ABA Connection

Say the Right Thing

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Angus was the last of four speakers at a trial strategy program. The first speaker talked about “Winning the War of Attri­tion–Creative Use of Rule 56 for Partial Summary Judgments.” The second suggested “Ham­string Your Opponent’s Expert with Daubert,” and the third ran through “Ten Neglected Ways to Get In or Out of Federal Court.”

When Angus stood up he said, “I think it’s only fitting that I go last, because I’m here to talk about trial strategy–not pretrial strat­egy. And the truth is, once you get through the pretrial challenges that shape and limit what gets to court, the law doesn’t have much to do with how the case is actually tried.

“As Glen Boudreaux of Houston puts it, ‘A trial is not a legal puzzle–it’s a morality play.’ Which means the real strategy in trials is how you play out the conflicts created by the collisions of character, candor, deception, power, weakness and vulnerability.

“Those moral conflicts create tangles the law cannot begin to resolve, so it leaves them for ordinary people–juries to sort out as best they can.

“Enter the storytellers. The advocates. The ones who undertake to lead ordinary people through the minefields of morality.”

I was in the back of the room taking notes. Here they are.

Plain Talk

Sometimes the most powerful counter to an ingenious pretrial maneuver is a little ordinary English. Take Exxon v. Lloyd’s of London, for example. Exxon was suing Lloyd’s for refusing to pay on two insurance policies that Exxon said would help cover the cost of cleaning up the oil spill from the Exxon Valdez in 1989.

One of the insurer’s defenses was that Exxon had been so reckless in what it did that the spill wasn’t a “fortuity” and was not an insurable loss. The trial judge granted the motion that the question of whether the spill was a fortuity–would be for the jury, not the judge, to decide.

It was a master stroke. All of Exxon’s mock trials showed that, no matter how the jurors were instructed, they didn’t understand what a “fortuity” was. The mock juries thought it meant they were to decide who was at fault for the spill. If it was Exxon’s fault, Lloyd’s wouldn’t have to pay.

Because “fortuity” turned out to be such a powerful lightning rod for fault, the two lead counsel for Exxon–George Bramblett of Dallas and the late Don Bowen of Houston–decided not to use the word in their case at all.

Exxon’s first opportunity to use ordinary English to explain what the case was about came during jury selection. One panelist raised her hand and said, “Mr. Bowen, I feel like this Capt. Hazelwood may have been somewhat intoxicated at the time the boat ran aground.”

Bowen asked, “Does anybody else feel that way?”

A few hands went up. Bowen said, “Everybody’s hand ought to be up. He was drunk as a skunk! Look, this is our oil. This is our boat, and Capt. Hazelwood is our captain. This is our mess, and that’s why we need insurance.”

Later, talking about the insurer’s defenses, Bowen said, “You know what these lawyers from Lloyd’s are tel­ling you when they say this spill was ‘not a fortuity’? They’re tell­ing you it wasn’t an accident; it was on purpose. They’re telling you we kept Capt. Hazelwood on the Valdez–knowing he had a drinking problem–so he could spill all this oil and we would spend over $2 billion cleaning it up so we could turn around and try to collect less than 10 cents on the dollar of our loss from Lloyd’s.”

The jury laughed, the “fortuity” problem disappeared, and Exxon won.

The Sense Of Injustice

The center of every well-tried case–the heart of the morality play–is an injustice that cries out to be set right. Why not just ask for justice? Because there is no real agreement about what justice is or what it should require. Justice is too vague an idea to rally people into action. As law professor Edmund Nathaniel Cahn said in his 1949 book, The Sense of Injustice, invoking justice simply evokes contemplation, and “contemplation bakes no loaves.”

But if justice is just a vague ideal, injustice is real. Everyone has suffered unfairness, and there is a lot of agreement about what is wrong or unfair. As Cahn said, injustice has the power to stir people’s blood.

Which means your case should not be about how deserving or righteous your client is. It should be about how he has been wronged–or would be wronged if he is made to pay for something he didn’t do.

Righting a wrong–or preventing one–means you should put the focus of judgment on the opponent in your case. You want the other side not your client to be on trial.

What You Hear First

The opening statement is typically the most important part of any case, civil or criminal. But not because the jurors necessarily make up their minds during the opening statements. They know they haven’t heard the evidence yet. They may even be trying to reserve judgment until they’ve heard the whole case.

It’s because to understand any story–to see how the pieces fit together–you have to provisionally accept what you hear at the start. Other­wise, you can’t understand what comes later.

The power of provisional acceptance is remarkable. It’s the force behind the effect of primacy–that you’re more likely to believe what you hear first. Primacy applies to every part of the case–especially the opening statement. So how you organize your opening statement is just as important as what you say or how you say it.

Sara Blooming v. Midwest Conveyor Belt Manufacturing Co. Inc.–a mock trial written by Gary Robb of Kansas City, Mo.–is a perfect vehicle for showing how thoughtful organization can make the story of your case convincing.

Sara Blooming, a third-grade teacher at Jefferson Ele­mentary School, took her class on a field trip to the Sun­shine Cola Co., a local soft-drink bottling plant. While she was there, a freshly filled bottle of cola jammed in the conveyor belt that took the bottles from the filling machine to where they were packed into cartons.

Instantly, other bottles started slamming into the one that was stuck, and it exploded. A 21⁄2-inch piece of broken glass flew into Sara’s right eye, and she was taken to the hospital, where her eye had to be surgically removed.

It was a shocking injury, but not a slam dunk case for the plaintiff. After all, Ms. Blooming was in a restricted area that was closed to the public when she was hurt. And she had taken off her protective plastic glasses that all visitors were required to wear in the plant.

Besides, establishing that Midwest’s conveyor belt was “unreasonably defective in design or manufacture” would be difficult. There were guardrails and guides everywhere on this new, state-of-the art design. While it was a high-speed system, only one other bottle had ever gotten stuck in one of the company’s new conveyors.

So, if you represent Sara Blooming, where do you begin your opening statement: Talking about a dedicated teacher who was helping start young people on the road of life? At the bottling plant so the jurors would vicariously experience the trauma of being struck in the eye with flying glass? With Sara’s vision–one eye gone and the other one suffering from uncontrollable sympathetic blindness?

Or would it be better to start with liability, or how Sara’s injury affected her? For decades, the received wisdom from the plaintiffs bar has been to start with how bad life has become for the plaintiff. But in Sara’s case, there are two problems with that approach: First, opening with the sympathy card sends the subliminal message that your liability case is weak. And second, even with strong liability, waiting too long to talk about fault means you’ve delayed putting the defendant on trial. You want the focus of judgment to be on Midwest Conveyor Belt Manufacturing Co. during the entire case.

But if you start with the story of fault–the facts that show blame–how can it have any impact until the jury knows what that fault caused? Doesn’t that require starting with Sara’s injuries? Not necessarily.

The Power Of Foreshadowing

One possibility would be to foreshadow Sara’s in­jury–hint at it with just a few words–and then turn to fault. That way, you wouldn’t talk about the details of Sara’s injury until after the jury was already angry at Midwest for what it did. Like this:

“Ladies and gentlemen, this case is about a young wom­an’s eyes (short pause). “If you had been in the corporate headquarters of the Midwest Conveyor Belt Manufacturing Co. on the 6th of June 2002, you would have seen six corporate officials have the opportunity to prevent a tragedy. They are the directors of Midwest Conveyor Belt Inc., and they have just been informed that their brand-new System 3000 conveyor belt installed in the PapCo Brewing Co. had failed.

“This new conveyor system was designed to move bottles–both glass and plastic–through bottling plants faster than they had ever moved before. Cutting time and in­creasing profits.

“And on June 6, these six directors just got word that something had gone wrong with the very first System 3000 they made. A bottle of freshly capped beer at PapCo didn’t make it around the first big corner after leaving the filler. It fell over and got stuck–jammed–between the moving parts of the belt and the guides and guardrails that were supposed to help it around the corner. And before the machine operators at PapCo could turn off the conveyor, hundreds of other bottles slammed into the one that was stuck.

“In seconds it exploded, glass shrapnel flying everywhere. Fortunately, no one was hurt. Still, PapCo was concerned enough to report the incident to Midwest by e-mail, telephone and a certified letter.

“Midwest’s directors agreed that they would decide what to do about this incident at their next meeting, on July 12.

“If you had been at the July 12 meeting, you would have heard the decision of those six corporate officials. It was unanimous. They agreed there was noth­ing wrong with their System 3000 conveyor. This was just a fluke. It would never happen again. There was no need to send a design engineer or even a mechanic 100 miles to Chicago to investigate what happened.

“And they made a second System 3000, exactly like the first one at PapCo Brewery. No changes or improvements. They sold it to the Sunshine Cola Bottling Co. here in town. “Then, if you had been with Sara Blooming’s third-grade class from Jefferson Elementary School on their field trip to Sunshine Cola on the 7th of March 2003, you would have seen for yourselves the results of that corporate decision.

“It happened again. Only this time, someone was there.

“Sara Blooming, her teaching assistant and her little flock of 24 third-graders were all up on the observation platform overlooking the bottle washer and the filling machine, listening to Mr. Watkins from Sunshine Cola explain what was going on. Everybody had their special protective plastic glasses on.

“Then Sara’s teaching assistant said, ‘I just did a head count. We’ve only got 23 students. Someone’s missing.’

“Sara did a quick check to see who it was. It was probably Josh McKittrick, she thought, and she was right.

“So she said to her assistant, ‘Wouldn’t you know it’s Josh. He’s probably down there looking at the machines. I’ve got to go find him. Don’t let anybody leave.’

“She ran down the stairs and went into the washing and filling room, looking for Josh. As soon as she opened the door, the hot, moist air from the washer fogged her protective plastic glasses. She pulled them off so she could see and started looking for Josh. “That’s when it happened again.

“Just like the first time at PapCo Brewery, a bottle com­ing around the big corner after leaving the filler fell over and jammed between the conveyor and the guardrails. And just like the first time, all the other bottles started slamming into it. And the jammed bottle exploded, sending glass shrapnel everywhere. A 21⁄2-inch spear of glass came flying through the air. It pierced Sara’s eye, slicing through the lens, cutting its way through her iris, going all the way through the retina at the back of her eye, where it severed her optic nerve.”

One On One

James W. Jeans Sr., of Lawrence, Kan., who lectures and writes on trial advocacy, says we all mimic the mediocrity of other lawyers. He’s right, especially when it comes to the mindless clichés we use in direct and cross-examination.

Q: Mr. Wilson, directing your attention to the afternoon of March 10, 2005, would you indicate for the benefit of the judge and jury what, if anything, you were doing on that occasion?

And that’s what made the demonstration by Keith Roberts of Wheaton, Ill., of the direct examination of the defendant in a criminal case for a trial advocacy program such a contrast from the standard approach:

Q: You’re Mark Reynolds?

A: Yes, sir. That’s right.

Q: Mark, do you understand the nature of the charges this man, Allen Dutcher, has made against you?

A: Well, I guess so. He’s claiming that I jumped him in the alley outside of some bar down on the water­front in Nita City on the night of Sept. 15.

Q: Mark, is that true? Did you attack Allen Dutcher outside the Seamen’s Cove on Sept. 15, or on any other night?

A: Absolutely not!

Q: Mark, I’m going to ask you all about everything you did on the evening of Sept. 15, but before I do, I’d like the ladies and gentlemen of the jury to learn a little about who’s talking to them. So let’s start with what you do for a living.

See what Roberts accomplished in less than a minute: First, he leveled the playing field. This is no longer The State v. Mark Reynolds. It’s “this man, Allen Dutcher” against Mark Reynolds. It’s one person’s credibility against the other’s.

Second, the denial of guilt comes right at the beginning. It’s the most natural place for a “Wait a minute, I didn’t do this” kind of statement.

Then comes what kind of person Mark Reynolds is, when the jury is ready to start fitting it into the case and listen to him tell about Sept. 15.

The Real Witness On Cross

The old saying is, “there are no geniuses in the court­room, only drudges in the office.” That’s especially true with cross-examination.

You’re the real witness on cross-examination. It’s your opportunity to tell the “rest of the story” so the witness on the stand has to agree that what you say is true. And you “testify” with short, leading questions you know the witness must answer in a certain way or be exposed as changing his story.

But that’s just the start of a commanding cross. The real power lies in the language of persuasion: the vocabulary list you create when you’re planning cross in the office. Let’s say you represent the defendant in a motorcycle case: a homeowner in an upscale neighborhood who is being sued for putting a tree limb in the street, right in the path of the motorcyclist, Marty Drewek.

You have a whole laundry list of facts to cover on cross-examination, including speed, visibility (it was dusk), the fact that the cyclist’s helmet was off so he could turn his head and listen to the motor, the immense power of his new motorcycle, and whether he was trying to jump his motorcycle over the tree limb when he lost control.

Looking at your list, you realize there is an overarching idea that ties everything togeth­er: personal responsibility. So you make a list of the words you will use in your questions to emphasize personal responsibility: know, understand, able, experience, practice, want, de cide, choose, pick.

Look at the kinds of questions you can ask using words like those:

Q: Mr. Drewek, you decided that instead of a car, you were going to ride a motorcycle as your means of basic transportation?

A: That’s right.

Q: You wanted to ride the bike to and from work?

A: Yes.

Q: And for recreation?

A: Absolutely.

Q: You’re an experienced motorcycle rider?

A: Twelve years.

Q: You were tired of cars?

A: Sick of them.

Q: And wanted a bike?

A: Yes.

Q: A big bike?

A: Right.

Q: The motorcycle you picked was a Yamaha 1200 FSR Cafe Racer?

A: That’s the one.

Q: The motorcycle you chose has a 1200 cubic centi­meter engine?

A: Yes.

Q: 157 horsepower?

A: Yes.

Q: The bike you decided on goes 60 miles an hour in first gear?

A: I guess so.

Q: I don’t want you to guess, Mr. Drewek. Is that what this brochure says about the Yamaha 1200 FSR Cafe Racer?

A: Sixty in first.

Q: The bike you bought goes 97 in second gear?

A: Sounds right.

Q: Does that mean yes?

A: Well, it’s actually a little faster. Closer to 105.

Q: Does 130 in third?

A: Easily.

Q: One hundred fifty-five in fourth?

A: Yes.

Q: It has a fifth gear?

A: Yes.

Q: Does over 175 in fifth?

A: Yes.

Q: You say you were only going 25?

A Bad Stew

Every case worth trying has problems. in final argu­ment, you’ve got to deal with those problems instead of just summarizing the evidence.

If you represent a large corporation that has done nothing wrong other than be a big target, you need to show why it’s an injustice to make the company pay for what someone else did.

One way to do that is with a story about getting blamed for something you didn’t do when you were a kid and how your punishment still gives you a lump in the throat 20 years later.

If you represent Sara Blooming, and the jury legitimate­ly learns she was having an extramarital affair, you need to take away the jury’s tendency to punish that conduct with its verdict.

Faced with a problem like that, the late John C. Shep­herd of St. Louis, a past ABA president, turned to his client in the middle of final argument and said, “Bill, do you see the kind of pain and trouble you’ve caused by associating with someone outside your marriage? Don’t you ever do that again!”

One difficult problem is when you catch an opposition witness in a relatively unimportant lie, but you can’t pin anything else on him. John Burgess of San Francisco developed a classic argument for that situation:

“Folks, you’re going to have a problem with Monrad Alexander’s testimony. Part of what he told you just isn’t true. I know that won’t give you any difficulty, but what about everything else he said?

“You know, ever since Mom passed away, my family and I take Dad out to supper every Sunday afternoon. Just a few weeks ago we took him to a new restaurant on the edge of town–it features ‘home cooking.’ One of the dishes on the menu was beef stew, which was always Dad’s favorite. Mom used to cook it for him. And even though Dad talked about the swordfish steak, when the waiter came to our table, he said, ‘I guess I’ll have the beef stew.’

“The waiter brought out a beautiful plate of stew–big chunks of beef and new potatoes, whole little onions, nice bits of carrot, rich brown gravy. But when Dad took his first bite, he said, ‘I can’t eat this. The meat’s rancid. It’s been left out too long.’

“Now, what was Dad supposed to do with that stew? Should he have picked through it until he found something good? Or should he have asked the waiter to take it back and bring him something else?

“What are you entitled to do with the testimony of Monrad Alexander?”

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.

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