Mastering Trial Strategy And Witness Preparation

Welcome to the Millennial Lawyer Podcast. Let's talk about opening. What's your philosophy on opening statements? How do you decide the story you want the jury to hear first? Opening statements needless to say are very important. However, I don't tell the whole story in opening statement. If I have a case that's a hit in the rear, for example, I'll never say my client was hit in the rear. I'll say the evidence is going to show that my client did nothing wrong and that the defendant is 100% responsible for causing this accident. It was their negligence that led to not just the happening of the accident, but to the serious bodily injuries that they're going to hear about in the second phase of the case or whatever it may be, if it's a bifurcated trial or a unified, I do my best to just give a little thumbnail sketch, a little overview. It forces the defense attorney to get up there and say, we hit them in the rear. I like to put it all out there, but that's a very good strategy because it forces them to literally be on the defense. And they have to make an admission because if they don't, when the facts are revealed, it seems like the defendant was hiding. So when I have a case where there's obvious negligence or it's pretty clear that the defendant was doing something, they should not have been doing that led to it, whether they provided a defective ladder, whether they allowed a dangerous premises to exist, knowing that there was a dangerous condition there. I don't ever get into those facts because not only will they reveal themselves clearly and plainly, if the defendant doesn't get on top of it, it looks like they're hiding. And they got a much more difficult job trying to convince the jury that what they're doing is sincere when they're hiding the fact that they were obviously negligent. One issue I have, not just for trials, but just literally for depositions. How do you prepare a witness, especially a nervous or imperfect one, to be their best self on the stand when it comes to a trial? Because that's a difficult, it's very difficult when you have a good case, but you don't have necessarily the best client who's going to make the best witness. So how do you deal with that? I try and make it very simple for the witness. What I tell my clients is, there's basically five answers that you give at trial. Yes? No. I don't know means you never knew. I don't recall means you might have known at one time, but as you're sitting here now, you're unsure and you don't want to guess. And number five, I don't understand the question. When I tell them, those are the basic five answers that you give, and then you wait for the follow-up questions. It's not, yes, let me tell you why. It's not no because if the question asks for a simple yes or no answer, just say yes or no, and then wait for the next question. And that calms them down to the point where I only have to remember those five things. Great. And then they can listen to the follow-up questions. It's human nature to want to tell the story in one sitting. And when I prep witnesses, I tell them, this isn't a monologue. This is a back and forth question answered, question answered. Much like a tennis game, when the ball is served, you can't return that serve until the ball gets to you. Right. You can't answer until the question is completed. So once the question is completed, then you answer. And you only get one answer. You return the same way you only get one hit to return the tennis ball back over the net. So it's not, here's my answer. And let me give you five reasons why that's my answer. Just a simple yes or no, and then wait for the next question. And then if the next question is, could you explain, can you describe, can you tell me more, then you can go into more of a narrative. But if you can start with a simple yes or no, and wait for the next question, you are in control of the examination. And that calms down the witnesses tremendously. That's great. And then obviously cross examination is an art. What's your process for building a devastating cross before you walk into the courtroom? You know, I have a plan. And many times I can tell you that my plan has been abandoned midway through. Because I find the most effective cross examinations come after you are able to listen to what the witness said on direct exam. Even though you have a deposition, even though you have an affidavit, they take the witness stand and then they start to say things that might not be exactly on point. So if you're just married to the deposition or you're married to the affidavit that was given in discovery or some other an accident report, and you don't listen to what they're saying on the witness stand, you lose a valuable opportunity for a vigorous cross, a stinging cross, because a lot of times the witness doesn't remember verbatim what they said. And you can then just even collateral attacks, which they're not expecting. And it's a little different when you have an audience in the jury there as opposed to a deposition. Right? Do you think that? Well, but an effective cross examination always starts by putting the witness on the defensive right away. For example, I'll say, sir, you want to be full, fair, and accurate in the answers that you give, don't you? And right away though, yes, of course. You wouldn't want to mislead this jury in any way, would you? Well, no. And now they're thinking, oh my goodness, what questions are going to be asking me that I might either mislead the jury, not be full, fair, or accurate in my response? And you'd be absolutely amazed how that can unnerve a witness before you even asked any questions about the case. In all that, you know, I remember we once had a conversation and I think it was like a brain surgeon made a comment to you. Like, how could, how do you do what you do? And you went back at him and were like, how do you do what you do? I don't, I don't get it. What do you do to maintain your composure and presence in the courtroom, even under fire? Because that, you know, that question that I just asked you is very similar to what that brain surgeon, that sort of comment that he made to you in your response. Because it's the same sort of thing, we're under so much pressure in the moment to do the right thing. How do you maintain your composure and presence in the courtroom? Well, I always keep in mind something that is a simple fact that we all have to keep in mind. I am not the star of the show, okay? The witness, the plaintiff, the party who's involved in litigation. It's their show. It's not my show. I have the most practice in the courtroom. The client is there for the first time. I've done this many times before. So the question is how can I use my position, my knowledge, my experience to introduce the plaintiff's case, make the plaintiff likeable, soften the facts and circumstances, convince the jury that they should decide in our favor. And it's never going to be by fighting with the other attorney, showing them how strong I am. I'd much rather beat him with the facts and the law than with my fist or my voice. So I always keep that in mind. And I always try and make the client, my client, look like the one who is at the end of the day going to benefit from the jury's verdict. So as I'm in this conversation with you, it makes me realize, like you said, how important jury selection is and how likable your, I likeable the plaintiff is, if you want to get those big verdicts. That's why I tell stories. I'm going to be honest with you Mark. I could sit there and tell the jury, the carelessness, negligence and recklessness of the defendant and the operation of his motor vehicle caused a collision that changed my client's life. And all the jury here is is, wow, wow, wow, wow, wow. And then I say, can I tell you a story? As soon as you say, can I tell you a story, you watch the body language of everybody, they sit back in that chair, they're like, oh, story time. Oh, great. And then they respond because the story that I'm telling usually has a theme, usually has a punchline, usually has a metaphor, it has some connection to what's going to happen in the future. And in the facts of the case. And by doing that, I can always go back to that story. I can always remind the jury in a very simple way. You see what you just saw? Like, for example, I say to a jury, usually during jury selection, I say to a woman, usually a woman, I should say, I'm going to say something and I want your immediate reaction. And I'll wait for that juror to say, OK, and then I'll pause and I'll say, a man throws a baby out of a window. Do you have a feeling or opinion about that man? And you watch the expression on their face. Like, oh, my God, that's, that's horrible. That's hitting. Who does that? That's insane. That, that, that, that person should be in jail. That's crazy. And I'll say, do you agree? Do you agree? Do you agree? And of course, everybody's yes, yes, yes. Then I'll say, now I want you to know all the facts that building is on fire. That man, he's a fireman. And he saves that baby's life by throwing it out the window to a fellow firefighter. Still think he's a psychotic lunatic? And then we'll be like, no, absolutely not. I'll say he goes from zero to hero, pretty quick, when you learn all the facts. I'm here to tell you all the facts. I just want to tell you that a man threw a baby out of a window and leave it at that. I want to make sure that you know everything. And you know what? I've had jurors say to me, I had goosebumps when you were telling that story, when you were recounting that, I was so unnerved by it. So I'm so glad that you explained it. And you know what that does? That programs that jury. And I'll say, I got to wait. And I'll say sometimes a lot of times, that's like saying a man threw a baby out of a window. Can we have some more facts? Can we have some more details? You don't want this jury to know all the details. Do you? Mr. defense expert or Mr. defendant, whatever it may be. And believe it or not, going back to that little story says a lot more than what I could possibly say, you know, to make a point. I'll give you another example. When I question a jury and one of the jurors says usually about the facts, can you follow the law, can you award money if the evidence supports it? And then I'll say something like, I think I can or I'll try. You know, that's, that's an common honest response. And I'll pause and I'll say, if you got on a plane and you said to the pilot, can you fly this plane? And the pilot said to you, how try? Do you feel comfortable taking that flight? It says, well, of course not. Or if the pilot says, I think I can. Again, do you feel comfortable taking that flight? And everybody will say, well, yeah. So I said, can I get a definitive from you? Can I get a yes or no? I don't want to put words in your mouth, but can you follow the law as a court gives it? Can you award money if the evidence supports it? I just want a definitive answer from you. And then they'll say, yes, I can. Fast forward. I'll then have a, for example, I'll be cross examining a defense expert doctor defense expert. I'm going to ask you questions that require a yes or no answer. Can you limit your responses to yes or no? And they'll say, I'll try. And then I'll pause and I'll look at the jury and I'll say, doctor, if you got on a plane and you said to the pilot, can you fly this thing? By the time I get there, the entire jury is smiling. They know exactly what is coming. They have been there already. They feel like they're part of the inside joke. And now I've just bonded with them again, sort of unconsciously subconsciously. I know where this is going. You know, and jurors like familiarity. They like to say, I'm familiar with that. I understand that. It's like anything in life. When I start talking quantum physics to somebody who doesn't know what quantum physics is, it's not going to take long before they're going to wander away and be like, I'm not interested in this. I don't know what this guy's talking about. But if I'm talking about something that interests you and that you're familiar with, we're going to engage and we're going to bond and we're going to have a relationship because we have something in common. And do you go back to the jury questionnaires to build that sort of commonality because if people that don't know, never pick the jury before, the attorneys who pick the jury get the questionnaires directly from those perspective jurors. So do you use what's in that in those questionnaires to build that commonality? Absolutely. I mean, but the questionnaires are limited. So if you really want details, you got to dig. But the questionnaires are definitely a good place to start because I believe the jurors put on the questionnaires what they want you to know about themselves. You know, so when somebody will put on that there that one of their hobbies is cooking, I'll say to them, that's it. You just like to cook. Well, yeah, I like to cook. Do you like to eat? You know, it's, it goes, you didn't finish. You didn't finish your hobby. Cooking for my family, cooking, you know, for a company because it's not about the cooking. It's about preparing a meal, sharing that meal with people, having people say this is delicious, the reward and the appreciation that comes with preparing a good meal and having that, you know, event that you are partially responsible for. It's the same thing that we're doing in the jury. They are participating in this case in a way, like sous chefs, you know, we couldn't do it without you. You're the ones who are going to help us mix these ingredients. You're the ones who are going to tell us if it tastes good or not. So whatever that jurors into, whatever hobby they're into, whatever their job is, I always try to find a way to connect my case or my presentation to something that is familiar to them. How do you build a closing argument that leaves the jury thinking about your client long after they leave the corner? That's an excellent question. It's not easy, but I find I have found that the more you can repeat what the judge is going to say to them in the closing charge, the more the jury feels like that lawyer was straight with us. That lawyer said to us in the beginning what the judge said to us at the end. That lawyer was even handed in his approach. And he represented his client, you know, zealously, and he was an advocate for his client's position, but he's not trying to sell us a dream. Because what I do is I'll say things like in my summation, if you think the plaintiff is a liar, is a scammer, is a fraud, is a cheat, is a thief, is trying to get something that he doesn't deserve, but then you throw him out real fast. Don't waste your precious time. But that's not what the evidence in this case has shown. That's not what the law that the judge reads you is going to suggest that you do on these facts. And when you say, we're okay if you throw us out, if you don't believe us, the jury now is feeling like, well, you know what, that's pretty even handed. It's not often that someone is going to say, you don't like me, throw me out. And I find that that is very effective to get the jury to be like, alright, let's look at this guy's case. The other thing I do is I say, when you go back and deliberate, they're most likely will be one to or more of you. We're going to say, you know the defendant made a very good point. The defense witness was excellent when he said, x, y, and z. I hope that if any of you do that, that at least one of you or more, stand up and say, what would Mr. Thomas say to that? How would the plaintiff's attorney react to that comment? What evidence would he look at to undermine the conclusion that the defense expert came to? And if you do that, you'll be doing your job. And that's what I'm going to ask you to do. If you forget everything I've said, if you forget the way I've said it, understand that the way you felt when this evidence came in, that's genuine, that's real. Use that in your deliberation. Understand, I'm going to go on to my next case, when this is over. And so is the defense counsel and so is the judge. But for the Mr. plaintiff, you're it. You are the one and only opportunity that he has for justice. You are the one and only opportunity to get this right. Give it the time and attention that it deserves. That's great. That's great. And you would say kind of mirror what the pattern jury instructions are. Absolutely. I like to say things like this. When I sit down, the judge is going to read the law to you. And I want you to pay very close attention to what the judge says, those little words with the big meaning. Things like what you may do, what you shall do and what you must do. And what you must do is award fair and adequate compensation for all the damages proven in this case. That's a must. And when you put it like that, they're listening. And I'm watching them because I've heard the charge many, many times. And I know when the judge gets to that point, you may do this, you shall do this, you must do this. I watch their faces. And even if it's just the high brow goes up or the head tilts a little bit, you know what, they're focusing on that. And it gives them the heads up, pay attention to what the judge says, you must do. So obviously you have your own style of doing things and it's been very successful for you and for the clients that you've had. How should young lawyers think about developing their voice, their own style in the courtroom? That's it. You've said it exactly. It's to develop your own style. Look, I'm going to be very honest with you. A lot of the stuff that I use and don't tell anybody, but I stole from somebody else. Okay. I just made it mine. I found a way to phrase it in a way that it rolls off my tongue easy. I found a way to explain it in a way that I think makes sense. So I don't ever tell anybody, here's the script, learn this script, you know, read this verbatim and you're going to be of an excellent trial attorney. It's about what is it that you excel at? How do you communicate with people? How can you tell a story in such a way that people will listen that you can convince them to hold off on their final decisions? What is it that you can do in your background? What experience do you have that you can share? So, Drew has now understand the way you communicate. Only you can determine the best way for you to communicate and get that message across. I had a boss obviously before I went out on my own, Thomas Lynch at the firm Lynch Rohn. And he once said something to me early on in my career and I didn't really get it at first at all. But as I've developed in my career and I've handled a lot of cases, it means a lot more now than it did before. He said, you're not a real trial lawyer until you've won a case you were supposed to lose and lose a case you were supposed to win. Do you agree with that? And what does that mean for you? It's happened. You know, I agree. I won my first 13 trials in a row. Sorry, excuse my apologies. I won my first 12 trials in a row. The 13th trial was the trial that I lost. And the trial that I lost was a hit in the rear in Walken County for a personal friend of Sanford Rubenstein, the second back. William's second back, I remember. Now you remember your first loss. And I said, how did I lose this case? They were driving in the car. William and his wife were in the car and they got hit in the rear by a landscaping truck who couldn't slow down in time and caused injuries to the plaintiff. And I learned about a year later that Mrs. Speck and back had been involved in the orange and rockland utility and apparently had embezzled some money. So the jury that I was speaking to were very well aware of this name have being involved in embezzling money or stealing money from a local utility, which is their utility. I was coming from Queens. I didn't know the local rockland county. So I don't think I ever had a chance of winning that case in light of the fact that the, you know, the plaintiffs were already known to the jury pool up there. Of course, I didn't know it and I just tried the case, but it stayed with me for a while and it taught me, know your audience, know who you're speaking to, understand the venues are different. These venues different without a doubt, the makeup of the jury and the Bronx is not the same as the makeup of the jury in Suffolk County. So you got to know your venue, you got to do your research, you got to do your homework, what is the other side? No, what, how could they know it? You know, social media and the internet is a wealth of information stuff that you can get now in five minutes by doing a Google search used to take days if not weeks of investigation to try and get through the old traditional sources. So there are really not those kind of secrets anymore, but I did learn a lesson, I did learn a lesson on that never underestimate any of the facts in your case. Like I said, this was a hit in the rear, how did I lose? I made sure that going forward, there was no case that shouldn't be given the time and attention to make sure that you do everything you can to win. So Peter, one last question, what's the law to see that you want to leave behind in the trial world? You know, I've been saying for a long time, I want to be rich, not famous. And what I mean by that is, if I'm making money, that means my clients are making money. And it's, you can be famous, like for example, you can be famous by representing a famous person. Okay, we know plenty of lawyers who represented famous people that didn't work out well for their client, but the lawyer goes on to a whole career because they represented, you know, look at PDD or Harvey Weinstein, you know, but the point I'm trying to make is that my goal is to satisfy my clients, get justice for my clients. So the best compliment is a return client, a client who says, you tried my case, my mother got an accent, my neighbor needs a lawyer, there's only one lawyer that I told him the call and that was you. And I always take that as a tremendous compliment, a tremendous boost and affirmation, if you will, about what I do. But I don't ever take those cases because I'm a trial lawyer, I try cases for other law firms. So if a case comes to me from the beginning, more times than not, I'll refer it out. And if it comes up for trial and they request me, then I'm, you know, honored to go ahead and litigate that case. If it settles along the way, then good for them. So I don't really think about, you know, my legacy. What's my legacy? Yeah, I have a lot of verdicts. I can tell you that in terms of numbers, I've taken a lot of verdicts over the years. And with the advent of the summary jury trial, I can even take two or three verdicts in a week with a summary jury trial. Actually, one of my associates, his name is Peter Culp. He took three jury verdicts in one week on this summary jury trial system, which is virtually unheard of. And the key is the same key to life preparation. You got to be prepared. If you're going to be that busy, you're going to have that many cases lined up one after the other. Then you've got to take the time to prepare them so that if and when the case comes up, and then you sometimes you don't know which case is going to go. You got to prepare it in advance so that way when you pick it up, everything is done. And you can just go and put on the show. I love that. Well, Peter, before we end, I just want to put on the record from myself. How grateful I am for your friendship, for your mentorship. I met you at the very beginning of my career. And you have always been such a supporter through everything. I remember I had my first trial, which I lost. And you know, I didn't even call you. You called me to see how it went and talk me through it. And I just, I'm so grateful. You have been so influential in my career and my life, just like Mr. Rubenstein. And it's an absolute honor being associated with you. And especially having you on here today. This was excellent. So thank you so much. Well, my pleasure. You're an excellent student. And you know, when the student takes over and becomes better than the teacher, then that's, you know, you can't ask for more than that. So keep doing what you're doing. You're representing people who really need that representation. You're standing up for the people whose voice is not nearly as loud until you come along. And keep doing what you're doing because what you're doing is God's work for sure. I appreciate that. Thank you so much, Peter. I appreciate it. Thanks for watching. Be sure to hit that like and subscribe button and leave us a review in the comments.