The 18th Annual Oregon Trial Advocacy College · Portland, Oregon. 15 General CLE or Practical...

Thursday, October 27, 2016 8:25 a.m.–4:30 p.m.

Friday, October 28, 2016 8:30 a.m.–5:30 p.m.

Mark O. Hatfield United States CourthousePortland, Oregon

15 General CLE or Practical Skills credits

The 18th Annual Oregon Trial Advocacy College

Supported by the Oregon Chapter

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18TH ANNUAL OREGON TRIAL ADVOCACY COLLEGE

PLANNING COMMITTEE

The Honorable Edward Leavy, U.S. Court of Appeals, Ninth Circuit, PortlandThe Honorable Mary Mertens James, Marion County Circuit Court, Salem

William Barton, The Barton Law Firm PC, NewportJulie Elkins, Zipse Elkins & Mitchell, Portland

Peter Richter, Miller Nash Graham & Dunn LLP, Portland

The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials.

Copyright © 2016

OREGON STATE BAR16037 SW Upper Boones Ferry Road

P.O. Box 231935Tigard, OR 97281-1935

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TABLE OF CONTENTS

Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

1. Shortcut to Quick Step Guide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–i— Peter C. Richter, Miller Nash Graham & Dunn LLP, Portland, Oregon

2. Trial Advocacy: Quick Step Guide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–iPeter C. Richter, Miller Nash Graham & Dunn LLP, Portland, Oregon

3. Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–iWilliam A. Barton, The Barton Law Firm PC, Newport, Oregon

4. Case File: Lawrence T. Monroe, Plaintiff, v. Teresa Louise Cartwright, Defendant . . . . . . 4–i

5. Factual Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–i

6. Pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–i

7. Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7–i

8. Health Consultations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8–i

9. Jury Instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9–i

10. Special Verdict Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10–i

11. Being Persuasive During Trial: Observations from the Bench . . . . . . . . . . . . . . . . .11–i— Moderator: The Honorable John Acosta, U.S. District Court, Portland, Oregon— The Honorable Norman Hill, Polk County Courthouse, Dallas, Oregon— The Honorable Marilyn Litzenberger, Multnomah County Circuit Court, Portland,

Oregon— The Honorable Eve Miller, Clackamas County Circuit Court, Clackamas, Oregon— The Honorable Katherine Tennyson, Multnomah County Circuit Court, Portland,

Oregon

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ABOTA–Oregon is proud to continue its support for the Oregon Trial Advocacy College. Founded upon a mission to foster improvement in the field of advocacy, ABOTA strives to:

• Elevate the standards of integrity, honor, and courtesy in the legal profession;

• Further the education and training of trial lawyers;

• Preserve our jury system;

• Promote the efficient administration of justice and constant improvement of the law; and

• Cultivate a spirit of loyalty, fellowship, and professionalism among its members.

ABOTA is composed of both plaintiffs and defense attorneys, and membership is by invitation and election only after proof of substantial trial experience.

Thank you to

for their generous support of scholarships for the Oregon Trial Advocacy College

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Thursday, October 27

8:00 Registration (16th Floor Lobby)

8:25 Welcome

8:30 Winning Persuasive Advocacy Theories and TechniquesPeter Richter, Miller Nash Graham & Dunn LLP, Portland

9:15 Voir Dire—Who Do You Want (or Not Want) to Decide Your Case?Michael Wise, Michael Wise & Associates PC, Lake OswegoRalph Spooner, Spooner & Much PC, Salem

10:00 Break

10:15 How to Make a Great Opening Statement and a Favorable First ImpressionCharese Rohny, Charese Rohny Law Office LLC, PortlandDonald Bowerman, Bowerman Law Group PC, Oregon City

11:00 Direct Examination—The Most Important Evidentiary Part of Your CaseThomas D’Amore, D’Amore Law Group, Lake OswegoMatthew Donohue, Markowitz Herbold PC, Portland

12:00 Lunch

1:00 Effective Cross-Examination: Its Purpose and GoalsJames Huegli, Huegli & Fraser PC, PortlandJanet Hoffman, Janet Hoffman & Associates, Portland

2:00 Using Closing Argument to Keep the Jury on Your SideWilliam Barton, The Barton Law Firm PC, NewportJohn Hart, Hart Wagner LLP, Portland

3:00 Break

3:15 Being Persuasive During Trial: Observations from the BenchModerator: The Honorable John Acosta, U.S. District Court, PortlandThe Honorable Norman Hill, Polk County Courthouse, DallasThe Honorable Marilyn Litzenberger, Multnomah County Circuit Court, PortlandThe Honorable Eve Miller, Clackamas County Circuit Court, ClackamasThe Honorable Katherine Tennyson, Multnomah County Circuit Court, Portland

4:30 Adjourn

Friday, October 28

8:30 Voir Dire—Courtroom Session I10:30 Break10:45 Opening Statement—Courtroom Session II12:00 Lunch1:00 Direct and Cross-Examination—Courtroom Session III4:00 Break4:15 Closing Argument—Courtroom Session IV5:15 Final Thoughts on Effective Advocacy (16th Floor Courtroom)5:30 Adjourn to Hosted Reception (16th Floor Lobby)

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FACULTY

The Honorable John Acosta, U.S. District Court, Portland. Judge Acosta was appointed a magistrate judge for the United States District of Oregon on March 5, 2008, and maintains chambers in Portland. Prior to his appointment, Judge Acosta served as Senior Deputy General Counsel for TriMet, the public transportation authority for metropolitan Portland, and before that he was in private practice in Portland and Alaska. Judge Acosta is a member and past chair of the Oregon State Bar Joint Bench/Bar Commission on Professionalism, and he serves on the University of Oregon School of Law Dean’s Advisory Council. Judge Acosta also has been active in the community through service on the boards of several nonprofit social services organizations, as a member of legal professional associations, by teaching as an adjunct professor at the University of Oregon Law School, and by coaching high school mock trial students, among other volunteer activities.

William Barton, The Barton Law Firm PC, Newport. Mr. Barton has practiced law for 40 years and continues to try difficult and challenging cases. He has lectured on trial advocacy in 35 states and four countries and has testified as an expert witness in legal malpractice cases. Mr. Barton is the author of Recovering for Psychological Injuries, 3rd Edition (Assn of Trial Lawyers of Amer 2010). He is certified by the Oregon Supreme Court as an Oregon Trial Courts Judge Pro-Tempore. Among other professional activities, Mr. Barton is past president of the American Board of Trial Advocates Oregon Chapter, the Western Trial Lawyers Association, and the Oregon Trial Lawyers Association, and he was an Oregon State Delegate to the American Bar Association. He also is a Fellow of the International Society of Barristers and Litigation Counsel of America. Mr. Barton is the 2015 recipient of the Oregon State Bar Award of Merit and the 2005 recipient of the Oregon Trial Lawyers Association Distinguished Trial Lawyer award.

Donald Bowerman, Bowerman Law Group PC, Oregon City. Mr. Bowerman’s practice has been primarily in the defense of medical, legal, and casualty claims. In recent years, he has expanded his practice to include estate, probate, and land use law. He has also handled varied complex litigation cases involving banking, aviation, construction, antitrust, condemnation, and school law. He regularly serves as an assigned pro tem judge in Clackamas County, ruling on the civil motion docket, and has served statewide as a circuit judge pro tem since 1993. He also mediates and arbitrates civil cases. Mr. Bowerman is a Fellow in the International Academy of Trial Lawyers, the American College of Trial Lawyers, and the American Bar Foundation; a member of the American Board of Trial Advocates, Litigation Counsel of America, the American Bar Association, the Lawyer Pilots Bar Association, the Oregon Association of Defense Counsel, the Oregon State Bar Litigation Section, and the Professional Liability Fund Defense Panel; and chair of the Clackamas County Pro Tem Judicial Selection Committee. He is the 2005 recipient of the Oregon State Bar Litigation Section Owen M. Panner Professionalism Award and the 2004 recipient of the Clackamas County Bar Association Lifetime Achievement Award.

Thomas D’Amore, D’Amore Law Group, Lake Oswego. Mr. D’Amore’s practice covers the areas of personal injury, motor vehicle accidents, wrongful death, nursing home abuse, sexual abuse and assault, medical negligence, construction site injury, complex litigation, bad faith policies, and class actions. Mr. D’Amore is a member of the American Association for Justice Executive Committee, past president of the Oregon Trial Lawyers Association, and a Washington State Association for Justice EAGLE member. He is board-certified as a civil trial advocate by the National Board of Trial Advocacy and is a member of the American Board of Trial Advocates. He is also a member of the American Bar Association, the Multnomah Bar Association, the Clackamas County Bar Association, the Clark County Bar Association, and the National Crime Victim Bar Association. Mr. D’Amore is admitted to practice in California, Oregon, and Washington, and he is an inactive CPA in California and Oregon.

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Matthew Donohue, Markowitz Herbold PC, Portland. Mr. Donohue maintains a national trial practice, trying some of the firm’s most complex and challenging cases. He has represented companies ranging from startups to Fortune 500 companies in a wide variety of business cases, including antitrust, class actions, contract and licensing disputes, partnership and shareholder disputes, real estate, and intellectual property litigation. Mr. Donohue has first-chaired jury trials, bench trials, and arbitrations in state and federal courts across the country. A significant portion of his practice is spent defending complex class actions.

John Hart, Hart Wagner LLP, Portland. Mr. Hart’s practice has primarily focused upon defending medical malpractice lawsuits and, to a lesser extent, other complex civil litigation involving products liability and catastrophic injuries. He has tried over 360 civil lawsuits through to a jury verdict in Oregon and Washington state courts as well as federal court. He regularly defends doctors, midwives, nurses, hospitals, and medical institutions in cases involving alleged birth trauma injuries, cancer misdiagnosis, surgical mishaps, and the like. He is a regular speaker and author on trial advocacy and related topics.

The Honorable Norman Hill, Polk County Courthouse, Dallas. Judge Hill was appointed Polk County Circuit Court judge in 2012. He is responsible for a general jurisdiction docket presiding over criminal, civil, and family law cases. Judge Hill also serves as the primary juvenile court judge and regularly conducts civil judicial settlement conferences. Prior to serving on the bench, Judge Hill was in private practice in Salem, specializing in civil litigation and business law with an emphasis on real estate and land use matters. Judge Hill is an adjunct professor at Willamette University College of Law, where he teaches courses on real estate transactions, juvenile law, and trial practice.

Janet Hoffman, Janet Hoffman & Associates, Portland. Ms. Hoffman is a criminal defense lawyer who represents individuals and corporations threatened with serious and complex criminal or regulatory proceedings. She defends individuals, corporate officers, and corporations in a wide variety of matters, including investigations and indictments involving the SEC, EPA, and DOJ. She has expertise in cases involving fraud, corruption, and environmental offenses and represents individuals charged with serious crimes. She speaks and writes on these subjects frequently.

James Huegli, Huegli & Fraser PC, Portland. Mr. Huegli is a Certified Arbitrator by the American Arbitration Association, a Certified Mediator for the Oregon Court of Appeals, and an arbitrator for the General Motors National Dealer Reinstatement Program. He is a member of the International Academy of Trial Lawyers, the American College of Trial Lawyers, the Willamette University College of Law Center for Dispute Resolution, the Owen M. Panner American Inns of Court, and the ABA Fidelity and Surety Law Committee.

The Honorable Marilyn Litzenberger, Multnomah County Circuit Court, Portland. Judge Litzenberger was elected to serve as a Circuit Court Judge on the Multnomah County bench in 2002. She has also served an adjunct professor of law at Lewis & Clark Law School, both before and after she became a judge, teaching trial practice skills to upper-division law students. Judge Litzenberger is an active member and past president of both the Owen M. Panner American Inns of Court and Oregon Women Lawyers. She also has has participated on a variety of committees for the Oregon Judicial Department, including the Chief Justice’s Court Reengineering Work Group, the Judicial Education Committee, and several groups convened to address issues leading to the implementation of the e-Court systems. Judge Litzenberger was a member of the task force that produced the Recommended Practices for Civil Trials in Multnomah County and later published The Vanishing Civil Jury Trial in Multnomah County, which analyzed how courts have contributed to the decline in number of jury trials and recommended changes to the court’s management of civil cases as a method to increase access to justice for litigants to choose to try their disputes to a jury.

FACULTY (Continued)

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FACULTY (Continued)

The Honorable Eve Miller, Clackamas County Circuit Court, Clackamas. Judge Miller has served as a Circuit Court Judge since June 1997 and has handled a wide variety of civil and criminal cases. The civil cases range from complex to routine tort and contract, as well as all aspects of family and juvenile law. Judge Miller has managed the Family Drug Court treatment court since 2012. She is chair of the Clackamas County Bar Association CLE Committee, a member of the Oregon State Bar Professionalism Task Force, an emerita member of the Owen M. Panner American Inns of Court, and a member of the National Council of Family and Juvenile Court Judges.

Peter Richter, Miller Nash Graham & Dunn LLP, Portland. Mr. Richter is a litigator whose cases have involved numerous legal issues in contracts, business, and tort law, including construction, securities, antitrust, probate and trust, real estate, insurance, personal injury, franchise, banking, partnership, creditors’ rights, labor, land use, and timber law. He has helped hundreds of clients resolve their legal problems through negotiation, mediation, arbitration, and primarily jury trials. He is a member of the American Board of Trial Advocates and the International Association of Defense Counsel. Mr. Richter is admitted to practice before the United States Supreme Court.

Charese Rohny, Charese Rohny Law Office LLC, Portland. Ms. Rohny practices in the areas of employment discrimination and civil rights. She is a member of the National Employment Lawyers Association, the American Association for Justice, Oregon Women Lawyers, the Oregon Trial Lawyers Association, the Multnomah Bar Association, and the Oregon State Bar Labor and Employment Law and Civil Rights sections. She is admitted to practice in Oregon and California.

Ralph Spooner, Spooner & Much PC, Salem. Mr. Spooner practices in the areas of complex civil litigation, business litigation, insurance litigation, professional malpractice, general tort liability, product liability, employment claims, construction defect claims, liquor liability claims, premises liability claims, sexual abuse claims, and appellate cases. He is a member of the Oregon Association of Defense Counsel, the Marion County Bar Association, and the Federation of Defense and Corporate Counsel.

The Honorable Katherine Tennyson, Multnomah County Circuit Court, Portland. Judge Tennyson is a member of the Family Law Department, which is a unified family court. Judge Tennyson became the Chief Probate Judge for the county in January 2007. Judge Tennyson is the President of the National Council of Juvenile and Family Court Judges (NCJFCJ). Judge Tennyson has served as faculty for NCJFCJ national judicial training, including the Child Abuse and Neglect Institute, Enhancing Judicial Skills in Elder Abuse Cases, and the Institute for New Family Law Judges. She is a frequent speaker on issues including trial practice, elder abuse, family violence, and probate. Judge Tennyson is admitted to practice law in both Oregon and Washington. She is the 2015 recipient of the Oregon State Bar Wallace P. Carson Jr. Award for Judicial Excellence.

Michael Wise, Michael Wise & Associates PC, Lake Oswego. Mr. Wise practices general business and injury law. He is a member of the Oregon Trial Lawyers Association President’s Club, the American Trial Lawyers Association, the American Bar Association, the Multnomah Bar Association, the Clark County (Washington) Bar Association, and the Washington State Trial Lawyers Association. He is admitted to practice in Washington and Oregon. He has written articles on jury selection for the Oregon Trial Lawyers Association and lectured on the topic many times.

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Chapter 1

Shortcut to Quick Step GuidePeter C. riChter

Miller Nash Graham & Dunn LLPPortland, Oregon

Chapter 1—Shortcut to Quick Step Guide

18th Annual Oregon Trial Advocacy College 1–ii


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SHORTCUT TO QUICK STEP GUIDE

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I. GENERAL THOUGHTS ON PERSUASION

A. Get them to like you.

B. Be yourself.

C. Communicate at all levels.

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D. It’s all about your audience, not about you.

E. Recognition of injustice is in our DNA.

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F. FACTS PERSUADE

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II. GATHER ALL FACTS.

A. Put yourself in all scenes, in all participants’ shoes and determine what happened, what should have happened, what didn’t happen.

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B. Prepare a detailed chronology of the facts, annotated and indexed to source material.

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C. Identify the story, what happened, why, and motives or reasons.

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D. Create storyboards/chapters – to break the story down into acts and scenes, or chapters.

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III. ORGANIZE THE STORY

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A. Identify the conclusions you want the audience to reach – ask yourself “why?”, “what is the goal?”

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B. Consider consequences –responses. Multidimensional chess game.

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C. Identify those facts which will make the audience believe they should decide the case in your favor (the theme, the heartbeat of the case, the “grab ‘em,” the “Universal Truth.”

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D. Identify words and phrases to use (7th grade vocabulary).

E. Weave in legal words and phrases from the instructions.

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F. Prepare a matrix of the elements to each claim and defense and corresponding evidence.

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IV. PRESENT THE STORY

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A. Use facts to lead the audience to reach their own conclusions.

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B. Start and end strong each step of the process (you are at bat, you are going to walk, strike out, or get a hit).

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C. Attention span – 60-90 seconds – do something different – get their attention.

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D. Again - consider the consequences of everything you do and say – multi-dimensional chess game.

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E. Make it memorable – key words, phrases, demonstrative exhibits, pictures, diagrams.

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F. When you’re done – STOP!

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Chapter 2

Trial Advocacy: Quick Step GuidePeter C. riChter1

Miller Nash Graham & Dunn LLPPortland, Oregon

1 © Copyright 2007.

Contents

Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1

The Three Kinds of Lawyers Who Try Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1A. Definition of Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1B. Universal Techniques of Persuasion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1C. The ABCCCs of Advocacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–2

II. General Techniques of Persuasion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–3

III. The Preliminaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–4

IV. The Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–8A. Voir Dire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–8B. Opening Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–10C. Direct Examination of Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–12D. Cross-Examination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–14E. Closing Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–15

Appendix—Trial Preparation Matrix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–17

Chapter 2—Trial Advocacy: Quick Step Guide




“The modern jury trial is one of the most important, demanding, exhausting, probing, and sometimes humbling and humiliating events that can be experienced by a person, be that person a party, a witness, a lawyer, or a judge.”

State v. Mains, 295 Or 640, 658 (1983)

FOREWORD

The purpose of this guide is to provide a basic outline of persuasion and advocacy techniques for the new, younger, inexperienced lawyer, and also to remind the more experienced lawyer of some of the fundamentals of advocacy.

The last two generations of lawyers have primarily been educated and trained in the process and procedure of “litigation”; that is, use of all of the discovery tools available under local state and federal rules. For many reasons too numerous to mention here, we are losing the bedrock of our justice system—jury trials.

Despite recent efforts to make it easier to try jury cases, these efforts will not succeed unless and until we train, educate, and provide experience for young lawyers to develop confidence and become comfortable with jury trials.

This guide is not intended to be a comprehensive treatise on persuasion techniques or advocacy. There have been sufficient volumes written over the centuries detailing techniques and “winning strategies.” Rather, this guide is an attempt to identify certain key concepts that contribute to the successful trial of a lawsuit.

THE THREE KINDS OF LAWYERS WHO TRY CASES

1. The Junkyard Dog—her sole purpose is to try the case, whether for a fee, for reputation, or because she doesn’t know any better. Her primary, if not sole focus, is on the trial—this is the lawyer who is rapidly becoming extinct.

2. The Litigator—found primarily in large metropolitan law firms engaged in the process and procedure of discovery, engaging in motion practice ad nauseam, using every procedural tool available to excess until the Litigator recommends settling just before trial because she doesn’t have the experience or ability to try the case.

3. The Advocate—is able to recognize and has the skills to focus on his primary goal, which is helping clients resolve their legal disputes favorably, economically, efficiently, and professionally, whether through negotiation, mediation, arbitration, or trial before a judge or jury.

We should all strive to be “Advocates.”

I. INTRODUCTION

A. Definition of Advocate

An advocate is one who helps solve clients’ legal problems favorably, economically, efficiently, and professionally through negotiation, mediation, and arbitration or, if all else fails, be ready, willing, and able to competently represent that client in court before a judge or jury.

Remember—One of the best ways to encourage settlement of a case is to get a trial date and get ready for trial.

B. Universal Techniques of Persuasion

This guide is focused primarily on a jury trial, although many of the suggested techniques of persuasion apply equally regardless of the audience.

Advocacy is an art and has no “right way” or “wrong way.” However, scholars and practitioners over the centuries have identified certain universal principles and techniques that have been shown to



be more persuasive than others, depending of course upon the audience and its societal, cultural, and religious background.

1. Be Yourself. Although this guide contains suggested techniques, it is not to say every Advocate should adopt someone else’s style. What works for some does not work for others, and we should use our own unique characteristics and skills to advantage.

Incorporate the following suggested techniques into your own personality and style to effectively persuade, but don’t try to copy someone else—read about successful techniques and watch experienced Advocates, but never lose your own personality.

2. Credibility and Candor Succeed—Get ’Em to Like You! Effective persuasion in the legal context requires that you, the Advocate, above all else, be likeable. It is much easier to gain the respect and trust you need to be credible, and thus persuade, if your audience likes you, regardless of who it is, whether opposing lawyer, mediator, arbitrator, judge, or jury.

You will be constantly judged as you perform your multiple roles as author, director, counselor, actor, stagehand, teacher, advisor, talk-show host (voir dire), and guide. Don’t overstate or try to fool them—credibility is hard to earn but easy to lose.

3. Litigation Is a Multi-Dimensional Chess Game. The art of advocacy in the litigation context is a multi-dimensional chess game that requires anticipation of the consequences and response by your audience of every move, decision, and written or oral statement you make. It demands:

F Preparation3;1

F Imagination;

F Passion; and

F Credibility.

As you prepare each move at each phase of the process, whether the first pleading or the closing argument, ask yourself these three questions:

F Can I do it?—Is it legal, ethical, and professional?

F How do I do it?—The mechanical part.

F Should I do it?—What’s my goal, my purpose?

Why? The most important questions!

Be aware that you are constantly being observed, graded, and judged—imagine yourself, every time you write, say, or do something, as being at bat in a baseball game—are you going to strike out, walk, or get a hit?

C. The ABCCCs of Advocacy2

A—Accurate;

B—Brief;

C—Clear;

C—Concise;

C—Candid.1 Not a footnote, rather “Preparation” to the third power!2 Bill Barton’s ABCs, plus two.



II. GENERAL TECHNIQUES OF PERSUASION

Step 1

Recognize that persuasion is not getting people to do what you want them to do. Rather, persuasion is getting your audience to do what it thinks it should do! Make them believe you are helping them correct or prevent an injustice—”It’s not fair if you [do or do not] . . . !”

F Focus on your audience:

F What does it want?

F What does it need?

F What does it hear?

F What does it see?

F What is its attention span?

F What does it “feel”?

Put yourself in their shoes.

Step 2

Remember Aristotle’s three means of persuasion:

1. Ethos—The speaker’s power of evincing a personal character that will make his speech credible.

2. Pathos—His power of stirring the emotions of the audience.

“People will forget what you said,“People will forget what you do,“People will never forget how you made them feel.”

—Maya Angelou

3. Logos—Proving a truth or an apparent truth by means of logic.

Step 3

Learn to communicate at all levels:

F How we look;

F How we talk;

F How we act—eye contact; gestures;

F The words we use;

F The order of words;3

F Get them to like, respect, and trust you.

Step 4

Facts! Persuade. Not conclusions, characterizations, adjectives, or adverbs.

Step 5

Organize the facts! into a believable, compelling story. Use the storyboard technique.4

3 The “power of sequencing!”4 “People think in pictures.”



Step 6

Develop the theme—those facts that will make the audience want to decide the case in your favor—not a slogan or catch phrase.

Step 7

Remember the goal:

F Help clients solve their legal problems;

— Favorably,

— Efficiently,

— Economically, and

— Professionally.

F Not to demonstrate how smart, knowledgeable, or tough you are;

F No mudslinging.

Step 8

Tell what happened and then show what happened—charts, diagrams, timelines, etc. Organize exhibits consistent with your story board.

Step 9

Keep it simple—most cases come down to somebody doing or not doing something they should or should not have done and their motives. Your audience wants to know, first of all, what happened and why!

Step 10

Make it memorable. Use those facts and techniques that will create vivid and memorable pictures in the juries’ minds.

Step 11

Remember, people’s attention span is between 30 and 90 seconds!

III. THE PRELIMINARIES

Step 1

Prepare three-ring trial notebook with tabs as follows:

1. Notes and to-do list

2. Chronology

3. Legal elements and evidence matrix

4. Pleadings

5. Pretrial motions—motions in limine to exclude or allow evidence

6. Witness lists (plaintiffs/defendants)

7. Exhibit lists

8. Trial memo

9. Trial motions and bench memos—motion for directed verdict or to strike or dismiss claims

10. Voir dire



11. Opening statement

12. Direct examination

13. Cross-examination

14. Closing argument

15. Jury instructions

16. Verdict form

17. Law notes

18. Post-trial motions

Step 2

Constantly update and add to trial notebook.

Step 3

Gather all of the facts.

“WHAT YOU WANT AT THIS TIME ABOVE ALL ELSE IN THE WORLD ARE THE FACTS. THE FACTS, ALL THE FACTS, AND NOTHING BUT THE FACTS. . . . THE FACTS! WOULD THAT THERE WERE SOME WAY OVER AND ABOVE ITALICS WITH WHICH I MIGHT STRESS, MIGHT SHOUT ALOUD THAT WORD: FACTS!”

—The Art of Advocacy: A Plea for the Renaissance of the Trial Lawyer by Lloyd Paul Stryker, Zenger Publishing Co. Inc. (1954)

Step 4

Recreate the events:

F Documents

F Testimony—put yourself in shoes of all participants. Determine what was said and what happened, what wasn’t said or didn’t happen, and what should have been said or should have happened.

F Do not assume anything!

Step 5

Identify the relevant law.

Step 6

Prepare a detailed, annotated, indexed chronology of the facts.

Step 7

Prepare jury instructions.

Step 8

Prepare verdict form.

Step 9

Find the story of your case—the theme. Most cases come down to somebody doing or not doing what they should or should not have done. Examine all of the facts from your chronology and organize them into picture segments until you identify the theme, otherwise known as:

F “The heartbeat of the case,”5

5 “Learning to Think Like a P.I. Lawyer,” James G. Nelson, Salem, Oregon.



F “Elevator speech,”

F Those universal truths with which the majority of your audience will agree—i.e., “abuse of power,” “broken promises,” “loss of dignity.”

F My definition: “Those facts which will make the judge or jury want to decide the case in your favor.”

F My other definition: “Those facts which will make the judge or jury conclude they should decide in your favor.”

Step 10

Prepare legal elements and evidence matrix. See attached Trial Preparation Matrix.

Step 11

Rearrange the facts into a “storyboard”; picture segments or chapters consistent with your theme. Those segments may or may not be in chronological order—usually not.

Step 12

Prepare your draft closing argument. This is your best description of why your side should prevail—use it to assess what evidence you need and what evidence can be discarded; however, it is not a summation of the evidence—rather, argue its “significance.”

Step 13

Prepare preliminary exhibit list.

Step 14

Prepare preliminary witness list.

Step 15

Complete the legal elements and evidence matrix using jury instructions, exhibit lists, and witness lists.

Step 16

Prepare demonstrative exhibits.

F Simple;

F Clear;

F Effective—No more than three points per exhibit;

F Timeline if appropriate.

“I hear and forget.“I see and I remember.”

Chinese philosopher, attributed by some to Confucius, 551–479 B.C.

(“I do and I remember”—But that’s another Quick Step Guide!)

Step 17

People like stories. Write the story.

F Choose active, descriptive, and memorable words—little, if any, legalese (except incorporating words from jury instructions in your story). However, don’t “talk down.”

Bad: “She had a subdural hematoma, a pooling of blood on the brain, for you lay people.”

Good: “She had a pooling of blood pressing against her brain—the doctors call that a subdural hematoma.”



F Use all of the “senses” to describe the story. (Have not yet found a way to incorporate into trial that sense which triggers memories the best—smell!)

F Use the same key descriptive and memorable words and phrases throughout the story.

F Use “anchoring,” a phrase repeated to reinforce a point or the same place in the courtroom.

F Reduce complex theories to simple, understandable, seventh grade language, using analogies and examples from everyday life.

F Organize the story for greatest persuasive impact, omitting extraneous detail but highlighting, emphasizing, and expanding on facts supporting your theme. Don’t be afraid to eliminate extraneous material. Keep the story moving toward the conclusion.

When Michelangelo was asked how he managed to turn a lump of marble into a beautiful statue of an angel, he replied: “I saw the angel in the marble and carved until I set him free.”

F Use different techniques to change topics and keep (or recover) audience’s attention. Introductory headlines, pauses, movement, gestures, or reference to an exhibit.

“Now let’s talk about your injuries.”

F Simplify!

“Everything should be made as simple as possible, but not simpler.”—Albert Einstein

Step 18

Make a list of all of the conclusions you want your audience to reach—the answers to the questions it will be asking itself as it reads/listens to your presentation.



Step 19

Put each conclusion on a separate sheet of paper and list all of the evidence, including inferences, supporting that conclusion, annotated and indexed to the source of that evidence, whether a document, photograph, deposition, or interview.

Step 20

Prepare your exhibit list annotated and indexed to witnesses. The first few exhibits should tell the story. Here is where the “should I? why? what’s my purpose? my goal?” questions are most often ignored and abused!

Step 21

Prepare witness outlines annotated and indexed to exhibits and deposition excerpts.

Step 22

Repeat the three questions with each decision:

“Can I?” “How do I?” “Should I?”

IV. THE TRIAL

A. Voir Dire

“The horrible truth is that nothing is more exquisitely painful than listening to the average voir dire.”

—McElhaney, “Voir Dire,” Litigation—ABA Journal of the Section of Litigation

VOIR DIRE

VWOR DEER

VWOR DIE – ER

JURY DISSELECTION



Step 1—First Do No Harm

F Don’t embarrass.

F Don’t humiliate.

F Don’t be condescending.

F Don’t ask dumb questions about meaningless topics, e.g., “What’s the last book you read?”

Step 2

Get them to like and trust you—establish eye contact with each juror.

Step 3

Get them talking about what they are comfortable with—themselves.

Step 4

Try to identify the biased “problem” jurors and the potential leaders of the jury.

Step 5

Avoid trying to convince jurors by asking “questions” that result in only “yes” or “no” responses—ask open-ended questions requiring a narrative answer.

Step 6

Identify key issues and state them in neutral, open-ended questions—e.g., “What do you think about drinking and driving?” “How do you feel about that?” “What’s your reaction to that?”

Step 7

Listen and hear.

“Nobody never learned nothin’ while their lips are movin’.”—Anonymous

Step 8

Use seventh-grade vocabulary, but don’t pander or talk down to jurors.

Step 9

Follow up on answers—even “bad” ones; better to know now.

Step 10

Don’t forget damages—do you or do you not discuss? If seeking damages, yes; if defending, it depends.

Step 11

Be candid and ask for candor.6 Disclose negative facts but combine with positive information.

Step 12

Best result? Having jurors identify and articulate the conclusions you want them to reach through open-ended, neutral questions.

Step 13

Trust your instincts!6 Remember the title of Judge Judy’s book—Don’t Pee on My Leg and Tell Me It’s Raining.



B. Opening Statement

Step 1

Write the entire story using active and memorable seventh-grade vocabulary—eliminate the legalese, except some key words or concepts, from jury instructions.

Step 1.1: Rewrite the story.

Step 2

Arrange the story in the most persuasive (to correct or prevent an injustice) manner so that you:

F Start and end strong.

F State facts, not opinions, characterizations, conclusions, adjectives, or adverbs.

F Subtly restate or provide more detail regarding key facts.

F Use storyboard, headline, sound bite, or segmentation technique of presentation, e.g., “Now let’s talk about. . . .”

F Use “real” evidence, i.e., exhibits, diagrams, maps, pictures, etc.

Step 3

Arrange facts in the most persuasive order or segments, not necessarily chronological—use storyboard or chapter method. (“Let’s first talk about the accident and then your background.”)

Step 4

Prepare the theme or “grab ’em”—that first 30 to 90 seconds of your opening during which you gently set before the jurors those facts that will make them want to immediately decide the case in your favor—or at least get them heading in that direction. The theme is not a slogan or catch phrase such as, “This case is about the tragedy of the loss of a loved one.”

F Don’t state conclusions.

F Don’t make characterizations.

F Don’t argue.

F Don’t tell (adults, not only children, psychologically resist being told what to do or think).

F Don’t read or memorize it.

F Do use rhetorical questions.

F Do lead jurors to the conclusions you want them to reach by giving them facts that will make them want to decide the case in your favor.

F People’s attention span is between 30 and 90 seconds.

F Have a strong beginning and end.

F Put the really bad facts in the middle and combine them with explanatory or mitigating factors.

F Use some key words or phrases from jury instructions.

F Use exhibits, diagrams, and pictures.



F At least every 90 seconds do something to regain lost attention, e.g.:

— Pause;

— Refer to exhibit;

— State next chapter or topic heading;

— Slow down;

— Move;

— Change tone of voice;

— Change the communication method—go from speaking to blow-up to exhibit or to video clip—the newscaster “sound bite” method.

Step 5

Reduce your written opening to an outline, using key words and phrases.

F Use a demonstrative exhibit as outline for opening.

F Use exhibits as prompts for opening.

F Use a timeline.

Step 6

Revise outline of opening.

Step 7

Revise and refine outline of opening.

Step 8

Revise outline yet again by simplifying but expanding on persuasive facts supporting your theme until you can present it in less than 30 minutes.



Step 9

Rehearse, rehearse, rehearse.

F Practice your grab ’em and story to nonlawyers.

F Use word association technique to get reaction from your nonlawyer audience—”what’s the first word or thought that comes to mind when I say [state your 60-second grab ’em theme].”

Step 10

Keep it simple, brief, and memorable!

Step 11

End strong!

C. Direct Examination of Witnesses

Step 1

Get the facts and all of the facts—use your detailed annotated chronology.

Step 2

Prepare a list of conclusions you want jury to reach with that witness’s testimony. (Use your legal elements and evidence matrix.)

Step 3

Ask yourself, “Why am I asking this witness these questions? What is my goal? What is my purpose? What conclusions do I want the jurors to reach? What will be my opponent’s response and what will my rebuttal be?” Remember—Advocacy is a multidimensional chess game.

Step 4

Organize conclusions into the most persuasive order—you may not want to begin with the witnesses’ education, work history, and memberships in charitable organizations.

F Listen to and hear the answers given.

F Don’t just blindly follow your outline if the witness gives an incomplete or inaccurate answer.



F Follow up.

Step 5

Write each conclusion you want jury to reach at the top of a sheet of paper—use a new sheet for each conclusion.

Step 6

List all answers you want each witness to give under each conclusion. (This will help you ask nonleading questions.)

Step 7

Index and annotate each answer with supporting exhibits, deposition excerpts, diagrams, etc.

“And I would sooner trust the smallest slip of paper for truth, than the strongest and most retentive memory, ever bestowed on mortal man.”

—Joseph Henry Lumpkin, American Jurist, Miller and Others v. Cotton and Others, 5 Ga 341, 349 (1848)

Step 8

Simplify, simplify, simplify.

Step 9

Expand on those conclusions you want the jury to reach. Paint a detailed picture in the jury’s mind’s eye with clear, concise, descriptive, seventh-grade words. Use diagrams, pictures, and exhibits with the witness—tell and then show your story.

“[Pictures] are images,“Directly entering the blood stream,“Bypassing the brain.”

—William J. Washington, Journalism Review, 1990

Step 10

Put jurors “in the scene” (“Ms. Witness, you were standing at the corner of SW 5th and Pine, what do we see?”).

Step 11

Rehearse, rehearse, rehearse with your witnesses. (Visit the courtroom with your witnesses before trial.)

Step 12

Use subtle repetition, i.e., use some portion of the previous answers in the next question. (Q: As he approached you, did you notice anything unusual? A: Yes, he had a gun. Q: What was he doing with the gun? A: Pointing it at me. Q: As he was pointing the gun at you, was he saying anything?)

Step 13

Use “headlines” so the jury knows when you move to a new topic. (“Now let’s discuss the reasons you did not sell the property.”)

Step 14

Humanize client, especially corporation, by referring to your client or the responsible witness by name, not by “my client, Ethos Corp.” (Make sure you have the “responsible” person at counsel table so jury has to deal with an actual person and not a faceless entity.)



Step 15

End with a conclusory question—”Are you absolutely sure you saw Mr. McNeil run the red light?”

D. Cross-Examination

Step 1

Don’t! Don’t! Don’t! Unless you have a specific goal in mind.

F Always ask yourself why—why am I asking this question? What is my goal? What will be the witness’s answer, and what will be my opponent’s response, and what will my rebuttal be?

F Above all, don’t let witness retell his direct testimony unless you really want him to! (Q: On direct you testified the light was red; you were mistaken, weren’t you? A: No, and let me explain again how I am absolutely sure the light was red.)

Step 2

Do identify goals.

F First, elicit favorable testimony and support for your expert authorities if possible.7

F Demonstrate lack of knowledge, e.g., inconsistent statements.

F Prior criminal convictions (of questionable value unless really egregious!).

F Identify facts with which witness can help or confirm your theme.

Step 3

Cross examination is not “angry” examination.

F Focus on witness having wrong facts.

F Focus on witness having wrong assumptions.

F Focus on witness being provided incomplete information.

F Focus on witness’ misperception or bias.

Step 4

Prepare outline of conclusions you want jury to reach and then use same technique as with direct—separate sheet for each conclusion with annotated and indexed answers.

Step 5

Structure of questions is crucial.

F Take control—Don’t give witness the opportunity to repeat and reinforce direct testimony.

F Do ask leading questions

F You “testify” by asking short declaration questions (Q: You were driving. . . . Q: It was raining. . . . Q: It was 10 p.m. . . . Q: No street lights. . . . Q: It was dark. . . . Q: Your windshield wiper was broken. . . .).

F Get witness to agree with your “testimony.”

F Eliminate the negatives—”You didn’t see the defendant, did you?” “A: Yes.”

F You maintain control. Repeat your question if the witness dodges or weaves—”I’m sorry, my question wasn’t very clear—did you or did you not read exhibit 1, the earnest money agreement, before signing it?”

7 Thank you, Don Marmaduke!



Step 6

Don’t interrupt witness. She is entitled to explain her answer after she answers your question. Politely repeat your question as necessary to get an answer.

Step 7

Keep it simple.

Step 8

Don’t overestimate the effect of showing that the witness gave different testimony in a deposition. Only use this impeachment technique sparingly and if inconsistent testimony is meaningful or frequent—”Should I?”

Step 9

Stop. The One-Question-Too-Many Rule is part of Murphy’s Law!

E. Closing Argument

Step 1

Have closing argument prepared substantially before trial (some say first thing after getting all of the facts and identifying the applicable law.) But don’t read or memorize it.

Step 2

Emphasize those facts that are consistent with your theme and that disprove your opponent’s case. Remember, it is unfairness that jurors recognize best.

F Tell and show the jurors that evidence that leads them to conclude the case in your favor. Don’t just restate the evidence, explain how the evidence supports the conclusions you want them to reach.

F This is the time to use symbols, passion, common sense, the law, examples, analogies, and key high-impact words and phrases (“Leaden Corp. decided to wash their hands of her because she reported the harassment of her coworker.”).

Step 3

Ask. Don’t tell the jurors what they should do. Get them to reach their own conclusions in your favor, and they will become your advocates in deliberations.

Step 4

Don’t overstate—don’t understate. Remind them of the facts that have been presented.

Step 5

Use rhetorical questions, court’s instructions, and verdict form as guides for your presentation (ask the court to give jury instructions before closing argument).

Step 6

Respond to opponent’s argument or really bad facts in the middle with explanatory or mitigating facts.

Step 7

Be absolutely accurate and candid in your statement of facts and law.

Step 8

Show the jury what its conclusion should be through use of demonstrative exhibits, jury instructions. and the verdict form.



Step 9

Show motive.

Step 10

Don’t forget damages! See Bill Barton’s article in Chapter 2.

Step 11

Make result bigger than just this case.

Step 12

Stop!

“More cases are lost in closing argument than won.”—Anonymous Judge

“Be brief, be pointed, let your matter stand;“Lucid in order, solid and at hand;“Spend not your words on trifles but condense“Strike with a massive thought not drops of sense;“Press to the close with vigor, once begun;“Leave—how hard the task!—“Leave off when done.”

—Joseph Story, Advice to a Young Lawyer, 1835



APPENDIX—TRIAL PREPARATION MATRIX

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Chapter 3

DamagesWilliam a. Barton

The Barton Law Firm PCNewport, Oregon

Contents

I. The Importance of Personal Authenticity and Passion . . . . . . . . . . . . . . . . . . . . . . 3–1

II. Theory, Themes, and Your Trial Story . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–1

III. Steal from the Jury Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–1

IV. Be Creative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–2

V. Think About Movement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–2

VI. Argue What the Facts Mean, Not Just What They Are. . . . . . . . . . . . . . . . . . . . . . . 3–2

VII. Make Damages a Priority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–2

VIII. Reason and Emotion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–2

IX. Does Your Closing Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–3

X. Don’t Memorize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–3

XI. Enlarge and Use the Verdict Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–3

XII. Organize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–3

XIII. Objecting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–3

XIV. Use Analogies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–3

XV. Rhetorical Questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–4

XVI. Talk About Motive, but Avoid Calling the Witness a Liar . . . . . . . . . . . . . . . . . . . . . 3–4

XVII. Arm Favorable Jurors with Persuasive Arguments . . . . . . . . . . . . . . . . . . . . . . . . 3–4

XVIII. Anticipate Your Case Weaknesses and Your Opponent’s Arguments . . . . . . . . . . . . . . 3–5

XIX. Rebuttal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–5

Appendix A—“The Stuff of Good Jury Trial Lawyers” . . . . . . . . . . . . . . . . . . . . . . . . . . 3–7

Appendix B—“Personal Authenticity” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–13

Appendix C—“Learning How to Live from One Moment to the Next” . . . . . . . . . . . . . . . . 3–19

Chapter 3—Damages


Chapter 3—Damages


“. . . [F]inal argument is the moment for pure advocacy, when all of the lawyer’s organizational, analytic, interpretive, and forensic skills are brought to bear on the task of persuading the trier of fact.”1

I. THE IMPORTANCE OF PERSONAL AUTHENTICITY AND PASSION

Included in your materials are two articles I’ve written for the Litigation Journal. One was published in the Fall 2008 edition and is titled “The Stuff of Good Jury Trial Lawyers.” It discusses the importance of passion. The other was published in May 2003 and is titled “Personal Authenticity.” Speed-read these before you begin the mechanics of preparing your closing. Reflect particularly upon the article by Ken Goe included as an attachment to the “Authenticity” article.

One of my biggest criticisms of CLEs is that they do a poor job of teaching how to argue damages. You can watch and learn from others, but the big intangible is about you being real or authentic. Trial lawyers should aspire to bring something of themselves to their presentations. If you choose not to, then stand in line with all of the other legal technicians parading through our nation’s courtrooms playing “stack-a-fact,” meaning analyzing, fractionalizing, and categorizing fact situations to death. I call it “lawyer-speak.”

It’s fair to ask what is missing from “stack-a-fact.” My best response is passion: your personal conviction expressed in your own style and voice. Let’s be clear; you can have too much of a good thing. You’re not permitted to be loud, shrill, or maudlin, and it’s not okay to solely rely on your inner voice and true feelings. Common sense defines the middle ground. Temper your passion: remember that a whisper can be deafening. Ultimately, it’s about the student being as effective as possible given his/her experience, temperament, and emotional range. There’s plenty of accommodation for personal style. Jurors are looking for a lawyer with personal conviction. They want to see which lawyer really believes his/her side should win, rather than a lawyer who is giving a closing because it’s expected.

II. THEORY, THEMES, AND YOUR TRIAL STORY

A good trial theme provides an incentive for the entry of a verdict in you client’s favor. In addition to being logical and believable, a trial theme invokes shared beliefs and common values. Just as a theory explains why the verdict is legally necessary, the theme explains why the verdict is morally desirable.2

“The first minute or two of your closing argument should communicate three things to the jurors: your theme, why the jury should find in your favor, and your enthusiasm about your case.”3 Your theme is what your case is about, i.e., this case is about a job, or this case is about public safety. In all of my sex cases, my theme is generic; this case is about an abuse of trust, power, and violation of human dignity.

People have short attention spans when it comes to technical matters. The heart of your case is plot, motive, and characters. Remember, trials are really about competing stories. Whose story is most likely and also most deserving? Motive isn’t an element in most civil negligence claims, but it’s the first place jurors look to organize the information in order to understand why something has happened.

III. STEAL FROM THE JURY INSTRUCTIONS

Use the court’s instructions to your advantage. The law may be “neutral,” but in the hands of a thoughtful lawyer the court’s words drip key phrases and concepts. When delivered, the court’s

1 Steven Lubet, Modern Trial Advocacy Analysis and Practice, 2nd Ed., National Institute for Trial Advocacy, Notre Dame, IN, 1997, p. 443.

2 Lubet, p. 450.3 Thomas Mauet, Trial Techniques, 6th Ed., Aspen Publishers, New York, NY, 2002, p. 406.

Chapter 3—Damages


instructions should echo your case themes. I call this “wrapping oneself in the dignity of the judge’s robe.” It’s not theft, but when it’s happening, and you’re opposite, it sure feels like it.

IV. BE CREATIVE

You don’t have to argue chronologically. Where are you going to start your closing? Where did you start your trial story in your opening? Flashbacks can be dramatic, but remember, temper everything with common sense. Demonstrating and arguing what didn’t happen is often far more powerful than simply saying it. Consider reading a fictitious newspaper advertisement, carrying on an imaginary telephone conversation, or creating an exchange of business memoranda that were never sent. In your closing, consider writing what they knew, what they said, what they did, and why. The jury will know how to answer on the verdict form.

V. THINK ABOUT MOVEMENT

A certain amount of body and hand movement will enliven your final argument and increase the attentiveness of the jurors. Gestures can be used to emphasize important points or to accent differences between your case and the opposition’s.

Body movement can also be used for emphasis or transition. Pausing and taking a step or two will alert the jury that you are about to change subjects. Moving toward the jury will underscore the importance of what you are about to say. Moving away from the jury will signal the conclusion of a line of argument. Note that body movement can only be used effectively if you avoid aimless pacing. Constant movement is not only distracting to the jury, but it also deprives you of the ability to use movements purposefully.4

VI. ARGUE WHAT THE FACTS MEAN, NOT JUST WHAT THEY ARE

On close analysis, most closings are little more than a verbal rock fight with each side volleying its strongest facts back and forth. Both sides usually end up repeating what the evidence was, in ever-escalating volume, rather than explaining its significance. Give a final argument, not a summation. There is a difference. Don’t tell the story of the case, or the story of the trial—tell your people story, but don’t argue every inference to its outer limit.

VII. MAKE DAMAGES A PRIORITY

Jurors are like an audience reacting to a play. They make their decisions based on the information made available to them. So you must control the proportion of time your trial spends on damages. A third to a half should be on harm, losses, and money.

Smart defense attorneys try to force you to spend a lot less. They know that the smaller the proportion of time jurors hear and think about harm, losses, and money, the less the jurors will be moved to do much about them. . . . liability is defense turf. Damages is your turf. Fight on your own turf as much as you can. Whether you have a few minutes or a few weeks for jury selection, spend half on harms, losses and money. Spend a third of opening and direct testimony, a significant chunk of your cross examinations, and half your closing on harms, losses, and money. Do this no matter how much attention your liability case needs. And to do this, don’t abbreviate your liability case. Expand damages to meet the necessary proportions.5

VIII. REASON AND EMOTION

The closing should contain a balance of appeals to both reason and emotion, in that order. There’s no requirement you discuss everything.

4 Lubet, p. 492.5 David Ball, David Ball on Damages-The Essential Update for Personal Injury and Wrongful Death Cases, 2nd Ed.,

National Institute for Trial Advocacy, South Bend, IN, 2005, p. 5.

Chapter 3—Damages


F Simplify the case for the jurors.

F A brief and early topical preview of your closing helps the jurors.

F Ask yourself who is the foreperson and who are the strongest jurors.

F Before delivering your closing, think about your positioning and movement in the courtroom.

F Make eye contact with each of the jurors.

IX. DOES YOUR CLOSING ARGUMENT . . .

F Tell the jury why to find for your client?

F Make the jury want to find for your client?

F Tell the jury how to find for your client?

F Satisfy their common sense questions?

F Anticipate what the jury will be discussing?6

X. DON’T MEMORIZE

I use bullet points on a flip chart and the verdict form to provide the structure I need.

XI. ENLARGE AND USE THE VERDICT FORM

Organize your closing around the verdict form. Use it as a map. Fill in the blanks with your suggested answers. Psychologists call these “bracketing numbers,” meaning they bracket the jury’s dialogue about damages. Don’t order or direct, you’re a guide and coach. Explain to the jurors why what you’re asking for is reasonable, while letting them come to your conclusions on their own. It’s traditional lore that plaintiffs’ lawyers want simple verdict forms with few liability questions and as many damages questions as possible. The defense wants the opposite.

XII. ORGANIZE

Just before your actual closing, spend the time necessary to carefully organize any documents and exhibits you’re going to be handling and referring to during the delivery of your closing. You want everything to unfold smoothly.

XIII. OBJECTING

I tend not to object, although I sometimes do when an opponent starts offering her personal opinions. This allows me to cite an ethical violation by my opponent, which the judge will sustain. ORPC 3.4(e): “A lawyer shall not . . . state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” (You will find this in your OSB Membership Directory under Rules and Policies.)

XIV. USE ANALOGIES

If the fact finder—judge or jury—reaches a conclusion on its own, it will hold that conclusion more firmly than if it had merely been told what conclusion to reach.

Lloyd Paul Stryker put it superbly in the Art of Advocacy 125 (1954):

No point is ever better made than when not directly made at all but is so presented that the jury itself makes it. Men pride themselves on their own discoveries, and so a point which the jury are allowed to think their own ingenuity has discovered can put the advocate 6 Roger Haydock & John Sonsteng, Trial Advocacy Before Judges, Jurors and Arbitrators, 2nd Ed., West Group, St.

Paul, MN, 1999, p. 600.

Chapter 3—Damages


in a position where the jury begin to regard him as not only their spokesman but their colleague. 7

The problem, then, is to discover how to guide the jury so that it reaches the conclusion you want and thinks it has figured things out for itself. . . .

. . . Analogies are effective, and it is worth knowing why.

The answer is simple. Analogies work for two related reasons. First, good stories command the attention of the listeners. They want to find out what happened.

Second, analogies challenge the listeners to test their appropriateness to the point made. When someone tells a story to prove a point, it is almost impossible to resist testing it to see if it fits the situation.

What is the net effect? You are right. The audience, in testing the aptness of a comparison, reasons the problem through and reaches the conclusion on its own. That is just what Lloyd Paul Stryker told us to get the jury to do.

Analogies—whether simple allusions or detailed stories—are a distinguishing mark of outstanding final arguments. They lead juries to draw their own conclusions, which they believe more fervently than if they had merely been told what conclusion to reach.8

XV. RHETORICAL QUESTIONS

Use rhetorical questions to structure your closing and guide the jury. This is all part of making the case what you want it to be about. Psychologists call this availability bias. Pick the issues to which you have favorable answers.

“Rhetorical questions can also be used effectively to challenge your opponent with difficult or unanswerable questions. If he fails to answer these questions, the jury will undoubtedly remember it.”9

XVI. TALK ABOUT MOTIVE, BUT AVOID CALLING THE WITNESS A LIAR

It’s rarely wise to argue that a witness has lied. There’s a big difference between being inaccurate and untruthful. If it’s obvious a witness lied, then you don’t need to say so, and if it’s not obvious, then it’s too dangerous. Think about it. . . . This isn’t to say you shouldn’t argue bias, interest, and motive. Please do so. Yes, the jurors want an explanation as to why the defendant acted as he did, but stop short of calling anyone a liar. When you punish the other side during the trial, what’s left for the jury to do? Maybe feel sorry for your opponent?

XVII. ARM FAVORABLE JURORS WITH PERSUASIVE ARGUMENTS

David Ball, in David Ball on Damages, says the primary purpose of closing is to arm favorable jurors with arguments they can use during the deliberations to persuade their fellow jurors. Ball suggests telling the jurors they have two jobs: one is to answer the questions on the verdict form; the second, even more important, job is to explain to fellow jurors why they believe as they do. Give your favorable jurors brief statements that synthesize your response to each important question, such as “Dr. Fisher cut without looking.” In deliberations, when a fellow juror asks what Dr. Fisher did wrong, the favorable juror will remind them, “Dr. Fisher cut without looking.” This is particularly important on money issues. Jurors worry about being criticized for giving a lot of money. But they don’t worry about being criticized for giving too little; therefore, they often do.

7 West Group, St. Paul, MN, 1999, p. 600.8 James W. McElhaney, Trial Notebook, 4th Ed., ABA Publishing, Chicago, IL, 2006, pp. 680, 681.9 Mauet, p. 411.

Chapter 3—Damages


. . . [w]hen a favorable juror speaks in the terms you provide, other favorable jurors are more likely to quickly and strongly voice agreement. When favorable jurors hear each other say things they agree with, their unity and resolve reinforce each other, creating a powerful force in the group. This is a primary dynamic of group decision making.”10

Enumerate your damages. Discuss and explain the key phrases from the damages instructions (mental stress, anxiety, emotional pain, depression, anguish, etc.), with reference to the damages lines on the verdict form.

XVIII. ANTICIPATE YOUR CASE WEAKNESSES AND YOUR OPPONENT’S ARGUMENTS

While your closing argument should positively argue your strengths, this does not mean that you should entirely avoid weaknesses. Every trial will have some weaknesses. If it did not, the case would have been settled before trial.

Confronting weaknesses has two advantages. First, your weaknesses are your opponent’s strengths. By addressing them first, you can in part deflate his later argument so that the jury does not hear those points for the first time from your opponent, the way he wants them argued. Take the wind out of his sails by raising his points first, and they will sound hollow and tired when he argues them. Second, the jury will respect your honesty and candor when openly and candidly discussing those weaknesses. Since your credibility as an advocate is critically important, this consideration should not be downplayed. Remember that jurors, like everyone else, are influenced by whom they like. Make sure that’s you and your party.11

My friend, Tom Tongue, a most experienced defense attorney, says he likes to pick one or two points in the plaintiff’s proof he thinks he can win and keep the jury focused on these weaknesses. Once again, each attorney is fighting for the high ground. When you’re defending and don’t have the burden of proof, this is how it’s done.

XIX. REBUTTAL

Save a point or two with a bite for your rebuttal. If you haven’t objected much, rebuttal gives you a chance to say, “When the opposing lawyer said __________, I could have objected right then, but I didn’t because I wanted to see just how far the opponent was willing to go in order to win.” Here’s where a little stored indignation can serve you well.12

Everybody does their trials and closings differently. Most lawyers find it’s easier to argue liability than damages. Why? I suspect it’s because you have to bring a little of yourself when arguing pain and suffering.

10 Ball, pp. 201–203.11 Mauet, p. 413.12 McElhaney, p. 673.

Chapter 3—Damages


Chapter 3—Damages


W

attributes. The bottom line is, in order to be an effective trial lawyer, you must be persuasive. That’s what this paper is about.

FEAR IS YOUR GREATEST LIMITATION Fear is the primary impediment to

lawyers becoming “more than the facts,” or more than simply competent techni-cians. This results in inexperienced law-yers being driven more negatively than positively. Rather than giving their best pitch with gusto, their primary motiva-tion is to not “screw it up.” To say it is

In This Issue…

FALL 2008

2 FROM THE EDITOR Dennis Rawlinson

4 REFLECTIONS/OBSERVATIONS FROM A JURY TRIAL

Stephen English

6 THE DIMINISHING

VIABILITY OF WRONGFUL DISCHARGE CLAIMS

Scott Seidman & Anna Sortun

10 CONTRIBUTORY NEGLIGENCE(!) IN ECONOMIC LOSS CASES Erick Haynie &

Calvin TerBeek

13 “LAWS PROVIDE AGAINST INJURY FROM OTHERS, BUT NOT FROM OURSELVES.”

Brian Campf

21 RECENT SIGNIFICANT OREGON CASES

Stephen Bushong

The

Please continue on page 16

Litigation Journal

www.osblitigation.com

INTRODUCTION What stands in our way, or more properly, what stands “most in the way of most of us” from be-ing an effective jury advocate? At the deepest levels of psychology, it is fear. This fear expresses itself behaviorally in dry, rote presen-tations devoid of passion and creativity.

When I asked Peter Richter of Miller Nash “What is the stuff of great trial lawyers?” he said it is “preparation, imagination and pas-

sion.” I, too, think it is three qualities. I say it is “Hard work, creativ-ity and passion.” It is obvious Peter and I are in agreement.

This paper doesn’t rate the three attri-butes in terms of impor-

tance, but I do submit there is a dearth of creativity and passion in the courtroom. I offer my thoughts on why that is, and suggest how any lawyer can acquire these

Stuff of

Good Jury TrialLawyers

By William A. BartonBarton & Strever, PC

William Barton

Chapter 3—Damages


16 LITIGATION JOURNAL

the fear of failure is a bit trite.Begin by trying to taste your own

fear. What is its essence? By incrementally peeling away the emotional varnish, you will probably find that it is really a fear of embarrassing yourself. In other words, what you are really afraid of is being vulnerable. Now we are getting close to the core of fear.

The irony is that the problem is also the answer. With reflection, you will come to understand that your fear is also a gift; a gift from you, to yourself. All you have to do is be honest enough to unwrap your own present; i.e., be honest with yourself.

This kind of honesty requires you go to the very place you don’t want to go. You must embrace your own fear. By being really honest with yourself you will then have the ability to be really honest with others, meaning the jurors.

Why is this kind of honesty so difficult to access? Because it requires a vulnerabil-ity that is the precise opposite of not only how we want to know ourselves, but more important, how we want others to view us. We want others to see us as competent, strong and confident; yet down deep, we rarely think of ourselves that way.

“STACK-A-FACT” Most of us are scared when we go to

court. We feel weak and impotent. Every fiber of our being is at risk. What do we, as lawyers, do when threatened at such a primitive level? What everyone else does. We marshal all our resources to protect us from the threat. We defend ourselves. As smart lawyers, we try to think our way out of the problems. We analyze, categorize, and fractionalize everything, over, and over, and over again. I call this kind of behavior “stack-a-fact.”

No surprises here. After all, “stack-a-fact” is an integral part of every lawyer’s training. Much of the work young as-sociates do, and must do well, requires

behavior and skills that are in direct opposition to the principles of persua-sion. For example, when responding to motions for summary judgment, a lawyer’s job is to identify fact questions that must be resolved by the jury. “Any question will do, just find me a fact ques-tion. Defeat that damn motion!” shouts the boss. More theories and more facts surely increase the chance that the judge will agree there is a fact question some-where. This behavior is the opposite of simplification.

There is a selection mechanism that excludes anyone from being a lawyer who is not adept at the skills tested on the LSAT. Your ability to perform a multi-factorial analysis will reward you with a fine test score, but what does that have to do with your compassion, creativity or common sense?

My trial lawyer friends from the big firms tell me that the best students from the best schools do not necessarily make the best jury trial lawyers. Why? Because

they’re not comfortable making quick de-cisions on their feet. They always need to be in control and tend to overanalyze ev-erything. After all, their analytical prow-ess serves them well, both as students and lawyers. While much can be anticipated and briefed pretrial, something always harkens unbidden. Do I object? If I ask this question, will it “open the door” to evidence that wouldn’t otherwise be admissible? My friend from Salem, Ralph Spooner, reminds us that “Trials are live action, baby!”

THE THREE INTANGIBLESNow let’s talk about the three at-

tributes of persuasion and the stuff of great trial lawyers: hard work, creativity and passion.

1. HARD WORK This is what we do best. We gen-

erate lots and lots of billable hours. There is no need to belabor this. You already know too much. Two thousand-plus bill-able hours a year. I rest my case.

2. CREATIVITY This is in short supply among

lawyers for many reasons. First, we intel-lectually worship logic, and emotionally we want structure and order in every-thing. Some of what we do in our own work is generating legal syllogisms, which has everything to do with classic deduc-tive thinking, and nothing to do with inductive thinking. We need and demand lots of 90 degree angles. The big news here is that jurors think inductively, not deductively. This is important.

Bill Wheatley’s ThoughtsHere I include some comments from

my longtime friend, Eugene lawyer Bill Wheatley. He practices in the areas of defense of personal injury and commer-cial claims. I quote from a recent letter he wrote me:

Good Jury Trial Lawyerscontinued from page 1

As smart lawyers,

we try to think

our way out of

the problems. We

analyze, categorize,

and fractionalize

everything, over, and

over, and over again.

Please continue on next page

Chapter 3—Damages


LITIGATION JOURNAL 17

“I’ve been wanting to talk to you or drop you a line concerning our last conversation. You put forth the proposi-tion that the three keys to effective trial advocacy are:

1. Passion2. Hard work3. Creativity

Persuasive as you are, I thoughtlessly ac-cepted the proposition and agreed with you. However, it has been haunting me ever since.

“I believe you’ve got it right with hard work and passion, but I’m a bit concerned about your message of ‘cre-ativity.’ In my experience, more cases are lost because someone is trying to be creative (when it really isn’t neces-sary), than cases lost because of a need for creativity. Obviously, there are those rare cases, and where talents like yours can capture the soul of a case with a cre-ative approach. In most cases, however, the concept exceeds the ability of most trial attorneys and, thus, becomes a vice rather than a virtue.

“If I were to look for a third link in your trifecta, I would probably adopt the concept of CREDIBILITY. Credibility of the cause, credibility of the attorney, credibility of the client and credibility of the approach to the trial is essential. Obviously, that concept can overlap with other concepts such as passion, etc., but I think it is deserving of being incorpo-rated into your trifecta. With hard work and passion, ‘creativity’ will either natu-rally occur or simply become unnecessary because someone else already thought of the idea and your hard work allowed you to make good use of it.”

I suspect Bill Wheatley’s concerns about the importance of creativity reflect the view of many accomplished defense attorneys. Plaintiffs’ lawyers face the

burden of proof, are temperamentally inclined to be a bit more passionate and risk-taking, and creatively challenge the edges of the common law when neces-sary. For obvious reasons, defense attor-neys tend to stick with the facts . . .

How to Be More CreativeIt isn’t necessary to jettison your

ability to “think like a lawyer.” I only ask that you attempt to recapture your lost ability to understand legal ques-tions through the eyes of ordinary folks. People just like you used to be . . . The best jury trial lawyers I know are legally and psychologically ambidextrous. They deftly tiptoe between the mandates of positive law [the court’s instructions] and the jurors’ sense of sidewalk justice [common sense]. When this occurs, a legal symphony is afoot.

Drop the Legal JargonThink about all the synonyms the

word contract has. How about “bargain,

deal, understanding or agreement?” This is what your case is about. Lawyers talk about a “breach of contract.” Jurors un-derstand a deal, or someone not keeping their word. Instead of discussing dam-ages, consider talking about lost hopes and stolen dreams.

Tell a Story When presenting your case, it’s

kind of like the country-western song, “Somebody done somebody wrong . . .” It is the jury’s responsibility to right that wrong. Show them why and how. Don’t just give the jurors a timeline on a big laminated board. Focus on the key dis-agreements and explain why your client is being honest. You needn’t call the op-ponents liars, but you can discuss human nature, choices and profit motives. Leave ultimate conclusions about an opponent’s honesty to the jury. They know what to do. Judging is their job, not yours. Win-ning the motive battle puts you squarely in the driver’s seat.

Keep It Simple StupidIt is your job to make every case you

try simple. I don’t care if it isn’t. Harry Truman, the only President to serve in the 20th century never to attend college, was fond of saying, “I make complex things simple, and refuse to make simple things complex.” Easy to say, tough to do.

It is difficult to “be” creative, or “be” passionate. Maybe it just isn’t your nature. I appreciate that. It takes a few trials to get the basic mechanics down. Once you are comfortable with the proce-dure, it then becomes easier to shift your focus to the more sophisticated aspects of advocacy. In the beginning, you are consumed with not embarrassing yourself by doing something stupid. You go to advocacy seminars and are told “Don’t do this,” and “Don’t do that.” It seems difficult to do anything right, particularly when you are focused on avoiding every-


Credibility of the

cause, credibility

of the attorney,

credibility of

the client and

credibility of the

approach to the

trial is essential.


Chapter 3—Damages



thing you shouldn’t do.Academics and judges are really

good at telling you what not to do. They are O.K. when it comes to telling you what to do; however, they often don’t do well when it comes to actually showing or demonstrating. Why? Think about it . . .

Start at the EndBegin your case at the end, mean-

ing the jury instructions. Good lawyers build their cases teleologically, mean-ing everything is constructed with the final instructions in mind. What are the phrases that capture the key legal concepts? Build your case theme around those phrases and ideas. Do this and the judge’s instructions will be a chorus for your closing. You are not a thief when foreshadowing the exact words of the judge’s instructions, although your op-ponent might think so.

Consider requesting written instruc-tions. [ORCP 59B]. If you file a written request then the judge must instruct the jury in writing. Prepare a separate set of instructions for each juror. This is discretionary with the court, but if you don’t prepare them, and ask for them, you know you won’t get them.

Use the Verdict FormIt is the framework around which to

construct your closing. Enlarge it (with an overhead projector) and then during your closing, write the answers you are arguing for in the proper spaces on the special verdict form. You’re not telling the jurors what to think, you’re a guide, you’re teaching. When arguing money, fill in the amount you claim the proof supports. Psychologists call your prayer an “anchoring number.” Jurors can’t agree with you if you don’t explain to them what you think is fair, i.e., why the defendant should pay large sums of money, and thus, why your client deserves

large sums of money.

Closings Should Explain Why, Not WhatThe closing for average lawyers is

a verbal rock fight wherein they con-tinuously repeat, with increasing volume, their three to five best facts. This is of no assistance to the jury. (Closings should explain why, not what, and then argue the reasonable inferences.) Here is where all the witnesses’ biases and interests are discussed under the heading of motives. Jurors will remember the proof. It is your job to explain what the evidence means, not what it was.

McElhaney on CreativityMy friend, Jim McElhaney, who

writes the monthly “Trial Tips” column in the American Bar Association Journal, advocates gastronomical jurisprudence. Your facts should provoke a visceral re-sponse that tells the story of an injustice. Arguments appeal to the intellect. Lead with a punch. Lead with facts. (“Balance

Persuasion,” American Bar Association

Journal, March 2002.)Tension is the product of conflict. If

the listener doesn’t care what might hap-pen next, then the dialogue isn’t work-ing. Start with a crisis. Speak in the first person rather than a chronological third person narrative. Use literary techniques like foreshadowing in your opening statement: “This is a case about a wom-an’s eyes.” Explain what happened, why it happened, and who’s responsible.

Jim says “write to the ear and speak to the eye.” When people read what I write, I want them to hear me talking, and when I talk, I want them to see what I’m saying. (“Empty Words,” American Bar

Association Journal, December 2001.)

3. PASSION Most trials are mechanical pre-

sentations long on “stack-a-facts.” Pas-sion may abound in life; however, I don’t see much in the courtroom. Maybe it is there, but it is certainly well hidden, and when spotted, is easily mistaken for vir-tuosity and overt appeals to sympathy.

What I often see from lawyers in trial are well-organized presentations that could be faxed to the jury with little loss of enthusiasm, energy or passion. Representing a client’s interests isn’t just another day at the office. What we do is really important, at least it is to our clients . . .

Don’t talk about a “breach of a duty,” or some other legal incantation. Talk about “choice.” This is what $350-an-hour jury consultants will tell you, whether it is the defendant’s negligence, the plaintiff’s comparative fault or any other affirmative defense. Turn fault into choice. With choice comes responsibility, and with responsibility comes culpability. Get indignant when explaining why your opponent made the wrong choices. Mo-tive is the key.

Being passionate doesn’t mean you

Jim says “write to

the ear and speak

to the eye.” When

people read what I

write, I want them to

hear me talking, and

when I talk, I want

them to see what I’m

saying.



Chapter 3—Damages


LITIGATION JOURNAL 19

need to raise your voice. In fact, it is more effective to lower it. Silence can be deafening! For women litigators who are worried about striking the difficult balance between being assertive, but not too aggressive, it is gender congruent to lower your voice, while concurrently reducing the space between you and the jury. This fosters a powerful intimacy.

Let’s not forget about the money, and yes, I know the legal term is “dam-ages.” This is my leading criticism of most trial advocacy teachers, colleges and insti-tutes. Neither the faculty nor the students appear comfortable when talking money. Think about the character Jerry Maguire, from the movie by the same name, when he said, “Show me the money!” After all, that’s why we are here!

You ask, “What is there to get pas-sionate about in a simple negligence ac-tion, or a garden variety contract case?” Try putting yourself in your client’s shoes. What really hurts? Start there. The case you end up trying says as much about you, as the core facts you work with. Search until you find the human story within the facts, then emphasize the moral impera-tive. Where is the wrong that demands correction?

Lawyers want to talk, talk, and talk about liability. More “stack-a-fact.” Ev-eryone seems so much more comfortable when NOT talking about pain and suffer-ing, and the money owed because of it. Why shouldn’t you be sharing with the jury why every dime you have asked for is reasonable? Ask yourself, “Why are we here?” The answer for the jury is “To right a wrong, and deliver justice. Ladies and Gentlemen of the jury, in our legal system justice can only be expressed in dollars.”

One of the rules inexperienced lawyers have difficulty learning is not to express their personal opinions. The reason isn’t a rule of evidence. It’s one of ethics. See Oregon Rule of Professional Conduct 3.4 (e), which states in part that

“[a] lawyer shall not . . . state a personal opinion as to justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” A simple way to address this, is to drop the “I, me and lie” from your closings. When your arguments contain tempered passion, you don’t need to state your personal opinions. It will be obvious what you think! Why give your opponents the opportunity to state that the basis for their objection is a lack of ethics on your part, and then have the judge agree, and all this happens in front of the jury. How embarrassing! Not knowing your evidence is one thing, act-ing unethically is quite another . . .

There are clear economic incentives to being passionate. When you fight for your clients, and lose [as you will about half of the time], your clients won’t blame you. They will blame the judge, or jury! This means they will write you a check that doesn’t bounce, will hire you in the future, and will send all their friends and relatives to you. The great-

est compliment is when jurors from one of your past trials want to hire you. Why all the new and repeat business? It’s because you are a fighter. I promise you, if you lose without passion, the clients will blame you. It really doesn’t mat-ter whether this is fair, because we can agree losing without passion is simply bad business. All lawyers lose their share of cases. What I am talking here is how you lose. Clients ask, nay, demand, that you lose mightily, with enthusiasm and great heart.

You needn’t act maudlin, shrill or wear the constitution on your sleeve. Nor am I talking about sympathy or pander-ing to the jurors’ emotions. What I am talking about is representing your clients with a commitment and earnestness that shows you care. Everyone can do that. After all, if you don’t care, why should the jurors?

PARTING THOUGHTS

Take a Speech ClassRead some books on public speak-

ing. Yes, I know you were on the debate team in high school, took a speech class as an undergrad, and did moot court in law school. That was for credits and a grade. Now it’s real. It’s for money! It’s for the client.

Don’t be Afraid of a Video CameraIn our office, even though I have

tried more than 500 jury trials to verdict, we still practice and practice our opening statements and closing arguments. By the time my partner Kevin gives the opening, it has been videotaped and critiqued at least a half dozen times.

CredibilityThink of jury trials as a gestalt involv-

ing the generation, acquisition, consoli-dation, and utilization of credibility. (This

The greatest

compliment is when

jurors from one of

your past trials

want to hire you.

Why all the new and

repeat business? It’s

because you are a

fighter.



Chapter 3—Damages



is what Bill Wheatley was talking about.) Yes, there is a process going on as you wade through the mechanics of jury se-lection, opening, evidence, closing, and the instructions. However, underneath this elaborate process is another game, one that’s much more primitive and vis-ceral. It’s lawyers competing to win the battle of trust. You may not be able to see credibility, but you certainly know when someone doesn’t have it. Without credibility, it doesn’t matter what you think or if you and your client are right. Why? Because unless you are believable, nobody cares what you think, and if no-body cares what you think or say, then it really doesn’t much matter whether you’re right or wrong, does it?

Quit WhiningJudges can be heavy-handed and

intimidating. When you hear a judge say “Well, that would never be allowed in my courtroom,” or worse, “That would never happen in my courtroom,” at least you know who you’re in front of.

Respectfully make your record and then do what you’re told to do. A good portion of the time, they’re right, and when they aren’t, well . . . , they’re still right! Now you know what the saying “Equity is the length of the chancellor’s foot” really means. Being a trial lawyer is not for the faint of heart. You have to be hardy, strong and adaptable. Try to use the judge’s abrasive attributes to your advantage. View every problem as an opportunity. In my experience, tough, mean judges treat you much bet-ter when: a) you show up early; b) you correctly pronounce the judge’s name; c) you are completely prepared; d) you are familiar with their courtroom procedures; and, e) perhaps most important, you are respectful to their staff. So maybe the judge is having a bad day. Generally, I find they are equally hard on everyone, but particularly so to those who deserve it the most. If the judge is giving you a little

extra, ask yourself what you may have done to earn it, then quit whining and go to work. Stick your butt up, your head down, and start picking grapes as fast as you can. Try and do better. Draw a deep breath and try to stand back from your feelings. Remember, this too will pass.

TO THE BYRDS AND MR. RINGO Let me close by sharing with you two

experiences that continue to inspire me years later. Once, while in Bend during the mid-eighties, I saw a sign advertising The Byrds in concert on a Thursday night. They were between shows on their way North to the Tacoma Dome. I couldn’t believe it. The Byrds! In Bend, Oregon!

There were 26 people in the audi-ence that night. I counted them. The band came out. The house was all but empty. The lead singer, Roger McGuinn, began the show by saying “We are the Byrds. Every night, we do a better show than we have ever done before.” They rocked, they rolled and they dripped sweat. It was fantastic. In a small town,

with barely two dozen paying customers, they put on a show I will never forget. They taught me something about what it meant to be a real professional, irrespec-tive of the size of my case.

If I have trouble getting motivated when doing a smaller case, I think of the Byrds. I might even pause, and play one of their CDs. When I am through, it is easy to remember that I too am a pro-fessional, and therefore in every one of my trials, no matter what the size of the prayer, I will always bring my “A” game and do my best.

My last story is about my longtime friend and mentor Bob Ringo of Corval-lis. Bob retired a few years ago. This trial occurred back in the mid-seventies. I had been out of law school 2-3 years. Things came pretty easy for me. I was winning most of my drunk driving defenses. I didn’t need to prepare much. One af-ternoon I was sitting in the back of the Corvallis Municipal Court waiting for the arraignment of one of my clients. I was reading a sports page below the benches so the judge wouldn’t see me.

There was a shoplifting ticket being tried to the bench. The defense attor-ney was a little guy. I looked up in the middle of his cross examination of the store manager. The cross was so intense the store manager actually had a heart attack. They stopped the trial, declared a mistrial, and packed him out to a wait-ing ambulance. With the siren of the ambulance fading into the background, I approached the clerk and asked who the lawyer was. She said “Bob Ringo.” Whoa! I had heard of him, and now I had seen him. He was a big time lawyer. What was he doing here in a municipal court, defending a misdemeanor shoplifting ticket? I don’t know, but one thing was obvious: Mr. Ringo was giving it every-thing he had.

I think of Bob often, with much fondness and respect.

Thank you. ❐

…unless you are

believable, nobody

cares what you think,

and if nobody cares

what you think or

say, then it really

doesn’t much matter

whether you’re right

or wrong, does it?


Chapter 3—Damages


APPENDIX B—“PERSONAL AUTHENTICITY”

Why should anyone attempt to persuade others to seek (personal) authenticity? One should seek authenticity because it is necessary in order to be credible. Why should anyone who attempts to persuade others seek credibility? Credibility is necessary in order to be effective. Why? Because without credibility, it doesn’t matter what you say.

Authenticity is related more to the speaker than to what is spoken. Reflect for a moment on what it means to say a speaker is “authentic.” Many synonyms come to mind, including forthrightness, candor, and honesty; others include genuineness or the quality of being “real.” It is obvious that credibility culminates from multiple sources. I submit that credibility is mostly about clearly communicating an attitude of caring. Once again, why is this so important? Because if the speaker doesn’t care, why should the listener?

Here I suggest the reader pause and turn to the attachment to this paper, which is an article from The Oregonian. It is short and won’t take much time to read. Once you have read the article, ask yourself, “Is he speaking from the heart, is he authentic?” Once these threshold questions are answered, it is easy to understand why this father possesses credibility.

Speaking from the heart is easy to say, difficult to do . . . and even harder to do before strangers in public. Perhaps one reason this is so difficult is because, at some deep level, all of us are frightened of rejection. So much honesty demands too much vulnerability. Often the smarter we are, the more apt we are to think rather than feel. When left to our instincts, we lawyers analyze, categorize, rationalize and intellectualize every minute aspect of a case. Yes, we need to do all of this, and do it well; but be aware this is the work of a legal technician. What is missing? It’s that something extra, that potent “white-knuckled” passion that flows from “heart talk”!

So how do you argue a case, any case, with convincing authenticity? Stated differently, “Where are the roots to heart talk found?” For each of us there is one place, and only one place. It is unique to each of us, yet entirely the same for all of us. The headwaters of authenticity spring from deep within you, from the life you have lived.

Immerse yourself in the facts of your case. What aspects resonate with you? What element is compelling? Is it a sense of indignation generated by the liability, or the loss of something dear to your client, to which you can relate? Slowly reflect upon your emotions. Don’t run from them—embrace them. Your clients are forced to live within this case and its attendant emotions every day. Ask yourself, “Which of my life experiences allows me to empathize with my client? Will a particular group of jurors have had a similar life experience and feel empathy for my client?” This is often expressed colloquially as “putting yourself in the shoes of another.” This process is similar regardless from which side of the table you advocate. Visit and spend some quiet time with your clients. How have their lives changed? What is poignant? What is different? What have the changes meant to your clients? Talk to them about prior hopes and dreams. How has not only their outer world changed, but also their inner world?

Being authentic isn’t about being maudlin, or appealing to sympathy. Good advocates realize that. Even when sympathy is operative, it “thins out” entirely too fast. If something about your case naturally appeals to the jurors’ sympathies, don’t explicitly argue it. You will only lose ground by overtly appealing to their emotions. Jurors are properly offended when a lawyer panders by appealing directly to their sympathy.

Convert sympathy into material that has more impact. The obvious sympathetic aspects of the facts will speak for themselves. Acknowledge the presence of natural feelings of sympathy for your client, but then remind the jurors that no verdict is to be based upon sympathy. Explain that basing a verdict upon sympathy cheats not only the defendant, but also the plaintiff. Injured people don’t want anyone’s sympathy, and certainly no one’s pity. They almost always come to court for one reason, and

Chapter 3—Damages


that is justice, which is also exactly what most defendants want. In the short term, it may seem you are giving up something of value. However, from the tactical perspective of a longer view, you are not really forfeiting anything. You are simply turning in silver for gold. You are morphing sympathy into credibility.

Whenever you are talking from the heart to a jury, you may be addressing the jurors in the third person, but emotionally and texturally you are really speaking to them from an “I-You” perspective, meaning the first person. Share the meaning of this particular experience with the jurors. The lawyer needs to walk a fine line when bringing something of his or her personal essence to the courtroom. It’s not acting. It’s close to the lawyer’s personal sense of decency. It’s the lawyer’s humanity shining through. You needn’t raise your voice. When spoken with a quiet resolve your “truth” will thunder.

The case theme often says as much about the lawyer as it does the case. From a universe of facts, many themes could have been selected, yet this particular lawyer has selected this particular theme. Maybe the case has been presented to a focus group with a jury consultant who has suggested the strongest theme. But whether or not it has, each lawyer must search for the manner in which he or she is most comfortable in effectively presenting the selected theme. The lawyer must bring more than mere words to generate maximum credibility.

One more quote from another academy award winning actor, Ben Kingsley, puts just the right spin on the opportunities a speaker has with his or her audience. “The tribe has elected you to tell its story. You are the shaman/healer, that’s what the story teller is, and I think it’s important for actors to appreciate that. Too often actors think it’s all about them, when in reality it’s all about the audience being able to recognize themselves in you. The more you pull away from the public, the less power you have on stage.”

Common Questions and Criticisms About “Heart Talk”

1. Heart talk is really nothing more than a performance.

Response: When an argument comes from the heart, it’s never a performance. If words don’t come from the heart, it’s always acting. Authenticity is driven only by the authenticity that comes from deep within each of us. Aristotle knew about this when he talked not only of logos (logic), but also pathos (emotion) and ethos (morality).

2. Heart talk seems to come more easily to others than to me. Oddly enough, when it does come, it arrives so quickly and with such ease it just can’t be “real.”

Response: At times, heart talk comes quickly, but it rarely comes easily. More often it is the result of hours and hours of agitated effort. Key insights will harken in the small hours of the morning, in the shower, at stop signs, in your sleep. Heart talk is often a flash of insight, the episodic result of a glacial process.

The following excerpts are from a speech actress Jodie Foster delivered to Yale’s graduating class in 1993. What does this Academy Award winning actress know about communication? Jodie begins by confessing that story telling is her Olympic event. She goes on to explain:

’So let me tell you what I do for a living (I include all my various professions in this analogy). I put all my stuff—my history, my beliefs, my passions, and taboos and personal foibles, my weaknesses, and unconscious agendas and eccentricities—I put them delicately and precisely on the tip of the proverbial arrow. I take careful aim, keep the target in my sight, and try desperately to communicate all that is in me in a straight line toward an audience. But I am only human. My eyesight is faulty; my hands are shaky; a million things will distort the goal. And no matter how well I aim that arrow, I never completely connect with the other. But it’s the process of trying that’s significant. That’s where all the messy, beautiful human stuff lies—in the space between the “you” and the “other,” between the “you” and the “I.”

Chapter 3—Damages


This creative process depends entirely upon hope. I hope the next time I take aim and shoot, now that I’m more conscious of my previous misfirings, that I’ll aim straighter and cleaner, and I hope more of me will find its way connecting intimately with more of you. Please don’t misinterpret this sentiment as a call for some sort of commercial formula in film making. On the contrary, by connecting, I’m telling a story, by telling your story revealing yourself in the telling, reading and being read back.

3. The expression of personal opinions is ethically prohibited. DR 7-106(c)(4).

Response: You must be careful in your phrasing. It is improper to say “I think __________.”

Simply rephrase the material by dropping the words “I think” and substituting an alternative, such as “It is reasonable that __________.” Saying “I think” is just a bad habit that is easy to correct. It provokes an objection that allows your opponent to interrupt the flow of your argument with an objection which they will win; and in the process they can correctly accuse you of unethical behavior before the jury (remember the Disciplinary Rules are statements of ethics).

4. Can you be a good trial lawyer without heart talk?

Response: Yes. In fact, most trial lawyers never reveal much of themselves in the process of advocacy. Many competent trial lawyers never bring anything of themselves to the courtroom. This is particularly true of attorneys who limit their practice to emotionally sterile matters such as patents, tax, or yes, even some commercial matters. These are lawyers who argue both the facts and law with great skill. In my opinion, however, they can never be more than competent technicians because they lack the passion and resulting authenticity that truly great lawyers exude. Such attorneys are not temperamentally suited for discussing the people behind the issues. If before a judge, traditional wisdom may argue in favor of a more aseptic presentation. However, even here, there are real people behind every “legal” issue. When advocating before juries, no matter what the issue, there is always a place for heart talk.

5. All this heart talk would be easy if I represented victims of sexual abuse and always was on the side of the underdog. Mr. Barton, I represent large businesses. Show me how to do heart talk in commercial cases.

Response: My friend Richard Bodyfelt used to represent all the Fortune 500 companies against product liability claims. When Dick was through introducing his client Ford Motor Company during jury selection, I could just hear Henry Ford out back in the tool shed creating the first Model A. No matter whom Dick represented, no matter how big the corporation, somehow he always managed to represent real people. Dick knew that behind every “set of facts” there were people and a compelling story to be told. When newspaper editors send writers out on assignment, they don’t just want the facts, they want a story, meaning the story behind the facts. That’s why television coverage of recent Olympic Games now includes not only excellent coverage of the competition, but supplemental, personalized stories about the contestants.

A good example of breathing life into a commercial claim is a lawsuit against McDonalds Hamburger Franchises, which alleged a breach of an oral contract. Wyoming lawyer Gerry Spence synthesized the case into the compelling theme of “Let’s put honor back in a handshake.” If you remain at a loss in selecting an effective case theme, consider retaining a respected jury consultant to assist you in acquiring a new perspective.

6. Not every case has a client or some aspect of the facts that conveniently lends itself to a sense of indignation. Maybe you don’t even like the client you are representing. How do you generate heart talk under those circumstances?

Response: Life doesn’t come to us as cleanly or clearly as we would like, nor always on our terms. I am often in conflict, and I don’t really believe I’m always wearing the white hat in the courtroom. This is apart from the fact that I am running a business with monthly overhead that in many ways runs me.

Chapter 3—Damages


How many young lawyers might rather be doing public interest work, but have accepted the financial “golden handcuffs” and sold their souls to the high salaries of the big firms in order to pay off their student loans?

O.K., so you are an emotionally divided house. Carefully think your way through every aspect of the conundrum. Then “cut the baby,” and by this I mean make a decision. Once this is done, put your full weight into the final position you have adopted. As natural as it may be, don’t punish yourself by constantly revisiting a decision once it has been made. The process of becoming and being an effective trial lawyer demands great mental discipline. Ed Peterson, former Chief Justice of the Oregon Supreme Court, shared with me the following: Often the exact wording of many unanimous decisions the Oregon Supreme Court issued during his tenure was the product of vigorous debate, much compromise and innumerable rewriting as the justices struggled to find common language with which they were comfortable. It might take months for the judges to hash out their differences in conference. When later reading the unanimous result, you have no inkling of the many compromises that went into the exact words of the holding. At its conception in conference, this bold, black-letter rule would have been difficult to locate. Finally, at its birth, it arrives without dissent and little hint of just how close the court was to accepting the alternative arguments. A hint that this has been the case is when the court emphasizes the holding is limited to facts of the particular case.

Not only are you representing your client, but in a real sense you are also representing yourself. Sift through all the facts. There is always a story to tell. Go find it, and make it your story.

7. I am a female lawyer and I am worried about being perceived as “too emotional” if I fully embrace this technique; in other words, does the application or effectiveness of “heart talk” vary whether the lawyer is male or female.

Response: There is a context for everything. Too much emotional content or appeals too early in the case may backfire. The short answer is because the answer comes from deep within you, there are no gender based criteria.

Communicating Authentically, or Learning How to Speak “Heart Talk”

There are techniques that can assist anyone in locating and accessing the deep feelings that fuel heart talk. This process is divided into three stages—acquisition, presentation and substance. Substance is about the speech’s content; presentation its delivery. First and most important is acquisition, meaning generating the content for the presentation.

Let’s discuss the process of acquisition. Acquisition is a process that entails the identification and revisitation of the life experiences that allow the speaker and audience to emotionally relate to or empathize with the plaintiff.

1. Some times are better than others for accessing the material of heart talk. Life is similar to riding a bicycle: You don’t have to pedal hard all the time. There are times you can coast, such as when going downhill or on level ground. Accessing feelings is similar: You don’t always have to be engaged in the executive skills of problem solving. When problem solving, you are pedaling hard and it is difficult to do anything other than just stay focused on pedaling hard. Then there are other times when you can relax and coast. These are the times your emotions are closest to the surface, when they are easiest to access. Make the effort to create these reflective opportunities; then relax and harvest what you can. You will be drawing water from the deepest parts of your soul.

2. Free association is a technique some mental health professionals use in various types of therapy. It is a process by which you go backwards in your mind, like descending down a rope into the darkness when scuba diving at night. This mental process is called association. We do this when an old song or a smell brings back memories.

Chapter 3—Damages


Now get comfortable, sit back, relax and muse upon the case. Let your mind wander, but not too far. Nudge your mind back to the (facts of your) case when it drifts. Return to the case. What thoughts and images come to mind? What in your life has been similar? How was your experience the same or different? How did you feel? Keep coming back to your client. When you hit a blank space, relax, just let it be. This isn’t a test. Search for an experience, perhaps one from childhood that feels emotionally similar. You are getting ever closer to the headwaters of your heart talk for the case. Good trial lawyers spend the effort necessary to find the previous time(s) in their lives that they have walked an emotional mile in their client’s shoes. Until you have found this special place, you are not ready to go to court. Trials are about much more than the facts and the law.

So you are fortunate enough that you have never been the victim of a severe burn or lost a child or a mate. I never have. What do you do then? Great literature allows us to experience these traumas vicariously. A sense of compassion for our fellow beings is the answer.

Now reread The Oregonian article. One more time, try to imagine what this father must have been feeling. Let your mind wander to some aspect of September 11. What sights, sounds, smells and images come to mind? Stay with them. This requires no eloquence or particular words. Just the words of one heart reaching out to another—to share with him or her.

3. During your presentation, when engaging in heart talk, consider slowing down and occasionally pausing. Silence can be deafening. There is no reason to rush through the most important part of your presentation. Eye contact with each juror is at a premium. It’s the right time to lower your voice. This isn’t about faking it, it’s about effective communication, which is precisely what both effective advocacy and quality acting are.

Conclusion

Law school classes on trial advocacy teach mainly mechanics with a skosh of technique. While advocacy certainly requires basic skills, it appears lost on academics and legal mentors that the most important attribute to effective jury advocacy is a lawyer’s authenticity. Every young child inherently possesses this personal ethos; however, traditional law school curriculums and the subsequent litigation training most lawyers receive bleaches out the personal essence of beginning lawyers. Before lawyers went to law school they all rode in cars; after receiving their legal diplomas they only ride in vehicles.

Chapter 3—Damages


Chapter 3—Damages


Chapter 3—Damages


Chapter 4

Case File: Lawrence T. Monroe, Plaintiff, v. Teresa Louise Cartwright, Defendant

Chapter 4—Case File: Lawrence T. Monroe, Plaintiff, v. Teresa Louise Cartwright, Defendant




INTRODUCTION

The facts in this case are crafted to create a comparative fault situation. The verdict in this case can go either way.

The issues are identified in the complaint and answer, although you will need to use your discretion as to what claims and/or defenses you will pursue at time of trial. This is not a punitive damage case.

Begin by reading the scenario from start to finish twice, then read the Quick Step Guide and proceed. Have fun!

PARTICIPATION

Each student is required to conduct voir dire, prepare and present and opening statement and closing argument, and conduct the direct and cross of one witness.

1. Larry Monroe—plaintiff.

2. Teresa Louise Cartwright—defendant.

STIPULATED FACTS

1. All injuries were caused by this automobile accident; however, Larry had some pre-existing injuries and physical limitations.

2. Larry Monroe’s employer is not involved in the case.

3. Only those facts set forth in this scenario and reasonable inferences may be used.

PRACTICE TIPS

In a case of this kind, offensive use of the damages instruction (“as is”) and visual aids are extremely important. The scenario is based on an actual intersection, and you may use the diagram provided or prepare your own diagram and provided photos of the scene—this is an actual location. Staged diagrams of the position of the vehicles are encouraged but, of course, must conform to the case facts.

The verdict form has claims of comparative fault and damages on behalf of the plaintiff Lawrence Monroe and defendant Teresa Cartwright.

Lawrence Monroe’s past economic losses were calculated from the date of his injury to the date of trial at $26,500 per year for two years, for a total of $53,000. For future economic damages, his future impaired earning capacity was calculated at $13,250 per year (one-half of his previous annual income) from his present age of 30 forward to age 65 (35 years × $13,250 = $463,750). Noneconomic damages (pain and suffering) were calculated at $10,000 per year until age 84 (which is his life expectancy according to the Life Expectancy Tables) (54 years × $10,000 = $540,000).

Please refer to the American Jurisprudence Proof of Facts tables providing that an object traveling at 60 miles per hour moves at 88 feet per second; thus, 30 miles per hour is 44 feet per second. Under ORE 201(B)(2), the court will take judicial notice of this and the Life Expectancy Tables showing Lawrence Monroe’s life expectancy to be 84.



Chapter 5

Factual StatementsContents

Portland Traffic Accident Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–1

Statement of Patricia Algers (Plaintiff Witness). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–5

Statement of Gary Travis (Defense Witness) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–7

Statement of Shelly Martin (Defense Witness) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–9

Deposition of Teresa Louise Cartwright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–11

Deposition of Lawrence T. Monroe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–19

Deposition of Gary Travis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–25

Deposition of Mrs. Connie Monroe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–29

Chapter 5—Factual Statements




PORTLAND TRAFFIC ACCIDENT REPORT1

Accident date: May 6, 20__ Accident time: 4:00 p.m. Day of Week: Wednesday Accident location: Intersection of S.W. Capitol Hill Rd. and S.W. 17th Dr., Portland, Oregon Police notified: 4:05 p.m. Arrived at scene: 4:10 p.m. Emergency vehicle notified: 4:12 p.m. Arrived at scene: 4:20 p.m. Description: Two-vehicle collision. Both drivers and two passengers in Unit #2 taken to hospital. See Officer’s narrative. Unit #1 = motor vehicle Operator: Monroe, Larry DOB: 1/15/__ Address: 172 SW 35th, Hillsboro, OR Home telephone: 246-3367 Driver’s lic. #: 5609823 Or Vehicle lic. #: “ CRUS-R” -Or Insurance Company: Geico Vehicle: 1979 Datsun 280Z Reg. owner: Same Vehicle damage: Extensive damage to full front end - no other damage Mechanical defects: none noted Unit #2 = motor vehicle Operator: Cartwright, Teresa Louise DOB: 04/10/__ Address: 2245 SW Victor Lane, Portland, OR Home telephone: 244-6745 Driver’s lic. #: 7241039 Or Vehicle lic. #: PYA 242-Or Insurance Company: State Farm Vehicle: 1988 Ford Escort Reg. owner: Ronald R. Cartwright Vehicle damage: Extensive damage to left rear quarter panel - no other damage Mechanical defects: Driver’s seat belt not operable District: Residential Posted speed: 30 Road: Asphalt Traffic control: T intersection. Marked 20 mph curve south of 17th. Stop sign on 17th for traffic entering Capitol Hill Rd. Description: Clear, full day light, surface dry. Capitol Hill Rd. is one lane each direction. 20 mph curve at intersection. WITNESSES AT SCENE: 1. Shelly Martin2 2. Gary Travis

1 Assume italics are officer’s handwriting 2 There were four other female passengers in Teresa Cartwright’s vehicle. All are unavailable as witnesses. If they were able to recall the accident, their testimony would be consistent with Shelly Martin’s testimony.



INVESTIGATING OFFICER’S NARRATIVE

Received call at 4:05 p.m., after end of my shift. Proceeded to accident scene.

Upon arrival, I called for emergency vehicles and attempted first aid to the driver of Unit #1,

who was in severe pain. The driver of Unit #2 complained of dizziness but otherwise appeared

uninjured.

I then investigated the scene. The vehicles had collided in the northbound lane of

Capitol Hill Rd. I observed no apparent skid marks in the vicinity of either vehicle. The point of

impact appears to have been in the northerly lane of traffic. The left front end of Unit #1

appeared to have collided with Unit #2 slightly to the rear of mid-line behind the left (driver’s)

side of Unit #2. Both cars sustained substantial body damage. Capitol Hill Rd. is marked with a

20 mph curve sign just south of the accident site. There is a bushy hedge, approximately 12-15

feet tall, along the west side of the southerly lane just before the curve partially obstructing

drivers’ views. There is a speed bump 120 feet prior to the accident scene on Capitol Hill Road

just past the curve.

Driver of Unit #1 told me that he was north-bound on Capitol Hill Rd. He

estimated his speed at 25-30 mph. He said he saw Unit #2 approaching the stop sign on

SW 17th. He said that as he approached the speed bump he first thought that Unit #2 would not

stop at the stop sign, and he began to apply his brakes. He accelerated when Unit #2 did appear

to be stopping. He said that Unit #2 then pulled out directly in front of him as if to make a left

turn onto Capitol Hill Rd.

Driver of Unit #2 told me that she stopped at the stop sign at the intersection of

SW 17th and Capitol Hill Rd. She said that she did not see any traffic approaching .from either



direction before she pulled out to make a left turn onto Capitol Hill Rd. She said she did not see

Unit #1 until just before the moment of impact.

There were six persons in Unit #2, the driver and five female passengers. The

driver told me that she thought she had hit her head in the collision and complained of dizziness.

I observed that three of the passengers were obviously and visibly intoxicated and still loud and

rowdy when I arrived, although I did not observe any alcohol containers in Unit #2. I did not

conduct a field sobriety test of the driver or request testing for alcohol because of the condition

of the driver, who did appear dazed.

Gary Travis claimed operator of Unit #1 was “driving like a crazy man just

before accident,” which operator of Unit #1 denied.

Probable cause of accident: Operator of Unit #1 failed to keep a proper look out

and was driving too fast for conditions. Operator of Unit #2 failed to yield right of way. No

citations issued.3

3 At this time, police officers could not issue citations for traffic violations they did not witness.





Plaintiff Witness

STATEMENT OF PATRICIA ALGERS4

My name is Patricia Algers. I am 20 years of age. I graduated from Wilson High

School. I live at home with my parents.

On May 6, 20___, some of us seniors skipped class to go to a party out at Big

Eddy on the Clackamas River. There were a lot of kids. I saw Teresa Louise Cartwright there

with some of her friends. I don’t know Teresa personally. I don’t hang out with that snooty

crowd, but I know who she is because she’s been going out with my former boyfriend, Jake

Carlson. I last went out with him about a month before skip day. We had a fight, but I think we

will get back together.

There was a keg of beer and cans and bottles of pop at the party. As far as I could

tell, everybody was drinking beer. I am sure that I saw Teresa at the keg and drinking too. I saw

her, with her back to me, bending over the keg and I remember seeing her walking around with a

cup in her hand. Some kids were drunk, but I don’t know how much Teresa had to drink

although I did see her near the keg a couple of more times during the day. I couldn’t see what

was in her cup, but I know she was drunk because she was getting real loud and obnoxious.

She’s usually such a “goody two shoes prude.”

Teresa and I had a nasty exchange on Facebook over Jake. When I saw

that she updated her profile to “in a relationship with Jake Carlson,” I posted she was an “ ugly

cow” and she better watch her back. My feelings were hurt and I did not mean it.

4 Assume this statement was taken shortly after the accident by an investigator for Geico.





Defense Witness

STATEMENT OF GARY TRAVIS5

My name is Gary Travis. I am 42 years old. I am employed at the Tualatin

Valley Water Department, where I usually get off work by about 3:30 pm. I live in Portland on

SW Troy, just off SW 17th Dr.

On May 6, 20___, I was driving home from work on 99W through Tigard.

I noticed this sports car coming up dodging in and out of traffic and going real fast, maybe

55 mph. The speed limit on 99W through there is 35 mph. I was traveling in the left lane when

the sports car came up behind the car next to me in the right lane. I thought the sports car was

going to hit the car next to me, but instead it shot through the gap between us, cutting me off and

making me have to brake hard to avoid a collision. As the car passed me, I noticed that the car

was an older Datsun 280Z with a vanity plate that said “CRUS-R.” The driver, Larry Monroe,

appeared to be alone.

I continued toward home, taking 99W to Barbur Blvd. For a while I could see

Larry Monroe ahead of me traveling north on Barbur, still moving fast and dodging in and out of

traffic. I was so mad I thought about calling the police when I got home to report what I saw.

A few seconds after seeing Larry weaving in and out of traffic and just past the

Safeway on Barbur, I turned left onto SW Capitol Hill Rd. right behind him. As I approached my

turnoff at SW 17th Dr., there was Larry in an accident. He looked like he had plowed right into

the side of a small Ford Escort. I wasn’t a bit surprised.

I went straight to a friend’s home nearby and called the police to report the

accident. I then returned to the accident scene to make sure Larry got what was coming to him!

I know him from work—he got the promotion I should have got. 5 Assume this statement was taken shortly after the accident by an investigator for State Farm.





Defense Witness

STATEMENT OF SHELLY MARTIN6

My name is Shelly Martin. I am 20 years old. I graduated from Wilson High

School. I live at home with my parents.

On May 6, 20___, some Wilson seniors skipped school and went to a party at Big

Eddy on the Clackamas River. Teresa Cartwright, my best friend, offered to take me and several

other girls in Teresa’s father’s car, which he lets her use.

There was beer at the party. Some of the girls I was with got pretty drunk. I had

maybe one or two beers, but I never got drunk. I didn’t follow Teresa around the whole day, but

I don’t think Teresa ever drinks alcohol and I don’t think she drank at the party although I wasn’t

with her all day.

We left Big Eddy at about 3 pm to get home because we were going to be late and

Teresa’s dad would have a fit if she got home late. There were six of us in the car: me, Teresa,

who was driving, and four other girls who were pretty rowdy, singing and laughing.

I was sitting in the front passenger seat. We took 205 south to I-5, took I-5 north,

then got off I-5 onto Barbur Blvd. We turned off of Barbur onto SW 17th Dr., which is a short

cut to Wilson High. Just as we got to Capitol Hill Rd., we tried to get the girls to be quiet to ask

them where they wanted us to take them, but they wouldn’t stop singing so we suddenly decided

we had to turn left and go into Multnomah to get some coffee at Starbucks and sober up—I mean

sober the girls up.

I’m pretty sure we stopped at the stop sign at Capitol Hill Rd. Even though the

other girls were goofing off in the back seat of the car - we were all singing our school fight song

- but Teresa was paying attention to her driving. I’ve ridden with Teresa a lot, and she is always 6 Assume this statement was taken by an investigator for State Farm shortly after the accident.



a careful driver. I know she never would roll through a stop sign. I didn’t see the other car

coming until it hit us.

I was wearing my seat belt, which I think kept me from getting hurt. I don’t know

if Teresa was wearing hers.



DEPOSITION OF TERESA LOUISE CARTWRIGHT7

Examination by plaintiff’s attorney:

Q: State your name and address.

A: Teresa Louise Cartwright, [address].

Q: How old are you now?

A: I’ll be 20 in April.

Q: Are you employed?

A: No, I’m a student.

Q: Where do you go to school?

A: I’m a first year student at the University of Portland.

Q: In May ____, were you a student in high school?

A: Yes, I was a senior at Wilson High, about to graduate.

Q: I want to ask you about the day of the accident, May 6, ____. What time did you get up that day?

A: Oh, probably the usual for a school day. 6:30 am.

Q: How was your health that day?

A: Fine.

Q: Did you go to school that day?

A: Yes. We planned to meet at school, then skip after second period to go out to the Clackamas River.

Q: So the plan to skip school was made before May 6?

A: Yeah--a whole bunch of us planned it as a senior skip day. The weather had been good and we were real close to graduation. Seemed like a good idea at the time.

Q: Where did you go when you left school?

A: Everyone was going to Big Eddy on the Clackamas River. That’s past Estacada.

7 This is a routine discovery deposition taken about six months before trial. The witness was sworn and the usual stipulations were agreed upon.



Q: How did you plan to get there?

A: My father let me use his car. I planned to drive and take several of my friends.

Q: Did your father know that you planned to skip school and take his car up to Big Eddy?

A: I don’t think I told him.

Q: What did he say when he found out?

A: Well, he was mad. I mean, the car was wrecked, I was hurt, and now I’ve been sued. . . .

Q: What time did you leave school that day?

A: About 10 a.m., after second period.

Q: Did anyone ride with you?

A: Yes, five other girls.

Q: All seniors?

A: Yes.

Q: Who were the girls?

A: Let’s see . . . Shelly Martin, Sally Fitzgerald, Margo Pietri, Erin Forbetts, Joyce Shelton.

Q: Do you know where those girls live today?

A: Well, Shelly Martin is in Portland. The rest of them have gone off to school. I’m not sure where they all are.

Q: Okay. When did you get to Big Eddy?

A: It’s about an hour drive. Must have been about 11 am. I don’t know, I didn’t check.

Q: Did you stop anywhere on the way there?

A: There’s a little market in Estacada. We stopped and got some chips and stuff.

Q: Did you buy anything else?

A: No, not that I remember.

Q: What did you do when you got to Big Eddy?

A: We hung out, ate, talked, swam. You know, partied with our friends.



Q: Was there alcohol or drugs at the party?

A: There was a keg. I don’t know if there was anything else. I didn’t see any drugs or other alcohol.

Q: Did you drink any beer?

A: No.

Q: Did you drink anything?

A: Well, I’m sure I did. I was there all day. Probably some pop or something.

Q: Would you put pop in a cup, or drink it out of the bottle or can?

A: Don’t know, it depends.

Q: What does it depend on?

A: My mood. I can’t remember what I drank that day.

Q: Is there a medical reason why you don’t drink alcohol? Do you have an allergy or something?

A: No, I just don’t, at least I didn’t then.

Q: You drink alcohol now?

A: On rare occasion, I might have a glass of white wine.

Q: Did the girls that rode with you drink?

A: Well, I didn’t really keep track of them. Sally, Erin, and Joyce ended up drunk, so I guess that means they were drinking. I don’t know about the others. Sometimes Shelly drinks beer, she may have that day.

Q: When did you leave the party?

A: A little after 3 pm. I had to get home by 4 or my dad would have blown his top and I had to get several of the girls home first.

Q: Did the same five girls ride home with you?

A: Yes.

Q: Isn’t a Ford Escort a small car?

A: Yes, it’s a compact car.



Q: An Escort is not designed to carry six people, is it?

A: No, but my friends are pretty skinny.

Q: Now many were in the front seats?

A: Just one in each seat--they’re bucket seats.

Q: So four girls were in the back?

A: Yes, but they didn’t complain.

Q: What route did you take?

A: We drove down the river and got onto 205. Took 205 to I-5, got off on Barbur Blvd. I went north on Barbur to SW 17th, which is a cutoff between Barbur and Capitol Hill Rd. I use it as a shortcut sometimes.

Q: Where were you headed?

A: Back to Wilson High to drop off some of the girls.

Q: Tell me what happened after you turned onto 17th.

A: Well . . . Shelly and I decided to go into Multnomah to Starbucks and get some coffee. We thought it would be a good idea to try to sober up the others ‘cause their parents would have killed them if they knew they were drinking. The Starbucks is on Capital Highway, in Multnomah Village. Anyway, to get there, we had to turn left onto Capitol Hill Rd.

Q: When did you decide to go to Multnomah?

A: Well, I stopped at the stop sign, looked left, then looked right, and didn’t see anybody coming either direction. Shelly and I tried to get the girls’ attention but couldn’t, so we decided to turn left and take them to Multnomah. I pulled out and wham! This guy comes zooming out of nowhere and plows right into the side of the car. I never did see him until he hit me. I don’t remember exactly what happened next, but the next thing I remember, we were stopped in the middle of Capitol Hill and I couldn’t get out of my door because this other car was mashed into it. We piled out the other side of the car. I was dizzy, but didn’t have any blood on me or anything. Shelly looked okay. Several of the other girls were cut up some.

Q: After you looked left and then right, did you look left again?

A: I don’t remember.



Q: Did you or the other girls have seat belts on?

A: Mine was broken, so I couldn’t use it. I think Shelly was wearing hers. There weren’t enough seatbelts to go around in the back and I don’t know if anybody in the back seat was wearing one.

Q: Let’s go back to when you were at the stop sign. How fast were you going as you approached Capitol Hill Rd?

A: Oh, probably 20 mph or so. Not very fast.

Q: Did you come to a complete stop at the intersection?

A: Yes, of course.

Q. Where exactly did you think you stopped? Show me on the picture, Exhibit 1.

A. I don’t remember.

Q. Do you think you might have stopped even with the stop sign?

A. I don’t remember.

Q. Do you think you might have stopped at the line?

A. Don’t remember.

Q: Do you think you might have come to a rolling stop?

A: No, I completely stopped.

Q: Is the car you were driving a manual shift or automatic?

A: Automatic. It’s a gutless wonder. Or was a gutless wonder. It was totaled.

Q: What happened after the impact?

A: Like I said, we piled out of the car. My side window was shattered. We were afraid it might blow up or something. A police officer showed up pretty quick. I guess some guy came across the wreck and called the police. The policeman looked around, took some measurements, called ambulances, interviewed people. I gave him a statement. The other driver appeared hurt, and the policeman spent some time with him. After I gave my statement, I went in an ambulance to the hospital. I was really feeling dizzy, like things were moving around me in circles. My eyesight was fuzzy.



Q: Do you recall whether when you were at the stop sign, you had a clear view both directions on Capitol Hill Rd.?

A: The road curves away in both directions. You can see a long way to the right. To the left there’s a hedge on the other side of capital that kind of blocks the view, although if someone was traveling at the correct speed, you could see far enough to see them coming and not pull out in front of them.

Q: On the day of the accident, could you see clearly both directions on Capitol Hill Rd.?

A: Just like I told you. It hasn’t changed any.

Q: Is it your theory that Mr. Monroe was speeding?

A: Yes, he had to have been. That, and not paying any attention to what he was doing. At least that’s what the police officer thought.

Q: Let’s talk about your injuries. What injuries did you receive in the accident?

A: Right after the accident I didn’t think anything was wrong, except I was dizzy. The ambulance crew thought maybe I had a concussion or something, so they took me in the ambulance to the emergency room.

Q: Which hospital were you taken to?

A: St. Vincents. Anyway, they took x-rays, did a neurological check, gave me some pain medication, and sent me home. My dad came and got me. I felt basically okay at the time, just shook up and beginning to get stiff. At about 3 am, though, I woke up with the worst headache I could imagine, and I never got headaches until then. It really scared me and my parents. The pain medication didn’t help at all. Then the pupil in my right eye opened up wide and wasn’t responding to light. My parents freaked and took me back to the hospital, where I was admitted for observation and more tests. It turned out I had a “ subdural hematoma” --a bunch of blood pooled under my skull pressing on my brain where I hit the side of my head on the window of the car. Actually, as it turned out, I broke the window with my head, though I didn’t realize it at the time.

Q: What happened after you were admitted to the hospital?

A: The doctor says that the hematoma put pressure on my brain. I was in the hospital for more than three weeks. They kept pumping me full of medication to keep the swelling down. They thought they might have to drill a hole in my skull. I was in a lot of pain from headaches and also from just being banged around in the accident.

Q: Did you graduate with your class?

A: No. I was unable to take my finals. I was still in the hospital when they had the graduation ceremony. In fact, I missed the senior prom, and I had spent $750 of my own money for my prom dress!



Q: What losses do you claim as a result of the accident?

A: Well, the dress for one. It cost me $750. I mean, what good is a prom dress after the prom is over? The medical expenses. Physical therapy expenses. I didn’t really feel good again until after Christmas. I lost a summer job I had lined up for after graduation because physically I couldn’t do it.

Q: What was the job?

A: I had been hired as a lifeguard and to teach swimming at the Metro pool. I would have worked from June 1 to September 2, 30 hours per week at $8.25 per hour.

Q: How much were the medical expenses and physical therapy expenses?

A: $34,357 in medical expenses and $3,297 in physical therapy expenses.

Q: What other injuries did you suffer?

A: Well, because I couldn’t graduate with my class, I basically lost a whole year of my life. I had a scholarship at the University of Portland, but I couldn’t start school that fall because I still had to finish high school. I ended up graduating from Wilson in 2010.

Q: You’re enrolled at the University of Portland now?

A: Yes, but I’m a year behind my friends that go there.

Q: Did you lose the scholarship?

A: No, The people at the U of P were really understanding and held the scholarship open for me. I had really good grades -- mostly straight As.

Q: Do you claim any other injuries?

A: Well, my dad’s car was totaled, like I said. Mainly I lost a whole year of my life, a year I spent in a lot of pain and misery because your client is a crummy driver.

Q: Are you in pain now? What I mean is, do you have any permanent injuries as a result of this accident?

A: Well, I get headaches sometimes, about one every two weeks or so, and I didn’t used to. They say you never know what will show up when you get older, so who knows?

Q: But you are not aware of and no one has told you that you have any permanent injuries?

A: Other than the headaches, not that I know of, no.

Q: Thank you. I have no further questions.





DEPOSITION OF LAWRENCE T. MONROE8

Examination by defendant’s attorney:

Q: Please state your name and address.

A: Lawrence T. Monroe. Address is [see Police Report].

Q: Is Larry short for Lawrence?

A: No, just Larry.

Q: Mr. Monroe, how old are you?

A: I’m 3_.

Q: Tell me about your education. Did you finish high school?

A: Yes. Then I went for two years to PCC at the Sylvania Campus.

Q: Did you get a college degree?

A: No, I needed the money so I got a job.

Q: Are you currently employed?

A: No, that’s the problem.

Q: Okay, we’ll get to that later. Were you employed on May 6, ____?

A: Yes. I was working for Ernst Hardware in Tigard.

Q: What was your job there?

A: My official title was “Assistant Area Manager--Yard and Garden.” But I did whatever was needed in whatever department needed it, usually. Mostly I was a cash register clerk.

Q: How long had you been employed at Ernst at the time of the accident?

A: About five years. I’d had similar jobs other places before then.

Q: What happened that you are no longer employed by Ernst?

A: My injuries in the accident prevented me from doing the job I was qualified for. It’s just taken me too long to recover, and I’m not able to do the things I used to do.

8 This is a routine discovery deposition taken about six months before trial. The witness was sworn and the usual stipulations were agreed upon.



Q: Okay. Well, I’ll ask you more about that later. Right now, I want to focus on the day of the collision. Were you working that day?

A: Yes. I was working the swing shift--10 am to 7 pm.

Q: So you went to work that day?

A: Yes, just like normal.

Q: How did you feel that day? Healthy?

A: Normal as can be. Sun was out, life was fine.

Q: Now we know that at approximately 4 pm that day, May 6, 20___, you were driving north on Capitol Hill Rd. Please tell me what you were doing that brought you there when you normally would have been at the Ernst location in King City, past Tigard.

A: Well, I was asked to go on an errand to pick up some uniforms from a cleaners in Hillsdale. It was kind of an odd deal--I didn’t know why the uniforms were there but hey! I was just doing my job.

Q: What time did you leave Ernst?

A: About 3:30 pm.

Q: Were you driving a company car?

A: No, I was in my car. They didn’t have company cars, as such.

Q: What kind of car were you driving?

A: A 1979 Datsun 280Z, in cherry condition. A great classic car, that was. It was totaled in the accident. It was worth at least 4 grand!

Q: What route did you take to Hillsdale?

A: Well, I went through Tigard toward Portland on 99W. Went over the freeway, that’s I-5, and on to Barbur Blvd. Went down Barbur to where Capitol Hill Rd. intersects at the Safeway. That’s where Barbur Rentals is, if you know where that is. I would have gone down to Bertha on Capitol Hill, but . . . well, you know what happened.

Q: Actually, I don’t know. That’s why I’m here, to learn your version of what happened. Do you know the speed limit on 99W through the Tigard area?

A: I believe its 40 mph.

Q: Do you know how fast you drove through Tigard that day?

A: The speed limit, I’m sure.



Q: Why are you sure?

A: That’s how I drive.

Q: You never go faster than the speed limit?

A: Never.

Q: Were you weaving in and out of traffic on Barbur?

A: What do you mean in weaving?

Q: Speeding in and out between cars.

A: Absolutely not.

Q: Do you ever speed?

A: Nope.

Q: Why did you select the Capitol Hill route to Hillsdale? There are other shorter options, are there not?

A: I like that road because it curves along a park. Pretty, you know. I’m familiar with it because I live over there and drive it a lot.

Q: Are you familiar with the speed bump just after the curve?

A: That was new. I never saw it before—almost bottomed out!

Q: Tell me about the accident as you recall it.

A: I’m driving down Capitol Hill at the speed limit, which is 30. There’s a curve just before where 17th comes in. I just start into the curve when I see this Ford Escort on 17th racing toward the intersection. I’ve got the right-of-way, but I don’t want to get clobbered so I start to brake in case the fool misses the stop. Then the Escort starts to slow down, so I think its going to stop. I take my foot off the brake, hit the gas just in time for the Escort to pull right into my path. I think I blacked out for a minute then, because the next thing I know, we’ve already crashed, we’re sitting in the middle of the road, and I feel pain. I mean, P-A-I--N.

Q: How fast were you going at the time of the impact?

A: I think about 15 mph. I’d slowed down for the curve, started to brake, and had just started to speed back up when the other car ran the stop. There’s a 20 mph sign for the curve.



Q: What happened next?

A: A policeman showed up right away, it seemed. Then Travis comes over and starts yelling at me about my driving, saying I was speeding and weaving in and out of traffic on Barbur—which I wasn’t! I was too out of it to pay much attention to him. What a jerk! He always has been! Ever since I got the promotion he thinks he should have got at Ernst which caused him to quit. Anyway, I was in a lot of pain. Pretty soon emergency vehicles showed up and I went to the emergency room at Good Sam. The policeman--can’t recall his name--he was talking to me and trying to make me feel like everything was going to be okay. He was a good guy. I don’t really remember much else about the accident scene itself.

Q: You said your car was totaled. Where was the damage?

A: The front end was totally mashed in. Doors crumpled. No other damage, other than in the interior from the frame being pushed back.

Q: You said you were on an errand for work at the time of the accident. Did you make a workers’ compensation claim?

A: Yes. I get a temporary total disability payment of $450 a month for my right foot and ankle.

Q: Are those payments continuing to date, then?

A: Yes, and probably will for a long time.

Q: What injuries did you receive in the accident?

A: Well, mainly my right foot and ankle were totally crushed. The docs tried to pin it all back together, but it didn’t really work. I can walk with this cane here [witness lifts cane], but I can’t stand for very long on both feet and I can’t really do anything normal that involves standing or putting weight on my right leg.

Q: What did you do before the accident that you can’t do now?

A: Play basketball, ski, jog, dance, and just about everything that involves using my ankle. I had a high school basketball injury to my right knee my junior year. I missed the last week of my junior year and had to wear a Lenox-heel brace my senior year. I still started and led my team in scoring and was just team all-league. Three years ago I injured my left knee skiing and have a very slight limp, but I could still do whatever I wanted.

Q: Have you tried doing anything that doesn’t involve use of your ankle, like swimming or seated weight lifting?

A: No—why should I?



Q: What other injuries did you receive?

A: I was pretty beat up. Bruises, sore spots, headaches. Laceration on my forehead and left arm from broken glass. I had my seatbelt on or it might have been worse.

Q: Do you have any permanent scars from the lacerations?

A: Just the scar on my forehead.

Q: Are you in any pain?

A: Oh yes. My foot and ankle hurt most of the time. And because I can’t walk normal and have to use the cane, my hips and back ache quite often, particularly at night. Sure I had a limp before from my left knee injury, but now the left side of my body hurts if I walk any duration.

Q: Ever had an ankle injury before the accident?

A: Nope, never. I also had an allergic reaction to the pain medications the doctor prescribed for me from the car wreck. I was really sick from the allergic reaction to the pain medication they gave me for about three weeks.

Q: How long have you been off work?

A: It’s been 19 months.

Q: what were you being paid at Ernst?

A: I was on a salary. $26,500 a year.

Q: Have you looked for employment since the accident?

A: No. In this economy it’s hopeless. I’m still going to physical therapy and trying to resolve the foot and ankle pain. I don’t really have the skills or training to do anything other than what I was doing.

Q: Do you have any plans to go back to school or seek job training?

A: Sooner or later, yes. I can’t afford not to. But not until I’m better physically.

Q: Did you and your wife engage in any social activities before the accident which you can’t do now?

A: Yes, we used to go dancing all the time, at least once a month, and now we can’t.

Q: Anything else?

A: Yep, we used to go skiing all the time.



Q: How often?

A: Three or four times a year.

Q: Anything else?

A: Not that I can think of now.

Q: Thank you. I have no further questions.



DEPOSITION OF GARY TRAVIS1


Q: State your name and address.

A: Gary Travis. I live in Portland at 1758 SW Troy, just off SW 17th Dr.

Q: How old are you, Mr. Travis?

A: I am 42 years old.

Q: Are you employed?

A: Yes, at the Tualatin Valley Water Department.

Q: Were you employed by the water department in May of ____?

A: Yes, I was.

Q: Mr. Travis, we’re here today because you were identified in a police report as a possible witness to an accident that occurred on May 6, ____, at the intersection of SW 17th Dr. and Capitol Hill Road. That accident is the subject of a lawsuit in which Mr. Larry Monroe has sued Ms. Teresa Cartwright for injuries he claims to have received in the accident, and Ms. Cartwright has counter-sued him for injuries as well. Do you know Mr. Monroe or Ms. Cartwright personally?

A: Yes, I know Larry from work.

Q: How so?

A: We used to work together.

Q: Any bad feelings there?

A: Nope.

Q: Do you recall the accident?

A: Yes, although I didn’t actually see it happen. I got there right after the collision.

Q: In your own words, please tell me what you saw.

A: Well, on that, day, I was driving home from work on 99W through Tigard. I usually get off work by about 3:30 pm, so I think it was probably about 3:40 pm. I noticed this

1 This deposition was taken about six months before trial. The witness was sworn and the usual stipulations were agreed upon. Note: A search of court records revealed that in June 2010, Mr. Travis was convicted of felony theft by embezzlement in the second degree and received a suspended sentence.



sports car coming up dodging in and out of traffic and going real fast, maybe 55 or 60 mph. The speed limit on 99W through there is 35 mph. I was traveling in the left lane when he came up behind the car next to me in the right lane. I thought the sports car was going to hit the car next to me, but instead it shot through the gap between us, cutting me off and making me have to brake hard to avoid a collision—boy was I pissed! As the car passed me, I noticed that the car was an older Datsun 280Z with a vanity plate that said “CRUS-R.” I then recognized the driver was Larry, who appeared to be alone.

Q: What happened next?

A: I continued on toward home, taking 99W to Barbur Blvd. For a while l could see Larry ahead of me traveling north on Barbur, still moving fast and dodging in and out of traffic. I was so mad I thought about calling the police when I got home to report what I saw, since I could identify him and his license plate.

Q: How did you come to be a witness to the accident? Were you following the Datsun?

A: Not on purpose, no. I lost sight of it on Barbur. Just past the Safeway on Barbur, I turned left onto SW Capitol Hill Rd. Then, as I approached my turnoff at SW 17th Dr., there was Larry in an accident. It looked like he had plowed right into the side of a small Ford Escort. I wasn’t a bit surprised. He always drives that thing fast!

Q: What did you do next?

A: I went straight home, got my cell phone and called the police to report the accident. I then returned to the accident scene.

Q: Were you still upset with Mr. Monroe?

A: Nope—too worried about if anybody was hurt.

Q. Did you say anything to Larry?

A. Nope.

Q. Did you yell at him?

A. Don’t think so.

Q: Did you do anything at the accident scene?

A: No. Between the police and the ambulance crews, things seemed to be pretty much under control. I gave my name to the police officer and went on home.

Q: The police report states that a man identified as you said that Mr. Monroe was, quote, “driving like a crazy man” on Barbur Blvd. before the accident. Did you say that?

A: I don’t remember. I might have. It sounds like something I might of said if I was mad, which I was.



Q: But do you now actually recall saying that, or something like that?

A: No, not really.

Q: Is there anything else about the accident that you recall?

A: Nothing more than what I already told you, cop should have ticketed Larry!

Q: That’s all the questions I have, then.

Examination by plaintiff’s attorney:

Q: I have a few questions, Mr. Travis, we met before. I represent Mr. Monroe in this lawsuit. Now you said that you don’t remember anything else about the accident?

A: No. Like I explained, I got to the scene after the accident had already happened. After I called the police and things were under control, I left.

Q: Okay. Let’s see. I have one more question. Have you ever been convicted of a crime?

A: Why do you want to know that?

By defendant’s attorney: Counsel is entitled to ask that question.

A: Okay. About 3 years ago, I was convicted of stealing from my boss. I worked at Ron Tonkin Chevrolet out on NE 122nd in the parts department then. It was just a beef with the boss, that’s all.

Q: Did you serve any time in jail?

A: No, I just got a suspended sentence. Like I said, it was a chippy deal. A lot of fuss over nothing.

Q. You have been upset with Larry ever since he got the promotion at Ernst you think you should have had - right?

A. Nah, I got a better job anyway.

Q: I have no further questions. Thank you.





DEPOSITION OF MRS. CONNIE MONROE2


Q: Please state your name and address. A: Mrs. Connie Monroe. My address is [same as Larry’s].

Q: Are you married to Larry Monroe, the defendant in this case?

A: Yes, we have been married for almost 10 years now.

Q: How old are you, Mrs. Monroe?

A: I’m 33 years old.

Q: Do you and Mr. Monroe have any children?

A: No, we don’t.

Q: Do you work outside the home?

A: Yes, I am a customer service representative, answering questions on the phone and by live web chat.

Q: For what kind of products or services do you provide customer service? A: Well, the company does contract work for different companies, mostly related to

telecommunications. My experience is mostly in cable and broadband services, answering the phone or web chatting to help new and potential customers.

Q: How much to you make a year? A: Well, I work on commission. Q: How much did you make last year? A: Uh, about $64,000. 2 This is a routine discovery deposition taken about six months before trial. The witness was sworn and the usual stipulations were agreed upon.



Q: Mrs. Monroe, do you ever ride in a car when your husband is driving? A: Oh, yes. He used to do most of the driving whenever we went out together. Q: Your husband drove a Datsun 280Z with the license plate “CRUS-R” at the time of this

accident. Didn’t your husband like to drive fast in that car? A: We usually use our sedan to go out together. He babied that car—actually he hated to put

miles on it. But we had to use both cars for work commuting. He didn’t drive especially fast because he wanted that car to last forever. I didn’t think the “CRUS-R” plates meant anything—it was just kind of an ego thing, to feel like he was cool.

Q: Of course, I want to focus on the day of your husband’s car accident. How did you learn of

the accident? A: I got a call from Larry in the hospital—I think it was about 5 in the afternoon on May 6,

____. I remember the time because it surprised me. Q: Why did that time surprise you? A: He was working until 7 that day, on swing shift, but then he told me that the accident

happened while he was running an errand for his boss. Q: What else did Larry tell you on the phone from the hospital? A: He said that he must have hit another car because he thought it was stopping at a stop sign.

He really couldn’t remember right before or after the accident. He just thought he had the right of way because he was on the main road. He sounded very upset and shocked about it.

Q: When did you first see Larry after the accident? A: Well, I rushed to the hospital of course, and I saw him right away—maybe 5:30. Q: Please tell me about that evening at the hospital. A: Larry looked really beaten up. He had bruises and needed stitches on his forehead and

stitches on his arm, too. He had to stay overnight because he had to have the surgery. But the injury seemed not too serious at the time—the doctor told me that his right foot was broken. I stayed with him until he went into surgery that night. He was in a lot of pain when I first got there, but they gave him a pretty heavy sedative. He was practically sleeping when they took him to the operating room. After the surgery, I waited until Larry could be moved to his room. He just had local anesthetic but he was really “out of it” ; I think they gave him a lot of pain medication. It turns out they gave me the wrong pain medication and it took them a couple of weeks to get it right and the allergic reactions



really messed Larry up. When he seemed settled in his room, probably around midnight, I went home. I was so relieved he wasn’t hurt worse, considering that the car was totaled.

Q: When did Larry go home? A: Oh, he was discharged the next day, in a leg cast to his knee. We had to rent a wheelchair

right away because they said Larry would not be walking much for a few weeks. Q: How did Larry recover from the accident? A: At first it seemed really fast. He hated the wheelchair, and we returned it after 2 weeks.

He was excited about getting crutches instead. After another 2 weeks, he insisted on switching to just a cane. He still had the cast on his foot then, but he was starting to get around. I could tell it was really painful, but he tried to ignore it. Of course, he had some problems with his right knee from a high school basketball injury, but he did his daily exercises and really had no problem. His left knee affected his gait a little, he had a slight limp, but he could walk up to ten miles with no problem. Now his whole left side hurts if he walks any distance.

Q: How long was Larry supposed to stay off his foot? A: The doctor said he was to be in a wheelchair for three weeks and on crutches for a month. Q: What happened then? A: First it was disappointing that Larry needed the cast much longer than they had expected.

The foot was really crushed and they said it was healing slowly. Then he got the cast off, and he found it got more painful to stand and to try to walk on the foot.

Q: Can you tell me more about what happened after the cast was off? A: The worst thing was the pain settled in after a month. It didn’t get any better. He can’t

stand without getting shooting pains within about a half hour. He can’t put enough weight on the foot to walk much without the cane. He complains about numbness, tingling and “funny feelings.” He couldn’t go back to work in 3 months, so Ernst Hardware said they had to let him go—they had to get a regular assistant manager back working on that shift.

Q: How is Mr. Monroe’s ability to walk now? A: The physical therapy is gradually making it better, and I think the prescription pain

medication helps, too, once we got him off the initial pain medications he was allergic to. The original pain medications actually made something bad worse. But he still can’t stand and walk enough to get back to the same kind of job. The doctor says there are bone spurs because the bone was crushed—it couldn’t heal to the natural shape. He might need more surgery for that.



Q: Did you and he used to go skiing regularly before his accident? A: Oh, not for years. Q: How about dancing, did you go out dancing regularly before the accident? A: Oh, once in a great while—you know how men are once they’re married. Q: Thank you, Mrs. Monroe. No more questions. [Break taken] Questions by plaintiff’s attorney: Q: Mrs. Monroe, you said that your husband “used to do most of the driving when you went

out together.” Could you elaborate on what you meant by “used to”? A: Unfortunately, Larry really can’t drive any distance now with his right foot like it is. Now

I’m the driver when we go out together. Q: How much do you go out together compared to before the accident? A: We honestly don’t get out much anymore because of his pain and limited walking. It’s

really restricted us being able to keep up with our friends. We didn’t have a special activity but we used to go bowling with friends just to be sociable. That stuff is impossible right now.

Q: What about your husband’s recreational activities? A: He mostly played basketball with friends in a Portland Parks league. He missed a season

but now it looks like he can’t ever play again. That really gets him depressed and down. Q: How has the accident affected your lifestyle? A: I’m afraid of our friends not keeping in touch with us because it’s hard for us to go out.

Larry’s problems with pain in the foot and ankle are really hard on us, too—mostly there’s nothing I can do to make him feel better. I worry that the hip pain won’t go away either, because of his limp. I should correct my earlier testimony. We did enjoy dancing and skiing a lot, I forgot. Plus there’s the depression. Sometimes he doesn’t want to even try to do things that I think he could do if he could be in a better mood. The antidepressant helps, but it’s not like the pretty satisfied way that he used to be with friends, activities, and work. I’m really worried about money, too, because my job doesn’t pay enough for both of us to live on.

Q: Thank you, Mrs. Monroe. No more questions.





Chapter 6

PleadingsContents

Plaintiff’s Motion in Limine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–1

Complaint for Damages—Personal Injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–5

Defendant’s Answer and Counterclaim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–7

Plaintiff’s Reply to Defendant’s Counterclaim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–11

Chapter 6—Pleadings




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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

LAWRENCE T. MONROE, Plaintiff, v. TERESA LOUISE CARTWRIGHT, Defendant.

Case No.: ___________

PLAINTIFF’S MOTION IN LIMINE

Plaintiff Lawrence R. Monroe makes the following motion in limine. This motion is

supported by the pleadings and briefing in this case and the following points and authorities:

MOTION NO 1:

EXCLUDE EVIDENCE OF ALLEGED ERRATIC DRIVING EARLIER IN THE

PLAINTIFF’S TRIP ON BARBOUR BOULEVARD

Argument

Plaintiff anticipates that Defendant Cartwright may attempt to introduce evidence suggesting that

Plaintiff was driving erratically on Barbour Boulevard prior to the collision with Defendant.

Plaintiff further believes that Defendant Cartwright will argue that this allegation of erratic



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driving constitutes evidence that Defendant was negligent at the later time of the collision.

Plaintiff moves to exclude evidence related to Plaintiff’s driving on Barbour Boulevard because

any such driving was far removed in time and place from the collision in question. Alternatively,

even if this evidence is found to be relevant under ORE 401, it is unduly prejudicial under ORE

403.

In the event the Court grants this motion, Plaintiff further moves Defendant’s counsel be

directed to not mention, directly or indirectly, that there is a judicial order preventing her from

mentioning additional evidence.

DATED this _______ day of October, 2014.

(FIRM NAME) By:

(Name of Plaintiff’s Attorney) OSB No.________________

Practice Note: The Defendant should either file a motion for partial summary judgment

to strike the Plaintiff’s allegation 3-g that the Defendant was driving under the influence, or

alternatively, Defendant could move that the allegation not be put before the jury in a motion in

limine. The better practice would be to file a motion for partial summary judgment with

supporting affidavits in order to make an appealable record. For purposes of our trial practice,



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the Plaintiff is going to assume the court would grant a motion in limine to strike the allegation

so it won’t be mentioned by Plaintiff’s counsel. It’s further assumed that, once a motion in limine

is granted, counsel won’t attempt to “back door” the judge’s ruling by suggesting there’s more

that can’t be mentioned.





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Case No.: ___________ COMPLAINT FOR DAMAGES – PERSONAL INJURY CLAIM NOT SUBJECT TO MANDATORY ARBITRATION (Claim Over $50,000)

Plaintiff alleges as follows:

1.

S.W. Capitol Hill Road is, and at all material times herein was, a public highway that generally provides for northerly/southerly traffic within Multnomah County, state of Oregon.

2.

On or about May 6, 20___, plaintiff was driving northbound on S.W. Capitol Hill Road ("Capitol") in Portland, Oregon. Capitol intersects with S.W. 17th Drive ("17th"). As plaintiff approached the Capitol/17th intersection he noticed the defendant approaching the stop sign from 17th. Defendant turned onto the southbound lane of Capitol and crashed her vehicle into the front end of plaintiff's vehicle.

3.

Plaintiff realleges paragraphs 1 and 2. Defendant was negligent in one or more of the following particulars:

A. In making a left turn onto Capitol when she could not safely do so;



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B. In failing to yield the right of way to plaintiff;

C. In failing to keep a proper lookout while driving her vehicle;

D. In failing to maintain proper control of her vehicle.

4.

As a direct result of defendant's negligence, plaintiff suffered injuries to his right foot and ankle, lacerations on his forehead and left arm, and bruises. Plaintiff still suffers from headaches as a direct result of defendant's negligence and has suffered permanent injuries to his right foot and ankle. Plaintiff must use a cane to walk, and now suffers from pain in his hips and back due to his injuries. Plaintiff had pre-existing injuries that rendered him more susceptible to future harm, the plaintiff also had an allergic reaction to prescribed pain medications. As a direct result of defendant's negligence, plaintiff has suffered past impaired earning capacity in the sum of $53,000.00, and future impaired earning capacity in the sum of $463,750.00. The Plaintiff has also suffered non-economic damages in the sum of $540,000.00.

PRAYER

WHEREFORE, Plaintiff demands judgment against Defendants as follows:

1. For economic damages in the amount of $516,750.00.

2. For non-economic damages in the estimated amount of not more than $540,000.00,

the actual amount to be determined by the jury; and

3. For Plaintiff’s costs and disbursement incurred herein.

DATED this ____ day of ________, 20____

(FIRM NAME)

By: (Name of Plaintiff’s Attorney)(OSB No.________)

Of Attorneys for Plaintiff



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Case No.: ___________

DEFENDANT'S ANSWER AND

COUNTERCLAIM

Defendant answers the complaint as follows:

1.

Defendant admits the allegations contained in paragraph 1 of the complaint.

2.

Defendant admits that on or about May 6, 2009, she turned onto the southbound lane of S.W. Capitol Hill Road from S.W. 17th Drive in Portland, Oregon. Defendant further admits that the vehicle driven by the plaintiff collided with the vehicle driven by her at said time and place. Defendant denies the remaining allegations of paragraph 2.

3.

Defendant denies the allegations of paragraph 3 of the complaint.

4.

Defendant denies the allegations of paragraph 4 of the complaint.



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AFFIRMATIVE DEFENSE

(Comparative Fault)

5.

Plaintiff caused or contributed to the harm of which Plaintiff complains in one or more of the following particulars:

A. In operating his vehicle at an unsafe speed under the conditions then and there existing;

B. In failing to keep a proper lookout;

C. In failing to yield the right of way to defendant.

COUNTERCLAIM

(Negligence)

6.

Plaintiff was negligent in one or more of the following particulars:

A. In operating his vehicle at an unsafe speed under the conditions then and there existing;

B. In failing to keep a proper lookout;

C. In failing to yield the right of way to defendant.

7.

As a direct result of plaintiff’s negligence, defendant suffered a severe subdural hematoma, dizziness, and blurred eyesight. Further, defendant was hospitalized for more than three weeks and was forced to incur medical expenses in the sum of $487,649 hospital costs, medications and physical therapy. Defendant was also forced to attend an additional year of high school, and was unable to work at her job as a lifeguard from June 1, 2009 to September 2, 2009 resulting in lost income in the sum of $3,435.

8.

As a direct result of plaintiff's negligence, defendant suffered economic damages in the sum of $491,084 and non-economic damages of $1,350,000.



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WHEREFORE, defendant prays for judgment against plaintiff for economic damages in the sum of $491,084, non-economic damages in the sum of $1,350,000, and for her costs and disbursements incurred herein.

DATED this ____ day of October, 2015

(FIRM NAME)

By: (Name of Defendant’s Attorney)(OSB No.________)

Of Attorneys for Defendant





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Case No.: ___________

PLAINTIFF’S REPLY TO DEFENDANT’S COUNTERCLAIM

Plaintiff Lawrence R. Monroe makes the following reply to the Defendant’s

Counterclaim:

I.

Plaintiff admits that a collision occurred on May 6, 2009, in the intersection of S.W.

Capitol Hill Road and S.W. 17th Drive in Portland, Oregon between the party’s respective

vehicles.

II.

In reply to Defendant’s allegations of injury, pursuant to ORS 31.760 (1), Plaintiff asserts

that the Defendant failed to mitigate her damages by operating a car in which the seat belt had



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been removed.

WHEREFORE, Plaintiff moves the Defendant take nothing by her counterclaim.

DATED this _______ day of ________, 20____.

(FIRM NAME) By:

(Name of Plaintiff’s Attorney)(OSB No.______) Of Attorneys for Plaintiff





Chapter 7

ExhibitsThe following exhibits may be used with the

document camera available in each courtroom.

Contents

Accident Scene Diagram . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7–1

Accident Scene Photos. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7–3

Chapter 7—Exhibits


















Chapter 8

Health ConsultationsContents

Occupational Health Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8–1

Disability Prevention Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8–3

Chapter 8—Health Consultations




OCCUPATIONAL HEALTH SERVICES

Date of Report: May 12, ____ Date of Examination: Same

Patient Name: Lawrence T. Monroe Employer: Ernst Hardware, Tigard Date of Injury: May 6, ____

INITIAL VISIT

Patient History: This is a first visit for Mr. Monroe, who was seen this afternoon to initiate outpatient care and rehabilitative services following his discharge from the hospital. He was hospitalized for treatment of bone and soft tissue injuries incurred in a car accident.

Past Medical History: He has had broken ankle in high school, with surgical intervention and pin stabilization, no hospitalizations, no other operations, no chronic conditions. General health is good. Medications: At the recommendation of his primary care physician, Mr. Monroe is now using over-the-counter medication (ibuprofen, acetaminophen) for ongoing pain localized to the physical injury that he experienced in this accident. No active prescriptions at this time. Allergies: None known. Social History: Mr. Monroe does not smoke, describes himself as an ordinary social drinker, and says he does not now use any illegal substances. He has been with his current employer, a hardware store chain, for about five years and is now an assistant manager, on medical leave. Physical Exam: Temperature 98.4. Blood pressure 118/80. Pulse 68. Respiration 12. Examination of right foot shows significant erythematic area with ecchymosis most pronounced on the dorsal aspect in the lateral forefoot, involving the third through fifth toes, the fourth and fifth metatarsals, extending back laterally to the astragalus. Circulation does not appear impaired. I can feel both dorsalis pedis posterior tibial pulse. Capillary refill of the area is weak and unequal. Mr. Monroe cannot extend or flex the third through fifth toes. He can extend and flex the great toe, but with pain. Mr. Monroe reports the general, throbbing pain in his foot that can rate a 10 (1 to 10 scale), but tends to be a 6-7 and sometimes lower with the analgesic and anti-inflammatory. Neurologically, the foot appears intact, but I will continue to repeat reflex testing as his foot heals. Mr. Monroe states that his foot feels better supported in a shoe. He is currently wearing an unmatched pair, using one-half size larger on the injured foot. Mr. Monroe shows some signs of other, much more minor injuries from the accident. Bruises on face are barely visible now. He is also seeing primary care physician today for removal of a few stitches in forehead and left arm for lacerations, apparently caused by broken glass.



Assessment: Crush injury to right lateral forefoot extending back to and including the astragalus. Plan: Mr. Monroe's foot is not yet medically stationary and the extent and likely duration of impairment is not determined. I recommended elevation of the foot to the maximum extent possible, certainly while sleeping and preferably more than 90% of his waking hours. I demonstrated a way to use pillows or folded blankets to comfortably keep his foot elevated and stable, especially while he sleeps. He will continue to use a cold pack to help minimize swelling until the injury stabilizes and begins to show signs of healing. I provided a note for his employer so that he can remain off duty until he regains mobility on the injured foot and ankle. Post-Examination Observations and Notes: 1) Reviewed post-surgery x-rays on a curbside consultation with radiologist. Breaks in the fourth and fifth metatarsals, phalanges, and ankle bone are in line or firmly pinned, so I expect healing to now proceed. 2) Continue reflex testing as foot regains mobility to monitor for any nerve damage. 3) Radiologist recommended MRI might be in order to reveal bone edema or specifics of soft tissue damage that may be contributing to his pain level. 4) I will recommend MRI and get authorization for above purpose. 5) Pending results of the MRI, future treatments are likely to include a cane to help with balance until the foot has thoroughly healed, and possibly a custom orthodic. 6) After the MRI appointment, consult on extended treatment plan and rehabilitation goals, and then follow on PRN basis. J. B. Bloomburg, M.D. Occupational Medicine JBB:cd: 1223cd01



DISABILITY PREVENTION CONSULTATION

Patient Name: Lawrence T. Monroe Claim Number: 04-010322 Employer: Ernst Hardware, Tigard Date of Injury: May 6, ____ Date of Examination: September 10, ____

EXAMINATION SUMMARY

Patient is 28-year-old man who was employed most recently as an assistant hardware store manager. Recovery from crush injuries to his right foot and ankle sustained in a two-car collision has been unexpectedly slow. Patient had orthopedic surgery directly from ER the night of the accident to position and pin broken bones in his right foot and ankle. Patient was given a discharge plan that advised wheelchair use for three weeks and crutches for at least four weeks. Patient has not been able to return to work. He has not been able to walk comfortably for extended time periods without a cane, even when he has tried to use an immobilizer boot. Unable to stand and walk around for any substantial amount of time, i.e., beyond half hour, and therefore cannot effectively perform routine duties such as assisting customers, moving goods. Lost his job after 3-month disability leave ran out when he could not return even for part-time duties. Unable to recommence former exercise activity; most significantly to patient, he is unable to return to basketball rec league.

He still reports pain at about a 7 level; also reports unusual feelings in the foot, including numbness and tingling. Other unusual symptoms in the foot include vibration feelings, achiness, and up to 45-second shooting pains. Reflexes are in normal range, though the numbness and tingling do seem to signal some undiagnosed nerve injury. Until recently, the foot pain was waking him up at night, but that effect has not occurred for over two weeks now. Pain can rise to a 10 with activity.

In addition, he has developed chronic pain in the left hip, which is significantly worse with activity, indicating it is probably from gait compensation for the aching right foot. Reports that he feels no pain in other parts of his body.

He has a custom orthodic but has been using the immobilizer boot in preference to try to reduce the pain, which is sharper when the foot, toes, and ankle are free to move and rotate. Patient reports that overall extent of disability and pain improved for first month but symptoms since then have remained about the same—except pain no longer waking him up in recent weeks.

Chart Review: X-ray history indicates the bones have been slow to heal; probably as a result of underlying genetic tendencies and pre-existing injury.

Social and Medical History: Married. No children. Enjoyed recreational basketball prior to this injury. No other sports, physical or social activity of any kind affected by injury. No



chronic conditions or prior injuries of any ongoing medical significance other than previous ankle injury. High school education plus some community college coursework.

Physical Examination: Pertinent exam is primarily right foot, but also hips and joints of the lower extremities in general for effects from his limping due to the pain he reports in right hip. Shows marked antalgic gait. Left foot completely asymptomatic. Maximum tenderness is centered on dorsal lateral section of right forefoot. Toe raises on right foot also extremely painful. Some soft tissue swelling and edema remains around third and fourth metatarsals. Right foot is slightly colder than left to the touch and there is slightly increased size over the midfoot to lateral metatarsal area. Astragalus reveals bone spurs forming as crushed bone has healed; this may be a tendency natural to patient, so possibly bone spurs are contributing to pain in the metatarsal area as well. Nature of healing of astragalus seems to be restricting ROM. Otherwise, normal ROM for hips, knees, and left ankle.

X-rays today show no gross abnormalities. No signs of unhealed fractures or of dislocations.

Diagnosis: Bone spurs or other effects of slow and poor healing are causing some continuing swelling and unusual pain 4 months after injury. Current symptoms are all secondary to the original crushing injury.

Conclusion: Mr. Monroe probably has permanent vocational disability of 50 percent.

Plan: 1) Discuss treatment options with __________________________________. 2) Review x-rays with ________________________. 3) Refer back to Physical Therapy Services for new series of weekly appointment with goals to a) regain more natural mobility and b) reduce pain. Therapy should include treatment of secondary pain in left foot. Recommend 8 weekly appointments for now. Also, PTS should start to address with patient that return to recreational basketball is unlikely—help patient with new recreational exercise options that might work for him in the future. 4) Treat pain PRN. Consider prescription options. 5) Treat minor depression. Prescribed 3 months of an antidepressant. 6) Next visit scheduled here is to examine current fit of orthodic and immobilization boot. Consider other interim options beyond immobilization boot. Want to start weaning from boot to orthodic, at least. Dr. L. Johansen, Podiatric Medicine LJ:pm/9-11-07





Chapter 9

Jury InstructionsContents

Plaintiff’s Request for Written Jury Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9–1

UCJI No. 10.04: Witness False in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9–3

UCJI No. 14.01: Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9–4

UCJI No. 14.02: Preponderance of the Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9–5

UCJI No. 20.01: Common Law Negligence—Introduction and Elements . . . . . . . . . . . . . . . . 9–6

UCJI No. 20.02: Negligent Conduct Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9–7

UCJI No. 21.01: Comparative Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9–8

UCJI No. 21.02: Comparative Fault/Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9–9

UCJI No. 35.01: Basic Speed Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9–10

UCJI No. 35.03: Common-Law Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9–11

UCJI No. 35.04: Lookout . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9–12

UCJI No. 35.10: Right-of-Way—Intersection Controlled by Stop Signs . . . . . . . . . . . . . . . . 9–13

UCJI No. 70.02: Damages—Noneconomic (in Claims Subject to ORS 31.710). . . . . . . . . . . . . 9–14

Three Examples of Personalized Damages Instructions . . . . . . . . . . . . . . . . . . . . . . . . . 9–15

Jury Instruction: Impaired Earning Capacity (Modified) . . . . . . . . . . . . . . . . . . . . . . . . 9–17

Chapter 9—Jury Instructions




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Case No.: ___________

PLAINTIFF’S REQUEST for WRITTEN JURY INSTRUCTIONS

Plaintiff Lawrence R. Monroe makes the following motion for written jury instructions:

Pursuant to ORCP 59B Plaintiff requests that the Court allow each juror to have a written copy

of the jury instructions read to the jury by the Court. Allowing each juror to have a written copy

of the jury instructions enables each juror to read along as the Court reads the instructions and

also allows the jurors to refer back to the instructions during their deliberations.

DATED this _______ day of October, 2015.

(FIRM NAME) By:

(Name of Plaintiff’s Attorney)(OSB No.________)

Of Attorneys for Plaintiff





UCJI No. 10.04

12/11

WITNESS FALSE IN PART

A lie is a false statement made with the intent to deceive. A witness may be mistaken, confused, forgetful, or contradict him- or herself or other witnesses without lying.

If you find that a witness has lied in some part of his or her testimony, then you may distrust the rest of that witness’s testimony.

You have the responsibility to determine what testimony, or portions of testimony, you will believe.

____________________ COMMENT: ORS 10.095(3); UCrJI No. 1029; see also Ireland v. Mitchell, 226Or 286, 292–295, 359 P2d 894 (1961) (instruction should be given only where the trial court decides that “there has been sufficient evidence for the jury to decide that at least one witness consciously testified falsely”; “mere honest mistake, confusion, and hazy recollection” are not enough); State v. Weaver, 139 Or App 207, 210–211, 911 P2d 969 (1996) (court did not abuse discretion by refusing to give instruction when there were only minor inconsistencies between the witness’s testimony and her previous statements); State v. Long, 106 Or App 389, 394–395, 807 P2d 815 (1991) (“[t]he party requesting the instruction must show, and the trial court must find, that there is sufficient evidence for the jury to decide that a witness was ‘wilfully false,’ not just mistaken, confused or hazy in recollection”); State v. Seeger, 4 Or App 336, 340–341, 479 P2d 240 (1971). Although this instruction is a statutory instruction, it should not be given in every case but only when requested, and only if the court finds that there is sufficient evidence for the jury to decide that a witness was willfully false, not just mistaken, confused, or hazy in recollection.



11/09

UCJI No. 14.01

BURDEN OF PROOF

A party must prove any claim that party has made. This is calledthe burden of proof.

In this case, the plaintiff must prove [his / her / its] claim(s) by [apreponderance of the evidence / clear and convincing evidence].

[In this case, the defendant must prove (his / her / its) claim(s) by(a preponderance of the evidence / clear and convincing evidence).]

[In this case, the defendant has not made any claims, and thereforethe plaintiff must prove all claims.]

COMMENT: The court should give the second bracketed paragraph of thisinstruction when the defendant has not pleaded an affirmative defense. See OEC 307(ORS 40.115); ORS 10.095(5); see also Riley Hill General Contractor, Inc. v. TandyCorp., 303 Or 390, 394–403, 737 P2d 595 (1987) (discussion of levels of proof inOregon).



11/08

UCJI No. 14.02

PREPONDERANCE OF THE EVIDENCE

When a party must prove a claim by a preponderance of theevidence, that party must persuade you by evidence that makes youbelieve the claim is more likely true than not true.

After weighing all of the evidence, if you cannot decide thatsomething is more likely true than not true, you must conclude that theparty did not prove it. You should consider all of the evidence, no matterwho produced it.

[In criminal trials, the state must prove that the person charged witha crime is guilty beyond a reasonable doubt. That is not the standard touse in this civil trial. Instead, the party who is required to provesomething by a preponderance of the evidence only has to prove that itis more likely true than not true.]

COMMENT: See ORS 10.095(5); Riley Hill General Contractor, Inc. v. TandyCorp., 303 Or 390, 394, 737 P2d 595 (1987).



UCJI 20.01

12/13

COMMON LAW NEGLIGENCE— INTRODUCTION AND ELEMENTS

The law assumes that all people have obeyed the law and have been free from negligence. The mere fact that an accident or injury occurred is not sufficient by itself to prove negligence. It is, however, something you may consider along with other evidence.

The plaintiff has made a claim for negligence against the defendant. This requires the plaintiff to prove each of the following:

(1) The defendant’s conduct was negligent;

(2) The defendant’s negligent conduct was a cause of harm to the plaintiff; and

(3) The harm was reasonably foreseeable.

____________________

COMMENT: See ORS 40.135(1)(x); Solberg v. Johnson, 306 Or 484, 490–91, 760 P2d 867 (1988); Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987); Stewart v. Kids Inc. of Dallas, OR, 245 Or App 267, 274–75, 261 P3d 1272 (2011).

When res ipsa loquitur is or may be applicable, the second and third sentences should be omitted or modified. See Centennial Mills, Inc. v. Benson, 234 Or 512, 515, 383 P2d 103 (1963); Powell v. Moore, 228 Or 255, 269, 364 P2d 1094 (1961). Consider UCJI 24.01.

The statement concerning the right to assume the law has been obeyed may be limited in the case of children. See Simmons v. Holm, 229 Or 373, 403–05, 367 P2d 368 (1961).

This instruction can be modified to apply to cases of a negligence counter-claim by substituting the defendant for the plaintiff where appropriate.



UCJI 20.02

12/13

NEGLIGENT CONDUCT DEFINED

The law requires every person to use reasonable care to avoid harming others. A person’s conduct is negligent if that person fails to use reasonable care.

Reasonable care is the degree of care and judgment used by reasonably careful people in the management of their own affairs to avoid harming themselves or others. A person fails to use reasonable care when that person does something that a reasonably careful person would not do, or fails to do something that a reasonably careful person would do under similar circumstances.

In deciding whether a person used reasonable care, consider the dangers apparent or reasonably foreseeable when the events occurred. Do not judge the person’s conduct in light of later events; instead, consider what the person knew or should have known at the time.

____________________

COMMENT: See Kirby v. Sonville, 286 Or 339, 344–45, 594 P2d 818 (1979); White v. Milner Hotels, Inc., 267 Or 628, 632–36, 518 P2d 631 (1974).

There are specific instructions that define reasonable care in particular situations. See, e.g., UCJI 44.01, 44.02, and 45.04.



UCJI 21.01

12/14

COMPARATIVE NEGLIGENCE

The law provides for comparative [fault / negligence]. This means that you are to determine each party’s [fault / negligence], if any. You will have one verdict form, which I will explain to you.

____________________

COMMENT: ORS 31.600. This instruction is drafted for use with a special verdict form that should be read to the jury.



UCJI 21.02

12/14

COMPARATIVE FAULT/NEGLIGENCE

The plaintiff and the defendant have each alleged that the damage was caused by the other’s [fault / negligence]. If you find that both the defendant and the plaintiff were [at fault / negligent] and that their [fault / negligence] caused the alleged damage, then you must compare the [fault / negligence] of the plaintiff to the [fault / negligence] of the defendant.

In making this comparison, you must measure the percentage of [fault / negligence] of each and not the percentage of damage caused by each.

The comparison of [fault / negligence] must be expressed in terms of percentages that total 100 percent. If the plaintiff’s [fault / negligence] is more than 50 percent, then your verdict is for the defendant. On the other hand, if the plaintiff’s [fault / negligence] is 50 percent or less, then your verdict is for the plaintiff.

Do not reduce the amount of the plaintiff’s damages, if any, as a result of your comparison. I will reduce the amount of your verdict by the percentage of the plaintiff’s [fault / negligence], if any.

____________________

COMMENT: ORS 31.600. Sandford v. Chevrolet Div. of Gen. Motors, 292 Or 590, 606–10, 642 P2d 624 (1982).

Comparative fault is not a defense to intentional torts. Shin v. Sunriver Preparatory Sch., Inc., 199 Or App 352, 376, 111 P3d 762, rev den, 339 Or 406 (2005) (“intentional misconduct is not ‘fault’ subject to apportionment within the meaning of ORS [31.600] and ORS [31.605]”).



highwaySee also



UCJI 35.03

12/13

COMMON-LAW CONTROL

An operator of a motor vehicle has a continuing duty to keep and maintain [his / her] automobile under reasonable control, that is, such a degree of control as would be exercised by a reasonably prudent person in the same or similar circumstances.

____________________COMMENT: Prauss v. Adamski, 195 Or 1, 19, 244 P2d 598 (1952).



UCJI 35.04

12/13

LOOKOUT

[A driver of a motor vehicle / Any person using the highway] has a continuing duty to maintain a reasonable lookout for other vehicles or persons on the street or highway.

A reasonable lookout means the lookout that a reasonably prudent person would maintain under the same or similar circumstances.

In determining whether a person maintained a reasonable lookout, you should take into consideration the extent or degree of danger reasonably to be expected. A person does not comply with the duty to maintain a reasonable lookout by simply looking and not seeing that which is plainly visible and which would have been seen by a reasonably prudent person under the same or similar circumstances.

____________________

COMMENT: State v. Clark, 256 Or App 428, 300 P3d 281 (2013); State v. Stringer, 49 Or App 51, 618 P2d 1309 (1980), aff’d, 291 Or 527, 633 P2d 770 (1981), rev’d on other grounds on reh’g, 292 Or 388, 639 P2d 1264 (1982); Ginter v. Handy,244 Or 449, 452, 419 P2d 21 (1966); Ewing v. Izer, 243 Or 367, 369, 412 P2d 795 (1966).



UCJI 35.10

12/13

RIGHT-OF-WAY— INTERSECTION CONTROLLED BY STOP SIGNS

Oregon law provides that a driver approaching a stop sign must stop before entering the intersection [unless directed by a police officer to proceed] and, after stopping, must yield the right-of-way to any vehicle in the intersection or approaching so closely as to constitute an immediate hazard.

The law further provides that the driver must stop [at a clearly marked stop line / before entering the crosswalk on the near side of the intersection / at the point nearest the intersecting roadway where the driver has a view of approaching traffic].

____________________

COMMENT: ORS 811.260(15). See ORS 801.320 (definition of intersection);ORS 801.220 (definition of crosswalk); ORS 801.510 (definition of stop).



UCJI 70.02

12/13

DAMAGES—NONECONOMIC (In Claims Subject to ORS 31.710)

Noneconomic damages are the subjective, nonmonetary losses that a [plaintiff / defendant] has sustained [or probably will sustain in the future].

The law does not furnish you with any fixed standard by which to measure the exact amount of noneconomic damages. However, the law requires that all damages awarded be reasonable. You must apply your own considered judgment, therefore, to determine the amount of noneconomic damages.

In determining the amount of noneconomic damages, if any, consider each of the following:

(1) The [pain / mental suffering / emotional distress / humiliation] that the [plaintiff / defendant] has sustained from the time [he / she] was injured until the present [and that the (plaintiff / defendant) probably will sustain in the future as the result of (his / her) injuries];

(2) Any inconvenience and interference with the [plaintiff / defendant]’s normal and usual activities apart from activities in a gainful occupation that you find have been sustained from the time [he / she] was injured until the present [and that the (plaintiff / defendant) probably will sustain in the future as the result of (his / her) injuries];

[(3) Any injury to the (plaintiff / defendant)’s reputation]; and

[(4) Set forth either any other subjective, nonmonetary losses or any other not objectively verifiable monetary losses sustained by plaintiff or defendant.]

[The amount of noneconomic damages may not exceed the sum of $______.]

____________________COMMENT: ORS 31.710. The final sentence applies to claims in which the

plaintiff or defendant has alleged a specified amount of noneconomic damages in the prayer. See ORCP 18 B; Lovejoy Specialty Hosp., Inc. v. Advocates for Life, Inc., 121Or App 160, 167, 855 P2d 159, rev den, 318 Or 98 (1993).



THREE EXAMPLES OF PERSONALIZED DAMAGES INSTRUCTIONS

FIRST EXAMPLE:

UCJI No. 70.06 (modified)

DAMAGES - PREVIOUS INFIRM CONDITION

If you find that Lawrence Monroe had a bodily condition that predisposed him to be more

subject to injury than a person in normal health, nevertheless Teresa Cartwright would be liable

for any and all injuries and damage that may have been suffered by him as the result of her

negligence, even though the Plaintiff’s injuries, due to his prior condition, may have been greater

than those that would have been suffered by another person without his pre-existing injuries.

SECOND EXAMPLE:

JURY INSTRUCTION NO. ____

DEFENDANT RESPONSIBLE FOR INCREASED FUTURE SUSCEPTIBILITY

In assessing the amount of general damages you deem proper, the jury is also to consider

any increased susceptibility to further problems and complications Lawrence Monroe may

sustain in the future because of Teresa Cartwright’s negligence.

AUTHORITY: Feist v. Sears, Roebuck & Co., 517 P.2d 675, 677-79 (Or. 1973).

THIRD EXAMPLE:

JURY INSTRUCTION NO. _____

RESPONSIBILITY FOR ADVERSE REACTIONS TO MEDICATIONS If you find that Defendant Cartwright, is liable to Plaintiff Monroe for his injuries, then under Oregon law she is also responsible for any adverse or allergic reactions to medications the Plaintiff took to treat his injuries.

AUTHORITY: Rogers v. Cascade Pacific Ind. Co., 152 Or App 624, 632, 955 P2d 307, 311 (1998) (analogizing compensable harm in worker’s compensation case to harmful side effects from medication required to treat injury); Restatement (Second) of Torts, § 457 (defendant is liable for harm from subsequent medical services “irrespective of whether they are



rendered in a mistaken or negligent manner”); Payne v. Hall, 137 P3d 599, 611 (NM 2006) (instructing jury); Maxwell v. Powers, 22 Cal App4th 1596, 1606, 28 Cal Rptr2d 57, 62 (1994) (instructing jury); Dungan v. Ford, 632 So2d 159, 163 (Fla App 1994) (failing to instruct jury was error).



Jury Instruction No. _________

Impaired Earning Capacity (modified)

“In determining past and future loss of earning capacity the question is not whether plaintiff

would have worked, by choice. A person is entitled to compensation for the lost past and future

capacity to earn, whether he would have chosen to exercise it or not.”

__________________________

Richmond v. Zimbrick Logging, Inc., 124 Or.App. 631, 634 (1993)



Chapter 10

Special Verdict Form

Chapter 10—Special Verdict Form




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LAWRENCE T. MONROE, Plaintiff, v. TERESA LOUSIE CARTWRIGHT, Defendant.

Case No. SPECIAL VERDICT FORM

At least the same nine jurors must agree to the answer for each of the following questions

that you answer.

We, the jury find:

1. Was Teresa Cartwright at fault, in one or more of the ways Lawrence Monroe claims,

in a manner that caused him injury?

ANSWER: ___________ (Yes or No)

2. Was the Lawrence Monroe at fault, in one or more of the ways Teresa Cartwright

claims, in a manner that caused her injury?

ANSWER: ___________ (Yes or No)

/ / /

/ / /



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Page 2 – SPECIAL VERDICT FORM

3. What is the percentage of each of the parties’ fault? The percentages must total

100%.

Teresa Cartwright: ________________%

Lawrence Monroe: + ________________%

= 100%

4. What are Lawrence Monroe’s total money damages?

$_________________

5. What are Teresa Cartwright’s total money damages?

$_________________

DATED this ___ day of _____________________, 2012.

____________________________________ Presiding Juror





Chapter 11

Being Persuasive During Trial: Observations from the Bench

moderator: the honoraBle John aCosta

U.S. District CourtPortland, Oregon

the honoraBle norman hill

Polk County CourthouseDallas, Oregon

the honoraBle marilyn litzenBerger

Multnomah County Circuit CourtPortland, Oregon

the honoraBle eve miller

Clackamas County Circuit Court Clackamas, Oregon

the honoraBle Katherine tennyson

Multnomah County Circuit CourtPortland, Oregon

Contents

What Jurors Want: A Look into the Mind of Jurors (Honorable John Acosta) . . . . . . . . . . . . . 11–1

Tips from the Bench (Honorable Katherine Tennyson) . . . . . . . . . . . . . . . . . . . . . . . . .11–11

Chapter 11—Being Persuasive During Trial: Observations from the Bench




What Jurors Want:A Look Into the Minds of Jurors

Hon. John V. AcostaUnited States Magistrate Judge

District of Oregon

How do we know what works?

Trial lawyers are always looking for effective ways to persuade jurors, but how do we know

our methods are effective? We’ve probably taken trial practice in law school to learn the

fundamentals of presenting a case to a jury. Maybe we’ve attended a trial college since then, where

experienced and well-regarded colleagues taught us the finer points of trying cases. We’ve also

probably sat in CLEs presented by other lawyers instructing us on persuasive trial techniques. And,

of course, we’ve tried our own cases, and won (and lost), and tried to learn from those experiences

what does and what doesn’t seem to work. But rarely, if ever, do we have the opportunity to learn

from the best source: jurors.

This article presents actual jurors’ thoughts and insights on effective and not-so-effective trial

techniques and practices. The jurors’ comments were obtained immediately following trials in my

courtroom. Their comments produced common themes that have emerged over the course of

different trials over the years. Also, where noted, I’ve added my impressions as an observer from

the bench and compared those observations to my experiences as a trial lawyer. And, I’ve used my

recent experience on jury duty to add some additional (and hopefully useful) insights about the voir

dire process.

Finally, I note this is not an article about trial strategy or a scientific study of how jurors

decide cases. Instead, this article contains candid comments, and summaries of candid comments,

1



from real jurors in real cases, mostly about the mechanics of presenting information to jurors during

trial. I hope these collected comments, observations, and thoughts provide useful information about

preparing and presenting cases to jurors.

Through the looking glass.

Quite often, jurors’ knowledge about trials is gleaned from depictions on television, in

movies, and in books. When jurors encounter the real trial process it can be a surprising and

sobering experience for them. The difference between jurors’ perception of trials and the reality that

is trial creates a context within which trial lawyers should consider and plan their trial presentations.

A common theme among jurors is how long and slow trials can be, even when they last only

a few days or a week. One juror commented: “I did not understand how slow trials went. We see

movies and TV that show us perfectly scripted testimony and questions and answers. It’s just not

that clean in reality.” Another juror said: “[T]here were interesting moments, as well as a lot of

tedium as evidence was presented.” Using trial time well and finding ways to inject interest into the

process can be effective techniques in presenting cases to jurors.

Related to this point, jurors appreciate when the judge and the lawyers work to keep trial

smooth, efficient, and on course. Jurors have said they appreciated that trial was kept “on track,”

that there was no “drama,” and that things didn’t stray or get out of control. They are grateful when

they are not in the jury room often or at length, and when they are not kept waiting. Jurors like and

appreciate being informed of what’s happening and why it’s happening. These comments highlight

the importance of using trial time well and, as importantly, making sure jurors know you’re

respectful of their time.

Another common theme from jurors is that they prefer a trial conducted by lawyers and

2



judges who don’t act like the lawyers and judges on television and in movies. Jurors regularly

express their appreciation at being shown respect and politeness, at receiving explanations about the

process, and at being told what is about to happen. They also have noted in some cases the

“kindness” with which they were treated by all participants. Politeness and good manners are

important components to an effective relationship with jurors.

Jurors also take their role seriously, and they often find their task difficult and taxing in ways

we lawyers probably never realized. Jurors have commented that the process is “emotionally

exhausting.” One juror went farther and said “I lost some sleep thinking about the details.” Some

commented how tired they were after working through the evidence to reach a verdict. These

comments underscore the importance of keeping trial efficient, focused, and as simple as appropriate

to the case.

Participating in a trial also gives jurors a sense of pride in the legal system. One juror said:

“Nothing really conveyed just how much this thing called the U.S. legal system matters until I sat

on this trial.” Another juror commented: “After it ended I told some friends and work colleagues

that I felt proud to be an American – and fortunate to have had this week-long experience!” We can

enhance our relationship with jurors by bringing to all phases of the trial process an appropriate level

of solemnity, respect, and dignity.

“What is going on?”

Sitting in the back of a county courtroom with 30 or so of my fellow prospective jurors, I

could easily discern the lawyers were having great fun with voir dire, but I was not. I’m fairly certain

my fellow prospective jurors weren’t having much fun, either. After a while, I realized why: I had

no idea what was going on. Notwithstanding twenty-five years as a lawyer and seven years as a

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judge, I was completely unfamiliar with the process unfolding before me in this particular county’s

courthouse. No one, lawyer or judge, told us much of anything about how the process worked, how

long the process would take, how likely it was that we’d be selected, how the questions the lawyers

were asking were relevant to serving as a juror, or how long we would be required to serve if

selected.

Then something else occurred to me: prospective jurors in my courtroom must be thinking

these very same things during jury selection. Huh; I never thought about that. (Probably because

I was too busy having fun running voir dire.) But, I also realized, this only makes sense, because in

post-trial conversations jurors regularly express their appreciation at having had the process

explained to them so that they understood what was happening or was about to happen, and why.

(Ed. note: After my voir dire experience, I completely reworked my own voir dire script to make

my own voir dire script more juror-friendly.)

Jury selection can be the legal equivalent for jurors of an invasive medical procedure.

Lawyers (and in federal court, the judge as well) are probing jurors’ minds on a wide range of

personal topics and private thoughts. The voir dire process often can be awkward for prospective

jurors and make them uncomfortable, especially if they don’t understand why they’re being

questioned about seemingly irrelevant or personal matters. These feelings make less likely a juror’s

willingness to be forthcoming with information helpful to the lawyers’ decision whether to strike or

keep the juror.

Help jurors understand the relevance of the questions to their selection and to the issues they

will be asked to decide if they are selected to serve. Make clear your questions are intended to learn

only the information you need to make an informed decision about their service in the particular

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case. Keep voir dire short, clear, and focused. Be mindful that while sitting through the voir dire

process, prospective jurors are worrying about jobs or classes they’re missing, child care theyneed

to manage, and commitments they migh be unable to keep. And always be aware that most jurors

are not near so comfortable in a courtroom as we are, so that you always try to make jurors as

comfortable as possible during the voir dire process.

Meandering toward something or other.

Once selected to serve, jurors want to know the parties’ respective stories, so do your best

to give them a good rendition of your case. Sometimes lawyers don’t use their openings to provide

jurors a theme that will guide them through the evidence during the trial. Whether the case is simple

or complex and whether trial will last two days or four weeks, presenting a unifying theme in

opening statement is important. A cohesive story at the start helps jurors understand how testimony

and exhibits fit into the facts they’ll hear and the questions they must decide.

Jurors have pointed out that simple tools would help them better understand the evidence.

For example, they have commented that a time line of important events would have been helpful,

especially when numerous events occurred in short period of time. Jurors have said creating their

own time line is difficult because they must rely on their notes and the exhibits to construct it. Jurors

also have observed that where damages are claimed, having a chart summarizing the categories of

damage and their amounts would have helped them understand and follow documents and testimony

related to damages.

These comments illustrate how our familiarity with a case, and particularly the case’s facts,

can cause us to overlook what jurors need to understand our case. We are accustomed to knowing

our case, to living with a case for months or even years. As you prepare your opening statement keep

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in mind that jurors don’t know what we know about your case, and the chances are good that you’ll

more effectively convey your story to those who are hearing it for the first time.

“But I want to make sure they get the point.”

During a conversation with an experienced lawyer I relayed a comment from a juror in a

previous trial that captured a sentiment expressed by many jurors: “We’re pretty smart – the lawyers

didn’t need to ask the same thing over and over.” Upon hearing this comment, the lawyer

immediately responded, “Yeah, but I always want to make sure they get the point.” We can be

assured that they do, even without the repetition we were taught must be used to convey our point.

These days, most jurors are intelligent, attentive, and sophisticated. As another juror told me

after a different trial, there was too much repetition, too much of the lawyers coming back to points

already made. I know I was taught as in trial practice class and as a young lawyer to use repetition

as a technique to make my case, but as a judge, I’ve learned that repetition frustrates jurors and, in

fact, doesn’t help lawyers make their case. So, if you were taught as I was to use repetition as a

technique to make your case, then you might want to reconsider the effectiveness of technique.

We also can make sure jurors get the point by being clear and direct about the point we’re

trying to make. Themes that have emerged from juror comments are that the lawyers need to be

more concise; that questions should be to the point, clear, and short; that the lawyers talked too much

or kept talking; and that lawyers didn’t get to the point. One juror said that “80% of what the

lawyers talked about was irrelevant.” We enjoy access to deposition testimony, produced

documents, and (in federal court) interrogatory answers and pretrial witness statements, all of which

prepares us to ask good, clear questions of witnesses, and thereby make our point to jurors. As we

prepare for trial, we should be mindful that in the eyes of many jurors we often can do better at using

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those tools.

Jurors hold witnesses equally accountable in this area. Jurors comment that witnesses, like

lawyers, don’t need to say the same thing over and over. Jurors also have observed that witnesses

should answer a “yes or no” question with “yes” or “no.” Witnesses who tend toward excessive

narration, non-responsive answers, and arguing with the lawyer undermine their credibility and

persuasiveness with jurors. The lesson here is to be attentive to witness preparation and ensure that

our witnesses, on both direct and cross-examination, are clear and concise, answer the questions

they’re asked, and never try to build a watch when the question is only whether they know the time

of day.

“Wait – what was that?”

We often don’t use exhibits well at trial. By the time a case begins trial, we have spent a lot

of time with the documents we will use as exhibits at trial. This creates a familiarity with the

exhibits that can cause us to forget that the exhibits are completely new to the jurors.

One common oversight is not giving jurors enough time to read the exhibit we are using. We

display an exhibit on an evidence machine or projector, ask the witness a question or two about it,

then whip it off the screen to be replaced by the next exhibit we intend to use. Often, this surprises

even frustrates jurors; they were presented with evidence they weren’t able to read and weren’t able

to link to the testimony being given or argument being made.

Consider having exhibit binders for the jurors’ use, even if the binder doesn’t contain all the

exhibits but only the truly critical exhibits for your case. In fact, jurors have suggested this approach.

Alternatively, allow jurors a reasonable amount of time to understand what the exhibit is and to

locate the passages being used to question the witness. However it’s accomplished, the goal is to

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make sure the exhibit has the impact with the jurors that caused you to mark it in the first place.

We also can do a better job of making exhibits legible for jurors. Jurors have complained

of exhibits, especially those with smaller print, being hard to read on the electronic evidence

machine, and even when shown on a large projector screen. Jurors also have mentioned that during

the trial they were not always able to see the exhibit number, so they couldn’t identify in their notes

the document by exhibit number (and, because we often are focused on the exhibit’s contents, we

often don’t recite the exhibit number for the record). Most of these occasions occur because the

electronic evidence machine is used to enlarge the part of the document being discussed, in the

process taking the exhibit number out of the screen’s viewing field.

To make exhibits more readable, consider using call-outs of the key passages in less legible

exhibits, as some jurors have recommended. Remember that many exhibits are copies of grainy PDF

documents, single-spaced email messages, or contracts or loan documents in small print. A call-out

solves the legibility problem, highlights the critical language in a visually effective manner, and

conveys to the jurors the message we intend the exhibit to deliver.

Jurors also have complained about the number of exhibits presented to them during trial.

They have observed that voluminous exhibits are difficult to go through and work with, especially

exhibits such as medical records that aren’t ordered chronologically. Consider, as some jurors have

mentioned, providing jurors with an exhibit list to help them track exhibits referred to during trial.

This will help the jurors follow your evidence and assist their note-taking, particularly when exhibits

are linked to key testimony. They’ve also suggested use of a timeline, which would allow them to

put exhibits into a sequential fact context and thus make more clear the order in which important

events occurred. Remember that the power of an exhibit is only as strong as the jurors’ ability to see

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its importance to your case, so look for effective ways to help jurors understand the importance of

the exhibit to your case.

Finally, jurors can be overwhelmed with the number of exhibits and the amount of

information contained in exhibits. Consider ways to separate the truly important documents from

those which are informative and perhaps even helpful, but ultimately redundant, duplicative, or less

important to your theory of the case. One method is to identify the ten documents most important

to your case, then work outward from there to determine what additional documents you need to

prove your claims or defenses, or support your theory of the case. Compare those additional

documents to the “Top Ten” you’ve identified and ask whether each additional document adds

something necessary to your case that the Top Ten don’t contain. Jurors will appreciate your effort

to minimize the number of exhibits, and your case is likely to be more clear and more forceful to the

jurors.

“Are we there yet?”

Even short trials can be long trips for jurors. When prepare your closing argument, remember

that your jurors sat through the entire trial and were attentive to all the evidence, and that they are

ready to decide the case.

In recognition of this reality, consider incorporating one or more of the following practices

into your closing argument. First and foremost, keep it short. Focus on the key points of your case

and the two or three things about the other side’s case you really must discredit or rebut. Share your

insights about the evidence by showing the jurors how it all connects to support your opening theme.

On this point, familiarity with your case is your ally. Your months or years on the case translates to

insights about and interpretations of the evidence that trial’s time constraints preclude jurors from

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forming themselves. Punctuate your presentation with the truly critical exhibits and with slides that

visually reinforce your key points. Above all, avoid giving closing arguments that merely summarize

each witness’s testimony and each exhibit’s contents. And remember – keep it short. (Yes, I just

used repetition to make my point, but I used it judiciously.)

Parting thoughts.

Next time you prepare for trial, keep in mind how a juror might think if faced with your voir

dire questions, while listening to your opening statement and closing argument, when hearing your

witness examination, and upon encountering your exhibits. If you do, you’re likely to make your

case more juror-friendly and stronger throughout all aspects of the trial process.

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COURT TRIALS—A JURY OF ONE

Early on in my legal career, I heard a lawyer say that the biggest mistake made in trials to a judge is the failure to prepare those trials with as much care as trials to a jury. After 12 years on the bench and many, many court trials, I agree wholeheartedly with that sentiment. There is no doubt that it is a professional privilege to preside over a well tried case. There is also nothing more embarrassing than an unprepared lawyer with a client counting on that lawyer to let their voice be heard. The four steps below are a guide to the most effective presentation and ultimately, the best outcomes.

KNOW YOUR JUDGE

Whole seminars focus on jury selection; when lawyers want to know about a judge, they invite discussion on a public listserve. A better plan might be to do a little research into your judge’s legal background, to observe your judge actually presiding over a case other than yours and to locate any information your judge has posted on the court’s website or through a local bar association about preferred trial practices. Careful lawyers also try to find unreported opinions written by the trial judge in similar subject areas. This type of research will let you know the best ways to help your trial judge understand your case. You must be flexible enough in your methods to tailor your message to the judge hearing your case. Lawyers do well to remember that judges’ decisions are only as good as the information we have when we make them and lawyers are responsible for getting us that information in a legally sufficient form.

BE TECHNICALLY COMPETENT

All trials include certain rituals. You must have command of the technical requirements of each of those rituals. Examination of witnesses, offering exhibits and asserting objections all have a rhythm of their own. Good lawyers are not all the same, but all good lawyers know those rituals cold. Not only do they help you look like you know what you are doing, they minimize distractions so that the judge can focus on the information you are presenting. Where possible, stipulate to exhibits as early and as often as you can. The sooner a trial judge has the exhibits, the more able that judge is to listen with an understanding ear to the testimony of the witnesses. If an interpreter is needed, follow the rules to ensure that one will be present and understand how to work with an interpreter to streamline the time interpretation adds to the proceeding.

BE ISSUE COMPETENT

Your trial memorandum will help set the stage for the legal issues the trial presents. It is vital that you know the statutes, case law, or evidence rule upon which you intend to rely. If you are not prepared to give the legal authority for an assertion you make, you may find yourself like a young lawyer I know (me) 30 years ago making a perfectly logical argument (to her) completely contrary to case law (if she’d only bothered to look). Judges hear a lot of different



cases in a lot of different subject matter areas. Not only is it your job to make us an expert on your case, the outcome may depend upon it.

DEVELOP INSIGHT COMPETENCE

This area is more nuanced than the others and probably requires more adverse experiences to develop than some lawyers would like to admit. In any case, it is important to get a clear view of what is actually “driving the train” of the dispute. In some cases, especially those involving family disputes—business, probate or divorce—the reason for the dispute has little to do with the law. As a result, the solution for that case may not be a trial at all. It is up to the lawyers of the case to understand what method of dispute resolution may best fit the case and use the abilities granted you by RPC 2.1 to get your clients to use that method.





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