Articles Posted in Litigation Strategies

Paul Luvera writes a blog post about cross-examining experts based on a presentation he heard in New Orleans from a Florida lawyer named Dorothy Clay Sims (now famous from the Casey Anthony trial).

The post is worth reading if you are a personal injury lawyer cross-examining an expert. I also like the whole idea of this post. First, it is a lawyer reporting on what he learned from another lawyer. This is what good lawyers and good professionals do: use ideas and techniques learned from other people.

The other neat thing about this post is that it is Paul Luvera writing the post, sharing perspectives from another lawyer. Luvera has had more than his fair share of million-dollar verdicts. A lot of lawyers with track records that pale compared to Luvera take their ball and go home when it comes to opening their minds to learning from other lawyers (or witnesses, focus groups, juries or anyone else). The whole thing is circular: lawyers that will keep their minds open to learning from other lawyers are far more likely to get successful outcomes for their clients.

I mentioned in a blog post last week that I monitored the conviction of the at-fault driver in a wrongful death car accident case that I have. The case was in District Court in Essex. Judge Martha Russell presided over the case. She’s a new judge and a good one who was obviously very experienced in dealing with criminal cases.

How to dress at trial

Judge Russell was very patient with unrepresented defendants. She displayed not an ounce of superiority or contempt in dealing with defendants who offered stories that were sometimes worthy of contempt. If you are a judge out there and you are trying to impress me (oh, it is a long line, I’m sure), treat the parties and, if you don’t mind, the lawyers, the same way you would if you did not have all the power in the room. They say you can learn a lot about people they handle adversity. I think you can learn more about someone by how handle power.

Okay, now let’s move on to the actual purpose of this post. I noticed that the defendants at the criminal cases I watched were generally dressed poorly, wearing clothes you should not wear to something that matters. Maybe just as important as wearing the appropriate clothing is wearing it appropriately. A quick tip: it is probably not a sign of respect if you are wearing your pants four inches south of your waist. (Note: I originally wrote this as north which is obviously a typo! A reader corrected me!) If you are trying to show respect, that you are repentant, or even that you are not guilty, it makes sense to dress like you have respect for the court and respect for the process.

Keene Trial Consulting has a post on this subject: Tattoos: When Should You Clean Up Your Witness? Douglas Keene writes that the goal of a trial lawyer in presenting their client is to “help the jury see the witness as ‘kind of like me’ or ‘someone I can trust.'” Continue reading

On our website, we have sample depositions in car and truck accident, medical malpractice, and product liability cases. The purpose of these sample deposition transcripts is to help lawyers who are taking a similar deposition and for victims who are trying to certain the type of personal injury deposition questions they can expect.

In personal injury cases, depositions are where the action is.  Most cases do not go to trial. The deposition is often the place that makes or breaks settlement value.

Oral Depositions

Sometimes, I think personal injury lawyers – myself included – subconsciously think we know better than the client in terms of what damages they have that really matter to a jury. But we often get it wrong. More often than not, what is in the client’s heart will also be what has the most impact on a jury. Paul Luvera offers a tip he picked up in Paris of all places on how to get clients to open up about what their actual injuries are and how to present those injuries to a jury.  Going back and checking this blog post in 2017, I see the link is no longer available.  But the message is important today as when this blog post was first written.

Early in my career as a plaintiffs’ lawyer, we tried a case where I spent an impressive deal of time preparing the witness to testify. Literally 20 minutes before she testified, she told me in a whisper what really upset her about her injuries. She had lots of nieces, and she went from being the fun aunt to the aunt who always complained of being in pain. That translates okay in this blog post. But you had to be there and listen to the way she told the story. It took me two seconds to realize it was genuine. I brought out the story on direct, and it became one theme of our case, and one reason, the jury told me later; they arrived at the verdict they did.

That translates okay in this blog post.  I’m sure you get it.  But you had to be there, and you had to listen to the way she told the story. It took me two seconds to realize it was genuine to her. It moved me.  I brought out the story on direct and it became one theme of our case and a reason; the jury told me later; they arrived at the verdict they did.

Paul Luvera offers on his blog a good checklist (sorry, link now broken) for preparing a case for trial.

Paul points out that checklists – seemly obvious things that have probably been around since man was carving into stone – have received renewed interest in other fields, most notably in medicine where some studies have shown that being a slave to the checklist is sometimes better than the doctor using their own judgment.

If this is even occasionally true, it is humbling for a professional, particularly a doctor. Accepting that you need reminders of the obvious does not stimulate the ego. But I think most errors that result in medical malpractice or legal malpractice are not because the doctor or lawyer did not have the skill to avoid the mistake but because they didn’t properly use what they already knew. Proper use of checklists can help fill that gap.

The Legal Intelligencer has a pretty comprehensive article about how to frustrate, annoy, and pry into a plaintiff’s Facebook activity.

In a malpractice or car accident case, the primary purpose of Facebook discovery is to show that the plaintiff is not as injured as claimed in the lawsuit or in discovery. If you put up a picture of yourself skydiving on Facebook, you can go back to work.   This is an extreme example.  If you are lying about your claim and you are not my client, your case deserves to go up in a heap of flames, right?  But there is a lot of stuff that people post that is seemingly inconsistent with their case that might be misleading.  You just do not want to put yourself in that spot. 

Still, putting your physical condition at issue in a lawsuit should not be carte blanche into communications that are usually intended to be private to a relatively small group of people. This Legal Intelligencer article does not even suggest that defense counsel do anything but go all-in with the “big guns.” The article does not caution lawyers to argue reasons the otherwise private information is relevant and does not suggest narrowly tailored requests. Instead, this attorney suggests a raw fishing expedition which I don’t think a lot of courts will allow.