How To Win Your Next Personal Injury Trial Posted on September 24, 2015 by John Fisher By John Fisher, ProtectingPatientRights.com and UltimateInjuryLaw.com. Trial work is not for the faint of heart. You work night and day preparing your personal injury case for trial and no matter what you do, your fate rests in the hands of a group of six complete strangers. You hate giving up control to these strangers who stare at the ground and fold their arms across their chest, but you’ve got no choice. Sleepless nights are part of the job description for trial lawyers. Many trial lawyers just pray for a settlement. But you’re not a “settling lawyer”—you’re a “trial lawyer” and trials are what you do for a living and you’re damn proud of it. And settling for pennies on the dollar of your case’s true value is just plain wrong. So you don’t even think of a settlement. You focus on presenting the best possible trial you can and you hunker down and get ready for trial. But it’s easy to get distracted by other “stuff” — an occasional dinner with your spouse and kids and, oh yeah, your other clients. You pull your hair out and think, Does it have to be this hard? Streamline Your Trial with 5 Witnesses or Fewer The Mastermind Experience is limited to only 18 highly motivated, proactive, and willing-to-work lawyers. Once we accept 18 applications, that’s it. Visit http://mastermindexperience.com today. There is one basic rule that trumps all others for plaintiffs’ lawyers: the longer the trial takes, the worse it will be for your client. Jurors have lives too and they don’t want to be sitting around in court. If your trial takes longer than one week, there’s a good chance you will lose the jurors’ attention and the outcome will be predictable. Your goal is to streamline your case. Begin by avoiding witnesses who are not completely essential to your case. Even in the most complex cases, if you can’t try your case with five witnesses or fewer, you’re not streamlining your case and it’s virtually guaranteed that you’ll bore the wits out of the jurors…and lose the trial. Make a game out of parsing down the number of witnesses. Okay, your clients must testify and you’ll need a treating physician and in most cases an economist. If you’re thinking about adding some fluff witnesses, just ask: Do you really need them? If not, get rid of them—jurors hate cumulative and redundant trial testimony and ultimately, your client will pay the price. Get to the Point as Quickly as Possible Keep trial testimony short and to the point. The attention span of the average juror is nine seconds—which means you’ve got just seconds to get to the point. Forget asking about the witness’s hobbies—think, what are the two or three points you need to make with the witness and get right to it. If your client rambles during his testimony, you have to rein him in. You have to cut off your client during his testimony and keep his testimony on point without meaningless BS. Even if you have to be rude with the witness, you have to keep the testimony brief and on point. The best trial testimony of expert witnesses often takes 30 minutes. What’s better than watching a trial lawyer and an expert who know exactly where they’re going? Heck, it’s better than a Broadway play. You’re showing the jury that you respect their time and you know what you’re doing. Whatever you do, never overstate your case. If your client has medical or psychological conditions that are unrelated to his injury, admit to the jury that, “We’re not claiming your dementia was in any way caused by the crash [never use the ugly word, “accident”]”. Your 12-Week Plan for Trial Twelve weeks before trial, you should map out a week-by-week plan of things that need to get done to prepare for trial. Sit down with your paralegal and secretary and set up a plan for what each person must do: Serve a motion in limine re: client’s criminal convictions. Edit video depositions of defense employees for trial presentation. Conduct a focus group on any comparative fault issue. Meet with your trial consultant. Serve your proposed jury charge, statement of contentions and verdict sheet for the submissions to the court. Review the 12-Week Plan every week with your staff to make sure everyone’s doing what they’re supposed to do. Adjust and make changes to the 12-Week Plan as necessary, but don’t let your other cases get in the way of your trial preparation. One week before trial, you and your team will be locked, loaded and ready for trial…and you won’t be scrambling to get stuff done. You should stipulate into evidence all of your exhibits with defense counsel before trial. The exhibits should be pre-marked by the court reporter, admitted into evidence by stipulation with defense counsel and offered into evidence before your trial begins. Phew, you’ve got one less thing to worry about. Trying Cases on a Budget Get firm budgets for all of the expenses of the trial. For expert witnesses, the budget should include: Expenses for travel and hotel. Fee for their review of the medical records and deposition transcripts. Fee for one day of trial testimony. Don’t let the expert off with a ballpark estimate of their fees. Get the budget in writing from your client so if he hits you with an enormous bill after the trial, you’ve can hold his feet to the fire for overbilling you. You must know exactly what the trial is going to cost and you should have a firm budget of trial expenses at least one week before trial. Show Me, Don’t Tell Me Jurors remember very little of what they hear and a much more of what they see. You want to get the jury to visualize everything. “I hear and I forget. I see and I remember.” –Confucius Medical illustrations and timelines are just scratching the surface of Show Me, Don’t Tell Me. Have your client’s personal aide show you how she bathes and toilets your disabled client—yes, have them bring the toilet and do a mini-Show and Tell. Now the jurors are getting an inside seat to your client’s everyday problems. Most trial lawyers forget the jury after opening statements. Big Mistake! You want to make the jurors part of every part of the trial and look at the jurors when you cross-examine defense witnesses. Jurors will love you for making them a part of the trial and they will reward you with eye contact, nods of their heads, and just maybe they won’t doze off. Don’t be the Biggest A-Hole in the Courtroom If the defense expert is a humble, mild-mannered octogenarian, you should return the witness’s humble, mild disposition with a soft cross-examination. The jurors will hate you for bullying a nice, elderly man and you never want to come across as a bully with lay witnesses, such as nurses, school teachers and dog walkers. Don’t object unless you absolutely have to. If the defendants’ expert witness is a nice, humble academic type, you will get more concessions with a soft, gentle approach than an overbearing, arrogant cross-examination. The trial is not about you and the jurors don’t care if you win petty debates with the defense expert. Don’t object unless you absolutely have to. Jurors think you are hiding something with objections and wonder why they’re not allowed to hear all of the evidence. Focus on one day at time and when you’re tired, go to bed. You’re useless to your client if you’re a zombie in court. Your Secret Weapons for Trial Okay, I know you get this stuff–be prepared and don’t be an idiot in the courtroom. But the #1 biggest mistake made by trial lawyers is that they do all of this alone—that’s right, you’re too proud to ask for help. I won’t do a trial without the advice of a trial consultant (the best trial consultant I know is Steve Shultz, Esq.) But don’t stop there—use focus groups to get insights into the questions that the jury will ask and how they will perceive your exhibits and evidence. Focus groups cost some cash, but if you won’t spend $500 for your next case, you shouldn’t have accepted the case. If you don’t have the cash for a trial consultant or a focus group, get trial transcripts of the trials conducted by the best trial lawyers. Law school libraries and state law libraries have trial transcripts of almost every appellate case and it is worth a few hours to see how the best trial lawyers hold shop. A Bonus Gift for You If you’d like to see a prototype of our 12 Week Plans for Trial, just send an email to our world-class paralegal, Corina Skidmore at [email protected] with the subject line, “Send me your 12 Week Plan for Trials.” John Fisher a personal injury lawyer practicing in Kingston, NY — see www.ProtectingPatientRights.com and www.UltimateInjuryLaw.com. John’s practice is limited to the representation of victims of catastrophic and substantial personal injuries, including the victims of cerebral palsy, Erb’s Palsy, birth injuries, delay in cancer diagnosis, heart attack and stroke misdiagnosis, legal malpractice, suicide prevention, undiagnosed infections, medication errors and nursing home neglect and abuse. He is author of “The Power of a System: How to Build the Injury Law Practice of your Dreams,” available for purchase at his website,www.ultimateinjurylaw.com. Ben Glass, Esq., the nation’s leading authority on law office marketing and development calls the book, “amazing”. This 334-page hardcover book is chock full of the technical, managerial and entrepreneurial “how to” secrets to building a multi-million injury law practice. When you buy the book at www.ultimateinjurylaw.com, it will be sent to you via Federal Express (at no extra charge) and you will receive a FREE three-month subscription to my monthly newsletter for lawyers, Lawyer Alert. If you’d like to get a FREE chapter of my book about internet marketing for lawyers, go to www.ultimateinjurylaw.com, and you can request an instant electronic copy of Chapter 22 (“How to Turn your Website into a Client Magnet”).