Keenan Trial Blog

 By Don Keenan

              Every trial lawyer knows the critical importance of delivering a solid opening statement.  David Ball, my co‑author on the Reptile for several years, has been tirelessly working on the Third Edition of his Damages book and one of the more important chapters is on opening statement.  David brings to bear the full understanding of the Reptile and the time honored Rules doctrine and has produced the best chapter ever written on Opening Statements. 

             The book will not be available for a while but David has graciously agreed to share the final draft copy of the chapter on opening statements (the book “David Ball on Damages3” can be purchased at www.trialguides.com.  Pre‑orders are being taken now).

             Additionally, I am pleased to report that David and I are in the final production of our third DVD series (previous: “Keenan Method of Witness Preparation” and “The Reptile Method of Voir Dire”) with the next DVD being “Ball on Opening Statements” in demonstration form.  Well known lawyer Charles Allen sat with David over two days and together on film they crafted an actual opening statement. This is not a lecture but this will put you in the shoes of a lawyer being tutored by David in his Opening Statement Method. We project that this DVD will be over eight hours in length and will track and demonstrate all the principals in the chapter below.  (Pre‑orders of the DVD can be done at www.reptilekeenanball.com). 

             All lawyers embracing the Reptile know the importance of the lawyer being “off code” during the trial and in life also. In the same manner as the “Reptile Method of Voir Dire” DVD teaches how to go “off code” in voir dire, David’s Opening Statement teaches how to go “off-code” in the Opening. To me, this is the Holy Grail of his method.

             What follows is a template that David has been teaching for the last year and a half in our two day Reptile seminars. He has also tutored lawyers from around the country in face to face operations which have produced huge verdicts.  Simply stated, David’s methods have been tested with success not merely in focus groups but repeatedly in actual trials.

  

FROM DAVID BALL DAMAGES3

 6-1

 Opening. Part I: Primary rule(s).

 Start where jurors want you to start. Find the place where people want to start when beginning any unfamiliar task. When your child comes home with a new board game, you open the box, spread the pieces, and ask “How do we do this? What are the rules?”

“What are the rules?” is always the first question. It’s the brain’s new-task default question.

Until jurors know a major rule or two, they don’t know what to do with any of the rest of the information you give them. The rule tells them.

The rule also tells them how to play and what to pay attention to. Jurors use the major rule(s) as their trusty guide. Every negligent act constitutes a safety-rule violation, so that safety rule is the first guide you want them to have.

Starting with anything but the rule – except “Good morning:” – is like swinging at and missing an easy pitch.

What kind of rule should you start opening with? Here’s a perfect beginning [// = brief pause for clarity]:

 Good morning. //

 That’s enough chatter. Now go straight to the rule:

A driver // 

is required//

to watch the road //

and see what’s there to be seen. //

If the driver does not, //

even for an instant,//

and as a result hurts someone, //

the driver is responsible for the harm. //

Here’s your transition to Part II of your open

Now let me tell you the story(1) of what happened in this case.

Even if the defendant violated a dozen rules, for Part I of opening choose only one or two principal rules. You’ll talk about the others later. For now, select the rule or two that will best guide jurors as they listen to the upcoming story of what the defendant did.

The pauses ( // ) – not too long, but distinct – are essential. Without pauses, jurors can’t follow even the simplest of rules. When jurors hear anything for the first time, phrases not separated by pauses wash over them like this:

Adriverhastowatchtheroadandseewhat’stheretobeseen.Ifhedoesnotevenforamomentandasares ulthurtssomeonethedriverisresponsiblefortheharm.

Here’s a slight expansion of Part I’s rules:

Good morning. //

A manufacturer //

is never allowed //

to needlessly endanger the public. //

If he does //

and as a result someone is hurt, //

 the manufacturer is responsible for the harm.//

A manufacturer //

is never allowed //

to conceal a danger they know about //

in their product, //

because concealing the danger //

would needlessly endanger the public. //

Now let me tell you the story of what happened in this case.

 Make no accusations (no Premature Advocacy). You do not say or imply that anyone did anything wrong. Nonetheless, the jurors now ‘know’ that someone did something wrong that hurt someone else. So in Part II, as you tell the story of what the defendant did, jurors will spot the violation for themselves

 Here’s another example (without pause markers, since by now you know them).

 Good morning.

 A public facility of any kind –

 such as a movie theater, or shopping mall, or school, or any other kind –

 must never expose its visitors to needless danger.

If it does,

and as a result someone is hurt,

the facility is responsible for the harm.

 

The public facility

must do everything that can be done

to protect the public

from preventable outside crime.

If it does not and as a result someone is hurt,

the facility is responsible for the harm.

Now let me tell you the story of what happened in this case.

If a judge thinks this is too close to talking about the law, point out that witnesses – including defense witnesses – will testify (or already have testified in depositions) in these very words. (See Rules of the Road and Reptile to learn how to get defense witnesses, even the defendant, to do this.) So since the rules are evidence, you can say them in opening – even in damages-only cases (see ______________). (2)

If a rule is not a common-sense truth, refer to the experts (on both sides) who support it:

Good morning.

A police officer is never allowed to needlessly endanger anyone.

Experts from the Indiana Police Training Center, along with every police officer who will testify,

will agree that a police officer is not allowed to use more force than necessary,

not even when making an arrest.

This is because using more force than necessary can needlessly endanger people,

which everyone agrees is never allowed.(3)

 They will also agree that when a police officer uses more force than necessary,

 and as a result injures someone,

the officer is responsible for the harm.

Now let me tell you the story of what happened in this case.

In every kind of case, no matter how complex or how many rules were broken, you must select the most important one or two for Part I of opening. In exceptional circumstances a third rule may be necessary.  If you give more, the juror will remember none of them as you tell the upcoming story.

 In a very few kinds of cases, the rules section will be longer. For example, in failure to diagnose cases, the major rule is the requirement to do a full and proper differential diagnosis. See example, Appendix ______.  Even then, the explanation must quickly boil down to a simply-stated rule.

ED – THE FOLLOWING IS AN INDENTED HIGHLIGHTED BOX IN EXACTLY THIS SEQUENCE POSITION.

As with every section of this structured opening, be certain that you do not pollute this section. ‘Pollution’ means saying anything other than what the section calls for, no matter how much you think you need it. As this structure proceeds it holds everything you need, so don’t defeat its effectiveness by injecting something where it does not belong.

 Here are errors attorneys often make in this first section:

 1. Using legal language.

 2. Using the exact language of a policy or guideline or law, instead of clarifying it into simple language.

 3. Giving too many rules (two is best; three the maximum.).

 4. Using too many words. Conciseness = clarity, and vice-versa. State each rule in one sentence.  You’ll get to say more later. More now can destroy the rule’s main benefit: guiding jurors to the point of the upcoming story.

 5. Trying to advocate too soon, by criticizing the defendant in any way, or even just using an accusatory tone,

 6. Preceding the rules with anything more than “Good morning.” Say nothing else before the opening rule, especially such blather as “Nothing I have to say is evidence,” or “Thank you for being here,” or “I am privileged to represent Sally Smith.” Especially don’t say, “Opening is like a roadmap.” Jurors won’t think, “Oh boy! A road map! Golly, I can’t wait!” Don’t waste your precious first moments.)

7. Preaching instead of teaching.

8. Dealing with your case weaknesses. Talk about them later (in Part IV of opening, “Undermining the Opposition.” Doing it sooner makes jurors think the case is about its weaknesses, and they’ll never stop focusing on them.

Part I’s rule(s) initiate your layer-by-layer teaching of your case. They relax jurors into their task. You have implicitly given them an irresistible task: to find the bad act. So in the upcoming story, they will find it – because you’ve pointed them right to it without making any accusations. They’ll get to your conclusions on their own.

 That’s the gold standard of persuasion.

 So don’t muck it up. Do exactly as Part I instructs. No more, no less.

——————————————–

(1)   A myth afloat in advocacy-teaching circles is that the word ‘story’ makes jurors feel that you’re telling them fiction. T he myth is absolutely wrong.  In non-fiction contexts, ‘story’ clearly and instantly means ‘true story.’ N o one is ever confused, any more than they are confused by any word that carries different meanings in different contexts. (So in court, “In this case” does not mean “In this box.”  It never even occurs to anyone in court that it could mean box – not even when there are dozens of boxes around.) ‘N ews story’, ‘G ospel story’, ‘T he Story of Lewis and C lark’ – versus ‘Story of the T hree Little B ears.’  In opening, you want to say that you’re going to tell a story because the brain is wired to relax and pay attention when we hear we’re about to be told a story. W e lean forward. W e open our ears. W e let everything else drift to the bottom of our consciousness.  W e settle uncritically into your hands, listening to our favorite thing: a story-teller.  T he brain’s dopamine flow increases.  And not a single juror will think that what you’re saying is meant to be fiction.   N ot once, not ever.

(2) If you persuade the judge to provide preinstruction on the law, you’ll have an easier time connecting the rules to the law, and make yourself the guide to the law as trial progresses.  In addition, once a judge has preinstructed, she will likely be less concerned about how you word it.  T o help you persuade the judge to preinstruct, see P rinciple Six/C/1 of the A B A ’s A m erican Jury P roject report: “T he court should give preliminary instructions directly following empanelment of the jury that explain … basic relevant legal principles, including the elements of the charges and claims and definitions of unfamiliar legal terms.”

(3)   Yes, you can and will get every police officer in the case to admit to this rule. They cannot deny it without violating the law and their own policy requirements.

 ——————————————–

6-2

 Opening. Part II: Story of what the defendant did.

 Once jurors know Part I’s rule(s), they’re primed to hear the story of what the defendant did. That story must be simple, immediate, and indelible.

 And it must contain nothing to distract jurors from seeing what the defendant did.

 You need not be a gifted story-teller. Just learn the guidelines below, stick to them, and practice them over and over.

 Start with absolute KISS: Keep It Simple, Storyteller.

 Simple chronological sequence. The first necessity of keeping it simple: pure chronological order. Forget every variation. No ‘V’ structures, such as, “Let’s leave Sally in her car at noon and go back to 10 that morning to Joe’s Tavern.” No flashbacks, no jumping back and forth in time at all.

 This is because you cannot be maximally (or even adequately) clear with any order but chronological. No writer has ever been. The brain’s only frame for processing events is a chronological frame. If you doubt that, try saying your social security number backwards without having to think hard. Or scramble as few as two or three letters of the alphabet and then try to say it aloud and fast – such as “A B C D E F G H I K J M L N P Q R S T U V W X Y Z.” Go ahead, look away from the page and see what happens when you try to say that fast and loud. In fact, you will have trouble saying it aloud and fast even with your eyes following it on the page – because chronological order is the brain’s imperative.

 Simple chronological order = KISS. Any other order interferes, usually severely.(4)

Simultaneous events: When two defendants have done different things at the same time, first tell us about one, and then say “At the same time ….” to introduce the other.   Jumping from one defendant to the other is clear.  Jumbling the time sequence is not.

Keep track of time sequence. When you say, “On June 17th , the doctor … “ and then go on to say what he did on that day, don’t start the next part of the story with the date, such as: “On June 23rd …” Jurors won’t remember the previous date to compare it to. Instead, provide the comparison: say “Six days later …” That way, jurors know where they are in time.

Further: Place the time-tag at the start of the sentence.

Bad:     “Dr. Brown sees the patient six days later.”

Good:  “Six days later, Dr. Brown sees the patient.”

Develop this as a habit you always use – especially in testimony:

 Bad:     “Doctor, when you got to the house on January 17, what did you …”

Good:   “Doctor, on January 17 when you got to the house, what did you …”

This keeps time sequence clear.

Simple present tense. Neuroscience has recently shown what theater has known for 2500 years: more of the brain listens to a present-tense than a past-tense narrative. “I drove to New York” is past tense. “I drive to New York” is present tense. If you have trouble telling stories in the present tense, ask a librarian to recommend a good novel written in present tense. By the time you’re a few pages in, you’ll be able to do it. Present tense = more intensive listening.

And of course, more intensive listening ==> KISS.

Simple short sentences. No compound or complex sentences. No long sentences.

Defendant’s name.  Start every sentence with a defendant’s name as the grammatical subject.

Active voice.  Continue the sentence with an active, not passive, verb. “Dr. Jones [subject] looks [active verb] into a microscope.”“Ford sells the car.” (Not “The microscope is looked into by Dr. McGuire,” or “The car is sold by Ford.”

One fact.  And as you do with effective cross-examination: one fact per sentence.

Sensory input. To a limited extent, include a specific kind of information in your story: a morsel or two of sensory input strengthens the story’s immediacy. Color, smell, sound, texture, touch, taste. Smell, for example, is our most primitive and protective sense, so we remember smells.

Don’t force sensory input; use it in a natural, unobtrusive way.

The driver gets out of his white truck.

He hears sirens coming.

He smells rubber burning.

 He tastes fumes on his tongue.

His eyes are stinging.

Move forward in time.  Every sentence must be exclusively about what the defendant did that moves the story forward in time (“Dr. Barnes leaves the room”; “Joe Smith drives”; “Mrs. Ranhosky wakes up”).

Events only. Nothing but what the defendant did.

 Beyond that, include only an absolute minimum of embedded information: “Joe Smith is driving a new green Ford Explorer” embeds into the action some information (the vehicle is new, a Ford, and an Explorer). That’s the upper limit. And do it only once every dozen or more sentences. Jurors remember events – acts –and not information. In fact, information takes the attention off of the events, so the jurors end up hearing and remembering neither.

Information bad. Events (actions) good.

Don’t cram in that the car “weighed 4100 pounds and had no traction control, a system invented in 1997 that adjusts for road friction in certain conditions; ’friction’ means ….” That information might be important to the case, but it will kill Part II of opening.

Why? Because there is a relationship between the structure of the brain and the structure of an events story. The brain is built to house events stories. Once an events story is embedded, it houses information added later – if you complete the story of the events before you try to move information in.

So save that information until Part III. (And even in Part III you’ll need far less information than you may think.)

Premature Advocacy: Your story must not seem to try to persuade. You still don’t have standing with jurors to advocate, not even subtly or in tiny ways. Let the events speak for themselves – so that jurors can think for themselves.

As with information, injecting advocacy into your story of what the defendant did throws both the story and you into doubt, and weakens your later advocacy.

 Other things to omit:

 Omit ‘acts’ of omission. “The story of what the defendant did” does not include what the defendant did not do. Including an act of omission (“the driver did not look at the road”) is an accusation. No accusations allowed in the story!

You can include an act of omission if you can frame it as what defendant did instead. So instead of giving an omission – e.g., the defendant did not slow down – reveal it this way:

At six p.m. the Acme Truck driver is driving 75 miles per hour.

The Acme driver sees the speed limit sign.

He sees that it says 60.

He continues driving 75.

The difference may seem tiny but it’s huge: you show jurors only the acts so that they, not you, conclude that the driver chose not to slow down.

Omit anything the defendant thought or felt. In fact, omit everything that a video camera would not see and hear.  It can’t hear thinking or feeling.

Omit (for now) motive: why the defendant did what he did. The camera can’t see that either.  Let jurors figure out motive on their own, because they’ll believe themselves more than they will you. Your story leads them to fill in motive for themselves.  E.g.: “He looks at his watch and steps on the gas.”  You don’t say he’s in a hurry but it’s clear.

For the same reason, omit what was wrong with what the defendant did. Jurors will spot the rule violation for themselves.

You’ll easily and effectively fill the jurors in later on anything they don’t figure out now on their own.  Meantime, keep the story clear and pure: just show us the documentary film of what the defendant did – without a single word of commentary.

 Point of view.

Camera eyes and ears: Show only what a video camera would have seen and heard. Video cameras don’t think, analyze, accuse, or infer. They don’t read minds. They don’t know someone is hungry or angry or in a hurry. They just see someone eating or shouting or going fast.

So limit what you say to nothing more than what a sound movie would record.

Video cameras don’t see or hear that someone is drunk; they just see some staggering and hear some slurred speech.

Video cameras draw no conclusions. That’s the viewer’s job.

The video camera can see someone is reading, and even what she’s reading. The camera cannot show whether the reader likes what he’s reading.

Example:

Mr. Jones, worrying about being late for work, speeds up to 65.

Take out the phrase about worrying – it can’t be seen or heard. Instead, tell us what can be seen and heard that will lead us to the same conclusion:

Mr. Jones is driving to work.

Mr. Jones sees a clock on a billboard 

He sees that it says 8:55.

He presses down on the gas. 

See? We figured it out! Ourselves! We don’t need you – still the least-trusted person in the room – to figure it out for us.

And when the tort-’reformed’ jurors figure it out themselves, they don’t question it – or you. You have not plopped into Premature Advocacy.  You’re just telling us what the video camera saw.

This works the same way even with the most complex matters. When jurors know the rule from Part I and you strip Part II’s story of excess information, the rule remains clear in their uncluttered minds. So they almost always spot the violation as you tell the story.

Example.  Rule: “A surgeon must not cut anything unless he can see it and know for certain it’s what he means to cut.” You need not explain any medicine for jurors to understand the negligence. In light of that rule, here’s how the story of what the surgeon did becomes accusatory without your making the accusation:

Dr. Bladem sees the uterus wall.

He sees the wall is covering his blade from sight.

Dr. Bladem uses his blade to cut something behind the wall. You’ve let the story do the work.

Joshua Karton is his generation’s most gifted and accomplished advocacy trainer, despite stiff competition for that distinction. He teaches that during the story, your ultimate goal is to make the juror desperately want to reach out just before the destructive act, and yell, “No! Stop! Don’t do that!”

We’ve just done that with the cutting example. The juror knows from the Part I rule that a surgeon must not cut what he can’t see. Then:

Dr. Bladem sees the wall of the uterus covering his blade from sight.

The juror easily figures it out: The surgeon a) can’t see his blade, so b) can’t see what it’s about to cut. The juror heard the rule just a little while ago, uncluttered by information or accusations. So almost reflexively he thinks, “No! Don’t cut what you can’t see! What the hell is wrong with you?” The juror is damning the surgeon before even knowing what harm the cut did. And without knowing an iota of medicine, or even why the surgeon was doing the surgery.

Je’ez, counsel. What more could you want within the first few minutes of your opening?

So don’t blow it. Don’t shove Too Much Information into the story – such as the purpose of the surgery, the structure and description of the anatomy, the medical technology of the operation, or all those useless medical terms.

Just cut to the chase: from rule to what the defendant did, taking us quickly to the destructive act. Result: jurors will actually be hungry to hear the rest of your information later. And they will find your later explicit accusations delicious, not suspicious.

Subordinate your client. Minimize mention of your client. The case is about what the defendant did, not about your client.  When possible, leave your client entirely out of the story until the point at which the defendant hurts him.  If your client must be in the story earlier, position him as a passive receiver of what the defendant did.

I know you are eager to personalize your client and make the jury feel his pain. Well, the defense is even more eager for you to do that. Do not oblige them. Jurors believe they’re here to decide who did something wrong. To do that, they will start by using whatever information they get. If that information is about your client, jurors will start to blame your client – even if your client did nothing wrong, and even if the defense is never going to claim he did.

So never say,

John Howard [plaintiff] sees that a mole on his neck is getting larger. John goes to a dermatologist.

John shows the dermatologist the mole.

By now, some jurors are already blaming John, and may never stop. Can you figure out how before looking down at the footnote?(5)

Never underestimate the drive and imagination that a tort-’reformed’ juror will use to find ways to blame your client. That’s because, as Reptile explains, anything a tort-’reformed’ juror can find (or twist) to blame your client helps the juror feel that he’s protecting himself from the survival-level threat you and lawsuits represent to him.  (See Reptile, Chapter Three.)

The more you subordinate your client, the less the jurors will think about blaming her. That means they remain more open to seeing why they should blame the defendant. That’s why the story in Part II is solely about what the defendant did. Don’t let the jurors dwell on your client until much later in opening.

Don’t even use your client’s name in the story. So:

Dr. Harvey sees a patient.

Dr. Harvey examines a mole on the patient’s neck.

Subordinate everyone else, too. Keep attention solely on the defendant. So if you’re suing – among others – Dr. Harvey, use his name.  If you’re suing the doctor’s employer but not the doctor himself, refer to the doctor as “Memorial Hospital’s doctor”; don’t use the doctor’s name in the story.

Example: A premises liability case – three men beat an elderly couple in the couple’s motel room. You’re suing the motel.

Do not start the story this way:

Two A.M. January 12, 1998.

Three Central Prison inmates shoot a prison guard through the head. The prisoners escape over the prison wall.

The prisoners run.

The prisoners get to an intersection. The prisoners surround a gray Buick. The prisoners pull the driver out.

The prisoners shoot her in the chest and abdomen. The prisoners drive off in her Buick.

The prisoners lose their pursuers.

The prisoners park behind the C’mon Inn Motel. The prisoners shove open the door to Room 123.

The prisoners demand money from the couple inside. One prisoner beats John while . . . .

Good storytelling. The jury will listen, remember, and get the full horror of what the prisoners did. But this case is about the motel owner who installed flimsy locks and never told guests of recent break-ins. If you start with the story as narrated above, by the time you get to what the motel owner did, the jurors will be irrevocably furious with and totally blaming the escapees.

You’ll have created your own competition.

So instead:

Let me take you back to November 14, 1998.

The owner of the C’mon Inn Motel opens a letter from the police department.

The motel owner reads that there have been 14 recent break-ins in the area.

A week later, November 21, the motel owner goes to Home Depot.

The motel owner looks at a selection of door locks.

The motel owner looks at twelve-dollar locks. The motel owner looks at six-dollar locks.

The motel owner looks at $4.95 locks.

The motel owner buys 26 three-dollar locks. Two months later, nine in the evening.

The motel owner is working at the check-in desk.

The motel owner tells an elderly couple, “Yes, our sign out front is true, this motel is absolutely safe. Nothing to worry about.”

The motel owner checks them in.

Six hours later, three in the morning:

The motel owner hears screams from a guest room.

Guess who the jury is blaming at this point? They don’t yet even know who the victims are, or what is making them scream. But the jury is already blaming the defendant.

This approach is a far cry from the usual opening that starts with the elderly couple – your clients – leaving for their anniversary trip, traveling all day, etc. Jurors don’t need to be distracted by any of that. An effective story leaves jurors with nothing on their minds except what the defendant did.

Please write that in big letters on the surface of the desk where you write your openings:

An effective story leaves jurors with nothing on their minds except what the defendant did.

All the rest comes later, after primacy of belief has settled in the way you want it to: that the case is about what the defendant did.

Don’t use pronouns. For many reasons, pronouns in opening and closing are bad. Use the defendant’s name or title: “Dr. Smith” or “the doctor.” With every mention, your client is merely “the patient,” “the pedestrian,” “the homeowner.” Never “she” or “he.” “I once knew two guys who got in a terrible fight.  Once pulled a knife and stabbed the other guy and then dropped the knife in front of the other guy.  So he picked up the knife and stabbed him and a cop came and arrested him, and boy was he angry!”

Telling the Story.

Set the scene. Start your story by saying, “Let me take you back to ____________.” Then, in a few short phrases, set the scene.

Let me take you back to October 12, 2003. [I hope that will be the last time you tell us the year. Many lawyers love repeating the year over and over, like a deranged calendar clock. Quit it.]

Hennepin Avenue, downtown Minneapolis. Clear weather, dry street.

Smell of snow in the air. Two in the afternoon.

Acme truck driver John  Smith is driving his steel-blue tractor-trailer. Acme driver Smith comes west over the Hennepin Avenue Bridge. Acme driver Smith looks down at his GPS map.

Setting the scene pulls the juror right into the story.

When does the story start? It starts with the first thing a defendant did that led to the harm. That can be 30 seconds in advance or 30 years. From then on, include only what we need to know to make the journey to the harmful act. So:

Let me take you back to winter, 1991.

Headquarters of Acme Trucking.

Vermont.

The President’s office.

Nine in the morning.

Acme’s President, Alan Acme, starts a staff meeting.

Mr. Acme says . . .

Now tell the story of the company making the decision to amend its hiring and training policies. Then take us step by necessary step to the driver coming west into downtown Minneapolis.  You may have to skip a decade, which is fine:

Now let me take you up to 2003 …

How long? Some stories are a few sentences long. Others 20 minutes. Some, much longer. But remember: less is always more. Less = KISS. Tell us just what we need to know to have an overview of what the defendant did.

Each sentence is important. In telling the story, give each sentence its own importance. Do not subordinate or rush through a sentence to get to a more important sentence coming up. When you do that, jurors start listening carelessly, because they know by your own subordination that only some of what you say is important.

End of story. After the harm is done, add a two or three sentence overview report of what happened to your client. This is when to first use your client’s name.

Examples:

The pedestrian – Jonathan Smith – was thrown against the concrete wall. The wall bounced him back onto the highway. He ended up with seven broken bones and permanent brain damage.

Or,

John’s knees were broken and they’ll never properly heal.

Or,

Jack was killed.

Or,

Allison’s neck was injured and took a year and a half to get better.

Save the rest of the harm for later, Part V.

The next thing the defendant did. Carefully research so that you know everything that happened right after your client is hurt. For example:

A passing motorist calls 911.

Another passing motorist rushes to Jane’s side.

He waves traffic away from her.

Meantime the Acme driver sits in his truck

talking with his boss on his cell phone.

In a med mal case, did the hospital immediately send in a social worker to help the family deal with what had happened? Or instead did the hospital send in a risk manager?

Remember – still, no advocacy. Report these after-acts in Cronkite-journalist, non-advocate mode. Just say what the defendant did.

First person stories. Some trial advocacy teachers tell you to tell your opening story in the first person – ‘I’ instead of ‘he’.  But don’t do it in opening; save it for closing.  While first-person stories can sometimes work in opening, they more often backfire in a big way.  To cynical, tort-’reformed’ jurors, a first-person story in opening – before you’ve earned the standing to be trusted – comes across as a manipulative trick. Jurors can resent it, and for the rest of trial will carry the primacy of belief (see p. _) that you are manipulative.

Moreover, since your opening story should be the story only of what the defendant did, you’d have to tell the defendant’s story in the first person. That lands you on objectionable ground: you have no evidence of his internal point of view. You’d be putting words in his mouth and thoughts into his head.

Besides, why give the defendant’s point of view?

Finally, it is difficult to confine a first-person story solely to what is seen and heard, as you must with your opening story. You’d have to detour into what the first person thinks and feels – which is conjectural and conclusive, neither of which you want in your opening story.

That said, however, first-person story-telling can be terrific in closing. See Appendix _______ for a sample.  I think I first taught this in 1973 at the University of Minnesota Law School.  The best place I know of to learn this method now is Spence’s Trial Lawyers College (even the weekend sessions around the country), though we may differ on the prudence of using the technique in opening.

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(4) In analyzing your case for yourself, and in your closing to help jurors understand causation, you can use a technique called B ackw ards A nalysis, the standard tool for theater and film (i.e., story) script analysis.  See Theater Tips and Strategies for Jury Trials, Third E dition.  D avid B all.  P . 171 ff.  (N IT A 2003.)  A lso see B ackw ards and F orw ards. D avid B all.  P . 15 ff.  (U niversity of Southern Illinois P ress 1983.)

(5) They are thinking, “John probably waited too long before going to the dermatologist.” So John’s case has already taken a nosedive.

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OPENING, PARTS I AND II – EXAMPLE

Here is an example of rule + story. (The // marks are pauses.)

Good morning. //

A driver has to watch the road //

and see what’s there to be seen. //

If a driver does not //

and as a result hurts someone //

the driver is responsible for the harm. //

Now let me tell you the story of what happened in this case. //

Let me take you back to December 12, 2002. //

Interstate Highway 85 in Durham. //

Wet road. Rain and wind. //

Just past midnight. //

Acme Company truck driver Howard Littlejohn is driving south //

in his eighteen-wheeler tractor trailer. //

The Acme driver passes the Gregson Street Exit. //

The Acme driver pushes in his cigarette lighter. //

Acme’s driver feels around the seat for cigarettes. //

Acme’s driver leans down to feel around on the floor. //

He finds his cigarettes. //

Acme’s driver sits up with his pack of cigarettes in his hand. //

Acme’s driver looks back at the road. //

Acme’s driver sees his truck has drifted partly onto the shoulder. //

Acme’s driver sees a red flare in front of him on the shoulder. //

Acme’s driver sees a disabled pickup truck beyond the flare. //

Acme’s driver sees someone changing a tire on the right side of the pickup truck. //

Acme’s driver swerves left. //

The Acme driver’s front right bumper clips the pickup truck. //

The Acme truck’s impact knocks the pickup into the man changing the tire. //

The man changing the tire is Jim Franklin. //

The impact breaks Jim’s neck, leaving him permanently paralyzed from the neck down. //

As Jim lies on the pavement, Acme’s driver is sitting in his truck talking to his boss on the phone.

6-3

Opening. Part III. Who we are suing and why: The safety rules the defendant(s) violated .

Start of advocacy.

First, explain who you are suing. It’s amazing how often this is left out!

We are suing truck driver Ed Littlejohn for three reasons.

We are suing his employer, Acme Trucking, for two reasons.

You finally get to point fingers of blame! You’ve achieved immunity from Premature Advocacy.  If until now you have allowed jurors to come to their own conclusions, not yours, you have earned the privilege and standing of being an advocate. You get that not from your law degree, but from avoiding Premature Advocacy in Parts I and II.

Just do the transformation gradually.

And keep control! Don’t yet strip bare nekked and jump into stream-of-consciousness, not during this crucial part of opening. Instead, adhere to Part III’s five-part “Why-We’re-Suing” paradigm. It’s easy.

Run all five parts of the paradigm in their full sequence for each violation by each defendant. (Remember that every act of negligence is, by definition, the violation of a safety rule. See p. ______.)

The Why-We’re-Suing Paradigm.

A. What was the rule-violating act?

I. Tell us the rule and how the act violated it. (No need for present tense.)

ii. Tell us how you know the defendant did that act.

B. Without referring to your specific case, tell us what’s dangerous in general about violating this rule, and who says so?

I. Unless it is a common-sense rule (such as that drivers have to look where they’re going), tell us who says the rule is a rule: your experts. And if you did your job in discovery, the defendant and her experts will have already agreed it’s a rule. So will fact witnesses on both sides. (See Rules of the Road and Chapter Six of Reptile.)

ii. Tell how the rule protects people. (What makes violating the rule dangerous?) And who says so?

iii. Tell what your experts will explain about how the rule works and how violation endangers – by reference to analogous situations very different from your case. Explanation by analogy is always acceptable and almost always an excellent way to explain anything. For example, the inner-city movie theater’s premises-safety rules violation is identical to rules for suburban schools and malls. The ob-gyn’s violation of the safety-rules within a Differential Diagnosis (such as “must rule out, not guess out”) is best illustrated by analogy to other medical situations – such as chest pains in an elder patient in an emergency room. The analogy’s purpose is two-fold: for the jury to clearly understand the rule and the danger of violating it, and to see that the rule applies to their own circumstances, not just to someone who was in your client’s position. (Again, this is fully explained in Reptile.) You can do this with every kind of negligent act, though at first you may need assistance. So see, for example, ResearchExchangePartners.com, the communications and resource center for attorneys learning to master these approaches.

iv. Show how dangerous it is to violate the particular rule. This is determined not by the harm it did in your case, but by a) the maximum harm it could have done and b) how often it causes harm. These are the major factors that every safety commission takes into account. A driver driving 12 mph who looks away from the road and hits your client stopped at a light does not sound like much of a menace. But that particular violation injures and kills thousands every year, so is extraordinarily dangerous. And how serious is it? Well, a driver missed seeing a three-thousand- pound vehicle with bright red tail lights; he certainly would have missed a group of four or five children in the crosswalk. That’s the violation’s measure of danger.

C. How did the defendant’s violation of this rule cause harm in this case?

I. Explain what the defendant did that violated the rule.

ii. Explain how violating the rule caused the harm (not medical causation, but how the violation caused the injurious event). Explain how your experts know. (An expert’s conclusion – here or on the stand – is useless until the jurors understand that basis for the conclusion. See p. ________.)

D. What should the defendant have done instead of violating the rule?

I. Specify the act that would have constituted obeying the rule. Jurors tend to give more money when the defendant could easily have avoided the wrongdoing. When avoiding the wrongdoing seems hard or complicated – or even difficult to understand – jurors give less. So show how easy and simple it would have been for the defendant to have done the right thing. Make jurors feel that they themselves could easily have done the right thing in the defendant’s place. This is where you must use extremely simple language: “Stick the label here.” “Follow this rule.” “Give the test before the drug.” “Look what you’re doing.”

E. How would that have helped? (Cite experts unless it is common sense.)

OPENING PART III – EXAMPLE (6)

Introduction:

We are suing Acme’s driver, Howard Littlejohn, as well as Acme itself. Acme operates 3,274 tractor-trailer 18-wheelers in every state from coast to coast.

A. What was the rule-violating negligent act?

I. Tell us the rule and how the act violated it.

The first reason we’re suing Acme’s driver is that he violated [or “chose to violate”] the safety rule requiring drivers to have their brakes checked every 24 hours of operation.

ii. Tell us how you know the defendant did that act.

Mr. Littlejohn’s log records and Acme’s shop records show that Mr. Littlejohn let more than 50 hours go by before having the Acme truck’s brakes checked.

B. Without referring to your specific case, tell us what’s dangerous about violating this rule, and who says so?

I. Unless it is a common-sense rule, tell us who says the rule is a rule.

Federal Regulations require interstate truck drivers to have their brakes checked every 24 hours of operation. Ezra Harrington, director of the Northeastern Trucking Safety Association, will tell us that every 15 hours is more advisable to keep from needlessly endangering the public. He will also explain that his conclusion is more likely right than wrong – and that beyond that, he’s certain. [See p. ___________.] Acme Trucking’s own President, Owen Wheeler, will admit to us that all interstate trucking companies must follow the Federal Regulations.

ii. Tell how the rule protects people. (What makes violating the rule dangerous?) And who says so?

When a driver does not have his brakes checked every 24 hours, the odds skyrocket that one or more of his brakes will fail. Truck Safety Expert Harrington will explain that if this happens in an emergency stopping situation when the driver needs fast and full braking, the failed brake will diminish the truck’s stopping ability and send the truck out of control. Again, Dr. Harrington will say that this conclusion is more likely right than wrong, and that beyond that he’s certain: the truck goes out of control because when brakes stop one side’s wheels better than the other side’s wheel, the truck veers out of control

iii. Tell how the rule works and how violation of the rule is dangerous. Use analogies to other situations.

Dr. Harrington will also explain that this is why all mechanical equipment – anything that human beings manufacture – can break or wear out if not inspected and repaired at proper intervals. For example, he’ll tell us that allowing a gas furnace in a school or home to go uninspected longer than allowed can lead to a leak that can kill everyone in the building. So no one should ever exceed the recommended time between safety inspections for anything – because it needlessly endangers people.(7)   Everything wears out, and that often turns equipment dangerous.

C. How did the defendant’s violation of this rule cause harm in this case?

I. Explain exactly how the defendant violated the rule.

Instead of driving into any of the inspection centers along his route, Acme’s driver continued without stopping – so he’d get to his destination earlier.

ii. Say again how you know that this is what the defendant did.

Here is his driver’s log. [show] You can see that are no stops in the 50 hours of operation leading up to the wreck.

Here is the truck’s black-box print out, showing the same thing.

iii. Explain how violating the rule led to the event that caused the harm. Explain how your experts know.

We asked Dr. Eliot Klizan to look at what happened. He’ll explain that when the Acme driver had to slam on his brakes, the bad brake in the left front wheel did not work. So the right side of the truck slowed sooner than the left, sending the truck sharply to the right and out of control.  He’ll show us a neat little demonstration of how that happens. He’ll explain that he’s not only more likely right than wrong about this, but 100% accurate.

D. What should the defendant have done instead of violating the rule?

I. Specify the act that would have constituted obeying the rule.

Acme’s driver was required to have the brakes checked, as the safety rule and Federal Regulations demand.

ii. Explain how your experts know.

Everyone in the case will admit that if the brakes had been checked, the problem would have been found and fixed. That’s the purpose of safety inspections at the proper times.

E. How would that have helped? (Cite experts unless it is common sense.)

If the brakes problem had been found and fixed, the truck would not have swerved, so the truck would not have veered into John’s car in the next lane.

Then do it all again for the next reason you are suing the driver:

The second reason we’re suing Acme’s driver is that he violated [or “chose to violate”] the safety rule that requires him to keep his eyes on the road at all times and to see what is there to be seen.

Etc.

Here’s the final reason you are suing:

The final reason we’re suing is that the defendants refuse to provide full and fair compensation for what they did. So we’re forced to bring them to trial.

This does not refer to negotiations. It is simply a statement of fact.

Failed to follow …. Don’t say that someone “failed to follow” the rule. Say they “violated” or “chose to violate”  the rule.  A rule violation is always intentional. Jurors forgive failure, but not intentional violation. If you trace back the reason for an apparently inadvertent violation (accidentally letting the mind wander), you will always find that it was a matter of choice (choosing not to maintain control of one’s attention).

Expert conclusions (never call your expert’s conclusion an ‘opinion’). When citing an expert’s conclusion in this or any other section of opening, explain its basis. Be brief but complete. Never just say, “Dr. Nebelthau will tell you that if Dr. Larson had spotted the cancer in time, Sally would have lived.” Explain how Dr. Barnes knows. “Dr. Barnes will show us medical textbook diagrams of how

fast this kind of tumor grows. He’ll explain that we know its size when Sally died. And we know its growth rate. So working backwards, we can calculate that when Dr. Larson saw it in 2000, it was big enough to see but small enough to have been removed before the cancer spread. He’ll do the calculation for us. And every doctor on both sides of this case will testify that this kind of tumor does no harm if it’s taken out before it spreads.”

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(6)   P lease note that this and other examples in this book are not intended to provide guidance about what the rules applicable to certain facts might be.  T he examples are strictly to demonstrate methodologies.

(7)   T his is called “spreading the tentacles of danger.”  It’s one of the most important parts of opening. Another example : the prison guard who illegally beats a prisoner is also violating the very rule that protects our kids from predator-teachers or rage-driven teachers in school, protects our senior citizens in rest homes, etc. Y ou want to show the dangers we are all in when the specific safety rules are violated. Y ou need not preach community safety; just use analogies that get the jurors to see the point for themselves.

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6-4

Opening. Part IV: Undermine. (What is wrong with the negligence defenses?)

This is where you provide your side of every defense negligence contention. (Undermining causation and damages defenses comes later.) Any defenses that jurors hear first from the defense will instantly take on an aura of truth.(8)

When the first a juror hears about a defense point comes from the defense, the juror will conclude you hid it. That makes you dishonest. So with rare exception, everything you do not want the jury to believe should be covered in this section.

Moreover, if the defense surprises you with an important contention you did not anticipated, do all you can to dispose of it as early as possible in testimony.  If you don’t, it can undermine everything your witnesses say, even on other topics.  An important defense contention can offer jurors an easy way to decide the case; if they take that way, they’ll barely listen to testimony from your side.  So when a defense contention surprises you in the defense opening, it may merit altering your witness order to allow you to attack it as soon as possible.  Otherwise, by the time you get to it, it can be too late.  Fixing a leak after a ship is half full of water does not empty out the water.

Caveat 1: Do not breathe a word of your undermining topics earlier than Part IV of opening. Jurors first need your entire affirmative negligence case under their belts.

Caveat 2: Do not use the undermining section to reprise affirmative points from Part III. Just tell us what’s wrong with the points you are undermining. No need to say, “One of the things we had to determine was whether what we said before is accurate.”

Caveat 3: Don’t just tell us why your experts are right about each undermined point. You must also tell us why the defense is wrong: What’s wrong with their analytic process or facts? But do this without discussing what the defense is going to say.  You want to show that you dealt with this possibility before the defense brought it up.  So say something like “For anyone to think there was an earlier back problem, he’d have to ignore X information and leave out the Y part of the required analysis procedure.”

How to undermine.

Never say, “You will hear the defense tell you X, but . . . .”

That wording is dead wrong. It makes jurors believe that you needed the help of the defense to figure out the problems in your case, and now you have to desperately dream up ways around those problems. If that happens, some jurors will wonder whether you’d have taken the case in the first place if you’d been thorough and smart enough to discover its problems yourself.

So instead of saying, “You’ll hear the defense tell you . . . ,” explain that you took the initiative: that

before deciding to come to trial, you considered and researched all the possibilities.

Here’s how:

First, say:

Before we decided to come to trial, several things had to be determined.

Second, state a negligence contention to undermine and why it was important to the case:

For example, was there ice on the road that afternoon? Because if there was, it would explain why the Acme truck hit John. So we would not be suing Acme. So it had to be determined whether there was ice.

This shows that you took the initiative to investigate. It makes your conclusion credible. And it keeps you from seeming defensive.

Caveat. Don’t raise a non-pivotal defense contention to a pivotal level. Once you say “ . . . there’d be no reason for us to come to trial,” you make the issue case-pivotal – even if it is not. So say “no reason for us to come to trial” only when the issue is actually pivotal. When it is less, say something like:

Because ice would have been one reason the Acme driver hit John.

Third, explain what you did to determine the truth. Cite fact witnesses, experts, and whatever else you have. (Continue to refrain from mentioning the defense. Sound like you dealt with this before the defense got involved.)

So we asked the two motorists who stopped, as well as the state troopers and both EMT workers on the ambulance crew. All six will be here to tell us there was no ice. We also contacted the National Weather Bureau, and they’re sending a meteorologist to bring temperature charts here that show it never went below 35 degrees, much too warm for ice.

Fourth, explain what the result means:

That’s how it was determined there was no ice, so we could come to trial.

Sometimes there is only one defense negligence contention. Usually there are more, sometimes many more. Undermine them all.

The test of how well you did this is whether the defense attorney will appear awkward talking about them in her opening. If not, you have not done your job.

Caveat majeure. Remember that it is never enough to just say why your experts are right. You have to explain what is wrong with the defense conclusion.  So:

Not enough:  We asked our expert, Dr. Oshyaramon, whether the truck could have slid on the ice. He said no, it was too warm that day.  He’ll show us that the weather records from every weather station within 50 miles shows temperatures well above freezing.

But this does not help when the defense contends that wind sweeping over a puddle on a 35-degree day can, by increasing the evaporation rate, cool the water enough to freeze it. If you don’t deal directly with that point, you fail to undermine. So you must explain.

To make sure there could have been no ice, it had to be determined whether there was enough wind to increase the evaporation rate of the water. This is because evaporation can cool water, sometimes enough to freeze it.  So we asked our weather expert. He told us, as he’ll testify later, that there was almost no wind – and even if there had been, it would have to have been blowing at more than 100 miles per hour that day to increase evaporation enough to freeze the water. (9)

Don’t miss anything. Some of the most potent defenses are those the defense will not use. For example: “The plaintiff shoulda got a second opinion!” That’s a hard one for the defense to proffer, but is still dangerous for you, because jurors will come up with it on their own. So you have to undermine it.

Another thing that had to be determined was whether Sally should have gotten a second opinion. So we asked four doctors if Sally had been in a situation where they’d advise a second opinion, and they all said no – that second opinions are reserved for something such as when a doctor advises surgery – not for when a doctor says the tests show no cancer.

Sometimes the defense will make absurd claims that fly in the face of the law. For example, they will say that your med mal client signed a consent form, so his family should not be here suing. “He accepted the risk of death!” Jurors accept this outrageous but common defense point because it’s simple.  They come up with it on their own even when the defense never mentions it. So you have to deal with it in opening.

One of the things we had to determine had to do with the consent form that John signed. It said he accepted the risk of death. So it had to be determined if that meant the doctors cannot be held responsible. So we asked the doctors themselves, “Are you ever allowed to ask a patient to consent to the risk of death by your negligence?” We also asked the woman who runs the hospital. And we asked our expert on hospital administration. All of them explained exactly what every lawyer – including Mr. Defense Attorney – learned in law school: that an agreement asking a patient to accept the risk of death by negligence is an illegal agreement, and would also violate basic medical ethics. They all explained that a consent form is only about unavoidable harm. So if a doctor’s negligence – which is always avoidable if the doctor follows the patient safety rules – causes an avoidable death, the doctor has agreed in advance that he will be responsible for the death, and not blame the patient.

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(8)   In fact, some ‘just plain facts’ that can hurt you also need to be undermined in your opening. For example, you can be miles in front by the end of your opening – but when your client is an illegal immigrant, or smokes, or uses street drugs, common survival instincts take over and you will be losing within the first 60 seconds of the defense opening when jurors learn about it.  This is less likely to happen if you deal with it in your opening. (See __[ch 5 reference]________ for how to deal with such problems.)

(9)   A gain, I am not offering this ‘science’ as real. It is for illustration only.

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6-5

Opening. Part V. Causation and damages.

In terms of time, you’re about 75% through opening.

The Opening Template’s first four parts prepare jurors to accept Part V: causation and damages. Don’t jump the gun. By the time you get here, jurors see that the kind of thing the defendant did represents a community danger. They’ll want to minimize that danger. Part V gives jurors the way to do that: simply force the defendant to pay full and fair compensation (but don’t use those words with the jury).

The damages part of opening – as well as the damages part of your entire case – is not about throwing tons of harms and losses at the jury and hoping it sticks.

First, explain why you’re talking about harms and losses. It’s obvious to you but not always to jurors.

Second, explain step-by-step how the negligence damaged your client’s body and mind (mechanism of harm).

Third, show how those damages intrude(d) on your client’s life.

Fourth, detail the necessary fixes and helps, and what your client has gone through and goes through for their sake. Surgery, for example, adds to the harm because it hurts.

Fifth, show us all that cannot be helped or fixed.

A. Introduction to harms and losses.

So start by explaining – even if you explained in voir dire – why you are required to tell them about the losses and harms.

Your verdict form will ask how much money you will allow in the verdict.

To figure it out, you can take into account only one thing: the level of the harms and losses. Nothing else.

Mr. Defense Attorney agrees. At the end of trial, Judge Maxim will tell you it’s the law: harms and losses only.

Everything else is outside the box.

So I need to show you those losses and harms, and how severe they were. You need to know this as the basis for your decisions.

I’m not showing you the harms and losses to get your sympathy. Sympathy is outside the box. You can feel sympathy, of course – but you cannot factor it into your decision-making. Same with anything else outside the box: you can think it or feel it but you cannot let it affect your verdict.

So during trial, here’s what you’ll hear about the harms and losses . . . .

This reinforces (or without jury voir dire, it establishes) your harms-and-losses-only theme (p._______).

It also tells jurors why you’re showing harms and losses. If you don’t, some jurors will think you’re talking about harms and losses to get sympathy to move them to help you win liability.

B. Mechanism of harm (how did the negligent act cause each injury?).

Mechanism of harm establishes causation and harm simultaneously. Each supports and reinforces the other.

Tone: clinical.

Explanations: simple.

Language: no medical or other technical terms.

‘Step-by-step’ means to show how each domino falls into the next domino. Start with the negligent act and explain how each domino pushes over the next – all the way up to each of the physical damages to your client’s body.

Did a rear-end collision cause brain damage? Then take us domino-by-domino from the negligent act impact to brain damage.(10)

Don’t turn this into a physics or medical course. But don’t leave any domino gaps.

This is your causation chain. The defense wants the causation chain to be hidden inside a mysterious black box. You need to rip away the sides of the box and shine a light on those dominoes.

As you run through the dominoes, leave your client out of it. Just describe in general the domino mechanism by which, say, an impact forces itself through layer after layer of skin, then bone, etc. Explain the progress of the undiagnosed cancer a) growing into adjacent tissue, b) from where it migrate into the lymph system and c) then is carried by fluids to be d) planted in the lung where it e) grows and f) interferes with the how the lung works.

Explain how the force of the rear-end collision is transferred step-by-step through parts of the car – so that we see how it gets to a driver’s neck. (A good high-school physics teacher can provide inexpensive and extraordinarily credible expert testimony about this process, and even create a ‘Mr. Science’ exhibit to demonstrate; see __________.)

It’s the same process for every kind of case. Here’s how the dominoes 1) stay simple, 2) leave the client out, and 3) require no medical or technical terms in a medical case:

a. Dr. Cuttem cuts blood vessel b. –> bleeding

c. –> less blood in circulation system

d. –> lower blood pressure

e. –> not enough pressure to get enough blood to brain cells f. – etc.

Use simple line-drawing slides or boards.  There is hardly ever any reason to use elaborate, expensive graphics. Simplicity is always best, especially with exhibits. (See _________ .)

Death case: Take us step-by-step from the ‘insult’ (but never use that word in trial) to the ultimate cause of death. Then go step-by-step from the death to the survivor’s harms and losses caused by the death.

Your dominoes must traverse the space from the negligent act(s) to each harm. The defense wants that black-boxed so they can beat you on causation. So you need to show the dominoes in opening. By testimony it’s too late, because jurors who think you have no causation don’t bother to listen to your case.

The dominoes solidify causation.

They also let jurors go through the severity of the injury as it happened.

And within the template, they help position the injuries as emblematic of the harm that violations of the rules can cause to anyone. (See Reptile.)

C. Personal consequences of each injury.

This is where you put the jurors into your client’s shoes.  This is easy to do without violating any Golden-Rule prohibitions.

Start by using the dominoes to show the process from physical harms to all the rest: everything that has affected your client’s life. That shows, say, how the negligence led to dead brain cells and then to a ruined memory. Now show how that ruined memory hurts your client’s life. Or you have just shown us how the negligence led to broken bones, pain, and inability to walk. Now show us those things intruded on your client’s life.

This is where things get personal and specific. You can’t be a lawyer reciting deficits you know nothing about them except the facts. You have to make yourself deeply and personally involved with your client so you can tell his story, not just narrate a report. Do you know what broken bones feel like? What they do to your everyday, moment-to-moment life?

Have you plenty of time with your client to feel close to his harms? Have you asked him and his family to educate you – and in their home, not your office? If not, you aren’t ready to talk about your client’s harms to a jury. You are, after all, a personal injury lawyer. So you must know and empathize with injury. You cannot convey the enormity of harm to a jury when it’s just an intellectual concept to you. (See _______________.)

Connecticut’s Ernie Teitel advises that you spend days in, say, the kitchen: the center place of home life, where you can learn about your client’s family. Make yourself part of the day’s routine, so you can be the champion of people you are part of.  You have no higher calling.

This short section of opening demands a lot of you. You must become a comprehensive expert on the life consequences of your client’s injuries. Don’t pull out all the stops in opening, but do lay the groundwork for testimony and closing. The consequences to your client’s life are the living consequences of the defendant’s safety-rule violations. That gives jurors their impetus to complete the equation.

For that to happen, you must be personally as invested in, and as expert about, the intrusions on your client’s life as you are about the violations.

Undermining defense causation and damages contentions. As you come to each point, undermine any causation defenses in the same way you undermined negligence defenses:

Before coming to trial, it had to be determined that the problems with John’s spine did not come from something before the wreck. To find out, we asked Dr. Upland, his personal physician, who will explain that _____________________.

And here’s how he knows he’s right ________________________.

Support your conclusions. Conclusions alone are not worth the air it takes to speak ‘em – until you explain why they’re true.

Remember that when undermining, it’s never enough to explain only the favorable conclusions of your experts; you have to explain what is wrong with the reasoning – the step-by-step dominoes – of the other side’s experts: where did the defense expert go astray in following the required analytic steps to get to a valid conclusion?

As with undermining the defense’s points about negligence, attack the defense ‘expert’ in a way that does not mention the defense or its witnesses, or even hint that they know about that defense. So again, “In order for anyone to come to the conclusion that there was an earlier back problem, they’d have to ignore X information and leave out the Y part of the required analysis procedure.”

Your experts, or a non-witness medical consultant, can tell you the steps necessary to go from evidence to medical conclusions. This will tell you what to probe for in depositions of the defense medical ‘experts’. The goal is to find the required steps the defense omitted or did wrong. Get your expert or consultant to explain each step and what happens when that step is omitted or done wrong – and then show that that’s exactly what the defense ‘expert’ did. (Do the same for your earlier negligence undermining of every kind of defense ‘expert’.)

Example: In any medical analysis, the first required step is for the expert to put himself in a neutral frame of mine.  Step two: gather all available information. Defense medical experts often don’t do step one – and many times they don’t even do step two, including when they bill for step two! (That’s part of their nifty sub-rosa deal with the insurance company).

Tell us that your expert will explain the following:

1. The rule says to gather all available information,

2. Why that rule exists

3. Who says it’s a rule

4. How violating the rule also violates necessary clinical or medical research or analysis requirements

5. In general, how violating that rules results in incorrect results

6. And how violating that rule resulted in the specific incorrect results in this case

Of particular use in learning to do this: Dorothy Sims’s Exposing Deceptive Defense Doctors (James Publishing).

Malingering, symptom exaggeration, etc. When you must fight implications (or outright accusations) of malingering, symptom exaggeration, ‘litigation syndrome’, and other such junk-science detritus, Sims’s book will be of great help. So will Rick Friedman’s masterful Polarizing the Case.

By adding Reptile into the mix, you’ll have the techniques to show (without necessarily being explicit about it) that the defense’s very manner of defending the case creates a public menace which the jurors can squelch merely by means of a fair compensation verdict.

D. Fixes and helps.

Cover all past/present/future care, therapy, and other measures necessary to restoring as much of the plaintiff’s functioning and normal emotional state as possible. Life care plans, medical bills, doctor’s reports and orders, safety necessities (people with broken legs can’t run from fires, so need someone with them at night), etc.

When appropriate, explain why your client’s current (uncompensated) situation cannot provide adequate care, comfort, and safety. For example, cite your expert’s explanation as to how the family does not have the training to provide a decent level of care, safety, and comfort. Cite the wife’s worries about this. And tell stories of bad things that have already happened that would not have happened if there’d been trained people in place.

Minimum life-care plan. A life-care plan is invaluable. With no formal life-care plan, make your own list. Explain each particular harm that money will fix or help.

Ask your life-care expert for a minimum life-care plan. This does not mean the expert should remove anything. It simply means she should be able to explain (as you will in opening) that a minimum life- care plan provides the minimum humane level of care, comfort, and safety. This lets you argue that “ . . . two or three times the cost of the minimum life-care plan could be spent on the best care, comfort, and safety.” Give examples of what is not covered: “If in ten years the Mayo Clinic discovers a way to help Jack walk again, the cost is not in the minimum life-care plan.”

Never call the plan a ‘life-care plan’. Throughout trial, call it the ‘minimum life-care plan’. If your life-care expert can’t or won’t do the same, don’t use her again. And warn your colleagues not to.

Pay particular attention to safety. Jurors can be quite willing to go beyond the minimum life-care plan to provide better safety. You can lead jurors to allow money for good alarm systems, night-time attendant care, and conservative medical monitoring, even when these things are not in the minimum life-care plan.

‘Minimum life-care plan’ turns your life-care figure into a floor. (See also _______________2nd  ed ref: 7.7 and 9.6.)

Ed – please put next paragraph in a box – black background, white letters:

BLACK-BOX WARNING:  Never use a life-care planner who sells the services she proposes in his plan.  Unless the defense and the jurors are asleep, such a life-care planner’s obvious financial motive undermines her credibility.  You wouldn’t believe her yourself.

Life expectancy. One of the most disgusting of defense tactics is the gruesome claim that “Well hell, the harm is so bad that this pestering plaintiff is gonna die soon anyway, thank God, so don’t provide care for too long.” Defense attorneys make this argument as if there is no hell, making the rest of us hope there is. Such a claim is absurd from a public policy point of view, because it encourages people and companies to hurt their victims not just a little, but badly enough to kill them within a few years.

But the claim is a confession by the defense that they shortened your client’s life.  This is compensable in almost every venue.  (Where it is not, use the claim as an exacerbation of emotional suffering: what makes a person suffer more than a prediction of early death?)  So when the defense does its nasty dance to show lower life expectancy because of the very thing the defendant caused, use the defense numbers and their estimate of premature death as the basis for claiming additional money.

And in closing, argue that the money should far exceed the costs of caring for the person for those same years. “Which is worse? Having to pay for care? Or having to think every day about losing all those years and then actually losing them?”

Showing longer life expectancy.  In opening, explain that many people in your client’s population group will live longer than the figure on the official tables. In fact, statistically, more than half the people in your client’s group will live longer, many a lot longer. Use a simple spread-sheet exhibit to show how many in your client’s group will live longer than the average. This gives you preponderance: your client is more likely than not to live longer. So you get to argue for more than the minimum life-care figure on which your life-care expert based life expectancy.

Even if fewer than half of your client’s group live longer, you still get preponderance. Your client is worried right now about what happens when he outlives his life-care money if it runs out at that ‘expectancy’ age, when he’ll be least able to get along without any money. This nightmarish worry turns even a less-than-50% chance of longer life into a beyond-reasonable-doubt worry about what happens if he beats the average.

His worry can be removed by providing the amount of money it will take to remove it. In other words, this harm can be fixed if jurors provide money for many years beyond average life expectancy.

Once someone lives to her life expectancy, which most people do, she has a better than even chance of living another X years. When she gets to that extra X years, as most people do, she has a better than even chance of living another X years. And so on.

Have your planner show a chart of how many people are expected to live an additional three years, six years, nine years, etc.

And have your minimum life-care planner or your economist provide care-cost figures for each additional three-year period.(11)

As California’s great consultant Rodney Jew asks, “What happens when the money runs out?” So make sure the jury knows.  In opening, explain what your life-care expert will say about what will happen when the money runs out.  Or at least make it clear that once it runs out there will be no more care; then review the awful details in closing.

Geriatrics. Your minimum life-care planner should enlist a geriatric medical specialist who knows the increasing special needs of the aged.  Health-care providers who are untrained and inexperienced in geriatric needs will miss most of a minimum life-care plan’s requirements for the later years. And many jurors think that even the worst needs and problems diminish over time. So you need a geriatric specialist to show that your client’s needs will dramatically increase, her plight will worsen as she ages, and she will never ‘get used to’ her situation – because each time she gets used to it, things will get worse.

For the aging person who is injured, things often can get worse over a series of dramatic downward plateaus. Non-geriatricians don’t usually know about this. So even with a young client whose injuries are permanent, you need a physician or a social worker who specialize in geriatrics to explain how things will get worse as the years pass – far beyond just the normal processes of aging would have caused.

Case manager. If there’s a case manager in the life-care plan, make sure the jury understands why. A good case manager is not merely a clerk who arranges appointments, though that’s usually how life-care planners explain it. The major factor is safety: a case manager has the expertise to spot risks and dangers in time to prevent or minimize them. Give examples.

Don’t allow your planner or any other witness to nominate herself for the job of case manager. Jurors (and everyone else with a brain) see this as financially motivating every word the life-care planner utters. Your life-care planner must gain nothing from the verdict. This may seem like a no- brainer, but it happens frequently. It hurts cases and exacerbates the bad reputation of plaintiff’s lawyers.

Empirical experience. Your planner needs experience in following up her earlier life-care plans to see how things have worked. Delineate this experience in opening: how your life-care planner has monitored her earlier plans over a long period of time to see if they were correct (were those things really needed?). Give many examples. Otherwise she’s working on theories, not experience.  A life- care planner too young to have done this is still too young to be a life-care planner.

Attribution. Attribute to others, such as treating or expert physicians, all you say about each harm, fix, and help. In opening, never ask jurors to take your word for anything. Many jurors think your substantial cut of the verdict motivates you to exaggerate harms and costs. So do not say that Mary needs pills costing $1,000. Say instead that her physician says she needs them. Don’t say she lost wage money; say “The wage records show that . . . .”

As trial progresses, be careful not to shorthand these things into your own assertions. Throughout trial, position yourself as the messenger, not the source.

Future care costs versus past care costs. Be careful with the common situation in which annual future care will cost more than annual past care. Explain, for example, that past costs are low because the family had no money for proper care – which is why you’re in court. Or that medical costs were low because there was only so much that medical science could do – but as a result, future care costs will be high. Otherwise jurors will use what was spent in the past as a basis for what is needed in the future.

Language. Here and elsewhere, do not use language that can be interpreted as exaggerated. Hyperbolic language undermines credibility. I recently heard a lawyer ask a jury to compensate his client for the “tragedy of her broken leg”! What then do we call Hamlet?

Understate. Allow the facts, not hyperbole, to do the intensifying.

Who gets the money? Explain that the money goes to pay other people for John’s care, treatment, medications, and equipment – except for the lost wages: the money which will only make John even with where he would have been if this had not happened.  (But open no doors to collateral sources.)

E. What cannot be fixed or helped.

“None of this money makes up for the greatest part of the damage: what this did to John himself, his life.” Show the distinction: Paying for surgery for a broken arm is one kind of required compensation; money to make up for John’s pain is another.

Base this on the jury instructions. Jury instructions often detail intangible losses more specifically than merely “pain” or “suffering” or “death.” They often include “loss of use of a body part,” “inconvenience,” “humiliation,” etc. In death cases, the instructions often list loss of services, advice, kindly offices, guidance, companionship, etc. Make specific use of each one.

Even if your instructions have no such items, get lists from other jurisdictions. “Loss of use of a body part” and “humiliation,” whether in your instructions or from the next state, are useful in detailing the various kinds of suffering.

Do not bunch the losses or rush through them. Make each a separate item.  With each, do two things:

First, explain each one separately and clearly. “Humiliation means deep embarrassment, or feeling disgraced, disparaged, or reviled.”

Second, relate it to this case.

Sally’s therapist says Sally feels that way a lot. In restaurants, she can’t help seeing that people are staring at her. She can’t help thinking she repulses them, that they want her to leave so she won’t ruin their lunch. She thinks they talk about her when she leaves. And often she’s right. That gets inside you, you never get used to it, it never goes away. You want to run and hide. That’s what the law means by humiliation.

Follow that here or at least in testimony with a mini-vignette of one or two such instances.

In closing, each such intangible loss will become a separate line item in your request for money. So in opening, start the process by showing each intangible harm.  Focus on the human content of each item. Loss of guidance? “It would have been John’s job as a dad to teach John, Jr., how to ride a bike, and in another few years to talk to him about girls.” But don’t worry about the legal terminology of the elements until closing.

Interim deprivation. The defendant’s refusal to admit responsibility has forced your client to get along without the fixes and helps that could have made her life safer and more bearable. So your client has had to endure months and years of unnecessary extra pain, danger, significant inconvenience, and discomfort. There may even have been a fix – such as timely physical therapy – that would have worked earlier but now it’s too late.

All of that adds to the harm. It should be compensable. After all, a plaintiff’s failure to meliorate the harm is admissible to diminish the verdict. By the same token, the defendant’s exacerbation should be equally admissible.

So show everything your client has been forced to go through because of the absence of funds that a decent defendant would have provided.  This is especially when the defense stipulates to liability at the last minute, and then whines to the jury about how”responsible” they are being.  “Responsible” means admitting you did something wrong and then doing everything necessary to fix, help, and make up for it.   Anything less is not responsibility.  (See Reptile, p.238 ff: “Repentance”.)

F. Plaintiff as ‘normal’ (before) versus after.

Use the same chart you will use in testimony: a simple, double-column chart with previous problems in the left (‘Before’) column, and new problems and aggravations(12) in the right (‘After’) column. Starting in opening, emphasize that you seek no money for the left column. As you talk through each ‘After’ item, cite your experts’ or treating doctors’(13) explanations of how they know the defendant caused it. Refer back to your earlier explanations of the mechanism of how it happened.

Ed – we’ll need chart here illustrating the previous.  

After                                                     Before

Disabling back pain –                   No disability

Permanent back pain –               Temporary back pain

Can’t work –                                    Worked 3/4 time

Heavy meds required –             No meds required

Earlier (banish ‘prior’ from your vocabulary) deficits. When the defense is going to claim that your client had some of the problems before, use this part of opening to distinguish clearly and frankly between earlier problems and those the defendant caused/worsened. Make emphatic and clear that you are seeking money only for harm the defendant caused, not for anything from before.

Where there are grey areas (i.e., no one can tell, or there is strong evidence both ways), tell jurors not to provide money for them unless they decide that the defendant “more likely than not” caused them. This adds to your credibility, bolsters your preponderance theme (see _____), and makes jurors feel better about your client.

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(10)   D o not rely on the accuracy of these sample steps; I use them solely to illustrate the method.

(11)   When using an economist, remember that 1) most Americans are economically illiterate, and 2) few Americans care or trust what economists do. During the 2009 economy crisis, the economists were wrong, irrelevant, quibbling, and useless. So many jurors regard economic predictions as less reliable than next month’s weather forecast. Solution: your life-care planner should be the one who says what things will cost, and your economist should merely validate it. The more an economist talks, the less some jurors believe him.

(12)   Do not say “aggravate.” To most people it means “annoy,” not “worsen.” So instead of “It aggravated her back pain,” say, “It made her back pain worse.” If “aggravate” is in the jury instructions, wait until closing to say it, when you explain what the instructions mean. Don’t use any legal words until then, and even then only when essential.

(13)   “Treating doctors” is another term unfamiliar to many jurors. Say, “John’s own doctors.”

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6-6

Opening. Part VI: ‘Before’

This is where you first tell us about your client as she was before the defendant hurt her, or where you first tell us about your client and his family before the defendant killed him. Don’t do any of it earlier, not even “John, father of three …” This is where it will have the most effect.

This may seem backwards to you, and it is. And yes, within any story you must use chronological order (see). But this is the important exception. We learn it from the greatest dramatists in history. They made their sad stories far more powerful by letting the audience know the catastrophic outcome before they show the happy parts of the character’s life. Shakespeare, for example, not only labeled tragedies as tragedies (so that we’d know everyone was going to end up dead), but often had an actor come on before the play to tell us there’ll be a tragic ending:

Ed: following surrounded by a scroll-type frame:

ROMEO and JULIETTE

Prologue

Two households, both alike in dignity,

In fair Verona where we lay our scene,

From ancient grudge break to new mutiny,

Where civil blood makes civil hands unclean.

 

From forth the fatal loins of these two foes

A pair of star-cross’d lovers take their life;

Whole misadventured piteous overthrows

Do with their death bury their parents’ strife.

 

The fearful passage of their death-mark’d love,

And the continuance of their parents’ rage,

Which, but their children’s end, nought could remove,

Is now the two hours’ traffic of our stage. . . .

 

Why would Shakespeare give away the ending?

For the same reason that he as well as the great Greek playwrights used old stories everyone already knew – including the ending.  The happiest moments in a play or movie take on an aura of almost unbearable tragedy when we watch them already knowing the bad outcome. Romeo and Juliet contains one of the loveliest ‘lovers meeting’ scenes of all time. Romeo turns and sees Juliet for the first time! She turns and sees him for the first time! They gaze awestruck!  Lovestruck!  Across a crowded room! Everyone in the audience thrills as they feel again the amazing power of young love.

It’s wonderful, exciting, all the enchantment of youth and young love and promise for the future and … then … you … suddenly remember that the happy couple will soon be dead.

The sadness and sense of loss are overpowering.

The same thing happens whenever you re-watch your favorite love-story-with-tragic-ending movie, because the terrible outcome is firmly in your mind as you watch the earlier, happy moments – now all framed by the bad outcome. One of the world’s oldest and strongest dramatic techniques.

It’s no different in an opening statement. Don’t default to the usual ‘before and after’. It carries virtually no impact to tell us early that “Brooke was a really good mother to her three children.” Actually, that kind of soulless, cloying, abstract statement is of no use anywhere in trial. But even great little vignettes of Brooke being a great mom carry almost no impact when they come before we know the results of what the defendant did to her. When the jurors have no frame of loss to put the earlier life into, the ‘before’ comes across as hollow – an ineffective appeal for sympathy.

One case had a splendid ‘before’ video of a client whose ‘after’ status was quadriplegia. In preparing a settlement video, the attorneys told the editor to start the video with that ‘before’ clip: Back yard on a bright summer day, mottled shadowing on the lawn of beautiful trees, Dad passing a little foam football to his five-year old. The clip almost seemed slow motion, though it was not. Dad tosses the ball; the little boy, eyes wide, stretches out his hands and fingers, grabs the ball out of the summer air; he bobbles the ball, he grabs it to his chest, he nearly drops it, but at the last instant he saves it and starts laughing in delight; Dad runs across the yard, picks him up, swings him round and round.

A lovely, lovely showing of a dad-little boy moment that told the whole story of their lives together.

Focus-group response:  “Kind of hokie.”(14)

The videographer moved the football scene to the end of the video. So first we saw how badly dad was hurt, the necessities of caring for him, toileting him, moving him. We saw one shot of the little boy having to carry his younger brother’s bathroom booster step into dad’s room to stand on, so dad could see him – because the boy was not tall enough for dad to see without dad turning his head, which dad could not do.

Then, at the very end: the backyard football shot. Firmly in the grip of all the horror they’d just seen, “okay” and “hokey” went to “Ohhhh my God …” and tears – because the viewers were now feeling the full depth of the profound loss.

Aside from being a powerful way to show your client’s life before the defendant hurt him, the

‘before comes after’ sequence makes it seem less like shallow advocacy and more like real life.

Start Part VI by explaining why it’s important:

I’m going to tell you what Brent was like before any of this [i.e., Part V] happened.

Then:

INSERT DM SECTION ON HOW TO DESCRIBE THE ‘BEFORE’

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(14) Never show any video without first focus-group testing it.

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6-7

Opening. Part VII: “What can the jury do about it?”

You’re now at a delicate intersection. Choose your words carefully. For example:

From beginning to end, everything I show you in trial is for you to see what caused John’s harms and losses, and how much money it will take to fix, help, and make up for them. By the end of trial, you’ll see why the evidence makes this the kind of case (15)  in which I will have to come back later and ask for an amount that right now will sound really high – but which you’ll later see is the proper one for this kind of case.

That amount will be $____________________.

Thank you.

Then sit down. Shh! Not another word. Anything else you say will detract.

If you are not allowed to specify a figure for non-economic damages, say:

It will take $_________ to pay others for John’s medical care, and $_________ to get John even with what he’d have earned if he’d not been hurt.  That totals $____X_____.  But that’s the smallest part of this kind of case. The far larger part is what this did to John himself: his life. That will call for adding a far larger amount to the $____X_____.

If you are not allowed to proportionalize, you can probably still do it with your hand – palm down and well lower than your waist – to signify the $____X_____figure, and around your full height for the total.

With or without using your hand that way, say this:

It will take $_________ to pay others for John’s medical care, and $_________ to get John even with what he’d have earned if he’d not been hurt.  That totals $____X_____.  In cases like this, those figures are the complete fixes: they completely take care of the bills, they retrieve the income.  Then you look at the rest: All that can’t be fixed or helped: what this did to John’s life. In this kind of case, that’s the most serious part. Once you’ve  seen the evidence, you’ll know what to do.

Whichever ending you use, when you’re done say “thank you” and sit down. No big finish. Keep things rational at this point, not emotional.

There’s a long-standing debate over whether to give a dollar figure in opening. The answer is yes. Jurors want guidance. Give them that guidance when it will do you the most good: before your case- in-chief. You want your figure anchored in their heads while, not after, the jurors are hearing what the defendant did wrong, how he caused harm, and how bad the harm was.

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(15)   A bove all, do not alter the specific words, “this kind of case.”  T hey might be the most important words you ever say.

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6-8

Damages-only case.(16)

With minor adjustments, the same structure for opening – minus whatever won’t be admissible –works well for a damages-only case. Here’s how:

 

Damages-only case.

Part I. Primary rules. No advocacy.

Focus the rule on money:

When a truck driver’s negligence harms a pedestrian, the pedestrian is entitled to an amount of money equal to the level of the harm. Now let me tell you about the harm in this case.

 

Damages-only case.

Part II. Story of what the defendant did. No advocacy.

Tell as much of the negligence story as allowed. Argue to get in as much as possible. Explain to the judge that part of the emotional harm is your client’s vivid, painful memory of what happened. The traumatic memory of the defendant’s truck careening at her across the median is causing her emotional harm now, so that memory goes to damages.

 

Damages-only case.

Part III. Who we are suing and why: the safety rules the defendant(s) violated. Start of advocacy.

Again, include all you can get in. Try to cover each thing the defendant did wrong, why it was wrong, how it caused harm, what the defendant should have done, how easy that would have been, and how that would have prevented the harm. These elements should get in because each of your client’s harms is exacerbated by her knowing about the very simple safety rules the defendant so needlessly violated. Your client will tell you this, as will any psychologist or similar kind of therapist. Knowledge of how easily the defendant could have followed the rules makes the pain harder to bear.

When possible, part of your story of what the defendant did should include the defendant’s denial of negligence until the eve of trial – when they stipulated despite having no information they did not have in the first place.

Last-minute stipulation is relevant to damages because it causes additional harm.

For three years, Jane had to live with the knowledge that she was stopped at a light and hit from behind – yet they denied doing anything wrong and refused to meet any responsibility. That makes things a lot worse for anyone. It increased her worry that she’d never get the money she needs to take care of herself. And they did it just to scare her into walking away from her case. Only when they knew you were coming did they decide to try to look as if they were exercising some responsibility – far too late to do anyone any good but themselves.

Remember: the defense can diminish damages by showing your client’s failure to mitigate them. So you should be allowed to show how the defendant’s last-minute stipulation exacerbated them.

 

Damages-only case.

Part IV. Undermine. (What is wrong with the negligence defenses?)

This is usually not necessary for a damages-only case. You’ll undermine the causation and damages defense points in the next section.

 

Damages-only case.

Part V. Causation and damages.

Same as with regular case.

 

Damages-only case.

Part VI. ‘Before’.

Same as with regular case.

 

Damages-only case.

Part VII. “What can the jury do about it?”

Same as with regular case.

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(16)   For additional help with damages-only cases, please see Chapter 20 of Reptile.

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