Persuasion in Trial

By Steve Young.

A friend asked me, “What is your stock in trade?”

I answered, “Persuasion. Trial lawyers are merchants of persuasion.”  My answer caused me to ponder a great deal on trial lawyers as “merchants of persuasion.”

trust me

Try defining “persuasion” without using the words “persuade” or “convince?”

My Definition of “Persuasion”

I define “persuasion” as  “influencing perception.” The old saw from politics, “perception is reality” applies with a double portion in trial.  The way jurors perceive you or your case, is their reality.

The persuasion techniques that work in advertising and marketing are the same techniques we can use with power in trial.

Recognizing this leads to the conclusion that trial is a “battle of influence.” Our weapons are the metaphors and frames we use to shape the jurors’ perception of our client and our client’s case. The reality we need to create is that our client acted exactly as the jurors would have. If the jury sees your case and your client in a way that is consistent with their principles, beliefs, and attitudes — you win. Understanding this truth underlying every trial will shape your approach to trial. You will be more nimble in your approach and not so controlling and compulsive in your preparation.

A. Jury Selection

If you don’t know what your jury’s composition is, what their beliefs and aspirations are, how can you possibly understand how best to persuade them to agree with your perception of reality? You must learn who your audience is before you can  assemble your final trial strategy.

If influencing your jurors’ perceptions is the key dynamic in trial, how can you get locked into a presentation strategy before you know the attitudes and opinions of your various jurors whose perception will create the reality of trial?

Understanding this should shape your approach to voir dire. Jury selection, properly done, is not a process of elimination, it is an information gathering exercise. It is an exercise in creating relationships and emotional connection. It should be a group forming dynamic facilitated by the lawyer.

Persuasion begins at jury selection since if nothing else, the jury forms perceptions of the attorneys and which attorney they trust and like (meaning they select the attorney they will look to explain the case) and which attorney they distrust and dislike (meaning they will be reticent to accept anything coming from his mouth).


See also:

How Do Judges and Jurors Really Decide? Last year I went to trial on a dispute between a young man and his grandparents. I represented the young man.

Finding Imbedded Bias During Jury Selection Forty potential jurors enter the courtroom bringing a unique set of imbedded feelings and values. You and your opponent examine the venire panel and strike the jurors averse to your respective clients.

Treat Every Case As aPotentialTBI Case


B. Opening Argument

That heading says what I mean. The greatest tool we have for persuasion is a powerful story told in a compelling way. Default to a cold recital of the facts and all you have given is a statement. Research from Uri Hasson of Princeton has demonstrated that the brain of a person hearing a story reacts as if part of the story, whereas a mere recital of facts activates predominately the “hearing” areas of the brain. The lesson is that we must tell compelling stories because that is persuasive with the jury neurologically.

Recently I tried a case that ran for six weeks. In many trials, jurors are disappointed if conflicts arise that take them out of the jury before the end of trial, but they don’t let the trial get in the way of their life. This trial was different. Jurors rebooked vacations to remain on the jury. One juror had a seriously ill sister and when asked if he wanted to be excused from the jury, he said, “I can see her during the weekend, this is the most important thing I have to do right now.” Do you think the jurors would have responded like that if the case was boring or they felt detached from the process? The Opening Argument is the second opportunity to influence the jurors’ perceptions of your reality.

C. Closing Statement

However you decide to approach your last opportunities to talk to the jury, the perceptions have been set before you stand up. The reality is already solidified. By the time of close, you are not changing anyone’s mind. Close is the time to supply the tools to favorable jurors to preserve your verdict and to make sure it is “just” for your perception.

An Unlikely Source to Make You More Persuasive

I study marketing. After all, aren’t we in the business of marketing our case to 12 people in every trial? The persuasion techniques that work in advertising and marketing are the same techniques we can use with power in trial.

I learned of a great book named 26 Ways to Screw-Up In Business and How Not To by William Fawcett. It is an engaging, well written, and entertaining book that offers 26 commandments for persuasion. Examples are: “Thou shalt not fish for tunas in a lake,” and “Thou shalt not sell Texaco milk.”

26 ways to screw up in business by William Fawcett

I recommend this book to you for several reasons:

  1. The “commandments” are memory hooks that will stick in your memory. As trial lawyers, we need to learn to create the memory hooks that our jurors will carry with them into the jury room. Remember the phrase, “If it doesn’t fit, you must acquit?” Johnny Cochrane spoke those words almost 20 years ago, yet they are emblazoned in our popular language now.
  2. The book contains great little illustrative snippets that are an attorney’s stock in trade when a pithy illustration is needed. For example, Mr. Fawcett talks about not letting other people define us. He quotes Henry Ford as saying, “If I had asked people what they wanted, they would have said faster horses.”
  3. Much of what Mr. Fawcett writes about is how to sell, which is persuasion.Check out the book. I’d love for you to share your feelings about it with me.

 


trial lawyer, medical malpractice lawyer, legal news, law newsThe article is reprinted from the Young on Trials blog. Steve Young has conducted almost 200 Civil Jury Trials during 34 years as a lawyer. He is a national board certified Civil Trial Advocate. Mr. Young’s firm, the Law Offices of Steven R. Young, specializes in “last minute trials.”You can learn more about Steve Young at www.juryattorney.com.

Brain Injury Interview Outline for Every Slip and Fall Case

Brain Injury Interview ChecklistBy Steve Young.

In “2001 A Space Odyssey,” a computer named HAL runs amok during a flight to Jupiter. HAL was the tender-voiced computer that interacted with the astronauts as if he were a crew member. But HAL had a problem.

He did not recognize he was malfunctioning (if you’ve seen the movie, you know why I would personify him) and took every step to prevent correction because he “was just fine.” HAL wasn’t fine regardless of what he thought.

Clients with Traumatic Brain Injury (TBI), despite their assurances to the contrary, are not fine either. Throughout the case your client with TBI will deny an impairment, even when confronted with medical confirmation of impairment. That is the nature of the injury. For this reason, you must explore with the client, in detail, his background or symptoms that may warrant deeper investigation.

Treat Every Case As a Potential TBI Case

I am writing this post because a new client came to my office on referral from another attorney. The attorney told me, “It’s a slip and fall case with orthopedic injuries.” I learned the case involved the failure of a prosthesis that resulted in the client falling backwards and hitting his head in a commercial establishment.

During my meeting with the client, it became obvious to me that the orthopedic injury may be the least of the client’s problems. The client presented a number of symptoms of TBI, and unless I knew to ask the right questions, I might never have sent the client for the testing to determine if the client has TBI.

You must be sensitive to the possibility of a TBI or a spinal cord injury (SCI) in every case. As you take your client’s history, symptoms of TBI or SCI even in the case of a seemingly minor auto accident may manifest. For example:

  • Does your client have difficulty remembering names, numbers, or places?
  • Does he protest, “Oh, this is frustrating,” when trying to tell his story?
  • Can the client remember where he was going at the time of the crash?
  • Does he forget routine things?
  • Does he now have headaches, fatigue, mood swings, loss of concentration?
  • Is he depressed?

 

All of these are markers of impairment.

Brain Injury Interview Outline

I suggest you ask the following questions of all potential clients who appear in your office with possible injuries such as whiplash injuries that few people consider for TBI/SCI. Do not isolate the questions to the present because changes in the following conditions between the time of the crash, and the interview are also significant. A single “yes” answer is not determinative, but the more “yeses” the greater the likelihood and the need for testing by a Neuropsychologist.

Q: What is the highest degree of education you completed?

Q: Do you know what your IQ before the crash was? What was it? Have you been tested since?

Q: Have you had headaches – if so,

  • At what time of day?
  • Left side, right side or both?
  • Front or back?
  • What gives you relief from the headache?
  • Does anything make the headaches worse?

 

Q: Have you experienced any changes in your sleep patterns in the past year?

Q: Have you gained or lost weight without diet changes?

Q: Do you drink alcohol? How much alcohol do you consume in a day?

Q: Do you smoke? How many a day?

Q: Have you ever taken illicit drugs? What were/are they?

Q: Has a doctor diagnosed you as having any diseases? If so, what are they?

Q: Have you experienced dizzy spells?

Q: Have you passed out, no matter how briefly?

Q: Has the way you walk changed?

Q: Has your vision changed?

Q: Have you accidently dropped things?

Q: Do you have difficulty sometimes understanding what you are reading?

Q: Do people seem to mumble when they talk to you?

Q: Has your speech slurred during conversation?

Q: Have you forgotten what you were saying while speaking?

Q: Have you had difficulty remembering the names of common things?

Q: Has your memory changed?

Q: Do your hands ever tremble?

Q: Do any of your muscles jump or twitch?

Q: Has your sense of direction changed?

Q: Have you experienced blindness in one or both of your eyes?

Q: Can you see or hear things others cannot?

Q: Can you smell things no one else notices?

Q: Has your handwriting or signature changed?

Q: Do you drink more water than you did before the crash?

Q: Do you talk differently since the accident?

Q: Do you now easily lose your balance, or do you feel less stable than before the crash?

Q: Do you work or live around any chemicals?

Q: Has you interest in sex changed since the crash?

Q: Have you had a thought you could not stop – one that goes on and on?

Q: Have you reached for something and missed it?

Q: Have people changed their attitude toward you?

Q: Do you often feel anxious, or worried?

Q: Have you had difficulty moving your head?

Q: Can you move your head as easily as you did before the crash?

Q: Do your ears ring? Did they ring before the crash?

Q: Have you ever had a stroke?

Q: Have you had ischemic attacks?

Q: Any history of Alzheimer’s Disease?

Q: Has anyone in your family had neurological disease?

Q: Has anyone in your family had epilepsy?

Q: Have you ever consulted a psychiatrist? When? For what?

Q: Have you ever consulted a neuropsychologist? When? For what?


trial lawyer, medical malpractice lawyer, legal news, law newsThe article is reprinted from the Young on Trials blog. Steve Young has conducted almost 200 Civil Jury Trials during 34 years as a lawyer. He is a national board certified Civil Trial Advocate. Mr. Young’s firm, the Law Offices of Steven R. Young, specializes in “last minute trials.”You can learn more about Steve Young at www.juryattorney.com.

 

Have Lunch With an Opponent, like in the Good Old Days

business lunchI recently handled two very acrimonious cases, one a family partnership dispute and the other a trust litigation among family heirs. In the partnership case, I came into the case shortly before trial, and inherited several years of heated litigation. I knew the opposing attorneys from several legal organizations I am a member of, but had no real relationship with them.

In the trust case, I was dealing with an attorney I had never met before. I telephoned both counsel. My request was the same to both, “I’m inviting you to lunch, my treat. I would like to sit down with you and get to know you. We are going to be in this case a while. Maybe there are things we can agree on that can help both sides going forward.” Both attorneys accepted my invitation.

Both attorneys and I enjoyed meeting together. During the meal, both attorneys said the same thing:

I always heard about the old days when opposing counsel had lunch together and worked out problems. I wonder why attorneys don’t do that any more because I really like this. I wish everybody would do this.

The benefits of a “good relationship”

Today is not like the “good old days” because no one picks up the phone and invites their opponent to lunch. We can change this. We can be a force for good in our profession. We can invite our adversaries to treat us better by treating them civilly in the context of a friendly setting – a lunch. I promise you that opening avenues of communication with opposing counsel will help your clients and will lower your overhead.

If you needed a “professional courtesy” in one of your cases, do you think your opponent would accommodate you? For example, assume you missed a deadline and face the choice between asking your opponent for relief or making a motion. If you have created a relationship through being civil and social with your opponent, it will be much easier to ask for the accommodation, and your opponent is more likely to extend the accommodation than if you have never spoken except when lobbing hand grenades at each other.

What if you don’t have to make as many motions in your cases and you can concentrate  on preparing for trial or settlement? Is that more productive for you? How about your reputation? What if you never have to make a motion again with a “mea culpa”? Wouldn’t a stipulation from opposing counsel be preferable? Of course it would. If you have established the relationship with your opposing counsel you’re likely to hear, “make your motion.” Solving your problem with a simple phone call leaves you miles ahead in all arenas.

Be the Change you Want to See

If you don’t think things are like the “good old days” it’s time for you to take the imitative and make the call. Pick up the phone. Invite your opponent to lunch. Get to know them. Friendship will create civility in our profession. If you do it, not only will you find your practice has more civility and less animosity but  your life will be happier because your work life will not negatively affect your free time. If enough attorneys do it, maybe we can bring back the “good old days.”

 


trial lawyer, medical malpractice lawyer, legal news, law newsThe article is reprinted from the Young on Trials blog. Steve Young has conducted almost 200 Civil Jury Trials during 34 years as a lawyer. He is a national board certified Civil Trial Advocate. Mr. Young’s firm, the Law Offices of Steven R. Young, specializes in “last minute trials.”You can learn more about Steve Young at www.juryattorney.com.

How Do Judges and Jurors Really Decide?

witness in courtBy Steve Young

Last year I went to trial on a dispute between a young man and his grandparents. I represented the young man. He sued his father and grandparents charging  they had stolen $300,000 from a trust set up to provide funding for tuition, living expenses, room and board while he was in college.

The trust was funded by the young man’s mother through a divorce judgment that specified that part of the money she was paying to equalize the property division (buying dead beat dad out of her businesses) would fund the trust with the father and the grandfather listed as the trustees. She fully funded the account.

“You can’t win this case, Young.”

Everyone told me I couldn’t win the case. “The grandparents are old and sympathetic.” The grandparents pleaded, “We did not know there was a trust. No body told us.”  They claimed they never saw the divorce judgment and thought the money belonged to my client’s father. They said they acted only on the father’s instructions. Finally, after the father had taken all the money, the mother signed an amendment to the judgment in the divorce that provided that the mother waived the trust account and waived any accounting of the account.

Friends said, “Run, Steve. Run. You can’t win this one.”

Your heart knows what your brain does not.

During a two day settlement conference opposing counsel kept asking, “Have you read the amendment?”  During the conference, the defendants acted like they owned the case and controlled how the case would proceed.

Against this current of opposition, I finally said to the settlement judge, “I’m going to have to try this case. No one sees it the way I do.”

He shook his head, “You’re making a mistake.” If I was, there was only one way to end the ridiculous treatment everyone was heaping on me.

There was a further complicating issue: my client’s mother told me my client, “just graduated and started a new job out-of-state. He can’t risk creating a bad impression on his employer by appearing for the trial.”

The trial

We went to trial. I presented my witnesses, and cross-examined the defendants. I finally put my foot down and called my client to find out why he would not appear. “How much money will you make appearing for one day at trial, versus what your employer will pay you for working one day? You need to come testify.”

His response surprised me, “No one told me you wanted me to testify.”

He flew in the next morning. I put him on the stand. He testified, then caught a plane home. We gave closing argument and awaited the decision.

The decision

The judge announced the decision from the bench. “The turning point in the case for me is the plaintiff’s testimony. I found him credible and the defendants lacking credibility.” Turning to me, the judge continued, “Tell him it was worth his making the effort to be here.”

The judge awarded every penny I asked for plus punitive damages against the father even though the father claimed to be penurious.

The point of this short story is, that we focus so much on the legalisms that many times we miss the truly important thing in trial – the principle. If you try cases based only on facts and law, you will suffer many bad surprises, because principle will trump every thing you learned in law school.

How do people decide?

Think of the supreme court. Supposedly the best and brightest attorneys in the land populate the court. They look at the same facts in the record. The law they research is the same, yet how many decisions from the supreme court are 9-0? Usually none. Usually they split 5-4 and sometimes 6-3. Why?

Supreme court justices, like trial judges, like jurors, like everyone, make decisions the same way. They decide based on feelings, values, and principles. They decide with their feelings, then look for facts and law to support their decisions. Will Justice Scalia and Justice Bader-Ginsburg agree on privacy or political issues? No matter how long they discuss and argue, it won’t happen. Why not? Because people don’t decide based on logic, no matter what we tell ourselves or others.

So what does this mean as we prepare to try a case? In my case, I liked it from the beginning. It had family drama. It had betrayal. It had clear good guys and bad guys. None of that depended on the law. It depended on life experience.

So, I accepted the case. I worked it. I took it to trial. I won, but really the compelling story of a young man betrayed by those he most trusted resonated with the judge.

Your heart knows what your brain does not.

In Trial, a Picture Can Be Worth a Million Dollars

By Steve Young

Death by PowerPoint is an oft heard complaint against the imprudent practice of putting slides on the screen and reading them to the jury. I reject that use of PowerPoint and I have the million dollar verdicts to support my opinion.

I have suffered through attorneys who take their whole close and import it wholesale into PowerPoint, then read the slides to the jury. We know how boring it is to have someone read a talk to us – imagine having someone read a talk that you are able to read faster because it is projected in a screen in front of you.

Allegorical and metaphorical connections

red lightInstead of reading PowerPoint to the jury, I use it differently. I assemble a series of pictures related to the case and project them on the screen during my close. The benefit of this is that if the other side gets court permission to review your close “to make sure there is nothing objectionable” they won’t know what you are going to argue. Also, you’ll confuse the hell out of them.

But there is a deeper reason for using PowerPoint in this way. I project pictures and images for the jury that make allegorical and metaphorical connections for the jury and provide anchors for the jury’s memory of my arguments.

There are stereotypical images that in and of themselves project a story.

ambulanceIf you put up a red light as you tell the client of the accident, the jurors are prepared and will find more frequently that the defendant ran the red light.

If you display a photograph of an ambulance,

Studies tell us that the jurors will believe that the injuries are more serious than the photograph is not displayed.

Scales

See Steve Young’s article: Finding Imbedded Bias During Jury Selection

Compensation

A concept that is sometimes difficult to explain is the concept of compensation. Compensation comes from a Greek phrase meaning to “hang” and “balance.” It’s actually a reference to the old merchant’s scales that would hang and when equal, “balance.”

I put a scale on the screen when I talk about the need to compensate the Plaintiff for the injuries Defendant caused.

Did you catch a liar?

Your case may be a fraud case, charging the other side with lying, or during trial, you may have had the unequaled pleasure of catching an opposing witness in a monstrous lie.

fingers crossedDo you think it would make an impression on the jury if you had a slide that subliminally suggested the consequence of the lie?

The point of this is, there is a right way and a wrong way to use PowerPoint. Pick the wrong way, and your jury will suffer in boredom then punish you with their verdict. Pick the right way and the strength of what you showed rather than telling may overcome the unforeseen issues that crop up in jury deliberations.

The concept of causation

One of the more difficult concepts for a juror to understand is “causation.” It is couched in terms of reasonableness (a word I challenge you to define yet jurors are expected to apply it without guidance from the judge) and foreseeability. Defense counsel love the concept of causation. Many, many meritorious cases have died on the concept of causation. A single picture can explain to a juror just what causation is:

matches

How do you pick the photos?

The best way to pick photographs if for you not to do it. Instead, have your client select the photographs, then more importantly, tell you Why. It is in the Why that you find the power of your story in photographs. Consider this, imagine it, then remember, a picture is worth a 1,000 words and a million dollars.

 


trial lawyer, medical malpractice lawyer, legal news, law newsThe article is reprinted from the Young on Trials blog. Steve Young has conducted almost 200 Civil Jury Trials during 34 years as a lawyer. He is a national board certified Civil Trial Advocate. Mr. Young’s firm, the Law Offices of Steven R. Young, specializes in “last minute trials.”You can learn more about Steve Young at www.juryattorney.com.

Finding Imbedded Bias During Jury Selection

two faced, hypocrite, prejudiced

If you don’t ferret out the “imbedded feelings and values” your jury will be ruling on your trial using “untried issues” to decide the case.

By Steve Young

Forty potential jurors enter the courtroom bringing a unique set of imbedded feelings and values. You and your opponent examine the venire panel and strike the jurors averse to your respective clients. The surviving jurors rise, bring their right arms to the square and swear to “duly and fairly try the matter.” When the verdict is read at the conclusion of trial, the result shocks you and your opponent.

In a post trial ritual you and opposing counsel engage any of the jurors who will remain to talk to you. You are shocked at what the jurors thought the evidence was and how they arrived at their ridiculous verdict. They based their verdict on issues you and your opponent never raised and certainly never argued.

Read the first line of this blog. “Forty potential jurors enter the courtroom bringing a unique set of imbedded feelings and values.” If you don’t ferret out the “imbedded feelings and values” your jury will be ruling on your trial using “untried issues” to decide the case.

Learning a Lesson About Imbedded Feelings

I learned about the phenomenon of imbedded feelings and values with a vivid lesson when I was a teenager. During the summer between my sophomore and junior years in high school, my family packed up lock, stock, barrel and moved to Germany for an 18-month stay.

I have little memory of my time in West Berlin – but I profoundly remember the day my family went to East Berlin.  The double-decker red bus, with a wide white stripe on its side traveled through West Berlin with a constant stream of tour guide commentary.  That changed at Check Point Charlie — the crossing into East Berlin.  Our tour guide left the bus at the guard station on the American side of Checkpoint Charlie.  We crossed an open space with concrete tank traps called “dragons’ teeth,” rolls of barbed wire, and machine gun placements.  Upon entering the Russian sector, a new guide boarded.

Someone else left the bus before leaving the American sector – my father. The American government would not allow him to enter East Berlin. He was an American asset our government would not expose to risk. I did not learn until years after he retired that he was working on the delivery system for NATO’s nuclear arsenal.

My time in East Berlin was uneventful, but poignant. I do not remember the sun shining while I  was in East Berlin. It may have been that the Soviet Block had not “cleaned up” the war time damage to East Berlin, or there was a pervading sense of gloom, or maybe the sun did not shine. It may have been the product of my patriotic imagination, or the collective angst of a suppressed people.  We toured a large museum and saw sights on the bus ride around East Berlin, but no sight impressed me more than my father waiting with the American soldiers on our return to the American side.

My memory of the grayness of East Berlin is an absolute memory for me, even if the weather report was for “sunny and clear” for East Berlin that day. I know because I remember regardless of what anyone says, and regardless of the facts. This is because of my memory is a manifestation of imbedded values projected into memory.

Your Jurors’ Perception is Their Reality

Jurors approach issues and evidence at trial the same way that I remember East Berlin’s weather. The juror’s perception is reality. Many attorneys spend their time in jury selection trying to persuade the jurors by using language from the jury instructions, or inserting themes into their questions, or other “tricks.” You must be different. You must go to the jurors with fears concerning issues or evidence that will arise during trial. Your fears are your soul’s thermometer of the case. You must measure your jurors’ temperatures on the issues, the barometric pressure of the problem evidence and the jet stream’s flow in your case’s dynamic so that you ferret out the potential for untried issues.

How Do You Conduct This Type of Voir Dire?

You first must prepare differently by introspectively considering the case and your fears.

  1. Identify those matters that trouble you about the case.
  2. Explore your personal feelings about the matter(s) that trouble you.
  3. Determine why the matters trouble you.

 

How do you do this, or select the issues to address?  You first list each problem with the case, or what you fear the other side will use against you. Then ask, what is the underlying emotion, why am I afraid of this?  When you understand the feelings you and your client have on the issues, then you can go to the next level and seek to determine how do you want the jury to feel about you, your client and the case when you finish discussing the issue on voir dire.

At voir dire, using the list and introspection you have conducted, approach the potential jurors by:

  1. Sharing your feelings(s) and fear(s) about the matter(s) with the jury.
  2. Invite the jury to share their feelings about the matter with you.  Ask how they feel about what you are sharing.
  3. Accept (honor) the gifts the jury gives you.
  4. Continue to share your feelings and invite the jury to share theirs.

trial lawyer, medical malpractice lawyer, legal news, law newsThe article is reprinted from the Young on Trials blog. Steve Young has conducted almost 200 Civil Jury Trials during 34 years as a lawyer. He is a national board certified Civil Trial Advocate. Mr. Young’s firm, the Law Offices of Steven R. Young, specializes in “last minute trials.”You can learn more about Steve Young at www.juryattorney.com.

The Judge Taught Me How to Tie an Expert’s Hands

handcuffsYesterday, I finished a nine-week legal malpractice trial receiving an eight-figure verdict. The judge, before whom I tried the case taught me an important lesson when the defense attorney sought to tie the hands of one of my experts.

Near the end of my case, I am arranging exhibits and demonstratives I intend to use with my valuation expert. He is the lynch pin of the damage verdict I obtained against an attorney who ruined a business that was the first to the American market with an organic tequila. My expert has prepared valuation figures for the business to establish the harms and losses the malpractice caused.

My opponent is a wily old strategist who over almost 45 years has established not only a formidable reputation for winning impossible cases, but an almost perfect 155 and 3 trial record.

Defendant’s Attack on My Expert

Before the court room attendant ushers the jury into the courtroom, my opponent rises and argues that my expert, who will deliver the big damage testimony for me, should not be allowed to testify because “There is no factual basis to support the opinion.”

I respond, “Your honor, my opponent is mistaken. The expert has spoken with an officer of the company he has identified as a comparable business. He obtained the information confirming the assumptions he made and testified to during his deposition.”

The attack on this most important witness begins when the defense attorney seeks to prevent his reference to the information from the company officer.

The judge asks, “On what basis do you think I should exclude the testimony of the expert?”

Defense counsel smiles and says, “I took his deposition. He hadn’t talked to the officer when I took his deposition. At the conclusion of the deposition, I asked the wrap up question I ask at the end of every expert deposition to limit the expert to his opinions expressed during the deposition.”

The Judge’s Lesson

The judge leans back, smiles and asks, “Can you please read me how you wrapped up the deposition, because I can’t rule in a vacuum.”

With no small glee defense counsel picks up his highlighted transcript and reads,

“Question: In the conversation we have had today, we have covered all of your opinions that you presently intend to voice at trial, have we not?

Answer: Yes, as I said, other than maybe some rebuttal testimony to your expert if you have an expert.

Question: so if in fact, you have some new opinions with regards to either your original task in this case or in rebuttal, would you be sure and tell Mr. Young?

Answer: sure.”

The defense attorney smiles and adds, “You see, your honor, he is bound to his opinions.”

The judge says, “Mr. Defense attorney, you are in the top 1 or 2 % of the attorneys who have ever tried a case in my department, but on this matter, you didn’t quite get there. You let the cat out of the bag as to a weakness the expert had and Mr. Young went out and propped up the testimony to make sure it’s admissible. Why you asked questions to tip Mr. Young off to a weakness is anyone’s guess, but you left the door open for him to do so. You see his expert has not formed a new opinion, he just got the information to make sure the opinion was admissible.

“But your honor, he can’t bring in that testimony.”

“Oh I disagree Mr. Defense attorney. You haven’t tied anything down. You left the door wide open and Mr. Young has walked through the door. When I was trying cases and taking expert depositions, I would end with the following:

“Mr. Witness, during this deposition, have you provided to me all of the opinions that you have formed and are prepared to deliver at trial?” But then I went further. I asked, “If after this deposition, you perform any more calculations, and studies, or learn of any new facts or information from any source whatsoever concerning your opinion, or if the attorney employing you asks you to do any more work, will you inform your attorney so that she can tell me? We are going to adjourn this deposition now, but I am not terminating it. I will keep this deposition open so that if you do perform anymore calculations, or studies or learn of any new facts or information from any source, and you advise counsel, we can reconvene this deposition so that I can explore any new information, calculations, or opinions you may develop between now and the time you ascend the witness stand in trial.”

My expert took the stand and delivered his testimony, including reference to the conversation with the company officer – and the judge was right to allow it.

Many times we ask overly broad “wrap up” questions thinking we have protected ourselves when in fact we have protected nothing. I will be using the judge’s tactic to make sure that experts I depose never get the wiggle room my expert got in this trial. And by the way, if feels great to tell you, my opponent’s record is now 155 and 4!

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