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recommend you tell the story of your case clearly, simply, in present tense, and in chronological order. Te opening statement is then bifurcated. You explain in “Part A” why you are suing by stating “the first violated rule and how you know the defendant knew and violated it. Ten, in “Part B” they suggest that for each rule violated, you explain what your expert is going to say about:
1. What makes the violated rule a rule? 2. In what other circumstances than this case can violation of the rule cause harm?
3. How much harm can violating this rule cause?
For example, the authors suggest that this approach could be used in a low speed collision case by having a high school drivers’ ed teacher testify as an expert witness about how frequently people are seriously injured in low speed collisions. Tey further suggest that a high school physics teacher can teach the jury “how a 12-mph force on a rear bumper will transfer almost undiminished into the driver’s neck and skull.” While I recognize that Maryland Circuit Courts apply Frye/ Reed6
Federal courts applyingDaubert,7
to less restrictive effect on expert testimony than do I’m not sure how a Maryland
Judge would rule regarding the admissibility of such expert testimony. Lastly, regarding opening statements, the authors point out that the above approach can (and should) be easily married to that suggested in David Ball on Damages. In the chapter on expert witnesses the authors discuss the
importance of gathering all available information and getting it to our experts. Te expert should explain at trial what experts must do step-by-step in order to reach a valid conclusion. Ten the expert should take the jurors through each steps (s) he went through while examining the facts of the case. Your liability expert should show how the violation of the safety rule in your case can cause harm in other contexts. Lastly, the expert should show how the defense expert skipped steps in the process (s)he explained. When crossing a liability expert, try to get her to agree to the Rule(s) you have identified for your case, and why violating it is dangerous. Te authors highlight that “[y]our most important
Reptilian task in closing is to show how the dangers represented by this case affect the community.” Tey think that our cases should boil down to a matter of community safety v. danger. Tey suggest that, where permitted, we cite public policy and legislative intent in closing argument. Te remainder of the chapter is filled with important points about closing arguments that are too numerous to recount here. As a trial lawyer who has been reluctant to bring the Bible
into the courtroom, I found the chapter on “Scripture and the Reptile” fascinating reading.8
Additional chapters cover case
selection, mediation, client preparation, and deposing defense witnesses. Te chapter on depositions is one of my favorites. It
6 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and Reed v. State, 283 Md. 374, 391 A.2d 364 (1978).
7 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786 (1993). 8 Our own Pat Malone and Bob Michael are cited in this chapter.
62 Trial Reporter / Spring 2010
contains numerous suggestions that can be put to immediate use in our cases. Don Keenan’s closing argument in the “’Small’ Cases” chapter is masterful. Many of us have tried stipulated liability cases to juries; a chapter discusses strategies for these cases. Te chapter on medical negligence cases should be required reading for all lawyers who handle them. Te book also contains a useful bibliography called “Reading for Reptiles” and appendices containing golden rule law by venue and law regarding the use of community safety in trials. While I strongly agree with the overall thrust of this
book, I do not know if some of its suggested tactics would fly in Maryland. For example, the authors suggest you ask a defendant driver: “Do you drive as carefully at other times as you were driving when you hit John?” and then show how all of the potential answers to this question can help your case. I agree with their analysis of the potential benefits of any answer to that question, but I’m not sure a Maryland judge would, after a proper objection, allow the defendant to answer it. Reptile is essential reading for a lawyer who represents
Plaintiffs in personal injury cases. It is written in easy to understand prose (exactly the type that the authors would have you use when communicating with a jury). I intend to re-read portions of it intermittently and to incorporate its teachings into my next jury trial. Tat said, and this is scant criticism, it does not quite reach for me the same “Bible” status that I attribute to Rules of the Road or David Ball on Damages because I think it will be harder to apply its lessons to run-of-the-mill personal injury cases.
Biography Eric N. Stravitz is a partner at the
Washington, D.C. law firm Mesirow & Stravitz, PLLC, at which he handles personal injury and medical malpractice lawsuits and trials in federal and state-level courts across the region. A member of the District of Columbia and Maryland Bars, Mr. Stravitz handles Virginia cases pro hac vice. He teaches Trial Advocacy as an Adjunct Professor at Te George Washington University Law School. Mr. Stravitz is a member of Board of Governors of TLA-DC. He also a member of AAJ and MAJ, and has served, as a member of the Trial Reporter Editorial Board, for the past decade. He also moderated an AAJ teleseminar. Mr. Stravitz graduated magna cum laude from the State University of New York at Albany in 1988, and graduated from Te George Washington University School of Law in 1991.
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