Story — continued from Page 34
applies not only to liability, but also to damages. Stick to your facts and try to start each sentence with the defendant’s name. In telling the story of what happened, it should be exclusively concerning what the defendant did. Try to think of your opening as a narration of what someone would have seen or heard if there. Jurors also want to know the rules, but you should not mention more than one or two, e.g., any employer who hires employees to work for them must pay for that time; if it does not, the employer is responsible for the harm. Two-thirds of the way through opening, you talk about harms and losses. Mention that any verdict involves money. Since the only things the jury is allowed to take into consideration are the harms and losses, you must lay out for them the harms and losses. Explain the injuries, the recovery process, the impact of the harm on your client’s mental well-being and any resulting limitations. Explain that you are not going through these damages for sympathy. Rather, it is important for them to understand the harms and losses in order that they may make a fair award that simply matches and equals the harm caused by defendant.
Trial
Many lawyers are so bombarded by motions that by time of trial, they have not taken the time to adequately prepare their clients for testimony – especially with regard to emotional-distress damages. However, if they have addressed the issue of emotional-distress damages throughout litigation, by the time of trial, they know their client, the positives and the negatives. The problem is that they take the most powerful element of their trial – the client – and fail to effectively prepare the client. Every lawyer needs to know how to emphasize the positive to make the client likeable and empathic to the jury. Prior to trial, it is important to sit down with the client and ask what the client is expecting at trial. This is your opportunity to identify and clarify any misconceptions the client has about the process. Often, the client harbors feelings 36 — The Advocate Magazine
APRIL 2013
of guilt or shame. Explain that truth is the safety net, especially when facing repetitive questions. The basic tenet is that if you lie, you lose. Review the theme of the case. The theme is the lens through which the jurors will look at everything in the case. Let your client see the big picture, explaining what the law requires to win. Review the jury instructions with the client and explain them – education is key. Go over the basics of outward appearance – no distraction: • Posture: no crossed arms; no slouching, etc. • Clothing: no red, no large prints, no bow ties • Jewelry: no distractions; no dangling earrings, no diamonds, no watches, no noise Explain to your client that this is finally his/her opportunity to tell their story. The client is having a conversation with the jury – not the lawyers. Have the client talk to a group of people to get comfortable in telling the story. It is the lawyer’s job to let the jury know the client. Start with the client’s background. Start with family – immigrant? barriers? events shaping life? Move to the client’s work history if relevant, and then to the circumstances of the client’s hire: how or why did client come to work for company? Talk about the client’s skills – before employment and acquired during employment; inquire into the client’s expectations of the job, career, and the company; talk about the client’s dedication and loyalty; and, if disabled, discuss the client’s ability to perform the essential functions of the job. The jury’s decision is based on information you give them. When describing the events or unlawful conduct, your client should testify confidently about the facts. You help the client by framing the questions, but the client should feel safe in talking about the events. Prepare your client for objections, explaining that they should not be taken personally. In preparing your client for testimony, help the client analyze what is being asked: work with question after question after question.
In testimony about the unlawful conduct, the client needs to address its effects and how conduct invaded all facets of life. The testimony should be a genuine display of emotion when describing losses to person as well as to pocketbook. The client needs to share the emotions that will help the jury identify with the client, e.g., sincerity, earnestness, civility, disappointment, sadness, feelings of betrayal, etc. In voir dire, you may have touched on common experiences; you should cover those again with your client. Corroborate your client’s loss through family, friends, and/or co-workers. In preparing your client for crossexamination and intimidating or tough questions, talk about defensive and argumentative responses. Preparation is paramount. If your client is not prepared, everything is intimidating. Also, fearfulness could come across as dishonesty. Again, cover the guilt issues – does the client feel like he or she did something to be ashamed of? Dispose of these matters and build your client’s confidence in him/herself and in the jury. The client’s tools on cross-examination are: truth, knowledge, confidence, storytelling. Avoid anger – it makes the jury uncomfortable. The final piece of preparation should be a mock video where you take about 10 to 20 minutes of mock crossexamination. Have a second lawyer do the cross-examination with you observing. Afterwards, analyze the responses on the video. Again, preparation is key. End the direct examination and redirect with easy questions to bolster client confidence. Finally, watch out for TMI – too much information. Remember that a jury hears about 60 percent of what you say…and remembers even less. Get to the point.
Closing argument
Placing a dollar value on pain is subjective. Yet, sometimes you gain more from arguing pain than in arguing any other kind of damages. Remember that every juror has experienced pain. This can help you or haunt you. But you cannot
See Story, Page 38