Building Litigation Skills in PI Cases: Wound and Redemption Themes, Strategies and Other Issues

Video Lecture By Thomas Gagne, Esq.
For
The National Business Institute

Good morning. I’m Attorney Thomas Gagne. I’d like to thank the fine folks at NBI for making this CLE possible. I’m a Personal Injury Attorney with a practice in Greenville, South Carolina. I’m entering my twenty – seventh year as a trial attorney. This is my seventh CLE module.

This afternoon I’ll be discussing a few litigation principles I’ve found helpful. During my career, I’ve prosecuted and defended hundreds of criminal and administrative cases as well as hundreds of personal injury cases.

I must cover several topics today, each of which could easily occupy the entire time allotted me. So, excuse me if I proceed with some haste. But that said, please feel free to ask a question at any point. I believe dialogical exchanges are more fruitful than pedagogical monologues, and your question is likely on the minds of other participants. And since you have a complete copy of my remarks, occasional colloquies should be no problem.

So, why study trial techniques, when the number of cases that make it to trial decrease every year, when many commentators see ADR, even the discovery process as the new forum for dispute resolution? The short answer is: if you don’t prepare your case as if it’s going to trial, you’re likely to miss a strength or weakness of your or your opponent’s case, thereby handicapping your bargaining positions come negotiation time.

So, let’s begin by exploring opening statements. For the sake of argument, let’s assume we’ve already developed our legal and factual theories as well as our preliminary strategy.

What is a trial? A trial is simply an argument – an argument about which party’s version of the law and facts makes the most sense, is the most emotionally compelling, and is the most equitable, or just. Therefore, argue. Novice attorneys tend to merely recap the testimony of their witnesses at closing. Which is fine. But you ultimately must move from what your evidence is to what your evidence shows, what your evidence means, and how your version of things is superior to your opponent’s.

What we are talking about is rhetoric one of the oldest art forms known to man. Western rhetoric emerged from the courts and political assemblies of antiquity. Lawyer were arguing contract, criminal and tort cases at least half a millennium before Christ. Aristotle that theorized the best arguments are logical in form, graceful in delivery, and equitable in result. Logos. Ethos. Pathos. As your entire case executes these rhetorical principles, so should your opening.
Now, a legal argument is not a formal argument, the kind you may suffered through in high school debate, as I did. Trial lawyers deliver cases in the form of a story, or narrative.

At the simplest level, the opening is a summary of your case, cluing the jury in to who you and your client are, why you’re at trial, what evidence is, what you propose to prove, how the trail will proceed, the roles of the plaintiff, defendant, witnesses, judge and jury, and, most importantly, what you want, i.e., your damages. The opening should also introduce the jury to the law of the case. No easy task as the law is terra incognita to most jurors, despite what they believe. To help them understand the law and its nuances, not to mention the medical concepts involved, feed the concepts to them in bite-sized chunks.

Even still, this poses a challenge at times as some legal concepts are inherently confusing. What’s the difference between likely and most likely? What is a reasonable degree of medical certainty? Doesn’t certainty, by definition, exclude degree? The law is a fine tool. But like anything man made is imperfect, yet I believe it is perfectible, as human understanding expands, as long as we are careful, diligent, compassionate and patient.

Remember, you’re a product of intense legal education. You probably have some litigation experience. But jurors are largely babes in the wood when it comes to law and medicine, and if the jury fails to grasp the ideas, you’ll lose them, and you most certainly will pay the price.

As you compose your opening, avoid big words. The jurors probably don’t have your degrees and may not understand complicated, technical jargon. Even with professionals, simple words usually have the most punch. Not only does the misuse of technical language mar your style, but you also run the risk of looking pompous.

Now, the opening is your golden opportunity to begin selling your case, your client, and yourself to the judge and jury. While the closing is concerned with arguing why your theory of the law and facts should prevail, by the time you get there the jury has probably already made up its mind. So your opening must not be merely a summary of what’s to come but must signal to them why, considering the totality of the circumstances, your theory of the facts and law makes the most sense – why your theory is the most credible.

But, you say, you’re not supposed to argue in your opening statement, that the rules prohibit argument in the opening. This makes absolutely no sense since, as argument is the soul of litigation. If your opening is meant to summarize, the why exclude the main element? Especially if the judge knows pretty much what evidence will be offered, which she can easily do in a pretrial conference. If anything inappropriate does get in, it can be cured. Moreover, it’s obvious the opening is not the closing, and I feel it’s our duty that the jury should be familiar with each side’s basic arguments going in. If you’re going to talk about what evidence you will present, it’s sensible to talk about what the evidence means. To proceed otherwise is like staging Hamlet without Hamlet.

But if you are artful enough, get to where the fight will be and occupy that ground in your opening. That point, the point at which the contending hypotheses collide is called, in the formal theory of argumentation, the stasis, to be differentiated from the same term used when discussing the story structure.

The stasis usually involves the credibility of witnesses. Remember, the battle goes to the “firstest with the mostest” — which means you must cultivate your ability to anticipate how the contest will unfold. This advice may be your most important takeaway today. You must learn to think in terms of moves ahead, and be prepared for them, like a chess player. In fact, if you don’t play chess, I suggest you take it up. Some people have an uncanny talent for the game from the beginning.

Now, unfortunately, plaintiff’s attorneys have the additional burden of overcoming juror bias against claimants and their lawyers. To neutralize this bias, impress upon the jury that you are only seeking justice — a fair result. That whatever compensation the plaintiff may receive, it’s just that — compensation, not profit. Your client is not looking for a payday. Show the jury that the plaintiff is in the red entirely because of the negligence of the defendant, and all you are trying to is return her to the status quo ante – of course without using that term.

Also, do not personally attack the defendant, even and especially during the cross. Just be business-like. Neutral. While other parts of the process demand some degree of “passion”, your relationship with the defendant is cool and matter of fact or you’ll run the risk of alienating the jury. However, and this is an important caveat, this does not mean you cannot present evidence of egregious behavior by the defendant.

Another thing, you want to create empathy for your client, not sympathy. As you work with the plaintiff before trial, stress the importance of her not breaking down on the stand. Nothing turns a jury off like a blubbering witness, or its corollary, bellyaching. Life sucks for everyone, occasionally. As she relates the hardships she’s endured since the accident, she must relate them in an emotionally neutral way. Later on, I’ll explain how to transform your client’s recitation of her damages into a compelling narrative. Steer clear from phrases like “I’m sick and tired of being sick and tired.”

Also, write out your opening statement. In fact, write out your entire case. The sheer act of writing will unearth elements of your case you might otherwise have overlooked. And while you should write it, don’t read it to the jury. Use an outline if you must, but your delivery must look unrehearsed, authentic, and heartfelt.

Hit the damages portion of your case hard. In fact, two-thirds of your case should concern damages. Damages are the plaintiff’s ground. Causation belongs to the defense, and liability should have been settled before trial. If liability is still an outstanding issue by trial time, seriously consider settling. Fighting liability and proximate causation is a tall order.

Lastly, unless the circumstances absolutely demand it, do not waive your right to an opening statement. It’s tantamount to giving a competitor in a footrace a fifty-meter head start. You’ll be playing catch up for the balance of the race.

So, that said, let’s turn to the opening’s structure. I’ve mentioned the classical framework of argumentation, and that the opening should be a “story” introducing the larger “story” of your case. Most trial handbooks will tell you that the opening statement functions as a roadmap for the jury. This is true — as far it goes. But if you take a closer look at the opening, a far more interesting structure emerges.

Figure one imagines the opening as a set of intersecting ovals. (See Exhibit One) One is the story of your case, and I’ll talk about the story elements in depth as we proceed. The next is the theme, a nice slogan encapsulating your story. Then the encapsulation itself – an opening for the opening if you will. The next ring is your legal/ factual theory. I don’t separate the two as these are, by nature of syllogism, intertwined. And lastly, the prayer — what you’re seeking by way of compensation – the whole point of your being there.

This diagram is a bit misleading as these elements are actually one line of action interweaving and supporting one another, delivered in a polished, integrated whole.
What does a polished, integrated whole mean? It means writing it out, revising, revising, revising, weaving the elements together, and then sanding your language down to its barest essentials until the fine-grain emerges. And if your language is not fluent, don’t despair, at least it’s efficient. Don’t make the mistake many lawyers make when they talk – that more is more.

The story. This is where the English majors out there get excited. There’s a scene in the movie Amistad where John Quincy Adams, played by Anthony Hopkins, shares a bit of wisdom about trials. He said that the side with the best story usually wins. This is true. If you bore the jury, or worse, alienate them with a dry recitation of the law and facts, they will certainly penalize you. But if you tell them a story, you’re comforting them. A story is something that they recognize. All of us have been steeped in narrative since the crib. You can say narrative and the structure of narrative is hardwired in our DNA, or at least it’s a major component of our environment.

So, what is the essence of narrative? Every narrative involves a quest. The Odyssey —Ulysses’ quest for home. Moby Dick — Ahab’s quest for vengeance. Even contemporary pieces like Waiting for Godot, where there is no plot, no setting, minimal characterization, none of the conventional architecture of a story except for a quest – a quest for meaning.

You can see how easily this applies to a trial. For what is a civil trial if not a quest for compensation? My point is you can use “a quest” as a universal theme if a more particular theme doesn’t suggest itself. For instance, your theme might be a quest to overcome adversity. The advantage of this theme is you can then implicitly enlist the jury in your quest. How? By the structure of the story itself. Let me explain.

Return to your eighth grade English class for a moment and remember the fundamental elements of a story your teacher outlined: stasis, conflict, complication, climax and dénouement — except the teacher discretely omitted that the fundamental structure of a story mimics coitus – conflict (contact), complication (arousal and tension), climax (the word speaks for itself) and dénouement (cigarettes). So when I said that stories are hardwired, I meant hardwired.

But stories operate on more than a primitive level. A story is the best way to communicate information, if only because a good story naturally retains our interest. Why does this happen? Why is The Catcher in the Rye such a perennially popular novel? We don’t know too many Holden Caulfields, and I’ll wager that if we did we’d steer clear of them. Nevertheless, Holden’s struggle is, in many ways, our struggle, our interior struggle to survive in a society populated by shallow, ill-intentioned, inauthentic personalities. Complications, or adversity, can be interior or exterior, usually both. Because of the universality of adversity, we empathize with the character. We share in his struggle, we identify with him (hey, the author is talking about me!) And thus we pay closer attention to the protagonist’s plight and hence his story.

This is why you don’t want your client to appear pathetic. We all struggle. And we turn a cold eye to whiners. What people really want to know, and what they respect and engage with — what do we make of the struggle? Does it destroy us, like it does Ahab, or do we triumph?

Of course, it’s probably safe to say that most people prefer happy endings. So the story is a story of overcoming. The audience unconsciously wants the protagonist to suffer adversity, so that the tormented protagonist learns something in the process. There must be a point to suffering. Therefore many stories become what the Germans call a bildungsroman –a story about the maturation, the growth and learning of the hero. A cursory examination of religious and secular thought about the nature of suffering bears out the popularity of the bildungsroman.

Take Buddhism: compulsive study and contemplation of suffering liberates our souls. (Exhibit Two) Or the Muslim view: suffering is our fault, a result of sin, which prompts us to pursue more virtuous lives. (Exhibit Three) And then there’s the Christian perspective where Christ’s suffering signifies no less than the wholesale redemption of mankind. (Exhibit Four)

Secular thought also eschews pointless suffering. Consider John Keats, the famous 19th century English Romantic poet, and his rhetorical question: “Do you not see how necessary a world of pains and troubles is to school an intelligence and make it a soul?” (Exhibit Five) And then there’s Nietzsche’s charming Teutonic version: “That which does not kill you makes you stronger.” (Exhibit Six)

The implicit question, “is suffering for naught?” is an opportunity for the plaintiff to engage the jury on a deeply psychological level. How? By answering this question with a resounding “of course not.”

Therefore, consider constructing your case within the context and theme of personal growth. Showing the jury how your client’s injuries revealed strengths she never knew she had, or how adversity honed her appreciation of life. Showcase her indomitable spirit. Not only will her ordeals lend meaning to her suffering, and by extension “suffering” in general, the jury will respect her fortitude and make it more likely they’ll “reward” her. The opening then becomes more than a mere “road map” or summary of your case-in-chief. It sets the stage for compelling human drama, transforming workmanlike narrative into a poignant story of courage.

Let me share with you a workers’ compensation case history that illustrates what I’m talking about. The theme of the case is “Ride the Bull.” Matt, a sheet metal mechanic, injured his spine arising out of and in the course of his employment with an aircraft manufacturer. An MRI ultimately disclosed that Matt suffered a herniated disc at L4-L5. He reported the injury to his supervisor, who failed to make out a report or refer him to a doctor. In pain, Matt referred himself to a chiropractor.

On the intake form, Matt checked the box indicating that his injury was not work-related. He even stated that he injured his back at home a few days earlier while working on his boat. This is not unusual. Upon realizing that it might jeopardize their jobs, many claimants fail to claim their injury is work-related, only later to seek legal counsel when circumstances are no longer tolerable. However, such prior action usually handicaps their case. Factfinders show little patience for claimants who lie, regardless of the circumstances.

As I examined Matt, he mentioned that his co-workers often horseplayed with him in a particular way. They would jump on his back and cry “ride the bull!” Now, Matt was overweight, and as many people in that predicament can attest, they are often the butt of jokes or rude behavior. On top of that, it’s culturally normal when a group of men horse-plays with a fellow – its manifest purpose is to make the object of the horseplay believe he’s “one of the gang.” It’s a form of hazing. Feeling that we belong to a group is perhaps the single greatest psychological motivator that exists. It stems, of course, from ancient survival instincts. Tribal exclusion almost certainly meant death, and still survives in many forms – ex-communication, exclusion, bullying and shunning to name a few.

Matt’s experience, however, exceeded good-natured kidding hazing. What’s worse, according to uncontroverted testimony, management was aware of this “horseplay” and turned a blind eye.

Accordingly, I shifted strategy from an “apology” for inconsistent notice (a weak, defensive stance) to attacking the employer’s egregious behavior for allowing these assaults to continue unabated. I largely ignored the inconsistent behavior and argued that the “ride the bull” episodes probably accounted for his back injury.

But I didn’t leave it there. Why was he picked on? Matt is an average fellow. Competent, not an overachiever. Overweight. On the short side. Had a hard time socially. Never really fit in at school or later with the gang at work. But he struck me as a sincere and kind individual. When his co-workers “rode him,” he misinterpreted it as the kind of horseplay that binds male groups. Matt thought he had achieved the social acceptance he had silently yearned for. This partially accounts for why he didn’t want to rock the boat by reporting the incidents.

But the cruel reality was that his co-workers were just getting their jollies. In fact, until discovery, Matt was unaware that they never invited him out for beers after work, or otherwise included him in other reindeer games. Despite what he thought, he was never a member of the tribe. When he learned the score, he thanked me and seemed a more mature person for the experience – the classic elements of the bildungsroman.

In telling Matt’s story, my goal was not to evoke sympathy for him, although I’m sure it generated some. Rather, I wanted his story to be full-blooded. As far as the storyline is concerned, there’s little that’s new under the sun. But if you dig, you’ll find a unique angle to your client’s tale that makes it real.

Of course, you don’t want to give the impression from all this that your client’s injury was a blessing in disguise or some such nonsense. Getting hurt in an accident is never a good thing. But if someone is injured, she must play the cards dealt. Help your client play them in the best possible way. Convey your client’s fortitude in the face of adversity. The jury will respect this.

Remember, as a plaintiff’s attorney, your strategy is to 1.) Play your opponent 2.) All else being equal, play the damages 3.) Stay on the attack, even in defense — keep your opponent on her heels 4.) Cases boil down to credibility 5.) Find your own unique voice to deliver your client’s story.

Ok, I want shift to a discussion of cross examination. If you haven’t tried many cases, most of what you know probably comes from studying for the bar. You’ve learned a lot of techniques but not how to use them.

As you investigate the facts of your case and develop your factual and legal theory, you should simultaneously be developing a strategy of attack and defense. This strategy requires you to know as much as possible about your case and about your opponent’s case. That is, you must build a context from which to deploy your litigation weapons, especially cross – examination.

What are the strengths and weaknesses of your respective cases? Where is your opponent’s case Achilles’s heel(s)? If it has only one weak point, attack there. If several, concentrate your attack on the weakest. Don’t dissipate your force. Concentration of attack is key. And when you breach your opponent’s case, don’t give her the opportunity to regroup and establish the initiative. Maintain the momentum of your argument by insisting it is the relevant point of the case.

A few do’s and don’ts. Don’t cross a witness unless you have to in order to maintain the integrity of your strategy. If the witness’ testimony does not weaken your case or strategy, leave it. Never cross for the sake of crossing, because you do have absolute control over what the witness might say.

If a witness helps, or at least doesn’t harm your legal/factual theory, why cross him on the basis of his, say, criminal record? It’s counterproductive, wastes time, confuses the issues, and runs the risk of unintentionally eliciting harmful information. That’s probably the best piece of advice about cross examination that I can give you today.

Settle on a factual and legal theory, theme and trial strategy and stick to it if you can. Don’t be diverted. If your opponent throws a red ball, don’t feel compelled to chase it. On the other hand, throw red balls to confuse and divert your opponent, her time and energy.

About cross techniques. The simplest solution is usually the best and ironically the first to be overlooked. Everyone wants to be novel. Call it avant-gardism. But just as in sports, it’s wise to stick to the fundamentals. So question a witness on the details of her assertions, not at trial, mind you, but at the deposition.

Never ask a question at trial unless you already know the answer. Sooner or later, if the witness is lying, she’ll fabricate a detail that wrecks her story, a detail that just cannot be.

Don’t corner her in the deposition though. Save it for trial. Remember, to tell a good lie, you have to be really smart, know all the pieces, and most witnesses are not that smart. Also, remember that the truth is usually simple. You can easily tell a lie by its elaborate structure. Other tells – the witness is vague, speaks in sentence fragments, is overly loquacious, is defensive and tight-lipped, tries to change the topic, or answers questions not asked.

As far as specific techniques are concerned, one of the most effective cross-examination techniques is to attack the witness’ conduct, her actus reus. We are used to seeing witnesses crossed with their depos or some other pre-existing statement. This is fine, but actions speak louder than words. I have always found that attacking a witness’ previous inconsistent conduct, as well as post inconsistent conduct, is extremely effective.

When I cross, I begin by determining if I need to cross at all. If so, I begin by eliciting all the favorable evidence I can from the witness, and then I attack inconsistent actions, and only then do I attack previous inconsistent/impossible statements.
Another effective technique is to elicit testimony in conflict with another opponent’s witness’ testimony. You cannot “pit” witnesses’ testimony, but you can certainly argue the inconsistent evidence in closing.

Also, don’t waste time bringing up things like the expert is paid, (so is yours), or that the defendant was arrested for a bounced check 9 years ago. It’s weak and unnecessarily diverts the jury’s attention.

Also very effective — revealing a witness’ basis, or lack thereof, of knowledge. More often than not it’s hearsay or supposition or assumption. And if the basis of the witness’ knowledge is, in fact, empirical, test the witness’ opportunity to observe or hear as well as the quality of her sense organs. See if her drivers’ license requires her to wear corrective lenses.

Also, since many statements are susceptible to multiple interpretations, don’t allow a witness to get away with mushy language. Hold their feet to the fire by insisting they testify in simple, concrete language. Make her specify, specify, specify. Deconstructionists hold that language (and its meaning) is inherently unreliable.
Rubbish. English is a marvelous tool — surgical in its precision. People are mushy, not language. The more interesting question is if there is one, true reality, or is reality always a matter of interpretation?

Once you finish your cross, sit down. Do not extemporize unless your back is against the wall. You should know all the questions you plan to ask as well as the answers.

Don’t break the cardinal rules of cross – never ask a question you don’t know the answer to, and never ask a question that gives the witness free rein, i.e., open ended questions.

Also, don’t lose heart if you’re not very good at any of this in the beginning. I certainly wasn’t. And I’m learning all the time. Cross is not a natural or polite way to interact with others. Actually, it’s quite rude. But you’re not at a tea party. Just keep plugging away, and one day you’ll be in the middle of a trial, and while hardly realizing it, you’re doing very well, and you’ll say to yourself – hey, I’ve got this.

Ok. Let’s pivot a bit and talk about direct examination. The watchwords for direct exams are thoroughness and preparation. Make sure you know the legal elements of your claim, the caselaw, as well as the facts. Concentrate first on making a prima fascia case. Keep it simple. The more your witness talks, the more issues are introduced, the more she opens herself up to attack. Make your prima fascia case and follow up with a few pieces of choice evidence that anticipates and counters the defense strategy. Prepare your witnesses thoroughly, especially for cross. Thoroughness and less is more are the keys to direct. Remember, cross cannot go beyond the scope of direct. Hence, keep your direct powerful, yet lean.

Also, understand that most witnesses ramble, including experts. Many people are unable to come to the point quickly or stay on topic. The remedy is practice, and don’t shy from employing tough love. Let your witness in on exactly what’s going on, your strategy, the legal issues involved, her role, what you are trying to prove with her testimony and why. Clue her in on the big picture. Dig. Educate. Rehearse. Repeat. The key to learning is repetition. The key to understanding is inquiry.

Also — make sure that your witnesses are in synch with each other’s testimony and your theory. Nothing is as gut wrenching as your own witnesses contradicting each other. You want to blame the witness for her stupidity. Wrong. It’s your stupidity. Every witness can be trained. Moreover, internal contradictions reflect poorly on you as a trial lawyer. Remember, your credibility is also on trial.

As far as the quantity of your witnesses is concerned, first, and I’ll repeat, less is more. I’d rather have two or three high – quality, credible witnesses than five or six moderately credible witnesses. But be careful. Every witness, even hi-quality ones is a potential time bomb, primed to demolish your case by one careless remark.

The more witnesses you have, the greater the chance of this happening. Credible, smart witnesses trump quantity every time.

Doctors and cops present a special problem. I’ve had them flip on me at trial. So consider deposing them to lock them into their testimony. If your witness flips, inform the court and move to treat her as a hostile. If your motion is granted, you can cross her using the depo. It’s not elegant, and it’s embarrassing, and probably fatal to your case, but you can still see daylight. Which means you better have some substitute witness you can call, or substitute evidence to admit to make your prima fascia case. Bottom line: be careful with doctors and cops. Most are perfectly fine. Some have their own agendas which may not match yours.

Ok. Let’s move on to Daubert, or the admissibility of expert evidence. Since we are discussing personal injury cases, I’ll discuss Daubert in that context. Recall from your study of constitutional law that cases such as Daubert establish minimum standards binding on lower courts. However, South Carolina’s Rule of Evidence 702 mirrors the federal standard.

The challenge of admitting expert evidence may be broken down into three categories. Qualifying the expert, establishing the validity of the general theory upon which the expert relies, and establishing the factual basis of the expert’s opinions.

As far as qualifying the expert, record her degrees, whether she has had any specialized training in the field, if she has published, professional associations she belongs to and if she has previously testified as an expert.

This last prong is a two – edged sword as an expert may be cross examined on the fact she’s a “professional witness”, i.e., she’s only available for expert testimony. Also, an expert’s credibility is vulnerable if she’s strictly a plaintiff’s or defendant’s witness. You need to unearth this information before you retain her. Demand she furnish her CV which must include her forensic history. Try to use an expert who’s testified for both sides.

If your expert is a doctor, it’s better if she’s board certified. And make sure you get the right kind of expert in professional negligence cases. If it’s a podiatry case of malpractice, don’t call an orthopedist, because you want to establish the standard of care for podiatrists under your set of facts, and if that standard was breached.
Furthermore, the standard of care may differ from region to region. A Manhattan podiatrist may have a higher duty of care than one, say, from Appalachia.

Regarding the general theory the expert relies on, the elements are: that the expert used a particular theory to evaluate facts, that the theory has been experimentally verified, and that the theory is generally accepted in the particular field.

In PI practice, the expert physician may base his opinion on a personal examination of the plaintiff, or upon the medical records. I strongly recommend the former: where and when the examination took place, who was present, how the examination was conducted, and of the expert’s conclusions.

Frankly, I can’t recall an incident when I’ve had a problem admitting an expert or her testimony. Just make certain you establish on record the foundation for her opinion, that she is definitely on your side, and that her testimony is compatible with other evidence in your case.

You can shortcut the process a bit by requesting that counsel stipulate to your experts’ qualifications. That way you can proceed right into the substance. That’s what I generally do. For tactical reasons, however, you may not want to do this if you want to impress upon the jury just what a hotshot your expert is.

Impressive credentials include board certification, published work in recognizable periodicals, like The New England Journal of Medicine, a teaching position at a top university, and other honors and awards of generally agreed upon weight.

Opposing counsel will make an ad hominem attack on your expert or contest the facts upon which your expert bases her opinion, or both. In the case of expert doctors, make certain she has a thorough knowledge of your client’s medical history.

Don’t depend on the client for an accurate history. Get the records yourself and make sure your entire team — lawyers, paralegals, as well as your client and other witnesses know claimant’s past and current medical history.

Your expert should be able to effortlessly recite the claimant’s symptoms, tests conducted and their findings, previous assessments or diagnoses, and the course of treatment you client has undergone — drugs, surgery, PT etc. You don’t want your physician to be unaware of an important fact in your client’s medical history, such as a history of hypertension, even if it’s not directly relevant to your client’s injury, or a previous disorder or injury to the same body part. It could sink your whole case.

The credibility of your expert is usually a fulcrum point in your case. I am constantly amazed by doctors who have to rifle through records to answer simple questions at a deposition, even more when the doctor happens to be the treating physician.

The bottom line is: never let your expert – physician appear ignorant, disorganized or unprepared on the stand. The best expert is one who can effectively joust with opposing counsel during cross. Insist on preparation. Make sure she uses simple language, easily understood by laypersons, and is unambivalent in her opinions. Professionals usually, and rightly so, qualify their answers, but this does not wash well at trial. Don’t buy the excuse she’s too busy to prep or that “she’s got it.” In the litigation context, this is hubris of the most disturbing kind.

One more point. Pay your expert on time, even early. She is an important ally, critical in the construction of your case-in-chief as well as providing grist for your cross of the opposing expert. Make her happy.

Now, as I was thinking about this CLE, I couldn’t avoid the question — what wins trials? Understand that there is no magic bullet. Preparation? No, that’s no guarantee. Preparation is necessary, but not sufficient. Superior speaking skills? Talented jury selection? Good witnesses? Yes. Yes. And yes. All necessary, yet all insufficient.

I will say that many trials usually boil down to witness credibility. Does the jury believe, and like, your witnesses more than your opponents’? If so, you’re on your way to winning. Does the jury like you?

I believe the key to doing well at trial is to keep in mind that trials are won “point by point,” in a process of evidentiary accretion. And you should try to know more than your opponent – factually, legally, strategically, and tactically. This, in addition to making fewer mistakes than your opponent goes a long way to prevailing. Let me share with you a couple of war stories. The first is a DUI trial that shows success at trial is sometimes just weird luck.

I was the defense attorney. A witness appears during trial and asks the prosecutor if he could testify. It was a military case, and the witness was in the defendants’ chain of command — one of his superiors. The prosecutor assumed he would testify for the government. On the other hand, I hadn’t the slightest idea what the witness would say, and I wasn’t about to give him the chance. So I vehemently objected to his testifying, arguing that I had received notice.

The prosecutor really wanted this witness to testify arguing that she also had received no notice. But I thought the prosecution was pulling a fast one. I stood there stunned, apoplectic, as the judge admitted his testimony.

The government directed him, and to everyone’s surprise, he testified that he had observed defendant half an hour before his arrest and that he had appeared sober. That was it for the prosecution. My client was acquitted. As much as I had prepared for the trial — and I was prepared — there was no way I could have foreseen this turn of events. I wondered how much of what I had done really mattered.

Sometimes the outcome depends on what appears at first to be marginal evidence. In another criminal matter, I was prosecuting a strong arm robbery in which the issue was identification. The responding officer had failed to arrest the defendant while he was in hot pursuit, but not before noting that the defendant had a bite mark on his left arm.

Since my witness was not a doctor, I doubted his opinion about the nature of the mark would survive a motion to strike. During prep, I thought this detail too weak to hit hard, but it came out at trial nevertheless.

Under cross, defense counsel breached a fundamental rule – never ask a question unless you know it’s answer. Defense counsel asked him how he knew it was a bite mark. He stated he had a similar scar on his arm courtesy of his three-year-old daughter.

The trial had been a draw up until that point. But as the responding officer uttered these words, you could feel the momentum of the case shift to the prosecution. It was not a detail that I had failed to unearth; I erred in failing to follow through my examination — a mistake which, again by sheer luck, did not negatively affect my case. I should have dug deeper into how the officer knew it was a bite mark. And instead of summarily dismissing the bite mark as inadmissible, I should have at least considered trying to admit it and risk suppression instead of not developing a potentially compelling piece of evidence. Moral of the story: in general, if the evidence is “iffy,” don’t automatically write it off. Keep investigating until you are certain of its probable effect.

The other point of this case is that trials can turn on a dime. Chess is a good example of this principle. Depending on the configuration of the board, a pawn, nominally the least valuable piece on the board, can, depending on the big picture, morph into a piece dearer than your queen.

The unpredictability of litigation combined with inevitability of human error turns litigation into what I frequently refer to as “a wild west show.” It makes it fun for someone like me who enjoys the action, but negotiated settlement is usually the saner alternative.

Thank you for your kind attention.

Thomas Gagne, Esq
August 2018