Wisconsin Lawyer: 101 Earn Your Stripes, Part 2: How to Get Through a Civil Trial:

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Format: MM/DD/YYYY
    October
    01
    2015

    101
    Earn Your Stripes, Part 2: How to Get Through a Civil Trial

    Now that you’ve scrapped your way into the courtroom, you need to know how to succeed at trial. In Part 2 of this two-part series, the authors suggest some basic steps new lawyers can take to get through their first civil trials successfully.

    Michael J. Cerjak, Jesse Blocher & Andrew S. Wier

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    “Far better is it to dare mighty things, to win glorious triumphs, even though checkered by failure ... than to rank with those poor spirits who neither enjoy nor suffer much, because they live in a gray twilight that knows not victory nor defeat.” – Theodore Roosevelt1

    It’s your first trial, and we know what you’re probably thinking: What should I say? Will they like me? When do I object? Will everyone know it’s my first time? Am I going to get fired if I lose? I should have gone to medical school. And what do I do with all these exhibits?

    It’s alright. All trial lawyers have been there. What we want you to know is that you don’t need to be Ben Matlock to give your client a chance. What you must do is plan ahead, figure out what’s important, make your points, and be efficient. You’ll need to continue to learn, but you can start and succeed by sticking to some basics.

    We offer these thoughts to help you get started.

    Don’t Overthink or Overreact

    Inexperienced lawyers, particularly young ones, can think that every argument, question, objection, and mistake is crucial and could make or break a case, but the self-imposed pressure is unnecessary and can be difficult to disguise.

    Many times, more seasoned lawyers lose. The reason is that the lawyers often aren’t as important as the facts, parties, witnesses, and evidence. If you introduce the evidence that is vital to your client’s case and clearly explain why the evidence supports a verdict, you will make a competent presentation and give your client the chance to prevail.

    As you’ll learn, trials can be full of peaks and valleys, but it’s best to focus on the overall objectives and not let the jury see you get too excited or too down.

    Prepare, Prepare, Prepare

    We’ve seen and heard the winningest trial lawyers of our time extol the virtues of preparation. Robert Habush says that “[p]reparation is the key”2; others have called it “the most important commandment”3; and Vincent Bugliosi, who prosecuted Charles Manson and became a leading trial commentator, called preparation “the most essential factor” for success at trial.4

    It’s a common and correct refrain. In almost any case, your adversaries will be smart, hard working, and more experienced than you.5 Despite your inexperience, you’ll want the jury to know that you’re trying hard and taking it seriously, and that you believe in your cause. The best way to convey the message is to know everything about the case. Moreover, winning the preparation battle is key, and something you can manage. As a young lawyer, you won’t have the same level of client, firm, and family obligations that older attorneys have, so you’ll have the opportunity to outwork your opponent. It’s a big advantage, and experienced trial lawyers know this:

    Michael J. Cerjakcom michaelc pksd Michael J. Cerjak, Marquette 2008 cum laude, is a trial lawyer who focuses on nursing home litigation at Pitman, Kalkhoff, Sicula & Dentice S.C., Milwaukee. He is also a software engineering graduate of the Milwaukee School of Engineering.

    Jesse B. Blochercom jblocher habush Jesse B. Blocher, Marquette 2006 summa cum laude, is a shareholder at Habush Habush & Rottier S.C.®, Waukesha, and focuses his practice on personal injury litigation. He is a Board Certified Civil Trial Advocate by the National Board of Trial Advocacy and has tried numerous cases throughout Wisconsin.

    Andrew S. Wiercom awier habush Andrew S. Wier, U.W. 2008 cum laude, is an attorney at Habush Habush & Rottier S.C.®, Racine, where he represents plaintiffs in personal injury claims. He previously worked as a Racine County assistant district attorney. He has tried numerous civil and criminal cases throughout southeastern Wisconsin.

    “Beware of Young Lawyers. Along comes Kurt Callow. They call him The Kid. He has everything to prove. When he enters a courthouse, he has but one question: who is the fastest gun in town? He needs another notch on his record. Beware. Prepare twice as hard for a young opponent. We never get a pass.”6

    Preparation, no doubt, requires intense commitment and planning, but it will give you the best chance to succeed.7 Specific things to consider follow.

    Trial Tools

    Trial Plan and Binder. It’s common to begin a trial plan early. To do so, understand which evidence you must introduce to satisfy your burden of proof, which evidence you want to introduce, and what impeachment is available for adverse witnesses. Ultimately, you’ll want to assemble a schedule of witnesses, your exhibits, outlines for examinations of each witness, and notes for all stages of the proceeding. If you are transitioning from a criminal practice, you will be adept at planning for admission of evidence, but be sure to favor detailed preparation from discovery material rather than relying on your ability to respond extemporaneously.

    Exhibits. At trial, there are few things worse than discovering, when you have a witness on the stand, that you can’t find a document that you want to use. So have your exhibits organized. Call the clerk and ask whether the parties are permitted to pre-mark (it’s cumbersome and tedious to mark as you go) and call opposing counsel and agree on a numbering system. Commonly, plaintiffs begin with Exhibit 1 and defendants start at Exhibit 100. Make copies of exhibits for yourself, opposing counsel, and the judge, and organize them for easy access. Print and save Wisconsin Supreme Court Form GF-102 to help you keep track of exhibits during trial.8

    Evidentiary Foundation. Evidentiary foundations are particularly important because even the most basic rules can become a blur under the pressure of an unanticipated objection at trial. So if you need a document to be admitted, you must know who the authenticating witness is, what you need that witness to say to authenticate the document, and how to overcome a hearsay objection.9 For some common exhibits – such as medical records and bills – you can take advantage of self-authenticating rules10 and for others – such as photographs – you might be able to obtain admissions or stipulations from opposing counsel.11 But the “bottom line is that you need to have a plan for getting every piece of evidence into the record.”12

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    Fewer cases are going to trial and that means young lawyers are no longer getting the experience they need for future litigation. Young lawyers should proactively seek mentoring opportunities and do some self-learning to help build that experience, says Jesse Blocher.

    Witnesses. Testimony from any medical provider may be presented by deposition, either using video or by reading a deposition transcript at trial, and the same rule applies for witnesses who, at the time of trial, will be at a location more than 30 miles away or otherwise “unavailable.”13 For all other witnesses you intend to call, you’ll need to issue and serve subpoenas well in advance.14

    In addition to scheduling witnesses, you’ll need to understand what testimony you need to elicit and the impeachment you must prepare for adverse witnesses. Outline the topics you plan to ask about, and reference specific lines from deposition transcripts, exhibits, and any other impeachment material in your outline. Consider including the information you want to elicit from each witness to make it easier to listen and follow up when necessary.

    Voir Dire. The concept of voir dire is difficult enough, but complicating the process is how quickly it proceeds and that each judge handles it differently. Avoid being caught off guard: find out how big the venire will be, how prospective jurors will be seated in the jury box (so you can create a chart to track information as it is provided), whether the judge has “standard” questions, whether there will be a time limit, and how challenges are handled.15 You can do this by asking the judge at the final pretrial conference, or by calling the clerk.

    Typically, jurors do not want to talk; their reluctance is understandable because the setting is formal and they’re being asked, by strangers, about their lives, beliefs, and biases.16 Given the inherent challenges in getting jurors to admit that they can’t be fair, you should set realistic goals. Try to identify the obviously biased jurors who speak out against your position, get the jurors to like you, interest the jurors in your position, and educate the jury about the most significant issues in your case.17

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    A lawyer's first trial can be a nerve-racking experience. Once you get the opportunity to represent a client at trial, what should you do to prepare? Start with finding a good mentor who does trial work, then really get to know your evidence, says Andrew Wier.

    To meet the goals, you should realize that you aren’t going to change a juror’s views on subjects like tort reform in the few moments you have, so approach the interaction with the primary objective of uncovering information.18 Identify the major issues involved in the case, ask the jurors about their views on the topics, and ask for more when possible.

    Other topics to introduce include issues you’re afraid of.19 For example, one typical “fear” for plaintiffs’ lawyers is that some “jurors see lawsuits as nothing but a shovel by which greedy lawyers scoop up large piles of money at the expense of the hapless taxpayer.”20 The only way to find out whether a juror has the view is to explore the topic and exercise strikes accordingly.

    Jury Instructions. Jury instructions are crucial resources for framing issues and making arguments, so review them carefully and think critically about how you can incorporate them into your presentation.21 Also, make sure to object on the record if your proposed instructions aren’t given or improper ones are given as the result of a decision made during an off-record charging conference; the law is harsh, and you risk waiver if you don’t make a record.22

    Organizing Relevant Details Is Vital

    In speaking to the jury, the organization and order of information can be as important as the information itself. The reason is that some important facts must be proved by inference, deduction, and conclusion, and the arrangement of the evidence will heavily influence the inferences compelled.23 Moreover, listeners tend to retain what they hear first (primacy) and last (recency) best.24 So, give special attention to organization.

    Stories or Arguments, Not Witnesses or Verdict Questions. What you do not want to do in opening or closing is simply recite what the witnesses will say or have said. This will bore and frustrate the jurors and, worse yet, will not persuade them.25 Lawsuits are essentially about competing stories and arguments, so it will be more effective if you organize your presentation around the story of your case, an argument setting forth the reasons why you should prevail, or a combination of the two.26

    Law. Before you begin, you must know what you can and cannot say in argument.27 For example, you can’t make arguments based on the “golden rule,”28 a mathematical formula for computing personal injury damages,29 your own opinion,30 personal attacks on parties or counsel,31 matters not in evidence,32 or settlement offers.33 It’s also improper to advise the jury of the effect an answer in the verdict will have on the ultimate result.34

    Present Important Material Frequently Without Being Redundant

    “The worst part was how often he asked about and repeated the same things. It’s so annoying and such a waste of time.” This is how a client described opposing counsel in one of our early trials. The client was right, but we understood what counsel was attempting to do – present the best points frequently.

    Over time, trial lawyers have developed techniques to deal with this tension. Some basics follow.35

    Echoing. The easiest way to achieve repetition is echoing the witness. This isn’t high art, but it helps emphasize a point without having the witness repeat it:

    Q: What happened next?

    A: I saw the defendant shoot the deceased.

    Q: What happened after you saw the defendant shoot the deceased?

    A: I saw him run away.

    Q: What happened after you saw the defendant run away?

    Closed Questions. More seasoned trial lawyers achieve repetition by narrowly constructing questions. These questions appear to call for collaborative detail, but are actually being used to keep the entire scene in focus:

    Q: What happened next? [Open Question]

    A: I saw the defendant shoot the deceased.

    Q: Could you see the gun in the defendant’s hand when he fired?

    A: Yes.

    Q: Which hand did the defendant use to fire the gun?

    A: His right hand.

    Q: How far apart were they?

    A: Five feet.

    Illustrative Aids. In the previous example, detailed questions focused attention. After initially describing the scene in words, the examiner can ask the witness to physically demonstrate how the defendant held the gun at the time of the shooting or to diagram where the defendant and the deceased were located to “assist” the witness in explaining the testimony to the jury. Achieving repetition through the use of illustrative aids, demonstrations, and physical evidence allows an examiner to focus on important points without becoming irritatingly redundant.

    Object Sparingly

    The goal is not to exclude all objectionable evidence; it is to win objections when necessary and strategically beneficial.36 If you make numerous objections, the interruptions and delays will focus the jury’s attention on unfavorable testimony and leave jurors with the impression that you are trying to hide evidence.

    The late Wisconsin Circuit Court and Court of Appeals Judge Ralph Adam Fine’s discussion of relevancy objections is on point: “What most lawyers mean when they object on relevancy grounds is that the evidence is hurtful – perhaps, but with rare exceptions it is never as bad as the jury will imagine as it is if you shout and scream to keep it out.”37 As did Judge Fine, we believe that the potential harm of frequent objections outweighs the benefit; it’s better to let the other side make dubious objections, irritate the judge and jury, and suffer the consequences.

    When potential testimony is significant and you are on solid legal ground, object immediately and audibly. Otherwise, tread carefully.

    Keep Calm and Carry On38

    “We praise a man who feels angry on the right grounds and against the right persons and also in the right manner at the right moment and for the right length of time.” In this context, that quote from Aristotle says it all.39 Learning to control and channel emotions is part of being a trial lawyer, but it’s easier said than done.40 Feeling anger, for example, helps you care, but show too much, and listeners will be turned off. The best trial lawyers are able to channel their emotions and use them as motivation – as Robert Habush says, “I’m good at what I do, and when I am angry, I am really good.”41

    In terms of emotion, we agree with noted trial lawyer Rick Friedman, who believes “whenever in doubt, use less emotion, not more.”42 This is particularly true for young lawyers because they can have difficulty relating to older jurors (from your own experience, consider how your view of teenagers has evolved over time).43 You know the evidence, how it fits together, and how outrageous some of the opposing arguments might be, but at the outset, the jury doesn’t. So don’t risk annoying the jury – maintain a professional demeanor, focus on the evidence, point out the deficiencies in the opposing position, and let the jurors begin to feel indignation toward the opponent on their own.44

    Incorporate Visuals and Variety

    The utility of visual aids is undeniable.45 You can have witness after witness describe the layout of the farm where your client was injured, but to orient the jury, it will always be more effective to, for example, show a satellite image from Google.46

    Much has been written about the attention spans and expectations of modern juries,47 and we agree that PowerPoint and trial-presentation software, such as TrialDirector, offer sensible solutions for presenting evidence in a format that today’s jurors will expect.48

    We have two concerns, however. First, if you are trying a case alone, it will be easier for you to prepare for and focus during trial when using old-fashioned devices, like blow-ups, than to deal with the planning and technical issues that arise with electronic presentations. Second, the temptation to overuse technology (it’s easy to do, so why not show the jury everything?) can be self-defeating.49 In other words, you want to show the jury the vital evidence, but show too much and the emphasis you desire will be lost. Too much can ruin any good thing.50

    Conclusion

    Early in a career, a young lawyer cannot expect to command the finer points of trial advocacy, but can nevertheless succeed by preparing, paying attention to detail, and continuing to learn and develop skills.

    We encourage you to start with what we’ve covered, and continue to learn. Good luck!

    Endnotes

    1 Theodore Roosevelt, The Man in the Arena: Citizenship in a Republic at the Sorbonne, Paris (April 23, 1910).

    2 Robert L. Habush, Art of Advocacy: Cross Examination of Non-Medical Experts 1-1 (2014).

    3 Timothy A. Pratt, The Ten Commandments of Cross-Examination, Federation of Defense and Corporate Counsel Trial Tactics Section.

    4 John R. Vile, 1 Great American Lawyers: An Encyclopedia 80 (2001).

    5 Rick Friedman, On Becoming a Trial Lawyer 11 (2008).

    6 Henry G. Miller, On Trial: Lessons from a Lifetime in the Courtroom 160 (2001).

    7 For example, “For every hour I spend in court I spend ten hours out of court preparing.” Gerry Spence, Win Your Case 81 (2005).

    8 Wisconsin Court System, Circuit Court Forms, Form GF-102, Exhibit List.

    9 See Edward J. Imwinkelried, Evidentiary Foundations (2014), for a great practical reference on evidentiary issues; see also Hon. Thomas H. Barland & Michael J. Brose, The Wisconsin Rules of Evidence: A Courtroom Handbook (State Bar of Wisconsin PINNACLE, 8th ed. 2013 & Supp.), for a helpful Wisconsin-specific treatise on evidence rules and case law.

    10 For example, in personal injury cases, you can serve a notice of availability of certified medical and billing records more than 40 days before trial to overcome authentication and hearsay problems without a witness. See Wis. Stat. § 908.03(6m)(b) (authentication witness unnecessary). The section also creates a presumption that medical bills represent reasonable and necessary charges. See Wis. Stat.§ 908.03(6m)(bm) (presumption).

    11 Opposing counsel may stipulate to admit your uncontested exhibits if you do the same with respect to his or her uncontested exhibits or to save time on uncontested issues.

    12 Lana K. Alcorn, Ten Things I Wish I’d Known Before My First Trial, For the Defense, Sept. 2007, at 75.

    13 See Wis. Stat. §§ 804.07 (use of depositions), 885.43 (notice of videotape depositions).

    14 See Wis. Stat.ch. 885 (subpoena limitations, form, service, and prepayment of witness fee).

    15 Rick Friedman & Bill Cummings, Elements of Trial 73-91 (2013).

    16 D. Shane Read, Winning at Trial 32-34 (2007).

    17 Id.

    18 See Don Keenan & David Ball, Reptile 119-28 (2009), for a discussion of how one might approach the questioning from a plaintiff’s perspective.

    19 See Spence, supra note 7, at 112-26.

    20 Id. at 115.

    21 Rick Friedman & Patrick Malone, Rules of the Road 32-40 (2010).

    22 Wis. Stat. § 805.13(3) (the failure to object on the record at a jury instruction or verdict conference “constitutes a waiver of any error in the proposed instructions or verdict”); see also LaCombe v. Aurora Med. Grp. Inc., 2004 WI App 119, 274 Wis. 2d 771, 683 N.W.2d 532.

    23 Herbert J. Stern, Trying Cases to Win in One Volume 118-20 (2013).

    24 Ralph Adam Fine, The How-To-Win Trial Manual 27-30 (2011).

    25 Rick Friedman & Bill Cummings, Elements of Trial 194 (2013).

    26 Friedman & Malone, supra note 21, at 115. To compare the story format with the argument structure, see Fine, supra note 24, at 36-38.


    27
    For a complete discussion, see Eric L. Andrews et al., Wisconsin Trial Practice §§ 9.19-9.51 (State Bar of Wisconsin PINNACLE, 3d ed. 2013).

    28 Rodriguez v. Slattery, 54 Wis. 2d 165, 170, 194 N.W.2d 817 (1972).

    29 Affett v. Milwaukee & Suburban Transp. Corp., 11 Wis. 2d 604, 614-15, 106 N.W.2d 274 (1960).

    30 State v. Jackson, 2007 WI App 145, ¶¶ 21-22, 302 Wis. 2d 766, 735 N.W.2d 178.

    31 Rudiger v. Chicago, St. Paul, Minneapolis & Omaha Ry., 101 Wis. 292, 297-98, 77 N.W. 169 (1898).

    32 Speliopoulos v. Schick, 129 Wis. 556, 561-62, 109 N.W. 568 (1906).

    33 Smith v. Rural Mut. Ins. Co., 20 Wis. 2d 592, 605-06, 123 N.W.2d 496 (1963).

    34 Bailey v. Bach, 257 Wis. 604, 610-11, 44 N.W.2d 631 (1950).

    35 The techniques and examples are from Herbert J. Stern, Trying Cases to Win in One Volume 169-77 (2013), an excellent resource on trial strategy.

    36 Read, supra note 16, at 353.

    37 Fine, supra note 24, at 210.

    38 You may have recently seen this phrase on t-shirts, souvenir mugs, and the like. It was originally used as a motivational poster by the British government in 1939 in preparation for the Second World War at a time when the public was being threatened with mass air attacks on major cities. See Keep Calm and Carry On, Wikipedia.

    39 Spence, supra note 7, at 64-65.

    40 We note that having a complete meltdown following an adverse evidentiary ruling is one surprisingly easy way to find yourself subject to a potential contempt sanction.

    41 Kurt Chandler, Courtroom Avenger: The Challenges and Triumphs of Robert Habush 4 (2014).

    42 Rick Friedman, Polarizing the Case 113-15 (2007).

    43 See Moe Levine on Advocacy 25–26 (2009), for a discussion on how trial strategy pioneer Moe Levine approached the problems associated with speaking to older jurors as a young man.

    44 Friedman, supra note 42, at 113-15.

    45 Jim Purdue, Jr., Connecting with Your Jury 4 (July 2013), (“Visual presentation of documents or pictures is imperative. The jury must see the evidence to even have a chance of accepting it.”).

    46 For an analysis of how courts have routinely taken judicial notice of information available from Google Maps, see Fed. Evid. Rev., Routine Judicial Notice of Google Map and Satellite View, June 6, 2012.

    47 See, e.g., William S. Bailey & Robert W. Bailey, Show the Story: The Power of Visual Advocacy (2011).

    48 See, e.g., Cliff Atkinson, Beyond Bullet Points (3d ed. 2011) (system for effectively using Microsoft PowerPoint that was used by celebrated trial lawyer W. Mark Lanier in obtaining $235 million verdict against Merck & Co. Inc. over controversial pain medication VIOXX).

    49 For a terrific work on sponsorship strategies and jury trial tactics, see Robert H. Klonoff & Paul L. Colby, Winning Jury Trials (3d ed. 2010).

    50 For an example of an effective use of a prop in the context of a medical malpractice jury trial, see Steve Volk, The Legacy, Philadelphia Magazine, Sept. 24, 2008 (account of Jim Beasley Jr.’s creative and effective use of wine-bottle exhibit).




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