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'm not an attorney, nor have I ever played one on TV. But I'm
starting to think that I might just know a little more about trying a
case than some lawyers out there. Or even some judges, for that
matter ... at least in small-town America.
I just did jury duty, for the first time ever, and ended up hearing a
civil case. The plaintiff was a landlord, the defendant was a tenant,
and the lawsuit was over some damage to the rental property. The case
was basically "he said/she said," but a crucial point did turn on the
timing of two events -- did X occur before or after Y, in other
words. Now, I know that a really good attorney can find ways to put
arguments into play during the opening statements, or even during voir
dire. But "really good" is probably too high a bar to have expected
either of the "distinguished legal scholars" in this case to meet; I
would have settled for merely "competent." That is to say, opening
statements that actually introduced that case.
That's what I would have expected. BUT NOOOO (to steal a phrase from
John Belushi). Both attorneys simply made the same remarks -- that
the case was about damage to a rental property; that the plaintiff and
defendant had two different versions of what happened (as if we hadn't
figured that already!); that the case would probably take all day, and
they didn't want to take up any more of our time than necessary; and
so they were foregoing any detailed opening remarks and going straight
to the testimony and evidence.
(What I found out after the trial was that both attorneys already knew
that the trial would take about a full day, and that taking any more
time than necessary might push the trial into a second day. Both
attorneys believed that, were this to happen, that we jurors would be
so pissed off about it that we'd take it out on whichever side we
regarded as responsible. So neither side wanted to risk being
perceived as responsible for a second trial day.)
Now, "what happened when" might seem to be something jurors should
obviously pay attention to, and it may seem to be so obvious that it
doesn't even need to be said in opening statements. But let me point
out something. In this case, with no opening statements to guide us,
we really had no notion of what sort of facts would prove critical in
making our judgments. Perhaps a witness's overall character and
credibility was a critical issue. Or maybe *where* a witness was, not
when, was of vital importance. Or maybe the critical thing was the in
the nitty-gritty *details* of what a witness saw. And we were all
very much aware that once a witness left the stand, we would almost
certainly not hear from that person again. So we were left in the
position of trying to remember *everything*, which of course is
impossible.
Anyway, we heard about event X at about 10:30 AM. Later on, we had a
lunch break. Then, at around 3 PM, while the defense attorney was
questioning a witness, we finally heard about the timing of event Y --
at which point that attorney literally exclaimed, "aha! so this
happened *before* the 21st, did it not," then turned and nodded to us
as if to say, "see, this is significant!"
If you're tempted at this point to think, "ah, Rob, you just had a
mental lapse and missed what was probably apparent to the other
jurors" ... well, let me assure you that this was not the case. There
were twelve of us in that jury room, all reasonably intelligent
people. One was a schoolteacher who is well-known and highly regarded
in the community. Another was a local businessman who has run a
successful small store for years, managing employees, inventory, and
everything else that entails. I myself have a master's degree and
some work toward a dissertation. And *none* of us -- not one -- was
completely sure during our deliberations about the timing of event X,
and whether it had been asserted in testimony (as the defense attorney
had implied) that it occurred on the 21st. We ultimately accepted
that this was the case, not based on our actual recollections of the
10:30 AM testimony, but on the fact that the plaintiff's attorney made
no effort at all to dispute the defense attorney's 3 PM performance.
Bear in mind that neither side made *any* meaningful opening
statement. And it would have been to the defense's advantage to have
us notice and be sure of this timing for ourselves ... and all he
would have had to do was make this remark during his opening -- "One
thing I'd like to add; some important points hinge on what happened
when, so please pay close attention to dates."
So much for that issue. But it gets worse. Both sides used
photographs as exhibits -- small, 3x5 prints which they had processed
at Wal-Mart. No projections of slides on the wall so we could all see
clearly, just the 3x5s. And -- INCREDIBLY! -- neither of the
attorneys nor the judge thought it was necessary to let us look at the
photos while the witnesses were testifying about them. Instead, we
were just given the two sets of photos when we began deliberations.
And although both sets of photos depicted many of the same things ...
THEY WEREN'T EVEN LABELLED "PLAINTIFF" AND "DEFENSE"!! We had to
figure out which set came from which party!
In a final, comical note ... a witness for the defense was the
defendant's twelve year old daughter. The plaintiff's attorney
apparently had decided that she was the "softest" witness and could be
"broken" the most easily, and so questioned her *very* aggressively.
He rather sternly and loudly offered comments like, "you do know,
young lady, that lying under oath can get a witness thrown in jail,
right?" Between her statements, he paused to refer to his notes on
his table, mainly so he could storm "furiously" across the room, slam
yellow pads down on the table, etc. He could have made the point that
she was lying (and she obviously was) without a full-scale attack, but
instead he really tore into her. Well, the kid didn't flinch. She
apprently decided that daddy was in trouble, and so she was going to
stick to her story *no matter what* ... and in the process gained the
respect and admiration of every juror, myself included. Ultimately,
our ruling was for the plaintiff -- the fact that the defendant's
actions had caused property damage wasn't really in doubt, what was at
issue was the extent of the damages. But even if the plaintiff's
attorney had let the kid's testimony go completely unchallenged, it
would have really changed nothing.
Closing argument were little more than the openings had been -- "well,
you've heard the evidence, now you've gotta decide." Neither attorney
apparently thought it was important to explicitly offer any inferences
from the evidence, to stress certain facts over others, or even just
to briefly summarize the testimony. Just "that's it, now you go
figure it out."
I should also add that although this case was recent, it wasn't
yesterday; both attorneys have had ample opportunity to contact the
jurors and get feedback, but have made no effort to do so. (If either
did, I would certainly share these opinions, albeit far more
politely. I'm really not such a grumpy person.) So after having seen
a full day of stupidity in the courtroom, I've gotta ask a
question ...
Do they really not teach *any* of this stuff at law school?
Seriously. When are attorneys supposed to
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On Apr 4, 7:40 am, rbend...@hotmail.com wrote:
Do they really not teach *any* of this stuff at law school?
Seriously. When are attorneys supposed to learn these things? Or do
some just never figure it out?
Learn WHAT? How to read a juror's mind so the attorney can adjust his
strategy in the middle of a trial to make one of 8 jurors happy? Or
are you referring to the attorneys' failure to spend their clients'
money to talk to jurors after the verdict, when there is little chance
their feedback could help their clients' cases?
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On Apr 4, 7:40 am, rbend...@hotmail.com wrote:
I'm not an attorney, nor have I ever played one on TV. But I'm
starting to think that I might just know a little more about trying a
case than some lawyers out there. Or even some judges, for that
matter ... at least in small-town America.
<juror's excellent observations about stupid trial tactics of
attorneys snipped>
Do they really not teach *any* of this stuff at law school?
Actually, Rob, no they don't. Law school teaches prospective lawyers
how to research the law, how to think about the law (esp. decisional
law, the "common law" created by judges deciding actual cases) as a
body of collective wisdom that evolves over time to reflect and
regulate society's norms and ideals of human behavior, all of which is
great training if one wants to become a law professor, an author of
textbooks on jurisprudence, or an appellate advocate (writing briefs
and arguing the law to a panel of judges who will help create that
decisional law the student spent all that time studying). But hardly
anything one learns in law school prepares one to actually practice
law as a trial lawyer to achieve goals for clients, a few scattered
clinical trial practice programs for law students notwithstanding.
Seriously. When are attorneys supposed to learn these things?
Remember that not all attorneys practice trial law; many have never
seen the inside of a courtroom and don't want to, spending their time
drafting contracts and making deals for well-heeled corporate clients
or making real estate deals or preparing wills for the rich who need
to protect their assets from taxation to hand it down to their
ungrateful kinderlach. Those interested in trial law may take
clinical courses in law school, but mostly they pick it up by working
"second chair" with a more experienced attorney for a while who can
mentor them, or by taking continuing legal education courses after
they pass the bar exam and are in practice and reading appropriate
treatises and periodicals designed to help trial lawyers prepare for
particular cases and/or develop their trial skills. Sadly, as you
have noticed, too many lawyers are willing to step into a courtroom
without having done enough of the above to really have any sense of
how to tell a convincing story that will persuade a jury and hold
their attention.
Or do some just never figure it out?
Right, some just never figure it out.
So, after this delightful experience as a juror, do you want to become
a lawyer? I'm sure you already know more about what it takes to
convince a jury than these zhlubs you had to watch bumbling about for
a day did.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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rbendyke@hotmail.com wrote:
I'm not an attorney, nor have I ever played one on TV. But I'm
starting to think that I might just know a little more about trying a
case than some lawyers out there. Or even some judges, for that
matter ... at least in small-town America.
I just did jury duty, for the first time ever, and ended up hearing a
civil case. [...]
Perhaps you are over-estimating the importance of jurors in the legal
system. In other words, maybe the trial really wasn't about the twelve
(or six) of you, and your gripes are of little concern to the lawyers
and judges.
Your example was a civil case, but in criminal cases I think the
charge(s) the D.A. does or does not choose to bring have far more impact
on the final outcome than any jury. I was a juror once for an attempted
murder trial, which lasted 3.5 weeks and ended in a mistrial from a 9-3
hung jury. During the trial we heard far more testimony about two other
crimes allegedly committed by the defendant, not the one we were trying.
I concluded in the end that the trial was mostly a dry run for the
upcoming trials on the other crimes (or else just an attempt to get a
"three strikes" count on the defendant). Both the D.A. staffer and the
public defender learned a lot from the experience, in my opinion.
-Mark Bole
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bendyke@hotmail.com wrote in
news:pp4cv3to5gd8me45d5fm850681lch4frcl@4ax.com:
I'm not an attorney, nor have I ever played one on TV.
Me either.
But I'm
starting to think that I might just know a little more about trying a
case than some lawyers out there. Or even some judges, for that
matter ... at least in small-town America.
According to news reports, especially in small-town New York state. But
why would this surprise you? 50% of all lawyers were in the bottom half
of their class.
I just did jury duty, for the first time ever, and ended up hearing a
civil case. The plaintiff was a landlord, the defendant was a tenant,
and the lawsuit was over some damage to the rental property. The case
was basically "he said/she said," but a crucial point did turn on the
timing of two events -- did X occur before or after Y, in other
words. Now, I know that a really good attorney can find ways to put
arguments into play during the opening statements, or even during voir
dire. But "really good" is probably too high a bar to have expected
either of the "distinguished legal scholars" in this case to meet; I
would have settled for merely "competent." That is to say, opening
statements that actually introduced that case.
That's what I would have expected. BUT NOOOO (to steal a phrase from
John Belushi). Both attorneys simply made the same remarks -- that
the case was about damage to a rental property; that the plaintiff and
defendant had two different versions of what happened (as if we hadn't
figured that already!); that the case would probably take all day, and
they didn't want to take up any more of our time than necessary; and
so they were foregoing any detailed opening remarks and going straight
to the testimony and evidence.
Why would you even give opening remarks much weight? They're not
testimony, and you know what each side is going to spin.
<snipo>
Now, "what happened when" might seem to be something jurors should
obviously pay attention to, and it may seem to be so obvious that it
doesn't even need to be said in opening statements. But let me point
out something. In this case, with no opening statements to guide us,
we really had no notion of what sort of facts would prove critical in
making our judgments.
Perhaps a witness's overall character and credibility was a critical
issue.
You are the sole judge of that.
Or maybe *where* a witness was, notwhen, was of vital importance.
You are the sole judge of that.
Or maybe the critical thing was the in the nitty-gritty *details* of
what a witness saw.
You are the sole judge of that.
In addition, the judge should have explained the law involved, which
would have given you a roadmap for what was important. Did he?
And we were all
very much aware that once a witness left the stand, we would almost
certainly not hear from that person again. So we were left in the
position of trying to remember *everything*, which of course is
impossible.
This was a one-day trial about damage to rental property. How much could
"*everything*" be? Were you allowed to take notes?
Anyway, we heard about event X at about 10:30 AM. Later on, we had a
lunch break. Then, at around 3 PM, while the defense attorney was
questioning a witness, we finally heard about the timing of event Y --
at which point that attorney literally exclaimed, "aha! so this
happened *before* the 21st, did it not," then turned and nodded to us
as if to say, "see, this is significant!"
If you're tempted at this point to think, "ah, Rob, you just had a
mental lapse and missed what was probably apparent to the other
jurors" ... well, let me assure you that this was not the case. There
were twelve of us in that jury room, all reasonably intelligent
people. One was a schoolteacher who is well-known and highly regarded
in the community. Another was a local businessman who has run a
successful small store for years, managing employees, inventory, and
everything else that entails. I myself have a master's degree and
some work toward a dissertation. And *none* of us -- not one -- was
completely sure during our deliberations about the timing of event X,
and whether it had been asserted in testimony (as the defense attorney
had implied) that it occurred on the 21st. We ultimately accepted
that this was the case, not based on our actual recollections of the
10:30 AM testimony, but on the fact that the plaintiff's attorney made
no effort at all to dispute the defense attorney's 3 PM performance.
I'll have to say that your opening paragraph doesn't give enough credit
to the defense attorney, who apparently got you to believe something that
probablay didn't happen or at least for which there was no convincing
evidence.
Did you ask to review witness testimony? There was a court reporter,
wasn't there?
Bear in mind that neither side made *any* meaningful opening
statement. And it would have been to the defense's advantage to have
us notice and be sure of this timing for ourselves ... and all he
would have had to do was make this remark during his opening -- "One
thing I'd like to add; some important points hinge on what happened
when, so please pay close attention to dates."
They may have been bad lawyers or they each might have had some reason
(presumably different) for not wanting to emphasize the dates. You only
get to hear what's presented.
So much for that issue. But it gets worse. Both sides used
photographs as exhibits -- small, 3x5 prints which they had processed
at Wal-Mart. No projections of slides on the wall so we could all see
clearly, just the 3x5s. And -- INCREDIBLY! -- neither of the
attorneys nor the judge thought it was necessary to let us look at the
photos while the witnesses were testifying about them. Instead, we
were just given the two sets of photos when we began deliberations.
And although both sets of photos depicted many of the same things ...
THEY WEREN'T EVEN LABELLED "PLAINTIFF" AND "DEFENSE"!! We had to
figure out which set came from which party!
Did the judge admit the photographs? Didn't he have them recorded? Did
you ask him which were which?
In a final, comical note ... a witness for the defense was the
defendant's twelve year old daughter. The plaintiff's attorney
apparently had decided that she was the "softest" witness and could be
"broken" the most easily, and so questioned her *very* aggressively.
He rather sternly and loudly offered comments like, "you do know,
young lady, that lying under oath can get a witness thrown in jail,
right?" Between her statements, he paused to refer to his notes on
his table, mainly so he could storm "furiously" across the room, slam
yellow pads down on the table, etc. He could have made the point that
she was lying (and she obviously was) without a full-scale attack, but
instead he really tore into her. Well, the kid didn't flinch. She
apprently decided that daddy was in trouble, and so she was going to
stick to her story *no matter what* ... and in the process gained the
respect and admiration of every juror, myself included. Ultimately,
our ruling was for the plaintiff -- the fact that the defendant's
actions ha
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Sat, 05 Apr 2008 07:42:04 -0400 from A Michigan Attorney
<miattorney@gmail.com>:
Learn WHAT? How to read a juror's mind so the attorney can adjust his
strategy in the middle of a trial to make one of 8 jurors happy? Or
are you referring to the attorneys' failure to spend their clients'
money to talk to jurors after the verdict, when there is little chance
their feedback could help their clients' cases?
Interestingly, an attorney did talk to me after the last case whee I
was on the jury. (I don't know if it makes a difference: I was an
alternate.)
The case was a standard rear-end collision where the driver had
admitted fault but the parties couldn't agree on the amount of
damages. Plaintiff, a young mother who did not work outside the home,
claimed severe and ongoing back injury, but also her sister described
how she would frequently bend over to pick up a baby from its crib. I
don't remember the baby's age, but it was well past being a newborn.
So the disability claim seemed shaky at best. There were the usual
conflicting testimonies of doctors -- on videotape, not live.
The jury found for the plaintiff, but for somewhere around $5,000
versus the hundreds of thousands the plaintiff's attorney was asking
for lifetime pain and suffering and diminished physical capacity.
Though as an alternate I wasn't in on the deliberations, I assume the
others felt as I did, that there wasn't any convincing evidence that
the plaintiff had suffered more than a temporary injury. There were
no lost wages, so she got medical bills and a token amount for p&s.
A week or so later I got a letter from the plaintiff's attorney,
asking if he could discuss the case with a view toward improving his
presentations for the future. I think that was a good plan on his
part, because he had really not presented very strong evidence and he
had left several questions unanswered. (I can't remember any more
what they were, but I do remember they might have made a significant
difference.)
But when we spoke, within a few minutes it became clear that he
didn't really want any feedback. What he wanted to do was to reargue
the case on the phone and have me tell him that the jury was wrong
and his client should have been awarded a lot more money. So he
turned what could have been a learning experience into an ego
exercise and a missed opportunity.
I didn't think about it at the time, but Michigan' comment makes me
wonder who was paying for that little exercise, especially if it was
repeated for each so the six jurors who voted. Hopefully, since this
was a personal-injury case, he was on his own time and not billing
the plaintiff.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
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Sat, 05 Apr 2008 07:42:08 -0400 from Mike Jacobs
<mjacobslaw@gmail.com>:
Remember that not all attorneys practice trial law; many have never
seen the inside of a courtroom and don't want to, spending their time
drafting contracts and making deals for well-heeled corporate clients
or making real estate deals or preparing wills for the rich who need
to protect their assets from taxation to hand it down to their
ungrateful kinderlach.
Or settling instead of going to court. I know you're a lawyer and I'm
not, but wouldn't you agree that trials are enormously inefficient,
and there's always the possibility of a wrong(*) result, so a good
attorney will avoid one unless there is no alternative?
(*) I don't mean "wrong" in the sense of not to one party's liking,
but rather a verdict that nobody understands except possibly the
jurors, because it seems completely at variance with the law and the
facts of the case.
In the excellent show /The Associates/ from the 1970s or 1980s, one
very rich client wants to fight a groundless palimony suit rather
than settle for a few thousand. The junior partner who's handling his
case remarks, "I didn't spend all those years going to law school
just to waste my time in court." Of course the phrasing is
horrendously bad (consistent with the character), but I think there's
a big nugget of truth there.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
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In article <59pev3liso0qknuobf14j7m6g9rk1kmkjo@4ax.com>,
A Michigan Attorney <miattorney@gmail.com> wrote:
On Apr 4, 7:40 am, rbend...@hotmail.com wrote:
Learn WHAT? How to read a juror's mind so the attorney can adjust his
strategy in the middle of a trial to make one of 8 jurors happy?
How to tell the jurors what you're going to (try to) prove so they can
follow along.
The last time I was almost a juror, we knew what the case was about,
and what each side would try to prove, during voir dire.
Seth
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On Fri, 04 Apr 2008 07:40:16 -0400, rbendyke@hotmail.com wrote:
Anyway, we heard about event X at about 10:30 AM. Later on, we had a
lunch break. Then, at around 3 PM, while the defense attorney was
questioning a witness, we finally heard about the timing of event Y --
at which point that attorney literally exclaimed, "aha! so this
happened *before* the 21st, did it not," then turned and nodded to us
as if to say, "see, this is significant!"
While these lawyers may have been sloppy in their presentation, they appear to
have told you the applicable law and then elicited the facts fitting that law
which led to the proper conclusion. Perhaps they were just giving you credit
for being able to figure this out on your own.
I think failing to give an opening statement was an error, but not a fatal one.
It sounds like you witnessed some ham-handed but servicable legal practice.
Note that the purpose of a trial is not to entertain you but to do justice to
the parties. Do you think you were ultimately hampered in your ability to
make the right decision by the ineptitude of these lawyers?
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On Sat, 05 Apr 2008 07:42:14 -0400, Deadrat <a@b.com> wrote:
This sounds like a really bad idea.
I was on a jury a long time ago, and after they had stopped in the
middle, having settled the case between the parties, the attorney for
the plaintiff, who I think was very young, and she might have said
this was her first trial, came to me and asked how I was leaning.
I think I was still sitting in the trial room at the time, hadn't even
gone back to the jury pool yet, so she didn't have to chase me down. I
might have been waiting hoping to learn what happened outside of the
courtroom.
I told her I would tell her if she would tell me what the settlement
was for. That seemed fair.
She had a terrible client, I thought and I told her. The plaintiff
was hit by a city bus, or maybe she was a city bus driver whose bus
got hit. The lawyer kept asking her questions to which the plaintiff
could have said that she was injured, was in pain, etc. But she never
said that. I was assuming that the plaintiff wanted to sue, and did
have real medical bills and even pain, or at least her attorney would
have discussed it in advance and not asked all those questions if she
thought the client woudn't say, "Yes it hurt"
I think they settled for 10 or 20 thousand dollars. AT the time I was
sure that was low for the injury the woman suffered, but I thought the
lawyer did her best. I guess now I'm wondering, a) if the lawyers
wanted more than she could get if the plaintiff told the truth, or b)
if the plaintiff wanted more and gave the lawyer the impression she
deserved it and the lawyer believed it could be proven, but when it
came time to tell the story under oath, the woman couldn't lie.
I got a notice for jury duty while I was out of town, and I want to do
my duty (and it's interesting) but I've lost the letter. I suppose
they'll believe me if I just call and tell them they sent me one.
If you are inclined to email me
for some reason, remove NOPSAM :-)
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Sun, 06 Apr 2008 09:07:10 -0400 from mm <NOPSAMmm2005@bigfoot.com>:
She had a terrible client, I thought and I told her. The plaintiff
was hit by a city bus, or maybe she was a city bus driver whose bus
got hit. The lawyer kept asking her questions to which the plaintiff
could have said that she was injured, was in pain, etc. But she never
said that. I was assuming that the plaintiff wanted to sue, and did
have real medical bills and even pain, or at least her attorney would
have discussed it in advance and not asked all those questions if she
thought the client woudn't say, "Yes it hurt"
I would not give the client most of the blame for this. It sounds to
me like the lawyer did not do an adequate job of preparing the client
to testify.
Preparation does not involve telling the client what to say (at least
in theory it does not), but rather the attorney getting familiar with
the client's testimony and coaching the client to say what the client
wants to say in the most effective manner. It also prepares the
client for the unavoidable stress of the witness box, by removing the
avoidable stress of hearing questions for the first time in court.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
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I should also add that although this case was recent, it wasn't
yesterday; both attorneys have had ample opportunity to contact the
jurors and get feedback, but have made no effort to do so.
Do the attorneys even know who the jurors were, or how to contact
them?
Is it allowed to contact jurors like that?
I'd consider that kind of contact to be similar to "WE KNOW HOW YOU
(the whole jury, at least) VOTED AND WE KNOW HOW YOU LIVE" threat
if it was by phone or in person at home days after the trial. I
might not call 911 the first time but I'd probably complain to the
judge. If it continued, I'd figure I'm being stalked and consider
trying to get a restraining order.
How difficult would it be to get such a restraining order, assuming
I've got call records for my cell phone showing a dozen calls from
phone numbers tied to his or his law firm's phones at the times I
claim? The call records are for MY cell phone so I don't need any
subpoena, right?
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On Apr 6, 9:06 am, Stan Brown <the_stan_br...@fastmail.fm> wrote:
Sat, 05 Apr 2008 07:42:08 -0400 from Mike Jacobs
<mjacobs...@gmail.com>:
Or settling instead of going to court. I know you're a lawyer and I'm
not, but wouldn't you agree that trials are enormously inefficient,
and there's always the possibility of a wrong(*) result, so a good
attorney will avoid one unless there is no alternative?
Absolutely. Even the best civil trial attorneys would rather settle
a case for a fair compromise amount than spend the time and effort
necessary to take it to trial - they get paid nearly as much, and
don't have to do nearly as much work, so it's a lot more efficient as
a moneymaker for their firm since they can settle several cases in the
time it would take to try just one.
Besides, from the client's point of view, a good attorney realizes
that no sensible client enjoys or wants to go through the trial
process and that if it is a strain and a burden on the attorneys, that
is multipled by several orders of magnitude for the typical client.
Litigation is something to be avoided like the plague if at all
possible. Unfortunately, it is not always possible, and in some
cases the parties are so far apart in their positions that there is no
alternative.
But paradoxically, one thing that is more likely to make cases "settle-
able" is if the attorneys on both sides are both experienced trial
advocates, confident in their own opinions and abilities and not "out
to prove" how tough they are or whatever, and thus are more likely to
cut through the BS and come to a true evaluation of what the case is
worth regardless of which side they are on -- and then to have the
persuasive ability and grasp of the relevant facts to convey that
value opinion convincingly to their own clients, so that the parties'
minds, instead of being at opposite poles on the matter, can actually
meet on a fair number.
All the while, of course, the experienced advocate will be doing
everything that is necessary to gear up for trial, in case negotiation
diplomacy fails and a courtroom war becomes the only option. As the
old saying goes (attributed to Oliver Cromwell), "Trust in G-d, but
keep your powder dry." Or as the Maryland state motto provides,
"Fatti maschii, parole femine."
(*) I don't mean "wrong" in the sense of not to one party's liking,
but rather a verdict that nobody understands except possibly the
jurors, because it seems completely at variance with the law and the
facts of the case.
That's always a risk. Sometimes taking a case to a jury can be like
having a loose cannon on a rolling deck.
In the excellent show /The Associates/ from the 1970s or 1980s, one
very rich client wants to fight a groundless palimony suit rather
than settle for a few thousand. The junior partner who's handling his
case remarks, "I didn't spend all those years going to law school
just to waste my time in court." Of course the phrasing is
horrendously bad (consistent with the character), but I think there's
a big nugget of truth there.
There certainly is. Not only because the best trial advocates are
able to settle more cases based on their reputation and the other
side's unwillingness to face them in trial court, but also because the
best advocates aren't afraid to tell their own clients when they are
being foolish to seek a Pyrrhic victory "on principle" when they could
settle for a few cents on the dollar (as a defendant) or get nearly as
much in their pocket from a compromise settlement when all is said and
done as if they "rang the bell" (for a plaintiff) and then could get
on with their businesses and lives instead of getting hung up on the
case as an unhealthy obsession. When a client tells me, "I don't
care about the money, it's the principle of the thing," I either (1)
run for the hills, rejecting the representation, or (2) am immediately
convinced, whether or not the client is self-aware enough to recognize
it, that for this particular client, it is ALL about the money and
nothing else. The client who says that it isn't, is one who is far
more likely to be disappointed in the amount of a profferred
settlement and insist I reject it and go to trial, than one who just
wants to get the best reasonable deal he can out of it, and move on,
all of which means more headache for the lawyer.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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Anyway, we heard about event X at about 10:30 AM. Later on, we had a
lunch break. Then, at around 3 PM, while the defense attorney was
questioning a witness, we finally heard about the timing of event Y --
at which point that attorney literally exclaimed, "aha! so this
happened *before* the 21st, did it not," then turned and nodded to us
as if to say, "see, this is significant!"
Do lawyers really ask negative questions like that? (On TV, it
seems that they usually do that). The answer might become a double
negative, and there are reasons English teachers don't like double
negatives.
I consider the two acceptable answers to that question (assuming
it's a single question, and the witness actually knows when it
happened) to be:
No, it happened before the 21st.
or
Yes, it did not happen before the 21st.
That word "not" means something.
I wonder what happens if half the jury interprets a nod of the
head head as "Yes, it happened before the 21st" and the other half
interpret it as "Yes, it did not happen before the 21st".
If I were a witness being asked that question (and interested in
not ending up in jail for perjury), and based on what happened prior
questioning, I expect to get cut off after "Yes, it ..." or "No,
it ...", would I be out of line asking the attorney to rephrase the
question without using the word "not" or the contraction "n't"?
I'd expect a lawyer wanting to emphasize the relationship between
X and Y, especially if it was a long time since X was mentioned,
to ask another question, like: "T testified that X happened on
[...date...] and Y happened after that, correct?" It appears,
though that this lawyer got his point across.
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In article <a9pev3t3ivlca990e7krnnqe3rjsqjtb60@4ax.com>,
Deadrat <a@b.com> wrote:
Why would you even give opening remarks much weight? They're not
testimony, and you know what each side is going to spin.
I wouldn't give them any weight; but without them, I _don't_ know what
each side is going to spin.
Opening remarks from the plaintiff of "The defendant did X and Y,
which caused A and B, which caused me harm so he should pay for it"
and from the defense of "The defendant didn't do X, and Y didn't cause
harm" tells me what to try to determine from the witnesses'
testimony. When I get a long story that happens to mention X as a
minor part, without the opening remark I'm much less likely to
remember that this witness testified that X happened.
Seth
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On Apr 7, 7:39 am, gordonb.tt...@burditt.org (Gordon Burditt) wrote:
Do lawyers really ask negative questions like that? (On TV, it
seems that they usually do that). The answer might become a double
negative, and there are reasons English teachers don't like double
negatives.
The use of "is it not?" as a verbal interrogatory mark or tag
following, or "Is it not true that ...." preceding what would
otherwise be a sentence in declarative form is different than having a
double negative in the middle of a clause, and is quite common and
acceptable in English as well as other languages, n'est-ce pas?
The following are exactly equivalent grammatically, but for cross-
examination purposes, the one which states the proposition in
declarative form and then indicates it is intended as a question, is
IMO clearer and easier to follow and understand:
"Did you take action X before date Y, or did you not?"
The normal answers to that are either "Yes, I did" or "No, I didn't."
"You took action X before date Y, didn't you?"
A proper answer to both (assuming the proposition is true) is "Yes, I
did." But the first form is neutral, psychologically leaving open to
the answerer whether he should answer "Yes, I did" or "No, I didn't"
while the second form (the one cross-examiners use) is grammatically
and psychologically favoring an affirmative answer as being the only
correct one; the answerer who accepts the challenge and disagrees with
the questioner in the second form feels like he's going out on a limb
to do so, which is exactly the effect the cross-examiner wants, isn't
it?
Also, use of a tag (instead of rephrasing the entire sentence in
interrogatory form, changing verb/subject order etc.) makes it a lot
easier for the questioner to ramble on with lengthy sentences and then
simply ask for agreement at the end of each, doesn't it? That's what
happens on cross-examination, really; the lawyer is the one testifying
by stating facts in detail, and all he is doing is seeking agreement
from the witness to affirm everything he says. If the answerer
attempts to disagree in that form, he looks stupid or evasive because
the use of the declarative-tag form of a question makes it sound like
the content of the question is so obviously true than no one could
disagree.
I consider the two acceptable answers to that question (assuming
it's a single question, and the witness actually knows when it
happened) to be:
No, it happened before the 21st.
or
Yes, it did not happen before the 21st.
Now you're thinking like a mathematician, not a lawyer _or_ a
grammarian (except an obsessively prescriptive one, and those are so
out of fashion these days). The tag is not a negation of the the
substance of the question, it is a verbal challenge to the answerer
daring him to disagree.
That word "not" means something.
Correct. What it means in context is that the questioner is fishing
for an affirmative answer to the underlying question (the part before
the tag), in effect verbally challenging the person addressed to
disagree with the questioner on that point at the answerer's peril.
It's a rhetorical question added to the end of a real question in
declarative form, turning the declaration into a question to which one
expects an affirmative answer, wouldn't you agree?
I'd expect a lawyer wanting to emphasize the relationship between
X and Y, especially if it was a long time since X was mentioned,
to ask another question, like: "T testified that X happened on
[...date...] and Y happened after that, correct?" It appears,
though that this lawyer got his point across.
BTW, "Correct?" is a shortened form of "Isn't that correct?" Same
strategy, same grammar.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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In article <it1kv3d905sbig0da3l7ouf5e3i7hqbmu2@4ax.com>,
Gordon Burditt <gordonb.ttddy@burditt.org> wrote:
Anyway, we heard about event X at about 10:30 AM. Later on, we had a
lunch break. Then, at around 3 PM, while the defense attorney was
questioning a witness, we finally heard about the timing of event Y --
at which point that attorney literally exclaimed, "aha! so this
happened *before* the 21st, did it not," then turned and nodded to us
as if to say, "see, this is significant!"
If I were a witness being asked that question (and interested in
not ending up in jail for perjury), and based on what happened prior
questioning, I expect to get cut off after "Yes, it ..." or "No,
it ...", would I be out of line asking the attorney to rephrase the
question without using the word "not" or the contraction "n't"?
It would be simpler just to reply in a full sentence "It happened
before the 21st" or "It happened after (or on) the 21st."
Seth
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<rbendyke@hotmail.com> wrote:
...
(What I found out after the trial was that both attorneys
already knew that the trial would take about a full day,
and that taking any more time than necessary might push
the trial into a second day. ....
I've been called for jury duty 9 times. The three times
I had to answer a vior dire, there was a question
concerning any hardship in sitting on a jury for x days.
I eventually sat through a criminal trial. The question
said 5 days, but it took 7 days.
The major problem was that we could take notes. This
made the deliberations longer and that was the worst
part of the trial. Ever sit in a room with wimps who
are afraid to speak and bullies who are brow beating
the wimps.
It was a hung jury and both attornies spoke with me
afterwards and, from their questions, I inferred they
had already spoken to other jurors.
Dick
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