Posted On: August 30, 2011

Don't forget the five-minute rule

Trial lawyers be advised: don’t forget the five-minute rule. This rule pertains to the first five minutes of your opening statement. Some say it’s the most important part of the trial because jurors who form opinions about the case after the opening statement rarely change their minds during the rest of the case. And the first five minutes have the strongest impact.

The general rule is that, if you can’t engage your listeners immediately and take full advantage of the doctrine of primacy (also known as the first-impression effect), you might as well stay seated. The five-minute rule holds true whether you represent a plaintiff or a defendant, and whether you are the first to present the opening or the second.

When you present the opening for the plaintiff, the jury or judge will likely be hearing for the first time the nature of your case and what you will attempt to prove. When you represent the defense, you may confront the challenge of breaking the spell cast by the plaintiff’s counsel. In both circumstances, you had better present your side aggressively in the first five minutes or you will lose your listeners’ attention.

Here are four considerations for your next opening statement:

First, present a strong introduction. There are several ways to accomplish this. You might start with a compelling question that is central to the case, or you could start by telling a story. Humor and the creation of suspense are proven methods of captivating a jury. Another way to grab your jury’s attention right away is to begin with the main point of your case – but with no build up. For example: “In this case an innocent woman who dearly loved her husband is now falsely accused of hiring someone to kill him. Let me tell you about Mary Smith.”

Your second consideration should be to how to present a favorable impression of yourself. The judge or jury’s impression of you as a person directly bears on your persuasiveness. Demonstrate sincerity in your cause, compassion for the situation and appreciation for the attention of the listener. A courteous smile and a word of gratitude can go far. Be mindful to avoid obsequious behavior and body language that contradict for presentation. For example, when you introduce your client in a criminal case, keep your expression pleasant and your physical presence close so that the jury sees he is not a dangerous person or someone from whom to keep a distance.

Another thing to consider is the theme of your case. Every case should have a theme and, within the first five minutes of your opening, your judge and jurors should know what it is. Themes appeal to the organizational structure of our interpretation of events, they help listeners make sense of all the facts presented and they help hold listeners’ attention. The theme might embrace the facts of the case and reach to a higher or universal level. Here is an example: “This is the case of the careless landlord. He was careless because he failed to consider the safety of his occupants; he was careless because he failed to repair the screen door on the porch after he received numerous complaints; and he was careless because he could not care less about the children who lived there.”

Finally, once your theme is introduced, consider providing the judge or jury with a verbal outline of the main points and facts of your case. An outline can facilitate the learning process and help the listener focus on your theme as the case progresses. Studies show that we learn best when we are first provided with an outline of the subject matter that will follow.

Take the example mentioned above. If we want to outline the main facts of the case after we present our theme, we might consider something like this: “The landlord’s carelessness will be exposed by the following cold, hard facts: First, he ignored the calls of the child’s mother to repair the screen door; second, he did not repair the door even after receiving written notice from the neighbor that all the doors in the complex were defective and third, the landlord ignored his own contractor, who reported a problem with the defective door.”

While the first five minutes of the opening statement clearly offers challenges to any trial lawyer, these first five minutes also offer tremendous opportunities. They lay the groundwork for a winning case.

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Posted On: August 22, 2011

Know the judge as well as you know your case

When preparing for a trial, it is a given that you will spend much time preparing your case – focusing on the facts and law that are directly relevant to the matter in dispute. However, as I’ve learned from years as a trial attorney in Baltimore, a good pre-trial investigation also involves learning about the judge who will preside over the case.

As a trial lawyer, the more you know about the judge’s attitudes, beliefs, values, style, personality and background, the better able you will be to tailor your arguments to his or her predispositions. Many tools are at your disposal. Thanks to the Internet, numerous forums are available that may give you insight into the judge’s leanings and background that were not available years ago.

In addition to conducting online research, you should speak to the judge’s previous law clerks as well as other courthouse personnel and attorneys who have argued before this particular judge. There is no better way to gain insight into the judge’s style and idiosyncrasies that might have an impact on your case. You might learn, for example, if this judge is known to pepper counsel with many questions or if she tends to favor the government or the defense in criminal cases. You might learn if she has a short attention span or if she will likely have read your brief before oral argument – or if she’d likely just put it aside. Even details like whether she would be receptive to your moving away from the lectern are helpful in mapping out your strategy.

Say you learn from a previous law clerk that the judge disdains lengthy pleadings and, unfortunately, your complaint is very lengthy. When the court convenes and the judge asks if there is any business to discuss before proceeding, you might consider a response along these lines: “Your Honor, I would like to apologize to the court for the length of the complaint. Because this case is the subject of parallel proceedings in two other jurisdictions, we were compelled to present many facts that ordinarily would have been omitted.”

In this way, you confront the court’s concern in a pleasant manner before the judge ever addresses the issue, and you establish common ground and a mutual understanding.

As you conduct your research, be extremely mindful to avoid criticism of the judge or her style. I recall a trial in Baltimore several years ago during which two lawyers were in the courtroom before the judge entered. One attorney asked the other his opinion of the judge, to which the attorney answered that the judge was “in over his head.” The judge overheard the comments because the internal video and audio systems were inadvertently left on at the time. That did not set a good stage for the proceedings that followed.

Interviews with those around the judge will help you grasp her courtroom style, but you should also plan to read relevant opinions or other writings of the court so that you can gain an appreciation of the judge’s views. If those views differ from your position in your case, it’s best to know that before presenting your argument so you can work with or around the judge’s views most effectively.

You might confront the issue by stating to the judge, “I realize, Your Honor, that in the Baltimore Savings and Loan case you opined that a breach of fiduciary obligation is not an independent cause of action. Nevertheless, there are compelling reasons why you should consider modifying your view in this particular case.”

By doing this, you signal to the judge that you know and respect her view but that you want her to listen to your presentation with a mindset hospitable toward modification. You also remind the court that you are aware of the court’s standing on a particular point, have factored it into your argument, and you establish a common point on which your argument may begin.

Keep in mind that you sometimes may not want to attempt to persuade a judge to change a viewpoint because you believe the task is hopeless. In that event, you should focus on establishing the proper record for appellate review.

Though all of this research will be immensely helpful in preparing your case, bear in mind that there is no substitute for firsthand knowledge. If you are presenting a case before a judge for the first time, make every effort to observe the judge in action in several cases. Note the judge’s style, what she seems to like and dislike, how she relies on other cases. Then, tailor your presentation to her preferences. It is just part of the job of preparing your case for trial.

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Posted On: August 4, 2011

Protect trial by jury by limiting pre-trial discovery

As a longtime Baltimore trial attorney, I know that trial by jury is a unique and valuable feature of American government. In recent weeks, juries have come under a storm of criticism from members of the media following the Casey Anthony verdict. This criticism overlooks the historical importance of trial by jury, and the vital role that juries play today. Media criticism, however, is not the most serious threat to the continued existence of jury trials. Far more worrisome is the proliferation of costly pretrial procedures, which deter litigants in civil matters from pursuing their cases to trial. Without reform of these procedures, trial by jury is in danger of becoming a mere historical memory.

While the result in the Anthony trial was unpopular, it was not unreasonable. There was a sufficient factual basis for the jury to find the defendant not guilty based upon reasonable doubt. Even if the jury in the Anthony trial had erred, however, one aberrant verdict could not justify limitations on jury trials. Most statistical analyses report that jury verdicts on the whole are fair, reasonable, and appropriate.

History has shown the vital importance of juries to a free society of laws. While the ancient Egyptians and Greeks employed juries, our present system can be directly traced to the reign of King Henry II in 12th Century England. Henry sought a more rational method of resolving legal disputes than gruesome ordeals or trials by combat between the parties. He chose to place responsibility for fact finding in the hands of bodies of twelve individuals - jurors. The Magna Carta explicitly recognized a right to jury trial in 1215, after a group of nobles forced King John to accept limits on the authority of the crown.

English colonists brought juries to America, where the right to a jury trial became so important that the Declaration of Independence, in listing the colonists’ grievances, criticized George III, “for depriving us in many cases, of the benefits of trial by jury.” Since most colonial judges were appointed by the crown, colonists had relied on juries of their peers to defend them from arbitrary imperial laws.

After the colonies won their independence, trial by jury was a major issue in the debates over the formation of a new government. Ratification of the US Constitution almost failed due to its lack of an express requirement of civil juries. One distinguished Maryland attorney, Luther Martin, pushed hard for a jury trial requirement, which was eventually enshrined in the Seventh Amendment. Many states, including Maryland, have enacted similar provisions in their constitutions.

Juries are no less important today. In criminal cases, they serve as a check on overzealous prosecutions. In civil cases, jury verdicts advance the rule of law and influence social policy. For example, a verdict in a medical malpractice case might lead healthcare providers to render better treatment. And jury service is one of the few means, other than voting, that most citizens have for participating in government.

Conducting jury trials in the digital age poses new challenges, but these can be overcome with proper measures. While a juror may be tempted to use the internet to improperly research or discuss the trial, appropriate warnings from the court can deter such behavior. In a high-profile case, the court can “sequester” jurors, that is, require them to stay in a hotel out of contact with the outside world.

Unfortunately, other modern developments can prevent litigants from even bringing their disputes before a jury. In federal courts, less than one percent of all civil cases end in a jury trial. Since few lawyers have had the experience of litigating a jury trial, lawyers may choose to settle a case rather than risk a jury trial, to the detriment of their clients.

The primary reason for this state of affairs is the skyrocketing cost of litigating a civil case. Most, but not all, of this cost is attributable to pretrial discovery. Discovery is the stage of a case in which the parties, through their attorneys, request documents from each other, exchange questions (interrogatories), and conduct depositions (interviews of potential witnesses). In depositions, attorneys can spend hours arguing over the propriety of a question. Document requests are also problematic. Since companies and even individuals store most of their data electronically, the parties to a case can spend thousands of dollars retrieving, reviewing, and exchanging electronically-stored data, and thousands more fighting over the adequacy of these procedures.

Courts have struggled with these problems for decades, making little appreciable dent in the trend towards ever-more-costly civil litigation. Dramatic action is needed, such as re-writing the entire pretrial discovery rules for civil cases. The cardinal principle of the new rule should be: no pretrial discovery except that which is available in criminal trials, with judges retaining the power to make exceptions where warranted.

It is telling that pre-trial discovery in criminal cases -- which often involve life and liberty -- is far less expensive and time-consuming than in civil cases. Unlike civil cases, criminal cases involve no depositions or broad document request by the accused. In criminal cases, parties exchange witnesses and statements at specified times, counsel interviews the witnesses and they proceed to trial.

If courts eliminated much of the pretrial discovery in civil cases, legal fees and costs would go down, the litigants would be better served, and the vital institution of the jury trial may be rescued.

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