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The Modern Jury: Trying a Case in the Days of COVID-19

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The Modern Jury: Trying a Case in the Days of COVID-19

Justin Blitz discusses everything an attorney needs to know to detail trial tactics and strategies, presenting the thought process of the plaintiff attorney throughout the evolution of the trial and best practices for conducting trials during the COVID-19 pandemic. Mr. Blitz will begin the course by discussing strategies for jury selection, how to tell your client’s story and what to expect at trial during the pandemic. This program will also cover ways to effectively communicate your message to younger jurors, and provide some tips on how to give successful opening statements, and direct and cross examinations along with tips on summation. Mr. Blitz offers practical advice that he has learned through his years of practice and advice on trying a case during the COVID-19 pandemic from his recent successful 4 week trial that he recently concluded.

Presenters

Justin Blitz
Founding Partner
Schulman Blitz, LLP.

Transcript

Justin Blitz: Hi, my name is Justin Blitz. I'm an attorney in New York City and I'm going to be talking to you about trying a case in the modern post-pandemic or pandemic era. I am a personal injury medical malpractice attorney in New York City. I do plaintiff's work. I'm going to be speaking primarily from the perspective of a plaintiff's attorney. This is a national based course, though I practice in New York. So I would encourage if listeners who are in other states trying cases to check your local rules and ordinances to make sure that the strategies and tips and things that I discuss today will apply in your home state. Also, I'll be speaking from the perspective of the plaintiff's attorney. I have no disrespect from my defendant brethren colleagues who are also doing wonderful work, but I am a practice that is 97% to 98% primarily plaintiffs oriented. So the perspective I'm going to be speaking will be from the plaintiff's side.

   I have tried many, many cases to verdict in my career. I've been practicing for about 17, 18 years. Actually, longer now. And I took a verdict right before the pandemic began. It was a medical malpractice case. It was in the Supreme court of Queens County. The jury returned a verdict in my favor for $3.4 million. It was a hernia surgery that was improper. My client was a security guard who suffered a subcutaneous nerve injury as a result of the hernia surgery. Then the pandemic hit and I had a number of cases that were scheduled for trial that got obviously rescheduled. In New York, the court system was shut down for a really long time. It's still operating at a very different speed than it was prior to the pandemic. Like most trial attorneys in New York and across the country, I went almost a year and a half, close to two years without trying a case because of COVID.

   My cases don't really work for remote trials. This is not a lecture about trying a case via Zoom or video conference. This is a lecture about trying a case with a modern jury in a courtroom that is set up to be socially distant with rules concerning masks and how far we can be around each other with a courtroom that is changed in regards to making it more safe for everybody. We're jurors, so a month ago I finally got my opportunity to try a lawsuit post-pandemic era. It was in the Supreme Court Bronx County. I was on trial for three and a half weeks. I bifurcated the trial at the beginning of the trial and my client was a peace officer who was on a three wheeled scooter who got hit by a city bus that was attempting to pass it and clipped it, my client. I won the liability portion of the trial after a week of testimony and then we moved on to the damages portion of the trial where I also won the jury. Returned a verdict in my client's favor for $4.2 million.

   And it was an incredible experience trying a case in the post-pandemic era. And this next hour that we're going to be talking is going to be interspersed with tips on trying cases in general and then tips on what I learned trying a case in a COVID insulated, safe environment that was different in many respects. Examples being the jury were sitting in the gallery where the audience normally sits, spread out, distanced. That left me, as the attorneys, with the choice of either having my back to the judge or my back to the jury. So what I would do, there was a microphone that was placed in the jury box. So I would stand in the jury box so that way I would swivel my head to the left and I was able to speak to the jury and then swivel my head to the right and I was able to speak to the judge. When we began the trial, we were all required to wear our masks at all times and there was Plexiglas placed on the counsel table and around the judge and witnesses tables to ensure safety.

   The court reporter, who was in her usual position by the judge, found it very difficult to hear when me and my adversary were talking with our masks on. So eventually after the court reporter was complaining of her inability to hear and take down the testimony properly so many times, the judge allowed me and my adversary to remove our masks and to speak without our masks into the microphone when we were questioning witnesses or talking to the jury. I also was able to move to the front of the well and face the jury, so I was able to talk right at them and prevent as much as possible the prohibitions that the Plexiglas and the masks are causing. Void dire, in general, no matter whether it's COVID or not, it's really important for you as the attorney to engage the jurors and get the perspective jurors to be talking as much as possible. You want to just be quiet and listen. You want to encourage crosstalk between the room.

   You want to encourage jurors to answer your questions in more than yes or no responses, but to actually give proper answers that will elicit further response. The goal in engaging the jurors in these cross conversations can only really be done by the way you ask your questions and the way you ask your follow up questions. Your follow up questions are so important. You don't want to talk like a lawyer. Your follow up question, I think, 70% of the time should consist of the following five words, which is tell me more about that. I like to use extremes, no matter the topic, and then ask the juror if they're more to one extreme or the other. An example might be that you have a close friend who just thinks that all these cases are nonsense and believes in tort reform and thinks that damages should be limited on all cases, no matter the circumstance. And then you have another friend who thinks that people should be given money just at the most minimal injury and that there shouldn't be any sort of threshold nor should there be a cap.

   And you might ask the juror what side are they closer to, the first friend or the second one. And then you've now created a range and then you follow up with follow up questions consisting of tell me more about that and why do you feel that way and questions that begin with words like why, and how, and tell me and not can you. Can you be fair? Yes, Mr. Blitz, I can be fair. That's getting you nowhere. I mean, what are you learning from that? What are you eliciting from that? I've seen lawyers for so long, they go down the line. Can you be fair, Mr. Smith? Yes. Okay. Yes. I mean, what does that mean? Can you be fair for what? Can you be fair for this type of case? Are there experiences in your past that prevent you from being fair in this type of case? For example, if you had a, God forbid, family member who was killed by a out of control motorcyclist and this happens to be a case where your client was on a motorcycle at the time of your accident.

   And you believe it was the defendant's fault, not your client's fault, can they be fair for this case or maybe is it that there are other cases in the courthouse that they are more appropriate for based on their life experiences? That we all have innate biases that we bring into the courtroom based on our life events. That's just human nature, that we're not robots and that we don't come in with clean slates. And to think that we do would be ridiculous, in my opinion. So watch your language, be careful on the words that you use from the plaintiffs, practitioners side. Stay away from words like accident. Words to attorneys that mean one thing mean something very different to non-attorneys, like the word accident. Accident connotates to a layperson that something happened, but it was nobody's fault. If you have three kids and you come into the living room and the carpet's filled with paint and they explain what happened and they say it was an accident, what they're trying to convey is that it was nobody's fault, that nobody did it intentionally, but you are looking for fault in these cases.

   So I try to stay away from the word accident and maybe might use the word crash or might use incident. Watch your language. Be on the lookout for clues based on body language or prospective jurors. Obviously it's clear if you talk about how everybody has a right to bring a lawsuit and if there's injury caused by another and then all of a sudden you see Mrs. Smith in the back rolling her eyes, that's a clear indication, but there's other things. Body language of who's looking at you in the eyes, who's too busy on their phone, who's falling asleep, things like that you want to try to pick up on in void dire. I tend to use the old fashioned way where I take a yellow legal pad, I put boxes across the yellow legal pad and I put in my brain a number system, 10 being they're the best potential juror in the world, one being I don't want them no matter what. And based on their answers to questions and their body language and their answers to my adversary's questions, I'll give them a number.

   And I will write certain keywords that only I would be able to identify when describing them. Weird system. If I notice that the guy's got red glasses on, I might say red glass so I can remember when we go back into the ... Me and the adversary and we're going through our report deciding if there's anyone for cause or who I want to knock off or keep, I have a good memory that red glass guy who was rated number six, I'll know exactly who I'm talking about. And just in case you have any nosy jurors who are trying to look at your paper, you want to try to stay away from writing things like black female or white female or whatever it may be. Something that just unintentionally might think in someone else's mind that they see it on your paper, something that it's not what it actually is. So you just got to be careful, but the grading system is a good way to keep in mind with your gut instinct.

   And I changed the number, so before they might even give an answer I might give them a certain grade based on general stereotypes I'm thinking in my head on what they wrote on their questionnaire, and how they're dressed, and what book they're reading. It's a great question, what books to read. I love the question what newspaper papers do they read. I think it tells a lot about a person whether they say I don't read newspapers or I only watch Fox News or I will only listen to CNN. I mean, it'll just tell you a little bit more about what that person's mindset is. Another great question is about their thoughts on homeless people, the plight of homeless. If they say they're just a nuisance and they should all get out of here or if they say it's just a horrible problem where many of them have psychological disorders that are not being properly cared for, that's two answers that will tell you so much about a person.

   You're looking for leadership qualities, you're looking for empathy, you're looking for whether they're a supervisor in their job or they're not, whether their job requires them to be empathetic, whether they have jobs that are more like nurses or less jobs that require them to care for others that are not as fortunate as they are. The race issue is here in our country, has always been there. It's in every single jury roo, in every jury picked in the history of our judicial system. For anyone to deny that would is ridiculous. You should deal with it head on. You need to be wary of any sort of, what we call, Batson challenges in New York, but it's something that you need to consider and deal with head on. And don't bury your sand with respect to it. I want to talk a little bit about the young modern juror and why the young modern juror, whose life they only know it, generation Z or whatever we are at this point, the instant gratification that the internet has brought upon everyone has changed the game in many respects.

   (silence)

   So the average attention span, the average attention span of a goldfish is nine seconds. The average human attention span in the year 2000 was 12 seconds. The average human attention span in the year 2013 was eight seconds. Can you imagine now eight years later if it went from 12 seconds to eight seconds from the year 2000 to 2013? It's a good estimate that at this point in our society the average human attention span would be somewhere around four seconds. Four seconds and you're gone. So what does that mean? That means that you have to change ... It means that it's important that you make it interesting and it's important that you elicit the information that you need to elicit from these jurors before they're somewhere else. It also means a lot more during the trial and during your opening statement, which will get into. And what I'm talking about is the need to keep it interesting and continue. You're always telling a story and the forward of the story is starting a jury selection, but you always need to keep in mind that there's a story that's being told.

   And a good storyteller will keep the jury listening. Demonstrative evidence, technology, video, charts, models, graphs, medical visuals, spines, skulls, knees, model cars, model locations, audios, enhanced videos, photographs, blowups. This is the way that you keep the modern jury engaged. Action testimony elicited at trial under direct examination where it is much more showing than telling. And we will talk more what that means as we get a little bit into the trial. The vaccine question during jury selection was something that I stayed far away from. I wasn't allowed to ask it at that point. Whether you are allowed to ask it in your local jurisdiction or at the time that you're listening to this lecture, you need to check. For me, I told the jury that it was most important that they felt safe.

   That, in my opinion, the courthouse that was being cleaned twice a day and where all of these precautions were being taken was one of the safest places that they could be, but that at any time, if they didn't feel safe, that all had to do was to let us know and we would make every effort to ensure their feelings of safety and being comfortable. I also told them, and I'm going to just leave it at that and we'll move on, in regards to their masks, that I have spent my career with the ability to read juror's body language. So that if they couldn't hear at certain portions of the trial, I would be able to understand and make efforts to get them to hear better. And in this case, because we're all covered by masks, that becomes a harder endeavor. And I would ask them if they would just shake their head anytime they would have a difficulty hearing. And that way I know that I needed a witness to speak up or to talk into a microphone.

   The trial itself, it's important that you do stay updated with the COVID rules before you begin. And you also need to do your homework and your diligence on the judge. And the judge plays a key role and you need to know a bit about your judge and what he likes and doesn't like, what his custom in practice is, what his rules are. Speak to somebody who was in front of him in the past so you know what to expect. So I am a big believer in modern technology and I use the program TrialPad to present all of my evidence in the courthouse. I am also a big believer that you should be self-sufficient. You have your own television, your own laptop. I use the iPad because that's the program the trial pad is based on. And make sure you have all the proper cords. You test your technology prior to the trial to make sure that it all works.

   And I would never, ever rely on the courthouse or their technology. I want to be self-sufficient. If I need to go online, you're going to want to make sure you have a hotspot available. The type of technology that you're going to need depends on what type of evidence you're going to be presenting. Is your opening going to involve photos? Will the evidence at the end of the case involve thousands of pages? The goal obviously is to present the most effective evidence to the jury in the most efficient and effective manner. Listen, young jurors, older jurors, anyone in this day and age, they expect visuals. I like visuals. I like using medical visuals to describe surgeries. I just used it in my past trial that I just finished. I had a double fusion neck surgery and I used a big blow up board with a medical illustration showing the hardware that was placed into my client's neck, showing the disc that was moved and fused. So make sure that everything that you intend to use at trial you're disclosing to the defendants in advance.

   I bait stamp everything. I bait stamp the photos. I had the digital images of the medical visuals bait stamped and sent over. I never want to have any issue where a defendant is claiming that I did not properly disclose to them any potential evidence that I'm going to want to use at trial. Barcode scanning is good. The video depositions, I encourage all practitioners who are taking these cases to a modern jury for trial to videotape their depositions of their defendants. It is a much more effective tool to impeach a witness who tells two tells of a story, one at a deposition and one at trial instead of the old fashioned way of having the lawyer read back the question and answer and then asking the witness what's the truthful answer. Let the jury see the body language of the witness who is giving the improper or wrong answer. Let them see them lying and what their body language in their eyes look like when they're telling something that's not accurate and is different than what they had just told the jury before you played the clip.

   Demonstrative evidence is basically duplications or models of original events. They are visual aids to use in the courtroom, whether they are used for explanation or illustration during oral testimony. They don't have to be actual evidence. They can even just be marked for identification purposes. Charts are great. Charts I love because bar charts show in a real visual manner differences in years or differences in types of treatment or whatever it may be. Pie charts are great models and maps representing locations of incidences are wonderful tools. Reconstructions are wonderful tools. Photographs are great. Understand that most jurisdictions the court will take judicial notice of a Google map image or the court will take judicial notice if it's a governmental website that you're eliciting the information from, but I'm a big believer. Make sure that you lay your proper foundation for the admission of the evidence. And that has to do with questions that you're going to elicit from a witness as to whether the model diagram, or whatever the evidence is, is a fair and accurate representation of whatever they're trying to show at the time.

   Make sure you prep the witness to answer that question affirmatively so you've laid your proper foundation. Make sure that the evidence is relevant and material to the issues in the case. And the probative value of the evidence is not going to be substantially outweighed by the danger. It would unfairly prejudice the opposing party. That's always going to be the ultimate question, whether the probative value outweighs the prejudicial value to the opposing party, as it typically is in hearsay exceptions and other evidentiary issues. Also, you want to make sure that the evidence that you're going to present to the jury is not going to be misleading. Taking a photograph and changing the shadows or changing the brightness in the contrast would not necessarily be considered misleading as opposed to taking a photograph and, say, adding something in that wasn't there or changing the size of something that might have been there that was bigger or smaller in person. Those were things that you really need to be wary of when you're using your demonstrative visual evidence.

   It must past the convincing and satisfactory type of evidence test. Understand this very, very, very important idea or fact, that jurors, 15% they retain what they hear. Okay, 15% jurors retain what they hear. 85% they retain what they see and what they hear. 85% when you add in the visual component. It's key to spend time on it, especially in today's day and age. Timelines are great tools. I use them for my openings, for my closings. I might use them in conjunction with the direct examination of my client or expert where I'm then interspersing the timeline that is constantly being displayed on the screen with the records that are going in chronological order as I take the witness through the various scenes that I've prepared them for in doing their direct examination. And that's right, folks, I do my direct examination based on replicating scenes in various time periods in the person's life to show the jury the effect of the damages.

   I don't think that sitting there with the witness saying, "Well, what happened next? And what happened at that point?" Jurors will have a much more visceral reaction to things that they can put themselves in the shoes of the jurors in certain scenes. For example, one scene might be two years after the incident when they're all of a sudden supposedly all past this and yet they can no longer take the bike ride that they took every summer for 25 years with their grandchildren because this injury has caused them to no longer be able to ride a bike, period. And you're two years out and that feeling of when the whole family goes on their summer trip on the bike trip, now he's staying behind. And that feeling of as they all settled out onto the road and said goodbye to him and he went back into the house and he sat down in the air conditioning and put on the TV. And that scene right there might be a scene that I might use as a direct examination.

   Remember, jurors don't think about the details at the end of the day. It's more about getting your argument across and presenting your argument in an effective storytelling manner that will make the jurors come to your side of the conclusion. And you don't need all of the jurors. What you do need is the jurors that are on your side. You need to give them the ability, the ammo that they require, to arm themselves appropriately to defend your cause when they get into the jury room and other jurors say something, that say, "Well, what about this?" And then you need to give the jurors who are on your side the ammo to say, "No, Mr. Blitz said that's because of this and that's because of this." You need to give them the ammo. That's what you're doing. You're giving them the ammo to fight for you when they go into the jury box.

   Very important, so timelines are great. Animations are great. Medical illustrations, showing the jury the body part injured. There's some incredible apps now that will give the jury the 4D version of the injured body part and why it's so important mechanically and anatomically to the body and why it connects to that other body part that is now affected by this injury. And while that body part goes to this body part, and it's very much the human body concept as a whole, which was of course made famous through Mo Levine, but it's done in a visceral manner by using some of the modern technology that trialers in the past would only have wished to have had the capability to show the anatomy that you're claiming is injured in action. Everything is in action, remember that. You are showing rather than telling. I love to take the injured body parts, particular film, the MRI, the x-ray, whatever it is. And if it's an MRI, as you know, there'll be many, many different pictorial images that are taken as part of the scanning, but there's going to always be one slide that will best show the injured body part.

   And that's something that what I do is I send the image. You have your expert look at the films prior to trial and have your expert tell you which image is best suitable to show the jury the injured body part. And then I take that image, I turn it into a picture, I blow it up, I enhance it, I change the brightness and contrast. And so that way a 10 year old can see that that is different than the other side's body part because the injury is so clear and magnified. I use a laser and I put it right into my TrialPad and then it's all presented as part of ... The best thing about TrialPad is I can have one folder for my opening evidence and then I'll have one folder from witness A's evidence and witness B's. And then at the end of the case I have everything on my iPad.

   First of all, it saves my back so I don't have to walk around with thousands and thousands of pages of documents like I used to, but then I can then create my summation based on all of the evidence from all of the folders that are in TrialPad from the prior testimony that I elicited during the trial. The imaging software, there's so much free and good imaging software that is out there now that a layperson can make sure you get your MRIs or your films on CD. You upload the DICOM images, you get one of these free programs that are out there now, and you can do all of this yourself in your office as you prepare for your trial, after your expert gives you the one that would be best for you to work off of. Let's talk about openings. Your opening statement should be done way in advance. You should seek rulings in advance on issues that you wish to address. You should make sure you do not use legalese.

   You should tell a story and you should always keep it moving with action. I do it in terms of time. It's okay to jump through time. Picture a movie where you're seeing the end of the story, then you jump back to the beginning of the man's life, that type of idea. The way I frame my opening statement is I focus on the defendant's actions or inactions all the way up until the incident that occurred and stay solely focused on the defendant's actions up until the incident that occurs. And then once you get to the incident, then you tell the story of the plaintiff. It's important in personal injury, in medical malpractice cases, to set your theme and have your safety rules that are being violated as a result of the harm caused by the defendant. So it's important to figure out your safety rules in advance. I use the David Ball from Damages framework for opening, where I discuss the safety rules and then I discuss why the defendant's actions violated the safety rules.

   And what the defendant could have done to not violate the safety rules and how the result would've been a lot different if only the defendant had not made a decision that was not the safest decision. And the sentence that I just said is a crucial key point. The defendant made a decision that was not the safest decision and it was a decision that the defendant made at some point during the course of this action that led to the case where a decision was made that led to a negligent act. And that's important to make clear to the jury during your opening. You explain what the defendant did and how it caused the harm in the case. If you get objected to, keep your cool, keep your rhythm, keep your focus. Wait for a ruling and keep going. We didn't discuss when I was talking about jury selection about money, but you had spent, I assume, a good amount of time explaining that money is the only remedy our system has for any harm and loss caused by the negligence of someone else in the community.

   And you need to keep in mind money throughout all aspects of the trial, including your opening statement. Make sure you speak clearly and make sure you awake the reptile in the jurors. And what that means is I would encourage you to read the reptile book, but that you want the jurors to start understanding that the harm caused by the defendant's bad act must be put to a stop and end or else it will cause destruction and mayhem to them, and their children, and their family. And they have to stop them and others like them from committing these bad acts or the community will be in danger. And it's very much tied in to the idea and notion that the jury is the conscious of the community, so prepare your checklist. I tend to write my entire opening out and then I take that and I write an abbreviated outline. And then I take that and I just write certain words.

   And then I might walk into the opening statement holding a one page list of words or nothing at all because by that point I know my case cold. And I know that I will be more effective if I speak off the cuff than I would sticking to an outline. And it's never really off the cuff because the words that you have on the piece of paper are setting the course or providing the trail of where you want to go and where you want to end up. Your order of witnesses and who you're going to call and when is very important. You should decide early who you're going to call to testify in what order would be most preferable. Decide when to call the plaintiff, when to call the defendant, if you're going to call the defendant in a plaintiff's case in chief. And keep in mind that if you call the defendant in the plaintiff's case in chief, you could potentially lose the ability to ask leading questions to him unless he's treated as a hostile witness. I tend to call the plaintiff first.

   I think that it's important for the plaintiff to set the narrative as to what this trial will be focused on and set the story based on my terms and not the other side's terms. And primary listening and primary ... Remember, they're only retaining small bits and primary is important. So what they hear first, first impression is important. So I set the tone and I set the story by putting the plaintiff first. You also need to figure out when to call non-party witnesses. And of course I realize, and I understand for most practitioners, a lot of this stuff depends on about scheduling and about conflicts of scheduling. And hopefully you need to deal with all of that in advance and you hopefully have a court that will be sympathetic to the attorney's plight of scheduling conflicts that are so innate in this line of business that we're doing because we all require our experts for these trials. And our experts are very important, busy people who have their own lives and practices. And especially even non-experts and non-party witnesses become even more difficult to schedule.

   So who you want and what you end up doing could be two very different things. The art of crossing a defendant physician is a skill that takes a lot of practice and a lot of preparation. The more experienced the physician or expert for the other side is at testimony at trial, the harder I find it to be, even though there might be thousands of pages of collateral testimony out there that you can use to impeach. They've seen it all and you need to be really wary of the experienced testifier as opposed to someone who has rarely testified before, where a skillful attorney can use various tricks that they have not seen to try to trip them up. It's important you index your deposition transcripts in advance. Make sure the plaintiff, your client, has a copy of the deposition transcript well in advance of trial. Make sure they've refreshed, they've read it. Make sure that they're not going to give any answers that's going to contradict their prior testimony.

   And also, though, you need to prepare them for the event that they do give conflicting testimony from a previous deposition and how to adjust to it when a defense attorney goes to it to impeach them. And the worst thing that they can do is deny that they ever said it or that the attorney's making it up, of course. They made a mistake, and they dealt with it, and they were wrong, and they're human, and they're fallible, and whatever it may be. Ever under any circumstances provide any written or verbal answers to a witness. What you want to do is you want to suggest to a witness a more appropriate way to give an answer that they already gave when you asked them the question. It's not you're giving them answers. You're giving them more appropriate ways to elicit the information that they already had in their brain. And then of course you want to make sure you discuss issues that you anticipate that they will have to deal with on cross examination. And you're crossing them in your witness preparation.

   You're crossing them much worse than they're ever going to see at trial so that you are confident that when they get up to that cross examination in front of that big, bad lawyer, and the most importantly they're confident when they get in front of that big, bad lawyer at the time of trial, that they will have never have seen something as bad and as ruthless as what they saw in your conference room prior to trial because you prepped them like a ruthless animal because you need to make sure that they are prepared for everything. Explain as detailed as possible to plaintiff the circumstances of the trial, who will be present, the layout of the courtroom. The judge will be sitting here, the jury will be sitting here, wear your mask, make sure you leave time for when you go into the courthouse for security, be respectful. If the judge talks, you be quiet and listen. All of these things that are so germane and obvious to us as practitioners, to layperson you have to keep in mind that this is probably the first time they've ever even entered a courtroom.

   Explain to them it's okay to be nervous and most people are before they testify in court for the first time. Make sure the plaintiff has seen the courtroom. Go with them before they walk in to testifying for the very first time. Tell them where they're going to sit and where the jury's going to sit. Test the microphones, test their voice against the echoes in the courtroom. Instruct them not to exaggerate or guess and have them admit if an answer's not known. Make sure they turn off their cell phones and their audible devices, of course. Have copy of prior testimony to give to the judge, if necessary, copies for the court, adversary. All items you wish to use, make sure you have copies. And if you refer back to the demonstrative evidence, make sure that you're referring back to the actual number that it was given in terms of its identification or admission so that the record is clear later on. And that you're not disrupted by the court to say which exhibit number was that because that's happened to me before.

   I think it's very key for adversarial witnesses during cross examination to answer questions in a yes, no format or, if they're unable to do so, to have them tell you. You want to control the witness, you want to control the exam. You use the system to distinguish questions that are vital to get out, first questions that you will ask if you have the time during cross examination. I tend to use different colors of highlighters, red being things I definitely need to do, orange being things that I should do, blue being things that if I have time to do, green being things if I'm running out of things to say, or whatever it may be, or other hybrid that would come about based on answers that were elicited in previous questions. For summations, sometimes a chart is helpful. I use a word doc and add up either future treatment, cost, years, economic, evoke rehab opinions.

   I try to put it all together and show it to a jury so that they can see it written in clear language, spaced out, normal English, not legalese, big, black letters. Sometimes I might end a summation with just a photo, or a video, or a reading from a prior EBT transcript. You don't want go overboard and you want to know when to stop. You only want to give information and you only want say words that you think are necessary for the juror to rule in your favor at the end of the case, period. Nothing else should be elicited. And if you have nothing else to say, you just say thank you and sit down. I like to go through the key evidence and I will sometimes use a screen to highlight certain words in a record that I want jurors to focus on, but you also have to keep in mind that you might want jurors just to focus on you, not other evidence.

   So if you're going to use a screen and you're going to use demonstrative evidence during your summation, you might want to do it in a format that gives it a blank screen. At times you want them to focus on you and then put up the record the times that you want it to focus on the record, but just remember they can't do both. So you have to be mindful of that. And you don't want to feed in too much information. It's okay if you miss out on a couple records that you wanted to get out, as long as you have a smooth story. It's important that you get them out and respect their time than you get out every detailed piece of item that you think might possibly be relevant in them making a decision.

   Keep in mind the theme, keep in mind that the rules that your claim were broken, the safety rules, and just focus on the evidence that proves those main points, those main themes, those main violated rules, the rules that you spent months and months and months putting together as the best rule for the circumstance that shows the most harm caused by the defendant's violation of said rule. As you tell the story, bring the evidence back that they saw in opening, only this time highlight and blow up. Let the evidence prove what you are saying is true. So you leave it to the evidence and you tell them, if you don't believe me, what I say in summation is not evidence. Look at just the evidence and you encourage them and remind them to bring that evidence into the jury room.

   And then you keep reminding your jurors, who are in your favor, that if another juror says this bad thing about this case, you remind that juror that Mr. Blitz said this. And that is an explanation to that. And Mr. Blitz said that. You are just giving them ammo to fight for you and fight for your client in that jury box because without the ammo they're not going to be able to persuade the other people in that room. And that's what this is, this is a game of group persuasion and mob mentality decisions where you will soon understand and appreciate that a jury will make a decision as a group. That will be very, very, very, very different than if they were to have made that decision on their own, that the group mentality sets a tone where you want to arm jurors so that they're winning the group arguments so that the other people in the room who were on the fence want to go to the winning team.

   You always want to go to the winning team and you want to make sure that you have given the jurors on your side enough ammo, where the independent jurors on the fence think that your jurors are the winning team. And how do you do that? Just keep instilling into them the points that they need to support your argument. And you go through and I failed to mention in preparation of the trial you've already identified and workshopped and focus grouped the five or 10 or whatever it is biggest weaknesses in your case, the issues that you think will hurt you the most. And you're addressing them and you've turned them into strengths. And if you haven't turned them into strengths, you've reasonably explained away those issues. And you've focused on those issues in summation and given your jurors in your favor the ammo they need to fight off each one as they come at them in the jury box.

   So every time they come at them, bam, they've got something else to go against it. Bam, Mr. Blitz said that, bam, Mr. Blitz said that. Walk them through the anatomy going between the app and the medical records, confirming that everything that you said is true. Guys, the modern juror has empathy. The modern juror will be on your side if you do this right. The pandemic has allowed this society to gain a better understanding for people's suffering that I think could be advantageous to the plaintiff's attorney if done in a respectful, reasonable, efficient format, where the jury now has a greater appreciation for loss, pain, and suffering because we all suffered as a whole as a society. And we saw our neighbors and friends get sick and die from the pandemic and you should be able to tap into the jurors greater in touch with their empathy and use that to your advantage during trials. I hope this has been helpful. Should you have any questions, please feel free to email me. Justin, [email protected], S-C-H-U-L-M-A-N-B-L-I-T-Z.com. Thank you very much. God bless, signing off.

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