January 10th, 2008

What to Wear To Court — Dress Up or Down?

A story making the rounds the last few days involves a judge that delayed a sentencing for hours because a prosecutor was wearing an ascot instead of a tie. You can find various opinions on the subject at the WSJ Blog and Above the Law along with a host of others. But it was Anne Reed who posted on “What Not to Wear” that caught my attention.

Because the issue of what not to wear to court begs the question of what a lawyer should wear. I’ve seen everything from schlumpy sport coats to silk pocket hankies with folks dressed to the nines.

So if you are appearing in the well of the courtroom, do you dress down with modest clothes or up with your best? I once tried a case in the Bronx with a guy whose collars were always bent out of shape because there were no collar stays. I mentioned it to him in passing and he told me, “I do it on purpose.”

So here’s my take: I dress boring. Neat and clean blue and gray suits. Modest ties. No French cuffs, pocket squares or spit-shined shoes. My goal is simple: I don’t want the jury to even notice what I’m wearing. I don’t want them distracted from the story that I think needs telling, or the cross-exam I’m undertaking.

I’m in the courthouse to do a job, and that is to effectively communicate the case. And dressing either up or down will make me stand out in some fashion and that is a distraction that takes away from the case. Of course, since I’m representing the plaintiff, I can’t afford to have any juror take offense or be distracted. Defense lawyers, especially criminal defense, may feel like they can get more yardage out of a little schtick. They only have to convince one person, after all.

Your mileage may vary.

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.)

March 27th, 2007

Practice Tip: One Way to Cross-Examine The Attractive Doctor

A recent British study confirmed something most of us all know intuitively:

Juries trying criminal cases are likely to be more lenient when the person in the dock is physically attractive, psychologists say.

So how do you level the playing field if, for example, you have an attractive doctor as a defendant in a medical malpractice case? And by attractive, I mean not just physically, but someone with good credentials who makes an impressive personal appearance by their ability to speak well. This is important if the patient chose the doctor.

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 there is something else at play here. The doctor was trusted, and the trust was betrayed. Betrayal often unleashes a flood of powerful emotions.

The instinct for confrontation must, at times, be avoided, and saved for those few special moments when the witness, who has now been built up, strays from the straight and narrow. And if that happens, it will have far greater impact than if you had simply tried to trash the doctor from the outset.

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

February 15th, 2007

Scooter Libby’s Jury and The Valentine’s Day Shirts

It was just last week that I discussed a personal injury attorney that talked himself off a jury I was picking, and how this was a lost opportunity to see trials from a wholly new perspective.

Then in today’s New York Times (reg. req.) comes this remarkable piece about the Scooter Libby jury:

Before the jurors departed on Wednesday afternoon, they filed into the courtroom, all but one wearing bright red T-shirts with a white valentine heart over their clothes, to the uncertain laughter of many in the courtroom.

But as one juror, a retired North Carolina schoolteacher, rose to speak, Judge Walton became visibly anxious that the juror might say something inappropriate that could threaten the trial. Jurors are not supposed to speak and are supposed to make any concerns known through notes to the bench.

The juror said they were wearing the shirts to express their fondness for the judge and the court staff on Valentine’s Day. He then added, to the judge’s growing discomfort, that they were unanimous in this sentiment, but they would all be independent in judging the evidence in the Libby case.

The sole juror who apparently declined to wear the shirt was a woman who had been a curator at the Metropolitan Museum of Art.

Critics of the jury system like to think that juries are dumb; that they are all malleable creatures that will do whatever a lawyer asks of them. In doing so, they conveniently forget that juries are usually comprised of community members no different from one’s own friends, relatives and neighbors.

I am reminded of this daily, as I look at four Watergate trial images, including two of the jury, that grace my office wall , souvenirs of a Queens medical malpractice trial where I represented the estate of the artist. One is above and you can see them all at my law firm website.

The jury sketches (and Scooter Libby’s jury) should be a constant reminder that power doesn’t rest in the hands of one all powerful judge, but in the hands of your neighbors. Who should never be underestimated.

February 6th, 2007

Personal Injury Lawyer Talks Himself Off Jury Duty

Yesterday I had a pool of 30 jurors. Four of them were lawyers. One tried personal injury cases.

Now you would think that of all people in the world, the ones that try cases would be least likely to say things to deliberately get booted from the jury panel. After all, no one appreciates the need for jurors more than those who work in the well of the courtroom.

But more importantly, the experience of being a juror is one that every attorney should have. You might not learn anything new about law or about trial tactics in a routine matter, but you learn what jurors go through. This potential juror who did mass torts litigation proceeded to say the magic words to get kicked, either because he was too busy, or just too snobby, to sit on a routine trip and fall sidewalk case. (Since jury duty can be deferred a few times for scheduling problems, it was likely unrelated to being too busy.) Deliberately getting kicked off a jury panel is, in my view, a lost opportunity.

I sat once in the late ’90s on a criminal case. And while it was a run-of-the-mill burglary — knocking off a fish truck in broad daylight in midtown Manhattan while being trailed by two undercover cops — and the lawyers weren’t that good, it was an altogether different experience seeing a trial from the jury box. And from the jury room.

No one should ever mistake the inside of a courtroom for the inside of a jury room. And no lawyer should turn down the opportunity to serve.