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Introduction to Trial Skills

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JB
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Introduction to Trial Skills

Mr. Blitz will focus on civil cases brought by a plaintiff's attorney to trial. This course is intended as an introduction to trying a civil case to verdict and a refresher course for seasoned attorneys. The course will begin with jury selection and proceed through opening statements, direct and cross exam of the plaintiff, defendant and defendant’s experts and continue through summation. We will discuss issues on how best to prepare for trial as well as maximizing jury selection, effective openings, techniques for cross examination and evidence presentation, and other related topics. Mr. Blitz will also discuss those items that trial attorneys face during a trial that require fast and strategic thinking. Mr. Blitz will provide tips and strategies for trial preparation for cases involving devastating injury and wrongful death claims, including how to implement technology and demonstrative evidence to show the devastation the injury caused at trial.

Presenters

Justin Blitz
Founding Partner
Schulman Blitz, LLP.

Transcript

Justin Blitz: Hello everybody. My name is Justin Blitz. I'm a New York City attorney. I specialize in plaintiff's personal injury and medical malpractice cases. Today, I'm going to be speaking for the next hour on introduction to trial skills. Just a couple things that you should know before we get going, I'm going to be speaking from the plaintiff's perspective. I have extreme respect from my brethren on the other side. However, this is primarily what I practice. So, most of the ideas, tips, and strategies that I'm going to be offering everybody today, it's going to be coming from the perspective of the plaintiff side. So, I just do want everybody to keep that in mind.

    A couple other thoughts that I wanted to let you all know before I begin. I practiced primarily in the state of New York. This is a course intended for a national audience. However, please be sure to check your local statutes and ordinances before you implement any of the tips that I'm going to be sharing today, just to make sure that you are, obviously, have no, run into any problems with any conflicts with any of the local laws.

    So that's also just another important item that I wanted to bring up. Finally, it's important that I want everybody to realize that the strategies and tips that I'm going to be talking about today really are special for personal injury and wrongful death type cases. In other words, if you have an employment discrimination case or a corporate contract case, some of the strategies and tips that we're discussing today really might not be appropriate for those types of cases.

    So please, again, just keep in mind that this is a course that would be intended and geared for personal injury and wrongful death and medical malpractice type litigation.

    So, having said all that, what is the most important thing to becoming a good trial lawyer? Other than obviously we're not all, I'm certainly all born with an innate quick wit and quick ability to be some amazing order on the spot. I think that the number one skill that one needs to possess is having good organizational skills and being able to think ahead from day one, from the day that the client walks into your office, a good trial lawyer.

    I mean, listen, we can all know that the majority of our cases do get resolved prior to trial, but I believe that every single case that comes into your office, you should be looking at it as from the trial perspective, from the eventual juror that is going to be sitting there adjudicating and deciding whether what you're trying to sell is going to work or not.

    So, you really need to look at day one and that means developing a theme for your case because every case is certainly, I think different and has its own unique set of facts and circumstances. And if you think of all of these cases even the simple soft tissue auto case, if you think of them all as being the same, I think that you will run into problems, especially from the trial perspective. The other most important skill, well, another important skill that you need to become a good trial attorney is you really need to know your client. You have to be able to walk in your client's shoes, so to speak.

    You cannot tell your client's story most effectively, unless you know who that person is. Another important thing that is, I think extremely, extremely valuable, and relative is you can't tell your client's story until you know yourself and you deal with your own issues and whatever it may be. You have to learn to possess the ability, which is very, very, very difficult to be vulnerable in front of other people.

    I believe that as a good trial attorney, you need to make a human connection with your jurors and the only way, the most effective way to develop a human connection with your fellow jurors and or anyone for that matter is to be able to expose some of your own weaknesses and allow them, meaning the jury into your self and allowing them in by being brutally honest.

    I'm using all these terms as we go through this brutally honesty and telling the story. But here's another one. The ability to listen, and I mean, really listen. You're not going to understand the true damages that your client endured as a result of the negligence of someone else without having the ability to truly listen to your client. So you can really develop who he is, what makes him or her tick and why the loss that came about as a result of the negligence of someone else has significantly impacted this person where I like to say, and I think I read it from one of the greats, and I'm going to tell you once before I even go there, you have to read all the greats.

    And if you don't know who they are, feel free to email me or call me. I'd be more than happy to give you a list of great books, but it's not hard to find from everyone to guys who are no longer with us, like Moe Levine. I'd recommend you read anything that Moe Levine had said in the courtroom. He was one of the great, brilliant trial lawyers amongst some of the current ones like Rick Friedman, and Dave Ball and Keenan. These guys are doing great stuff out there, and they have a lot of great stuff to talk about.

    Gerry Spence is another one of the great ones that I'd recommend. And if you haven't had a chance to understand why psychodrama and the ability to communicate from a human nature is so important, from a trial perspective, you'll have to read Gerry Spence and study Gerry Spence as I've been now to the ranch where the Trial Lawyers College, where he teaches psychodrama and he teaches attorneys. He did. He's passed it now, but he has people who work for him who still run the program in the college.

    This is really, really important stuff that we haven't even mentioned a word about legalese or evidence. So read the greats, being able to be brutally honest with yourself and your fellow jurors, having the ability to truly listen to your client. And I'm going to get back to the quote that one of the greats that I had read said, "If you are not comfortable enough with your client at the time of trial, to be able to go and into their refrigerator and take a drink of water," or whatever it may be, then you are not at that level that I'm talking about yet.

    A true trial attorney that is able to get fantastic results that I've been fortunate to achieve in my career, and so many others have is putting all of these things into action. It's not standing up and talking legalese. And here for with, I may present you with talk like you talk to your friends when you speak to a jury. Okay? Be brutally honest.

    So, think about who your client is. Think about who your client is representing, who you're representing. Think about his background. Think about what kind of appearance he's going to make and understand the notion that especially in a trial, but also in the real world, perception is very much reality. So, he may be a wonderful man, but he's got those tattoos and pierces and things. These are all things that you're going to need to consider as to what he looks like from the outside world.

    Go watch trials. Go down to the courthouse. If you haven't seen some of your local great guys, or even just some of the best attorneys out there are the ones of the soldiers so to speak. The ones that are doing the trials in day in, day out on the small policies. They're not making lots of headlines and banging out million-dollar verdicts and that might be because of the cases that they're having the opportunity to get their hands on to try, but they're the ones with the real experience and they're the ones that will tell you what I'm about to mention is you have to know your judge.

    You have to find out... Do your research, do your intel. Find out what his quirks are. Find out what rules he follows and what he doesn't, what he takes very seriously, and what he doesn't. Does he like and appreciate if you mention baseball? Does he appreciate when you object that you always stand up? Be prompt, be on time. That's a very, very important thing. And be organized with your file.

    I'm going to talk to you a little bit about what that means being organized with your file. It's a crucial, crucial thing. It starts, frankly, with the depositions. If you don't know how to index a deposition, you need to know how the old school way was taking a yellow, legal pad and writing three lines down vertically, three columns, making small columns, and you put a page number, and then you put the question and then you put the answer.

    I still use that way because for me the best way that I feel that I can learn the actual transcript is by writing it out. What it does is it’s sort of a... It's a quick reference to all of the answers that for all the testimony in the trial without having to go to the particular pages and have the transcripts. So typically, you can get up to twenty pages of questions on one page and you're really just putting out the relevant things. If you have a bifurcated case, then obviously you're just putting out your liability and then you're doing your damages, but it allows you to really learn the transcript and have it at the time of trial for easy reference to get to the questions and answers that you are going to want to reference.

    The other thing about the transcript is I use the transcript especially for cross-examination and I'll make multiple, multiple copies of particular pages. I use a highlighter system. I use different colors for different issues that I want. So, for example, if it's all the times where the defendant said that he didn't recall, that might be in green. All the times where he said something that you know is factually incorrect, that might be in red. You get the point.

    So, it's sort of like a color-coded legend that I would write on top of the page, so I would have easy reference knowing what each color is for. So, the other thing that you want to make sure that you have done in advance is if you have a trial that's involving experts, I can't think of a circumstance where you wouldn't. Frankly, even on the smallest trial you're going to need some sort of a... Especially in a personal injury case, you're going to want some sort of a medical expert to testify.

    You need to be in line, and you need to have discussed and spoken to your expert in advance and know what him or her is going to be prepared to testify to and how much they're willing to give you in their testimony before you obviously go ahead and get started in the trial. That could be anything from your liability, whether it's your liability expert, premises case, an engineer or accident reconstruction is biomechanical, whatever it may be, or if it's damages and it's your medical doctors or your... We use various types of experts for trial.

    Another good tip that you should always be doing as a plaintiff's practitioner on personal injury cases is if... Well, certainly if the case warrants it in terms of damages and in terms of value, and you have a severely injured client, you're going to want to use a vocational rehabilitation expert, and you're going to want to use a life care plan expert.

    There’re many companies and there's many different doctors that will give you mini life care plan experts on maybe your smaller cases, if a couple thousand dollars investment is not warranted for the particular case. So, you can utilize it. It Gives you just a mini abbreviated version, but it's also very, very important in order to prove your damages.

    Also, an economist is someone that we would typically use often on many of our cases in order to prove your monetary whether it's your future and past medical expenses, whether it's future and past loss of household services or consortium or whatever the various... Maybe it's important to get those on board early and to be in line with what they're going to testify about. Know your medical literature. Know your medicine. You have to know your medicine. And if you're going to be doing these types of cases that involve a physical injury, you have to be able to stay up to speed and stay.

    You have to be able to spar with medical doctors on... So, whatever your injury is on your particular case, you're going to have be able to know and understand the medicine. You can do that from the most basic textbooks. Be careful what you read on the internet obviously. But medical journals are great, great, great resources for attorneys like us especially for cross examination.

    Know your laws, know your statutes. So, in New York trials are really based on the pattern jury instructions, the PJI. All the states have various versions of the jury instructions. Before I get involved in any trial, I automatically, right away, I read my PJI. It doesn't matter how many times I've gone to trial. You have to be able to understand what the judge is going to instruct the jury before you can even get started on writing an opening statement or a closing statement or anything like that.

    The medical and liability notebooks that I basically invent while I'm preparing for trial, which are just three whole punches. I like getting just the thick, durable black three-ring binders. I use various tabs to put whether it's police report, the ambulance call report, or whether it's the various expert reports. And that way I just have everything. I also put my case law. I put the various jury instructions that are relevant. Any motions in limine that I'm going to want to make which I'll talk about in a second.

    I put it all, so I have it handy. Your marked pleadings. I assume everybody knows what a marked pleading is and that you mark your answer when the answer came in all those years ago, and you marked your complaint to determine what they admitted and what they denied and what they denied having any knowledge of. At the time of trial, you go back to your marked pleadings because you have to understand what you're going to need to prove.

    Not only what you're going to need to prove, but if they deny, let's say ownership or they deny permissive use, you know that those are going to have to become issues at trial that you're going to have to prove, which is why I encourage all practitioners prior to trial to make notice to admits and to make motions in limine, because the goal what you want to do from the plaintiff's perspective while you're trying the case is to limit the issues that you're going to have to prove.

    It's a difficult enough game and it's a difficult enough job ahead of you where it's in your interest to try to limit what you need to prove and what you need to show to the jury. The less issues you have, the better. There's no doubt about that.

    Speaking of issues, it's also very important to identify what your weaknesses are in your case. What I'd like to do prior to trial is I write down the top five or whatever it is, top seven, top three, top 10. Try to have more than three of the biggest reasons why you would lose your case. Then you write those down and then you try to, at least, if you can, first, what you want to do is turn them into actual strengths.

    Let's say, for example, you're concerned that you have a plaintiff who was in a car accident, who hurt his back, and you're nervous because he's somebody who had back problems in the past. And you're concern that the jury when they hear about him having back problems in the past is going to put all of the recent treatment and injuries to his back that you're claiming were caused from this accident as to the defendant's big argument that these all preexisting conditions and that would be maybe one of the things that you would put on that list.

    Then what you do is you take that particular issue. I do two things. First is something that I do by myself, which is I try to find if I can, ways to use it as my strength. Then I'll write questions based on that. Then the second thing is I workshop it with people whether it's attorneys or my staff or whoever you may be, but it's really important to hash these things out in advance with getting the opinions of everyone else around you, who you can humbly annoy to help you out, trying to get their opinions on particular issues.

    Focus groups are amazing, and if you can afford to use them, I would encourage you to do so because focus groups will give you things that you won't see or even maybe begin to appreciate, could be an issue without having it. And if you can't get a focus group, then try to get two to three to four to five. At least three, five, six, seven, eight is great. People together in a room and use them as a focus group. Or you use psychodramatic techniques to try to approach the case from different angles and different perspectives that one might not normally would.

    The group atmosphere, opinions that are formed by people as opposed to just them deciding on their own before they speak to other people about it, don't underestimate that. There's an old theory about the mob mentality, so to speak. But it's incredible. In my experience, when I was trying a ton of cases, I used to talk to the alternate jurors who would be excused prior to deliberations. And while the jury was out, I would ask them what they would think. And nine times out of 10, it would be amazing, but whatever they said, the alternate juror, typically the exact opposite would be the result from the jury.

    When people get together and start discussing their thoughts out loud, and then getting feedback from the ones around them, it has a tremendous effect on their opinions at the end of the day. So, you want to try to do that in advance of a trial so you can see what the jury might think on different issues.

    So you take your five different weaknesses and you can make them be as general as you want from a preexisting injury to something specific, to "My client has a nose ring that he won't take off and I'm concerned about how the jury's going to think about him or he has a prior felony conviction or whatever it may be." Use it to your advantage. So, getting back to the preexisting man with the back injury who had the car accident, it could be, let's say he had a lot of medical treatment for his back for two, three years, and then he didn't.

    Let's say he went a couple months leading into the car accident where he didn't have any treatment. Then maybe you make the argument that he was doing a lot better, and he was finally on the course of recovery and finally on the course of living a pain-free life and then boom, this happens and now he's back to square one. Not even back to square one, he's below where he was even before. He's worse than he was before and that's not up to the defendant to make that decision in this man's life.

    The old saying that you take the plaintiff, as they call them the old eggshell plaintiff is a very, very strong thing. We're not all Michael Jordan's as we get into that car and the defendant hits us. We all don't have a perfect physique and being in great health and shape. And the defendant and their negligence takes the plaintiff as they come. There's no doubt about that. So, one way to use that to your advantage, a weakness, turning it into a strength.

    Then if you can't do that, okay, you have your five biggest fears about the trial, the ones that are keeping you up at night, the ones that you think are going to bury you before you even begin, you take each one. And if you can't make it into a strength, what do you do? What you do is you deal with it, honestly, head on. You make a note that you voir dire about it, that you make a note that you need to address it with your client. A direct examination before the defendant brings it out in the middle of their opening or whatever it may be. And a jury no longer trusts you.

    I'm a big believer that you take your weaknesses, and if you can't turn them into strengths, then you bring them out and you deal with them head on and your jury will appreciate you for it. It's all about establishing the trust with the jury. Okay? Another good thing that you need to remember as you go along this world of being a trial attorney is you will soon discover if you are brutally honest with the jury and you do establish a true human connection with them, at the end of the day, you're going to get them in your favor and you're going to go get them your side. And the details won't matter. They won't remember the details.

    And you as a trial attorney, shouldn't sweat the details. Of course, you don't want to say the accident happened on Jones Street when it actually happened on Smith Street, or the accident happened on the 25th when it actually happened on the 30th. You want to be accurate, and you want to be on point and you're a professional. But if you make a mistake, and you let it go, move on. Move on and don't let it disrupt your flow and don't let it disrupt your timing. And don't harp on it and make a mountain out of a mole hill so to speak. Just keep moving.

    So, what else do you got in your trial preparation handbook and ammo? You're going over the EBT digest that you have and your multiple copies of the deposition with the color coded highlighted different issues that they reference. You have your PJI, your jury instructions that we discussed. You have met with your client many, many times in preparation for his direct examination and in preparation of the trial in general. And before you give your opening statement, you've gotten to know him.

    In the beginning, you might have met with him in your conference room with your tie and your assistant and your suit, and you're ready to go. Your second time perhaps might be maybe on their turf, maybe at their house. You would extend an invitation to yourself to go visit them one day and see their environment and see if someone who talked about having assistance with medical devices and whatnot. See how they live. See what it takes. See the amount of steps that they have to walk to get from their car, to their bedroom, to their house.

    See what their kitchen looks like. See what their family is like. See the dynamic that exists between the wife and their kids or whatever it may be. Then of course, you're then getting down to not a scripted question and answer, "You're going to get this question and give this answer." It's, "You're going to go over the testimony."

    And the way that I do it is I'm a big believer in action and setting up various scenes. This is a skill that I learned with Gerry Spence at the Trial Lawyers College out in Wyoming. What I've done is have taken the belief of setting scenes and putting things in motion and in action. Along with using demonstrative, and evidence, and technology, and incorporated all of that into what I like to call of the modern trial lawyer, because it's satisfying our existing society's need for instant gratification, which has been established and permeates through our culture and our society through the internet and through how the internet has changed the way we all receive our news, the way we think, the way we approach certain topics.

    It's changed the way we talk to each other, the way we establish ourselves socially and us as trial lawyers have to adapt. The old school way where my father might have taken two days discussing medicine in a complicated manner with a fancy doctor, without any TVs or models or skill. It just won't work anymore. We like to have our instant gratification in 10 seconds whether it's on our Instagram, Facebook, and we have to understand that this is what our jury is expecting.

    First of all, this is another good just practitioners tip in general, on the heavy cases that warrant it. You want to do a video deposition. You want to make sure that you're recording video of the testimony because it's much more effective to use video at trial than it is the old school way to pull out a transcript and say, "Do you remember when you gave this question, and you gave this answer? When I ask this question, why did you give a different answer?"

    Let the jury see the defendant say that the sky was green when it was actually blue and letting them see his facial expressions when he blatantly doesn't say the truth. And that to me is a very effective thing. Demonstrative evidence. If you have a case that involves an injury, whether if it's a back, you want to get a big spine that you get to publish to the jury and let them toss it around and feel it and hold it.

    Same with whether it's a shoulder, you got to model a shoulder, a knee. You get your foot; you get your facial injuries. You're going to get out of your teeth. Make sure you spend the money on medical visual art, if you have a surgery. I just finished a four-week trial that had a double fusion surgery and I had a company... Basically they make a graphic drawing, illustration of the surgery that occurred, the hardware that's put into my client's neck, the plates and screws that got drilled in through his discs and that got eventually fused in the disc that got removed and let them see it themselves through art.

    It becomes really, really powerful. I make up big boards of that. I keep those boards in the courthouse, in the courtroom. The jury to get you to look at as they come in and they come out. I have a digital version of the illustrations that I can then use. I make sure that I always have good technology if the court doesn't have it equipped. Most days in the COVID era, we're going to have... Actually, it's... What it's done is it's... At least in the state of New York, it's made the courts become more modern.

    I just finished my first COVID pandemic trial of substance. All of a sudden, I was the only trial in the building, but the courthouse that I'm using, it's got big screens and everybody wants to socially distant. So, the technology is a little bit better in fact. But again, I've always lectured, and I've always been a believer that you don't want to rely on the courthouse. You want to become fully self-sufficient. So, I have myself a nice big 40-inch thin screen, lightweight television that I will put into my trunk and keep in the trunk if necessary, throughout the trial.

    Along with an Apple TV, I used my iPad. I used TrialPad, which I found to be thus far the best software to show jury evidence whether it be records or testimony including video, including photos. If you have photos, you make sure that you have those photos ready to go in your TrialPad software. And throughout the trial, whether it's openings or closings, directs, I'm constantly using demonstrative evidence, the technology, the medical visual blowups.

    It's great if you could do a diagram or a model of a scene, but you're... And then when you're going back to the preparation of your client for his testimony, what you're doing is you're bringing your client back to various time periods in his life that you think it would be important for the jury to hear, to make a decision in your favor. And everything that you say in the courthouse throughout this trial, you are only saying because you want, you think, and this is, of course, when the jury's in the courtroom and the court is in session, you are only saying things that you think the jury needs to hear to make a decision in your favor.

    And you want to arm your jurors with ammo so that when a juror who's against you says something like, "Well, he had a prior back injury. So how do we know that this treatment was related to this accident?" You want the jurors that are in your favor. You want to give them ammo to defend you. "Well, what do you mean? He didn't have any medical treatment for weeks leading up to this accident. And in fact, he told us that he was doing great. And in fact, we heard from his prior doctor who said that he was on the road to recovery, and he was doing great."

    Basically, you're just giving ammo to your jurors that are in your favor to help them make a decision in your favor. Right? Okay. Sorry. I keep digressing. I do that obviously, but this is all very important stuff. I want to go back to you're setting scenes with your client by taking various periods of time that you think the jury needs to hear, to make a decision in your favor.

    For example, it might be five minutes after that truck hit him in the rear or on the highway and he's sitting in the side of the road, and he's got glass on his arm and he's in shock. You want to set that scene and how do you set the scene? It's the details. "Well, what was the temperature out? Did you have a window open? Where on the side of the highway were you? Tell us how you feel." It's all about feelings, right? You want them to feel the way your client must have felt when he's sitting in the side of the road and the glass is shattered and the wind open and the wind is coming, and the car is vibrating because swoosh, swoosh, swoosh, the trucks and cars are just whizzing past him on the highway.

    All of a sudden, he doesn't know whether he should call his insurance carrier, or his mama, or his girlfriend at home, or his daughter who might not be answering because she's away. All of a sudden, he's getting a feeling in his back that he's never felt before. These are the things that you want the jury to feel, and he's scared, and he's scared. He's alone and he's about to start a course of loneliness and fear and pain that he doesn't even know he is about to begin that's going to lead all the way up to the jurors in that courtroom that day.

    It's all about the story. You're setting up yourself to be able to tell the story to the jury. So, then you take him from the side of that road with the cars going by and he's cold. Fast forward, maybe six months later, right? He hasn't been to work. He's spent his days driving to physical therapy and driving to doctors and he's up at night. He's tried an injection and he's tried another injection.

    Now the scene is he's in a hospital in his local town. He's in an operating room about to have a doctor puts some anesthesia on himself because he is about to have a surgery that he's never had before. All of a sudden, he's even more scared. His girlfriend drove him that morning but he's by himself in that room. And you're going to set the scene for that room. How does he feel?

    What's the temperature in there? What is he wearing? He's wearing one of those hospital gowns and he's got the wind going up his back and it feels sterile, and it feels like a hospital does. Maybe the next scene is, I don't know. How about a year and a half later where he's with his newborn grandchild. All of a sudden, he wants to go on the ground and crawl around with his newborn and he feel was that pain that he's all of a sudden gotten used to but hasn't gone away and it's changed his whole mentality and his whole life.

    He no longer goes out to dinner and socializes and whatnot because of it's bringing him back to the scene a year and a half later and he is on the ground with his infant child. He can't move and he's in bad pain. These are the stories that you're... You're not going to know about him lying on the ground with his grandchild wincing in pain a year and a half after this accident.

    Or you're not going to know about the temperature with the window open the day after that accident, unless you get to really know your client. I use these scenes that I set with my client in preparation of trial for the direct examination. That's the way that I tell the story of my client to the jury by motion. Maybe when the client is on the stand and he's telling the jury what it's like with the cars whizzing by on the side of the highway with the glass shattered on him, it's, "Well, show us, Mr. Jones, show us, Mr. Smith." "What do you mean show us?" "What were the cars, man? Show us with your hands."

    Swoosh. Boom, boom, boom, boom. Action. Let's get the jury involved, right? Stand up. Set the scene. Make the court officer be the highway and make the judge all of a sudden be the lane where he's in. You know what I mean? These are ways to put things in motion and action, and you are showing instead of telling. When you show instead of telling, it goes a really, really long way, and you will see the success come to you in spades.

    I want to talk about a couple other things that you really need to do in preparation for trial in order to be successful. Decide, firstly, your witness list who you're going to call. That is an important decision. And then of course the lineup who you're going to call when and who you're going to call first. It can all be pretty crucial decisions. Typically, I would call the plaintiff as my first witness. I think that if you don't call the... And there's all types of different thoughts of school on this.

    My opinion is you want to set the story and you want to set the narrative so to speak. And you want to make the case about the plaintiff's version of events, not the defendant's version of events. And that's in terms of lineup of witnesses. I do believe in your opening statement, if you're dealing with a negligence case, I think it's important to keep the beginning of your opening statement on the defendant, keep the focus on the defendant and the defendant's actions.

    You need to really make sure that the jury understands this is a very important point. No matter the negligence that was committed, the act that caused the harm and that you believe was negligent, you need to make it clear to the jury that the defendant had a decision to make. Everybody makes a decision. Whether he decided to look down at his radio or his cellphone at the moment that the collision occurred, or he decided to make the left turn even though the biker plaintiff was on to the right of the road, there was a decision, and it was the less safest decision.

    The only right decision to make is the one that is the safest decision. And if the defendant, whether it's the doctor who negligently did a surgery, he made a decision during that surgery. I tell potential malpractice clients that malpractice is not... It's not a mistake. It's not a mistake. It's not an error in judgment. It's not a bad outcome. But malpractice is a departure from the standard of care. So, when a doctor departs from the standard of care, that's a big decision that he made.

    It's what the community standards were, and he chose to do otherwise. So, you want to frame the defendant's acts as decisions that were the less safe and that the only right decision is the safest because... You're setting this up all the way back your deposition of the defendant when you asked the defendant bus driver, "Did you have training to drive the bus?" "Yes." "Can we agree that one of the things that you learned is that safety was the most important thing, right? Safety for yourself and for your passengers and for the community around you."

    Listen, nobody can disagree with that, right? You don't disagree with safety being the most important thing. When they commit an act where safety of the public was not the best decision, then they've committed a negligent act that has caused harm. It's like, "Where do you go from there?" So, you need to have your witnesses in order. Your verdict sheet and your request to charge, request to charge is the law that you would like the judge to charge the jury and your verdict sheet. You want to do that be way before any, you give jury selection or opening statements, because that's also going to help you frame where you want to go, where you need to go with the trial.

    We have about 10 minutes left, and I just want to talk specifically as I can about some tips with... Well, just a little bit more specific. For example, for jury selection. Jury selection, it's really important that you listen. I have spent most of my career listening to lawyers. We as lawyers, and I'm guilty, we love to hear ourselves speak. Jury selection is voir dire. That means to speak and to hear. You need to hear. You need to listen. You want to encourage cross-communication and cross discussion.

    You want juror A in the back to maybe... I'll tell you this. I don't believe that jurors are going to taint other people's opinions by getting things out. If juror A says that voir dire is... If juror A says that they're against tort reform. They believe in tort reform, and they don't believe in these types of cases. That's okay for me. That's okay to encourage a discussion maybe for then juror B to disagree and to have a cross-communication, because then you're really, really getting to know the juror's opinions on these specific topics and their real feelings on specific topics other than... And you don't want to ask them questions that will encourage yes and no.

    And one-word answers. How about questions like, "Well, Mr. Smith, you just heard that Mr. Jones in the back thinks that he doesn't believe in these types of lawsuits and that they're all frivolous. What do you think about that? Are you on Mr. Jones' side or are you on the other side where you think that everybody should bring a lawsuit? Or somewhere in the middle, can you tell us your thoughts about that? Or Mr. Jones, how did the comments that Mr. Smith just said, how did those make you feel? Did it make you feel, I agree with them or I don't agree. Tell us about it."

    And then the key, always the key is the follow-up question. The follow-up question is, "Well, can you tell me a little bit more about that? Or why do you feel that way? Or how does it make you feel the way you just said?" Questions that start with why and how are much better than "Can you be truthfully, or can you be willing to listen to all the evidence and tell this and just decide on what you hear?" "Yes, I can, Mr. Blitz. Yes, I can be truthful."

    What are you learning from that? What are you really learning from that? So, it's an exercise in listening just as much as your preparation with your plaintiff is an exercise in listening. You really want to be able to listen and get them talking, get them speaking. There's ways that I would recommend. There's a guy out there in Florida named Keith Mitnick. He's written some fantastic books on jury selection. And he talks about how you are able to eliminate biases from jurors and different techniques that you can eliminate biases with jurors, just by certain questions that you can ask.

    There's a book something about the bruises that he wrote. It gives you great, great, great hints on being able to identify and pick out people who have biases and making sure that jurors understand that it's okay to have biases, that we all have biases. He uses an example, which I've taken from him in some ways and transformed it into my own. By the way, that's also the skill of a great trial lawyer is to take all these great things that you learn from all these brilliant people and make them your own.

    When we talk about biases, I like to tell the jury, you use the example that you're in a pie eating contest and you just hate apple pie. And then you have two contestants. One is making apple pie and the other one's making cherry pie. Do you owe it to the person who asks you to be the judge? You can say, "Listen, I hate being the judge, but I hate apple pie. No matter what you do, no matter how great of a chef that apple pie chef is, I will never, ever vote for apple pie."

    Don't you have an obligation to let the fellow contestants know your feelings about apple pie before you judge that contest. It's similar here. And listen, there's nothing against you for eating apple pie, but we all have biases that are fixed through our life experiences that they all bring into a courtroom. And you, as a lawyer, you need to expose those biases or else you're not representing your client to the most effective manner.

    We're out of time in respect of getting into deep details about jury selection and direct and cross. What I have hoped that I have accomplished in the last hour is that I've given you the basic framework and mindset to put yourself in the best position for success as you walk into that courtroom and think about everything from the brutal honesty and discovering the story and the ability to really listen, and the organization and time and effort that is needed to adequately prepare your file through indexing the transcript through meeting with your witnesses, through workshopping it with your fellow colleagues, through focus groups, through using the various experts, through setting up your witnesses in the proper time and order.

    These are the key tools that you're going to need to be a successful trial attorney. I hope I've answered some of your questions in regards to trying a case. If you have any questions, you can always feel free to email me, [email protected], S-C-H-U-L-M-A-N-B-L-I-T-Z .com for any questions. It's been a pleasure, and I thank you for your time, and I wish you all the greatest success in the most honorable practice there is in the world. God bless you all and God bless America.


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1h 1m 02s

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