New and Innovative Trial Techniques

By
Randall H. Scarlett, Esq.

When I was first asked to discuss the topic of new and innovative trial techniques, I reflected upon techniques I successfully employed in trials, including Wright v. St. Rose Hospital ($26,000,000 awarded brain injured child as a result of failure to diagnose meningitis), In Re Estate of Ferdinand E. Marcos Human Rights Abuses, MDL 840, ($1,200,000,000 in exemplary damages to mandatory class, and millions awarded in compensatory damages to direct action human rights victims suffering torture and other atrocities during the period of martial law in the Philippines), and Warfield v. Peninsula Golf & County Club (discrimination action brought by plaintiff whose family membership at a country club was terminated after her divorce from her husband. California Supreme Court ultimately ruled that women could not be discriminated against by clubs claiming to be private).

Not surprisingly, many of the techniques I have employed can hardly be described as "new" or "innovative". Time proven techniques, properly executed, can assist even the seasoned trial lawyer. Nonetheless, since we are each individuals, any technique we employ will uniquely reflect our own persona and will therefore be new and innovative to a certain extent.

Joe Jamil, Gerry Spence, and Leonard Ring were not born in a courtroom to my knowledge. Despite any impressions you may have had, these impressive trial lawyers were born in the delivery room like the rest of us. It was only later that they made their way in the courtroom.

From the date of earliest reported civil trial, lawyers have been employing techniques in order to better illustrate and persuade. Everyone has their first trial. Me, you, Joe Jamil, Gerry Spence and Leonard Ring all did have, or will have our first trial. At these trial lawyers conventions, we come and learn from one another those techniques that others have successfully employed. Whether a particular technique works for you or not depends solely upon your ability to comfortably use the technique.

INDIVIDUALITY

There is only one Joe Jamil, one Gerry Spence, there was only one Leonard Ring. If you were to attempt to imitate Gerry Spence - to pull inside yourself and discuss with the jury the concept of the fear in a courtroom as only Gerry Spence can do - you would probably lose your credibility with the jury. As you are aware, the jury collectively misses little, if anything. If you try to be anyone other than yourself, the jury will label you a phony.

The jury will only believe you if you are truly believable. You will not be believable if you try and imitate someone else. Hardly "new" or "innovative" the primary message in any trial is to be yourself.

If you are inexperienced - the jury will pick up on that before you finish selecting a jury in voir dire. If you are scared, tell the jury you are scared. A trial is a scary process. Few of us are prescient enough to predict with unerring accuracy the outcome of any trial. However, there is one fact each of us innately understand: If we are unable to connect with the jury, to communicate with the jury, the chances of a successful outcome are slim to nil. In fact, if you try to act like a "big" lawyer by imitating one of the trial masters, you will lose your credibility with the jury and you will lose your client's trial.

Don't be afraid to show the jury that you are a caring, loving, and decent person. It sounds basic - certainly not "new" or "innovative" - but many lawyers strive to act professional and "above it all". Every aspect of a trial, from crossing the street to reach the courthouse, to closing statement, must be geared toward jury perspective. Credibility is the most important tool of a trial lawyer. Never, ever, do anything that will lose your credibility with the jury.

Jurors enter the courtroom with ideas and attitudes shaped by their life experiences. They don't check their experiences at the courtroom door. In fact, they rely on their life experiences when making tough decisions about right and wrong, about compensation for injury or death.

While many states may be leaving their recession behind, jurors don't quickly shed the lessons of tough times. For many jurors, the prosperity and promises of earlier decades have given way to cold, harsh, tough times. Jurors in the 90's are tough customers. They certainly aren't eager to roll-over for trial lawyers.

Jurors have been indoctrinated by the insurance companies and by politicians in alignment with the insurance industry - literally bombarded by a massive and largely successful propaganda campaign persuading them that lawsuits are not a treasured means to vindicate wrongs, but are rather a caustic burden on society and the economy. Jurors have been told that litigation is driving up the costs of goods and services.

The tort "reform" (regression) movement has produced unfavorable changes in the law and juror hostility towards the trial of cases. Based on the responses to juror questionnaires that I have received, it is easy to conclude that most jurors today believe that our society is generally "sue happy" and that there are too many lawsuits.

Publicity generated over large jury verdicts evokes in the general public hostility in its most concentrated form of disgust. Large judgments are ripped out of context and then sensationalized by the proponents of "tort reform" such that they are exaggerated and remembered in bits and pieces. These bits and pieces are indelibly etched in the memories of each juror. The image of the "trial lawyer" manipulating jurors into awarding huge sums in cases without merit is rampant and powerful.

Clearly, these hardened times and social conditions combined with the "tort reform" spending spree have resulted in making some jurors extremely skeptical of a plaintiff's case, and making

other jurors skeptical of awarding funds for general damages, such as pain and suffering and emotional distress. For good or for bad we lawyers are increasingly entering jurors' homes through television. As each of you know, virtually every prospective juror in this nation saw something of the O.J. Simpson trial. "Court T.V." and other programs regularly air. Add to the real, the unreal of "L.A. Law", "Law & Order", "Picket Fences", and the like. The point is that jurors all have some preconceived notion of what a trial is about. In reality, those notions are rarely correct. It is our duty to correct jurors' mistaken notions and empower the jury to reach a just result.

Clearly it is an essential goal for every trial lawyer to (1) inspire and influence the jury; and (2) instruct and empower the jury.

When we instruct and empower the jury, we focus directly upon the jurors themselves, their duties, powers and use of such duties and powers in the name of justice.

When we inspire and influence the jury, we focus on the dominant emotion of the case, the theme of the case, the evidence of the case, and demands of justice in the case itself. In short, a proper presentation of the facts of our client's case. The good news is that jurors really take their job seriously. Research shows that jurors are very interested in evidence and the process of the trial. Too many jurors, however, do not understand their role in the process of a trial. We must inspire and influence the jury.

So how do we do this in a way that is "new" and "innovative"? Well, to begin with, we trial lawyers must target the dominant emotion of the case - the emotion that a jury will tap into when reaching favorable conclusions regarding liability and damages. Next, we must develop a theme that targets that emotion and stick with that theme throughout the case. The theme should be repetitive and easily expressed.

Next, we should ensure that the evidence fits the theme, and demonstrative evidence in particular should highlight and re-enforce the theme and emotion.

Lastly, as you develop the case, a theme should be targeted using all five senses: seeing, hearing, touching, smelling, and tasting.

You have heard these concepts expressed time and again at seminars. People, there is a reason you keep hearing it -- it works!

No less important than influencing jurors regarding the merits of your client's case, is the task of empowering the jury to act utilizing all of their authority in the name of justice.

-Ladies and Gentlemen of the jury, in every city there are a number of buildings. Often times it is said that the tallest building is the most important, but I disagree with this principle.

You, ladies and gentlemen of the jury, are the ultimate purveyors of justice. You are the sole judges of the facts of this case. You are the sole judges of the credibility of the witnesses. You are the sole judges of the amount or quantum of damages which are appropriately awarded by you in this case.

Numerous other examples abound. I took the liberty of pulling but a few for your consideration:
You've all heard of the Lady of Justice who stands blindfolded, not because she is supposed to be blind, but because she is supposed to be impartial to all people regardless of race, creed or color, and she holds the scales of justice in her hand.

If those scales are tipped ever so slightly in (plaintiff's) favor on the issue you are considering, then you must find that issue in favor of (plaintiff).

As I shared with you during opening statement, I have a great respect for our system of justice which permits and provides - it is unlike almost any system in the world - a group of citizens from this community to come into court with their collective wisdom and judgement (in this case if we were to add it all up, it would probably be 600 to 900 years) and to decide such issues as are involved in this case: What the standard of medical care should be in this community and the value, the worth of such precious things as a young girl's life and the value of caring and improvement to that life.

In this regard, there is another feature of the Lady of Justice that I did not inform you of earlier. That Lady of Justice holds those scales in her left hand. For those of you that can visualize her, do you know what she holds in her right hand? She holds a sword, and that sword is symbolic of her duty and her obligation to do justice.

And while you, ladies and gentlemen, do not wear black robes such as His Honor, in this case you are that Lady of Justice. You are the judges, the sole and exclusive judges of the facts and the conscience of this community that will decide this case.

And when you go into that jury room to decide this case, you will symbolically be carrying that sword - and your task will be justice.

You may not have really thought about it, but for many of you, this may be one of the most important days of your lives insofar as your opportunity to participate meaningfully in academic ideals where government institutions are concerned.

Each of us has one vote when we go to the polls. We sometimes wonder how much good that does when there are millions of others voting. Neither you nor I are the legislature, the high courts or the president, who makes the laws. But in this case you were drawn to come into this courtroom, and in this case you have tremendous power and responsibility. It takes nine or more of you to reach a verdict, which I hope will in truth and in fact be a monument to justice. One which will state and set forth what you believe the standard of medical care ought to be in this community. One which will state and set forth what you think about the meaning of such things as quality of human life, dignity and responsibility.

Each of the comments above, and numerous others, have long been utilized by lawyers to reach jurors, empowering them to reach a just result. As indicated above, empowering the jury to realize their role in a case is every bit as important as developing and presenting your case with dominant theme so as to inspire and influence the jury to rule in your client's behalf. It is a concurrent presentation. On one level, the trial lawyer is presenting evidence in such a manner so as to persuade the jury of the merits of his client's case. On yet another level, the trial lawyer empowers the jury to act with all force in the name of justice. It pulls the juror's sense of duty and civic pride into the front of their deliberations. It lets them know that we care and applaud their service.

In July, 1987, minor plaintiff Stephanie Wright, then an 8 1/2 month old child, was twice rushed by her family to defendant Hospital for emergency room care. Stephanie's temperature (monitored rectally) remained between 101 and 103 . She was vomiting and had lost approximately 10% of her body weight by the time of her second E.R. visit. She became increasingly lethargic and was irritable. This symptomology persisted and increased, despite a ten day course of ampicillin, first administered on July 14, 1987. Despite requests by plaintiff's family that the baby be admitted to the hospital, on July 28, 1987, the defendant doctors again sent the child home with a diagnosis of otitis media (inner ear infection).

On July 30, 1987, Stephanie Wright crashed. She was rushed to a different hospital, whereupon an immediate diagnosis of H-Flu meningitis was made. Unfortunately, inter-cranial pressure had built up to the point where Stephanie was rendered permanently brain damaged and spastic quadriplegic.

Following a six to seven week trial, the jury awarded minor plaintiff $26,053,000. The damages included $17,000,000 for future medical care. Defendants contested all aspects of the case, liability, causation and damages. The life expectancy issue was understandably an important one.

Handling an action involving a catastrophically injured child is often times fraught with difficulties. Not only must plaintiff's counsel overcome diverse liability hurdles, but ultimately, damages awarded by a judge or jury may be severely reduced due to a determination of shortened life expectancy.

In essence, defendants hedge their "liability bets" with forecasts of shortened life expectancy. Where liability is established, exposure for significant future medical damages is nonetheless reduced if defendants' experts' prognosis of shortened life expectancy is adopted by the jury.

Of course, certain injuries may indeed result in a greater probability of diminished expected life. However, it is the quantum of reduction that is of true concern. A jury's adoption of the wrong forecast in this regard will serve to deprive the plaintiff of the very funds she/he may need the most. Tragically, the deprivation of funds due to a misplaced adoption of a shortened life expectancy may cause a true reduction of the child's life.

In Wright, I knew that the defense had retained the services of Herbert Grossman, M.D., who employs the so-called "statistical approach" to prognosis of life expectancy. In developing a theme I took into account both the negative and positive impact the statistical approach would have on a jury.

The statistical approach was developed by a small cadre of experts sometime in late 1987, and has been used with increasing furor throughout the 1990's. Experts employing this approach tend to rely on four primary publications for support. In two of the four publications, subjects were persons who received services from the California Department of Developmental Services. All subjects had severe disabilities, and were to varying extent mentally disabled. Furthermore, these publications categorized the subjects based on certain characteristics including mobility, rolling, hand use, arm use, toileting skills, eating skills, tube feeding, and ambulation.

After categorizing the subjects based on these characteristics, a statistical methodology was employed to "estimate" lengths of survival. Simply put, by determining the number of persons living to a particular age (with given characteristics and disabilities), the authors statistically gained a probability "estimate" of the number of such persons expected to survive to the age of interest.

Without fully reviewing the basis for the contentions set forth in the aforementioned publications, the statistical approach to prognosis of life expectancy carries significant jury appeal.

First, it dehumanizes the injured plaintiff. The plaintiff ceases to exist as a living, breathing, human being with needs, and instead becomes a statistical number to be compared with other numbers, each purportedly representing, by category, other individuals similarly situated.

Secondly, the defense expert relying on the statistical approach may garner credibility with the court and/or jury by "humbly" conceding that while she/he is not prescient enough to fully predict the life expectancy of plaintiff with certainty, the probabilities derived from the statistical approach reflect a greater population and are therefore more accurate and trustworthy than other more individualized approaches.

Lastly, the unwary plaintiff's counsel, in a rush to emphasize the tragic injuries sustained by their client, may lend credibility to the defense expert's forecast of shortened life expectancy.

Mindful of these potential pitfalls, I began working early with my pediatric neurologist on the life expectancy issue. Every effort was made to "humanize" the approach. Similarly, significant time was spent with the jury on this issue. During voir dire I carefully questioned prospective jurors as to their impressions and the relationship, if any, between significant injuries and life expectancy.

For those of you with children, I know it is not difficult to remember the pride and wealth of emotion your one and one-half year old boy or girl could bring. Although ten years old, and severely injured, Stephanie Wright was a one and one-half year old (mental development) for life. She too, could bring her parents and family the same feelings of warmth and pride. She too, could live a life with meaning.

Accordingly, two things were at work. First, the jury was alerted to the issue of life expectancy early in the case. The jury was alerted that what lay ahead for them was a determination of a child's expected life. The jury was empowered to make that decision with full knowledge of the consequences of their actions, potentially fatal consequences.

Secondly, I attempted to inspire and influence the jury. Cross-examination of the defense expert, while technical at times, nonetheless maintained a theme which humanized the plaintiff's case. I refused to allow baby Stephanie to become a statistic comprised of certain disabilities, to be compared and contrasted to other "statistics". To be sure, all technically required cross-examination occurred. However, I was never far from the dominant theme of the case - humanizing Stephanie Wright.

Between 1972 and February, 1986, then President Ferdinand E. Marcos declared and maintained martial law in the Philippines. The Writ of Habeas Corpus was suspended, the freedoms of the press were suspended, and in order to remain in power past his second full term in office, martial law was declared.

Routinely, individuals vocally critical of Marcos, and other political opponents of Marcos, were arrested and held for years at a time. Of the 10,000 people arrested over the course of martial law, many simply disappeared. Others were subjected to electrical shock and other torture techniques, the severity of which cannot be imagined.

We first filed a direct action case involving Marcos' conduct in 1986. Ultimately, our direct action case was consolidated and coordinated through Multi-District Litigation with a later filed class action.

The consolidated trial occurred before The Honorable Manuel L. Real who sat on assignment in the United States District Court, District of Hawaii. The trial was trifurcated, the same jury remaining empaneled for approximately two and one-half years. Only recently were plaintiffs' judgments upheld by the Ninth Circuit of Appeals.

With facts as visceral as those involved in Marcos, you may question the need to develop a case theme. However, only a naive trial lawyer would present a case sans theme.

All plaintiff's counsel coordinated the presentation of evidence so as to emphasize that Marcos: Directed or failed to prohibit the torture of plaintiffs; directed or failed to prohibit the summary execution of plaintiffs' decedents; or directed and failed to prohibit the disappearance of plaintiffs' decedents. Defendant's counsel steadfastly maintained that Marcos could not be held individually responsible for the torture and death of 10,000 people. Defendants repetitively pointed out that political struggle and rebellion existed during the years in question in the Philippines. How could Marcos be held responsible for all atrocities?

As with other cases, the jury was empowered to act with a full sense of justice in mind. Moreover, the jury was influenced through methodical submission of evidence establishing the dictatorial power Marcos exhibited during martial law. Senators and congressmen of the abolished government were called to testify. Envoys from the United States Department of State and Ambassadors were called to testify. Legal scholars of the Philippines were called to testify and interpret the Philippine Constitution and delegation of powers.

So seriously did the jury undertake its deliberations, so meticulous were they, that after hearing testimony over a significant period of time, one direct action plaintiff (among the 21 direct action plaintiffs and 10,000 class members), was defensed on causation grounds.

Even in a case as compelling as Marcos, the steady work of a lawyer at trial necessitates the presentation of evidence of a "dry" nature. Earlier in this article I suggested that trial lawyers should endeavor to present evidence in support of the theme with reference to all five senses. Such demonstrative presentation should not be limited to the most compelling evidence, but should also be utilized in order "dry" evidence is professionally and quickly submitted, with emphasis.

During Marcos, we utilized laser disks, a visual presenter, video tape depositions were played, blow-ups, charts, graphs, and experts who were thoroughly prepared were utilized. Everything we did was geared towards jury perception. Pictures of loved ones were routinely placed on the visual presenter during the course of a family member's testimony about the circumstances of disappearance or death to the decedent. Pictures of individuals bearing the scars of knife marks, bullet shots, and electrical shock were presented in appropriate fashion. However, great care was utilized so as not to numb the jury.

Through this brief article, I hope to have encouraged you to creatively approach the task of presenting evidence during the course of a trial. Whether the technique you employ has been used by thousands of other lawyers is not at issue. When you employ the technique, it will necessarily be different than anyone else. Such techniques are necessarily then, "new" and "innovative".

 

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