19th annual litigation institute & retreat · practice, ethics in the courtroom, and jury...

Friday, March 2, 2012, 1 p.m.–5:30 p.m. and Saturday, March 3, 2012, 8:30 a.m.–Noon

Skamania Lodge Stevenson, Washington

Oregon: 8 General CLE credits Washington: 7.5 General CLE credits

Cosponsored by the Litigation Section and endorsed by OTLA and OADC

19th Annual Litigation Institute & Retreat

ii

19Th AnnuAL LItIGatION INStItutE & REtREat

INStItutE PLaNNING COMMIttEE

Chair: Dennis P. Rawlinson, Miller Nash LLP, PortlandKimberly D’aquila, The Confederated Tribes of the Grand Ronde Community of Oregon, Grand Ronde

C. Marie Eckert, Miller Nash LLP, PortlandGregory R. Mowe, Stoel Rives LLP, Portland

Robert J. Neuberger, Attorney at Law, Portlandtimothy L. Williams, Dwyer Williams Potter Attorneys LLP, Bend

OREGON StatE BaR LItIGatION SECtION EXECutIVE COMMIttEE

Timothy L. Williams, ChairKimberly D’Aquila, Chair-Elect

Simeon D. (Sim) Rapoport, Past ChairYael Livny, Treasurer

Melinda Thomas, SecretaryJohn R. BachofnerPeter L. Barnhisel

The Honorable Benjamin M. BloomEric L. Dahlin

Pamela S. HedigerLindsey H. HughesRenée E. Rothauge

The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials.

Copyright © 2012

OREGON STATE BAR16037 SW Upper Boones Ferry Road

P.O. Box 231935Tigard, OR 97281-1935

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taBLE OF CONtENtS

Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Faculty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii

1. Visual Presentations During Oral argument to trial Judges . . . . . . . . . . . . . . . . . . . . . . . 1–i— David B. Markowitz, Markowitz Herbold Glade & Mehlhaf PC, Portland, Oregon

2a. Persuasion from the Judge’s Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2A–i— the Honorable alta Jean Brady, Deschutes County Circuit Court, Bend, Oregon— the Honorable Mary Mertens James, Marion County Circuit Court, Salem,

Oregon

2B. It Was a Dark and Stormy Night—Creating the Persuasive argument . . . . . . . . . . . . . . 2B–i— the Honorable Donald C. ashmanskas, U.S. Magistrate Judge, Portland,

Oregon

3. the Eight Keys to the art of Persuasion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–i— the Honorable Mark Drummond, Circuit Court, Eighth Judicial Circuit of

Illinois, Quincy, Illinois

v

Friday, March 2, 2012

Noon Registration

1:00 Visual Presentations During Oral argument to trial JudgesDavid B. Markowitz, Markowitz Herbold Glade & Mehlhaf PC, Portland

2:30 “Oops, I Forgot I’m Not talking to another Lawyer”tom Capps, Tom Capps Consulting, WoodburnCarla Lundblade, Clinical Therapist, Beverly Hills, CA

3:45 Break

4:00 Persuasion from the Judge’s Perspectivethe Honorable alta Jean Brady, Deschutes County Circuit Court, Bendthe Honorable Mary Mertens James, Marion County Circuit Court, Salem

5:00 tales from a Small County on the Banks of the MississippiA look at some of the more unusual cases and charges that appeared before a county judge.the Honorable Mark Drummond, Circuit Court, Eighth Judicial Circuit of Illinois, Quincy, IL

5:30 adjourn

5:30 No-Host Reception

6:30 Dinner and Presentation of the 15th annual Owen M. Panner Professionalism award to the Honorable Lynn R. Nakamoto, Oregon Court of appeals, Salem

Saturday, March 3, 2012

8:00 Late Registration and Continental Breakfast

8:30 the Eight Keys to the art of Persuasionthe Honorable Mark Drummond, Circuit Court, Eighth Judicial Circuit of Illinois, Quincy, IL

10:30 Break

10:45 the Eight Keys of the art of Persuasion (continued)

Noon adjourn

SCHEDuLE

vii

the Honorable alta Jean Brady, Deschutes County Circuit Court, Bend. Judge Brady has served as a Circuit Court Judge for the 11th Judicial District in Bend since 1995. She worked as a prosecutor for three years in Multnomah and Deschutes counties before entering private practice.

tom Capps, Tom Capps Consulting, Woodburn. Mr. Capps studied with the Actors Studio in New York for many years, then continued his training in Los Angeles and started working in television and movies. He soon began teaching and became the director of the Tracy Roberts Studio in Beverly Hills. From there he branched out and opened his own studios in Los Angeles and New York. He taught in a different city every weekend, with ongoing classes in Atlanta, Charlotte, Houston, Dallas, Detroit, Toronto, Orlando, Birmingham, and San Francisco. In many of these cities, he found that lawyers were taking his acting classes to strengthen their courtroom appearances. Mr. Capps continued to teach but later started to coach many high-profile actors for their movie roles on the sets. Later, Mr. Capps moved to Oregon to begin his consulting firm.

the Honorable Mark Drummond, Circuit Court, Eighth Judicial Circuit of Illinois, Quincy, IL. Judge Drummond was a trial lawyer for 20 years before taking the bench in 1999. He has been an instruc-tor with the National Institute for Trial Advocacy since 1986 and is a program director at large. He has taught trial advocacy skills for both large and small firms, corporations, the Attorney General’s offices for Illinois and New York, and the Department of the Navy. He writes the column “Practice Points” for Litigation News, a publication of the American Bar Association Litigation Section. He is the author of The Eight Keys to the Art of Persuasion. Judge Drummond has been asked to train on five continents and traveled to Japan in October 2008 to train attorneys in jury trial advocacy due to the changes in their trial system. He has lectured at Oxford on persuasion techniques for the Professional Negligence Bar Association and has trained counsel in Scotland and Ireland and at the United Nations headquarters in New York.

the Honorable Mary Mertens James, Marion County Circuit Court, Salem. Judge James has served as a Circuit Court judge for Marion County since 2003. She is a general jurisdiction trial judge, presiding over criminal and civil bench and jury trials. Judge James manages an individual calen-dar docket, including procedural and substantive motion practice. She also hears family law and probate cases and shares presiding judge duties in Marion County’s mental health treatment court. As well, she is a mediation/settlement judge. Before taking the bench, Judge James was a lawyer in public and private practice for 23 years. Judge James is past chair and current member of the Bench-Bar Commission on Professionalism and served on the statewide Council on Court Practices and Procedures, together with numerous Oregon State Bar committees and task forces focused on civil procedure, trial practice, and the administration of justice. Judge James has been a member of the Willamette Valley Inn of Court since its inception. She has presented several programs on trial practice, ethics in the courtroom, and jury trials. She is adjunct faculty at Willamette University College of Law, teaching trial practice.

Carla Lundblade, Clinical Therapist, Beverly Hills, CA. Ms. Lundblade holds an MS in Applied Psychology with a Concentration in Mental Health Counseling from Southern Oregon University. She has been consulting with athletes, jury trial attorneys, and performers since 2006. She is the subject matter expert and chief lecturer for The Successful Interplay Between Professional Sports Careers and Sports Psychology: A Clinical Perspective of a Winning Combination and Psychodrama, Creativity and the Training of Jury Trial Attorneys. Ms. Lundblade is a member of the Association for Applied Sport Psychology and the American Mental Health Counselors Association. Ms. Lundblade has given numerous presentations at professional conferences and has been a guest speaker at several coach-ing clinics throughout the United States.

FaCuLty

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David B. Markowitz, Markowitz Herbold Glade & Mehlhaf PC, Portland. Mr. Markowitz is a frequent lecturer on litigation-related topics for the Oregon State Bar, the Oregon Law Institute, and the Multnomah Bar Association. He regularly presents a nationally recognized training seminar on depositions. Mr. Markowitz is a Fellow of the American College of Trial Lawyers and a member of the American Board of Trial Advocates. Mr. Markowitz frequently acts as a mediator and arbitrator to resolve commercial disputes, and he served as a pro tem judge in Multnomah County for several years.

FaCuLty (Continued)

1–i

Chapter 1

VISuaL PRESENtatIONS DuRING ORaL aRGuMENt tO tRIaL JuDGES

DaviD B. Markowitz

Markowitz Herbold Glade & Mehlhaf PCPortland, Oregon

table of Contents

I. Use Visual Presentations to Accomplish the Primary Goals of Oral Argument. . . . . . . 1–1A. Establish Credibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1B. Focus Attention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1C. Organize for Persuasion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1D. Explain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1E. Persuade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–2F. Brevity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–2

II. Goals of PowerPoint and Other Visual Demonstrations. . . . . . . . . . . . . . . . . . . . 1–3A. Focus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–3B. Memory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–3C. Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–3D. Validation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–3E. Appreciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–3

III. Creating Visual Presentations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–4A. Well-Designed Presentations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–4B. Displays Can Be Designed to Have at Least Three Viewing Depths . . . . . . . . . 1–4C. Five Principles of Creating Data Graphics . . . . . . . . . . . . . . . . . . . . . . . 1–4D. Excellent Displays of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–5E. Tips for Meaningful and Persuasive Visual Presentations. . . . . . . . . . . . . . . 1–5

IV. Presenting Visual Displays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–6

Appendix—Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–7

1–ii

Chapter 1—Visual Presentations During Oral argument to trial Judges

1–1


I. uSE VISuaL PRESENtatIONS tO aCCOMPLISH tHE PRIMaRy GOaLS OF ORaL aRGuMENt

a. Establish Credibility

1. Selection of important matters.

2. Knowledge.

3. Organization.

4. Goodwill. You have the judge’s goals at heart.

5. Well prepared.

B. Focus attention

1. Remove clutter.

2. Create concentration on the issues, argument, and support that will make a difference.

3. Move judge’s attention away from opponent’s distractions.

C. Organize for Persuasion

1. Good written briefs are usually organized logically or se-quentially, with more space devoted to more complex.

2. Excellent oral arguments generally organize to place the most important issues, argument, and support to the front.

3. Give the judge a roadmap.

D. Explain

Make sure the judge understands the law, facts, and analysis for key decision points.

1–2


E. Persuade

1. Aristotle: the art of finding in any given situation the avail-able means of persuasion.

2. Persuasive communication goes beyond being informa-tive; it attempts to change the listener’s actions, beliefs, and opinions.

3. Examples of persuasive techniques and style:

F Detailed descriptions are more convincing than vague and general;

F Narrative—tell the story.

F. Brevity

Nothing unnecessary is said, and everything necessary is provided.

1–3


II. GOaLS OF POWERPOINt aND OtHER VISuaL DEMONStRatIONS

a. Focus

Emphasizes and calls attention to the most important information.

B. Memory

Helps the judge remember the important parts of the argument; can also be a memory aid for the speaker.

C. understanding

Assists in explaining complex information.

1. Chronological.

2. Relationships/comparisons.

3. Calculations.

4. Compilation of mass quantities of data.

D. Validation

Seeing is believing.

E. appreciation

For example, size and beauty.

1–4


III. CREatING VISuaL PRESENtatIONS

a. Well-Designed Presentations

1. Enhance credibility through clarity of message and information.

2. Clear portrayal of complexity, not complication of simple.

3. Tell the truth about the information.

4. Must help the judge reason, not be entertained by artful design.

B. Displays Can Be Designed to Have at Least three Viewing Depths

1. What is seen from a distance; overall structure.

2. What is seen up close; fine structure of data.

3. What is seen implicitly—behind the graphic; the story it tells.

C. Five Principles of Creating Data Graphics

1. Show the data.

2. Maximize the data-to-ink ratio.

3. Erase non-data ink.

4. Erase redundant data ink.

5. Revise and edit.

1–5


D. Excellent Displays of Information

1. Have a properly chosen format and design.

2. Use words, numbers, and design together.

3. Are to scale.

4. Display an accessible complexity of detail.

5. Often have a narrative quality; a story to tell.

6. Avoid content-free decoration/distraction.

E. tips for Meaningful and Persuasive Visual Presentations

1. Place different forms of information within a common vi-sual field. Show comparisons and differences within one eyespan.

2. Design should assist judge’s thinking. What is the judge’s decision that this display is supposed to assist, and how will it assist it?

3. PowerPoint bullet point lists benefit the “bottom half” of the attorneys—forces them to have points and organize and show sup-port. But visual displays can do much more.

4. Clutter and confusion are failures of selection and design, not attributes of the information.

5. Cosmetic decoration distracts and detracts. If the informa-tion is boring, you have the wrong information. Find information that supports an important message, then design the visual image to com-municate the message.

6. Keep out everything that does not convey or support the message.

1–6


IV. PRESENtING VISuaL DISPLayS

1. Set up in advance, test equipment, and check judge’s view.

2. Give the judge, clerk, and opponents copies of all projections.

3. Use the dark button to clear the screen when not discuss-ing the display.

4. Don’t turn your back on the judge; maintain eye contact.

a. Position yourself to be within the judge’s eyespan with the screen.

5. Keep the pointer steady and use it sparingly.

6. Don’t read lengthy bullet points.

a. Learning decreases when judge is forced to read what is being spoken; additional load on the listener.

b. Just as you wouldn’t simply read your brief to the judge, don’t simply read your PowerPoint bullet points.

c. Explain, expand, utilize what is on screen.

7. Modify timing of spoken words to allow judge to hear what is spoken and read what is shown, and understand both.

8. Summarize where you are and where you are going; set the context for what is coming.

1–7


aPPENDIX—PRESENtatION SLIDES

2/8/2012

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1–8


2/8/2012

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1–9


2/8/2012

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1–10


2/8/2012

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1–11


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1–12


2/8/2012

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1–13


2/8/2012

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1–14


2/8/2012

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1–15


2/8/2012

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,

1–16


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1–17


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1–18


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1–19


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1–20


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1–21


2/8/2012

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1–22


2/8/2012

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1–23


2/8/2012

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1–24


2A–i

Chapter 2a

PERSuaSION FROM tHE JuDGE’S PERSPECtIVE

the honoraBle alta Jean BraDy

Deschutes County Circuit CourtBend, Oregon

the honoraBle Mary Mertens JaMes

Marion County Circuit CourtSalem, Oregon

table of Contents

“May it Please the Court . . .” Persuasion from the Judge’s Perspective . . . . . . . . . . . . . . 2A–1

Persuasion from a Judge’s Perspective: A Literary Analysis . . . . . . . . . . . . . . . . . . . . 2A–2

Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2A–3

2A–ii

Chapter 2a—Persuasion from the Judge’s Perspective

2A–1


“May It PLEaSE tHE COuRt . . .” PERSuaSION FROM tHE JuDGE’S PERSPECtIVE

(Observations of She Who Must Be Persuaded in Motions, Hearings, Bench trials)

the Honorable Mary Mertens James

1. Universal goal of the advocate: to persuade the judge to decide issues in your favor.

2. Subordinate goal of the advocate: enjoy what you do and make the judge happy she does what she does.

3. Chip Kelly says it best.

4. “Uncle Phil” says it worst.

5. The Birthday Girl says, “Persuade me, please!”

Preparation

Engage the judge

Read, remember, respond, reiterate

State the question succinctly; substantiate your position

use your time well; be understood

authoritative and accurate analysis

Demonstrate mastery of facts and law in defending your ground

Explain what you want

Satisfy doubts, summarize, and sit down

2A–2


PERSuaSION FROM a JuDGE’S PERSPECtIVE: a LItERaRy aNaLySIS

the Honorable alta Jean Brady

Much Ado About Nothing, Act 2 scene 3

Romeo and Juliet, Act 2 scene 2

Twelfth Night, Act 2 scene 2

Hamlet, Act 3 scene 2

Times Like These

Love’s Labor’s Lost, Act 5 scene 1

Measure for Measure, Act 2 scene 2

The Two Gentlemen of Verona, Act 5 scene 4

Quotable Quotes

All’s Well That Ends Well, Act 5 scene 3

A Midsummer Night’s Dream, Act 2 scene 2

The Merchant of Venice, Act 2 scene 2

Hamlet, Act 1 scene 3

Henry IV Part II, Act 4 scene 2

2A–3


PRESENtatION SLIDES

3/5/2012

1

19th Annual OSB Litigation Institute & Retreat, March 2-3, 2012

May it Please, the Court . . .” Persuasion from the Judge’s

Perspective

May it Please, the Court . . .”

Goals of every litigator:

• Be persuasive!• Get the Judge to agree• Make Judge happy she does what she does• Enjoy what you do

2A–4


3/5/2012

2

May it Please, the Court . . .”

Start with Why?

Chip Kelly says it best:

2A–5


3/5/2012

3

Chip Kelly says it best:WIN THE DAY!

Uncle Phil said it worst:

Just do it!

2A–6


3/5/2012

4

The Birthday Girl says:

Make me happy I came to the party!

“May it Please, the Court . . .”

GIVE me a P!Preparation –• Research• Precedent• Know the law• Anticipate arguments

2A–7


3/5/2012

5


Preparation –

• Make copies of new, out of jurisdiction cases (especially important in State Court)

• Know your facts• Know your opponent’s facts


Preparation –

• Follow the rules!

2A–8


3/5/2012

6


Give me an E!Engage the judge –


Oral Argument?

Focus on the Listener!

2A–9


3/5/2012

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Give me an R!• Read• Remember• Respond• Reiterate


Give me an S!

State the question succinctlySubstantiate your positionSet the sceneStay focusedShow me!

2A–10


3/5/2012

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Give me a U!

Use your time well

Be understood


Give me an A!

Authoritative

Accurate

Analysis

2A–11


3/5/2012

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Give me a D!

Demonstrate mastery of facts and law Defend your groundDirect Judge to places Distinguish contrary authorityDo not keep talking


Give me another E!

Explain what you want

Answer the Why?

2A–12


3/5/2012

10


Give me another S!

Satisfy doubts

Summarize (Rebuttal)

Sit down!


W is for winning, not whining!• When to stop

• When to speak up

• When not to

2A–13


3/5/2012

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She who PERSUADES, WINS!

• Questions?• Cake?

2A–14


2B–i

Chapter 2B—It Was a Dark and Stormy Night—Creating the Persuasive argument

Chapter 2B

It WaS a DaRK aND StORMy NIGHt—CREatING tHE PERSuaSIVE aRGuMENt1

the honoraBle DonalD C. ashManskas

U.S. Magistrate JudgePortland, Oregon

table of Contents

1 Reprinted with permission from 15th Annual Litigation Institute & Retreat, Oregon State Bar CLE Seminars, March 7–8, 2008.

I. Brief Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–1A. Concede Nothing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–1B. Use the Shotgun Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–1C. Phrase Every Argument in the Alternative . . . . . . . . . . . . . . . . . . . . . . 2B–1D. Don’t Give Away the Surprise Ending. . . . . . . . . . . . . . . . . . . . . . . . . 2B–1E. Use All 35 Pages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–1F. Always Attach Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–1G. Ignore Controlling Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–2H. Use String Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–2I. Cite Corpus Jurus Secundum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–2J. Don’t Shepardize. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–2K. Cite Out-of-Circuit Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–2L. Attack Your Opponent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–2M. Whine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–2N. Omit No Defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–3O. Don’t Read Cases You Cite . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–3P. Employ See Creatively. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–3Q. Argue Issues Not Before the Court. . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–3R. A Little Latin Goes a Long Way . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–3S. Don’t Search for Recent Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–4T. Let Your Opponent Do Your Research. . . . . . . . . . . . . . . . . . . . . . . . . 2B–4U. Always Get the Last Word . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–4V. Assume the Judge Knows Everything About Your Case . . . . . . . . . . . . . . 2B–4W. File Your Brief Late. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–5X. Cite Unavailable Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–5Y. Move to Strike . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–5Z. Don’t Proofread Your Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–5AA. Don’t Identify the Changes in Amended Documents . . . . . . . . . . . . . . . . 2B–6BB. Put the Wrong Case Number in the Caption of Your Brief . . . . . . . . . . . . . 2B–6CC. The End of the World Is Near. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–6DD. Always Request Expedited Consideration . . . . . . . . . . . . . . . . . . . . . . 2B–6

2B–ii


table of Contents (Continued)

II. Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–6A. Demand Oral Argument Whether You Need it or Not . . . . . . . . . . . . . . . 2B–6B. Read Your Brief to the Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–6C. Don’t Let the Judge Interrupt Your Presentation . . . . . . . . . . . . . . . . . . . 2B–6D. Cite New Cases and Theories. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–6E. Badmouth the Judge in Front of His Staff . . . . . . . . . . . . . . . . . . . . . . . 2B–7F. Ignore the Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–7G. Cancel at the Last Minute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–7H. Talk Fast So the Court Reporter Can’t Keep Up . . . . . . . . . . . . . . . . . . . 2B–7I. Use It or Lose It. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–7

III. Magistrate Maxims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–8A. Magistrate Maxims I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–8B. Magistrate Maxims II—Keeping One’s Perspective . . . . . . . . . . . . . . . . . 2B–8

IV. Theme—Trial Strategy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–9A. The Grammatical Lawyer by Morton S. Freeman. . . . . . . . . . . . . . . . . . . . 2B–9B. The Advocate’s Handbook by Irving Younger . . . . . . . . . . . . . . . . . . . . . 2B–10C. Trial Notebook by James W. McElhaney. . . . . . . . . . . . . . . . . . . . . . . . 2B–10D. Basic Instinct: Case Theory and Courtroom Performance by Edward D.

Ohlbaum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–11

V. Cardozo Opening Gambits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–11A. Palsgraf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–11B. Hynes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–11C. Palsgraf Revisited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–12

AppendixesA. “Lawyer Cited for Purple Prose” (From the National Law Journal, August 2,

1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–13B. “The Rhetoric of Persuasive Writing” . . . . . . . . . . . . . . . . . . . . . . . . 2B–15

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I. BRIEF WRItING

a. Concede Nothing

Judges are impressed by tough lawyers. Make your opponent fight for every inch of ground, no matter how indefensible your posi-tion. If your opponent says today is Monday, move to strike for lack of personal knowledge. If you are persistent, you’ll eventually wear the other side down.

B. use the Shotgun approach

Make as many arguments as possible, no matter how weak. When in doubt, most judges just tote up the points, e.g., “plaintiff has ten arguments in her favor, defendant only one, so plaintiff must have the stronger case.”

C. Phrase Every argument in the alternative

If the complaint accuses your client of violating NEPA by not pre-paring an environmental impact statement, you should simultaneously argue that your client: (1) fully complied with all NEPA requirements for this project; (2) fully complied with NEPA for a prior project, and this is just a continuation of that project; (3) was not required to comply with NEPA; (4) complied with NEPA in spirit; (5) plaintiff lacks standing to contest your failure to comply with NEPA; or (6). . . .

D. Don’t Give away the Surprise Ending

Briefs are like mystery novels—you don’t want to ruin the sus-pense by revealing the surprise ending too early. Use the first 34 pages of your brief to lay out the most complicated legal puzzle imaginable. Only after you have completely befuddled the other side (and the judge as well) should you play your ace in the hole. “In any event, this is all academic because [fill in the blank].” The judge will be awed by your legal tour de force.

E. use all 35 Pages

One of the most embarrassing things you can do as a lawyer is to file a 15-page brief when the local rules allow up to 35 pages. Your little brief looks wimpy sitting on the table next to your opponent’s power brief with its 49 attached exhibits all housed in deluxe imitation wood-grain binders. You might as well attach a note saying: “Sorry, but my client has a very weak case and I can’t think of any other arguments to make on her behalf.” If you run out of things to say, just repeat the same arguments over again. No one will notice.

F. always attach Exhibits

Exhibits lend an air of authority to a brief. It is no longer just a lawyer making an argument; now you have documentary proof of your client’s position. If you don’t have any exhibits, invent some. It really doesn’t matter what you use because, if they are fat enough and contain lots of technical-sounding fine print and rows of numbers, no one will read them anyhow.

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G. Ignore Controlling authority

A lot of lawyers assume they have an ethical duty to cite control-ling authority contrary to the position advocated by their client; that is nonsense. By definition, if the judge doesn’t follow a case, then it is not controlling. If it is not controlling, then you have no ethical obligation to cite the case. Seems simple enough to me.

H. use String Citations

Anyone can cite the latest Ninth Circuit authority. What really impresses the judge is citing a long list of pre–World War II cases from district courts in Louisiana and Mississippi that your law clerk cribbed from an old ALR article.

I. Cite Corpus Jurus Secundum

Can’t find a case on point? Just cite CJS. It is comprehensive, authoritative, and those Latin titles get the judge every time. It always worked for Perry Mason. In a pinch, the Harvard Law Review will suffice.

J. Don’t Shepardize

Shepardizing is expensive. If you cite a few dozen cases in a brief (or for you string-citers, perhaps a few hundred cases), that adds up to a lot of pocket change, not to mention the time involved. Don’t waste your money—the odds are that the key cases you cited are still good law. If they aren’t, you’re cooked and there is nothing you can do about it anyhow, so why throw good money after bad?

K. Cite Out-of-Circuit authority

I don’t know why people think the Ninth Circuit is so special—it’s just one of thirteen circuits. If Ninth Circuit case law doesn’t favor your client, then cite a circuit that is more hospitable. Timid attorneys may want to put a little “but cf XYZ (9th Cir. 1993)” at the end of the string citation to avoid possible ethical problems. Alternatively, point out that the Ninth Circuit’s position has not been followed by other cir-cuits and urge the trial judge to overrule the Ninth Circuit.

exaMple: “The circuits (with the sole exception of the Ninth Circuit) are unanimous in holding that the Civil Rights Act of 1991 is not retroactive. The Ninth Circuit’s position is clearly an aberration and should not be followed.”

L. attack your Opponent

Your opponent is a sleazebag who should not be believed, and that is reason enough to rule against him. So be sure you attack your op-ponent in the brief, call him names, and impugn his motives.

M. Whine

Few federal judges are young enough to still have small children at home, but all it takes is a pair of whining lawyers to bring back those nostalgic memories of two six-year-olds squabbling. “Judge, his brief is one page too long.” “Judge, he pretended to be negotiating with me

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while he was secretly preparing a complaint.” It will make the judge feel twenty years younger.

N. Omit No Defense

Defenses were put on this earth for only one purpose—to be used by defense attorneys. There’s no sense letting them go to waste.

exaMple: A prisoner filed a civil rights action alleging that female clerical employees at a local jail had been viewing strip searches of male inmates through a peep window. The defendants promptly moved to dismiss the inmate’s claim on grounds of qualified immunity, i.e., they didn’t know that such conduct was wrong. Some attorneys might have trouble asserting that defense with a straight face—but that’s what junior associates are for.

O. Don’t Read Cases you Cite

You’re thumbing through the Federal Digest and you find the perfect headnote—you couldn’t have written a better holding if you’d tried. Should you read the case just to be sure it really stands for that proposition? Of course not! Why spoil perfection? A lot of bad things can happen when you go beyond the headnote and read the actual case. You might discover the court was applying Washington law instead of Oregon law or that there were some distinguishing circumstances. Igno-rance is bliss.

P. Employ See Creatively

This is one of the most useful signals in brief writing. For instance, you can cite a terribly complicated case to support an obscure proce-dural point (which the case does not stand for). No one who reads the case can “see” in it what you could—but is he going to admit that? Of course not, because he doesn’t want to admit he is not smart enough to see the brilliant point you are making. This strategy works particularly well with law clerks who graduated from big name law schools but are haunted by subconscious feelings of inadequacy.

Q. argue Issues Not Before the Court

This strategy works for both briefs and oral arguments. If the is-sue before the court is not your strongest, don’t fight a losing battle. Change the subject and argue some other issue where you have a chance of prevailing. For instance, if the issue is change of venue, argue the merits of the case, e.g., there is no point transferring this case because defendant can’t win in any court.

R. a Little Latin Goes a Long Way

1. Because plaintiff has not shown he suffered mea-surable injury, his claim must be denied.

2. De minimis non curat lex. Damnun absque injuria. Ca-dit quaestio.

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Which paragraph sounds more authoritative? The second one, of course. Vel caeco apparat. (It would be apparent even to a blind man.) Would you rather tell the jury that your client was “caught between a rock and a hard place,” or “a fronte praecipitium a tergo lupi” (“a preci-pice in front, wolves behind”)? If the defendant calls your client a “lying cur,” just smile and say: “Proprium humani ingenii est odisse quem laeseris.” (It is human nature to hate a person whom you have injured.) Everyone will assume that if you’re smart enough to use all these Latin phrases, the rest of your arguments must be of similar caliber. Experto credite. If you don’t know any Latin, ask your local bookstore to order copies of Eugene Ehrlich’s Amo, Amas, Amat and More: How to Use Latin to Your Own Advantage and to the Astonishment of Others (Harper & Row 1985); Richard A. Branyon’s Latin Phrases & Quotations (Hippocrene Books 1994); and Henry Beard’s Latin for All Occasions (Random House 1990) and Latin for Even More Occasions (Random House 1991).

S. Don’t Search for Recent Decisions

The job of a law clerk can be tedious. One of the few pleasures they get is to uncover a recent decision that neither party cited. Why de-prive them of that pleasure by reading slip opinions or doing a Westlaw search?

t. Let your Opponent Do your Research

Don’t have time to research the theories of your case? No prob-lem. Include the whole kitchen sink in your complaint, and let the other side sort it out in its motion to dismiss. Or maybe the judge’s law clerk can figure out which theories are viable.

u. always Get the Last Word

If your opponent files a reply brief, then you must file a supple-mental response. If she files a surreply brief, then you immediately file another supplemental response. Following oral argument, send the judge a letter responding to your opponent’s points. A letter is more ef-fective than a brief because the judge won’t realize it is a brief in disguise until after he has begun to read it. The better letters start by discussing some innocuous procedural matter and then digressing to merits almost as an afterthought, or so the reader should believe.

V. assume the Judge Knows Everything about your Case

You’ve been working on this case for months. You know the facts and the relevant law, and so should the judge. After all, if she wasn’t so smart, she wouldn’t be a judge. So, when writing a brief, just dive right into your arguments without any introduction or background. Don’t bother including a capsule summary of your argument at the begin-ning—the judge will figure it out eventually. Conversely, you should assume the judge knows nothing about basic legal principles. A classic example is a major law firm that devoted ten pages of a brief to explaining the concept of stare decisis to a veteran trial judge. Unfortunately, the “controlling” case was construing Cali-

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fornia law, and the judge was applying Oregon law. Oh well, non omnia possumus omnes. (No one can be an expert in all things.)

W. File your Brief Late

The best time to file a brief is Friday afternoon at 4:30 for an oral argument on Monday. That’s particularly effective when the judge’s law clerk has already finished her memo and now has to stay all weekend to revise it. You are assured of getting the last word. You should also mail a copy to your opponent on Friday afternoon. With some luck, he won’t receive it until oral argument is over.

X. Cite unavailable Materials

When citing unpublished district court opinions or similar ma-terials, never attach a copy to your brief. If the judge can’t read the case you’ve cited, he’ll have to take your word on its contents. That also applies to obscure 19th-century treatises or $600/year industry newsletters.

y. Move to Strike

Federal judges love motions to strike. Don’t like something in your opponent’s complaint? Move to strike the offending words. If your opponent files affidavits opposing your summary judgment motion, move to strike the entire affidavits or particular sentences in them. If you prevail on the motion to strike, you win the case since your sum-mary judgment motion is now unopposed. Don’t make the mistake of thinking a motion to strike is unneces-sary because the judge knows the rules of evidence and is perfectly ca-pable of ignoring irrelevant statements, hearsay, or argument. The judge will be grateful for an opportunity to rule on another motion. Nowa-days, federal judges have so little on their calendars they look forward to all the extra work they can get. A novel spinoff is to file a motion to strike your opponent’s af-fidavits on grounds the facts stated therein were wrong—and thus there are no disputed material facts and you are entitled to summary judg-ment as a matter of law.

Z. Don’t Proofread your Brief

Some attorneys waste valuable time proofreading a brief in the mistaken belief that typographical or collating errors reflect badly on the quality of their legal research. Wrong, wrong, wrong! Experienced attorneys know these errors actually make a brief more effective. Why? Because if the pages are out of order, the law clerk can’t just whiz through the brief—she has to stop and sort the pages. Smart lawyers not only collate the pages out of sequence, but also make sure the pages are not numbered. Now the law clerk must read each page carefully to ensure one idea follows the next. What more could you ask?

another tip: If you omit key words, paragraphs, or sen-tences, the law clerk must try to decipher what you meant to say—and he may come up with a better argument than the one you had in mind. You also get to file an amended

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brief with the corrections, which the law clerk must read carefully to determine what changes you made.

aa. Don’t Identify the Changes in amended Documents

When filing an amended document (e.g., complaint, brief), do not attach a cover letter listing the changes. That way the reader must care-fully compare the two documents, one line at a time, to determine what changes you have made. Sure, that’s rude, but at least you know the law clerk will carefully read your brief.

BB. Put the Wrong Case Number in the Caption of your Brief

If the case number is wrong, the brief may be sent to the wrong judge or incorrectly docketed. That holds true for any filing. A surefire way to maximize confusion.

CC. the End of the World Is Near

No brief is complete without a description of the parade of hor-rors that will result if your opponent prevails. This is not just a motion to extend discovery. The future of the universe is at stake.

DD. always Request Expedited Consideration

If you file a plain-vanilla motion, it will ordinarily not be heard for another five weeks. Smart lawyers always request “expedited consider-ation.” Most of the time, it really is an emergency because you waited until the last minute to file the motion. Even if it isn’t a true emergency, you should still act like it is. You don’t want the judge to get the idea that your motion isn’t very important. See “The End of the World Is Near,” supra.

II. ORaL aRGuMENt

a. Demand Oral argument Whether you Need it or Not

That adds a lot of billable hours (e.g., travel time).

B. Read your Brief to the Judge

The judge may say she’s read your brief, but she’s just trying to make herself look good. Deep down, you know she’s lying. So read her your brief word-for-word. You’ll be glad you did.

C. Don’t Let the Judge Interrupt your Presentation

You’ve spent all week preparing your presentation—and it’s a work of art. No one who hears your speech could possibly rule against you. The problem is, the judge won’t let you give your speech. He keeps interrupting you with questions on subjects you don’t even care to dis-cuss. How rude! Tell the judge politely but firmly that you will be happy to answer any of his questions, but only after you’ve finished making your presentation.

D. Cite New Cases and theories

Use oral argument as an opportunity to surprise your opponent (and the judge) by citing new theories and cases you didn’t mention in

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your briefs. If you’re lucky, your opponent will be unable to refute your argument because he has never even heard of the case you just cited.

E. Badmouth the Judge in Front of His Staff

One of our more flamboyant local attorneys warmed up for oral argument by loudly complaining about: (1) having been removed to federal court; and (2) having to appear before a magistrate judge who is not even a real judge. The attorney made sure the judge’s law clerk, courtroom deputy, and judicial assistant were all present to witness the performance.

F. Ignore the Standard of Review

Standards of review are a real pain. They take up valuable space in your brief, they interrupt the flow of your argument, and they are a pain to research. My advice is to ignore them. If it is a summary judg-ment motion, everyone knows the standard of review, so you don’t need to include it. If it is any other type of motion, you probably have no idea what the standard of review is and don’t really care either. If the other side is so concerned about the proper standard of review, let them re-search it. Should the judge be so foolish as to inquire at oral argument (and thereby admit that he doesn’t know the standard), simply say: “The standard of review is irrelevant, Your Honor, because my client would prevail regardless of which standard is applied.”

G. Cancel at the Last Minute

If you know two weeks before oral argument that you’ll be with-drawing your motion or have reached a stipulation with your opponent, why spoil the fun by calling the court to cancel the argument? Leave it on the calendar so the judge won’t be bothered by booking other engage-ments and the law clerk isn’t deprived of a chance to write a fascinating memo on the Nonappropriated Fund Instrumentalities Employees’ Re-tirement Credit Act of 1986.

H. talk Fast So the Court Reporter Can’t Keep up

Self-explanatory.

I. use It or Lose It

You’ve written the speech of your life but, before you can deliver it, your opponent stands and announces that he won’t contest your mo-tion or the judge announces that he’s inclined to rule in your favor—and you haven’t even said a word. What rotten luck! Now no one will have an opportunity to hear your great speech. There is no satisfaction from the meek surrender of a cowardly foe—you want to vanquish him on the field of battle. Even worse, your client is in the audience and you’re wondering how on earth you will be able to justify that huge bill you’re going to send her. My advice is to give the speech anyhow. Refuse to accept your op-ponent’s meek capitulation. The calendar shows one-half hour allotted for oral arguments and, by golly, you’re going to use it even if the out-

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come is a foregone conclusion. Your client will be impressed, and don’t worry about all those horror stories of lawyers talking their way out of a victory they had already won—that only happens to other lawyers.

III. MaGIStRatE MaXIMS

a. Magistrate Maxims I

1. Brevity. “Pray state this day, on one side of a sheet of paper, how the royal Navy is being adapted to meet the conditions of mod-ern warfare.” Memo to the First Lord of the Admiralty (1941) by Winston Churchill.

2. Less Is More. “In your day-to-day negotiations with clients and colleagues, fight for the kings, queens and bishops, but throw away the pawns. A habit of graceful surrender on trivial issues will make you difficult to resist on those rare occasions when you must stand and fight on a major issue.” Confessions of an Advertising Man by David Ogilvy.

3. Preciseness. “Le bon Dieu est dans le detail.” Aphorism at-tributed to Gustave Flaubert.

4. Practice tip. Don’t cross-examine just because it’s your turn.

5. Don’t Whine. “No sniveling!” “Mutual tellers are not con-cerned about what you should have done.” Signs at Off-Track Betting Parlor.

6. Excellent advice. “It is a good thing to take one’s work seriously. It is a fatal mistake to take oneself seriously.” Judge Harold Medina. “Listen to the voice of the magistrate. . . .” Cardozo, Law and Literature, 52 Harv. L. Rev. 471, 476 (1939).

B. Magistrate Maxims II—Keeping One’s Perspective

“A lawyer without history or literature is a mechanic, a mere working mason; if he possessed some knowledge of these he may ven-ture to call himself an architect.” Sir Walter Scott.

“Lawyers need conscience as well as craft. To borrow an old but picturesque phrase, skilled lawyers without conscience are like loose guns on a sinking ship; their very presence is so disconcerting that they wreak damage whether or not they hit anything.” Dean Derrick A. Bell, Jr., May 1980 Commencement Day Address to the University of Oregon School of Law.

And those opinions cause us to doubt and criticize and question the value of professional life—not its cash value; that is great; but its spiritual, its moral, its intellectual val-ue. They make us of the opinion that if people are highly successful in their professions they lose their senses. Sight goes. They have no time to look at pictures. Sound goes. They have no time to listen to music. Speech goes. They have no time for conversation. They lose their sense of proportion—the relations between one thing and another.

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Humanity goes. Money making becomes so important that they must work by night as well as by day. Health goes. And so competitive do they become that they will not share their work with others though they have more than they can do themselves. What then remains of a hu-man being who has lost sight, sound, and sense of propor-tion? Only a cripple in a cave.

Three Guineas by Virginia Woolf.

Extreme busyness . . . is a symptom of deficient vitality; . . . There is a sort of dead-alive, hackneyed people about, who are scarcely conscious of living except in the exercise of some conventional occupation. Bring these fellows into the country, or set them aboard ship, and you will see how they pine for their desk or their study. They have no curi-osity; they cannot give themselves over to random provo-cations; they do not take pleasure in the exercise of their faculties for its own sake; and unless Necessity lays about them with a stick, they will even stand still. It is no good speaking to such folk; they cannot be idle, their nature is not generous enough; and they pass those hours in a sort of coma, which are not dedicated to furious moiling in the gold-mill. . . . They have been to school and college, but all the time they had their eye on the medal; they have gone about in the world and mixed with clever people, but all the time they were thinking of their own affairs. As if a man’s soul were not too small to begin with, they have dwarfed and narrowed theirs by a life of all work and no play; . . . Look at one of your industrious fellows for a mo-ment, I beseech you. He sows hurry and reaps indigestion; he puts a vast deal of activity out to interest, and receives a large measure of nervous derangement in return.

Virginibus Puerisque and Other Papers, 1881 (“An Apology for Idlers”) by Robert Louis Stevenson.

IV. tHEME—tRIaL StRatEGy

a. The Grammatical Lawyer by Morton S. Freeman

The words strategy and tactics, although primarily applica-ble to military operations, are used in many areas of life.

Strategy has to do with an overall plan; tactics, with the spe-cific means by which the plan is put into effect: “Brower’s strategy for handling the crisis is brilliant. His aides, we’re sure, will use effective tactics to carry it out.” In business, political, financial, or domestic life, strategy is the adept use of stratagems, tricks or schemes, to attain an end or to gain an advantage over an adversary. Tactics is the tech-

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nique whereby strategy is implemented, that is, it secures or processes what has been planned.

B. The Advocate’s handbook by Irving younger

Every lawsuit involves a story of human beings in conflict. Sometimes the story is obvious; sometimes it is hidden and needs to be brought out. All stories, however, have certain properties in common. The study of literature and drama can give us useful insights into how some of those properties can be used to advantage in the courtroom.

Every good story, be it a novel, short story, epic, or play, has a unifying theme. When we pull the theme out and state it separately, it is always absurdly simple in compari-son with the complexity of the finished work. That is why artists themselves will never discuss their themes. All the same, unity in the story enhances the story’s effect upon the audience; and for the artist, the theme is a device that serves to provide that unity. Once the artist has a theme, he must let it do the job of unification for him. No matter how wonderful a character or a scene or a turn of the plot may be otherwise—if it is not related to the theme, it stays out, or it goes into the notebook for the next novel. The art-ist knows that each piece of material unconnected with the theme detracts from the total aesthetic effect.

Exactly the same is true of a trial. The trial must have a theme—a central idea that gives unity to the drama we shall unfold before the jury. Like the literary artist, the trial law-yer must let the theme do its job. Every witness, every ex-hibit, every bit of testimony must share a relationship to the theme.

We must think about what is possible, what will make the best impression, how we can make best use of the wit-nesses, and so on. Once we have the theme, it operates as a principle of exclusion. It tells us what not to put in, namely, anything not related to that theme.

C. Trial notebook by James W. McElhaney

Never do anything inconsistent with your theory of the case.

The theory of the case is the basic, underlying idea that explains not only the legal theory and factual background, but also ties as much of the evidence as possible into a coherent and credible whole. Whether it is simple and un-adorned or subtle and sophisticated, the theory of the case is a product of the advocate. It is the basic concept around which everything else revolves.

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D. Basic Instinct: Case Theory and Courtroom Performance by Edward D. Ohlbaum

“The theme . . . may be expressed through statements, phrases, or words that aphoristically capture a key image and that may be strategi-cally repeated during the course of the trial. A case’s theme is its mantra.”

V. CaRDOZO OPENING GaMBItS

a. Palsgraf

Plaintiff was standing on a platform of defendant’s rail-road after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the ex-plosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.

Palsgraf v. Long Island R. Co., 162 N.E. 99 (1928).

B. hynes

On July 8, 1916, Harvey Hynes, a lad of 16, swam with two companions from the Manhattan to the Bronx side of the Harlem River, or United States Ship Canal, a naviga-ble stream. Along the Bronx side of the river was the right of way of the defendant, the New York Central Railroad, which operated its trains at that point by high-tension wires, strung on poles and cross-arms. Projecting from the defendant’s bulkhead above the waters of the river was a plank or springboard, from which boys of the neighbor-hood used to dive. . . . For more than five years swim-mers had used it as a diving board without protest or obstruction.

On this day Hynes and his companions climbed on top of the bulkhead, intending to leap into the water. One of them made the plunge in safety. Hynes followed to the front of the springboard, and stood poised for his dive. At that moment a cross-arm with electric wires fell from the defendant’s pole. The wires struck the diver, flung him

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from the shattered board, and plunged him to his death below. His mother, suing as administratrix, brings this ac-tion for her damages.

Hynes v. New York Cent. R. Co., 131 N.E. 898 (1921).

C. Palsgraf Revisited

On a hot Sunday in August, Helen Palsgraf decided to es-cape her basement flat and take her two youngest children, Elizabeth and Lilian, to the Rockaway Beach. A janitor and single parent with an annual income of $416, she chose the most economical means of transportation, the Long Island Railroad, a subsidiary of the Pennsylvania Railroad. After buying the tickets, Mrs. Palsgraf led her two children onto the crowded station platform, 12 to 15 feet wide.

The Palsgraf family stood near an ordinary penny scale of the type often found on railroad platforms. The explosion either knocked it over or the stampede of the panicked crowd caused it to fall. According to Mrs. Palsgraf: “Flying glass—a ball of fire came, and we were choked in smoke, and I says, ‘Elizabeth, turn your back,’ and with that the scale blew and hit me on the side.” She testified: “Well, all I can remember is I had my mind on my daughter, and I could hear her holler, “I want my mama!”—the little one (Lilian).”

Mrs. Palsgraf sued for the injuries. At the trial, the jury awarded her $6,000. The Supreme Court Appellate Divi-sion upheld the award.

Professor Louis J. Siricco, Jr., of Villanova School of Law.

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aPPENDIX a—“LaWyER CItED FOR PuRPLE PROSE” (FROM tHE nATIOnAL LAw JOurnAL, auGuSt 2, 1999)

Words pour like fetid water in annual writing contest. Legal training said to help.

By Michael D. GoldhaberNational Law Journal Staff Reporter

Legal training, useful for many things, appears to prepare writers for prizewinning badness: A Se-attle lawyer has won this year’s Purple Prose prize in the Bulwer-Lytton Fiction Contest.

“I’ve had an interest in bad writing for many years,” said winner David Hirsch. “Law school put a certain polish on my badness, and 20 years of practice helped.” The contest, named after novelist Edward Bulwer-Lytton, who began a book with “It was a dark and stormy night,” awards prizes for the worst opening sentences of imaginary novels.

Here is Mr. Hirsch’s: “Rain—violent torrents of it, rain like fetid water from a God-sized pot of pasta strained through a sky-wide colander, rain as Noah knew it, flaying the shuddering trees, whipping the white capped waters, violating the sodden firmament, purging purity and filth alike from the land, rain without mercy, without surcease, incontinent rain, turning to intermittent showers over-night with partial clearing Tuesday.”

“If people really want to master bad writing,” said Mr. Hirsch, a public defender, “they should study Justice Clarence Thomas’ majority opinion in Kansas v. Hendricks.” That case upheld the com-mitment of sexual predators.

This is not the first time that an attorney has won. Professor Scott Rice, of San Jose State University, the contest’s founder, said that they have been among its leading performers.

“Drawing farfetched analogies is part of an attorney’s craft,” he theorized.

Bob Perry, a lawyer from Milton, Mass., won the grand prize last year. Patrick Finnegan, a lawyer from Victoria, British Columbia, won a dishonorable mention in 1986 with a 107-word sentence, taken largely from Canada’s Income Tax Act.

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aPPENDIX B—“tHE RHEtORIC OF PERSuaSIVE WRItING”

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Chapter 3

tHE EIGHt KEyS tO tHE aRt OF PERSuaSION1

the honoraBle Mark DruMMonD

Circuit Court, Eighth Judicial Circuit of IllinoisQuincy, Illinois

table of Contents

1 Copyright 2009 Mark A. Drummond.

I. Primacy: First Impressions Are Golden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–1A. A Story . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–1B. First Impressions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–1C. Opportunities to Make a Good First Impression Before Trial: The Other 95% . . . 3–2D. Jury Selection Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–2E. Making a Good First Impression with the Judge: A Top Ten List. . . . . . . . . . . 3–3

II. Opening Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–9A. Opening Statement Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–10B. Objections to Openings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–10

III. Direct Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–10A. Direct Examination Checklist. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–11B. Objections to Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–12C. Objections to Answers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–12D. Direct Examination of Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–12E. What If They Forget? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–13F. Redirect Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–14G. What If They Lie? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–14

IV. Cross-Examination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–14A. Cross-Examination Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–15B. The Three Cs of Impeachment by Prior Inconsistent Statement . . . . . . . . . . 3–16C. Inconsistent Statement Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–16D. Cross-Examination of Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–16

V. Closing Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–17A. Closing Argument Checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–18B, Common Closing Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–18

VI. Emphasize the Receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–19

VII. Remembered Facts Alone Persuade—The Hierarchy of Attention in a Courtroom . . . 3–20

VIII. Simplify—Do a “Thoreau” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–20A. Understand the Power of Notebooks . . . . . . . . . . . . . . . . . . . . . . . . . 3–21B. Address—See Gettysburg. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–21

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Chapter 3—the Eight Keys to the art of Persuasion

IX. Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–22

X. Emphas(eyes)/Visual(eyes) the Story . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–23

Appendix—Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–25

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I. PRIMaCy: FIRSt IMPRESSIONS aRE GOLDEN

a. a Story

It was a relatively routine motion hearing except that the clients were there. The players were an older attorney with a few decades of experience and a younger attorney with a few years of experience. I will call them Mr. Bluster and Ms. Novice. Since it was Mr. Bluster’s motion, he went first, then sat down. Ms. Novice was only a few minutes into her reply when Mr. Bluster rose and exclaimed, “Your honor, that’s not the way . . . blah, blah, blah. . . .” Now several things could have happened at that point. Ms. Nov-ice could have turned to him and said, “Don’t interrupt me!” or she could have more properly said, “Your honor, would you ask that Mr. Bluster not interrupt me.” A third option would have been for me to in-terject myself and tell Mr. Bluster to sit down—an option which I never take; why?— I prefer to see these human dramas play out. I did not anticipate the fourth option. Ms. Novice simply sat down until Mr. Bluster exhausted his interruption. When she sat down, several things occurred. Mr. Bluster’s client had a somewhat self-satis-fied smirk on his face, and her client was staring at her wondering why she was allowing this to go on. Then, she simply rose and, in a quiet yet measured tone, said, “Your honor, I gave Mr. Bluster the courtesy of not interrupting his argument, and I was wondering if he would extend me the same courtesy.” Several things occurred at this point. She had handled this so elegantly that Mr. Bluster’s client was now giving him a rather dissatisfied look, her own client was looking at her as if she had aged 20 years, and I had gained a newfound respect for this young at-torney. That is making a good first impression. That is persuasion.

B. First Impressions

The old saying is true: You never have a second chance to make a good first impression. Although judges and juries are supposed to wait until all of the evidence is in, we know that judgments are being made of our witnesses and us at every moment during the trial. A recent Chicago Tribune article had this quote with regard to job interviews: “The interviewer makes an immediate overall judgment about you within the first five seconds, and the next twenty-five seconds are spent checking the chemistry and verifying the initial impression.”1 We all know this is true. Only around 5% of cases that are filed actually reach trial. How-ever, much time is spent on trial training. What about the other 95%? How can we make a good first impression before trial? In training trial lawyers, I have urged them to look at each and every stage of litigation as an opportunity for persuasion. The trial law-yer is being evaluated by the other side and his or her own client at mo-

1 “Make every second count in an interview,” Chicago Tribune, YourJob column by Carol Klieman quoting from 101 Great Answers to the Toughest Job Search Problems, by Ollie Stevenson, Carver Press.

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tion hearings, depositions, mediations, and arbitrations. Like Ms. Nov-ice in the story above, the other side is constantly assessing (1) whether or not you are willing to go to trial and (2) whether you would be any good it. In light of this, I urge the young lawyers to try to front-end load persuasion. When I started out as a trial attorney, the old saw was that you never wanted to reveal anything to the other side unless they asked for it. Evidently, the strategy was that if you didn’t have to reveal these golden nuggets of evidence, this would surprise your opponents at trial, they would be caught off-guard, they would be reeling, and your client would carry you triumphantly out of the courtroom on his or her shoul-ders. Does that ever happen? Perhaps, on occasion. Any experienced trial lawyer will tell you that this rarely happens. A new trend in litigation advocates early and full disclosure. In the “Trial Notebook” article of the Chicago Daily Law Bulletin on January 31, 2003, Steven P. Garmisa reviewed an article in the American Journal of Trial Advocacy entitled “Rethinking Deposition Defense: The Case for Strategic Disclosure,” 26 American Journal of Trial Advocacy 13 (2002).2 In this article, Professor Steven Lubet of the Northwestern University Law School makes the case for early disclosure. Instead of counseling witnesses to give short and unrevealing answers, Lubet argues that you should showcase your witnesses to show the strength of your case. Since 95% or more of the cases settle, this seems like sound strategy. I believe clients are becoming more sophisticated and are increas-ingly frustrated at counsel who constantly pump them up on what a good case they have only to tell them that they really ought to start thinking about settlement once they hit the courthouse steps. You know those attorneys—the ones who talk a good game but always settle. All of the techniques we review today can be used before trial. Your skill at questioning will be evaluated at depositions, your skill at arguing will be evaluated at motion hearings. Do not save it for trial. Front-end load persuasion.

C. Opportunities to Make a Good First Impression Before trial: the Other 95%

F First conversation with opposing counsel. F First meeting with opposing party. F Depositions. F Scheduling conferences. F Motions. F Mediation and arbitrations.

D. Jury Selection Checklist

F Check questionnaire in clerk’s office. F Learn names before trial. F Get name right immediately.

2 An abridged version is in the ABA publication Litigation, Winter 2003, Volume 29, No. 2.

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F Stand up and look them in the eye. F Remember equality in questioning. F Get rid of the rogue juror by consent. F Corralling the rogue juror. F Don’t oversell your case—they cannot buy damages with-out knowing liability. F “We excuse Mr. or Ms. __________ with our thanks.” F The best way to excuse—Let the judge do it. F Stereotypes. F The “First Twelve People Not Directly Related to the Party Theory.” F Get organized. F Conspiring with your client. F How to handle the embarrassing stuff—Let the judge ask or go into chambers. F The “Extreme Question” and its use. F Go over case-breakers—the bad stuff better come out of your mouth first. F Remember they have not had to raise their hands since third grade. F “Is there anything you feel you need to tell me before I pick you as a juror?” F After selection I wanted them to like me—after opening I wanted them to like my case.

E. Making a Good First Impression with the Judge: a top ten List

Before I launch into this I want you to know that as a trial lawyer I violated most of these rules—sometimes in the same trial! But after trying cases for twenty years, and being a trial judge for six, I think I can reduce what judges want down to a top ten list.

1. We Want the Exhibit. Since judges are individuals, each has idiosyncrasies. There are some judges that have so many idiosyn-crasies they feel it necessary to have written rules for the lawyers to fol-low in their courtroom. Although the lawyers in my court may tell you something different, I believe I have only one idiosyncrasy, and here it is: I WANT THE EXHIBIT! I WANT TO SEE THE EXHIBIT AT THE SAME TIME THE LAWYER IS QUESTIONING THE WITNESS ON THE EXHIBIT! I applaud attorneys who are trying to save our natural resources, but nothing frustrates me more than what I call “the one-exhibit trial.” What usually happens is the lawyer has only one exhibit and gives it to the witness. A direct examination is then conducted over the right shoulder of the witness while the other lawyer is standing over the left shoulder to see what they are talking about. The following is an actual exchange that occurred the other day in court:

Lawyer 1: “Would you read that line of the contract for the court.”

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(Witness reads)

Lawyer 2: “Objection, your honor, rule of completeness.”

Me: “May I see the exhibit?”

Lawyer 1: “No”

Me: “Why not?”

Lawyer 1: “I have not introduced it into evidence.”

Me (slightly exasperated): “Yes, but I’m the one who ad-mits it into evidence.”

Lawyer 1: “Oh.”

Did I mention this was a bench trial? I don’t know how many times a lawyer has been examining a witness concerning a multi-part contract, a tax return, or a line item budget without me having a benefit of a copy. Even if the judge in a former life was a stenographic court reporter, it is simply much easier to follow along with the exhibit in front of him or her. If you give the judge a courtesy copy, you are more likely to get the correct result for your client in the shortest period of time. I, and many of my fellow judges, keep various colored highlighters and sticky notes on our bench to mark the courtesy copy of the exhibit. For example, I may highlight income in green and deductions in yellow on a tax return. I write questions I want to ask on the exhibit next to the relevant part of the exhibit. There is nothing more frustrating for a judge than not being able to see what everybody else sees in the courtroom.

2. We Want the Law. What is the shortest distance between the doors of your law school and earning the respect of judges? Follow-ing Model Rule of Professional Conduct 3.3(a)(2). The rule is: “A lawyer shall not knowingly fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by op-posing counsel.” In fact, I tell new attorneys to take the words “directly adverse” and change them to “arguably adverse.” Why? There is nothing more impressive than the advocate who comes into court and says, for ex-ample, “Your honor, this is our position. However, there are three cases that are arguably against us. We have cited those to you, but we believe two of those cases are distinguishable on their facts and one is just bad law. We also have two cases in our favor. . . .” Judges learn very quickly upon whom they can rely to tell them the current state of the law. Citing contrary authority builds your repu-tation as an ethical advocate. For judges who may be dealing with hun-dreds of files covering myriad legal issues, there is nothing more power-ful than being known as the advocate that a judge can always count on for accurate statements as to the law. There is also a persuasive power to citing contrary authority. It appears that you are less concerned about it when you admit its exis-

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tence—and it is even more devastating for the other side when you cite cases that are against you that they have not found. No less an advocate than Cicero said that the perfect advocate is one who could argue both sides of any case.

3. We Want Objections that Matter. Judges become frus-trated with what I will call “sport objections.” A sport objection is an ob-jection made merely for the sport of it. The other day we were at the end of a trial that had to be continued. One of the parties had not shown up in court, and I asked the representative of an agency the efforts that had been made to notify the party. The representative started to tell me that the party who was in court had told her that she had called the other party to advise him of the date. There was a hearsay objection. Now the fact that this attorney’s client had tried to notify the party of the hearing date didn’t make a hill of beans worth of difference to his client’s case. Actually the fact that she took the time and effort to try to call the other party put her in a better light. The opportunity to object does not trans-late into actually objecting. Every so often an objection actually hurts your case. In this case the lawyer who objected wanted the party to be making more money and this exchange occurred:

Lawyer 1: “Now, do you have any chance to move up in the organization?” (From his vocal intonation, he is as-suming the answer is going to be “No.”)

Witness: “Yes, they told me. . . .”

Lawyer 2: “Objection—hearsay!”

Me: “I would sustain that objection, but the bigger ques-tion is why would you object since she started with ‘yes.’ ”

Lawyer 2: “Objection withdrawn.”

Witness: “Yes, they told me I would be in line for the man-ager’s job which ranges from $40,000 to $60,000 per year” (a factor of two to three times what she was currently earning).

These are knee-jerk objections. Anytime they hear the word “said,” they make a hearsay objection without asking first “Will this hurt me?” or “Will this help me?” or “Does this matter?”

4. We Want Good Jury Instructions. Lawyers work more hours than judges. Any judge who disagrees is either a rare exception or did not work many hours as an attorney. Therefore, I always try to accommodate the attorneys’ schedules and try to save attorneys time. However, there is one group of people whose time I place above the at-torneys. I value the jurors’ time more than the attorneys’ time. Nothing frustrates a judge more than having the jurors twiddle their thumbs while we try to craft a usable set of jury instructions. Nine-ty percent of the jury instructions should be completed before trial and given to the judge. Alternate instructions based upon how the evidence

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may shake out should be typed and ready to go for the instruction con-ference. If you don’t do many jury trials, ask someone who has, such as a state’s attorney, how to do this. They’ll know what I mean.

5. We Want you to Know us. Most know the Greek maxim, “Know thyself.” Experienced trial attorneys will tell you “Know thy judge.” As I said before, I would like to think that I have only “the one-exhibit trial” pet peeve. However, I know many judges who have more than one pet peeve. I know, you’re shocked! How do you ethically find out about the judge? Here are some suggestions.

a. Call the Judge. I have no problem with an out-of- town attorney calling me and asking about procedure in my courtroom.

b. Call the Judge’s Clerk. If you feel uncomfortable con-tacting the judge directly or you know that a particular judge does not want to talk to any attorney without the other attorney being there, even on matters of procedure. Many judges’ clerks or secretaries know the procedure.

c. ask for the Written Rules. Many judges have a list of the procedures they like in their courtroom available to the attorneys.

d. Call another attorney Who Has tried a Case in Front of that Judge. Start off the conversation with, “Hey, I heard you got a good result in the Smith case”—and after the attorney talks for about 15 minutes, you can say, “Tell me about Judge Jones.”

6. We Want to Be affirmed on appeal. For the most part, our biggest fear is having a jury trial overturned and having to do it all over again. In a perfect world, every judge would have a law professor’s encyclopedic knowledge on the particular area of the law. Some judges do become specialists and have the luxury of knowing everything there is to know about a certain narrow area of the law. However, most of us rotate assignments and, especially in rural counties, the jury trials may be few and far between. I can remember as a practicing attorney a judge thanking me for taking a civil case to jury trial. He had been a judge for eight years in that county and had never heard one civil jury trial case! If you are taking a jury case to trial, you have probably lived with that case for up to a year or more. Probably the only person in the court-room who knows as much about the case as you do is opposing counsel. We judges sometimes do not track on why a particular piece of evidence is relevant, and we need time to either digest your argument or have some law on the point. What do you do? Make liberal use of offers of proof, and don’t be afraid to ask me to reconsider a previous ruling during a break in the jury trial. An offer of proof made outside the presence of the jury pre-serves the issue for appeal and also gives me more time to think about it without the pressure of 24 eyes staring at me expecting a split-second decision. I may need time to do some quick research on the law or a particular evidentiary point during the break. Don’t assume “objection sustained!” is the end of it. I don’t want to have to do this again, and if

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you are an attorney that I can trust on issues of law or evidence, I will always give you a second chance.

7. We Want Civility. I once told a young attorney during a trial training course, “You can’t treat every witness as if they were born on this earth for the sole purpose of messing with your case.” Some attor-neys just can’t help themselves and really emphasize the word “cross” in cross-examination. On a couple of occasions when I was practicing, I lost clients to attorneys who the clients thought were more “aggres-sive.” I know that the aggressive attorneys may give the clients a certain dose of psychic gratification, especially in divorce cases, by the use of aggressive tactics. But I can tell you as a judge, and from juror feedback questionnaires, that the people who decide the cases do not appreciate posturing or, put another way, “the show” simply to show off for the client. The question the attorney must ask is whether aggression is per-suasive. An example to illustrate my point: the attorney wants to show that the witness (plaintiff) did not seek medical treatment after the ac-cident. The aggressive attorney would do something like this:

Attorney: “After the accident, you didn’t ask for an ambulance.”

Witness: “Well I didn’t feel hurt at that time”

Attorney (loud and dripping with sarcasm): “Ms. Smith, I didn’t ask you how you felt, I asked whether you asked for an ambulance, yes or no, now can you answer that?”

The contrast is for the attorney to simply repeat the question slower and softer until the attorney gets the answer he or she wants.

Attorney: “You didn’t ask for an ambulance.”

Witnesses: “Well, I didn’t feel hurt at that time.”

Attorney (softer): “You didn’t ask for an ambulance.”

Witness: “Well, like I said, I didn’t feel hurt at the time.”

Attorney (even softer and slower): “You didn’t ask for an ambulance.”

Witness: “No.”

By simply repeating the simple question to which the attorney is entitled to a “yes or no” answer, the jury is soon sitting there siding with the attorney and looking at the witness screaming in their minds, “OH, JUST ANSWER THE QUESTION!” The longer it takes the witnesses to answer this simple question, the better it is for the attorney. The attorney who uses the nonaggressive technique of repetition shows the jury how the witness is avoiding the question. Attorneys must realize that naked aggression, for the most part, is solely for the gratification of themselves or their client. It rarely persuades the people who count.

8. We Want a trial Notebook. I have already talked about having the exhibit in front of me. If you really want to impress us—make

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a trial notebook. The trial notebook system is this: Four notebooks; one each for you, opposing counsel, the witness, and the judge. The original exhibits are in the witness’s trial notebook. At the front of the trial note-book there can be various items that are useful to the judge. Many of my trial notebooks included the following. F A chronology of the case. F A list of witnesses involved in the case including their ti-tles, if applicable. F A combined request to admit facts and the response to that request. F Cites to the applicable statutory or case law. F Proposed judgment: on paper and computer disk. In my trial notebook I would include my opponent’s exhibits. Many times my opponents would tell me that we could just use my trial notebook, since it had all of the exhibits. What tactical advantage is this? It allowed me to put the exhibits in the order that I wanted the judge to see them. I am not sure this is any great tactical advantage, but in a case going to trial, which, by definition, should be a close call, you should probably seek any advantage. The trial notebook system eliminates the exhibit dance in the courtroom. It eliminates the attorney having to ask permission to ap-proach the witness, state for the record that he or she is now showing the exhibit to opposing counsel, and going back to his or her chair. It becomes simply, “Would you please turn to Exhibit 24,” and everyone turns the page. It is so elegant. It is so surgical. It is so persuasive.

9. We Want the Judgment. You might want to ask the judge, with opposing counsel present, whether or not the judge would like the judgment you proposed on a computer disk that the judge could alter as he or she sees fit. I heard of one judge who took this to the extreme. He would have both attorneys prepare a judgment, and he would sign whichever one he agreed with—no additions, no corrections, no dele-tions—or so legend has it. There is certainly nothing improper saying to the judge at the end of your closing argument, “Your honor, this is our position in the case, and for your convenience I have drafted an order citing the underlying law we believe is applicable, with certain findings of fact and reflecting a judgment based upon our argument on this com-puter disk, and I will also give a copy to counsel.” If judges practice in a particular area for any length of time, they probably have a skeleton form on their computer that they use all the time. However, if you are in front of a judge who deals with varied cases, or is on special assignment, providing a copy of a proposed judgment on a computer disk, which he or she can change, is a real help.

10. We Want to talk about the Cases. The problem is that we can’t. In some of the counties in our circuit, there is only one judge. It must be lonely. I have the benefit of being able to talk about cases to six other judges in my courthouse. We would really love to be able to talk to the attorneys about the cases, but it becomes a slippery slope. The only

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time we could possibly talk to the attorneys is after any appeals have been exhausted, yet we are still concerned about post-judgment matters. Most of us loved being trial attorneys, and not being able to talk to attor-neys about particular cases, particular witnesses, or particular strategies is the biggest loss for us in taking the bench. So after we retire, regale us with stories. Until then, we former trial lawyers must live vicariously. Good luck.

II. OPENING StatEMENt

The communication experts tell us of the doctrines of primacy and recency. People remember the first words out of your mouth and the last words out of your mouth. However, what we usually see even experienced counsel do is append an introduction onto each opening statement, which does nothing to advance the case. The usual platitudes we hear are phrases such as, “Ladies and gentlemen, the purpose of an opening statement is kind of like a road map. . . ,” or, “An opening state-ment is kind of like a picture puzzle . . . ,” or, “An opening statement is kind of like a table of contents of a book. . . .” Counsel will then spend a minute or two explaining to the jury what an opening statement is before giving the actual opening. The problem with this approach is that when you stand before the jury, it is the only time you are guaranteed to have the attention of all 12 people. To tell them what you are going to do before you do it, and usually on the heels of the judge already telling them what an opening statement is, results in lost attention. If you don’t believe me, believe Abraham Lincoln. At Gettsyburg he didn’t stand up and say, “Hey, what a great crowd. I’m going to dedicate this graveyard here, and I’ve jotted down a few notes on the back of this envelope.” No, the first words out of Lincoln’s mouth were, “Fourscore and seven years ago.” If you don’t believe me, believe Martin Luther King. He didn’t stand at the Lincoln Memorial and say, “Hey, what a great crowd. I am here to give a speech on equality.” No, the first words out of King’s mouth echoed Lincoln, “Five score years ago.” Why do we do this? In surveys of what Americans fear the most, public speaking ranks as number one. Death usually comes in at about five, and snakes are usually number two. Communication experts tell us that an interesting phenomenon occurs when a person rises to give a speech. For the first 60 to 90 seconds, heart rates is close to two hundred beats per minute. After the first 60 to 90 seconds, the heart rate goes al-most down to resting rate. The adrenal glands are stupid glands. They cannot tell the dif-ference between a tiger in the jungle versus an audience in their seats. In both cases, they inject adrenaline into the body, which goes into the large muscles of the legs (the fight or flight syndrome), the heart, and the lungs. This is why attorneys tend to rely on a one- or two-minute begin-ning they have down pat, which they attach to each opening statement. The better approach is to have the first one or two minutes of your ac-

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tual opening statement down pat. This will give your body enough time to calm down. If you insist on starting with a stock platitude, you lose the entire benefit of the doctrine of primacy.

a. Opening Statement Checklist

F Eliminate the platitudes—know why you do it. F Memorize the first two minutes. F Begin with impact—perhaps your theme. F Facts, facts, facts persuade—marshal the facts in a persua-sive manner so they reach the same conclusion. F The ownership of ideas. F Don’t argue—bulletproof your opening. F What it the other side argues?—a strategy discussion. F Use the storytelling device. F Create visuals—with words or actual visuals.

B. Objections to Openings

F Argument. F Personal opinion. F Arguing law or the instructions. F Stating inadmissible evidence.

III. DIRECt EXaMINatION

In Aristotle’s The Art of Rhetoric, much is made of the person’s character being a key to persuasion. Simply put, I must know you be-fore I believe you. Ralph Waldo Emerson said, “Who you are speaks so loudly, I cannot hear what you’re saying.” What guidance does this give us for making a good first impression on direct examination? What it means is that we must give the trier of fact enough back-ground about the person for them to be believed. Simply stated, the bet-ter you can tie the witness to the trier of fact and to the case, the more the witness will be believed. What do I mean by tying the witness to the trier of fact? You already know something about the background of the witness or the judge. Look for details in the witness’s background that may help his or her believability. For example, you may want to consider whether your jurors will place more stock in the testimony of a local doctor as op-posed to an expert from hundreds of miles away. If that is the case, you might want to bring out the doctor’s background in terms of how many years he or she has practiced in the community or at the local hospital. If your witness has a military background, that may carry additional weight with some jurors. After making as many connections as possible between the wit-ness and the trier of fact, you want to make a good first impression with the clarity of your direct examination. Some counsel begin with a simple question such as, “Miss Jones, where were you at about 3 o’clock in the afternoon on August 17, 1996?” The witness responds with an answer such as, “I was standing at the corner of 12th and Broadway . . . ,” or, “I was working at the emergency room at Blessing Hospital. . . .” This lets

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the jurors in on whether this person is an occurrence witness, an expert witness, or perhaps both. Experienced counsel will make good use of the technique of headlining so that the jury can easily follow the flow of the direct examination. A headline such as, “Now, Miss Jones, before going into what happened at that corner on that day, I would like to ask you some questions about your background. . . .” Ninety-eight percent of the time counsel will take the witness on a chronological recitation of the events. However, there are cases where counsel may wish to begin with impact. For example, if defense coun-sel in a criminal case decides that the defendant should take the stand, many choose to start off with a direct denial of the crime before going into the events of that day. Similarly, sometimes what happened after the main event is more relevant than the event itself. For example, counsel could ask the wit-ness to introduce himself to the jury and headline by stating, “Now, Mr. Smith, I want to start off by asking you some questions about what hap-pened after the accident.” The examination will go something like this:

Counsel: “Tell us what was the first thing you did after the accident.”

Witness: “I ran over to the other car.”

Counsel: “Why did you do that?”

Witness: “Because I wanted to see if he was all right.”

Counsel: “When you got there, what did you do?”

Witness: “I asked him, ‘Are you okay?’ ”

Counsel: “What did he say?”

Witness: “He said, ‘Yes, I think so, I’m sorry, I didn’t see you coming.’ ”

In this example, what happened after the accident is so important that the attorney wishes to highlight it at the beginning. The admission that the plaintiff thought he was all right, that he was sorry about the accident, and that he didn’t see the other person coming is just too good to wait until the end of a chronological approach to this examination.

a. Direct Examination Checklist

F Plan your direct—Know how you are going to start and finish. F The beginning: impact, background, chronologically, re-verse chronology. F Use headlines to help us follow along. F Set the scene—ACTION—then the “why.” F Eliminate legalese. F Look to have the witness do something. F The jury pays as much attention to the witness as you do. F The witness will tend to “mirror” you. F Your eyes are their lifeline.

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F Useful memory devices—stealth notes, or create a visual in your own home. F Don’t lead. F Consider a “soft cross” built into the direct—especially with experts. F Use the building blocks: WHO, WHAT, WHERE, WHEN, WHY, HOW, SHOW US, DESCRIBE, EXPLAIN.

B. Objections to Questions

F Irrelevant. F Repetitive. F Hearsay. F Calls for an opinion. F Compound. F Assumes or misstates a fact not in evidence. F Calls for a narrative. F Argumentative. F Leading. F Ambiguous. F Asked and answered.

C. Objections to answers

F Volunteered F Nonresponsive F Narrative F Beyond the scope F Opinion F Irrelevant F Hearsay F Conclusion

D. Direct Examination of Experts

I believe there are two hurdles to expert testimony. The first hur-dle is for you to convince the jury that your expert is simply a better expert than the other expert. The second hurdle is for the jury to actu-ally understand the medicine, the science, or the engineering behind the opinion. I must admit in some of my cases perhaps I only got over the first hurdle. The jurors may not have been totally educated so that they fully understood the science behind that opinion, but they knew which expert they wanted to follow simply because the expert’s background was better or more relevant to the case or the expert was simply better at communicating his or her position.

1. you and your Expert. Be the teacher.

2. Remember “Salami.” Expert testimony is like salami: it is most appetizing served very thinly.

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3. Give your advocates the tools. They must be comfort-able with the exhibits and be able to find the exhibits to show the others when they go back to the jury room.

4. Visual(Eyes) your Evidence.

5. Never, Never, Never Say to an Expert. “Would you tell or explain that to the jury . . . (because as you and I both know we have nearly a decade of post–high school education and we know what we’re talking about).” No—the phrase is always, “Doctor or Professor, tell us. . . .” After all, we are in this together.

6. use the Formula.

a. the Introduction. “Doctor, would you introduce yourself to the jury.”

b. the teaser. “Doctor, are you here today to testify to a rea-sonable degree of medical certainty (or whatever magic words apply in your jurisdiction) as to . . . ?” He or she says, “Yes.” You say, “Doctor, before getting to your opinion, I would like to ask you about your: . . .”

c. Qualifications—Remember to Feign Interest! If you go through qualification as some rote exercise before you get to the meat of the opinion, the jurors will stop listening. As stated before, there are two hurdles to expert direct. The first is that the jury decides whether due to training, education, or experience, or through the use of plain language and visuals, that your expert is more of an expert than the other expert. This is where qualifications are so important. Tie the expert as much as you can to both the facts of the case and the jury. Your local expert may have an advantage over some hired gun from out of town. Your second hurdle is for the jurors to actually understand the medicine, the chemis-try, the physics, the math, or what have you.

d. tender—If Required. From here on down, you can mix up the order depending on what’s best: F Opinion, F Basis, F Source of information, F Where you differ and why. e. anticipate Cross.

E. What If they Forget?

1. Refresh Recollection. F “Have you forgotten?” F “Would anything refresh your recollection?” F Mark it—remember other side can see it. F Hand it to witness to review. F “Has your recollection been refreshed?” or, “After looking at that, do you now remember __________? F Take back whatever you used to refresh. F Ask the question.

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2. Past Recollection Recorded. F They forgot and nothing can refresh recollection. F “Would you have recorded these events?” F Mark exhibit—other side can see it. F “Did you make this, or was it made at your direction?” F “When made, were the events fresh in your mind?” F “Why do you keep these documents?” “What is the pur-pose in having these records?” F “How do you make sure they are correct?” F Know your local/state rules on reading it to the jury or admitting it as an exhibit.

3. Lead.

4. ask Permission to Lead.

5. take a Break. But know your rules on questions regarding what happened during the break.

F. Redirect Examination

F Limited to the cross. F Have them explain the “why.” F Prior consistent statements if they have been impeached.

G. What If they Lie?

Model Rule 3.3—A lawyer must not knowingly offer evidence that the lawyer knows to be false. If offered and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures.

IV. CROSS-EXaMINatION

In Hamlet, Shakespeare wrote, “Fit the word to the action, the ac-tion to the word.” The same goes for cross-examination. Fit the witness to the cross, the cross to the witness. My approach when I tried cases was to get the jury to think I was the nicest person in the courtroom. I have received contrary views to this approach. I once had an attorney from Brooklyn tell me that he could not take this approach on cross-exami-nation where he practiced. He said that unless you gave the jurors “the show,” they did not believe the witness had been truly cross-examined. Style differences aside, most will agree with the old saw of con-structive first then destructive. In other words, before you try to tear down a witness’s version or recollection, you first should extract from that witness all evidence favorable to your case. Cross-examination need not be cross. As with direct-examination, the use of headlines assists the jury. Headlines such as, “Now I am going to ask you some questions about what you were doing in the hour before the accident,” or, “Let’s turn to everything you did after the accident . . .” help orient the jury to where you are going. Like opening statement, many attorneys have a desire to start with the easy questions. For example, in the cross-examination of a plaintiff’s chiropractor, many attorneys begin with the money bias or

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plaintiff bias questions. This, of course, is destructive. More experienced counsel will start with questions in tougher areas, many of which are constructive. Experienced counsel will save the easy questions for when the cross-examination goes south or simply save them until the end for a good finish.

a. Cross-Examination Checklist

F Do you cross at all or do a short cross? F Constructive first. F Add bricks to your case foundation. F Safety—know your “islands of safety.” G Prior testimony. G Deposition. G Statement. G Another witness. F Learn how to ask one-fact leading questions from your “islands of safety.” F Learn the value of silence. F Remember tennis ball. F Use headlines. F Use best words, “know” vs. “aware.” F Get rid of tags and intros. F Be patient enough to use repetition. F Remember, what was not there or what was not done may be as important as what was done. F Notes need only ending words with impeaching references. F Notes need only ending words and reference to page and line number of “island of safety.” F Plan where to begin and end. F Witness control devices: G Repetition of the one-fact leading question; G “So the answer would be . . .”; G Move to strike as nonresponsive; G Ask the opposite; G “That is not my question, my question is . . .”; G “Yes or no, just yes or no”; G “I must not have asked that very well . . .”; G “Let’s try this again . . .”; G “Can you answer this question?” and then write it on the board; G Ignore it—“we’ll get to that . . .”; G Hold up your hand; G “So the short answer is ‘Yes’ ”; G “You’re answering more than I’m asking”; G “Are you done?”; G “To use your words . . .”; G Stare; G Whine;

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G The red cover method. F Don’t end with “Otis.”

B. the three Cs of Impeachment by Prior Inconsistent Statement

1. Commit them to what they told the jury. I prefer the pa-rental commitment: “Did you just tell this jury __________?”

2. Credit the prior statement by establishing it was under oath, signed, closer in time, witnessed, given to a person with authority, corrected, dated, it says, “I have read this statement and it is correct,” if a deposition that the other attorney was there, the statement had other information that was correct in it, other persons saw you sign it, or the person who made the statement had a duty to put the “important stuff” in the statement.

3. Confront.

C. Inconsistent Statement Checklist

F Timing—usually constructive first unless the impeach-ment is really big, i.e., “red light vs. green light.” F Resist instinct to go for the capillary: I will not impeach on 37 versus 35 mph unless the speed limit is 35 mph or, in other words, 37 mph does not matter if the speed limit is 65 mph. F Refreshing recollection is another option if you don’t want to do a hard impeachment on this particular witness, i.e., the county sheriff who has been reelected eight times by the jurors. F Remember impeachment by omission. F Remember prior inconsistent actions. F Make it visual. F STOP! Once you have confronted the witness, do not let him or her build his/her excuse into your cross. Let the other attorney try to dig him/her out of the hole on redirect. If you ask, “Why did you say __________ back then?” he or she will tell you and take the wind right out of your sails.

D. Cross-Examination of Experts

I like to think of the cross-examination of experts like two islands. There is the “island of expert opinion,” which is a very dangerous island! Then there is the “island of everything else,” which is not as dangerous. My primary question was whether I was going to go onto the island of expert opinion or let my own expert fight on that island. Unless I could envision me getting the expert to say, “you’re right, I’m wrong,” I would tend to let my own expert fight on that island. I know many of you may have cases where the other side has an expert and you do not and have no choice but to go on the island. However, consider how much headway you can make on the “island of everything else,” which is as follows.

F things agreed. Experts have common areas on which they all agree-compare their reports to find these areas.

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F things Not Done. They can’t do everything. If all they did was review records, it is an entire area of cross, i.e., “You did not exam-ine Mr. Jones,” “You didn’t even talk with Mr. Jones.”

F Bias, Interest, or Prejudice. Do they usually work for one side, is most of their income from court, etc.

F Source of Information. If it is all from one side, it is an entire area to explore—“All of your information came from the defen-dant’s attorney.”

F Learned treatise. Know the rule in your jurisdiction. Spe-cifically, know whether you can use a learned treatise against the other side’s expert if you own expert identifies it as a treatise relied upon by members of that profession. I know an attorney who asks each expert if she can take a picture of his or her bookshelf. I know that just because you own a book, it does not necessarily mean you agree with everything in the book, but this attorney gets the books and sets them on counsel table. Trust me, it works.

F Common Sense Questions. These are where the question is more important than the answer. For example, in a slip-and-fall case: “Professor, you would agree as we sit in this courtroom there are people slipping and falling all over the world.” Now there are only three an-swers to that question—“Yes,” “no,” or I don’t know.” “And you would agree, Professor, that sometimes people fall and it is no one’s fault but their own.”

F Qualifications. Especially if your expert has more expe-rience with this type of case or problem or has more ties to the jurors’ community.

F Other Expert. Experts are very wary of criticizing the oth-er expert, especially doctors in small towns. “Now, Doctor, you aren’t saying Doctor A is a bad doctor, are you?” “You practice at the same hos-pital.” “In fact, you’ve referred patients back and forth to each other.”

F assumptions. Take the report, take a yellow highlighter and highlight all of the times the expert uses the word “assume.” They may use it so many times that you could use it as a graphic and count the number of assumptions made.

F Jargon in the Report. Some borderline experts like to use jargon to make themselves sound more important or more scientific. Feed these words back to the expert and then put it in plain language for the jury. This can be fun.

V. CLOSING aRGuMENt

The platitude that many attorneys like to append onto each clos-ing argument is a long and effusive “thank you.” They do it for the same reason that they append a platitude onto an opening statement. We thank people all our lives, so it is easy to stand there and thank them for 30 to 60 seconds until our bodies calm down and we can launch into our closing argument. In the cases I tried, I have never had a juror come up

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to me and say, “Mr. Drummond, your evidence was scintillating, your arguments compelling, but what won the case for you was the way you thanked us in closing argument.” In terms of primacy and recency, is thanking them really your best point? Don’t get me wrong, it is a good idea to thank them, but is there any downside to putting the “thank you” toward the end? I would put the “thank you” right before I asked them for what I wanted. It would go something like this: “I thank you for your time, I thank you for your attention, I ask that you return a verdict in favor of the defendant.” In terms of primacy and recency, lead with your theme and your best argument. Then argue! Why do I say argue? We see a phenomenon in trial training with young attorneys that they will tend to reverse their opening statement and closing argument. They will stand up on open-ing statement and simply argue why they ought to win. On closing ar-gument, when they have the chance to truly argue, they tend to simply recite the facts of the case such as, “You heard from witness A, who told you 1, 2, and 3, you heard from witness B who told you 4, 5, and 6,” and so on. In essence, they give an opening statement. You are the experts at argument, so argue. Many of you became attorneys because older people told you while you were growing up, “You ought to be an attorney, you’re arguing all the time!” Since you are the experts in argument, you are giving the amateurs at argument, the jurors, the expert arguments they need with the people who are on the fence or on the other side of the fence. If you were a fly on the wall in the jury room, you would hope to hear your arguments echoing off those walls.

a. Closing argument Checklist

F Primacy—just as important as on opening. F Bury the thank you. F Use your theme. F Thoughts about personal stories. F Give your fans the tools they need. F ARGUE! F Tell them what to do—jury instructions. F Rebuttal—prepare for it and against it. F Use visuals. F Rhetorical devices. F The jury instruction you will not see.

B, Common Closing Objections

F Misstates of law or evidence—law always sustained, evi-dence rarely. F Personal opinion—once you hear “I believe,” it is an easy objection if you want it. F Per diem—too effective. F Golden rule—once again, too effective. F Personal attacks.

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VI. EMPHaSIZE tHE RECEIVER

The communication experts tell us that there are three elements to communication:

THE SENDER

THE MESSAGE

THE RECEIVER

What you focus on determines your expertise as a communicator. The amateurs’ communication concentrates on themselves, the sender. They are so focused on how they are feeling—usually scared—that they disregard both the message and the receiver. The middle-level com-municator concentrates on the message, but the expert communicator concentrates totally on the receiver. I will tell you a miraculous thing happens when you concentrate totally on the receiver. When all I care about is whether the judge or jury is getting my point, I become much less self-conscious. I lose myself in the presentation. By concentrating on the receiver, you will forget about yourself and do a better job of communicating. The expert trial lawyers also try to appeal to the three types of information processors. The brain scientists tells us that there are visual processors, auditory processors, and kinesthetic processors.

F Visual Processors. These people prefer to get their infor-mation through their eyes. Everyone is a mixture of all three types of processors, but most people are visual processors. They say things like, “I see what you mean,” “that’s not clear to me. . . .”

F auditory Processors. These people prefer to hear their in-formation. They say things like, “That sounds good to me.”

F Kinesthetic Processors. These people decide based upon feelings. They say things like, “I don’t feel right about this.”

The great trial attorneys try to appeal to all three. For example:

Counsel: Did you hear anything when your car hit the tree?

Witness: Yes, I heard the bone in my wrist snap.

Counsel: When you looked at your wrist, what did you see?

Witness: My wrist was at an odd angle.

Counsel: How did you feel?

Witness: I felt a sharp pain in my wrist that seemed to go to the pit of my stomach.

Counsel: Did you taste anything?

Witness: Yes, there was blood in my mouth. [So we get a little gustatory, too!]

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VII. REMEMBERED FaCtS aLONE PERSuaDE—tHE HIERaRCHy OF attENtION IN a COuRtROOM

I know I am stating the obvious, but unless the judge remember it back in chambers or the jury remembers it in the deliberation room it cannot be effective. I believe that people pay attention to things in a courtroom in this order.

1. actions. You could be delivering a closing with the power of a Martin Luther King, the phrasing of a Barbara Jordan, and the elo-quence of a Winston Churchill, but if the bailiff is picking his nose, you better stop. We all know that a little action in the courtroom can wipe out any words being said. You could have the butcher knife poised over the victim’s heart, but if the back door of the courtroom opens, all heads swivel to see who it is and where they are going to sit.

2. Objects. Jurors and judges like the actual thing. They will examine it in great detail. If you have ever seen a chiropractor illustrat-ing whiplash with a plastic human spine, you know what I mean.

3. Pictures. They are truly worth a thousand words, maybe 10,000 in court.

4. Diagrams or Charts. It may take a 1000 words of direct testimony to lay out a street scene. I am constantly drawing my own maps on my notepad. Do us all a favor, get your points with the jury and give us a diagram of the scene. Your effort will be rewarded.

5. Written Word. Lists of who is going to testify, a timeline, etc., can be of great help and will be remembered.

6. the Spoken Word. We graduate from law school and think people hang on our every word. They do not. Witness your own experience in your own homes. Anything in the hierarchy that competes with the spoken word will tend to cancel out the spoken word. If you want jurors to concentrate on what the witness is saying, eliminate all other distractions.

VIII. SIMPLIFy—DO a “tHOREau”

“Simplify, simplify, simplify,” said Thoreau. As in life, this ad-vice works in the courtroom. I believe juries very quickly pick that side which seems to be able to make a complicated case simple. Here is a checklist of suggestions for simplifying a case. F The case in a nutshell: This is a one-page outline at the front of your trial notebook in a bench trial or a graphic for the jury that gives jurors the uncontested significant events in a simple outline. F A timeline of significant events. F A chart of all witnesses and how they are connected to the case. F A glossary of terms used by the experts. F A diagram of the scene.

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F Simplify your language—you are no less a professional by using the words on the right as opposed to the words on the left:

Prior and subsequent Before and afterDirecting your attention to August 5th . . .

Let’s go to August 5th . . .

Aware or aware of Know or knewStrike that (you know it’s never stricken)

Let me back up orLet me try that again

Did you have an occasion to find yourself at . . .

Where were you August 5th at about 9 p.m?

Your deposition was taken . . . (how painful!)

You’ve been asked questions about this before . . .You were under oath; your attorney was there . . .

a. understand the Power of Notebooks

See top ten list for making a good first impression with the judge, point 8, above.

B. address—See Gettysburg

Who was the principal speaker at Gettysburg? It was not Abra-ham Lincoln. The president was invited as a courtesy. No, the principal speaker at Gettysburg was the acknowledged orator of the day, Edward Everett. He spoke for two hours. No one remembers one word of his speech. Afterward, he wrote this to Lincoln: “I should be glad if I could flatter myself that I came as near to the central idea of the occasion, in two hours, as you did in two minutes.” On jury surveys that I send out, the number one complaint by jurors is that attorneys are too repetitious. Attorneys are too repetitious. Sorry. I always glance at the jury when a lawyer rises to cross and begins with, “Now, Mr. Jones just a few questions. . . .” I am never disappointed. Winston Churchill remarked that the shortest words are the most powerful words. The reason that classes are only about 50 minutes in length is that is all we can usually take before our minds need a rest. Do what you can to trim the fat from your cases. Juries and judges will thank you. Always remember: the jury wants you to succeed. They want to make the right decision, and your job is to guide them to it. The attention span of the average American is shrinking. Sermons used to be two hours long. Now people are upset if their web page does not load within so many milliseconds. Respect their time. Jurors know very soon which attorney is getting them the infor-mation they need in the most efficient and effective manner. You want to be that attorney.

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IX. DELIVERy

English is a language dependent upon inflection for meaning. Take the sentence, “I told you to mail the package.” You can get as many different meanings out of that sentence as there are words in the sentence. The studies of the noted linguist, Dr. Albert Mehrabian, reveal that if the total message equals 100%, then 7% of meaning comes from the words we use, 38% comes from our vocal inflection on those words, and the remaining 55% comes from visual cues. I have no scientific evi-dence to back up the next statement, but I believe the message most de-pendent upon inflection and visual cues in the entire English language is the phrase, “I love you.” So you’re asking, “What do these statistics have to do with tri-als?” They mean that you must believe in your case. Unless you have the acting ability of a Robert DeNiro or a Meryl Streep, you must believe, or your body, your vocal inflection will betray you. In motion hearings, I can usually tell very quickly whether an attorney believes in his or her position or whether he or she is just going through the motions (pardon the pun). So let’s hope you believe in your case. If you do not, someone else should by trying it. Assuming you believe, here are some thoughts on delivery. F Linguists tell us that we can listen three to five times faster than the normal pace of speaking, but the corollary to that is that we can only remember three disparate thoughts or facts in a row before we need a break. F Therefore, chunk your information. Broadcasters are great chunkers. Listen to the evening news and note the amount of space an-chors leave between words or series of words. F The great pianist Artur Schnabel said, “There are many pianists who can play the same notes as I, but the pauses, ah, that is where the art resides.” F For a great example of pausing, watch Gregory Peck’s closing argument in To Kill a Mockingbird. F Each of you has a vocal range in which you feel comfort-able. Let me suggest that the times when you have been most persua-sive are usually times when you felt a great deal of emotion about the subject. You do not have to be a great orator to be effective. Remember the old Emeraude perfume commercial: If you want to capture someone’s attention: whisper. Slow, well-paced delivery in the lower register can be very effective. It is reported that one of Clarence Darrow’s most effec-tive closing was one he delivered while ill in a wheelchair. The jury was about spilling over the rail to catch every word. F People listen to music because it has different pitches, rhythms, and tones. So must our speech. You could not listen to the first dramatic part of Beethoven’s Fifth without soon getting bored. Jurors are the same. We need to vary our delivery to keep their attention.

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X. EMPHaS(EyES)/VISuaL(EyES) tHE StORy

I could give you a string cite on all of the retention studies that say we remember 70 to 80% of what we see and only 10 to 15% of what we just hear. My gosh, even the venerable New Yorker now has pictures! Here’s a checklist for the use of visuals. F If used on opening, make sure you have admissible or agreed facts. F Presentation software is great, but it usually does not go back to the jury room—you must print out your slides. F Put your graphics in a request to admit facts or genuine-ness of documents. F Check colors—come on, your client’s car in green and the other car in red is too easy an objection. F Check types of graphs to make sure they are not decep-tive. Do the measures have volume with another dimension that can be deceptive? Do the axes start at zero? Are they arithmetic or logarithmic? Etc. F Check special effects. F Good movies for trial lawyers: Witness for the Prosecu-tion, MGM 1957; Rainmaker, Paramount 1997; Philadelphia, Sony Pictures Home Entertainment 1993; My Cousin Vinny, 20th Century Fox Home Entertainment 1992’ To Kill a Mockingbird, Universal Studios Home Vid-eo 1962, 12 Angry Men, MGM Home Entertainment 1957. F Resources: PowerPoint for Litigators, The National Institute for Trial Advocacy, (800) 225-6482; The Visual Display of Quantitative In-formation, Envisioning Information, and Visual Explanations, Edward R. Tufte, Graphics Press, Box 430, Cheshire, CT 06410.XI. A Final Word I heard someone say once, “They do not care how much you know, until they know how much you care.” I think great trial lawyers are able to convey how much they care about their clients and about their cases. They show how much they care about the jury by the way they make sure everyone can hear, can see, and, through plain language, can un-derstand. Even when cross-examining a witness on the other side, they are able to convey a sense that they are seeking the truth as opposed to destroying just for the sport of it. Every time I teach lawyers, I tell them that there are as many different ways to try a case as there are attorneys in the room. I hope I have given you a sampling of various ideas that will mesh with your particular style. Thank you and good luck to each and every one of you.

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aPPENDIX—PRESENtatION SLIDES

1

Masters in Litigation

Hon. Mark A. Drummond

Eight Keysto

Persuasion

The Eight Keys-Number One

Primacy-1st Impressions are “Golden”

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2

“The interviewer makes an immediate overalljudgment about you within the first five seconds,

and the next 25 seconds are spent checkingthe chemistry and verifying the initial impression.”

Pick Three Characteristics

Animated Intelligent Forceful Hesitant Decisive Timid Careful Reckless Insightful Nostalgic Happy ThoughtfulConfident Brash ExtrovertedIntroverted Realistic Dreamer Sad Caring Realistic

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3

Persuasion

1. Assemble as many techniques as possible.2. Make the persuasion “Successes” occur more often. 3. Put more of YOU into the courtroom, negotiation table or settlement conference.

Only 5% of Cases go to Trial so Front-end Load Persuasion

First conversation with opposing counsel First meeting with opposing party Depositions Motions Scheduling conferences Mediations and Arbitrations

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4

“…yesterday I used an [eight slide]PowerPoint presentation during

a mediation.”

“The claims Representative andthe Plaintiff were very impressed.”

“The case settled within an hour- and-a-half.”

Rethinking Deposition Defense: The Case for Strategic Disclosure-Steven Lubet26 American Journal of Trial Advocacy 13Litigation, Winter 2003, Volume 29, No. 2Chicago Daily Law Bulletin, January 31, 2003Another Free Resource: DecisionQuest

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5

Jury Selection Check questionnaire at Clerk’s officeLearn names before trial Get name right immediately Stand up and look them in the eye Remember equality in questioning Get rid of rogue juror by consent Corral the rogue juror Get to know the courtroom personnel

Jury Selection Don’t oversell“We excuse Mr. ______ with our thanks”Best way to excuse-Let the judge do it Stereotypes The “First Twelve People not Directly Related to the Party Theory”Get Organized Conspiring with your client

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Jury Selection The embarrassing stuff--go into chambers The “Extreme Question”Go over case breakers- the bad stuff Not raised hands since 3rd grade “Is there anything you feel you need to tell me before I pick you as a juror”After selection I want them to like me-after opening I want them to like my case

Judge’s Top Ten ListNo. 1 We want the exhibit No. 2 We want the law Model Rule 3.3: A lawyer shall not knowingly fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

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Judge’s Top Ten ListNo. 3 We want objections that matter No. 4 We want good jury instructions No. 5 We want you to know us No. 6 We want to be affirmed on appealNo. 7 We want civility No. 8 We want a trial notebook No. 9 We want the judgment No. 10 We want to talk about the cases

Case Planning Work Backwards What do you want to say in closing? Review Jury Instructions/Check Pleadings Legal Theory versus Persuasive Theory Create a Proof Chart Think outside the Box Do Good Facts/Bad Facts Look for Themes

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OpeningEliminate Platitudes Memorize the 1st two minutes Begin with Impact-your Theme or “It was dark and stormy night….”Facts Persuade Ownership of Ideas Don’t Argue-Bulletproof your opening A well told STORY wins cases Create Visuals-Use actual visuals or create them in their mind Don’t make promises/burdens you cannot keepThe evidence will show and what I say is not...

9

Objections to Openings

ArgumentPersonal Opinion Arguing law or instructions Stating inadmissible evidence Counsel is testifying

FACTS VERSUS ARGUMENTS She must not have been hurt because after the accident she went to McDonalds After the accident she went to McDonaldsAfter the accident she……didn’t ask for an ambulance…didn’t ask to go to the emergency room…didn’t ask to go home to go to bedShe did go somewhere She went (pause)….to McDonalds

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Plaintiff Defense

Minicom placed their first order in September and four months later made another order for the same parts, the same amount of parts at the same price and wrote “ship as per our usual agreement”

The first order came in September of the year 2000The fall of 2000 ended Thanksgiving 2000 passed; Christmas 2000 passed 1000’s of orders from 1000’s of customers came in 2000 ended and in the 1st part of 2001 a second order came in

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At 10 o’clock in the morning of Midsummer Day, the driver of a four-wheeled cab was returning to the town when he observed, near the side of the road, under some bushes, in a little wood, something lying.

He got down to look. What was it? The body of a woman--dead--barely cold.What was there which attracted the special attention of the cabman as he examined this poor creature? On her feet there were no sho-o-o-es.

At 5 o’clock that morning Private Simmons and Private Newley who are in the dock behind me entered Malplaquet Barracks after a night’s leave.

One of them was carrying something.What was he carrying? A pair of women’s sho-o-o-es.

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“Video Cameras, Too, Can Lie, or at Least Create Jury Prejudice”

Science Journal by Sharon Begley-The Wall Street Journal January 31, 2003

“In one instance, the simple change from an equal-focus confession to a suspect-focus confession doubled the “conviction” rate”“Minnesota and Alaska require that interrogations and confessions be videotaped.”

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Direct Examination Checklist Plan your Direct Begin with Impact, background, chronology or reverse chronology Use headlines Set the scene----ACTION---then the “WHY”Eliminate Legalese

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Direct Examination Language

Use plain language Prior and subsequent “Now Officer O’Leary, in reference to the accident on August 23, 2000 did you have an occasion to find yourself at the corner of 12th and Broadway”“Subsequent to your arrival at that corner what did you observe?”

Direct Examination Checklist Plan your Direct Begin with Impact, background, chronology or reverse chronology Use headlines Set the scene----ACTION---then the “WHY”Eliminate Legalese Look to have the witness do something

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Direct Examination Checklist Plan your Direct Begin with Impact, background, chronology or reverse chronology Use headlines Set the scene----ACTION---then the “WHY”Eliminate Legalese Look to have the witness do somethingThe jury pays as much attention to the witness as you do

Direct Examination Checklist The witness will “mirror you”-Don’t be E-OreYour eyes are their lifeline! Useful memory devices Do not lead Consider building in a “Soft Cross”The Building Blocks: WHO, WHAT, WHERE, WHEN, WHY, HOW, SHOW US, DESCRIBE, EXPLAIN

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Objections to Questions

IrrelevantHearsay CompoundCalls for a Narrative Leading on Direct Asked and Answered Ambiguous

Objections to Questions

RepetitiveCalls for an opinion Assume or misstates fact not in evidenceArgumentativeAmbiguous

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Objections to Answers

Volunteered Non-responsive Narrative Beyond the scope Opinion IrrelevantHearsay Conclusion

Direct Examination of Experts

You and your expert-BE THE TEACHERRemember “SALAMI!”Give your advocates the know-how & tools Visual(eyes) your evidence Never say, “Tell the jury”--it is always, “Tell us…”

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The Formula 1. The Introduction 2. The Teaser 3. Qualifications-Remember Feign Interest! 4. Tender-if required 5. Opinion 6. Basis 7. Source of Information 8. Where do you differ and why 9. Anticipate cross

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Exam: “Multiple minor contusions & abrasions,

chest sounds normal, abdomen non-tender, neuro exam negative.”

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What if they forget?

1. Refresh Recollection 2. Past Recollection Recorded 3. Lead 4. Ask Permission to Lead 5. Take a Break, but…..

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Redirect of a Witness

1. Redirect-limited to cross. 2. Have them explain-the “WHY” ?3. Prior Consistent Statement

What if they lie?

Rule 3.3-A lawyer must not knowingly offer evidence that the lawyer knows to be false. If offered and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures.

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Cross-Examination Checklist Do you cross at all or the short cross Constructive 1st-Start and end strong Add bricks to your Case Foundation Safety-Know your safety nets -Prior Testimony -Deposition-Statement -another witness

Learn how to ask one-fact leading ?’s from an “ Island of Safety”

“From where I was standing I thought the car was going over the speed limit, a little bit.”Q. The car was going too fast? Q. The car was going fast? Q. The car was speeding? Q. “From where you were you thought the car was going, a little bit , OVER THE SPEED LIMIT?”

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“ I went to McDonald’s after the accident”“…and you were so hurt that after the accident you went to McDonald’s.”“You must no have been very hurt because you went with your friends to McDonald’s”


“You did not ask for an ambulance.”“You did not go to the emergency room.”“You did not ask your friends to drive you home.”“You did go somewhere.”“You went to (dramatic pause) to McDonald’s

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Cross-Examination Checklist Learn the value of silence. Remember tennis ball.Use headlines Use the best words--Know v. Aware Get rid of intros and tags Be patient enough to use repetition. Remember “What was not done” maybe as important as what was done

How do you keep Control? y pThe Red Cover Method BY THE WAY YOU ASK THE ?1. Repeat-Repeat-Repeat-Repeat-Repeat-Repeat-Repeat-Repeat

2. “So the Answer would be…”3. Move to Strike as Non-Responsive 4. Ask the Opposite 5. “That’s not my ?-My ? is…”6. “Yes or no, just yes or no”

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How do you keep Control?

7. “I must not have asked that very well…”8. “Let’s try this again…”9. “Can you answer my ?”/Write it10. Ignore it/ “We’ll get to that…”11. Hold up your hand 12. “So the short answer is YES!”13. “You’re answering more than I’m asking”

How do you keep Control?

14. “Are you done?”15. “To put it in your words…”16. STARE17. WHINE

Don’t End with OTIS.

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Goal: She is not watching Headline: Let’s turn to your

duties that day 1. YOU “sign in patients”

2. YOU “answer the phone” 3. YOU “pull files”

4. YOU “fill out insurance forms”

1. Can she see? Ms. Reed “sitting along far wall.” “Dried flowers on table.”

2. Was she paying attention? “Fairly busy that day.” “Lots of kids

in the room.” “Maybe 30.” 3. What else was she doing? “signing in patients, answering phone calls, pulling

files and filling out insurance forms.” 4. Biased? “sent bills she never paid,

asked her about this several times---asked about it that day, she was very rude, told me

to mind my own business.” 5. Things she did not do- “I didn’t say

anything to Ms. Reed or the doctor about what I saw.”

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You Telephone

Files

Note Pexi-glass

Ms. Reed Robert

Dried flowers “Maybe 30 people in the room.”

-Pat Williams 8/26/98

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The Three C’s of Impeachment by Prior Inconsistent Statement

1. Commit 2. Credit-Under oath, signed, closer in time, witnessed, given to a person with authority, corrected, dated, It says “I have read this statement and it is correct”, has correct info. in it, other persons there, and had duty to put important “stuff” in.3. Confront

What they said in court

What they said before

The “Valley of Accreditation”

1. Closer in time 2. Under Oath

3. Signed 4. Witnessed

5. Corrected it

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Some Rules

1. Timing 2. Resist Instinct to go for the capillary! 3. Try to refresh if it suits purpose. 4. Remember Impeachment by Omission. 5. Remember Prior Inconsistent Actions. 6. Make it visual. 7. STOP!!!!!!!!

The Islands of…Expert Opinion Everything Else

A VERY DANGEROUSISLAND!!!!!!!!“OH , YOU’RE RIGHT, I’M WRONG!

verything Elsee yt g seThings Agreed Things Not Done Bias, Interest or Prej. Source of Info. Learned Treatise Common Sense Qualifications

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The Islands of…Expert Opinion Everything Else

A VERY DANGEROUSISLAND!!!!!!!!“OH , YOU’RE RIGHT, I’M WRONG!

verything Elsee yt g seThings Agreed Things Not Done Bias, Interest or Prej. Source of Info. Learned Treatise Common Sense Qualifications Other Expert Assumptions Report-ridiculous

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“His Nobel Prize pedigree helped (him) sell his opinions for as much as $600 an hour…..and

for two decades, (his) opinion’s paid off without his ever appearing on the stand.”

“But when G.D. Searle decided to fight (he) was forced to take the stand”

“And the transcript isn’t pretty.”

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1. “He admitted he worked just 40 hours in forming his basic opinions.”

2. “His “research” amounted exclusively to reviewing documents provided by

(his client’s) lawyers.”

3. “He confessed that a paper he wrote supporting his opinions was so extensively rewritten by lawyers that no single original

sentence survived intact.”

4. “He barely examined a Congressional Budget Office report that debunked some of

the significant arguments in the lawsuit.”

5. “Somehow his work totaled 300 hours, for a $180,000 paycheck.”

Closing

Your start-PRIMACY! Bury the thank you Use your theme Thoughts about personal stories Give your fans the tools they need ARGUE! Tell them what to do-jury instructions

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Closing

Rebuttal Rebuttal Use visuals: Backdrops, Scrabble, Quotes, Exhibits Rhetorical Devices anyone?

Rhetorical Devices

The Jury Instructions you will not see!

Does Kane Electronics have more money than Roberta Quinlan?

Can Kane Electronics afford it?

You should be biased against companies.

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Objections during closing

Misstate Law or Evidence Personal Opinion Per Diem Golden RulePersonal attacks

The Eight Keys-Number Two

Primacy-1st Impressions are “Golden”Emphasize the Receiver

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Elements of Communication

SENDER

MESSAGE

RECEIVER

Information Processing

Visual- “I see what you mean.”Auditory- “I hear what you’re saying.”Kinesthetic- “This doesn’t feel right.”

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The Eight Keys-Number Three

Primacy-1st Impressions are “Golden”Emphasize the ReceiverRemembered Facts alone Persuade

Hierarchy of Attention

Actions Objects Pictures

Diagrams or Charts The Written Word The Spoken Word

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The Honesty Award

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“This Monday, I tried my first jury trial.” “After 15 minutes the jury returned a

verdict in favor of my client.” The techniques I used were:

1. “I enlarged all of the reasons allegedby the other side and put them on an easel.”

2. “I used a chart showing that she fed her three children on $93.00 per month.”

3. “I brought the splatter screen (piece of plastic) that my client had pinned to

the wall to protect it…The manager’s “Memo for the Record” said that she had a piece of plastic that was a fire hazard

pinned to the wall.”

“[These techniques] contributed to my levelof confidence, efficiency and to my client having a roof over her head.”

The Eight Keys-Number Four

Primacy-1st Impressions are “Golden”Emphasize the ReceiverRemembered Facts alone PersuadeSimplify- “Do a Thoreau”

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The Case in a Nutshell

1971 Couple met at University 1975 Marriage-May 25 1976-79 Medical School in Europe Mrs. G. earns $18,000-$20,000 9/27/79-Daughter born 1981-84 Internship in Chicago 3/23/82-Son born 5/14/83-2nd Daughter born


1987-88 Internship St. Louis-Dr. G. earns $75,000 1989 Family moves to Quincy Dr. G. bills $755,313.71 1990 Dr. G. leaves marital home 9/90 Dr. G. buys home worth $198,000 with $40,000 from nurse’s divorce

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10/90 Dr. G. opens practice in Missouri-pays nurse/fiancée $27,996 per year 12/90 Marries Nurse “When the going got good…….

The doctor got going!”

The Eight Keys-Number Five

Primacy-1st Impressions are “Golden”Emphasize the ReceiverRemembered Facts alone PersuadeSimplify- “Do a Thoreau”Understand the Power of Notebooks

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The Trial Notebook System

1. Four Notebooks plus a Visual for Jury. 2. Highly Indexed 3. Highly Highlighted 4. Combined RTA and Answer 5. Include Opponent’s Exhibits

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The Eight Keys-Number Six

Primacy-1st Impressions are “Golden”Emphasize the ReceiverRemembered Facts alone PersuadeSimplify- “Do a Thoreau”Understand the Power of NotebooksAddress-see “Gettysburg”

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The Top Three Juror Complaints

Attorneys are too repetitious! Attorneys are too repetitious! Attorneys are too repetitious!

The Eight Keys-Number Seven

Primacy-1st Impressions are “Golden”Emphasize the ReceiverRemembered Facts alone PersuadeSimplify- “Do a Thoreau”Understand the Power of NotebooksAddress-see “Gettysburg”Delivery

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English is Inflectional

Words = % Inflection = % Visual Cues = % MESSAGE = 100 %

English is Inflectional

Words = 8 % Inflection = 37 % Visual Cues = 55 % MESSAGE = 100 %

What does this mean? It means you gotta believe!

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“His demeanor was not that of a strong man in a moment of

contrition but that of a defensive man in a

moment of aggression.”

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By Steve Kioehn Tribune Religion Writer!

“Oxford English Dictionary’s

definition of “sorry” as ‘pained at heart.’”

“Is saying that you already said you were sorry the same

thing as saying you are sorry?”

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Remember Bill, love is never having to say you’re sorry!

Make Different meanings

I TOLD YOU TO MAIL THE PACKAGE.WOW, YOU WERE A GREAT LOVER.

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Listen, Remember then Write 13092669282

1

217

223

21

31

Primacy and Recency

1 3 0 9 ………………………..9 2 8 2

1 2 1 7 .……………………….2 1 3 1

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Courtroom Communication They want you to succeed Attention spans are shrinking They pick the most efficient attorney The value of silence in the courtroom--use it for emphasis; use it for retention Remember Artur Schnabel Remember Emeraude perfume You are the ultimate persuaders

The Eight Keys-Number Eight

Primacy-1st Impressions are “Golden”Emphasize the ReceiverRemembered Facts alone PersuadeSimplify- “Do a Thoreau”Understand the Power of NotebooksAddress-see “Gettysburg”DeliveryEmphas(eyes) and Visual(eyes) the Story

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The Duties we owe to Judge/Jury

1. The Duty to keep their Attention. 2. The Duty to advance our Facts, Witnesses and Position in the most understandable form possible. 3. The Duty to give our Advocates the best arguments for our position.

Say the color of each word

RedGreenBlueBlackYellowPurpleGreen

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Say the color of each word

GreenBlueYellowGreenRedBlackBlue

March April May June July August Sept. Oct. Nov.

Rehabilitation Record of Dennis McClain March-November 5/11 Left 20 minutes early

5/14 Cancelled

5/28 Omitted Heat Therapy

6/25 Left 20 minutes early

7/6 Skipped whirlpool

7/9 Cancelled

8/3 Whirlpool only

8/31 No heat therapy or exercises

9/14 Cancelled

9/21 Cancelled

9/28 Left 10 Minutes early

10/12 No whirlpool or diathermy

10/19 Cancelled

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I already have a prospect in mind

“I would use my best efforts and contacts (which are many) to find

a suitable purchaser”

“exchange of shares” “purchaser of either the assets or the stock of the company

although…open to an exchange of your stock for stock.”

“3 to 5 percent”

“no less than 3 percent”

“the closing value”

“net closing value”

Letter sent Letter drafted-not sent

Why use Presentation Software

Flexibility ColorfulEasy to change Easy to control flow of information Incorporate Text, Pictures, Timelines, Graphs, Charts, Diagrams and Videos

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Potassium Chloride Infusion

0

5

10

15

20

25

0:00 0:12 0:24 0:36 0:48 1:00Minutes

Milli

mol

es

ActualPrescribed

4

20

Attack!!!!!!

How to get it in!

Request to Admit Facts Put in only admissable/agreed facts Check Colors Check type of Graphs Check Special Effects

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“Children naturally enjoy their chiropractic adjustments.”

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“The spinal malfunction from falling when learning to walk,

can often be helped with chiropractic care.”

“…a baby’s first few steps should be followed by chiropractic

checkups….bumps and falls… may lead to serious spinal

deformities later in life.”

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Vending Service Van versus Garbage Truck

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59

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60

0102030405060708090

100

1 Q 2 d Q 3 d Q 4 h Q

EastWestNorth

0102030405060708090

1st Qtr 2nd Qtr 3rd Qtr 4th Qtr

EastWestNorth

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0

10

2 0

3 0

4 0

5 0

6 0

7 0

8 0

9 0

10 0

1st Qt r

S I U 9 4 %

S t a t e 9 2 %

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0100000200000300000400000500000600000700000800000900000

10000001100000120000013000001400000150000016000001700000180000019000002000000

1985 1986 1987 1988 1989 1990

Total Income/Officer's Salary1985-1990

Total Income Officer's Salary

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Market Overlap

Percentage of Dr. Smith’s patients from towns that also turn to Dr. Jones 80.1%Other patients 19.1% 80.1

19.9

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65

“Placement of particularly obnoxious activities at the top (murder) and bottom of the list

(pistol whipping a priest) exploits the visual prominence

of those positions.” -Edward R. Tufte

Envisioning Information

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Began with422,000

Began with422,000

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67

Began with422,000

Rear 22,000

North 33,000

100,000

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-26 -21 -30

Berezina River

50,000

22,000

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4,000

6,000

10,000

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Troop Strength

Landmarks Distance

Direction

Time

Temperature

Very interesting

Sorta Boring

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Masters in Litigation

Hon. Mark A. Drummond

Eight Keysto

Persuasion

3–96
