Category Archives: Trial Practice

 

June 25th, 2008

Trial Blog, Part 2 (Jury Selection Starts)

Continued from yesterday, when I was assigned to a trial judge:

Wednesday, June 11th: Since my home is more convenient to the courthouse than my office, I’ve hauled back a few trial bags full of stuff, and have my skeletal model and medical illustrations strewn about the home. My five year old sees the trial bags and tells my wife, “Daddy’s got a LOT of homework.”

I prepare for trial by thumb wrestling with the kid. He beats me. But he cheated by using two hands. I hope it’s not an omen.

Thursday, June 12th. Jury selection starts. The leasing company has a new lawyer, since the other one had a jury picked elsewhere. We have a panel of 25 and will use a courtroom for selection. Clients do not attend, though permitted. It is the local custom due, in large part, to the fact that we usually use cramped jury rooms to pick.

Some folks say cases are won and lost at this stage, so you hate to mess up. Some of the jurors that we see:

1. A juror says to one of the other attorneys, “The insurance company should just give her what she asks for” (since liability is already decided). I don’t know if he is trying to talk himself off the jury or mis-speaking. He speaks English well, but it is clearly a second language to Spanish. I follow by asking, if Ms. Plaintiff asks you for all the gold in Fort Knox, does that mean you would give it to her?” He says of course not, indicates he had mis-spoken, and that any award must be fair and reasonable. Defendants want to knock him off for cause, and I say no. We get a judicial ruling. I lose. He’s gone for cause.

2. A juror says he doesn’t feel right holding the leasing company (owner of the car) liable just because the driver was negligent. I don’t think he’s trying to talk himself off, but it doesn’t really matter. He’s a goner. Defendants love this guy and desperately try to rehabilitate him but he sticks to his guns. Gone on consent.

3. A juror claims not to speak English well. I’ve seen this routine many times before. I never believe it because, if they couldn’t speak well, they wouldn’t have made it past the jury clerk. In order to avoid a mass exodus from the courtroom, I use my canned speech about the importance of jury duty, it’s place in the Bill of Rights, and the desires of our nation’s Founders to keep power in the hands of the people, not all-powerful judges.

4. A juror has a son about to do his third tour in Iraq. He would otherwise be OK, but as serious as my client’s injuries are, I don’t want him doing a comparison to what his son and friends are going through. I exercise my first peremptory challenge.

Lunch break across the street at the Court Deli. The crowd is a stew of lawyers and litigants, witnesses being prepped, cops and court officers, judges and clerks. Perhaps some folks who are building the new Yankee Stadium two blocks away are also in the crowd. Soccer is on the big screen TV. You watch what you say and you use your best table manners in this diner because you don’t know which members of the jury pool may be close at hand.

Selection goes slowly with four lawyers. The crawling pace and a revised trial schedule from the judge shreds my witness schedule. I have to start over. Scheduling witnesses, which always includes doctors, is the bane of trial practice.

Tomorrow we will only work until 3. I hope to finish selection and open. Monday is off. Opening Friday afternoon and then continuing Tuesday is not an ideal situation.

I arrive home exhausted and a bit agitated at the delays. The new puppy promptly pees on the rug.

As I type this up at night I see the exploding story of Ninth Circuit Chief Judge Alex Kozinski and his collection of comically lurid photographs is all over the legal blogosphere. While the story is certainly fascinating, and has plenty of sizzle, I can safely predict that not one single juror in the room knows who the judge is. Or cares. The lawyers probably don’t know him either. It bears no relation to real life. Unless, of course, you are the guy in the middle of the storm.

Next up: Jury Selection Continues

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Addendum — The full series of posts:

 

June 24th, 2008

Trial Blog, Part 1 (Bronx Trial Assignment Part)

This blog was silent while I was on trial. But I kept real-time notes. They now follow, with Part 1 today:

Tuesday, June 10th: Arrive Bronx County Supreme Court for 9:30 calendar call in “STP,” the Special Trial Part. Justice Howard Silver acts as traffic cop up on the 7th floor of the massive courthouse, sending some cases to pick, adjourning others and hopefully settling a few. On previous appearances here my case had been marked, after several adjournments, “final.” Then it was marked “final, final.” And finally it was marked “absolutely final,” as he made clear he would not accept additional applications for more time.

One of my three adversaries strolls in at 11:00, and asks for another day or two, because he has a jury picked in Brooklyn. That case will either settle, he says, or he will find another attorney to try this one. Silver says no way, no how. Go pick.

At 12:30 we are assigned to a judge (instead of being sent to the jury clerk), and told to report back at 2:00. The assigned judge takes a shot at settlement.

The case details: July 2005 rear-end collision on a local highway. My client is a back-seat passenger in the lead car. She suffers a fractured hip, among other injuries, has a plate and screws put in, and stays in the hospital and rehab for 16 weeks. Her orthopedist says she has traumatic arthritis now and will need a hip replacement in the future. She is in her 60s and worked as a nurse’s aide. Summary judgment was granted 20 months ago against the driver and owner of the car that hit her from behind. Interest at 9% will run from that point. There is also an open issue, albeit a small one, as to whether the driver of her car shares in any liability.

For reasons that escape me, the leasing company that owns the car that plowed into her from behind never called me and seriously tried to dispose of the case. This is odd since loss exposure can reach seven figures, with big interest piling up. They have litigated to the end of the line. As a result of the running interest, and a deterioration of my client’s condition over the two years, I have raised my demand. Four times. That’s what happens when you use real numbers for demands instead of pie-in-the-sky stupid numbers.

The three defense lawyers represent the driver of the host vehicle, the driver of the trailing vehicle and the leasing company for the trailing vehicle. Under New York’s vicarious liability law, owners were liable for the negligence of their drivers until Congress passed the Graves Amendment, also in July 2005. I quickly filed this suit after the House and Senate agreed to the amendment, but before President Bush signed the legislation. My client can, therefore, proceed against the leasing company. (Not so for the also-injured driver of the host vehicle, who filed suit well afterwards.)

Settlement talks don’t work. We are told to return Thursday to pick the jury and to be prepared to open Friday.

Next up in Part 2: Jury Selection Starts

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Addendum — The full series of posts:

Synopsis of the case at my firm’s website.

 

September 25th, 2007

Ahmadinejad and Cross-Examination

The appearance of Iranian President Mahmoud Ahmadinejad at Columbia University was the source of much angst in many quarters. But it was also an important lesson for trial attorneys.

Sometimes, we get witnesses who can’t answer a question directly, no matter how straightforward. The witness dodges and weaves and ultimately gives answers that defy credulity.

An example from press reports yesterday, was Ahmadinejad claiming that there were no homosexuals in Iran. Not one.

Sometimes the best way to approach such a witness is not to shut them down, but to let them talk. And talk. And talk. Let the jury see the evasiveness. And when the question isn’t answered, simply say, “Perhaps I asked the question poorly, let me try again.” Then ask it again the same way. And again.

Hand them all the rope they want to hang themselves.

 

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.)