Dan Berexa's Tennessee Law Blog

The Recession and its Impact on Juries and their Verdicts.

Times are tough on the economic front. Consumer confidence, 401(k)'s, the Dow and home prices are down. Unemployment, bankruptcy, foreclosures and anxiety are up. Former engines of the U.S. economy have collapsed while others, like Chrysler, are on the verge of failure. The banking system nearly collapsed. Major layoffs are daily news. Even people and companies that are still in good shape have a completely different outlook on the economy, the stability of our institutions and the ability of our government to help resolve the crisis. Conspicuous consumption is out of vogue and cash is king.

How does a bleak economic picture impact jury verdicts? Will jurors become more conservative? Does a case in today's economy have the same value it would have had if it went to trial 18 months ago? Will jurors moderate verdict amounts, or be more likely to find in a certain way if they believe (right or wrong) that their verdict could put a company out of business and more people out of work? A jury that may have been willing to hit Chrysler with tens (or hundreds) of millions of dollars in punitive damages a few years ago might not want to render the verdict that they feel could literally break the company and do further damage to the economy. Some parties who are perceived to be a cause (or beneficiary) of the current economic climate might receive more hostile treatment in the jury room than another who is viewed as a victim?  

Jurors don't ignore what is going on in the world, or their own lives, when they start to form impressions while considering evidence. The outside world also makes its way into the jury room during deliberations. We know that from post trial juror interviews and watching mock trial deliberations. Major events effect us all and often alter our outlook. Other than the Iraq war, and the Virginia Tech massacre, probably the last major national trauma that touched every American, as the current economic situation has, was 9/11. While the causes are dissimilar, and the damage different, the magnitude of the effect is similar and cannot be ignored. 

Ronald Miller of the Maryland Law Blog has asked the question: How will the recession impact jury verdicts? It is a good question. Another question that trial lawyers should also consider is whether they should approach some aspects of a trial a little differently given the current economic situation and prevailing climate?     

Dan Berexa
Nashville, Tennessee

Prof. Paine's "The Ten Commandments of Direct Examination"

This time of the year I try to do a little tidying-up. In the process found a March 2000 issue of the Tennessee Bar Journal that I kept because the cover article was Don Paine's  The Ten Commandments of Direct Examination. This is a great read for and trial lawyers and law students. It compliments Irving Younger's Ten Commandments of Cross-Examination, which I know is still very popular, because I get a lot of hits on my post Revisit a Classic - Irving Younger's "The Ten Commandments of Cross-Examination"

For those of you who have never had the pleasure, Professor Donald F. Paine has taught (and entertained) generations of law students, lawyers and judges. A more gifted teacher - I have never seen. 

Dan Berexa
Nashville, Tennessee

Neat (and Cheap) Trick for Video Depositions

The Trial Technologist's View is a great source for information and tips on trial presentation. Blake Boyd provides great examples of techniques to help ratchet up your presentations for trial, mediation or arbitration. For example, a recent post shows a clip where a video deposition, taken for medical proof, included filming images from the doctor's website. The website contained a demonstration of how a disc surgery, like the plaintiff's, was performed.  Apparently the videographer shot the image directly off the screen of the plaintiff's lawyer's laptop during the deposition. Low tech, cheap and effective.

Dan Berexa
Nashville, Tennessee

More on Social Networking Sites

In my last post I gave a few examples of how social networking sites can be a great source of evidence. If you would like a little more information on social networking sites, trial lawyer and jury consultant Anne Reed has a great article on her Deliberations blog: A Trial Lawyer's Guide To Social Networking Sites.

Dan Berexa
Nashville, Tennessee

Social Networking Sites Can Provide Key Evidence

Prospective employers, law enforcement and college admissions departments are examining social networking sites. Are you?

Social networking sites like Facebook, MySpace and Xanga  can be treasure troves of evidence relating to parties or witnesses. The photos, videos or written posts placed on a social networking site can devastate a case. According to press accounts, early this year Joshua Lipton learned this lesson the hard way. Lipton, who was a defendant in a drunk driving case, was confronted at his sentencing hearing with pictures from a Halloween party, taken a few weeks after his alleged offense. In the photos, he wore a "prisoner" costume complete with "jail bird" written on his orange jumpsuit. Someone posted the photo on Facebook and the prosecutor got a hold of the picture prior to the sentencing hearing. Based on an account in The Everett Washington Herald, the Judge was outraged by the defendant's lack of remorse (for the offense and injury to the victim) and gave him a 2 year prison sentence. 

A few years ago I defended a car wreck case where the plaintiff claimed a neck injury. A week prior to the wreck, the plaintiff made a diary entry on a social networking site describing her long history of severe neck pain and recent course of treatment. The case settled quickly and cheaply after the plaintiff was confronted with the post in her discovery deposition.

There is no limit to what a person may say (or be seen doing) on a social networking site. A college student who faced expulsion for misconduct traced through his posts stated “I never thought something on Facebook would get me into trouble out in the real world.” His mindset is not uncommon and many users don't realize their posts may come back to haunt them when they look for a job, apply to college or appear as a witness at trial. 

Dan Berexa
Nashville, Tennessee

From the NITA Blog: 21 Questions to Consider When Starting a Deposition

James L. McCrystal Jr.'s article contains some great suggestions for covering the "ground rules" at the beginning of a deposition in a way that causes the witness to commit beyond the usual "yes" and "no" answers. The result is better communication during the deposition and more effective impeachment if the witness changes his story at trial. See 's McCrystal's article in NITA Blog

Dan Berexa
Nashville, Tennessee

Google Earth Can be an Effective Tool for Lawyers

A recent post in The Illinois Trial Practice Weblog (Evan Schaeffer) discusses using Google Earth aerial images at trial. A few years ago a student team used Google Earth in a law school mock trial that I was judging. It was used during cross-examination to show all of the truck stops and rest areas that the defendant trucker passed before illegally parking on the side of the interstate. The images of the accident scene were also helpful to explain how the collision occured. The moot court problem was based on a real wrongful death case that my firm handled a few years earlier. The driver claimed he parked on the side of the road because he couldn't find a place to park while he slept. 

Since then I have used Google Earth for accident cases and as a part of asset investigations. The ability to "fly" from one location to another beats static aerial photos. It is cost effective and by now jurors are used to seeing Google Earth on the news. (It is also a nice way for someone buying real property to see what else is in the neighborhood. You never know what may be obscured by tree a line or ridge.)

As Schaeffer points out, you do have to work out the admissibility issues if you are going to use Google Earth visuals at trial. See his post for resources regarding laying a proper foundation.

Dan Berexa
Nashville, Tennessee

In Addition to Civil Procedure and Evidence, know the "Brain Rules" for Best Results in Court.

 In the new book, Brain Rules, Dr. John Medina describes what scientists know about how our brains work. Medina, a molecular biologist, offers 12 "Brain Rules" that business leaders, parents and teachers should know. The great website for the book discusses each of the rules in detail and includes entertaining videos which illustrate the rules. 

How does this relate to trial practice? Well, in the end, it is often a brain, or a group of brains, that are not only our audience, but also the ultimate decision maker, whether it be a judge, jury or arbitrator. Knowing a bit about how the brain receives and processes information can help a lawyer be a more effective strategist, communicator and advocate. Garr Reynolds, presentation guru and publisher of the blog Presentation Zen (and the book by the same name) focuses on the principles from Medina's book that apply to presentations. In a recent post, Reynolds includes a number of links to excerpts from the DVD that accompanies Dr. Medina's book. Reynolds also created the neat little slide-show below which focuses on "The Rules" as they relate to presentations. 

If you have trouble with the far right edge of the slideshow being cut-off, click the "view" button under the slide box.

| View | Upload your own

Dan Berexa
Nashville, Tennessee

Revisit a Classic - Irving Younger's "The Ten Commandments of Cross-Examination"

Professor Irving Younger has been gone for 20 years. He was a legendary lecturer who drew from his experience as a prosecutor, private practitioner and trial judge. Like many of his lectures "The Ten Commandments of Cross-Examination" is timeless. Younger's wit, intensity and use of examples from well known historical trials provides for an entertaining and memorable lecture on destructive cross-examination. If you try cases, and have never heard Younger's Ten Commandments, you've been missing out (and probably making unnecessary mistakes). Even if you did listen to Younger years ago, track down an audio or video of the lecture. It's a great review for the experienced trial lawyer and I guarantee you will enjoy the time spent with an old friend. DVD's of many of Younger's lectures, including The Ten Commandments, are available through NITA. For a quick review of Younger's commandments, try the Ten Minute Mentor. The presentation is part of a series of quick (and free) on line CLE programs sponsored by the Texas Young Lawyers Association and TexasBarCLE. Clicking this link will lead you to a short video (or audio only) presentation by Texas lawyer Robert Witte. While no substitute for the real thing, it is worth a listen next time you sit to prepare your cross-exam. 

Powerpoint Presentations Can Spice Up a Mediation

A good PowerPoint presentation can be an effective tool at trial, in arbitration or in a mediation. The choice of words, images and design elements such as background color can help tip the scales in your clients favor. Click here for an example of a PowerPoint that was created by Blake Boyd for the mediation of a dispute between a condominium association and it's insurer over payments for storm damage. It would be easy to write a case like this off as a boring dispute over an insurance contract. However, the presentation paints the insuror in a negative light and plays to the viewer's sense of justice. Boyd gives some good pointers for putting together effective PowerPoint presentations and has a number of other examples at his blog The Trial Technologist's View. He also includes examples created with Keynote, the Mac presentation software.