Bar News - June 21, 2002
Keep Your Eye on the Ball: Practical Litigation Pointers
By: Associate Justice Carol Ann Conboy, NH Superior Court
Keep Your Eye on the Ball Practical Litigation Pointers
Editor’s Note: Judge Conboy developed the following litigation practice tips based on her observations as a judge of what works and what doesn’t in litigation. Conboy presented these pointers at the NHBA CLE 7th Annual NH Superior Court Judicial Forum on May 17, 2002. The program was taped and is available in audio or videotape format. Contact Cheryl Moore at 224-6942 or at cmoore@nhbar.org for ordering information.
FIRST THINGS FIRST
- First, do no harm - to your client or yourself. Consider consequences. Offer realistic alternatives to all-or-nothing, "scorched earth" positions. Don’t allow your client’s zeal to cloud your judgment. Don’t allow your zeal to thwart your client’s best interests.
- Know, articulate and work your theory of the case.
- Don’t hide the ball from the fact-finder. Legal memoranda are not novels and should not have surprise endings. Lead with your best arguments. Don’t withhold your pleadings from the judge in an effort to handicap opposing counsel. Appreciate the significance of the individual docket... Don’t call your opponent as your first witness.
- Pick your battles. Identify the issues critical to your case early. Don’t overreach. Don’t press every conceivable argument. Don’t determine to win every issue. Concede the obvious. File timely motions in limine.
- Become skilled at marshalling the facts. Let the fact-finder do the characterizing.
Establish your credibility with the court: Make it easy for the judge to rule in your favor
- Develop a reputation for being on time, prepared and concise. Always know more about your case than the judge knows.
- Submit "roadmap" legal memoranda that contain succinct introductory summaries, relevant law (including adverse authority), appropriate subheadings, and precise prayers for relief.
- Submit limited, concise requests for findings and rulings, with references to the evidence.
- Submit, on plain paper, concise proposed orders, based on the evidence.
- Submit dispositive motions well in advance of trial, and only if there is a clearly articulable basis for doing so.
- Submit non-argumentative interlocutory appeal statements.
- Provide the court with copies of key cases, trial exhibits.
- Be prepared to submit extra copies of pleadings for the judge and his/her law clerk.
- Don’t use up your credibility capital by filing motions for reconsideration as a matter of course.
- Don’t "yell" at the judge in your pleadings.
- Don’t argue for enforcement of a tit-for-tat rule of evidence.
- Don’t object by asserting, "I don’t see how that’s relevant."
- Don’t criticize opposing counsel for the same conduct in which you have engaged.
- Accept adverse rulings gracefully (but help the judge preserve the record).
- In cases with pro se opponents, try to understand and fairly characterize the claims. This will lay a solid foundation for your arguments in opposition.
- Be courteous to court staff.
- Call when you are going to be late.
Make the jury understand and like you; give the jury the tools it needs to find in your favor
- Use understandable language. Don’t use legal jargon, $10 words or medical terminology, unless necessary and then only with adequate explanation. See "Words of Confusion" at the end of this list.
- Simplify without insulting. Make clear who and what you are talking about. Use "framing," "paragraphing," and appropriate repetition. Be careful with negatives.
- Find and use physical evidence.
- Provide copies of key exhibits, trial notebooks, timelines, glossaries.
- Use flip charts for chronologies, claims, etc.
- Don’t tell the jury, "What I say is not evidence."
- Don’t try a consortium claim unless the case truly warrants it.
- Don’t risk alienating the jury by attacking a witness unnecessarily.
- Before cross-examining based on deposition, make sure the jury understands the deposition process.
- Don’t exaggerate inconsequential deposition inconsistencies.
- Don’t react to adverse testimony (rolling eyes, shaking head).
- Humanize your client. Refer to him/her by name. Ask family members, close friends to attend trial. Interact warmly with your client.
- If you ask for a specific amount of damages, be realistic, and tie the request to the evidence.
- If appropriate to a defense, give the jury an alternative to total victory.
- Don’t underestimate the collective intelligence of the jury. Jurors read and follow jury instructions (e.g., the sympathy instruction).
- Be respectful of all participants in the process. Elevate courtesy to an art form.
Manage your professional growth and keep your equilibrium
- Watch trials. Observe other lawyers, juries and judges in action.
- Understand the successful trial lawyer’s "schizophrenia."
- Make professionalism work for you. Don’t personalize. Don’t let your client’s persona become yours.
- Understand that you cannot control everything.
- Maintain perspective. Ask for help.
WORDS OF CONFUSION
Asked of experts:
"That is an assessment - an impairment rating that can be given without objective signs of either segment instability, radiculopathy, or I guess bony injury?"
"She was no longer treating with you for the sequelae of the accident?"
"Do you have a predilection toward either plaintiffs or defendants?"
"So, doctor, I take it the patient by that time was afebrile?" (The answer was "yes," but there was never an explanation of the term, so it is questionable as to whether the jury understood.)
Asked of other witnesses:
"What was the defendant’s demeanor?" (The witness was embarrassed at having to admit that he did not know what the word "demeanor" meant.)
"Did you hear Mr. [Jones] make any representations to Mr. [Smith] about the project?" (The witness stated that he did not understand the question.)
At one trial, counsel referred to "lumbar" and "cervical" injuries, "palpation," "tenderness," and "state of equipoise," without ever defining those terms.
Statements of counsel during openings and closings:
"We are making a claim under respondeat superior."
"The doctor will opine..."
"The evidence was infused with opinion."
Commonly misunderstood words:
"Contemporaneously," "subsequent," "prior," "asymptomatic"
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