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Anatomy of a Civil Trial

be brim full of connotative baggage. As an example of this, look no further than the rather denotatively benign word “frivolous.” It is a word that will never be missed by a trial lawyer in a courtroom. Indeed a trial lawyer’s ear is more carefully attuned to adjectives generally than to any other part of speech because of what they tell us about the speaker. Te trial lawyer is a constant student of culturally connotative language. We watch particularly for political code words so that we miss no nuance of what is actually being referenced for this is the clearest indicator of motivating passions. When one tries cases in different geographic locations, it is essential to have local counsel who is much better versed in local customs or concerns and how best to assess them. I am reminded of a trial once in West Virginia where I wanted to strike from the potential panel a juror, a miner, who would not make eye contact with me during a rather extensive counsel directed Voir Dire. Local counsel had to explain to me that this was not a manifestation of a negative attitude toward me or my clients, but rather a sign of respect. He turned out to be a great juror for my client’s case. Given enough time to speak, in fact, most jurors will

“speak the truth” about themselves, not so much by what they say as how they say it and the good trial lawyer will be listening and factoring in what he or she knows is actually being communicated. Tis is because most jurors are actually not primarily trying to be deceptive, so much as they are attempting to not project themselves as being blatantly prejudiced to your position – it is really more about them than you. Everyone wants to wear the mask of fairness, yet it is highly unlikely that Alexander Hamilton and James Madison did not recognize that the anti-federalist


Farmer” was more like the Philadelphia Lawyer that John Dickinson really was. As a younger attorney I had many opportunities to try

medical malpractice cases before an arbitration panel, where often enough one of the members was a physician. It made me recognize the fact that the way I tried the case was not the same as when I tried it in front of a jury. Te events and the facts were the same – it was the same case after all. Going back to Hume, the “reason” may have been the same, but the “passions,” the motivations that would lead these different triers of fact to action were different. As a trial lawyer, I was taking an historical event and producing what was in effect a staging of that event and how I staged it depended significantly upon my audience, the trier of fact. I knew there were certain doctor motivating passions that would be completely missed by lay jurors and certain juror motivating passions that would totally turn off doctors. Tus, as the saying goes, “You gotta know the territory.”

With a jury the only real chance you have to know

that territory of motivation is in Voir Dire. (I know there are disputes over social media avenues as a way to uncover further insights into your jury, but that is a different article.) One could always, of course, proceed on the blind chance theory of trials rather than that of probable determinism, but personally I would rather render to reason the rational part of the rational animal and to the animal the animal part of the rational animal so that when the trial starts and the judge tells me its first and ten on the twenty yard line, I can look at the jury and smile knowing its third down and one hundred fifty yards to go. 

Biography Henry E. Dugan, Jr. (Dugan, Babij & Tolley, LLC)

specializes complex medical malpractice and product liability cases. Henry is a member of the American College of Trial Lawyers; the American Board of Trial Advocates; the American Association for Justice; the Maryland Association for Justice and the American Judicature Society. Henry is current President of the Maryland State Bar Association. Henry is licensed to practice law in Maryland, the District of Columbia and West Virginia.

Trial Reporter / Spring 2012 25

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