McElhaney on Litigation
Matters of Timing
Consider the “When” as Well as the “What” in Planning Your Trial Strategy
Posted Jul 28, 2005 1:04 PM CDT
By James W. McElhaney
Vince Warbler, who teaches a seminar in corporate litigation at the law school (but who has never actually tried a case) joined our table at the Brief Bag. He started talking about what makes a good trial lawyer.
“Angus,” he said, “I am certain that you and I are of one mind on this: Chief among the essential qualities of the effective advocate is the ineffable ability to think quickly and accurately on your feet.”
“Sorry I can’t agree, Vince,” said Angus, “but a trial is not like a Jeopardy game. There’s no prize for being the first one to push the button. In my experience, thinking a problem through before trial is better than grappling with it for the first time in the heat of battle. Too often a split-second decision is the road to disaster.”
Warbler frowned as he stood up. “Sorry,” he said, “I’ve just got 15 minutes before my next appointment,” and walked out.
“Wonder if he really has an appointment in 15 minutes,” said Sandy Garcia. “I think that was a demonstration of his quick thinking,” said Dick Mudger. “But maybe Warbler has a point,” said Flash Magruder. “Especially when it comes to timing.”
“Good timing is at the heart of every case,” said Angus, “and it means a lot of different things. For example, what you put in your opening statement and what you save until later is a question of timing. So is witness order. So is whether you make a key evidence objection before trial in a motion in limine or decide that it might alert your opponents to something they didn’t know.”
Ernie Romero said, “Give us an example of how what’s in your opening affects the timing of a trial.”
“Sure,” said Angus. “Say you’re up against a notorious corner cutter like Slick Warren, who has a reputation for saying all kinds of things in his openings that he can’t prove. His plaintiff is asking for more than $500,000 in damages from your client, the Tri-City Lumber and Supply Co. He says they breached a contract to sell the lumber for a big building project.
“The only important document Slick has is an estimate—not an order form or contract, but an estimate—for materials Slick says Tri-City agreed to deliver for $850,000.
“Slick’s opening statement—a model of omission, distortion and cleverly misleading statements—claimed the estimate was actually a memorandum that proved the terms of an oral contract.
“So how do you handle the situation?” said Angus. “You could ignore everything Slick said and start your opening by saying, ‘Ladies and gentlemen of the jury, this is my opportunity to tell you what we expect to prove on behalf of the Tri-City Lumber and Supply Co.’ ”
“Doesn’t move me,” said Ernie.
“Me either,” said Angus, “but it’s what lots of lawyers do—the ones who have written out openings without thinking about what the other side is likely to do. And they stick to their plans no matter what. It can create the impression that there are two different cases going on, and that the defense lawyer is somehow in the wrong courtroom.”
Jurors at the Edge of Their Seats
“A second approach,” said Angus, “might start with listing the facts you think Slick Warren can’t prove and explaining what else is wrong with what he said.”
“That’s a lot more interesting,” said Ernie, “but won’t the judge interrupt and tell you not to argue your case until the end of the trial?”
“Certainly,” said Angus. “But a lot of lawyers try it anyway—especially those who belong to the ‘Think Quick Club.’ ”
“So what would you do?” said Sandy.
“Let me tell you what Clarence Randall did in the actual case,” said Angus. “He was the head of the firm I started with right out of law school. He stood up after Slick Warren’s opening and said, ‘Folks, if that’s all there was to it, there wouldn’t be a lawsuit. But here we are, because that’s not all there is to it.
“ ‘I suppose the most unfair thing any jury could be asked to do would be to decide a case on less than all the facts. And because Mr. Warren left out some very important facts, it’s my job to give you what’s called “the rest of the story.” ’ ”
“OK,” said Angus, “let’s stop there. How does the jury feel right now?” “They can’t wait to hear the rest of the story,” said Ernie.
“Why?” said Angus.
“Because,” said Sandy, “Paul Harvey, the famous radio personality, showed generations of Americans in his broadcasts that ‘the rest of the story’ would change their minds about everything they had just heard.
“But the head of your firm better have had something good, or he was going to have a very unhappy jury.”
“You’re right,” said Angus, “and he did. He had the jurors on the edge of their seats for his entire opening.”
“But why did those five words—‘the rest of the story’—change our perceptions?” said Beth Golden. “We didn’t even hear Randall’s opening, yet we all felt the difference.”
“Tension is a big part of it,” said Angus. “Tension creates interest. Jurors know that something’s going to happen—but they don’t know what, so they want to find out. “And that case taught me something else: Don’t argue in your opening statement. The hard sell increases sales resistance. Instead, tell the story of the case with word pictures so the jurors see for themselves what happened.”
“But what do word pictures have to do with pace and timing?” said Ernie.
Angus chuckled. “Ever notice how time flies when you’re listening to an interesting story?” he said.
“Wait,” said Sandy. “What you’re talking about doing doesn’t make your side of the case any shorter—it just seems shorter.”
Angus laughed. “That alone makes it worth doing,” he said. “But word pictures can make your case shorter. They help you keep the story simple.”
“Easier said than done,” said Dick Mudger.
A Story of Then and Now
“It’s not so hard,” said Angus. “Start with impeachment—the story within a story. It’s something you should plan whenever you can, not just stumble on in the middle of trial.
“One of the easiest—and most powerful—impeachments is to show the difference between what the witness says now on the stand and what he actually did.
“I call this kind of impeachment ‘linking,’ ” said Angus, “because the most effective way to do it is to bring out the two parts—what the witness said and what he did—one right after the other so the jury will link them together for you.
“Take the case of Marty Drewek, a motorcyclist from the wrong side of the tracks, who was out in Fox Hills one Sunday afternoon. He was riding up and down Shadow Bend Lane, a dead end street the local residents call a cul de sac. That’s where the defendant, Brewster Morris, lives. Right next to the bend in Shadow Bend Lane.
“After five or six trips between Fort McCallister Road and the dead end of Shadow Bend Lane, Marty Drewek was suddenly confronted with a large tree limb stretching into the road as he came around the bend. He lost control of his motorcycle when he tried to swerve and avoid the limb, and was se riously injured.
“Brewster Morris is on the stand when you try a little linking:
Q: You say that you never meant to hurt Marty Drewek?
A: Absolutely not.
Q: Weren’t trying to set up an obstruction?
Q: Put up a roadblock?
Q: Or just scare him out of your neighborhood?
Q: It was Sunday afternoon and you were just cleaning up your yard?
Q: I was about to say a quiet Sunday afternoon, but it wasn’t quiet when Mr. Drewek was there, was it?
Q: Did you say on direct examination you could hear that motorcycle when it was all the way up to Fort McCallister Road?
A: I did.
Q: More than half a mile from the front of your house?
A: Absolutely. It made a fearsome roar.
Q: And the dead end of Shadow Bend—that’s about a football field’s length away from your house—100 yards?
Q: You could hear him when he was there, too?
A: Of course.
Q: That’s where Marty was when you put the limb in the road, wasn’t it?
A: I guess so.
Q: And anybody who was down at the dead end of Shadow Bend Lane would have to get past that tree limb to leave your neighborhood. True?
Q: But Marty Drewek didn’t make it, did he?
A: I guess not.
Q: You don’t have to guess, Mr. Morris. You were standing right there and saw it happen, didn’t you?
Q: No further questions.”
“Wow,” said Ernie, “that’s impressive.”
“It was only a two part story,” said Angus. “You’re the one who put it together.”
James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.