Kentucky Law Review

Of Juries, "Conscience of the Community", and justice

The jury is a powerful force in American and English jurisprudence. 

The right to a jury of your peers is a Constitutional right that men and women have died to protect for centuries.  One that some may not fully appreciate.

While reviewing audio tapes and literature of Moe Levine, a phenomenal personal injury and medical malpractice and negligence lawyer, who passed away nearly 50 years ago, I came upon some nuggets of wisdom.

One of these is on the value and function of a jury.  He stated that jurors are not judges without robes but rather they as cumulative body reflect and speak in this case as the "conscience of the community".  I liked that, but I wondered if that was the law in Kentucky.

And yes it is.  Powerful language, and the recognition of a role that goes back hundreds of years.

As a Louisville Kentucky personal injury lawyer, retired soldier and military judge, I have a strong and pervasive belief and trust in juries.  Twelve ordinary people assembled to render justice usually get it "right" and move beyond their individual prejudices and biases.  The sum of the parts is always greater than the individuals. 

The judicial decision regarding when to save the interpretative function for the court and when to delegate the interpretative function to the jury is crucial to the development of negligence law. The more judges take cases away from juries, the more the concepts of reasonable conduct, negligence and gross negligence become synonymous with the view of the judge or judges on that court. Likewise, the more the interpretative power is delegated to juries, the more these concepts become the aggregate of discrete findings by juries. See L. Green, Judge and Jury (1930). By delegating interpretation to a jury the judiciary allows current considerations of equity and common sense to modify what might otherwise become anachronistic principles. L. Green, supra, at 385-91. The role of the jury in interpreting the evidence and finding the ultimate facts [**5] is an American tradition so fundamental as to merit constitutional recognition. U.S. Const. Amend. VII; Ky. Const. Sec. 7. The conscience of the community speaks through the verdict of the jury, not the judge's view of the evidence. It may well be that deciding when to take a case away from the jury is a matter of degree, a line drawn in sand, but this is all the more reason why the judiciary should be careful not to overstep the line.

Horton v. Union Light, Heat & Power Co., No. 84-SC-80-DG, Supreme Court of Kentucky, 690 S.W.2d 382; 1985 Ky. LEXIS 220, April 11, 1985 ,  Rehearing Denied June 14, 1985

Trial Practice Tips: Outstanding Index to 7 years of trial practice tips found at The Trial Practice Tips Weblog of Evan Schaeffer

Need a mentor that doesn't ramble and tell you one war story after another like I do when asked a question?

Want to pick up some tips, tricks, and trivia?

Want them organized by subject?

Then here is a start. Evan Schaeffer has been sharing his trial practice tips, gems, and topics since 2004 with a lotta posts.  Here is an index he posted on 9/13/2011 that permits you to peruse by topic.

Thanks Evan. 

 

by Evan Schaeffer

Since I started this weblog in January, 2004, I've written 947 posts, enough material for a good-sized book. Most of these posts are assigned to one or more categories. You can get to these categories by clicking on the list that appears on the left side of the weblog. I've also listed the categories here, followed by the number of weblog posts that have been assigned to each:

Appeal 26
Books 31
Class Actions 26
Closing Argument 28
Courtroom Tech 31
Cross-Examination 44
Current Affairs 5
Damages 14
Depositions 157
Direct Examination 14
Discovery 88
Evidence 46
Experts 53
Instructions 10
Law Online 36
Legal Writing 61
Mediation/Arbitration 8
Miscellaneous 83
Motion Practice 37
Opening Statement 19
Pleadings 5
Requests for Admissions 10
Settlement 6
Trial Style 37
Voir Dire 36
Web/Tech 65
Weblogs 27

Thanks for reading the Trial Practice Tips Weblog.

And here is a post from June 11, 2010 as a teaser for those too lazy or busy to click and and follow the road to other links.

The Zen of Trial Practice

Here's a novel idea for lawyers from a new law blog, Seattle Zen Legal Blog: "Thou Shalt Not Be a Pompous Ass"--

As an attorney I work on treating all people with dignity and respect. This is the right thing to do. Sadly there are lawyers who are over impressed with themselves. These lawyers talk down to others or appear not to have time for the problems of little people. Well we never know who we are helping, and since we have chosen to be a lawyer, we have an obligation to help others when we are able.

The blog's author is Pat Trudell. On his blog, you can also read posts like "Beyond the Reptilian Brain" and "Personal Injury as Tragedy."

and yet another:

July 23, 2009

Your First Trial: Getting Up to Speed Quickly

At Ron Miller's law firm, Miller & Zois LLC, they're open to the idea of sharing their work product. The firm's "Sample Personal Injury Trial Materials" contains many real-life transcripts, in addition to forms and examples in these areas:

• Sample Voir Dire
• Opening Statements
• Direct Examinations
• Cross Examinations
• Jury Instructions

Since real-life examples provide one of the best ways to learn, the Miller & Zois webpage is worth a look.

Related posts:

1. Trial-Planning Steps to Take After a Deposition Has Ended

2. Learn from a Trial Transcript

3. Motivating Yourself for Trial: Start a Notebook Early

Injury victims limited to damages compensated by insurer, California Supreme Court rules.

Injury victims limited to damages compensated by insurer, California Supreme Court rules. The Sacramento Business Journal (8/19, Subscription Publication) reported in its "Morning Roundup" blog that "the California Supreme Court ruled Thursday that accident victims shouldn't receive more in damages for medical bills than the amount paid to the provider." Plaintiffs' attorneys balked at the ruling, and argued "it equates 'reasonable value' with negotiated rates paid by insurance companies rather than the full cost of care. It's being heralded by insurers and business leaders, who predicted premium hikes to offset skyrocketing costs."

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.

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

 

 

 

 

Trial Practice Tips: Telling your client's story to the jury.

From Paul Luvera's very useful blog on Plaintiff Trial Lawyer Tips:

JOSEPH CAMBELL & YOUR CLIENT'S STORY

from Plaintiff Trial Lawyer Tips by Paul Luvera

A great deal has been written about the connection between script and screen play writing to our trial planning. The source of the most generally accepted way to write a story for a movie or book is a pattern identified by American scholar Joseph Campbell applicable to drama and story telling. It’s basic format involves the hero who goes out doing great deeds on behalf of his or her tribe, group or civilization generally. Here’s a general outline of Joseph Campbell’s "the hero’s journey."  This is the basic outline for every successful movie, novel or play. All successful movies follow this script.

Click HERE for the rest of the post.

Trial Practice Tips: Telling your client's storyi

From Paul Luvera's very useful blog on Plaintiff Trial Lawyer Tips:

JOSEPH CAMBELL & YOUR CLIENT'S STORY

from Plaintiff Trial Lawyer Tips by Paul Luvera

A great deal has been written about the connection between script and screen play writing to our trial planning. The source of the most generally accepted way to write a story for a movie or book is a pattern identified by American scholar Joseph Campbell applicable to drama and story telling. It’s basic format involves the hero who goes out doing great deeds on behalf of his or her tribe, group or civilization generally. Here’s a general outline of Joseph Campbell’s "the hero’s journey."  This is the basic outline for every successful movie, novel or play. All successful movies follow this script.

Click HERE for the rest of the post.

 

Lit Tips: THE GENIUS OF JIM McELHANEY - CROSS EXAMINATION

James McElhaney is great.  I bought a series of his cassettes over a decade ago, converted some to digital, and when I need a refresher, I listen up.

However, here is a Plaintiff's Trial Lawyer Blog post that digests the art of cross-examination nicely.

THE GENIUS OF JIM McELHANEY - CROSS EXAMINATION

from Plaintiff Trial Lawyer Tips by Paul Luvera

* * *

Cross examination is your opportunity to tell the rest of your client' story.There are three basic ways to do this: First, there is what McElhaney calls "constructive cross." You use the witness as your own to prove issues in your case. Second, there is "destructive cross." You expose holes either in what the witness has said or other parts of the defendant's case. The third is to attack the credibility of the witness.

* * *

read the post for more.

 

TECH: Computer simulation of Crash of Flight 1549 on the Hudson River reveals value of computer technology in making point in 2 minutes!

Thanks to John Day at Day on Torts Blog for the information on a computer simulation of the plane crash on the Hudson River:  Animation of Crash of Flight 1549 

While reading this blog, I thought of sharing the following posts to show you how well a narrowly defined blog addressing legal issues for litigators can show you that content is king and marketing is not advertising.  The professionalism, content, and expertise demonstrated by Mr. Day on a continual basis is a standard few meet:

Mild Traumatic Brain Injury in the ER

By John Day on Medical Resources

The American College of Emergency Physicians has released a new clinical policy called "Clinical Policy: Neuroimaging and Decisionmaking in Adult Mild Traumatic Brain Injury in the Acute Setting.

March 2009 Edition of the Tennessee Trial Law Report

By John Day on Miscellaneous

The March 2009 edition of the Tennessee Trial Law Report is in the mail. This edition includes a summary of 20 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee.

Impeachment by Contradiction

By John Day on Trial

How do you impeach by contradiction? The Federal Evidence Review Blog has a fine summary of a recent case from the Third Circuit that provides a “textbook example” of how one sets up an impeachment by contradiction and how the . . .

Medicare Subrogation in Wrongful Death Cases

By John Day on Subrogation

From time to time I will see a question posted on the trial lawyers' listserve asking whether Medicare has a subrogation interest in wrongful death proceeds. The answer is "yes," and this opinion helps explain why. Tennessee wrongful death law...

TRIAL TIPS: Thinking outside the box can enhance jury trials

Study shows that "thinking outside the box" or at least the jury box is beneficial to a juror's understanding of a trial:

Alternative Concepts Enhance Jury Trials, Study Finds

The use of alternative trial concepts generally enhanced the jury trial process, according to a study released Thursday by the 7th Circuit Bar Association American Jury Project Commission. Survey results from 434 jurors, 86 lawyers and 22 federal trial judges found that concepts such as allowing jurors to ask questions of witnesses during trials and limiting presentations by lawyers enhanced juror understanding and trial satisfaction.  Lynne Marek, Law.com  09/29/2008
Read Article: Law.com   

Click HERE for A 7th Circuit Bar Association study that tested alternative trial concepts (pdf).