, hence the post.
Senate Bill 1021 was apparently signed and has already been made effective in at least some California counties (at least San Francisco and Los Angeles). This amends Code of Civil Procedure Section 631 to provide that, where the deadline to post jury fees had been 25 days before trial, a party now risks waiving the right to jury trial unless he/she/it posts $150 in nonrefundable fees no later than the initial case management conference (CMC). If there is no CMC held in a case, the deadline becomes 365 days after the complaint is filed. For parties entering a suit after these deadlines have passed, the old 25 day before trial rule applies. Thankfully, Section 631 retains the provision providing a court discretion to grant a jury trial to a party that arguably waived that right though failure to pay.
I can’t pretend to be surprised that the state is looking for new sources of revenue. Forcing parties to post fees sooner and making the fees nonrefundable is one way. It’s getting more and more expensive to sue or be sued (assuming you want a jury). I’m reminded, though, why transactional lawyers are glad to hand off lawsuits to litigators–our practice is so filled with dread-inducing deadlines.
In his book, Litigation, Professor James McElhaney laments the fact that civil litigators are horrified at the prospect of a blind cross-examination. As a result, he argues, “[e]very year we spend millions of dollars on needless depositions of ‘witnesses’ who have little to say and nothing to add about the cases in which they would never be called to testify anyway.” But we depose them, he suggests, because we’re scared to death of asking a question to which we don’t know the answer.
In Litigation, he provides some suggestions to civil litigators who, despite their best efforts, find themselves in a blind cross-examination situation. One of these, which he terms “Duck facts,” I particularly like.
Duck facts refer to things for which you don’t need proof. “If it looks like a duck and walks like a duck and quacks like a duck, it’s a duck.” The classic example of this is where the witness tries to testify to something that makes no sense at all. McElhaney’s example is pretty good:
“Q. You say Schultze didn’t throw the bowling ball at Malone?
A. No way. He just dropped it. It was an accident.
Q. So Schultze just dropped the bowling ball?
A. That’s right.
Q. And then it just rolled onto Malone’s foot?
A. That’s right.
Q. Uphill?”
For those of us who continue the practice of deposing every conceivable witness, practicing duck facts questions, and looking for duck fact opportunities will surely sharpen our skills. I keep waiting for that case where the client forbids me from conducting any pretrial depositions and forces me to go to trial “cold.” I’ll get to practice my blind cross skills in real-time.
In an August 3rd profile of high-end family law practitioners Daniel Jaffe and Bruce Clemens, the Los Angeles Daily Journal quoted these lawyers as citing five important areas for litigators:
“A lawyer has to know people, know financial issues, know the law, know how to try a case and know how to settle a case. . . It seems obvious, but there are very few lawyers who have high skill levels in all five. If you don’t have all five and the other side does, your client is at a disadvantage.”
Does your lawyer have all five? I like to think I’m solid on four of them, but complex financial issues–for which an accountant would be required anyway–may not be my forte. Of course I don’t practice family law.
Learn MoreI 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.
Learn MoreA great recent post at What About Clients? highlights a policy that will benefit most trial lawyers. Basically, no later than 60 days before trial, take a fresh look at everything. Here’s how it goes:
“[N]o more than 60 days from trial, read over and take a proverbial bath in all of the written discovery responses and–if time permits–every deposition transcript in the case. Work through the materials relatively quickly but as thoroughly as you can. In particular, do one good read of any deposition you did not take yourself. And of all written and signed discovery responses (you can skip the documents). Go back to the start of the case. Do not rely only on deposition summaries or on outlines of direct or cross examinations prepared by others. The process of “immersing yourself” in all the discovery will suggest new sub-themes, patterns, weak points and even a new fact or two in your opponent’s case that meant little to your side when it was first produced. Now discovery will take on new and instructive meanings. Having gone through that exercise, you will be steeped in the case. You’ll have knowledge that will give your examinations of witnesses credibility, authority and command.”
This alone is a great idea. But I think the review could be an even more meaningful exercise if it is informed by what you’re going to do with the evidence you find. When, for example, does it make the most sense to highlight a piece of particularly powerful evidence? I like to have copies handy of the most important jury instructions I expect will be given at trial. This way, as I’m taking a bathin the evidence, I can develop a plan where the evidence will be best presented. It also gives me a head start on how I’m going to structure my closing argument, where I take the jurors though each element of a claim or defense and show how the evidence proves or disproves a particular element. I like to think this is a great idea made even better.
Learn Morehttps://youtu.be/fgIBG8q1Gjc
In this clip from A Few Good Men, two Marines are on trial for a murder on their training base. The Marines’ defense is that they were ordered by officers to give the decedent, a fellow Marine, a “Code Red,” which is a violent training “tool” used to bring errant Marines in line. The decedent was killed during the performance of the Code Red.
The prosecution (played here by Kevin Bacon) wants to poke holes in the whole notion of a Code Red. When another Marine from the same unit is on the stand, Bacon cross-examines him with two books, The Marine Outline for Recruit Training, and the Standard Operating Procedure applicable to his unit. Bacon elicits admissions that the term Code Red does not appear anywhere in either manual, thus making it seem like something the defense has cooked up or exaggerated.
The defense (played by Tom Cruise) deftly resuscitates his witness by using the same Standard Operating Procedure and asking the witness to locate where in the manual it explains where the mess hall is located. Of course the manual makes no reference to the mess hall, either, crisply illustrating the fallacy behind the argument that a Code Red must be a fiction if not officially recognized in the Marine training manuals.
Oh, and sorry if this contained a spoiler. The movie has only been out for like 25 years.
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