Kentucky Law Review

Legal Blog Update 5/22/2011

iPad Apps Lawyers Should Be Using Webinar

Important Published Family Law From Ky Supreme Court Today

CITY POLICE HAVE ARREST POWERS OUTSIDE OF CITY

A COURT OF APPEALS JUDGE HAS ISSUED A TEMPORARY RESTRAINING ORDER AGAINST A RULING BY GRANT CIRCUIT JUDGE STEPHAN BATES.

Kentucky Supreme Court Allows Media Access to Contempt of Court Hearings of Jurors

Kentucky Counties face growing legal bills to ACLU in Ten Commandments Cases

Judge to rule in five days on gasoline price gouging case

JCPS: LET'S BREAK IT DOWN PART 1

ALI Adopts Restatement Provision on Liability of Those Who Hire Independent Contractors

:: Supreme Court Signals Broader View of Equitable Relief Under ERISA

Your Thoughts on How to Become Free

When An Expert Witness Opines On His Or Her Own Expertise

Insurers' Practice of Accepting Premiums and Later Denying Coverage May Come Under Fire in Wake of Amara

Using Tech Wisely

Creating and Using Custom Redaction Patterns

How do I install my S1500 ScanSnap scanner on a Microsoft Windows Operating System?

THE IMPORTANCE OF PRIVATE TIME

AGE PROGRESSION FORENSIC ART: THE TIME HAS COME

Legal News Headlines from May 16-22, 2011

Lyndon mother charged with murder after 2-year-old boy dies in car

Councilwoman Judy Green faces second ethics hearing Monday

Family wants justice for slaying of Rebecca Riddle

Complaint alleges JCPS discipline discriminates against African American and disabled students

Kentucky Supreme Court rules contempt of court hearings should be open to the public

Trial date for former McMahan fire chief Paul Barth set for Oct. 3

Sex offender registry not retroactive, Kentucky high court rules

Murder charge dismissed against Louisville man

Boy killed in western Kentucky school bus crash

Judge dismisses whistleblower's lawsuit against Archdiocese of Louisville

Supreme Court sides with Kentucky police in warrantless search

Man sues Louisville safari company after failing to see lion or buffalo

 

 

Ky Court Report Postings for May 20-22, 2011

SCOKY Minutes Update

SCOKY Minutes for March 26, 2011 posted.

COA 2011 Minutes for May 13, 2011 --    Nos. 471-490

Outline of Irving Younger's Ten Commandments of Cross Examination - Always good to get back to the basics.

I found the following outline/summary of Irving Younger's famous presentation on the "Ten Commandments of Cross Examination." 

I remember that presentation on videotape (VHS - remember when that was the next best thing?!).   I would love to see it again.  It is only an hour long.

If anyone has it and is willing to loan it to me, please email me (see address in left column).  Much appreciated.  However, here are the Ten Commandments.  Please note that Irving Younger confessed in his presentation that there were actually only six or seven, but he worded them up a little to get Ten Commandments which has a better ring to it. 

--------------------------------------------------------------------------------------

IRVING YOUNGER’S 10 COMMANDMENTS
OF CROSS EXAMINATION
1. Be Brief
Be brief, short and succinct. Why? Reason 1: chances are you are screwing up. The shorter the time spent, the less you will screw up. Reason 2: A simple cross that restates the important part of the story in your terms is more easily absorbed and understood by the jury. You should never try to make more than 3 points on cross-examination. Two points are better than three and one point is better than two.

2. Use Plain Words
The jury can understand short questions and plain words. Drop the 50 dollar  word in favor of the 2 dollar word. “Drive you car” instead of “operate your vehicle.”

3. Use Only Leading Questions
The law forbids questions on direct examination that suggest the answer.

The lawyer is not competent to testify. On cross-examination the law permits questions that suggest the answer and allows the attorney to put his words in the witnesses’ mouth. Cross-examination, therefore, specifically permits you to take control of the witness, take him where you want to go, and tell your important point to the jury through the witness.

Not asking controlled leading questions leaves too much wiggle room. What happened next? I would like to clear up a couple of points you made on direct? These questions are the antithesis of an effective cross-examination.  Any questions which permit the witness to restate, explain or clarify the direct examination is a mistake.

You should put the witness on autopilot so that all of the answers are series of yes, yes, yes!

4. Be Prepared
Never ask a question that you do not know the answer to. Cross is not a fishing expedition in which you uncover new facts or new surprises at the trial.

5. Listen
Listen to the answer. For some, cross-examination of an important witness causes stage fright; it confuses the mind and panic sets in. You have a hard time just getting the first question out, and you’re generally thinking about the next question and not listening to the answer.

6. Do Not Quarrel
Do not quarrel with the witness on cross-examination. When the answer to your question is absurd, false, irrational contradictory or the like; Stop, sit down. Resist the temptation to respond with “how can you say that, or how dare you make such an outrageous claim?” The answer to the question often elicits a response, which explains away the absurdity and rehabilitates the witness.

7. Avoid Repetition
Never allow a witness to repeat on cross-examination what he said on direct examination. Why? The more times it is repeated, the more likely the jury is to believe it. Cross-examination should involve questions that have nothing to do with the direct examination. The examination should not follow the script of the direct examination.

8. Disallow Witness Explanation
Never permit the witness to explain anything on cross-examination. That is for your adversary to do.

9. Limit Questioning
Don’t ask the one question too many. Stop when you have made your point. Leave the argument for the jury.

10. Save for Summation
Save the ultimate point for summation. A prepared, clear and simple leading cross-examination that does not argue the case can best be brought together in final summation.

Summarized from The Art of Cross-Examination by Irving Younger. The Section of Litigation Monograph Series, No. 1, published by the American Bar Association Section on Litigation, from a speech given by Irving Younger at the ABA Annual Meeting in Montreal Canada in August of 1975.

Kentucky Court Report Postings on May 18, 2011

COA 2011 Minutes for May 6, 2011 -- Nos. 443-470

Causes of Action: Tortious Interference with Contract, elements

Causes of Action: UCSPA, Actual damages not include attorney fees (policy language reviewed)

Causes of Action: UCSPA, Actual Damages required to get punitives

 

Legal News Headlines from May 8 - 15, 2011

From the Courier-Journal

• David Williams' divorce records released

• Kentucky attorney arrested after fight

• Reader Letters | Judge Prather

• Metro Council approves new zoning to allow Creeker's to have live entertainment
• Indiana Supreme Court: No right to resist unlawful police entry
• Conway accuses Marathon of gas-price gouging
• E.J. Dionne Jr. | Health care's legal fate
• Gail Coontz found competent to stand trial for allegedly killing her children
• Group pushing Confederate heritage license plate
• Woman pleads not guilty to striking 7-year-old with car
• Former Whitley County sheriff admits kickbacks, faces prison
• Suit alleges coal company filed false water reports
• 9 arrested in alleged human-trafficking ring involving Jeffersontown, Newburg houses
• Children getting too many CT scans, some doctors fear
• Judge rejects Planned Parenthood's request to block new Indiana anti-abortion law
• Judge may open part of David
  Publish
  Williams' divorce deposition
• Federal judge to rule on Indiana abortion law Wednesday
• Former detective accused of 'negligence, ignorance, incompetence' in working cases
• Steve Nunn suffers facial injuries in jail fight
• Kentucky to close minimum-security Frankfort prison
• Nine indicted in prostitution network that authorities say included Louisville
• Bypass surgery to sideline Indianapolis prosecutor

From the Blogs/Blawgs:

2011 Voters’ Guide: Where the candidates stand

INTERESTING MUSINGS....

Law Students Achieve Success in Vienna

Law School Active in Community Engagement

CHFS v. Hon. Garber and Hon. Bowles, Ky COA, Writs of Mandamus and Prohibition

Use an iPad at a Deposition

Strange Birth Injury Award: $21M Medical Expenses, $0 Pain and Suffering

Young Lawyer's Guide To Legal Marketing (And Snark Mentoring)

Estoppel Claims Can Prevail Over Unambiguous Plan Language

Statement "Perhaps" Intended To Begin "Process of Compromise" Not Excludable Absent An "Actual ... Difference Of Opinion"

Copy Of Instant Message Transcript Pass The Authentation, Best Evidence And Rule of Completeness Tests

Creating and Using Custom Redaction Patterns

Jury Questionaires

New Local Rule in Middle District of Tennessee Federal Court on Use of Electronic Devices

The Effect of a Stipulation

Cross-Examination Handbook: A Review

Admissibility of Third-Party Video Evidence

Re-Payment of Health Insurance Plans Covered by ERISA

Kentucky Court Report Postings for May 15, 2011

COA 2011 Minutes for April 29, 2011 -- Nos. 426-442

Causes of Action: Malicious Prosecution

Causes of Action: Wrongful USe of Civil Proceedings

Causes of Action: Defamation

Causes of Action: Abuse of Process

Update: Oral argument scheduled over "owner" of dog relative to dog attacks and bites. Does it include the apartment OWNER as opposed to just the tenant? One COA says no, One COA says yes, and now SCOKY has a shot at it.

Update: Oral argument scheduled over "owner" of dog relative to dog attacks and bites. Does it include the apartment OWNER as opposed to just the tenant? One COA says no, One COA says yes, and now SCOKY has a shot at it.

READ ENTIRE POST AT KENTUCKY COURT REPORT WITH LINK TO ORAL ARGUMENT THURSDAY AT 11:00 AM.

THANKS TO ANOTHER "MIKE" FOR THE GENTLE REMINDER OF THIS CASE.

For the Kentucky Trial Lawyer: Rules of the Road

I have had the good fortune to recently attend a seminar entitled "Rules of the Road" and learn from some of the preeminent trial lawyers in the country.  The seminar  was led by Rick Friedman who authored the book "Rules of the Road".   Rick has had many large figure verdicts in his illustrious career.

The seminar was well attended, and Rick introduced us to his concept of proving liability by talking to the jury in plain terms about the "Rules of the Road". The Rules of the Road is a very powerful idea that can work in any type of case: Medical Malpractice, Insurance Bad Faith, or any variety of personal injury cases.

For those who cannot attend any of these seminars, you can obtain a copy of his book (co-authored with Patrick Malone) or the DVD from the book to learn some of these concepts and apply them in your trials.

To be blunt, many of the concepts are not new; nor are they novel.  But rather, they contain many time-honored concepts used over the years by such stellar advocates of yesteryear, to include Moe Levine and others, and presented in a cogent, concise and logical manner.

I recommend this text for the trial lawyer.

Here are some excerpts from others:

"Rules of the Road does not belong on your bookshelf or your desk; it belongs in your mind. Get it there before you even think about your next trial. It contains two special joys: It teaches something usable on almost every page, and what it teaches is dead-on right."
David Ball, Ph.D., author of David Ball on Damages

“Rules of the Road is innovative, interesting, easy to understand and follow, and its logic is very compelling. Any trial lawyer could benefit from reading this book. Too often, trial advocacy books do not ‘tie it all together.’ That is one thing in which these authors have excelled – taking the basic concepts of ‘rules’ and showing how to develop and use them in every stage of a case.”
Larry S. Stewart, Former President, Association of Trial Lawyers of America

Clike here to order your copy.

Here is the table of contents:

Introduction
1. Defining the Problem
2. Solving the Problem
3. Identifying the Rules of the Road
4. Developing a Working List of Rules
5. Why Rules and Principles Need to Be Kept Distinct
6. The Plaintiff’s Expert
7. The Daubert-Proofed Expert
8. Discovery
9. Troubleshooting Your Rules
10. Fitting the Rules into Your Case Story
11. A Special Problem: Rules of the Road in Automobile Cases
12. Motions and the Rules of the Road
13. Finalizing the Rules of the Road
14. Motions In Limine About the Rules
15. Voir Dire
16. Opening Statement
17. Direct Examination of Your Expert
18. Cross Examination
19. Closing Arguments
20. Final Thoughts
Appendices

 

 

 

 

Kentucky Court Report Posts for May 9, 2011

COA Argument Calendar for May 2011