When preparing for trial, like many other endeavors in this life, it is best to hope for the best but to plan for the worst. In other words, you need to draw up your opening statement, closing statement, witness examinations and so forth as you intend to present them. That being said you need be ready for potential hiccups in your presentation. You may receive friction from the court and you need to have a plan in overcoming any potential friction which will otherwise interfere with your game plan. If you pursue some of the more modern methods of trial advocacy, for instance those strategies advocated by guys like Don Keenan, Rick Friedman, and David Ball you might encounter this type of opposition from the court. The reason for this opposition has nothing to do with your taking actions which exceed the scope of evidentiary rules and standards but more to do with the fact that your trial judge may not be accustomed to this method of trial advocacy. When your judge sees a departure from accustomed trial advocacy methods then these judges tend to get nervous with your approach. When judges get nervous they can end up incorrectly sustaining objections. Thus, it is important that you as counsel anticipate possible objections especially if you are not familiar with how your trial judge runs his or her courtroom.
These same trial advocacy teachers mentioned above, along with others, are pushing the use of “Rules”. Rule use is an effective method for teaching jurors. The reason being that Rules help the jurors understand what conduct is or is not acceptable. Without firm established rules from which to interpret the defendant’s actions by the jurors are left with ambiguity. The defense can always hide behind ambiguity. Thus it is a good idea to instruct your jurors throughout trial on the rules which are applicable to the defendant in the given case. That being said, anytime you talk about rules to the court or to the jury you must be aware that opposing counsel may object to your statements by arguing that you are trying to usurp the powers of the court by explaining the law to the jury. To this end you need to be prepared with a response to opposing counsel.
When you are creating your rules for the given case you will rely on statements made by the defense which confirm these rules and additionally you will rely on statements by experts who will also confirm these same rules. Thus when this objection goes up you need to be prepared to tell the judge that these are not your rules but rather rules of the industry as confirmed by the defendant in deposition. You need to advise the judge that these are rules which govern industry standards based on the deposition testimony of experts, who will now testify in trial. These are the rules which your jurors will have to consider in order to determine whether the Defendant’s actions constitute negligence. Remind the court that the jury instruction will require the jurors to consider industry and company rules and standards so that the jury can determine if the Defendant acted negligently. You need to remind the judge that the jury cannot consider these rules if the court instructs the trial lawyers to remain mum regarding these same rules throughout trial. After all, it is the trial lawyer’s job to teach the case to the jurors.
There are some other areas, beyond teaching the rules of the case, where you might get friction from the court. One common area where this will occur is when you try to demonstrate to the jurors all of the other dangers which can occur when these same rules aren’t followed. The reason you want to explain other dangers is because you want to demonstrate to the jurors how important it is that people like the defendant follow the rules. When you demonstrate numerous other situations where the same type of rule violation could result in injury to individuals situated much like fellow jurors and the juror’s family, then importance of the rules becomes all the more important to the juror. If you don’t do this then jurors trick themselves into thinking that they would never find themselves in the situation in which the plaintiff became the victim in this current case. Even though this is an illogical belief it is a belief that jurors assume in an effort to protect their psyche. Thus you need to do all you can to demonstrate that these dangers expose a clear and present danger not only to individuals such as the plaintiff but also to individuals just like the jurors deciding the case.
If you get friction from the court as you attempt to demonstrate all the various other injuries which can result if the rules are not followed then you need to remind the court that this explanation is essential so that the jury can understand the reason for the rules existence in the first place. Explain to the court that your expert has the right to explain the foundation for the rule. If you have a case where the facts or issues are somewhat complicated such as when dealing with foreign material such as medicine or technology remind the judge that the jurors need to see these examples so as to better understand the rules and the purpose of the rules. By providing more commonplace examples of when the rules apply the jurors can better understand the rules and the purpose of those rules. Teaching by analogy is not a new method of teaching, it is one of the oldest methods of instruction. If you get an objection when you give these analogous situations simply remind the judge that your expert will testify that it is essential that the jurors be given these analogies so that they can truly understand the purpose of the rules. In this way you are simply speaking, in opening, of testimony your expert intends to give later in trial. These are not your rules or your analogies, they are rather the rules and analogies of your expert.
Whatever you do, do not roll over when faced with one of these objections. Keep pushing your agenda in the face of adversity to your trial techniques. If you are persistent enough the judge will allow you to put on your case in the manner which you chose. This short blog was written entirely for my own benefit. The information above comes primarily from Don Keenan, an outstanding plaintiff’s attorney. For more information on this type of material I suggest you read any of Don Keenan’s publications which are excellent or attend any of his seminars.