April 22nd, 2009

Susan Boyle’s Voice, and the Lessons for Trial Attorneys

If you haven’t heard of unemployed, 47-year old Susan Boyle taking the stage in a British talent shows and blowing the doors off the joint by now, you’ve probably been living under a rock. The expectations were as low as can be for the rather plain (some say homely) looking woman who, it turns out, had the voice of an angel. (Video here)

And there is the lesson for trial lawyers. One considerable reason for her stunning story was that the expectations were set so low. If she had been a pretty blond taking the stage, it would not have been the same. She would still have a nice voice, but would she have become an international human interest story? Of course not.

And of course that isn’t fair. But people judge others on appearances all the time, and that doesn’t change when we become jurors.

How does a trial lawyer use that bit of knowledge? By raising the expectations for the other side’s witnesses and lowering them for your own. Let the jury be surprised and their expectations exceeded for your own. Let them be disappointed by the adversary.

Two years ago I wrote about the problems of well-educated, attractive adversaries in One Way to Cross-Examine The Attractive Doctor, and discussed how to approach the issue before that witness takes the stand in the medical malpractice setting:

The answer is not to knock them down, but to build them up in opening statements and jury selection (if your jurisdiction allows).

Tell the jury they will like the defendant. After all, your client chose this doctor for surgery, right? Trusted him/her. Kinda like Marcus Welby. Therefore, it stands to reason, the jury will too.

This does a few things: First, you have been dead honest. It is unlikely the jury expected you to “confess” this thing, but frankly, they will likely see it anyway if defense counsel is even mildly competent. Trying to tar a physician at the outset that your client previously trusted has enormous potential to backfire.

The jury also now has very high expectations for the doctor. With the bar set so high, any slip-up or contradictory testimony is likely to be viewed in a harsher light. Assuming you have a solid case to take to trial, this doctor-defendant will also lay out the standards of care (while they still trust him/her) before being confronted with the deviations from care, the sloppy notes, the rushed surgery, failure to read the x-ray, or contradictions from deposition testimony.

And the reverse may also be true, as Ms. Boyle demonstrates. Instead of building your own clients up, you can compare them to their adversaries, and warn the jury that the nice doctor on the other side, for instance, might have much higher education and more practice speaking in front of others, and caution jurors not to judge your client on looks or awkwardness. This gently lowers the bar without hurting your clients or unfairly disparaging the other side and, like Ms. Boyle, makes it easier for them to be liked by the jury. (Assuming this scenario is appropriate for the case, of course.)

I’d love to say that trying a case is all about the facts and only the facts. But appearances sadly mar the way for many. And this is one way to level that playing field.

Links to this post:

susan boyle in the eye of the beholder
susan boyle 3450613461_c067eb4ee2_m you’ve seen it, right? tens of millions of people have. it’s the video of plain, middle-aged susan boyle, stunning the “britain’s got talent” judges and then the world with her lovely voice. …

posted by Anne Reed @ April 23, 2009 11:11 PM

September 24th, 2007

Personal Injury Trial Opening Statement — Telling The Story From the Middle

Every personal injury victim that has a case worth taking should have a story worth telling. And there are a million ways to tell it at trial.

The ability to tell that story — in an engaging manner that keeps the jury interested while you dot the “I”s and cross the “T”s of evidence — goes to the heart and soul of standing in the well of the courtroom. Those that mechanically travel the linear path from start to end are likely to lose the interest of the jury, and if their interest is lost, so too are your arguments.

When I open, I like to start the story in the middle. It is that particular moment in time, perhaps, when a patient walks into a doctor’s office, or a car crosses the double yellow line to the wrong side of the road. It goes to the essence of why you have risen from your chair to address the jury.

And when I say I like to start in the middle of a story, I’m not kidding. I don’t waste time thanking the judge, or the jurors for their presence in the courtroom. I don’t introduce myself or my client. Chances are, much of that has already been done anyway, but if not, I can get to it later. I need to tell them why they are here. Because they want to know.

You’ll never have greater command of the jury’s attention than that first 60 seconds of a trial. You can waste it with platitudes the jury doesn’t care about, or you can use the time wisely. And so I begin,

“Today we turn the clock back to January 5, 2004. Jane Patient is showing a hard lump in her breast to Dr. Gyno, explaining how she found it while washing herself in the shower, and of her intense anxiety over its appearance. Dr. Gyno, who Jane has trusted for years, examines the lump for a few seconds, and tells Jane not to worry about it.”

The jury now knows why they were dragged from their homes or jobs to sit in this courtroom. They know, perhaps intuitively, that Dr. Gyno likely has a different version of events, but that this is the sharp issue of fact that will define the trial. They have also been presented with a moment of anxiety and stress by your client that may be the essence of one of your themes — betrayal of trust. Most importantly, they want to know the details.

From there one can fill in the before and the after, introduce people in the courtroom, witnesses that may appear, and slowly work into the story the various elements. But it is a story you are telling in the trial — often an emotional, gut-wrenching story that brings the concepts of life and death into sharp focus. This cannot be told in a rote beginning-to-end manner.

Sometimes finding the middle doesn’t seem easy. If you were telling your friend about running the NYC Marathon, would you start with your decision to run or the months of training that went into it? Doubtful. The “middle” of such a story may be the moment of greatest anxiety and anticipation: The starting line as you wait for the deep thump of the cannon while looking out across the Verrazano Narrows Bridge, where the great footrace starts.

Telling the narrative can take you into a thousand different directions. There is really no “right” way to do it, other than to stop orating like a lawyer and start talking like a storyteller.

Mark Twain, not a keen fan of attorneys, was a master. On this subject he wrote:

“Narrative is a difficult art; narrative should flow as flows the brook down through the hills and the leafy woodlands, its course changed by every bowlder it comes across and by every grass-clad gravelly spur that projects into its path; its surface broken, but its course not stayed by rocks and gravel on the bottom in the shoal places; a brook that never goes straight for a minute, but goes, and goes briskly, sometimes ungrammatically, and sometimes fetching a horseshoe three-quarters of a mile around, and at the end of the circuit flowing within a yard of the path it traversed an hour before; but always going, and always following at least one law, always loyal to that law, the law of narrative, which has no law. Nothing to do but make the trip; the how of it is not important, so that the trip is made.”

(Hat tip to Bryan Garner, Quote of the Day, 4/11/07)

(Eric Turkewitz is a personal injury attorney in New York.)

July 30th, 2007

Every Dog Gets One Bite

A child suffered serious personal injuries when bitten on the face by a dog, and brought this New York action. But the plaintiff’s attempt at summary judgment was rejected. Why?

The old saying in the title comes from the concept of notice. As in, the owner of a dog that bites someone must have notice of a dog’s vicious propensities in order to make that bite actionable.

In Earl v. Piowaty decided last week by New York’s Appellate Division (3rd Dept.), the court returned to the time-honored principle that “the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities.”

But, when the only evidence of a prior “viciousness” was a prior “nip” that the child described as “so minor that it did not break the skin or hurt me,” then summary judgment would not be granted. Normal canine behavior does not qualify.

Woof.

April 9th, 2007

Trip And Fall Dismissed Because Defect Was "Trivial"

Trip and fall cases are interesting because of two competing defenses:

1. That the defect was so small as to be “trivial”; and
2. That the defect was so large as to be “open and obvious.”

In this case, the defendant prevails on the first of the two defenses:

The plaintiff asserts that there was a height differential of 5/8 of an inch between the two surfaces, and contends that this height differential caused the accident.

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury.” However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip. In this case, the defendants made a prima facie showing, through the plaintiff’s testimony and the photographs identified by her as accurately depicting the condition of the curb cut at the time of the accident, that the alleged defect did not constitute a trap or nuisance and was merely a trivial defect which was not actionable as a matter of law. The evidence which the plaintiffs submitted in opposition to this showing failed to raise a triable issue of fact.

If a defendant does not prevail on one, a claimant should expect the defendant will then pursue the other.

The case is: Joseph v Villages at Huntington Home Owners Assn., Inc.

March 19th, 2007

New York Car Accident — Can "Blacking Out" Excuse Negligence Per se?

A car crosses a double yellow line and causes a collision. As I noted last week, there is a presumption that the driver that crossed the lines is liable.

But here, a driver claims he “blacked out’ and that the presumption of liability against him is rebutted. Not so, says New York’s Appellate Division, Third Department last week, since the driver must still prove that such event happened:

Initially, we note that unexcused violations of the Vehicle and Traffic Law, such as crossing a double yellow line, constitute negligence per se. However, violations which give rise to negligence per se may be excused if the accident clearly results from an unforeseen and unexpected medical emergency. [Defendant’s] self-serving affidavit in which he asserts a belief that he “blacked out,”unsupported by any corroborating medical evidence, is simply insufficient to create any issue of fact regarding an unforeseeable emergency situation.

Once again a party is defeated by a failure to follow a basic principle of law: That in order to defeat a motion for summary judgment, evidence must be put forward admissible form.