• Love your client and spend a lot of time with him or her. I mean spend a lot of time with your client. Go to their home, spend days getting to know them, spend time with those who love him or her and find out what makes them spe- cial. For example, if you have a client who was injured through an accident, spend 24 hours or more with him or her in your client’s home, doing what your client does all day and night. Learn what it is like to be your client. Put yourself in your client’s shoes, literally. By doing this, you will have a completely new per- spective on your client’s injuries, and you will learn to love your client. If you love your client, the jury can love your client. If you know what it is like to live with the pain, the problems and inconveniences your client lives with, you will be much more effective in trial. • Learn about psychodrama and learn how to reenact scenes in your cases. (Find out about psychodrama training resources at
www.the3sisters.org,
www.nationalpsychodramatrainingcen-
ter.com or
www.triallawyerscollege.com.) I have learned amazing things about my cases by reenacting scenes. Sometimes people just don’t remember things accu- rately when you ask them to describe an event. Other times, people will obfuscate or intentionally omit things when you ask them questions. When you have them reenact the incident, they show you things they would never include in a description of the event and show you things they never would have admitted. Equally important, instead of learn-
ing how something happened by study- ing it on paper, through reenacting events, you come to know how the event happened because you watched it hap- pen and experienced it through reenact- ments. Then, bring your reenactments into the courtroom. When I attended TLC, I learned
about how Jim Nugent, a lawyer from Connecticut, was trying a section1983 case against a Sheriff ’s department for excessive force by a jailer against an inmate. Of course, the guard claimed that he had to protect himself against a violent inmate. Despite there being a
video and audio of the inmate being ver- bally abusive toward the guard, Jim obtained a substantial verdict against the department. Jim explained what he did at the trial, and I was stunned when he showed us how it went down. The beating occurred in the plain-
tiff ’s cell and when Jim had the guard on the stand, his cross-examination required the guard to reenact the incident with Jim playing the part of the inmate, being handcuffed and taken down by the Sheriff. As Jim demonstrated for us, he took the guard back to the time of the incident, got him emotionally reconnect- ed and then had him reenact the inci- dent. Jim showed us how, taken back to the moment at trial, the guard became physically abusive toward Jim in front of the jury. The guard’s anger and physical- ity toward Jim in the courtroom left no doubt for the jury about the truth of what really happened that day in the cell. We all know that “reenactments”
happen all the time through accident reconstructionists. But, I am sure you can imagine from my description about Jim Nugent’s case how captivating and per- suasive a reenactment can be when done with the “bad guy” (if possible) and/or the plaintiff. • Always go to the scene and reenact the incidents. Go as soon as possible and try to reenact the incident at the location where it happened, as carefully and accu- rately as possible. I have heard about lawyers in accident cases hiring, driving or riding in the exact vehicles involved in the accidents at the same time of day or night under the same conditions, just to see what really happened. Do this with your consultants, then experts as well, and do this in every type of case. Lawyers do this because it works.
When it is not practical to go to the
scene of an incident (such as when you are representing a terminated employee and you want to save your one site inspection to do with your expert), set the scene in your conference room and reenact the incident(s) there. Every time I do a reenactment, I learn some- thing I would not have known about my case.
• Read and use Polarizing the Case and Rules of the Road, by Rick Friedman; The Reptile, by David Ball & Don Keenan; and David Ball’s Damages. These books teach you how to frame your case from its inception using the rules and reptile concepts to position the case to be persuasive to tort reform jurors, how to polarize the case to illuminate the outrageousness of the defense position, and how to lead and teach jurors when you try the case. Obviously, the foregoing sentence doesn’t remotely do the books justice, but I am not here to provide book reviews. Read them and use the concepts from the get-go in your cases. • Conduct your own focus groups. Focus groups include issue-finding groups, issue resolution groups, mock tri- als and other approaches. David Ball has a great book on this called How to Do Your Own Focus Groups. If you are doing a mock trial, do what he says – make the defense argument at least as powerful as the plaintiff ’s presentation, if not more powerful. Otherwise you are wasting your time because you will get the equivalent of a false positive. You can get a pretty good cross-
section of focus group participants on craigslist if you pay $50 for four hours and provide a meal. If you are not com- fortable conducting your own focus group, ask a knowledgeable friend to help or go hire someone to facilitate. • Videotape your depositions. Do it yourself or have a videographer (which you must do pursuant to Code Civ. Proc., § 2025.620(d) when videotaping the dep- osition of an expert if you want to use the deposition at trial, and of course you do). As soon as you get the final transcript, send the transcript and the video in MPEG1 format to a synchronizing serv- ice, like Sanction or other services you can find online, for synchronization. Use Sanction or other software (DepoSmart, etc.) to create video clips, which is very easy to do once you have a synchronized deposition. Use video clips in your medi- ations, opening statements and later in trial when you need/want to do so. • Hire a jury consultant to vet your themes and work on your client’s trial
FEBRUARY 2012 The Advocate Magazine — 39
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96