THE TRIAL LAWYER: WHAT IT TAKES TO WIN, SECOND EDITION (ABA 2018)
The Trial Lawyer: What It Takes To Win, Second Edition
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(Editor’s Note: Litigation is published by The Journal of The Section of Litigation, American Bar Association. This volume was subtitled “Perspective.”)
The Atlantic is calm today. The beach, rearranged by a tropical storm, is incredibly wide and white. Before I cast, I use pliers to clamp down the barbs on my hook. That makes it harder for me, but easier for the fish. It also forces me to be a better fisherman.
So it is with my practice. Over the years, I have learned to clamp down the barbs during trial. Early on, I cross-examined everyone like they were ax murderers, including old ladies and schoolteachers: “Exactly what do you mean, you were tending your roses? And quit fiddling with your oxygen tank.”
Now, I try cases by using my opponent’s strength and my own, more trial by aikido than by judo. The reason is simple: jurors don’t like constant confrontation. They don’t like it in their personal lives, and they tire of it quickly in a courtroom. Trial by aikido recognizes that. During voir dire, we encourage “bad” answers, using them to enlighten our strikes. During opening, we embrace undisputed facts, good and bad, arguing only about the rest. During direct, we all but disappear, trusting the client to tell the story. During cross, we welcome even unresponsive answers, turning them on the witness. During close, we tie it all together.
Let me be clear. We still have to command the courtroom. We still have to crush our opponents- especially if they are tall white men, the sum total of my personal moral code. We cannot do that with tender sensibilities. The object of the exercise is still a very large, very dead fish. But better to do it sotto voce than bellowing; better to do it by aikido than by judo.
During the past 30 years, I have tried cases from the austere courtrooms of South Texas to the marble-and-mahogany grandeur of the Eastern District of Virginia. I still cannot walk into any of them without feeling grateful for the opportunity; I have been that lucky. In the 1960s, I defended young people prosecuted for flag burning or marijuana possession. During the 1970s, I tried criminal cases, including defending a woman acquitted of using a chain saw to dismember her husband, who, I feel confident, had really irritated her. In the 1980s, I tried white-collar cases and once, with Morris Dees of the Southern Poverty Law Center, shut down the Ku Klux Klan’s paramilitary training camp and enjoined them from harassing Vietnamese fisherman. During the 1990’s, my practice primarily was personal injury and complex commercial cases, most recently the defense of a patent-infringement case involving a billion-dollar line of business.
This article includes much of what I have learned, the pure culture of what I know about trying lawsuits. It was written with the hope of making lawyers, especially younger ones, less reluctant to go to trial. It was also written out of the fear that the great war stories of the next generation of trial lawyers will sound something like, “And then, I looked that mediator in the eyes and said ….”
Everyone knows the vast majority of lawsuits get settled. Nonetheless, the only way to get better settlements than other lawyers is to have a track record of trying cases and getting good verdicts. That means preparing each case as if it were going to trial, never clenching a fist without being prepared to throw it. Besides, word gets out fairly quickly on lawyers who won’t try a lawsuit. Inevitably, their clients pay more, get less, or go to jail for longer periods of time. This article is for them, too-litigators who aren’t-with the intention of encouraging these otherwise talented attorneys to announce, “Ready for trial.” The examples, sometimes blurred for confidentiality, come from real trials, focus groups, summary jury trials, and a lawyer’s memories, excluding for reasons of modesty the juries that leapt from their seats, cheering and chanting his name. (You don’t know-it could have happened.)
A trial is a continuum, beginning with the first meeting with the client and ending only after the final word is spoken in closing argument. From the start, experienced trial lawyers size up Exhibit A, the client, silently asking, “What will the jury think?” and “How can I help him become a believable witness?” and” Good Lord. Is that a pinkie ring?”
Like good doctors, the best lawyers take detailed histories about their clients’ lives in addition to the facts of the case. Almost always, we can use that information during trial. Once, when I had been in practice less than a year, I listened from the back bench of a Harris County courtroom as Richard “Racehorse” Haynes, Houston’s fabled criminal lawyer, conducted voir dire in an attempted murder case. He represented the heir to a Texas cattle empire accused of brutally assaulting a neighbor in a dispute over the borders separating their ranches and, more important, of saying ugly things about the defendant’s momma. A panelist said she knew the defendant from church. Without hesitating, Haynes asked, “Would you then be incapable of fairness to the prosecution because you are aware of my client’s involvement at First Baptist, teaching Bible class, taking the scout troop to Mexico, that sort of thing?” She actually said, “Well, sir, that’s not the only reason I couldn’t be fair. I also know how well he treats his momma, and I cannot believe a man that kind could hurt another soul-not without a reason.” The trial was over. Haynes had disclosed the defendant’s church life to a Bible Belt jury, and the panelist had gone one better. The defendant was acquitted in an hour, despite having stomped a mud hole through his neighbor’s solar plexus.
I followed Haynes to trials frequently during those first years, until I could no longer afford the luxury of languid afternoons at the courthouse, his sonorous voice capturing the jury and my imagination. As I look back, what he did that day-humanizing his client-is essential to winning any case.
As plaintiffs, we tell a story. As defendants, we destroy that story and, if possible, tell a more plausible one of our own. That is true of any trial, including criminal cases where we don’t even put on evidence. Our job is to persuade. Simplifying the story, telling it with absolute clarity of thought, is the key to convincing jurors of anything. Only the journeyman consoles himself that the jurors didn’t understand his case. If they didn’t get it, he didn’t explain it.
Drafting a jury charge before the first deposition always helps. It forces us to ask questions in the very words and concepts jurors use to reach their verdict. My wife, Kathryn, once got a plant manager whose employee accidentally shot and killed our client’s wife to admit that “. . . allowing our employee to carry a weapon was the proximate cause of the shooting and Mrs. Uribe’s death.” She had first taught him the meaning of “proximate cause,” then helped him to make a ruinous admission using the language he’d just learned. That, and 60 Minutes asking to put cameras in the courtroom, assured an extraordinary settlement.
In the days before trial, streamline your case. Eliminate witnesses and documents you don’t need. Create a lineup of the witnesses who remain and the evidence you will put on through each. Your case will only get better.
Settlement talks have failed. The judge rejects defense counsel’s sixth motion for continuance because America does not celebrate St. Swithin’s day. Finally, the panel shuffles silently into the courtroom. It is an awkward moment as you rise to address them, like a mass blind date. In most large cities, you don’t know them and they don’t want to be there.
“Who is he to Hecuba or Hecuba to him?” asks Hamlet, in wonder, about an actor’s ability to connect with a fictional character. Our job is even more difficult: we don’t even get a dress rehearsal. We have to connect with a group of strangers on the first day of trial or, in all likelihood, lose. But what an incredible opportunity. We get to talk about the essential issues in the case with the people who will decide it.
If we are successful, they will be emotionally committed to our themes and open to our evidence. They will even rationalize our client’s bad behavior. To accomplish that, jurors have to trust us. Mislead them about single significant matter and that trust will be broken beyond repair. Try promising that a defendant will waive his Fifth Amendment right and take the stand and then, thinking you’ve got the case won, fail to put him on. Criminal lawyers call these clients “appellants.”
The major purpose of voir dire is to determine juror attitudes about our themes, so that we can make informed strikes and challenges for cause. The most effective way to get the panel talking about things that matter is to ask open-ended questions, never attempting to drive them to our conclusions. Lawyers who ask, “Can you follow the law on fraud?” and follow up with “I take it by your silence you can” have learned nothing about the jurors, except that they are so bored by his voir dire they won’t even answer. On the other hand, if you give them the chance, panelists will develop your themes, which you can immediately link to the facts of your case. That gives you a mini-closing argument before trial even begins.
If you want a big verdict, jurors’ hearts have to race when you talk about your case. If they identify emotionally with your client, they will reward him and punish his enemies. I recently represented an investor who sued a developer for defrauding him out of millions of dollars in an office building syndication. Fraud may be a powerful concept to lawyers, but that’s all it is to jurors-a concept so far removed from their everyday lives it will have no impact. At the heart of every fraud is a betrayal, however: something everyone has experienced. Early in my voir dire, I said just that:
At some point, all of us have been betrayed. Someone we trusted has stabbed us in the back. Now, I don’t want you to tell me the facts, but will someone tell me how you felt when that happened to you, or, to someone you know?
Hands shot up. Before it was over, a woman told me in tears how devastated she was when her brother borrowed $350 to pay some medical bills but gambled it away. That was our case in microcosm, a perfect opportunity to link our facts to her betrayal. I acknowledged there was a world of difference in the amount of money involved but insisted they had been treated the same.
Both were deceived by someone they trusted. In this case, the defendant promised to use the money in his office building business. Instead, he spent millions on jewelry and European trips and even bought a thoroughbred horse. He stole millions more paying back personal bank debt. He stole $2 million the day Ted’s company funded the investment. Almost every penny was lost. You tell me the difference. Weren’t they both betrayed?
The jury returned a verdict worth $52 million with interest, a handsome sum even for a Texas plaintiff.
What sinks many defendants is their predictable litany of “yeah, buts” and, sometimes, the arrogance of their attorneys. Being down to earth is a huge asset. Why do you think David Boies wears those polyester suits? Because he likes them? (Don’t answer that. I was just trying to make a point.) In that fraud case, for example, talking to the venire about the plaintiff assuming the risks of the marketplace is a waste of time. Instead, defense counsel should strike an emotional chord: “Have any of you lost money in an investment?” “How did you feel when you lost that money?” “As disappointed as you were, did you hire a contingency fee lawyer to get it back?” “How do you feel about someone suing just because they lost some money?” If jurors decide the plaintiff and his lawyer are greedy whiners, you will win. Your client will walk out of the courtroom the same rich cheater he always was. (Sorry, I may be pro-plaintiff.)
A few years ago, I tried a case in Bay City, Texas, in which my client, Westinghouse, was accused of selling defective nuclear steam generators to the South Texas Nuclear Power Plant, leaving its citizens somewhat agitated over the prospect of a nuclear winter. The plant was the largest employer and taxpayer in Matagorda County. The county itself had been recognized in the Wall Street Journal as the home of the largest verdicts in the nation-scant comfort to my client. Prior to sending out jury notices, the sheriff removed anyone from the list who worked for the plant, leaving 250 of their closest friends and relatives to fill the cavernous courtroom.
So I told the panel I was worried. “The power plant has sued Westinghouse for $800 million. As you know, the plant is the largest employer here. It pays a lot of taxes and supports a lot of activities, like Little League teams.” I turned to a pleasant looking man in the front row, one of the few who owned his own business. I asked if he ever worried about being sued, and he answered, “Yes, everyone does.” I continued. “I want you to assume you had a business dispute with Westinghouse and they sued you for millions of dollars-in Pittsburgh, where the company is headquartered. They have thousands of employees there. And when it came time to select a jury, many of the people in the pool had relatives and friends working for Westinghouse. How would you feel?” The entire panel was listening. Westinghouse’s general counsel leaned forward. Unmentionable things were being puckered throughout the courtroom. The juror smiled. “I’d be scared to death. I could lose my whole business.” With the help of the venireman, I had used the plaintiff’s greatest strength, the location of the trial, to increase my own. Men kissing men is generally frowned on in Texas, and, on occasion, bailiffs have shot lawyers for less. I moved on.
It was critical to put a human face on my corporate client. I had several Westinghouse engineers and scientists sitting in the row just beyond the venire. Some of them were coatless, some of them sported pocket protectors, and most of them looked scared. Holding a hand mike, I walked through the swinging door of the bar that separated me from the jury, down the aisle to where they were now standing. Putting my hand on the shoulder of the one closest to me, I explained that not only were they there at the inception of nuclear power in our country, but they helped invent it. Then I had each man introduce himself and talk briefly about his family and field of expertise. “These are the men who designed and helped install much of the equipment in the power plants. They are very proud of what they have accomplished. The suit may be against their employer, but they are the ones accused of fraud.”
Turning back to my friend on the panel, I asked, “How do you think these guys feel?” Without hesitating, he said, “They have to be scared.” “Why?” “Because they don’t know if they can get a fair trial here.” “Is that fear justified?” He hesitated-these were his neighbors in the courtroom-but admitted finally, “I think it might be tough.” We now had the next best thing to our failed motion for change of venue-potential jurors psychologically committed to proving that Matagorda County could be fair to defendants, a quaint if little-honored tradition in that jurisdiction.
Next, I walked up the aisle to question a lady in the middle of the second row. I was looking for a juror to establish that this lawsuit was at best premature, a theme that worked in our focus groups. I chose her because she had four school-age children and her husband was a working man. That meant a personal relationship with a washing machine. “Mrs. Graham,” I guessed, “do you have a Maytag?” She said, “Yes, sir. Thirteen years and it’s still working.” I said, “Mrs. Graham, come on down,” and she joined me in the aisle. “Well, surely there is something wrong with it by now. Why don’t we get Maytag to give you a new one?” She replied, “No, sir. Don’t want a new one.” “Well, how about some new parts. Surely you can say some of them need replacing by now.” She looked annoyed. “Yes, sir. Some did. But Maytag done brought me the parts. And installed them. Works just fine.” “Now, wait. Don’t you want to file a lawsuit? I’ll get you some money.” She looked offended. “No, sir.” “Mrs. Graham, is there another way of saying why you don’t want to mess with that washing machine?” “Yes, sir.” If it ain’t broke, don’t fix it.” There it was, our basic theme, stated in a way that the jurors would remember every day as they looked at their own appliances.
I spoke to the entire panel. “What Mrs. Graham has said is our case. The power plant is performing so well that this county is now second in the world in producing electricity.” They looked like I had just announced that Bay City had been selected to host the summer Olympics. I continued. “When the plant needed parts to be replaced, Westinghouse replaced them. Millions of dollars worth. The generators ain’t broke and if they ever do, we’ll fix them.” Then, because the trial gods labor to prove you’re an idiot, I added, “Westinghouse has been around more than a hundred years. The company’s not going anywhere.” Nine days later, Westinghouse bought CBS and promptly disappeared from the American scene.
Jury selection is also an exercise in other people’s bigotry. My co-counsel (and fellow author in this issue), Jim Quinn, is from New York City. How would he play to this South Texas jury? Deep into voir dire, a man asked an esoteric question about nuclear waste. I, of course, had not the slightest clue what he was talking about. With no warning, I said, “Jim, why don’t you answer that one?” Then I introduced him. “This is my co-counsel, Jim Quinn, who, despite being from New York, is a relatively decent human being. He’s going to try this case, too, so I want you to get to meet him.” I settled in with the panelists, curious to see if Quinn had Texas-sized anything.
Jim wriggled the hand mike free and walked around the lectern, leaning against the plaintiff’s counsel table. After a long moment, he said, “Howdy, y’all. How ya dune?” Well, buckaroos, they say you could hear the “yee-haws” all the way to Mount Pleasant. “Do I sound like a Texan?” he asked, and they roared. Now, Quinn claims I fake sincerity better than anyone he has ever known, but folks, that day he was really on. He immediately told the heavily Hispanic, predominantly Catholic jury pool that he had gone to Notre Dame. When he got to a story about Sister Ignatius, his favorite high school teacher, even I felt shame for him because the man obviously had none of his own. The jury loved him. Of course, he never answered the man’s question. And I never mentioned I also am a member of the New York Bar.
There are no bad answers during voir dire. Panels aren’t poisoned, for example, because someone says she can’t give punitive damages. While defense counsel thinks you are playing into his hands by discussing her opposition to punitives, you are actually doing the opposite. You are learning something that really matters about a potential juror. You also encourage others to speak more freely about their feelings. Without rancor, demonstrate how unreasonable her views are: “Are there no circumstances under which you could award punitives?” Ask if anyone disagrees with the answer. You are guaranteed a healthy debate and a lot of information about potential jurors. Once we start responding to extreme positions with aikido-letting people talk no matter what they say-our strikes really start to count.
Generally, answers like the one on punitive damages are followed up at the bench. This stage is critical: every successful challenge for cause equals an extra peremptory strike. Before you move to strike, commit the panelist unalterably to the disqualifying opinion. Ask questions that compel your conclusions, leaving no room for her to be rehabilitated. “Mrs. Jones, I see you are a schoolteacher. I take it from that you are a thoughtful person, that you didn’t make up your views about punitive damages as you walked in the door, just to avoid jury duty. Is that a fair statement?” She is bound to agree. Provide a comfort level that allows her to admit she couldn’t be fair-something difficult for almost anyone to do.
Mrs. Jones, there are some cases where I should not serve as a juror, for example, where someone is accused of child-molesting. Most of us feel that way. In fairness to the defendant, to the system itself, I would have to disqualify myself. Having said that, let me tell you we are going to be asking for millions of dollars in punitive damages. You said you did not believe you could give them. Let me tell you that all of us, especially my clients, are grateful for your candor. That makes this process work. But isn’t it fair to say this is not a case you should serve on? That your deeply held convictions would affect your ability to deliberate fairly on punitive damages?
Nine times out of 10, you will have saved a peremptory strike.
Now comes the difficult, almost mystical process of striking jurors. Given the huge stakes involved, the judge tells you to take 15 minutes. You plead and get 20, grab an empty jury room, and begin talking with the trial team about each panelist. Because they took notes during voir dire-something you should never do-it is important to solicit their views. Nonetheless, this is still a “one riot, one ranger” exercise. You will be cross-examining, not your colleagues, and certainly not the forensic psychologist. If you don’t want someone they like, strike him.
Try to figure out your opponent’s strikes; visualize the likely jury. If you are convinced there are going to be double strikes, you might want to change your selections. In rare instances, you may even decide not to use all your strikes to avoid reaching higher-number panelists who appear troublesome. (I have done this once in 32 years.)
Once the jury is seated, you will have to move on and forget much of what you said during voir dire. But the jurors won’t forget. The emotions you stirred will resonate within them throughout the trial.
The best opening statements are simply great closing arguments in disguise, a thought you probably should not share with the judge. To get away with this, begin opening by repeating the judge’s instruction that what you are about to say is not evidence. That buys you latitude from the court and credibility with the jury, especially if you add something like, “If I don’t prove the case, it will be your obligation to pour us out.” The first time opposing counsel objects that you are arguing, the judge will say, verbatim , “He said this was not evidence. Sit down. Shut up. He’s a handsome devil and I’m enjoying this.”
Done right, opening can have more impact than summation, when many jurors have already made up their minds. Moreover, it is surprisingly cathartic for your client to hear someone, finally, tell his side of the story-someone who is speaking without notes, who believes what she is saying so passionately that it comes from the heart and not a legal pad.
If you conducted voir dire, you ought to do opening, too. You are the one who made promises to the jury. They look to you to deliver, no one else. Besides, you have waited a long time for this opportunity, so take advantage of it. Argue your case in the words the jury will read in the charge. Tell them, without apology, how much you want and why. Do not hold back. If you don’t care, they won’t care.
As the journalists say, don’t bury your lead. Come out smokin’. Don’t explain how some esoteric patent claim was infringed. Tell the jury the defendant stole your client’s invention and made a fortune with it.
In the early 1990’s, I represented Robert Sakowitz, scion of a legendary Texas retailing family that had gone bankrupt during the oil bust. His nephew sued him for millions of dollars, alleging he converted family assets and drove the stores into bankruptcy. The allegations were apparently made with the blessing of the plaintiff’s mother, who was Robert’s sister, and a famous socialite. Despite the calamity that befell the family business, the nephew was still rich, his father one of America’s wealthiest men. I pointed to where they were sitting and said, “I don’t know if they filed this suit for sport or for spite.” Turning to the allegation that Robert secretly pocketed profitable side deals, I explained that his sister sat on the Sakowitz board, where each deal was disclosed and approved. Then I added, “But it’s very difficult to explain anything to someone who won’t come out from under a hair dryer.” I repeated variations on these themes throughout trial. The jury unanimously poured the nephew out.
To minimize objections even further, reach an agreement with opposing counsel prior to trial on the admissibility of the evidence, and ask the judge to resolve any disputes. That way, you will be able to use key exhibits during opening. If the court allows, personally hand a couple of the exhibits to jurors during your presentation. Even that minimal physical contact establishes a bond. If there are bad documents, explain them and, if possible, embrace them-but pass those out, too. It tells jurors-the aikido of opening-that you want them to see even harmful evidence, an unmistakable sign your case is strong.
There are almost always bad facts that you need to address; it is best to do that before the other side does. For example, on the odd chance your client-say, a tobacco company-has actually done something wrong, it may actually have to apologize. Oh, I don’t mean one of those apologies my wife makes (“I’m sorry you’re a jerk”), which I figured out after a few years did not seem entirely sincere. I mean a real apology, made by the responsible parties during depositions and reiterated during opening. That very human act goes a long way toward defusing juror anger and minimizing damages, if not eliminating punitives altogether. I recognize that this is the tightrope thoughtful defense lawyers dance across all the time: how much can I say without admitting liability? But in a case where a liability finding seems certain, there is little to lose.
Last year, my son Gabe and I were involved in an invasion of privacy case, arguing for the plaintiff before a focus group. Gabe focused on the failure of a televison producer to obtain consent from the plaintiff to televise a show shot at the scene of her automobile accident-while she laid pinned under a car. Paralyzed by the crash, she learned of the show by watching it in her hospital room when it aired months later. The producer could have called her, but didn’t. His indifference would turn any jury into a lynch mob, especially with a media defendant. When the jurors learned that consent was not legally required under these circumstances, they determined they would “make new law” by awarding substantial punitive damages.
In this situation, an apology not only soothes the savage juror, it provides cover for attacking the plaintiff’s very sympathetic case. In fact, she did have a problem. On the day the show aired, she wrote her niece, “Your aunt is a celebrity.” Obviously, the letter undermined her mental-anguish claim. Arguing for the plaintiff in the focus group, I embraced the quote, saying she merely intended to shield her niece from her own pain at seeing the show. That defused the defense’s strongest argument; the focus-group jurors never mentioned the letter during deliberations. The case settled before trial.
There is always common ground between some of the jurors and the client, something that allows them to identify with our case. Five of our jurors in that fraud case against the office developer were incredibly young. One of our remedies was to pierce the corporate veil of TALC Corporation, which the defendants owned and operated like a private candy store, ripping off my client’s investment. Moreover, the plaintiffs already had a $35 million judgment against TALC. How to persuade five jurors between 18 and 24 to pierce something other than their tongues? I wrote: TALC “a” US on butcher paper. That stuck and we won.
Remember, all this information, which you know so well, is new to the jury. Don’t overload them. Help then follow you. Opening should be thematic, way above the trees. Time lines are essential but should be simple, covering only critical dates. Graphics should be like billboards, summarizing the case in a memorable way. Even crudely or inexpensively built models can be powerful tools, allowing witnesses to step down from the stand, act as teachers, and, if they do it right, captivate the jury.
At the end of opening, you should be light years ahead, the case all but over. Except for one little fact. You no longer get to tell the story-now your client does. Direct examination is not one of those Kahlil Gibran “letting go” moments. Remember: it was the client’s brain that got him into the jam. It will be yours that gets him out.
Even so, the lawyer should all but disappear during direct, guiding the witness with simple questions like “What happened next?” and “Why did you reach that conclusion?” That avoids the lethal conclusion that it is the lawyer, not the witness, testifying. It weakens the witness’s credibility when the attorney suggests rather than questions. Asking “Didn’t the doctor fail to warn you about the dangers of laparoscopic surgery?” is a mistake. Jurors will wonder why the plaintiff had to be reminded of the very reason she is in court.
Of course, this does not mean simply throwing the client on the stand to tell the story. All witnesses-especially clients-need some pretty serious advice about testifying. See Berg, “Preparing Witnesses,” Vol. 13, No. 2 Litigation at 13 (Winter 1987). Find a deserted courtroom, and ask your client to sit on the stand. Talk him through direct but never so much that the spontaneity is gone. Tell him to turn to the jury to answer only when he wants to emphasize something, when it is truly important. Make him understand that when you pass him, his demeanor cannot change. If he suddenly becomes surly or evasive with opposing counsel, the jury will turn against him. He has to answer each question with a polite “yes,” “no,” or “I don’t know” before explaining anything. That does not mean being passive. He can insist on the truth of his direct and point out serious errors in questions. He can occasionally ask to explain an answer, a tactic that is especially effective when counsel won’t let him. Nonetheless, there is a delicate balance. The human mind needs to hear a direct answer first. Reverse the order, and he will sound like he’s evasive or, worse, dishonest.
Aikido works wonders for witnesses, too. If your client stays under opposing counsel emotionally-playing bemused parent to the angry lawyer-child-jurors love it. But if he loses his temper, he probably will lose his case. Suggest which jurors he needs to reach, and how to shape answers that will appeal to their common ground. Remind him not to play to this wife and children in the gallery. It is the jury that will decide the case, not them. He has to be comfortable that you know the case cold, that if he gives a bad answer or gets cut off, you will fix it on redirect. This advice should keep him from prolonged argument with opposing counsel, a deadly game at best.
The first witness the plaintiff puts on should be the one with the broadest knowledge of the case, often an expert. By the end of direct, the jury should know why the client is there, how he was hurt, by whom, how much money he’s owed, and why. Conversely, defense lawyers have to destroy the first witness in most cases. By the time she steps down, the jury should believe that her claims are frivolous and/or the damages are wildly exaggerated. Failing that, kiss your application to the International Academy of Trial Lawyers goodbye.
One way to create a seamless transition from opening to the first witness is to listen carefully to your opponent’s opening and seize on any serious mistakes. In 1996, I represented Samsung in a case against Texas Instruments, alleging that TI had breached a royalty-related agreement. TI’s lawyer, fresh from back-to-back trials, was not ready. His opening statement, while well delivered, was riddled with mistakes. The most damaging claim he made was that Samsung, along with several Japanese manufacturers, had been sued by the Justice Department in 1986 for “dumping” memory chips on the U.S. market. I didn’t know what “dumping” was, but it didn’t sound very good. The next morning, Samsung’s chief patent counsel took the stand. I went over each mistake, starting with the worst one. “Was Samsung ever sued for dumping, Mr. Donahoe?” I asked. “No, sir, we didn’t begin manufacturing chips until a year after that suit was filed.” I continued, “Now, why do you suspect that lawyer wanted to lump Samsung in with a bunch of Japanese companies?” Counsel objected vigorously that the question called for speculation about his motives, ending, of course, any speculation about his motives.
The first person who testifies is not always the most persuasive. The most powerful witness I ever put on the stand was Ann Sakowitz, Robert’s mother, and she appeared last. Her testimony was so singular that Mike Tigar included a synopsis of it in his book Examining Witnesses. She demonstrated there are things we cannot teach, intangibles that touch jurors deeply if we just let witnesses be themselves.
It was in her kitchen, over meatloaf she made for us, that I learned about Ann’s remarkable life. The lawsuit forced her to make a kind of Sophie’s Choice. Ann loved both her children deeply, but her daughter made the lawsuit possible by transferring her heirship rights to her son (Ann’s grandson), the plaintiff. The publicity and expense devastated Robert.
Ann sat next to her son and his wife until after opening argument, when the plaintiff’s lawyer invoked the Rule, excusing her from the courtroom. When she finally walked back in to testify two weeks later, the silence was palpable. I slid a chair between Ann and the plaintiff’s table and sat down, unconsciously protecting her from them.
Her testimony was riveting. Ann let the jurors into her world, where they discovered a very human being. She insisted that she and her late husband, Bernard, wanted Robert to invest outside their family business, that they encouraged the so-called side deals. “Bernard felt we had run a huge risk, putting all our eggs in one basket-the stores,” she said and added with a sly grin, “I guess we were right about that.” The jury was smiling, too; Sakowitz Bros. had been in bankruptcy for four years. “We wanted Bob to have more security than that. After all, our daughter was already fixed for life,” a welcome reminder of the wealth of the plaintiff’s family. Ann explained that she also served on the Sakowitz board and, along with her daughter and other members, approved each of Robert’s “secret” deals. “She was just too distracted to pay attention,” she said, adding sadly, “I love my daughter, but she has sold out for money and fame.”
Cross was a disaster for my talented opponent, but one exchange resonates today-a valuable lesson about the natural-born witness. Opposing counsel wanted Ann to admit that she needed money to live-and that it was Robert’s fault. He asked her first to acknowledge that her daughter and son-in-law gave her $10,000 apiece the previous year. “Yes,” she replied. Then, before he could ask another question, she turned to the jury and added, confidentially, “I used it all for legal fees.” The lawyer kept going. “You need money to live now, don’t you?” She answered matter-of-factly, “Things are not like they once were.” Next, he had her acknowledge that she owned a large ranch in East Texas. “Robert won’t let you sell it, will he? He wants to inherit it.” Ann looked stunned. The lawyer persisted, “Robert blocked you from selling it, didn’t he?” She turned toward the jury again, tears streaming down her cheeks, answering almost inaudibly, “No, I won’t sell it. It’s all I have left of my husband.” There was no reason for redirect. After the jury exonerated Robert, they spent an hour trying to figure out how to make the plaintiff, Ann’s grandson, pay her living expenses. She was not even a party to the case.
Not all witnesses are naturals. In the Westinghouse case, I put on a distinguished physicist, a member of the National Academy of Sciences. He was intellectual and cranky; for added measure, he hated lawyers. But for a lucky break, his direct would have sounded like cross. When he told the jury he studied physics at Princeton in the early fifties, I remembered something. “Doctor, wasn’t Albert Einstein there then?” His eyes lit up. “Yes. I met him once. A group of us, all physics students, went to his house one Sunday. His housekeeper let us in. We spent all morning around his kitchen table, eating bagels and talking about the theory of relativity.” The jury saw the crusty old scientist as an engaging young man, awed by Einstein. When I asked him to step down to the model of the plant to testify, they were ready to listen.
Cross-examination is an anecdotal and inexact art, predicated as it is on discovering the truth from human beings. It is the hardest thing we do. Yet, mastering cross is essential to winning lawsuits consistently, including some we deserve to lose. One of the best ways to learn is by watching others.
Once, in the early 1980s, I sat down after cross-examining a witness in a RICO prosecution. Racehorse Haynes, who represented a co-defendant, followed me. His questions and the witness’s answers quickly assumed a resonance one associates most often with great music. Haynes enticed him into a rhythm and, before you knew it, destroyed him. That night, I asked Haynes what I had done wrong. Generous as usual, he said that I had done fine. But I persisted. Finally, he drew on his pipe and said, “You weren’t listening to the answers.” (Of course, what I heard was, “What a loser. Get into welding while there’s still time.”) He told me the witness had admitted under my questioning that he disregarded certain Coast Guard rules-the case involved shipbuilders-yet he criticized our clients’ failure to follow some of the same regulations. I had no idea the witness had said that.
As I thought about it that sleepless night, I realized that the deeper I got into cross, the less I listened, sometimes afraid of the answer. The next time up, I actually focused on what the witness said, not what I wanted to ask next. Each answer was a springboard to another question. I will never forget how powerful that felt.
There are rules common to all cross, yet none are set in stone. For ease of reference, I have numbered some below. They provide a broad framework within which to analyze and improve our skills. They teach us to control the witness-the goal of each cross-examination-so that the witness never controls us. See Berg, “Blind Cross-Examination,” Vol. 17, No. 1 Litigation at 12 (Fall 1990); Berg, “Secrets of Cross-Examination,” Vol. 20, No. 3 Litigation at 6 (Spring 1994). Once you master these-once they become a part of you-infuse the rules with your self. If you are funny, be funny. If you are smart, be smart. If you are neither, consider the judiciary.
Keep a calm mind-and listen. Psychologists did a study of some of baseball’s greatest hitters. DiMaggio, Mays, Mantle: all of them kept a “calm mind,” reading the seams, waiting until the ball was on top of them to swing. So, too, we should keep a calm mind, reading the seams of the testimony, listening to each word the witness speaks. It is the ultimate rule of trial by aikido.
Learn more about the subject than anyone in the courtroom. That includes the expert who testifies for your opponent. The more you know, the calmer your mind.
Do not ask open-ended questions. Compel “yes,” “no,” or “I don’t know” answers. Do not ask questions beginning with “why” or “how.” That invites speeches.
If the right situation presents itself, disregard the previous rule. Assume an expert doctor admits a certain blood test would have been helpful under the circumstances of your case. If the defendant doctor did not perform the test, ask, “Why would it have been helpful?” The answer can only help.
Formulate follow-up questions. Sit at your computer. Write the questions you will ask if the response is “yes,” “no,” or “I don’t know.” That way, you will seldom be surprised on cross. Do this a few times, and you will even anticipate unresponsive answers; there is a limited universe of nonsense.
Take advantage of confused, implausible, or unresponsive answers. Testimony volunteered or invented under the pressure of cross is often absurd or worse, allowing you to demonstrate on the spot that the witness is evasive or lying.
Never laminate your cross. Set aside your computer notes. The questions are inside you.
If you represent the plaintiff, call the defendants and most of their key witnesses to testify during your case. That forces the bad guys to tell their story while being cross-examined, not unlike giving a speech in a wind tunnel. (Defense lawyers know this is coming. Their witnesses should be spring-loaded to disrupt the plaintiff’s story by telling their own.)
Do not forget the jury. Ask questions that include them in your anger or dismay: “Mr. Witness, do you really mean to tell us . . .?” Look at the jury as you ask, never turning away until you have your answer. It is a powerful way to deepen your bond. But do not overdo it. Remember, not everyone actually turns out to be an ax murderer. Watch the witness and watch the jury watching her. Bring them along. They have to know the reason for your emotions before you “get medieval.”
Don’t just impeach the witness, gore him. If you use a deposition, first describe what it is: “You took an oath, just like in this courtroom?” “You were warned about perjury?” Always read the prior inconsistent statement yourself-never let the witness. His inflection and volume may destroy the moment. Make the contradiction clear to the jury. The last thing you want is for the judge to sustain an objection that what you did was not really impeachment.
Be opportunistic. Pounce on new themes during cross. The plant manager was the first witness in the Westinghouse case. He testified there had been so many problems that “we no longer do steam generator business with Westinghouse.” I could not believe it. Not only was there a written agreement between the parties excluding any evidence of business done between them since the filing of the suit, but the judge had granted their motion in limine enforcing the ban. They’d opened the door. “Mr. Johnson,” I asked, “you didn’t really mean to imply the power plant does not do any business with Westinghouse, did you?” Plaintiff’s counsel objected, in front of the jury, “Wait a minute, Mr. Berg, we have a written agreement you won’t go into that.” The judge invoked the goose and gander rule. I handed the document to the witness. “Show me where that agreement allows you to mislead this jury.” Then, I added, “In fact, the power plant has bought more than $100 million in goods and services from Westinghouse since the suit was filed, hasn’t it?” The plaintiff scrambled to clean it up, but it only got worse. The testimony enabled us to build a compelling theme, one that works in any suit with a comparable situation. You do not continue to do business with someone you claim cheated you-at least, not if they really did. Incidentally, the case ended in a confidential settlement after five months of trial.
Infuse your cross with argument. It is not enough to ask the engineer of the train to acknowledge he struck your client as she crossed the intersection. Make it vivid. “Isn’t it a fact that as you came barreling out from behind that half-mile of illegally parked tank cars, when you were finally able to see Sharon Lemon, it was too late to avoid killing her?”
Ask questions opposing counsel should have asked but didn’t. This requires a certain testosterone level, regardless of gender. In the selfsame power plant trial (yes, I have at least two other clients if you include my sister’s traffic tickets), the plaintiff called a former Westinghouse power-plant salesman. He had not been deposed. To my surprise, counsel never asked him a single question about their central allegation, that our salespeople misrepresented the useful life of the steam generators. Was it a trap? I asked the witness, who had worked at Westinghouse for years, to agree that he had never been told to misrepresent anything about power-plant products. He agreed. Resume pulmonary function.
Cross-examine the whole person. It is one thing to impeach when we have hard evidence. It is quite another when we have nothing but the best of intentions and Ban Roll-On. Blind cross demands that we be our most creative in the courtroom-and a witness’s personal history frequently provides a gold mine. In a recent racial discrimination case, the owner of a collection agency that does more than $1 billion a year in government contracts testified he had neither read his company’s hiring policies nor been consulted by his employees about them. With $1 billion a year in government business, you’d think he’d know a little something about EEOC regulations, but he also claimed he’d never discussed minority hiring policies with government agencies. So, I began to develop the incongruity of it all, starting with the fact that he was the company’s founder and sole shareholder. He admitted bringing in the government business. He told me that he and his executives devised a plan under which all U.S. agencies sent their collectibles, like student loans, to the Treasury Department, where his company peeled off a healthy percentage of the business. He admitted attending regular Monday morning planning meetings with his regional vice presidents, missing only one in 10 years. Given that level of involvement, his answers made no sense. There was only one thing left to do.
When testimony is incredible, go with lies. This guy was obviously over-coached, something I used to think was a bad thing. I asked if he ever discussed race during those meetings. Note, I did not say “racial policies,” but “race.” He answered “Never.” You’d think maybe Nelson Mandela or Rodney King or even Puff Daddy might have come up during the past 30 years, but I could be wrong. Once a witness weds himself to the party line, it gets easier and easier for him to lie. So I asked Mr. Detachment if he thought the EEOC considered African Americans minorities. He smiled benignly into the camera and said, “I have no idea.” It was time for my final question. I would have bet money on the answer. “You have never had an African-American executive in your company. Your secretary makes more money than your highest paid black employee, some are college educated and have been there years longer than she.” This seemed a fine time for an open-ended question. “Why?” He didn’t hesitate. “We can’t find any qualified blacks,” he said. That was enough. It was not difficult to imagine 12 of his peers climbing out of a jury box to kill him. I closed my briefcase and left.
Testify your ownself. In 1974, I represented Jim Bob, a two-time ex-con who faced a life sentence if convicted of the hand-to-hand sale of methamphetamine to an undercover agent. He was concerned the state’s 20-year offer would impinge on certain of his social commitments, so we went to trial. The agent testified Jim Bob handed him a cigarette pack filled with meth. Given that there was no one on earth willing to testify for me, I swore my ownself in. “A regular cellophane-wrapped cigarette package?” I asked. He said, “Yes.” “Where is it?” I demanded. The agent replied, “The lab threw it away when they tested the meth. But not until I initialed this envelope I poured it in. Of course, you know it tested positive.” I knew that. Didn’t he know I knew that? Nonetheless, my voice rose, shocked at the revelation, “The lab threw it away?” He responded again, wearily, “Of course they did. I’ve got the meth. I poured it into this envelope. I initialed it and dated it. It tested positive.” I thought, “You’re just doing victory laps,” but instead asked, “Then I take it you never tested the cellophane or the pack for Jim Bob’s fingerprints?” As if it really mattered. He responded again, wearily, “Of course not. I’ve got the meth. It tested positive.” The jury hung 8 to 4 for acquittal, and the case was later dismissed. Around Christmastime, I answered the doorbell. It was Jim Bob, holding an oddly wrapped package. “It’s a cashmere sweater,” he explained, “I boosted it for you at Neiman’s.” Neiman’s, indeed-exquisite taste at just the right price. “Jim Bob, I just couldn’t,” I demurred and closed my door on the undeniably touching moment. “Boosted,” by the way, does not mean redeeming your Neiman Marcus Inner Circle points.
In 1979, the chief justice of the Texas Supreme Court wrote an opinion affirming not only a verdict but our tradition of zealous advocacy as well. The issue was a particularly vitriolic closing argument in a personal injury case, including the assertion that the plaintiff drove by a “thousand [legitimate] doctors between the Astrodome and Spring Branch,” clear across town, to get to the quack who testified. Justice Pope wrote, “Hyperbole has long been one of the figurative techniques of oral advocacy. Such arguments are part of our legal heritage and language. . . . In The Tempest, Shakespeare wrote ‘Now would I give a thousand furlongs of sea for an acre of barren ground’; … in Hamlet, ‘To be honest, as this world goes, is to be one man picked out of ten thousand.'”
All of which is to say, let fly. There is little you can do to create reversible error. There is much you can do to win.
The first words you utter should summarize your case, appealing to the broadest number of jurors in the most compelling way.
I told you this case was about greed. About how the defendant cheated his partners. But as the case has gone on, I realized it is about much more. It affects each and every one of us who has a pension plan or an IRA or who invests at all. When we put our hard-earned money into an investment, we need to be able to trust that we have been told the whole story, that we are not being misled and lied to. Too many things, like our children’s college and our retirement, can be destroyed. Just ask my clients, Fred and Janet.
Use language right out of the jury charge. If you talk in the same terms the judge will use when he reads the instructions, the jurors need make only a slight leap to fill in the blanks exactly as you want.
If there are seven liability questions and two on damages, write one through nine down the left side of some butcher paper, with a blank to the right of each. “In Question 1, you are asked if there was a breach of fiduciary duty. Let me give you a road map through the evidence. Just look at exhibits 9, 16, and 27 through 31. They prove . . . .” Remind them of the testimony that supports the claim. Then, fill in the blank with a “yes” and repeat the drill for each liability question.
When you come to damages, do the math step by step, so they can see how you arrived at the total. Fill in the blanks using a red marker so the number will stick in their minds. Suggest they take in hand-held calculators. I know I said jurors can understand your case. I never said they were good at math.
Arm your friends. Anticipate opposing counsel’s strongest points, especially the ones that will come up during deliberations.
It is natural for someone on this panel to say that the plaintiffs are all wealthy, that they can take a financial hit. I understand on a gut level why someone would say that, but that is not the law. If it comes up, someone among you must have the courage to respond immediately, to say, “That has nothing to do with this case. It has nothing to do with justice. The judge says right here, on the last page of the instructions, that we cannot decide this case on emotion or bias, only on the evidence.” And I hope that will be the end of it.
Disarm your enemies. If the trial has lasted more than a few days, you probably have a good idea how the jurors are leaning. It is time to review the juror information sheet again, searching for common ground.
I once had a quality-control person on the jury in a medical malpractice case; her job required her to keep meticulous records of employee drug testing. At the close of evidence, she appeared to be against us. I pitched part of my argument to her, arguing that the defendant doctor purposely kept sloppy medical records.
He wants you to think this is business as usual, to throw up your hands and say, “I can’t read the records. I’ll just have to take his word for it, that he diagnosed the tumor on time.” Well, folks, that’s not business as usual. You’d lose your job if you kept your records that way.
We won, but just barely. The quality-control woman became the foreperson, forging a compromise verdict that kept the jury from pouring us out. I never found out if closing argument changed her mind or if she was with us all along. In either event, it makes good sense to fashion arguments to fit critical jurors.
If possible, nominate your favorite juror to be foreperson. For example, you can comment that the jury has, collectively, “more than 500 years of experience, 27 children, and 12 different jobs. There is even a lay minister serving with you.” Singling him out with a passing reference may be enough to get him elected. It really helps if you started this process during voir dire, asking a couple of your favorite potential jurors if they would serve as foreperson if nominated by their peers.
Jurors get much of their information from television, making videotaped deposition excerpts especially effective. Several years ago, Vinson Elkins managing partner Harry Reasoner tried an antitrust case against several railroads. Predictably, their executives had adopted a “me no Alamo” or “I don’t remember nothin'” defense. Harry played a spliced tape of their offending answers, a 20-minute fugal chorus of “I don’t know” and “I can’t remember.” It was painful to watch, like those tobacco executives denying before Congress that cigarettes are addictive. It achieved every plaintiff’s goal: it sent the jurors out filled with anger. They returned a verdict of more than $300 million.
There have been many great ideas for unusual closing arguments over the years. Haynes always wanted to do one with musical accompaniment, so he argued a murder case in Oklahoma with co-counsel Pat Williams mournfully playing “Momma, Don’t Let Your Babies Grow Up to Be Cowboys” on the harmonica. Jerry Spence urges that we become part of a psychodrama, that we become the object at issue. “I am an MRI. I am the most advanced, high-tech imaging equipment there is, so, Doc, read my scan. The tumor is right there, in the meninges. Wait a minute, Doc. Don’t say that. Of course, there’s a tumor. How can you miss it?” I’m not certain, but I think this practice is restricted to southern California.
Closing argument can also be about other people’s bigotry. In Sakowitz, opposing counsel told the jury he was a frustrated Baptist minister, not a bad overture to a Bible Belt jury. Nonetheless, buckaroos, he seriously underestimated an Old Testament lawyer with a New Testament wife. “I’m obviously not a frustrated Baptist preacher,” I responded, looking directly at the lay minister on our jury, “but I know what the Good Book says about people like the plaintiff. ‘It is easier for a camel to go through the eye of a needle, than for a rich man to enter into the kingdom of God.'” The courtroom was silent, but I am certain I heard my late grandmother asking my late grandfather if I had actually quoted the Book of Matthew, threatening never to speak to me again, which, as you might guess, was a somewhat idle threat, given their current circumstance.
I’m not saying it is a bad thing to appeal to jurors’ biases, only that if you do it, it better work. Pointing to Sakowitz’s nephew, seated with his family, I concluded my argument, “Let me tell you about these people.” I said, “They have entreé, they have power, they have money. No one ever says ‘no’ to them. At least not until now. You can do it. You can say ‘no’ to them for the first time.” This invitation is irresistible to people who have been watching at the window all their lives.
Finally, it always pays to save something for closing, something you have seen that the rest of us may have missed. I recently second-chaired a two-day misdemeanor DWI trial. My oldest son, Geoff, was lead counsel. At the end of the first day, I told my wife that it was unwinnable. Just before closing argument, I challenged Geoff, asking him where the reasonable doubt was. He sniffed, “Where isn’t it?” He argued that the client should never have been pulled over, much less charged. “Well, Geoff,” I wondered, “should he have been given an Award of Merit for Driving Through the DWI Checkpoint?” He had an answer for that, too. “The officer admitted he signaled Donny with a flashlight to pull over through four lanes of busy traffic. You know that intersection on Saturday night. There is no way he could have seen a flashlight.”
Geoff reminded the jury that Donny had not sped away, did not swerve between lanes, and pulled over four blocks away, as soon as he realized the officer wanted him to stop. Most important, he repeated the officer’s testimony that he had turned off his flashing lights before he got out of his patrol car, something he said he never did until he made the decision to give a field sobriety test. It seems the flashing lights interfere with the results of the eye examination.
When the lights go off, the field tests begin-a decision the officer made before he ever got out of his patrol car, without having said one word to Donny. In other words, with no evidence except that Donny drove away from the checkpoint, the officer was going to test him, and he was going to fail him. And that’s exactly what happened.
The jury returned a not guilty verdict. They bought Geoff’s close, especially the significance of turning off the lights. My pride was diminished only by the fear that he would ask for a raise.
LEARNING TO WIN
When the jury retires, you want your clients to be able to say, “No matter how this comes out, I know you did everything you could for my case.” More important, you want it to be true. Nonetheless, if you lose, there is little comfort in the compliment or consolation because you didn’t make the facts. We write our history from our last verdict forward. The object of the exercise is to win.
Pablo Neruda, the Nobel Laureate, wrote that poetry came for him when he was eight, a touching way to describe when his craft began to consume him. So, too, trying lawsuits comes for us-invading our thoughts, teaching us our ancient craft-when we are not even aware we are learning. I think about that now when I watch the ocean, my top-water lure skimming across the waves, with the hook, barbs clamped down, hidden in the sea below. ‘
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