McElhaney on Litigation

No Time To Waste


The case was a simple one: Did young so­cialite Melanie Cartwright hire a contract killer to murder her 89-year-old billionaire husband? What we knew from the newspapers was detailed and fascinating. But what we learned in court was disjointed and superficial.

“Mad Dog” Bradley fumbled around for two or three minutes getting his notes together and then gave his traditional harangue about law and order—but didn’t actually say anything about the case until he had used almost 15 minutes of the half-hour the judge gave him for his opening.

Maggie Ringold didn’t do any better. She gave what the jury would probably hear again in final argument: her standard speech about proof beyond a reasonable doubt.

THE GOLDEN MOMENT

Later, over a cup of dark mountain roast in the do­nut Hole, Sandy Ramirez asked Angus what he thought.

“Both of them wasted the golden 30 seconds,” said Angus, “the first half-minute when you have everybody’s undivided attention and the opportunity to make a real impact on the judge and the jury.”

“You always hear that about opening statements, but does it really make a difference?” said Mike Torrent.

“It’s not just opening statements,” said Angus. “The first 30 seconds to one minute is the most important part of almost everything you do in trial.”

“Wait a minute,” said Regis McCormick. “I’ve heard a few really fine opening statements, but I’ve never heard a jury voir dire that I’d even call good. How could there possibly be a golden 30 seconds for voir dire?”

Angus smiled. “Randi McGinn of Albuquerque, N.M., was defending a middle-aged woman—a professional baby sitter—who was charged with murder for shaking a 6-month-old baby to death. The trial judge gave the prosecution and the defense 20 minutes apiece to talk to the jury.

“The prosecutor did all the standard stuff, trying to get commitments from jurors that if the state met its burden of proof, they would vote guilty.

“But not McGinn. When it was her turn, the first thing she said was:

“ ‘When the prosecution read the charges, I saw the looks of horror on all your faces. This is a despicable crime. What could be more terrible than shaking a helpless 6-month-old baby to death?

“ ‘I just want you to know that this woman (putting her hand on the defendant’s shoulder) did not commit this crime. She is not guilty.

“ ‘And that brings us to what Judge Garcia has given us 20 minutes to talk about—getting blamed for something you didn’t do.

“ ‘I just want to know whether there is anyone here—in this panel—who has ever been blamed for something he or she didn’t do.’

“That,” said Angus, “was the 30 seconds that got everyone on the panel talking about guilt and blame and innocence and justice until time was up. By then Randi had seen every one of them debating the moral imperative that was at the heart of her case and knew how each person on the panel felt.”

“That was great,” said Mike Torrent.

“How about the first 30 seconds of an opening statement in a civil case?” said Sandy Ramirez. “Can you really do anything in that amount of time?”

“You’d be surprised what you can accomplish in five seconds,” said Angus. “How about this one? You may have heard it before, but it’s still powerful:

“ ‘Ladies and gentlemen, this is a case about a young woman’s eyes.’

“So what do you think this case is about?” said Angus.

“Something happened to this young woman,” said Sandy. “Maybe she’s blind. Maybe she’s going blind. Whatever it is, it’s bad.”

“Then come the next 10 or 15 seconds,” said Angus. “ ‘If you had been in the corporate headquarters of the Midwest Conveyor Manufacturing Co. on June 14, just two years ago, you would have seen six corporate officials given the opportunity to prevent a tragedy.’

“Now what do you know?”

“It happened,” said Sandy. “To her eyes. And those six guys could have prevented it, but they didn’t.”

“Why not?” said Angus.

“Money,” said Mike. “So give us the rest of the story.”

“See how powerful 15 or 20 seconds of foreshadowing is?” said Angus. “You know what happened, but you can’t wait to hear the details and have your ideas validated.”

“I hear you,” said Regis McCormick, “but why is it so important to have these impact phrases come at the beginning? Why not in the middle or the end?”

“You’ve heard of primacy?” said Angus. “What you hear first you’re more likely to accept as being true. Why do you think that is?”

“I don’t know,” said Regis.

“Because you build on what you hear first. You start with what you get at the beginning and see how the rest goes with it. To put it together you have to assume—at least provisionally—that what you heard first is true. Then the more it all fits together, the more you accept what you started with.

“That’s why it’s a shame to waste those early moments when people want to hear about the cornerstones and what kind of building they can put together. But too often lawyers waste those moments shuffling papers, rattling off meaningless platitudes or talking about abstract ideas that don’t fit anywhere yet.”

“I see how the first 30 seconds can work in jury selection and opening statements,” said Mike, “but what about direct and cross-examination?”

A REAL JUMP START

“Probably the most brilliant start of a direct examination I ever saw,” said Angus, “was done by Keith Roberts from Wheaton, Ill., in a trial demonstration at the Nation­al Institute for Trial Advocacy in Boulder, Colo. It was the direct of the defendant in a criminal assault case.

“But before you hear what Keith Roberts did, think for a moment how unnatural the start of the typical direct examination of the defendant in a criminal case sounds. It’s a jumble of the defendant’s name, address, age, education, military service, occupation, marital status, children, church, civic organizations, hobbies and anything else the defense lawyer can think of that might make the defendant seem like someone the jury wouldn’t want to send to jail.

“But here’s how Keith Roberts began his direct:

Q: You’re Tom Milligan?

A: That’s right.

Q: Tom, before we get started here, let me ask you: Do you understand the nature of the charges this man has brought against you?

A: Well, I think so. He claims I attacked him or something in an alley outside the Seaman’s Cove Bar.

Q: (In an accusatory tone) Tom Milligan, is that right? Did you attack this man outside the Seaman’s Cove on the evening of Dec. 8—or any other time?

A: Absolutely not!

Q: Tom, I’m going to ask you all about Dec. 8, but before I do, I’d like the ladies and gentlemen of the jury to get to know a little about who you are, so let me start with your family life …

“By now you’d think I’d know better then to ask whether you can start cross with a bang,” said Sandy, “but I want to hear it anyway, because it seems to me like the setup you’d have to do on cross would take too long.”

Angus just cocked his head. “As part of the Watergate scandal,” he said, “John Connolly, who had been secretary of the treasury under President Nixon, was charged with having taken a $10,000 bribe to influence the president to raise federal price supports for milk.

“The principal witness against Connolly was Jake Ja­cobson, a disbarred Texas lawyer. Jacobson got the prosecutors to agree to help him get reinstated and get a grant of immunity for three federal perjury charges—all in return for testifying against Connolly.

“Connolly was represented by the famous Washington, D.C., lawyer Edward Bennett Williams, who meticulously took Jacobson apart and got Connolly acquitted.

“Twenty years later, after Williams, Connolly and Ja­cobson had passed away, Michael E. Tigar of Wash­ing­ton, D.C., who sat second chair to Williams in the trial, was asked to do a re-enactment of Williams’ cross-examination for a meeting of the ABA Section of Liti­gation.

“But instead of a re-enactment, Tigar decided he would do it his way. His first question was:

Q: Mr. Jacobson, you’re a liar, aren’t you, sir?

A: No, I’m not!

Q: Take a look at this document. It says “Statement of Jacob Jacobson” on the top. That’s you, isn’t it?

A: Yes.

Q: And that’s your signature on the bottom?

A: Yes.

Q: And the first sentence says, “I lied when I testified before the grand jury,” doesn’t it?

A: Yes.

Q: So you are a liar, aren’t you?

“It was magic.”


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 Fred Parks 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.


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