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Pre-Trial and Trial Posture

As trial lawyers it is incumbent upon us that we proceed to trial with haste. To that end it seems fitting that we pursue each and every case as though that case is destined to be tried. I think that a lot of plaintiff's attorneys proceed with the mindset that their cases will settle and thus they don't want to waste their time prepping a case for trial which will likely settle. This is not the mindset we should be accustomed to. Beyond moving forward with the intent of trying the case we should also progress forward with the intent of putting on our trials as soon as we possibly can. To this end, we should never seek a continuance from the court or request as much from opposing counsel. As soon as we request a continuance from opposing counsel or from the court we demonstrate our lack of initiative and lack of resolve. Moreover, by asking opposing counsel or the court for permission to continue the matter we present our case from a position of weakness. After our request for a continuance has been granted we then "owe the opposing counsel a favor". Better to not be in a position of owing the other party anything. Thus, we should never ask to continue our trials. Moreover, as legendary trial lawyer Don Keenan does, we should be telling the court and opposing counsel right from the beginning that we want our trial and we want it as soon as possible. We should be reverberating this message from the very inception of the case forward.

Thus, to maintain this position of readiness for trial we need to be ahead of the other players at all times possible. After we interview a witness we need to start preparing that witness's direct examination. We ought not wait until trial approaches begin the preparation process. By the same token, after we conduct a deposition we need to prepare our cross examination for the witness just deposed. We need to be filing our limine motions well in advance of trial. In this way we are not pressed with motion work on the eve of trial. Moreover, after we prep our cases we have a better understanding of the true strengths and weaknesses of our cases. As a result of this early preparation we will have less inclination to settle our cases out as we will have already done the hard part in preparing the case for trial. So we need to get our trials prepped up and ready to go right from the inception of the case.

Given the fact that we have no inclination of requesting a continuance by the same token we should not be interested in conceding to the Defense's requests of us to continue trial. If we do stipulate to the defense's requested continuance we should only do so if the Defense is willing to concede something of value in return. There must be not only an exchange for our generosity but this exchange should leave us with more in return then we had initially. By making the concession we should receive the benefit of the bargain. For example, if the Defense requests a continuance of us then we should only stipulate to that continuance if the Defense is willing to stipulate to the admission of all of our proposed exhibits. As Don Keenan does, have your requested concession of opposing counsel in mind before they even make that routine phone call requesting as much. Whatever you do don't give the Defense any concessions without receiving a concession of equal or greater value in return. As soon as you do so you condition the Defense to an expected type of behavior on your part.

There will be times when the Defense will make repeated request to the court for trial continuances. In these instances you may want to consider filing a motion to disqualify defense counsel. As a matter of due process your client has the right to his or her day in court and has a right to a "speedy trial". Given this constitutional guarantee you are well within the purview of the law in filing a motion to disqualify opposing counsel if he pursues endless delay of the proceedings. At the end of the day we need to remember that the litigation process can be overwhelmingly stressful for our clients. During the litigation process the client's life is held in abeyance. The client needs finality. Seek to have your trials heard as soon as possible to demonstrate resolve and to give your client the closure he or she desperately needs.

Once you are in trial you need to keep perspective as to what the strengths of your case are. Don Keenan has a phrase he calls "trying the lie". This strategy is similar to the polarizing techniques offered by Rick Friedman and discusses at length in Rick's publications. When you "try the lie", as Keenan puts it, you look past the mere incident or accident which occurred in your case. Instead, you focus your gaze past the accident, you look past the injury caused by the accident itself and focus on the injury caused by the Defendant's lying to the jurors. The idea here is to create resentment in the jurors towards the defense. You impress upon the jurors the importance of integrity within the judicial system. You impress upon the jurors the significance of preserving truth in the justice system and that without the truth there can be no justice. You then focus your trial on the defendant's attempt to hide the truth from the jurors. This isn't something you can do in every case but this is a technique you can and should use when you catch the defense in one or more lies. That being said, pursue this route if the lie is obvious. If the jurors are going to see the lie as a lie then you push this theme throughout trial. Convince the jurors that it is incumbent upon them to send a strong message to the Defense that this type of lying and disrespect for the justice system cannot go unpunished. Instill upon the jurors a sense of urgency to stop this type of behavior and to stop this behavior by way of a strong Plaintiff's verdict.

Another big theme to consider using in your trials is that of Betrayal. In order to show betrayal you must first show trust followed by vulnerability which then ultimately culminates in betrayal. Betrayal speaks to jurors. Betrayal is "visceral" as David Ball puts it. It speaks to our inner cores. It wakes up our emotional state of being. We have all been betrayed at some time in our lives and the idea of betrayal arouses emotion and passion in each of us just as it will each of the jurors. Fortunately, you can find betrayal in virtually any case. To demonstrate this betrayal first demonstrate trust. Trust is an element of any relationship. This can be in the form of Casino and patron relationship. For instance, assume that patron trusts their favorite casino to keep them, the patron, safe. Patron spends countless hours and large sums of money at this casino. As a result of the patron's patronage of the casino the patron assumes the casino will look out for patron's basic health and safety interests. When patron is injured by an employee of the casino and casino refuses to pay for the patron's injuries well then then the patron feels betrayed. That being said, when you conduct your direct examination don't force your witness to use the word "betrayed". If the witness does not feel betrayed then don't go this route. Remember, that in trial you want your presentation to be as authentic as possible. Do not attempt to create artificial feelings. However, when you talk to your witness in your office, leading up to trial, you can ask your witness if he or she feels betrayed. Upon being asked this question your witness might ponder for some time on the issue. The witness might realize that betrayal is in fact just what she or he is feeling. Now when you conduct your direct examination you can ask your plaintiff how the witness's actions made he or she feel. Your witness might likely now respond that he or she feels just that, betrayed.

To determine what the best theme for your case is, whether that be "trying the lie" or "betrayal" it is best to start thinking about what your case is really all about early on after taking the case on. This may seem easy but often isn't such an easy process. What I commonly hear from guys like Don Keenan and David Ball is that you need to be able to express what your case is really all about in a concise statement. Your statement should be so concise that it fits into one, two, or three sentences. As lawyers we tend to over analyze a lot of things which are undeserving of as much. When you think about how you can describe your case in one or two sentences think about how your non-lawyer neighbor might describe the case to his or her husband around the dinner table. In other words, your case description should be very layman. Once you can describe your case in a succinct and plain statement then you really have a good handle on what your case is all about. After you understand the theme of your case you can progress forward with discovery, depositions, witness preparation, cross examination preparation, and all of the other aspects of trial preparation. Without the context of what your case is about you cannot prepare in a focused manner. As Abraham Lincoln said, "if I have six hours to chop down a tree, I spend five of those hours sharpening my blade". Thus don't wait until the eve of trial to develop your theme. Figure out what your case is all about right from the inception. Once you have your theme nailed won then you can begin the trial preparation phase. Of course, as you develop new ideas and make new discoveries along the way you can make adjustments as trial approaches. In this way you will truly have a refined statement to guide your trial strategy at your trial date approaches.

The information above comes from the teachings of legendary plaintiff's trial attorney Don Keenan. I write these blogs/articles for my own benefit. I find that by writing these articles I enhance myh own knowledge of the subject matter. Don Keenan is truly the guru of modern day plaintiff's trail advocacy. Of course there are other great trial lawyers who are also tremendously talented. That being said, Don Keenan is phenomenal. Don Keenan lectures around the country. He has also written numerous excellent publications. I encourage you to read any of his books or attend any of his lectures.

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