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McElhaney's Litigation
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Mit Lesen beginnenLänge: 1,034 Seiten11 Stunden
- Herausgeber:
- American Bar Association
- Freigegeben:
- Mar 7, 2014
- ISBN:
- 9781614389637
- Format:
- Buch
Beschreibung
In this volume, a collection of his ABA Journal litigation column published between 1994 and 2011, Jim McElhaney provides comprehensive advice on how to avoid the snares, traps, and pitfalls that challenge every trial lawyer, veterans and novices alike.
In the tradition of the first volume of McElhaneys Litigation, Volume II covers virtually every aspect of trial practice, identifying potential problems and offering clear, concrete techniques, tactics, and strategies. Jim McElhaney shows you, with wit, clarity, and simplicity, how to conduct the best trial you are capable of conducting. McElhaneys Litigation, Volume II offers techniques and strategies based on actual courtroom experience, with multiple examples and anecdotes that illuminate, clarify, reveal, and help you be better prepared for the pitfalls of litigation.
In the tradition of the first volume of McElhaneys Litigation, Volume II covers virtually every aspect of trial practice, identifying potential problems and offering clear, concrete techniques, tactics, and strategies. Jim McElhaney shows you, with wit, clarity, and simplicity, how to conduct the best trial you are capable of conducting. McElhaneys Litigation, Volume II offers techniques and strategies based on actual courtroom experience, with multiple examples and anecdotes that illuminate, clarify, reveal, and help you be better prepared for the pitfalls of litigation.
Informationen über das Buch
McElhaney's Litigation
Länge: 1,034 Seiten11 Stunden
Beschreibung
In this volume, a collection of his ABA Journal litigation column published between 1994 and 2011, Jim McElhaney provides comprehensive advice on how to avoid the snares, traps, and pitfalls that challenge every trial lawyer, veterans and novices alike.
In the tradition of the first volume of McElhaneys Litigation, Volume II covers virtually every aspect of trial practice, identifying potential problems and offering clear, concrete techniques, tactics, and strategies. Jim McElhaney shows you, with wit, clarity, and simplicity, how to conduct the best trial you are capable of conducting. McElhaneys Litigation, Volume II offers techniques and strategies based on actual courtroom experience, with multiple examples and anecdotes that illuminate, clarify, reveal, and help you be better prepared for the pitfalls of litigation.
In the tradition of the first volume of McElhaneys Litigation, Volume II covers virtually every aspect of trial practice, identifying potential problems and offering clear, concrete techniques, tactics, and strategies. Jim McElhaney shows you, with wit, clarity, and simplicity, how to conduct the best trial you are capable of conducting. McElhaneys Litigation, Volume II offers techniques and strategies based on actual courtroom experience, with multiple examples and anecdotes that illuminate, clarify, reveal, and help you be better prepared for the pitfalls of litigation.
- Herausgeber:
- American Bar Association
- Freigegeben:
- Mar 7, 2014
- ISBN:
- 9781614389637
- Format:
- Buch
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McElhaney's Litigation - James W. McElhaney
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PART ONE
Starting the Case
CHAPTER 1
The Case Won’t Settle
Nick Wheeler, senior partner and head of litigation at Randolph and Wheeler, looked distraught. Angus,
he said, not even looking at me, I need your help. I’m desperate.
Angus smiled. I guess that may actually be some sort of compliment,
he said. What can I do for you, Nick?
I’ve got a case that isn’t going to settle, and I’m going to have to try it,
said Wheeler.
Angus smiled again. There are worse things,
he said. Thousands of lawyers keep hoping that one of their cases won’t settle so they can finally get to court on something other than a pretrial motion.
That’s how I got in this pickle,
said Wheeler. "When I started practicing, I was in court all the time. But not any more. These days we spend thousands of hours and millions of dollars preparing cases that clog the courts with pretrial briefs and motions, but almost never get to trial.
Now our best client—Electro-Controls—has a case that it insists on taking to trial. And what’s worse, they want me to try it.
Nicholas,
said Angus, that is not so bad. You may even enjoy it.
Enjoy it?
said Wheeler. Angus, you don’t seem to understand what I’ve been trying to tell you. I haven’t actually tried a case in 15 years.
Angus waited a second, and then he said, "You’re right. You are in a pickle. You’re caught in the bind of modern big-firm practice, and you need a way out.
"The problem is, too many large firms don’t prepare cases for trial—they prepare cases for pretrial skirmishing and eventual settlement. They engage in endless discovery, turning over every leaf, peering under every stone. Then they brief and argue every motion as if pretrial practice were the point of it all, not just a means to an end.
This preliminary war of attrition leaves the parties so tired and having spent so much on mere preparation that they lose stomach for the actual battle. So they settle.
Wheeler gave Angus a wry little smile. That’s the way it works,
he said.
But the real kicker,
said Angus, "is that all that time and money spent on what is called ‘pretrial litigation’ only goes part way toward getting a case ready for trial.
So tell me,
said Angus, just how big is this case?
We’re the plaintiff,
said Wheeler, and our claim is worth somewhere between $75 million and $80 million.
Why won’t it settle?
I said.
Wheeler looked at me. Our CEO hates the defendant. Swears he won’t take a penny less than our full claim. So it is a ‘matter of principle.’
And how far off is trial?
Angus said.
Ten, 12 weeks,
said Wheeler.
Clear your decks,
said Angus. You’ve got a lot to do. Everything is different when your object is to actually get ready for trial.
I told Wheeler I would take notes for him, but I kept a copy for myself. Here they are:
Pick a Captain
Somebody’s got to be in charge of the trial, and there should never be any question who it is. One of the oddities of modern large-firm practice is that cases are often divided up and given to little activity groups that know only their parts of the case and have no idea what everyone else is doing. Research projects often are assigned on minimal, incomplete, or even (for security purposes) deliberately misleading information. None of the soldiers knows what the case is about.
And all too often the lawyer in charge only reviews the quality of the work and is not trying to put the case together. When that happens, there is no trial strategist who is planning the case as discovery develops.
The results are thousands of trees, but no one to determine the shape of the forest.
It can get even worse when the client has a strong in-house legal staff that parcels out assignments not only to different lawyers, but to different firms. Then all intelligence is fragmented, and the value of even the most exacting discovery can get lost.
Pull all that legal talent from the different firms together in one big meeting, and you probably will find that no one person knows what the case is all about.
So you need a captain, not only to make important decisions and to actually try the case, but also to guide it and shape it throughout discovery.
The bigger the case, the more damage you can do by not naming the lead counsel early on.
Big corporate litigants that have large law departments sometimes pay a terrible cost when they put off the choice of captain until the eve of trial. Some corporations do not understand that picking lead counsel for a lawsuit is not the same thing as having three different vice presidents of marketing each present ideas for the next big sales project—playing them off against each other, and then choosing one at the last minute.
Maybe that way of making decisions can produce a good marketing plan, but it is almost guaranteed to put the trial team at a serious disadvantage.
The point is basic: Pick the trial team early on.
There are times when the lead trial counsel—the captain—should not come from inside the firm that has the case.
Say a law firm in South Bend, Ind., represents a defendant in Oxford, Miss., or a firm from Cleveland represents a plaintiff in Barre, Vt. It’s not just the problem of being hometowned
(although that can happen anywhere).
You need a lawyer who can speak the language and who understands the jury.
And the chances are that hiring local counsel just to introduce you to the court is going to look like tokenism.
But it’s not just where the lawyer comes from that matters.
When Exxon sued Lloyd’s of London over the insurance coverage for the 1989 oil spill from the Exxon Valdez, the problem was who to get for lead counsel.
Of course it would be a Texan. The case was going to be tried in Houston. But Exxon decided that the facts called for someone who would not approach the case like the usual business litigator.
So they got Don Bowen (who calls himself just a sore-back plaintiff’s lawyer who doesn’t do business cases
) from Helm, Pletcher, Bowen & Saunders in Houston. Then they backed him up with George W. Bramblett Jr. and a team of other Haynes & Boone lawyers from Dallas and Houston.
That combination of trial strategy and jury communication skills helped produce Exxon’s $250 million verdict against Lloyd’s.
When the case actually gets to trial, a brief story line is the most important key to persuasion.
The difficulty is, there is nothing easy about working out a simple story line. Our natural tendency is to develop an exquisitely complex flow chart of every conceivable legal theory, from which we could write a law school examination paper that would keep on going for as long as we had time and paper.
That is an invitation to disaster. When you start this way, you will never tell a coherent story. Even after you have trimmed and pruned and polished and condensed, you will still be left with an oversized pile of disjointed facts and theories that will persuade no one.
Keep It Short and Sweet
You’ve got to have a system for developing a simple story line. Probably the best way is the picture method.
Start with the 30-second test. Tell someone—not a lawyer—who has never heard of your case what it is all about in 30 seconds or less.
Don’t be surprised if you can’t do it right away. After all, we are trained in minutiae, and lots of lawyers can’t say what a case is about in less than half an hour. Keep working on it until you pass the test.
Your 30-second statement should satisfy you only when it:
• Explains the setting.
• Tells what happened.
• Satisfies every major legal issue without mentioning the law—remember, you are not talking to a lawyer.
• And gives the gist of what each side says happened.
Now that you’ve got a grasp on the whole, you’re ready to start working.
Think of your case as a series of pictures the judge or jury needs to see to understand what happened. Those pictures are the major components of your case—probably no more than five or six snapshots, even for a long or complex trial.
Why pictures? Because that’s how real people think and talk. They believe what they can see—whether literally or just figuratively. What’s more, using the language of visualization will help them see things for themselves.
Resist the temptation to form your pictures around the legal issues. That’s what a law professor would do. Facts that tell stories, not legal theories, are what persuade.
Once you have grouped your facts into the major pictures that tell your story, you have the basic organization for your case.
Now you can start to clear away the clutter. Get rid of the things that are not necessary to make sense out of the case or to satisfy some legal requirement. Have the courage to use only the documents that count so you can avoid clogging the case with useless paper.
Of course, you have to prove every element of your claim or defense. But you don’t need to be dull, boring or repetitive—the painful touchstones of the typical, large commercial case. By concentrating on showing the jury the pictures that tell your story, you can make your whole case come alive.
After Angus finished, Nick Wheeler went back to his office, looking a little less worried but awfully determined.
A few weeks later, he ran into Angus in the Brief Bag and was all smiles. Angus,
he said, what you told me was absolutely terrific. By the way, have you heard I settled the Electro-Controls case?
CHAPTER 2
The Tangle
Energy czar McReynolds Farley walked into the office Tuesday afternoon. No letter, no call, no advance notice. Just walked in off the street.
I recognized him from seeing his picture in the newspapers, so I knew better than to ask whether he had an appointment. Good morning, Mr. Farley,
I said. How can we help you?
I want to see Angus,
he said, looking grim.
I was going to come up with a story about some emergency hearing that had taken Angus out of the office when in he walked with a bag from the Donut Hole.
McReynolds,
he said, what a pleasure. Your timing is superb. These bear claws were baked this morning.
Angus, you still have your priorities straight,
said Mr. Farley with a smile. There are few urgent matters that can’t wait for a cup of coffee.
Three bear claws later and behind closed doors, Farley told us why he came.
You know about my new project?
he said. A massive energy ranch out in New Mexico. Hundreds of thousands of acres. Huge fields of solar panels and windmills connected with a state-of-the-art grid. There’s a lot of sun and wind in the mountains of New Mexico. Besides, this is something we’ve got to do.
So what’s the problem?
said Angus.
You can’t believe the massive interference I’ve gotten from the federal government, four different states and the fossil fuel people,
said Farley. Oil, gas and coal. And mind you, I’m still primarily in natural gas. But the future is a lot closer than most people realize—especially those in the energy business.
What have they done?
said Angus.
Formed an unholy alliance against me and the energy ranch,
said Farley. "The fossil fuel folks have gotten a number of gas and electric companies and big ranchers to join in a huge fraud case charging that I lied, cheated and swindled to put together the necessary land and power deals to start the project. They’re asking for $500 million.
So my lawyers have filed a counterclaim charging them with conspiracy as well as intentional interference with all the deals I’ve made.
Is Mike Torres still your chief house counsel?
said Angus.
Yes,
said Farley, with a staff of eight other lawyers.
You’ve got outside lawyers working on the energy ranch dispute?
said Angus.
A whole cadre of litigators from four of the best firms in the country,
said Farley.
Then why do you want to see me?
Several reasons,
said Farley. Mainly because of the team’s lack of sparkle, commitment, enthusiasm. I watched a practice round of the opening statement for our counterclaim—which is worth more than $1.2 billion—and I wasn’t impressed. It seemed too mechanical, technical, legalistic. Typical big-firm litigators. So I thought you might be able to help them focus on how to talk to a jury.
Is Mike Torres OK with getting us involved?
said Angus.
What can he say?
said Farley. I’m the client. But yes, I talked to him about it, and he thinks it’s a good idea.
The Clock Is Ticking
Two days later, Angus and I went to the 16th floor of the Farley Energy Building and met with the cadre
of lawyers who were working on the energy ranch dispute—all 28 of them, including Mike Torres, who introduced us to everyone.
McReynolds isn’t here today,
Mike said. He’s up in the mountains investigating some sabotage to the windmills and solar panels at our testing site. It’s a terrible thing to happen, but it does tend to show that these guys are really playing hardball.
How do you know they’re people who work for the other side?
I said.
Mr. Farley believes in sophisticated surveillance equipment,
said Torres. I’ll fill you in later.
When we all sat down around the big oval table in the conference room, Angus didn’t waste any time getting started.
You’re 93 days away from trial in Judge Padilla’s court,
he said. Who’s lead counsel?
That hasn’t been decided yet,
said someone at the far end of the table. But we know who’s representing the power companies and the ranchers: ‘Killer’ Konrad. We just found out last week.
You mean Kevin Konrad, who got that huge verdict in the bottled water case?
I said.
That’s the one,
said the lawyer at the far end of the table. He’s the main reason you’re here. Up until then no one thought this case would ever be tried.
We’re mainly here because we were asked,
Angus said. And since Jimmy and I are the new kids on the block—the rest of you have been working on discovery in the case for anywhere from 18 months to three years—why doesn’t someone give us the story of the case, tell us what it’s all about?
Cash
Markus, who was sitting at the middle of the table—and who sounds like a Wall Street Brahmin—started talking about all the different legal theories as well as the procedural posture of the case.
Angus gave a pleasant smile when he cut Markus off in less than two minutes. I think we understand what the claims, counterclaims and defenses are,
Angus said. What we want to know is, what’s your story? How are you going to explain this case to the jury?
A few of the others took a stab at telling the story, but most of them just kept quiet. Someone said, It’s all because a group of crazy ranchers who thought this was a new kind of range war decided to battle some genuine windmills.
A couple of others chuckled until someone pointed out that the ranchers and power companies had been carefully picked because they were home folks, while the corporate giant, Farley Energy, had its headquarters in New York City.
In 10 more minutes it was obvious that no single person had sufficient command of the case to give a simple explanation of what it was about.
Angus didn’t look the least bit surprised. He just started asking a whole series of very specific questions, and they did pretty well as a group. Collectively, they had a wealth of information even though they hadn’t grappled much with putting it together.
Breaking Up the Team
At the end of the day, Angus turned to Marsha Simpson and asked her why the local electric power companies had sided with the ranchers and the fossil fuel folks against the development of a new power source.
I don’t know,
she said. Why don’t you ask someone on the Green Team?
Green Team?
said Angus.
Mike Torres gave a nervous little laugh. That’s Mr. Farley’s approach to corporate governance. Teams are created for different parts of a project and report on their findings and recommendations to management. And he has, uh, asked us here in legal to follow the same general approach with significant problems that may result in litigation.
Angus smiled.
The next morning, McReynolds Farley was already in the office when Angus and I walked in.
Angus,
he said, I talked with Mike Torres last night. You made quite an impression yesterday. Mike wants both you and Jimmy to work on the case and wants you to be lead counsel. I’m here to offer you the job.
Thanks, McReynolds,
Angus said. "The truth is, you’re in a real pickle. I think I can help you get out, but not by taking over the case. People who are brought in to take over at the last minute—and 92 days to trial is the last minute in a case like this—may be quick studies, but they can never master the information the way someone can who has been working on it from the beginning.
"The difficulty is, you’re dealing with legal problems the same way you run your corporation. Big problems are broken down into individual projects that are given to little groups that report to management. People talk with other members in their groups, but the groups don’t talk with each other. You’ve taken a great trial team and divided it into little block houses instead of building the pyramid it takes to try a case.
I’m just shocked no one has told you this before,
said Angus.
They did,
Mr. Farley said, but I guess I didn’t believe them.
Anyway,
Angus said, I can help you and Mike Torres pick your lead counsel. There are three or four people who have been on board since the beginning who could do a super job.
Great,
said Farley. Just one more thing. Where do you get those bear claws?
CHAPTER 3
Assembling the Case
It’s not like I need serious help or anything,
said Paul Vigil, the doctor-turned-lawyer who says he finally realized it’s more important to right wrongs than write prescriptions. It’s just that my work doesn’t often take me all the way to trial, and that’s where this case is headed.
Tell me about it,
said Angus.
I’m lead counsel in an old-fashioned family feud,
Paul said. "My clients are two young men—Bobby and Marty Sanders—who were left a high-tech tool pattern shop by their father.
"It was easily worth $10 million, but after some creative bookkeeping and money shuffling by their uncle, Max Gaines—who had nothing to do with the business when it belonged to his late brother-in-law—Max now owns everything and the boys have almost nothing.
We’re three months away from trial,
said Paul, and I’ve made a list of what I have to do to get ready. I wonder if you could look it over to see if I’ve left out anything important.
Looking at the list, Angus said, My first problem is, I can’t tell what’s your legal theory. Breach of contract?
Not just that,
said Paul. Breach of contract, fraud and promissory estoppel. They make a nice package.
And this list,
said Angus, is what you came up with, digging through your notes, poring over what you’ve learned in discovery, and thinking about how to approach the case?
Exactly,
said Paul.
Which explains why it’s a hodgepodge of disconnected tasks and ideas?
said Angus.
Guilty as charged, your honor,
said Paul with a smile.
This is why I believe in the trial notebook system of trial preparation,
said Angus, pointing to Paul’s list. It’s far more efficient than the traditional legal pad-manila folder-brown accordion file method, which produces piles of clutter and very little organization.
The heart of the trial notebook is the proof checklist,
said Angus, "and there are three steps.
"First, analyze your cause of action. Write down every element you have to prove to keep the judge from granting the other side’s motion for a directed verdict.
"Second, under each element, list the evidence that proves that point. Make sure you list only things you know are admissible. Remember, just because somebody said it in a deposition or wrote it on a piece of paper doesn’t mean it’s coming into evidence.
Third is a personal rule I follow to stay out of trouble,
said Angus. Make sure you have at least two different sources for every fact that’s essential to your case. Whenever you only have one way to prove a key part of your case, that’s when the witness will die, disappear or forget—or the document will be lost, destroyed or suddenly seem incurably vague.
So one advantage of the proof checklist is that the weaknesses in your case jump out at you—like high cholesterol or abnormal thyroid numbers jump out at a doctor?
said Paul.
Exactly,
said Angus. "The proof checklist is helpful, but that’s all. It says you’ve got enough proof to get past a motion for a directed verdict, but not how to try your case—any more than it shows you how to build a car, fly an airplane or play the saxophone.
The proof checklist says you have an adequate legal theory that fits the facts, but no more than that. It is not the theory of the case.
Find the Theory
The theory of the case is a story that not only satisfies the law,
said Angus, but makes sense out of the facts and appeals to the judge and the jurors’ sense of plausibility so that it rings true in their minds. A theory of the case makes the facts come alive so the people who hear it can ‘see’ for themselves what happened. It lights the sense of fairness in their minds so they want you to win.
Then you’re ready for trial,
said Paul.
Wrong,
said Angus. "Then you’re ready to really start working. The problem is, most lawyers persuade themselves better than they persuade anyone else. Now your job is to see what you’ve really got. You need to look at all the patterns, and especially the pieces that don’t fit in those patterns.
"You need to examine the strengths and weaknesses, the aberrations and the inconsistencies. To feel the fabric of the case you have to test the little oddities and think about where they might lead other people’s thoughts.
"You need to keep asking yourself, ‘What really happened?’ and, especially, ‘Why?’
That’s because lawyers are carried away with the notion that there really is ‘objective truth,’
said Angus. "While, in fact, almost every bit of evidence you have is distorted. And it’s not just in lawsuits. It’s the way the world works. Even the most careful witnesses are like the five blind men who touched the elephant and reported that it was a wall, a tree, a spear, a rope or a giant snake.
"You also need to develop a feeling for what kinds of things people are ready to believe and what they are likely to reject unless you find a way around what’s going to bother them. Otherwise you’ll never become the guide that they will want to follow through the thickets of the facts and the law.
So the best way to start going through your case,
said Angus, is to make four lists: your strengths, their strengths, your weaknesses, their weaknesses.
Do you actually write them down?
said Paul.
Only if you want to win,
said Angus.
But why bother with these lists?
said Paul. I thought the point of the adversary system was to make the best argument you could.
Angus snorted. "One of the biggest misconceptions fostered by legal academics is the notion that a strong argument ignores the weaknesses in your own case.
There’s nothing persuasive about taking the most extreme position you can create. You’ve got to take the other side’s strengths and your weaknesses into account in shaping your case. Otherwise you’ll fall into the classic trap of getting carried away with your own rhetoric.
What’s wrong with that?
said Paul. Isn’t there another old saying: ‘You can’t sell what you won’t buy?’
There is,
said Angus. "And the point of that is to limit what you try to sell to those ideas that are plausible—reasonable—that you yourself can buy.
"Which is why you need to pay special attention to the weaknesses in your case and the strengths in the other side’s case. Otherwise you’ll wind up believing things that no one else possibly can—arguments that will make any reasonable judge or jury snort in derision.
"That takes us back to why you actually write out those four separate lists—your strengths, your weaknesses, their strengths, their weaknesses. You want to look at all of them at once. You do that because you don’t really understand your case until you understand theirs. And you don’t really understand their case until you have looked at it from their point of view.
And finally you’re ready to go,
said Paul.
Tell the Story
No,
said Angus. Then you’re ready to outline the facts—to put the story together. A consistent, coherent human story that not only makes sense, but will make the people who hear it want you to win. This story is the heart of what will be your opening statement.
But organized around the legal elements of the case,
said Paul.
Angus looked straight at Paul. Who told you that?
My trial practice teacher in law school,
said Paul.
"I want to tell you what the late Don Bowen said shortly before he led Exxon’s trial team to victory over Lloyd’s of London in the Exxon Valdez trial: ‘Real people never organize their stories around the elements of a cause of action.’"
Well, then how about chronology?
asked Paul. Isn’t the order in which things happened a good way to organize your opening statement?
Often it’s not,
said Angus.
"Chronology usually implies cause and effect, but often there are separate parts of the story that overlap in time but don’t come together until the end.
In situations like that, following the calendar creates nothing but confusion,
said Angus.
"Basically, you can organize your opening statement in any way you want.
Probably the most important factor, however, is tension,
said Angus.
"Tension creates interest. When you set out the elements of a conflict, people naturally want to find out what happens.
"And if you start the story so the judge and the jurors identify with your client, they will be angered when they find out what happens and will want to use their verdict to right that wrong.
Finally, the story of the case will help you put your entire case together—which witnesses to call, which to save for rebuttal, how and when to use your key trial exhibits.
Paul stood up. I don’t know how to thank you. I’ve got an awful lot to do during the next three months. There’s enough depth and challenge to trial practice to last much more than a lifetime.
Angus smiled and said, Which is why—if you approach it with honesty and dignity—it is truly a noble profession.
CHAPTER 4
The Guiding Principle
Matt Fuller—a corporate lawyer who rarely goes to court—caught up with Angus in the Brief Bag on Monday. I watched you try that age discrimination case last week,
said Matt, and I’ve got to know your secret.
What do you mean, Matt?
said Angus. The only secrets I know are client confidences, and I can’t tell you those.
I’m not talking about client confidences,
said Matt. "I’m talking about persuasion—how you try cases. I want to know your secret, so I can do it, too.
I watched that whole trial,
Matt said. "You made it look easy. Effortless. Simple. No clever trial tricks, no fancy side steps, no theatrics, no bombastic rhetoric. There I was, a lawyer with 20 years’ experience representing corporate defendants, and I found myself wanting you to beat the stuffing out of the corporate defendant—which you did.
I spent the whole weekend trying to analyze how you did it, and I still don’t know. For a while last night I actually found myself wondering whether you have that magic monkey’s paw on the end of your watch chain.
Which means you’ve got a case coming up that you’re going to have to try, so you’d like me to give you a quick course on trial persuasion?
said Angus.
Exactly,
said Matt.
Angus laughed. When Euclid was teaching mathematics in Alexandria,
he said, "King Ptolemy asked him whether there was a quick way to learn geometry. Euclid said to the king, ‘There is no royal road to geometry.’
Not that you are Ptolemy or I am Euclid,
said Angus. But still, there is no royal road to trial persuasion. It takes time and effort.
Angus paused for a second, then said, "And yet, there is an overarching principle that is so important it should direct virtually everything you do: Be the guide they can trust.
Start with jury selection,
Angus said. While you’re picking jurors, what do you think they’re doing?
Sizing you up?
said Matt.
Right,
said Angus. "Looking for a guide. Deciding which of the lawyers—if any—they can trust. Who knows the case well enough to make sense out of the facts for the judge and jury? Who seems honest, open, fair and sincere? On the other hand, who seems suspicious, cautious, guarded and secretive—as if he’s got something to hide?
"Which one seems to trust the jurors with the facts without trying to push them into a decision, and who is trying to get the jury to take sides before the case even starts?
Which one seems genuinely interested in getting to know a little about the people who are going to decide the case, and who is more concerned with giving a routine set of exhortations that seem more like argument than orientation?
The Trouble with Selling the Case
Next,
said Angus, "comes opening statement—one of the most difficult parts of the trial, largely because it requires so much self-control. Here is where you naturally want to pull out all the stops and do everything you can get away with to sell your case.
Resist that impulse.
But why?
said Matt.
Because of the paradox of persuasion,
said Angus. "The harder you push, the more you argue, the more you sound like one of those late-night television hucksters selling $29 Wonder Wrenches, $19 Magic Carpet Cleaner or $39 Home Gyms that strap your feet to the bottom of the door.
"Whenever you argue too hard, you automatically push the sales resistance button of the people you are trying to persuade.
"The problem is, you can’t really persuade other people to do anything; they persuade themselves. Steven G. Heikens, a Minneapolis lawyer, put it this way in the subtitle to The Balancing Act, his book on how to write good settlements: ‘You Can Lead a Horse to Water, but Your Job Is to Make It Thirsty.’
"The point is to make the jury want you to win. And you don’t do it with arguments, opinions and characterizations. Those are the enemies of persuasion.
Instead, you do it with simple, honest facts that tell the story of a wrong to be set right—or a wrong decision to be avoided, if you represent the defense. You do it with the facts from the case that touch people’s inner scripts, that resonate with their values and experiences.
But what do I do with the bad facts, the ones that hurt my case?
said Matt. Leave them alone or bring them out myself?
What is the guide the jury trusts going to do?
said Angus. Give her opponent the opportunity to make her look like she was trying to hide something from the jury?
I see what you mean,
said Matt.
Ask Questions the Jury Would Ask
Now turn to direct,
said Angus. "Of course, you want to put together a series of simple, well-organized direct examinations that fit together to tell the winning story. But you are still a guide. So show the jurors as well as the witness where they are going by using the headline system. Every time you start a new topic, tell the witness the subject, and everybody will know what it is. Like this: ‘Now, Mr. Fuller, I want to ask you about your conversation with the defendant’s sales manager, Cynthia Engels. When did you meet with her?’
"Each headline gives meaning to all the who, where, what, when, how and why questions that follow it. Headlines give organization and direction to the entire direct and keep everyone—you, the witness, the judge and jury—on track.
"And every time you finish a topic, introduce the next one with another headline.
But that’s not all,
said Angus. "Plausibility is the key to the credibility of any witness. Whenever a witness says anything that seems unusual, unlikely or out of the ordinary, stop and challenge what he says: ‘How could that happen?’ ‘Didn’t anybody do anything?’ ‘Why didn’t someone call the police?’
Remember, you are the guide, so you should ask the follow-up questions that the jurors would like to ask if they could. That way they start to think of you as one of them—which is why you will say ‘tell us’ instead of ‘tell the jury’ when you frame your questions. And whenever you challenge the testimony of your own witness, you earn additional credibility as someone who—like the jury—wants to know the truth.
My gosh,
said Matt, you really have given this a lot of thought.
Well, I’m supposed to,
said Angus. After all, it’s my life’s work. Anyway, think about cross-examination. Who’s the real witness on cross?
The one being cross-examined, of course,
said Matt.
I disagree,
said Angus. "Cross-examination is the lawyer’s opportunity to tell the story—his way. Do it right with short, leading questions that ask for facts—not opinions—and the witness on the stand has to agree that what the lawyer says is true.
"In other words, the lawyer is the real witness on cross.
And if you are going to be the guide the jury can trust, then don’t be rude and sarcastic to the witness, and never conduct a dishonest cross.
I agree about not being rude and sarcastic on cross-examination,
said Matt. That’s one of the reasons people hate lawyers. But what do you mean by ‘dishonest cross?’
When the point of your cross-exam is to suggest that something the witness said is a lie—and you know it’s not—you are taking a tremendous risk,
said Angus. You are sponsoring a dishonest idea. Since you are the real witness, it’s your ‘testimony.’ And if what you called a lie in your cross gets corroborated by indisputable facts or an unimpeachable witness, your credibility takes a nosedive.
Wow,
said Matt. I never thought of that.
Just a few simple rules for final argument, and then I have to go,
said Angus. First, never misstate any evidence. Whether or not your opponent catches it, someone on the jury will—and when the jurors talk about it in their deliberations, they will figure you did it on purpose. Second, don’t make inconsistent arguments. At best, they make people wonder whether you know what you’re doing. Third, don’t push a losing theory. Logic, like mathematics, seems to seek the lowest common denominator. The weakest argument you make defines the strength of your entire case.
CHAPTER 5
Character Studies
Nick Wheeler of Randolph and Wheeler came into the First Federal Soup and Sandwich Shop. Without a word, he walked over and sat down at the table where Angus and I were having lunch. Then he said, Mind if I join you?
I was a little surprised to see Wheeler where the combat troops eat. He usually hangs out with the brass from the other large firms (and captains of industry) at places like the Purple Artichoke, the Dow or the MizzenMast.
What brings you here?
said Angus.
I want to ask you a question,
said Wheeler. What’s the most dangerous evidence in a trial?
Angus smiled. I assume your question involves more than just intellectual curiosity,
he said.
Seventeen million dollars more,
said Wheeler. "That’s what the jury gave Karl Neeseman, the 59-year-old man who brought an age discrimination case against our client, Pencraft Builders. We took a real hit. Fortunately, Judge Mudrock made a mistake in the jury instructions, so he had to grant our motion for a new trial.
Now, I don’t actually think the instructions had anything to do with the verdict—which is outrageously excessive—but since we’ve got a second bite at the apple, I want to make sure we don’t make the same mistake twice.
So the question,
said Angus, is what kind of evidence would make a jury mad enough to return a $17 million verdict against Pencraft Builders?
Exactly,
said Wheeler.
Picking Out the Bad Guys
While I’d have to know a lot more about the case to get specific, the quick answer is easy,
Angus said. Character evidence.
Excuse me,
said Wheeler. Character evidence? I’m afraid you don’t get it. Character had nothing to do with this case. This is a civil action. You can’t use character evidence in a civil trial. Nobody in the trial said anything about the kind of people on either side, much less gave their personal opinions about anybody or testified to their reputations.
Angus put up his hand. Hold on a second,
he said. Did you actually try this case?
No,
said Wheeler. Pat Reilly from our office. But after that verdict, I went through the entire transcript, looking for anything I could find.
So you read what happened at trial,
said Angus, but you weren’t there. And when I said ‘character evidence,’ you instantly had the picture of someone who was charged with murder whose only hope was that the jury would believe his friends when they said he’s not a killer.
Well, yeah,
said Wheeler.
I’m not talking about the form of testimony or the rules of evidence, which admit all kinds of character evidence in civil trials
said Angus, "but the way the judge and jury use what they see and hear during the trial.
"The jury obviously thought your firm was representing the bad guys. Not just some company that was technically responsible for what happened to Mr. Neeseman, but an organization that needed to be taught a serious lesson.
"Judges and juries believe that lots of people—sometimes even whole corporations—have character traits that lead them to deliberately trash other people, use them up and throw them out, or are so inherently dishonest that they try to lie and cheat their way through an entire trial.
"Evidence showing those kinds of character traits can be devastating. And even though nobody actually puts character in issue, that’s what the judge and jury are looking for. They are trying to figure out what kind of people are in the case. Sometimes it’s obvious by the way the parties and their witnesses act on the stand or from what they did that landed them in court. Lots of times all the judge and jury have to go on are little bits and pieces that seem to reveal the real story.
By the way,
said Angus. "Character is not a one-way street. It doesn’t just hurt defendants. The sense that the plaintiff provoked the situation, is lying or exaggerating, is driven by greed, or is trying to blame someone else for what he did himself can result in an otherwise solid case actually getting a zero liability verdict.
And don’t forget the lawyers. People figure that sneaky, tricky clients hire sneaky, tricky lawyers,
said Angus. "Everybody knows that we are hired guns, and they’re sure we know a lot more than what we tell them. So they watch us like hawks for anything we might let slip.
A trial is a moral arena in which the character of the players is powerful medicine. It is typically the most important thing to think about while planning how to put the focus of judgment on your opponent.
Focus of judgment?
said Wheeler.
Right. In virtually any kind of case, you want to put the other side ‘on trial.’ So tell me about your case.
Karl Neeseman started working for my client back when it was called Cromwell Developers,
said Wheeler. "That was 26 years ago, when Neeseman was 33. Now he’s a 59-year-old widower whose kids are out of school and on their own. He’s a bookkeeper who worked in Cromwell’s accounting department. That’s what he wanted to do. Never tried to move up. His evaluations were always quite good. Reliable, dependable, not exciting—but he was a bookkeeper. After more than 20 years with the company, his salary was at the top of the scale for his job description.
"Then two years ago, Cromwell was bought by Pencraft—the big California developer that makes whole gated communities up and down the West Coast and now is starting the same thing in the Midwest.
After Cromwell became part of Pencraft, an independent accounting firm took over the entire accounting department, and all the bookkeepers were let go. It had nothing to do with anybody’s age—it had to do with efficiency, corporate reorganization and maximizing the return to the shareholders.
Find the Critical Difference
I had to interrupt. Excuse me,
I said, but is that a quote from one of Pencraft’s witnesses?
Exactly,
said Wheeler. It’s what the CEO said on direct examination.
And you say the plaintiff wasn’t treated any differently from anyone else in his department?
said Angus.
Nope,
said Wheeler. The department was gone. No more bookkeepers.
Anyone older than Mr. Neeseman get phased out?
said Angus.
No, he was the oldest in the department by 10 or 12 years,
said Wheeler.
Any of the bookkeepers offered different jobs so they could stay with the company?
Five out of the six moved to different departments.
So the only one who wasn’t offered a new job was Karl Neeseman,
said Angus. Did they tell him why?
All the other jobs required skills he didn’t have,
said Wheeler.
Did they offer him a trial period to see if he could do the work?
said Angus.
No.
Did he ask if he could stay on in a different job?
Yes, but that wouldn’t have been appropriate.
So after 26 years, the company told Mr. Neeseman that it had no place for him and wouldn’t even let him try a different job,
said Angus.
If you want to put it that way,
said Wheeler.
What kind of severance package did he get?
Thirty days’ termination pay,
said Wheeler.
Angus leaned back and looked at Wheeler. What kind of corporate character do you think is shown by the story you’ve told about Pencraft Builders?
Oh, I don’t know,
said Wheeler. Tough, hard-nosed, fair, impartial. Gave their employee exactly what his employment contract called for. No more, no less.
Jimmy,
said Angus, what do you think?
Hardly warm and fuzzy,
I said. They didn’t just let Karl Neeseman go; they threw him away and kept the rest. It’s one thing to close down a department. It’s different when you find another job for everyone else except the one who just happens to be making the most money—the oldest one who’s going to have the hardest time getting a new job. But the biggest affront is that they don’t even give him a chance to learn a new job and stay on. After 26 years they hand him a month’s pay and say, ‘You’re useless to us, Karl. We don’t have anything for you.’ It doesn’t leave him a lot of dignity.
Then Angus said, Nick, this ‘inappropriate’ excuse for not giving Neeseman a chance to stay sounds pretty lame. Is that a word that came from the trial?
Matter of fact,
said Wheeler, there was a memo from the head of HR to the CEO that said, ‘Maybe we could use Neeseman to work with numbers in the planning department,’ and the CEO scrawled ‘inappropriate’ over the memo. He didn’t do a very good job of justifying his reaction on cross-examination.
Nick,
said Angus, I’d say your case has got a character problem.
CHAPTER 6
Reel-Time Testimony
Mike Pirelli was still several weeks from trial when he asked Angus to take a look at the heart of his case: the examination of Mike’s client, who was in a $2 million fight over the tangled sale of a private trash collection company.
So Angus set up a mini-mock trial—just opening statements, and the direct and cross-examination of Mike’s client. Beth Golden played the part of Mike’s opponent. I came along to run the video camera and rule on any objections.
After we finished taping, Mike’s client left, and we started talking. Well, what do you think?
said Mike. Will my theory fly?
Your theory is great,
said Angus. "It’s your direct examination that worries me. You covered everything—all the facts, anyway. And you didn’t open any dangerous doors so far as I could tell.
The problem is not what you did—it’s how you did it. There was nothing but talk and a handful of papers for two-and-a-half hours. Just words. Spoken words. Transitory sounds for 150 minutes, with nothing for the jury to look at but you and your client.
Well, what did you expect?
said Mike. This is a commercial case. A contract dispute. It’s all about words, ideas, the parties’ intentions, and what they wrote in a bunch of letters and a formal contract. This isn’t a triple ax murder with gory pictures or a traumatic amputation in an industrial accident. It’s a business case.
I understand,
said Angus. Broken promises, economic treachery and a $2 million loss to your client, not some physical trauma. But that doesn’t excuse forgetting one of the most important roads into the minds of the people who are going to decide your case.
I know where you’re headed,
said Mike. You want me to concoct some kind of demonstrative evidence—create a visual dog-and-pony show to keep people entertained during the trial.
It’s not entertainment,
said Angus. It’s effective teaching. You’re supposed to be the guide who will lead the judge and jury through the thicket of the facts so they will see for themselves that your client has been done a serious wrong.
I don’t have any problem with being a guide,
said Mike. It’s just that there isn’t anything visual about this case, and I don’t want to look phony, contrived or made-up. I’m not some hotshot plaintiffs’ lawyer like Flash Magruder.
The point is not to be phony or contrived,
said Angus. "It’s to take advantage of how people’s brains actually work.
Dr. Patrick Sweeney of the Neurology Department at the Cleveland Clinic checked out the medical literature for me,
said Angus. It says that 70 percent of the normal human brain is devoted to interpreting visual images. Which makes sense, because 70 percent of the neurons entering the brain come from the optic nerves. You’ve got to take advantage of that 70 percent.
But not everybody learns best by looking at pictures,
said Mike. A lot of us like to read and mull over what the words really mean.
That’s one of the reasons why David M. Malone of Washington, D.C., asks potential jurors whether they would rather read a book or watch a videotape if they want to learn how to do something,
said Angus. "Their responses help him shape how he presents his case.
But that doesn’t mean visual images aren’t important, no matter how you like to learn. Take a look at this,
said Angus, and he handed Mike a copy of The New Way Things Work by David Macaulay. This book ought to be required study for any lawyer who is going to try a case that has difficult things to explain—like a patent case—which is why I have it with me.
This is amazing,
said Mike, his face buried in the book. This guy Macaulay is a genius. He explains really difficult ideas just with interesting little drawings. One look at the picture and you’ve got it.
Which is what your job is,
said Angus. "To be an explainer. To command instant comprehension.
But the problem is, this isn’t a patent suit,
said Mike.
The point is,
said Angus, a picture, a chart, a model, a diagram, a computerized re-enactment or a simple demonstration is often best when you need to explain a difficult idea.
Avoid Verbal Gridlock
Language has its limitations, said Angus.
There are times when mere words clog the brain. Most lawyers have a high tolerance for verbal pain. They can tolerate what would be insufferable linguistic gridlock for anybody else. We are used to tugging at tangled sentences and paragraphs until they surrender to reason. We actually enjoy it. How else could we stand to read what other lawyers write?
But real people won’t tolerate what we deal with all the time,
said Angus, so there is a rule you ought to follow: Never rely on words alone to convey any difficult idea. For any point that is hard to follow, use some kind of visual aid as well. The artistry, the creativity, lies in figuring out how best to do it.
OK,
said Mike. Say I agree with you. Where should I start?
Two things occur to me right away,
said Angus. "First is showing the jury how important the availability of the Westbrook landfill is to the sale of this company.
"Second is untangling the twisted web between the problems with the landfill and Jack Burnham, the guy who sold your client the business. Some jurors are going to have trouble believing that a person who was selling a business would have a whole sabotage system ready to start undermining the company as soon as the papers were signed. Motive is essential. So is how he did it.
"There are at least nine different people in the chain between Burnham and the Westbrook landfill, and it’s almost impossible to keep their names straight, much less understand what each one did.
And if you don’t get the jury to connect Burnham with the landfill problems, you lose.
Mike sat there for a minute. Then he picked up The New Way Things Work again and looked at some of the pictures. I’m sold,
he said. How do I do it?
You’ll need to work with a good graphic artist,
Angus said. "I know one who’ll be perfect if she’s available. She always has five new ways of picturing an idea that I hadn’t even thought of. I’ll give her a call tomorrow morning.
But don’t think getting some neat charts and diagrams is all there is to it,
said Angus.
"Think about your documents. You’ve only got one contract and about two dozen letters. But not one of them is really what you’d call a smoking gun. All of them have important language, but none of it is obvious. Your job is to make the key words jump out at everybody. One of the best ways to do that is with a video presenter—widely referred to as an ‘Elmo.’ You just lay the document on the table under a little camera, and the document shows up on the video screen. Then you can zoom in on the important language so everyone can read it.
"And while you’re at it, get light pens. They’re called ‘John Madden pens’ because they let you draw colored lines on the video screen from where you are standing so you can circle and highlight key words without actually marking the document.
Work with your graphic artist on this,
said Angus, "because the words and phrases you circle should go on a chart that has two parallel columns: ‘What Jack Burnham Said’ and ‘What Jack Burnham Did.’
"You can either fill out the chart during direct exam of your client or have it already filled out and uncover each entry as you go.
Now, there’s another problem,
said Angus. "Your client does not seem as personable as Jack Burnham did in his video deposition. Visual aids can help offset that by encouraging the jury to focus on the pictures of the facts rather than just staring at the witness. Besides, a well-coordinated package of exhibits will make the jury feel they’ve figured things out for themselves, and people always like their own ideas.
Seeing Is Believing
Then there is what I call supporting demonstrative evidence—pictures that make things seem more real but aren’t essential to proving your case. For example, a few photographs of your client’s garage, some of his garbage trucks, a shot of the landfill, might help the facts come alive. You could also have some specially colored maps that show your client’s territory.
My gosh,
said Mike. You’ve thought of everything.
Hardly,
said Angus. In a few weeks we’ll do this again and see how it fits together. In the meantime, work on using the language of visualization in your direct examination questions.
The language of visualization?
said Mike.
Absolutely,
said Angus. "Using words or phrases like ‘let us see,’ ‘show,’ ‘explain,’ ‘take us there,’ ‘give us a picture,’ ‘view,’ ‘look at,’ ‘examine,’ ‘inspect,’ ‘demonstrate,’ ‘illustrate’ and ‘visualize’ in your questions will help the judge and jury become eyewitnesses to your facts.
And if they see them, they’ll believe them.
CHAPTER 7
The Focus of Judgment
Flash Magruder came into the Brief Bag with a stunned expression on his face. What’s wrong?
I said. You look like you just saw something awful.
I did,
said Flash. I came from Alice Redding’s court. I spent all week watching one of the best plaintiffs lawyers in the country—Patrick Francis Crowley—lose a $56 million trial in the court of common pleas.
Did the jury come back in that dreadful child mutilation case?
said Beth Golden, joining the group. I’ve been expecting to hear about a $150 million verdict any day now.
There was no million-dollar verdict,
said Flash. Nothing. Nada. Zip. The jury said no liability just two days after Pat Crowley turned down the defendant’s $18 million midtrial settlement offer.
What do you figure happened?
I said.
I hate to say I saw it coming,
said Flash, but by the end of the trial I felt Crowley had done a beautiful job of painting the picture of a devastating loss, yet I never felt it was the defendant’s fault.
That’s a mistake,
said Dick Mudger. You just can’t count on sympathy to carry a case anymore.
Right,
said Mike Pirelli. People are a lot more suspicious of lawyers and lawsuits these days. And besides, people have difficulty dealing with tragedy. They feel it’s beyond their power to do anything about it.
Exactly,
said Magruder. The key to big damages is big fault. If you want the jury to return a substantial verdict for the plaintiff, you’d better make them angry with the defendant’s conduct before you play the sympathy card.
What do you think, Angus?
said Beth Golden.
I didn’t see the trial,
said Angus, "so I can’t comment on it. But in addition to what everybody else has mentioned, there’s another factor at work in virtually every trial: the focus of judgment.
"There is a natural tendency for everyone—judges and jurors alike—to assume that, in any case, one side is right and the other side is wrong. Fact-finders know they are there to judge. So the trial becomes a moral quest, the hunt for which side to blame. They feel it’s their job to figure out who’s at fault, and they tend to take sides early on.
So the focus of judgment—who the fact-finders are evaluating—has a powerful influence on the outcome of any case,
said Angus.
Wow,
said Keesha Reynolds. Say that again. I want to write it down.
Don’t worry,
I told her. I’ve already started taking notes. I’ll make a copy for you.
Angus went on. Basically, it’s a question of who’s on trial. So naturally, the longer your client is the one being scrutinized—held up to the light and evaluated with a critical eye—the more likely it is the judge and jury are going to find something they don’t like, some reason to say your side’s at fault.
Shifting Gears
So you want to put the other party on trial—not your own client. Right?
said Beth Golden.
Angus smiled. Usually that’s right,
he said.
Wait a minute,
said Myra Hebert. Are you telling plaintiffs to forget about damages and just concentrate on fault?
I didn’t say that,
said Angus. "In fact, fault and damages are interactive. Each is important to the other. ‘No harm, no foul’ is not just a cliché; it’s one of the dominant American attitudes about blame.
The focus of judgment is valuable because it helps you think about what’s important when you plan your case. The very idea of judgment suggests moral accountability. And there’s a lot more to accountability than simply cause in fact.
Like what?
said Mike Pirelli.
Suppose you’ve got a simple contract case,
said Angus. The supplier of a computer chip used in making cell phones delivers a batch of defective chips to the manufacturer. The chips seemed to be OK when the plaintiff tested them, but they started to fail after a few months’ use. Which means the plaintiff manufactured and sold 80,000 phones that turned out to be defective and have caused it a barrel of trouble. Sound like you have enough cause for a case against the supplier?
Of course,
said Mike, and I’d love to have the case.
Do you think that it would help if the jury learned that the defendant knew those chips were defective before shipping them to the plaintiff?
Of course,
said Mike. This case is getting better all the time.
And what if you could show that, out of all their customers, the supplier intentionally decided to send them to your plaintiff?
said Angus.
That sounds treacherous,
said Mike. But why would any supplier ever do that?
Would it make a difference if you found out that right before the supplier shipped the defective chips to your client, they landed a huge contract with your client’s biggest competitor?
said Angus.
Absolutely,
said Mike. But let me ask a question. How do you ever get a case with facts like these?
By using the focus of judgment to help guide pre-trial discovery,
said Angus. You’re not just interested in who gets put in the spotlight but the conduct that gets highlighted, as well. What they did and why they did it is at the heart of the moral accountability you are after.
Excuse me,
said Keesha Reynolds, "but do you ever tell the jury what
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