outstanding trial work-supplmt - cle center

froM thE bEnCh:outstanding

trial WorKPanelists

hon. teri Jackson San Francisco Superior Court

hon. Jo-lynne leeAlameda County Superior Court

hon. robert McguinessAlameda County Superior Court

hon. rise PichonSanta Clara County Superior Court

Moderated by scott graham Editor in Chief, The Recorder2.0 CLE credits

Wednesday, May 18, 20119 to 11 am – program

Registration, networking and continental breakfast

open at 8:30 amCommonwealth Club

595 Market Street, 2nd FloorDowntown San Francisco

(Montgomery Street Bart/Muni)

Learn from The Recorder’s

panel of judges what they see

exceptional litigators doing to

maximize their effectiveness in court.

Discussion includes best qualities of

top trial attorneys, common mistakes

to learn from, picking a jury, openings

and closings, and direct and cross-

examination. This live, two-hour CLE

program includes networking time and

audience Q&A.

Agenda

9:00 am — Motions in Limine

9:15 am — Jury Selection

9:30 am — Opening Statements

9:40 am — Evidence

9:50 am — Instructions

10:00 am — Closings

10:15 am — After Trial

10:30 am — Audience questions

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Outstanding Trial Work Supplement

indEX to suPPlEMEntal MatErials

trial advocacyJury Selection: Dealing With Damages in Era of Tort Reform . . . . . . . . . . . . . . . . . . . . . 5

Common Mistakes on direct Examination . . . . . . . . . . . . . . . . . 6

trial advocacyExposing Biased Testimony on Cross-Examination . . . . . . . . . . . . . . . . . . . . 8

trial advocacyGetting the Picture: using Exhibits Throughout a Trial . . . . . . . . . . 11

trial advocacyDealing With Weaknesses and Maintaining Credibility . . . . . . . . . . . . . . 13

dealing With damages in Voir dire and summation . . . . . . . . . . . . . . . . . . . . . . 15

100 days and Counting . . . . . . . . . . . . . . . . 18

2 The Recorder Roundtable FROM THE BENCH: DISCOVERY January 26, 2011

Jeff Kichaven is one of the country’s leading mediators of litigated commer-cial cases. Earlier this year, he opened a San Francisco office in order to serve his Northern California clients better. His Bay Area roots include a 1977 Bachelor’s Degree in Economics from UC Berkeley, where he was elected to Membership in Phi Beta Kappa. He also earned a Juris Doctor from Harvard Law School in 1980, With Honors (Cum Laude). He practiced business litigation for 15 years before he established his mediation practice in 1996.

In 2006, Kitchaven was named California Lawyer Attorney of the Year in ADR. In 2007, he taught the Master Class for Mediators for Harvard Law School. In April, 2010, he received the Award for Excellence in Mediation from the Asian Pacific American Dispute Resolution Center, for his commitment to diversity. His principal areas of prac-tice are Insurance Coverage, Intellectual Property (including Patent) and con-flicts between technology and enter-tainment companies. His intellect, wit and charm help parties in conflict find graceful ways to put difficult situations behind them.

For more information, please visit www.jeffkichaven.com.

Founded in 1999 by attorney Stacy Miller Azcarate, Miller Sabino & Lee provides attorneys to a diverse range of clients. We assist clients in accomplish-ing their expansion goals by providing a broad range of services including staff-ing newly opened branch offices, find-ing associate attorney candidates and practice groups to complement a firm’s particular focus, and locating in-house attorneys.

As a preeminent recruiter and advisor in the legal placement field, Stacy has placed numerous large groups, assisted firms with mergers, opening branch offices and single attorney placements. She has been quoted in the Wall Street Journal, The Recorder, The National Law Journal, The American Lawyer, The Wall Street Journal Blog, Abovethelaw.com and GlassHammer.com. She frequently lectures and writes articles on legal recruiting, professional development and the business of the legal profes-sion. Stacy is a member of the CA Bar, President of The Lawyers’ Club of San Francisco and a member of the USF School of Law Board of Governors.

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The Recorder Roundtable FROM THE BENCH: DISCOVERY January 26, 2011 3

hon. teri Jackson San Francisco Superior Court

Judge Teri Jackson was appointed to San Francisco Superior Court by Gov. Gray Davis in 2002. Previously she spent 16 years as a prosecutor in the San Ma-teo and San Francisco district attorneys’ offices, including head of the homi-cide unit in San Francisco, and was of counsel at Orrick, Herrington & Sutcliffe from 1997 to 2002. She has a J.D. from Georgetown University Law Center.

Judge Jackson is an advisory member of the California Judicial Council and has served as an adjunct professor at University San Francisco School of Law and at Hastings College. She also has taught law for The Rutter Group, San Francisco Law School and the California District Attorneys Association.

On the court, Judge Jackson has pre-sided over felony trials and preliminary hearings, the latter including that of Ed-win Ramos, an alleged killer of a father and two sons. Her current assignment is civil trials.

hon. Jo-lynne leeAlameda County Superior Court

Alameda County Superior Court Judge Jo-Lynne Q. Lee was appointed to the bench by Gov. Gray Davis in 2002. Prior to her appointment, she served as a criminal prosecutor in Bronx County, N.Y., and for the United States Attorney in the Northern District of California. She also has worked as a civil litigator at vari-ous firms in the S.F. Bay Area, including Kennedy, Gong, Mitchell & Lee, LLC; as a researcher (National Center for State Courts trial court delay project); and a mediator and court appointed special master/discovery referee (Griffiths & Castle, Special Masters).

Judge Lee’s assignments have included overseeing misdemeanor and felony trials and assignment to a civil direct cal-endar. In January she was assigned to the asbestos calendar, where she manages all asbestos cases in Alameda County from filing of complaint through trial. Judge Lee grew up in New York City and graduated from Columbia University Law School in 1974.

hon. robert McguinessAlameda County Superior Court

Judge Robert McGuiness was appoint-ed to Alameda County Superior Court by Gov. Arnold Schwarzenegger in 2005. Previously he worked as a private civil and family law practitioner for 22 years. He is a graduate of UCLA School of Law and earned his undergraduate degree at Santa Clara University School of Law.

Judge McGuiness served recently as supervising judge of the Wiley Manuel Courthouse in downtown Oakland, be-fore taking a direct civil calendar assign-ment this year. In his new role he’s made international headlines recently when the dispute over a Jonestown Memorial at a local cemetery landed in his court-room.

Judge McGuiness has also been active in youth baseball, coaching both his sons’ youth teams and earning him the nickname “Judge Coach Bob.”


hon. risë Jones PichonSanta Clara County Superior Court

Judge Risë Jones Pichon has been a Santa Clara County Superior Court judge since 1998. She previously served on the Municipal Court from 1984 to 1998, and as a court commissioner from 1983 to 1984. She received a Juris Doc-tor Degree from Santa Clara University School of Law in 1976.

Judge Pichon served on the California Commission on Judicial Performance from 1999 to 2007, including as chair from 2002-2004, and on the Judicial Council of from 1994-1997. She speaks frequently about the judiciary and the administration of justice, including in the California Judicial College and the National Judicial College.

On the court she has served as su-pervising judge of the Palo Alto Court Facility, as supervising judge of the Sunnyvale Court Facility, and as presid-ing judge of the Municipal Court. She is presently in her second term on the Superior Court Executive Committee and is assistant supervising judge of the court’s Criminal Division.

scott graham Editor in Chief, The Recorder

Moderator

Moderator Scott Graham is editor-in-chief of The Recorder, a weekly newspa-per and website covering the Northern California legal community. He joined the newspaper 22 years ago and has been editor-in-chief since 1998. He also has worked as a reporter, columnist and courts editor at The Recorder. He worked previously at the San Francisco Exam-iner, the Fremont Argus and the Gilroy Dispatch.

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Trial AdvocacyJury Selection: Dealing With Damages in Era of Tort Reform

Ben Rubinowitz and Evan TorganNew York Law Journal, December 23, 2008

Without question, the insurance industry and Big Business have done a good job conditioning prospective jurors before they ever step foot in court that tort reform is an important, necessary thing and that many cases are frivolous.

ProPagandaThis propaganda has had the effect of making jurors cynical

and distrustful of what would otherwise be viewed as solid, legitimate claims deserving of compensation.

The manner in which this public relations campaign has af-fected public thinking has turned old assumptions about juror attitudes on their ears. While once it seemed that demonstrat-ing a meritorious case and severe personal injuries sustained by an honest plaintiff was sufficient to secure a verdict reflecting fair and reasonable compensation, now a plaintiffs’ attorney frequently must overcome a built-in juror cynicism, with jurors starting out disbelieving the plaintiff’s claims, or establishing a pre-set cap on damages.

That cynicism and distrust has helped to shape juror at-titudes before that juror ever receives his jury summons and meets the trial lawyers. While it is difficult enough to ques-tions jurors about their attitudes as they relate to an award of damages, this task has become much more difficult in light of these negative attitudes combined with the severe time limita-tions now imposed by most courts for jury selection.

Clearly, the astute trial lawyer must deal with the very real concerns that tear at the heart of every civil suit brought seeking monetary compensation for injury or death. These concerns include jury bias regarding the need for tort reform, the belief that verdicts are often outrageously high, that many lawsuits are frivolous, and that sizeable verdicts, even if war-ranted, are hurting the economy and business, and are driving up the cost of auto, home and health insurance. Indeed, the insurance industry and Big Business have been so successful making their point that, directly or subliminally, jurors might feel that by awarding compensation in a civil suit that they have just increased their own future insurance premiums, medical or household costs.

Examples of this type of thinking are commonplace. Rare is the occasion during voir dire on damages when a juror fails to mention the “McDonald’s coffee case.” The public has latched onto myths about this case and few jurors are aware of the extensive third-degree burns to her labia suffered by the plaintiff and the hundreds of prior complaints McDonald’s had received about the high temperature of its coffee.

The propaganda generated in connection with this case

leaves people with the impression that the plaintiff was awarded a huge amount of money simply for spilling hot coffee on her lap. Clearly, a plaintiff’s lawyer does not have the time, nor would he be permitted to explain the egregious conduct of McDonald’s in that case and the legitimacy of the verdict in light of the true underlying facts.

MEEt issuE hEad-onThe trial lawyer must, however, identify those prospective

jurors whose views are at odds with the interests of his client. One of the best ways to explore juror attitudes on this topic is to meet the concern head-on. Share your fears and concerns with the prospective panel by asking nonleading, open-ended questions designed to force a narrative answer. Once the an-swer is given, evaluate the response and the manner in which it is given and resist the temptation to interrupt the juror in the middle of the answer.

The most important thing the trial lawyer can do at this point in time is listen to the juror.

Q: One of the concerns I have is that we have all heard something about tort reform, outrageous verdicts, verdicts being too high or verdicts hurting business. How do you feel about this?

A: I believe that there are too many lawsuits and that people just want to take the easy way out and sue someone, instead of taking responsibility for their own lives.

Initially, you can use this as an opportunity to see how many of the other jurors agree with the statement, to get a sense of the panel with whom you are speaking. Some may fear that opening this type of inquiry to the panel runs the risk of enhancing these negative attitudes among jurors.

We believe, however, that putting your head in the sand and pretending these feelings don’t exist subjects your case to far greater peril. The reality is that too many jurors harbor such beliefs for you to ignore the topic in hopes that the issue won’t be raised or considered during jury deliberations.

Only by dealing with the jurors in a forthright manner can you hope to learn their honest views, overcome bias where possible, and provide a means for peremptory or challenges for cause when the bias cannot be set aside.

Once you have received a negative answer, rather than try-ing to explain that the jurors have been caught up in a propa-ganda blitz, and that they have been completely misled, agree with the juror and follow up:

Q: I agree with you that there are too many frivolous lawsuits and unfortunately, too many lawyers willing to take those cases. I sure hope you’re not getting this case mixed up with those bad cases. Would you be willing to listen to this case on its own facts without lumping it together with those bad ones?

Another approach is to try and point out what is really going on:

Q: Surely there are cases where there may have been run-away verdicts, or verdicts that just don’t reflect reality. But let’s


face it, these are the sensational cases - - the cases that the newspapers pick up and that are published again and again. But now I have a different question: How many times have you read about someone who was truly deserving of com-pensation and was hurt very, very badly but didn’t receive adequate compensation by the jury?

A: Never. Q: Do you think it’s right that a person should receive inad-

equate compensation just because at another time and place in another courtroom someone may have brought a frivolous lawsuit?

A: No.Q: Why not?Q: The fear that I have is that this case might get decided on

issues having nothing to do with the facts but everything to do with what some newscaster or politician said about our legal system. How do you feel about that?

By anticipating jury deliberations at this early point in the trial, the trial lawyer has the opportunity to prevent a verdict based on propaganda or at least limit the inclination of the juror to vote based on a preconceived attitude having nothing to do with the facts:

Q: What would you think if another juror makes a bold, generalized statement that all these cases are frivolous and that, regardless of the facts, he would never award more than a certain predetermined sum of money?

Q: Do you agree that this case should be decided solely on its facts, not on preconceived attitudes or news stories or things that happened in other courts?

Q: Why? Q: How do the rest of you feel about that?

thE ‘syMPathy’ issuEAnother important aspect of voir dire for a plaintiffs’ attor-

ney is dealing with the “sympathy” issue during your ques-tioning. If your client was seriously injured, or you are bring-ing a wrongful death case, you can bet your bottom dollar that the defense lawyers will caution the jurors against deciding the case based upon sympathy.

As long as you know that this will be a topic, the plaintiffs’ lawyer might as well speak about it himself. By doing so, you can seek a commitment from the jury that the case will be decided solely upon the evidence, and not on any extraneous emotion or belief about the system:

Q: I tell you this right now: my client is not here for sympa-thy. She wants only 100 percent justice in this case. Would you agree with me that if this case were decided upon the basis of sympathy, as opposed to the evidence you hear in the court-room, that that would be unfair?

Q: Do you all feel that way?Q: Do you believe, just as strongly, that it would be just as

unfair if the case was decided upon cynicism, as opposed to the facts of the case?

Q: If jurors decided this case based on feelings about the

system, or other cases which they’ve read about, as opposed to the proof in this case, would that be just as wrong?

Such as the defense lawyer’s major concern is that a jury will be unduly influenced by sympathy, in today’s day and age, the plaintiffs’ attorney should be equally concerned that skepticism regarding the system will improperly prevent the jury from deciding the case fairly.

The above-mentioned technique reinforces the point that it would be improper if any outside feeling or emotion affected the deliberations in the case, not just the defense’s concern that sympathy will cause a runaway verdict.

ConClusionParticularly in today’s sinking economy, prospective jurors

are more prone than ever to be wary of claims of personal injury and suggestions that a large verdict is in order. Al-though the times are tough, and just getting tougher, there still is reason to believe for the skilled litigator. Dealing with these difficult issues in voir dire may be a necessary first step to ultimate success in the courtroom.

Ben Rubinowitz is a partner at Gair, Gair, Conason, Steig-man & Mackauf. Evan Torgan is a member of Torgan & Coo-per. E-mail: [email protected]; and [email protected]. Richard Steigman ([email protected]), a partner at Gair, Gair, assisted in the preparation of this article.

Common Mistakes on Direct ExaminationBen Rubinowitz and Evan Torgan ContactAll ArticlesNew York Law Journal, December 28, 2010

While many trial lawyers focus on the excitement and chal-lenge of a strong cross examination, these same lawyers often overlook the importance of a strong direct examination. While it is true that cross can be exciting, it is also true that a power-ful direct can win the case. Avoiding simple mistakes on direct examination will unquestionably strengthen your position and, at the same time, help you achieve the verdict you want.

listEn to thE ansWErToo often trial lawyers are bound to their notes during

direct. It is not that these lawyers are unprepared. Quite the contrary: these lawyers have, unquestionably, rehearsed the testimony with the witness and have prepared incessantly. The trial mantra “prepare, prepare, prepare” is something they have done well. The problem is that these same lawyers read their questions to the witness, forget to listen to the wit-ness’ answers and assume that they have received the same


answer as they had during preparation. A classic example of this mistake—not listening—is demonstrated by the following questions asked by the over-prepared, inattentive lawyer who fails to listen:

Q: Where do you live?A: Three children.Q: How old are you?A: 21, 15 and 8.Q: How old are your children?A: It happened on January 1, 2010.While this is a gross example of the “non-listening” trial

lawyer, more common examples occur during virtually every trial:

Q: Describe the traffic conditions?A: Traffic was good.Q: What happened next?The failure by the examining attorney to continually evalu-

ate the sufficiency of the answer leads to disaster. Here, there is no explanation of the word “good.” Had the attorney been listening to the insufficient answer he could have easily solved the problem by following up with appropriate questions such as:

Q: Tell us what you mean by “good” orQ: Describe in more detail what the traffic conditions were

at that time.Indeed, often times what appears to be a sufficient answer

is, on reflection, insufficient:Q: Describe the man’s height?A: He was tall.Here, at first blush, the answer might seen appropriate.

However, it is unclear what the witness himself means by the word “tall.” Follow-up in this scenario is mandatory and the lack of detail is easily cured:

Q: Tell us what you mean by “tall.”The point is that, to be successful, the trial lawyer must

listen to the answer and continually evaluate the sufficiency of the response given in Court. Reading the next question to yourself as the witness is answering the previous one is also a road map for disaster. If the answer has not specifically elucidated the point to the trier of fact, additional questions must be put to the witness at that time to ensure that there is no ambiguity.

siMPlifying thE tEstiMonyClosely related to the failure to listen is the failure to sim-

plify the testimony to the trier of fact. Too often, professional witnesses and police witnesses speak their own language. Lawyers fall into this same trap by using “legalese” either to try to sound important or because they have become so famil-iar with certain legal language that it is second nature to them, even though it may well be foreign to the jury.

Imagine the following scenario in which a straight forward question is put to a police witness:

Q: Tell us exactly what you saw on June 12, 2010 at 3:30

p.m.?A: I saw the subject approach the complainant with an

instrument in his hand.Here, the answer is clear as mud. Needless to say, simpli-

fication and follow-up are mandatory. The failure to simplify the words “subject” “complainant” and “instrument” could prove fatal to the outcome of the case. Consider a similar sce-nario with a physician:

Q: Doctor, describe the injury to the patient’s leg?A: He suffered a comminuted fracture to the distal femur.Here, the failure to reduce the “medicalese” to common

understandable words will prove fatal to the presentation of the severity of the injury. Similarly, imagine the scenario in which a lawyer uses words fully familiar to himself during the questioning of a witness, but words which sound down right silly to jurors:

Q: Had you executed the matter prior to the time in which you were deposed?

To jurors, this poorly phrased question might be asking about a death sentence from someone who lost her crown. Needless to say, the failure to simplify and clarify serve only to weaken the presentation of appropriate direct testimony.

EMPhasizE KEy PointsIn any direct examination, there will come a time when an

essential or key point must be brought out. While an attorney should never move to the next subject area until he has made certain that he has brought out sufficient factual material to present a clear and compelling argument on summation, the failure to emphasize essential points will lessen the chances of success. There is a tendency on direct examination to move the story along too fast by asking the simple questions, such as “What happened next?” The problem with using this ques-tion and racing through direct is that it fails to emphasize and reinforce the key points that are essential for summation. Put simply, repetition wins cases.

Consider the following example in which a lawyer, in bring-ing out the nature of the injuries suffered by the plaintiff, moved the testimony along too quickly:

Q: What happened next?A: As I was crossing the street, the bus struck me.Q: What happened next?A: I was knocked down and I was taken to the hospital.Q: What happened at the hospital?Here, appropriate emphasis on a key point is entirely miss-

ing. The better approach is to frame the crucial point in time and emphasize the key points by using those parts of the answer that should be highlighted:

Q: What happened next?A: As I was crossing the street the bus struck me.Q: Where were you when the bus struck you?Q: What part of your body did the bus strike?Q: Tell us, step by step, what happened to you as the bus

struck you?


Q: How did you feel when you were struck?Q: How did you feel immediately after the bus struck you?Q: Describe the pain you felt at that time?Clearly, this series of questions, focusing on a limited point

in time, paints a far more graphic picture for the trier of fact.

transitionsAnother technique to draw the jury’s attention to the impor-

tance of the next subject area to be discussed is the appropri-ate use of transitions. Phrases such as “Did there come a time that (something happened)” work; however, the language is awkward. A portable technique that works in many situations is to use the “day, time and place” formula. Direct the witness’ attention to two of the three words in the formula and you are well on your way to clarity:

Q: Let me direct your attention to June 12, 2010 (date) at 3:30 p.m. (time). Where were you? or

Q: Let me direct your attention to Bellevue Hospital (place) June 12, 2010 (date). What time did you arrive?

Transitions do not have to be formulaic. They do, however, have to focus the trier of fact’s attention on something of significance. The beauty of using transitions is that they allow for immediate direction and clarification to both the jury and the witness:

Q: Let me direct your attention to the points in time when you were on the ground after being struck by the bus. How did you feel?

Q: What did you see?Q: Tell us what you did at that time?Q: Tell us what was done for you at that time?Transitions are nothing more than directional guidance

to both the witness and the trier of fact. Questions that begin with the following words offer such guidance:

Q: Let me direct your attention to (the next subject area)Q: Calling your attention to…(a point in time).Q: Focusing your attention on (a specific event, part of a

contract, page, line etc.).Successful use of transitions allows for immediate focus and

removes ambiguity from the line of questioning. Conversely, the failure to use transitions serves to create confusion.

ConClusionWhereas a successful cross-examination shines a bright

spotlight on the questioner, an artful direct examination causes the skillful litigator to recede into the background while the witness occupies the attention of the jury. Of course, the witness cannot provide compelling direct testimony with-out a well orchestrated series of questions: one that recognizes when answers require further elaboration, ensures that the language used is easily understandable, enables the story to flow in a logical and comprehensible fashion, and accentuates the vital points in the presentation.

By simply staying in the moment and listening carefully to the witness providing testimony on direct examination, the

savvy litigator directs his witness, and ultimately his case, into the light most favorable to the trier of fact.

Ben Rubinowitz is a partner at Gair, Gair, Conason, Steig-man, Mackauf, Bloom & Rubinowitz and an adjunct profes-sor teaching trial practice at Hofstra University School of Law and Cardozo Law School. Evan Torgan is a member of Torgan & Cooper. They can be reached at [email protected] and [email protected]. Richard Steigman, a partner at Gair Gair, assisted in the preparation of this article.

Trial AdvocacyExposing Biased Testimony on Cross-Examination

Ben Rubinowitz and Evan Torgan ContactAll ArticlesNew York Law Journal, February 23, 2010

Few things are more enjoyable to a cross examiner than exposing a witness who has intentionally lied during direct examination. In addition to destroying the credibility of the witness, catching the witness in a lie serves the additional dual purpose of undercutting your adversary’s cause while at the same time, strengthening your position in the eyes of the jury. Far more challenging and a little less dramatic than attacking the witness who has been caught in a bold-faced lie, or expos-ing the one who has been convicted of a crime, is the task of attacking the average, law-abiding witness who is simply biased in favor of the adverse party. Cross, in this situation, must focus on exposing any motive that the witness has for telling less than the truth such as the witness’ bias, prejudice, sympathy, empathy, hostility, friendship, and any other inter-est the witness has in your adversary’s case.1

To properly attack the biased witness, the underlying facts supporting that bias must be carefully elicited on cross-exam-ination. Crucial to achieving this goal is the thorough prepara-tion of a detailed list of those factors before ever setting foot in a courtroom. This list can serve as a road map for a powerful cross on bias. That cross, if successful, will not only expose the witness’ bias, but will also allow the examiner to argue on summation that the witness may have concealed the truth and deceived and misled the jury by withholding important information.

Imagine, for example, the scenario in which the sole wit-ness, (aside from parties), to an accident is a friend of the defendant. During discovery, although both you and your investigator tried to speak to the witness, the witness refused to speak. No deposition was taken of the witness. The trial


begins. As expected, this defense-friendly witness voluntarily appeared at trial, testified on behalf of the defendant, and hurt your case. Assume you also learned, just prior to your cross-examination of this witness, that the defendant’s investigator had driven the witness to court.

In this situation, an unprepared lawyer might be limited in his cross-examination of such a witness, resulting in his inability to expose the bias and prevent the inevitable damage to his case. To the armed and ready lawyer, however, these cir-cumstances present just the foundational material necessary to expose bias and to suggest to the jury that the witness ought not be believed.

Factors upon which to cross-examine such a witness might include: bias based on friendship; bias based on a witness who testifies without a subpoena; bias based on transporta-tion to court; and bias based on the witness’ refusal to speak to the opposing party. True, each individual factor might not, in and of itself, amount to much; but when taken together, an effective cross examination by a skilled cross examiner using a carefully mapped out technique will expose the bias and provide the basis for a powerful argument on summation.

Cross on friEndshiPFriendship has long been recognized as a fertile area for

cross. The amount of time friends have known each other, the nature of their relationship, the frequency with which they see each other, and the knowledge the witness has in the defen-dant’s (or plaintiff’s) plight are all explorable areas for attack. Examining the nature and extent of the relationship between the witness and the defendant is the perfect introduction for the cross on bias:

Q: You’ve known (the Defendant) for a number of years, true?

Q: How many years?(A: 15.)Q: He is a friend of yours, correct?Q: During those 15 years you have been to his house?Q: He has been to yours?Q: You know his family?Q: He knows your family?Q: You’ve socialized together?Q: You know his children?Q: They are on a first-name basis with you?Q: You know them by name?Q: You also know (the defendant) has been sued, correct?Q: That he’s being sued for money damages, true?Q: You would like to help him wouldn’t you?(A: I wouldn’t lie for him.)Q: My question is specific: You would like to help him,

wouldn’t you?Q: You don’t want to see him lose this case, do you?Q: You would like to help your friend through your testi-

mony, true?Q: You would like to see a successful outcome for him,

wouldn’t you?

on absEnCE of subPoEnaNext, the cross examiner should focus on the fact that the

witness has come to court willingly, i.e., without the compul-sion of a subpoena, and testified voluntarily. Generally, a sub-poena can be thought of as an indicia of objectivity—that is, that the witness has no axe to grind and will testify the same no matter which party called him to the stand. On the other hand, the argument is that the witness who testified without a subpoena is, simply put, eager to help out only one side of the case:

Q: You were served with a subpoena in this case weren’t you?

(A: No, I wasn’t.)Q: You mean you came to court voluntarily?Q: Certainly, you were asked to come to court true?Q: But you were asked (by the defendant), correct?Q: And based on your friendship, you decided to come to

court?Q: When did he ask you to come to court?(A: A few days ago.)Q: He only had to ask once, true?Q: And you said you’d be happy to help him out right?Q: There was no need for a subpoena, correct?

Cross on transPortationTransportation to and from court might seem innocuous.

It is not. It is often strongly indicative of the witness’ relation-ship with only one side of the case. The fact that the witness is receiving free transportation is only one aspect of the cross. Far more important, however, is the fact that the witness is often prepared or re-prepared for his in-court examination during the ride.

In the event the witness chooses to deny that he was prepared during the transportation, he can be made to look foolish. If, on the other hand, he admits to being prepared at that time, inquiry can be made as to the extent of such prepa-ration:

Q: How did you get to court today?(A: By car.)Q: But that car wasn’t your car, was it?Q: In fact, it was an investigator’s car, true?Q: That investigator works for the defendant, correct?Q: That investigator spoke to you yesterday, right?Q: How long did you speak?(A: About 15 minutes.)Q: He told you he would provide free transportation, cor-

rect?Q: Both to and from court?Q: By the way, did you discuss the facts of the case yester-

day?(A: No.)Q: Not a word was said about the case during that 15-min-


ute period?(A: True.)Q: How long did the ride to court take?(A: About 45 minutes.)Q: During those 45 minutes, you discussed the case right?(A: No.)Q: Not one word was mentioned about why you were ap-

pearing in court today?(A: No.)Q: You had no idea what you’d be asked?(A: That’s right.)Then, in a sarcastic tone; the following questions can be

asked:Q: Let’s see—you discussed the weather for about 45 min-

utes?Q: You discussed current events for 45 minutes?Q: You discussed sports for 45 minutes?Q: The one and only thing you didn’t discuss was this case,

right?If, on the other hand, the witness chooses to say that he did

discuss the case, the cross can proceed as follows:Q: You also discussed your answers to specific questions,

true?Q: You discussed how best to answer those questions?Q: You reviewed details of the accident?Q: You learned what happened in the trial so far?Q: You learned what was said during opening statement,

right?Q: You also learned about the types of questions I might

ask, true?Q: You were told to keep your answers short?Q: You were told what points to emphasize, right?Q: You carefully reviewed the most important answers,

true?Q: You also spoke about what not to say, correct?

rEfusing to sPEaKThe witness’ refusal to speak to the opposing party must be

brought out on cross. Ironically, the refusal, in and of itself, speaks volumes. If the witness were truly independent and had no interest in the outcome of the case, he would have no reason to refuse to speak. If, however, the witness was worried about saying something that would jeopardize his friend’s case, he might have a motive for his refusal to speak:

Q: You’ve told this jury you were a witness to the accident.Q: And that you clearly observed what happened?Q: Wouldn’t it be fair to say that no matter who asked you

questions, you would tell the same exact story?Q: Regardless of when you were asked?Q: Regardless of who asked you the question, right?Q: In other words, you had nothing to hide?Q: And you had no one to protect, true?Q: But you deliberately chose to speak with only one side of

the case, true?

Q: You chose to only speak with your friend’s investigator?Q: How many times over the years did you speak to him?(A: About 5 -6 times.)Q: You reviewed the facts in detail with him true?Q: My investigator contacted you shortly after the accident,

true?Q: He was polite?Q: He was kind?Q: He said all he wanted was the truth, correct?Q: You refused to speak to him about the accident, right?Q: But you had nothing to hide, right?Q: He called you again before trial, right?Q: He told you that all he wanted was the truth?Q: Once again he was polite?Q: Again you refused to speak, correct?Q: You are aware that I called you before trial, true?Q: And I said, very politely, all I want is the truth?Q: And you refused to speak to me?Q: Did anyone tell you not to speak with me?Q: Did anyone suggest that you not speak with me?Q: Did anyone suggest that you not speak with my investi-

gator?Q: You consider yourself a fair-minded person true?Q: So fair-minded that you will only speak with one side of

the case, right?A lawyer’s thorough preparation of his case is the key to

achieving a successful outcome. An integral component of this preparation is being ready for the testimony of a defense witness (or plaintiff’s) who may also have an interest in the outcome of the case—the friend.

With the use of the techniques outlined in this article, what could have been harmful testimony and an otherwise un-eventful cross-examination, transforms into an exciting cross-examination that both captivates the attention of the jurors and leaves them ambiguous about the witness’ credibility. Ex-posing biased testimony on cross-examination is the perfect opportunity to plant the seed in the minds of the jurors that perhaps this witness is not so disinterested, objective, or even truthful, as your adversary would have them believe.

Ben Rubinowitz is a partner at Gair, Gair, Conason, Steig-man, Mackauf, Bloom & Rubinowitz and an adjunct professor teaching trial practice at Hofstra University School of Law and Cardozo Law School. Evan Torgan is a member of Torgan & Cooper. The authors can be reached at [email protected] and [email protected]. Rhonda E. Kay, a partner at Gair Gair, assisted in the preparation of this article.

EndnotEs:1. For a detailed discussion of exposing bias during cross

examination refer to, Patrick L. McCloskey & Ronald L. Schoen-berg, “Criminal Law Advocacy,” §12-03 (Matthew Bender 1982).


Trial AdvocacyGetting the Picture: Using Exhibits Throughout a Trial

Ben Rubinowitz and Evan Torgan ContactAll ArticlesNew York Law Journal, July 31, 2008

Demonstrative exhibits have become commonplace at trial. If used properly, these exhibits have the potential to resonate throughout the entire trial from opening statements forward.

Too often, however, trial lawyers use the exhibits only in the one part of the trial during which the exhibit is offered - usu-ally direct examination. Although a strong point can be made during direct, with a good amount of planning and a little bit of creativity, that exhibit can serve to bolster your point throughout the entire trial and, more importantly, serve as your surrogate during the one part of the trial when you are not present - jury deliberations.

usE during oPEning statEMEnts Most lawyers do not even try to use an exhibit during their

opening statement. To these lawyers the use of an exhibit at this time is off limits.

The reason often suggested for this position is that no one has testified. Therefore, no one has laid an appropriate foun-dation for the admissibility of the exhibit and since proof is not offered during an opening statement, it is simply too soon to work with an exhibit.

If, however, the trial lawyer has carefully planned for the use of the exhibit during discovery, its use during the trial will be a foregone conclusion, and thus, no rational basis to exclude it from openings exists.

Take, for example, a photograph of an accident scene. The photograph taken one week after the accident depicts the scene of the accident involving a car and a pedestrian. The photograph was properly served during discovery and, more importantly, it was used during the deposition of the defen-dant driver. The following questions were asked during the defendant’s deposition:

Q: I show you what we have just marked as plaintiff’s ex-hibit 1 for identification and I ask you do you recognize this?

A: Yes. Q: What do you recognize this to be? A: That’s the intersection where the accident took place. Q: Is plaintiff’s 1 for identification a fair and accurate repre-

sentation of the accident location at the time of the accident? A: Yes. Q: Is plaintiff’s 1 for identification a fair and accurate depic-

tion of the general layout of the roadway at the time of the accident?

A: Yes. Here, the foundation for the admissibility of the photograph

has been properly laid during deposition. Since the plaintiff’s attorney has the ability, pursuant to CPLR 3117(a)(2), to read in the deposition testimony of the defendant, he would also have the ability to offer the exhibit in evidence at the time it is read to the jury.

Clearly, the exhibit is going to be used during the plaintiff’s direct case. But what about its use during the opening state-ment?

In this instance, the plaintiff’s attorney has two ways to seek the use of the exhibit during opening. The first is to alert your adversary prior to opening that you wish to use the exhibit during the opening statement itself. By calling for a stipula-tion, both sides would have the ability to use the exhibits during the opening. If your adversary refuses, your next tact should be to make an application to the court for its use during opening. That application should include the follow-ing: that the exhibit is relevant; that the exhibit was properly served during discovery; that it was used during the deposi-tion; that an appropriate foundation for its admissibility was already laid during deposition; that there is no prejudice to the defendant; and that you are merely seeking to clarify is-sues through the use of the exhibit.

The worst that can happen is that the court denies your application. The best that can happen is that you might actu-ally avoid the perennial confusion brought out by speaking in terms of North, South, East and West and the various combi-nations of these directions.

Moreover, with trial judges in state court increasingly opting for federal court-style pretrial orders, or at least demanding that the parties submit lists of witnesses and exhibits prior to trial, the chances that a trial judge will entertain an applica-tion to use an exhibit during the opening would appear to be increasing. It seems clear that most judges would rather deal with disputes regarding the authenticity or admissibility of an exhibit prior to trial, and will wait for testimony only where there is a legitimate question regarding the exhibit that needs to be resolved from the witness box.

Additionally, other exhibits should also be considered for use during the opening. In a damages trial or medical case, anatomical models are unquestionably going to be used dur-ing the medical proof. By representing to the court that your medical expert will lay the appropriate foundation for the admissibility of the model, its use during opening would serve two purposes. First, it allows for clarification of the issues. Sec-ond, it makes better use of court time by lessening the need to explain completely unfamiliar terms to the jurors. If a trial is truly a search for the truth, and the fundamental requirements for the admissibility of the exhibit will be satisfied, the notion that an exhibit cannot be used during opening because “that’s the way it’s been done in the past” is an antiquated notion that needs to be rethought.


usE during dirECt EXaMination Recently, trial support stores and services have sought to

entice the trial lawyer with the creation of trial exhibits the likes of which were unheard of only a decade ago. Power-Point presentations, computer-generated graphics and smart boards have become common at trial. A good exhibit, how-ever, does not need to be flashy. It needs to simplify the issues and make the point in a clear and concise manner. The basic trial techniques for working with the exhibit during direct ex-amination, regardless of the type, should never be overlooked. The fundamental requirements must be met or the exhibit will never be admitted in evidence.

Take, for example, a scale diagram created by an accident reconstructionist in the pedestrian-car accident discussed above. Before ever showing the exhibit to the accident reconstructionist, you must present the exhibit to a witness with knowledge of the scene as it existed at the time of the accident. Although you will not offer the exhibit through this witness, you are taking appropriate steps to authenticate the exhibits through their connection to the case at a relevant time:

Q: I show you what has been marked as plaintiff’s Exhibit 2 for identification. Do you recognize this?

Q: What do you recognize this to be? A: That’s a diagram of the scene of the accident. It shows the

roadway and intersection. Q: Is that a fair and accurate diagram of the general layout

of the roadway and intersection as it existed at the time of the accident?

A: Yes. By not offering the exhibit at this time you are effectively

preventing your adversary from conducting a voir dire exami-nation designed to challenge the admissibility of the exhibit. The clever defense attorney will, however, cross-examine this witness anyway by pointing out, among other things: that the lay witness never took measurements of the roadway; never took measurements of the lane markings and crosswalk; never took measurements of the skid marks or the traffic control devices, and cannot state whether the diagram is to scale.

It is through the accident recontructionist that the answers to all of these questions can be brought out. It is only at this time that the exhibit should be offered in evidence.

The most common errors committed by attorneys working with exhibits on direct include the failure to let them reflect what is being said by the witness and the failure to properly mark the exhibit. Too often trial lawyers have let the following type of answer stand without seeking clarification:

The driver was over here. He then turned this way, went that way, then struck the girl here and finally stopped in this area.

Without clarification, the exhibit has done little to advance your cause at trial. Moreover, if you are lucky enough to get a favorable verdict at trial you will be hard-pressed to explain on appeal what that answer meant. The proper way to work with an exhibit is to put appropriate markings right on the exhibit

at the time the answer is given: Q: Directing your attention to Exhibit 1, the enlarged photo

of the accident scene. Where did you first see the driver? A: Here. Q: Put a D1, for driver one, right on the exhibit where you

first saw the driver. Q: When you say the driver turned “this way” show us how

he turned. Now put an arrow right on the exhibit reflecting that turn.

Q: Show us where the driver struck the girl by pointing to it on the exhibit. Put an “X” right at the point of impact.

By having the witness point to the exhibit before marking it, you can make sure that the witness has it right before perma-nently marking an exhibit with erroneous information.

A more advanced approach for working with an exhibit on direct is to use the “double-direct” technique. Here, the goal is to have the witness describe in detail the most impor-tant points in your case first and then reinforce those points through the use of the exhibit.

While your adversary might try to object on “asked and answered” grounds, the objection is misplaced because you have never asked the question with the use of an exhibit.

usE during Cross-EXaMThe exhibits offered and used during direct can be used with

equal force on cross-examination. While many lawyers try to use the exhibits offered during the liability phase of a trial to attack an adverse liability position, these very exhibits can be used to strengthen the damages aspect of the case.

Often causation is a major issue during a personal injury trial. Consider the same facts as above and assume that the injured girl suffered a herniated disc.

Enlarged photos of the defendant’s car depicting a smashed windshield have already been offered in evidence. Needless to say, during the defendant’s direct case, the defendant’s exam-ining neurologist gave an opinion that the girl did not suffer a herniated disc. During the cross of the defendant’s examining neurologist, the following questions can be asked:

Q: Doctor, you believe you fairly and fully evaluated the facts before rendering your opinion, true?

Q: Doctor, I want you to assume that (the girl) was a pedestrian crossing the street. Further assume that the defendant driver struck the girl. In fact on plaintiff’s Exhibit 1, this exhibit, we have a photographic enlargement of the accident scene. As it shows right here the defendant made a left turn and struck my client. The “X” represents the point of impact. You do agree that being struck by a car can cause a herniated disc, true?

A: Yes. But the impact wasn’t severe enough. Q: At the time you examined my client and rendered your

opinion you didn’t have photos of the car, true? Q: At the time you rendered your opinion, you didn’t even

know these photos existed, true? Q: You never asked for photos before offering your opinion,

did you?


Q: Doctor, I want you to assume that my client was struck and thrown with sufficient force to crack the windshield of the defen-dant’s car. Please take a look with us at Exhibit 4, which shows the cracked windshield following impact. You never saw this photo, did you doctor?

Q: You’re not an engineer, are you doctor? Q: You have no idea how much force it would take to crack this

specific type of windshield, true? Q: You have never done any crashworthiness studies on wind-

shields, true? Q: In fact, nowhere in your report did you state that the girl was

thrown with sufficient force to crack the windshield, true? Q: Without knowing these facts doctor, that’s how you reached

your full and fair opinion, true?

usE during suMMation The statement “a picture is worth a thousand words” is no

more true than when working with an exhibit on summation. Putting an exhibit in front of the jury at this time will draw

the jurors right into your argument. When working with a photograph such as the one discussed above of the scene of the auto accident, which has been marked by the witnesses during trial, the exhibit will literally tell the story.

As you speak to the jury in summation, you can assume the role of narrator, using the exhibit and its markings to demon-strate the relative positions of movements of the pedestrian and the vehicle, all apparent to the jury as it looks at the marked photo. Indeed, this is the best technique at your dis-posal to “put the jury” at the scene of the accident, and have them deliberate about the case as if they had, in fact, actually witnessed the occurrence.

Similarly, an exhibit in a medical malpractice case which reflects not just the anatomy, but also the sequence of events that caused the plaintiff’s injuries and, just as importantly, a sequence of events that should have occurred but did not due to the defendants’ malpractice, provides a clear road map for a verdict in your favor.

ConClusionWith the emergence of television, and then the Internet,

today’s typical juror is far more used to seeing a story than hearing one. Accordingly, your ability as a trial lawyer to show them, not just explain to them, that your case is a winner has never been more vital. Displaying that story through the use of courtroom exhibits, during all phases of the trial, stands as a crucial part of your ability to get successful results.

Ben Rubinowitz is a partner at Gair, Gair, Conason, Steig-man & Mackauf. Evan Torgan is a member of Torgan & Coo-per. They can be reached at [email protected]; and [email protected]. Richard Steigman, a partner at Gair, Gair, assisted in the preparation of this article.

Trial AdvocacyDealing With Weaknesses and Maintaining Credibility

Ben Rubinowitz and Evan Torgan ContactAll ArticlesNew York Law Journal, October 20, 2009

While many trial lawyers focus on the credibility of their witnesses, a truism remains: No one’s credibility is more im-portant than your own. If you have lost credibility before the jury, you have gone a long way to losing the case. Conversely, by making tactical decisions to enhance your credibility, you will help your cause even when the facts are difficult.

The trial lawyer who discloses his weaknesses bolsters his credibility with the jury. The goal at all times for the trial law-yer is to be viewed as the speaker of truth, the impartial arbiter and the voice of reason. By volunteering a weakness, you will be in a position to have the jurors conclude that you, as an ad-vocate, have gone out of your way to present the whole picture to them and not just the favorable parts of your case.

Some trial lawyers will argue that admitting a weakness is a bad decision. The argument is that the jurors will view the confession as a self-serving event. Since the trial lawyer will never admit that he should lose the case, the jurors will be skeptical and cynical of the attempt to enhance credibility by admitting a weakness. We disagree. Few things have the po-tential to hurt more than concealing a weakness that should have been disclosed.

Quite often the weakness in the case is known by all parties. Typical issues of concern include a prior criminal conviction, a prior vicious or immoral act, a pre-existing medical condi-tion undermining causation or videotaped surveillance foot-age of your client portraying him in a harmful light. In each of the above examples, the trial lawyer has a choice to make: Deal with the weakness head-on or wait and try and explain it away at a later point during the trial. By introducing the weak-ness as early as possible, the trial lawyer may well take the punch or sting out of his adversary’s arsenal.

Consider the following scenario: Your client, a passenger in an automobile accident, was injured through no fault of his own. He suffered significant soft-tissue injuries resulting in what is commonly referred to as reflex sympathetic dystro-phy (also known as complex regional pain syndrome). The problem from a medical perspective is that this type of injury is not easily understood by doctors and lawyers (let alone jurors). There were no fractures; the pain, however, has been unrelenting. Repeated visits to a pain clinic and daily admin-istration of pain-killers have not resulted in relief. The medical issues may well boil down to one of credibility.

The problem from an overall perspective is that the client


committed a robbery 10 years ago, was convicted, and served 5 years in jail. The accident occurred one year after he was pa-roled. The plaintiff’s and defendant’s theory of damages could not be more divergent: To the plaintiff’s lawyer, his client has suffered a life changing, permanent injury. To the defense lawyer, the plaintiff is a convict, a malingerer and one who is trying to milk the system.

Jury sElECtionThe first opportunity to deal with the weakness—the

conviction—is on jury selection. Imagine what would hap-pen if the plaintiff’s lawyer chose to ignore this fact. While the defense lawyer could address the conviction on jury selection during his voir dire, the more skilled or seasoned defense attorney will delicately address the issue of credibility during jury selection, not saying one word about the conviction at this time, and wait for cross to move in for the kill. Consider the defense voir dire:

Ladies and Gentlemen there are many issues that you will have to deal with. One of them is credibility of all witnesses including the plaintiff.

Q: Do you believe that just because someone claims to be injured that necessarily means that they are injured?

Q: Would you agree you have to carefully scrutinize the plaintiff and his background before making an award of mon-etary damages?

Q: How would you determine whether someone is telling the truth?

Q: Do you think it’s possible for someone to be faking his injuries in order to receive a large amount of money at the end of the case?

Q: Why do you say that?Q: I’ll ask you to listen closely about the plaintiff, his back-

ground, and whether or not he is truly believable. You deter-mine whether he should be entitled to an award of money or whether something else is going on that would make him un-deserving of such an award. Would you be willing to do that?”

Clearly, the plaintiff’s lawyer, in failing to deal with the conviction up-front, has put himself in a bind and has lost the opportunity to start immunizing the jurors to the bad fact.

Imagine, however, what would have happened if the plain-tiff’s lawyer chose to address the weakness early on in jury selection, fully anticipating what the defense lawyer might say if he chose to ignore the issue:

Ladies and Gentlemen, I’ll tell you right now something you need to know about (my client). It’s something you should be aware of and I want to be the first to tell you so that you can evaluate all the facts surrounding this accident.

(My client) was convicted of robbery 10 years ago. It’s not something we’re proud of, but you need to know it. He served 5 years in jail. He paid his debt to society, and restarted his life after his release from prison. This accident occurred through no fault of his own, after he was discharged from jail.

Q: Are you the kind of person who is going to say: If he’s a

convict, that’s it, I’m not going to listen to anything he has to say, or are you the kind of person who wants to know more?

Q: Why would you want to know more?Q: Would you agree that the conviction is something you

should be made aware of?Our position is that this robbery has nothing at all to do

with this accident.Q: If you believe he is not telling the truth, say it in your

verdict. If, on the other hand, after you’ve scrutinized the facts and scrutinized his testimony, you believe that he is telling the truth and that he is deserving of compensation, would you be able to vote in his favor even though he was once convicted of a crime?

Q: Why would you be able to do that?The purpose of such questioning is twofold. Most impor-

tant, you will avail yourself of the opportunity to learn which jurors admit to an inability to put your client’s past aside, which may well lead to a successful challenge for cause. In-deed, any juror who expresses even the slightest equivocation regarding her ability to follow the judge’s charge and render a verdict in accordance with the facts as she perceives them and the law as instructed by the court must be disqualified.

This does not mean, of course, that you can expect to elicit a commitment from every juror that he or she will disregard your client’s criminal record when deciding the case. You are, however, entitled to a promise from all of them that they are open to the possibility that your client is being totally truthful when describing his current condition. Any juror who ex-presses any doubt about the possibility that your client may be completely in the right should be excused from the panel.

Second, jurors who do offer only their begrudging commit-ment to keeping an open mind (evinced by statements such as, “Well, if the medical testimony supports the plaintiff’s story, I could render a verdict in his favor”) should move to the top of your list of potential peremptory challenges. Since you know that the defense is likely to focus heavily on your cli-ent’s past, the decision to omit reference to the prior criminal records leaves you selecting the jury without obtaining any information regarding juror attitudes about a crucial area of the case. Just as no baseball manager would select his batting order without knowing the identity of the opposing pitcher, no trial lawyer should be exercising challenges without having learned as much as he can regarding a juror’s preconceived beliefs and notions.

Whether or not a jury would penalize a lawyer for failing to disclose a bad fact is an unanswerable question; however, by failing to address the bad fact during jury selection the lawyer has precluded any opportunity to explore juror attitudes on the issue. While some bad facts may be insurmountable, the straightforward discussion of the issue, at least, allows the trial lawyer to know what he is up against. (“The devil you know is better than the devil you don’t know”).

oPEning statEMEnts


The presentation of bad facts is not limited to jury selection. Indeed, careful consideration must be given to the appropri-ate time to disclose a bad fact. In the event of videotaped surveillance of your client, for example, you might be better off presenting the video during the plaintiff’s direct examina-tion rather than allowing your adversary to cross-examine with this tool.

Consider the same factual scenario as outlined above. In addition to those facts, assume the defense has a surveil-lance video of the plaintiff riding a bicycle in a park. Here, the plaintiff’s attorney would do well to address this fact during opening and later offer the video during the plaintiff’s direct examination. By addressing this seemingly bad fact during opening, the trial lawyer has the opportunity to present dam-aging evidence in the best possible light:

As a result of this accident (the plaintiff) has felt pain every day. He is tough-minded and tries to be strong. He has gone on with daily activities such as taking out the garbage or even riding his bike. It is not something we have denied. In fact, the defense went out and videotaped (my client) engaging in such activities. The one thing that the tape will not show, however, is the amount of pain he was experiencing before, during and after the event.

On direct examination of the plaintiff, his lawyer can again put the bad fact in the best light:

Q: Have you been made aware that you were videotaped riding a bike?

Q: Have you had an opportunity to view the tape?Q: Was that a fair and accurate depiction of you or your bike

on 9/30/08?After marking the tape for identification and laying the

appropriate foundation, the plaintiff’s attorney should be the one offering the tape in evidence. At this point the plaintiff’s attorney must follow up with appropriate questions:

Q: How often do you ride your bike?Q: Why do you ride the bike?Q: How did you feel prior to the ride?Q: How did you feel during the ride?Q: Describe how you felt after the ride.

ConClusionIn short, we believe the only time that “bad” facts should

not be broached in this manner occurs when you believe that the other side’s introduction of them is highly unlikely to influence the jury’s decision. In that case, where the supposed harmful facts are so attenuated from the heart of the case, or so irrelevant that you believe the jury is likely to dismiss them out of hand, it may be a mistake to lend credence to an adversary’s position by discussing it. Rather, on summation, you can hammer home the point that the other side wishes to distract you with irrelevant matter due to the fact that it knows it cannot win on the merits.

In all cases, however, where you have legitimate concern that certain tangential facts can affect the verdict, we strongly

advise getting them out there first. Despite the difficult nature of initiating the topic, often the effort will be rewarded with a favorable verdict.

Ben Rubinowitz is a partner at Gair, Gair, Conason, Steig-man, Mackauf, Bloom & Rubinowitz and adjunct professor teaching trial practice at Hofstra University School of Law and Cardozo Law School; he can be reached at [email protected]. Evan Torgan is a member of Torgan & Cooper and can be reached at [email protected]. Richard Steigman, a partner at Gair Gair, assisted in the preparation of this article.

Dealing With Damages in Voir Dire and Summation

Ben Rubinowitz and Evan TorganNew York Law Journal, April 25, 2011

In any personal injury case, a victory is a Pyrrhic one, unless the plaintiff receives all the damages he is entitled to under the law. To lay the groundwork for a successful result, the trial lawyer must first select a jury which understands and embrac-es its function in awarding damages and does not enter the courtroom with a bias against large damages awards, regard-less of the proof presented. At the end of the case, the skilled attorney must tie together the proof in the case with the com-mitments obtained from the jurors in voir dire to follow the court’s instructions on damages, wherever it may lead.

Voir dirEJury selection involves many skill sets: questioning poten-

tial jurors on their background to determine their abilities to decide the case fairly, educating them as to their role in the case and ensuring that they are open to awarding damages if the facts support such a finding. Many prospective jurors think they are only deciding liability issues, and are surprised that determining the amount of the award is within their province. Convincing them they are competent to make such an award, and showing them how to do it, is the job of the trial lawyer.

To begin, you must first determine if they agree that negli-gent parties who cause injury should be the ones who pay for the costs of those injuries. Find out how the individual jurors feel about awarding money for an injury; how they feel about awarding damages for diminution of earning capacity; what they think of an injured person’s entitlement to be compen-

sated for his medical costs, past and into the future. Most im-portantly, find out if they agree with the civil justice system’s premise that injured people are entitled to be awarded for their pain and suffering if caused through negligent conduct. Prospective jurors who disagree with these premises should be questioned regarding their ability to fairly decide the damages issues and apply the law as charged by the court or challenged for cause.

With respect to jurors who remain on the panel, you must obtain assurances that if you prove these elements of damag-es, then they will not hesitate to make an appropriate award. In fairness, if the damages claims go unproven, the jurors should commit to awarding no damages.

suMMationSummation, of course, is the time to put together all of your

damages proof and compel the jury to make a substantial award. Always separate the elements of compensation in dis-cussing the amount of damages the jury should award. After discussing the liability issues and why your claim is meritori-ous, articulating the special damages is usually the best way to begin your request for compensation.

Loss of Earnings. Let’s take a typical case involving a laborer who sustained herniated discs requiring surgery with con-tinual radiculopathy and a torn meniscus in a motor vehicle accident. Assume he is totally unable to work as a result of the injuries sustained in the accident. You must tie in your evidence with a reason why a substantial award is warranted in the case:

Mr. Lopez isn’t Donald Trump. He didn’t earn billions of dollars. He did, however, have a steady job as a superinten-dent of an apartment building. Each and every day prior to this accident, he took care of a five story walk-up. He made sure the boiler worked, shoveled the common areas and steps in snow storms, cleaned the storm drains, was able to crawl under sinks to fix pipes. He was able to climb up ladders to paint the walls and ceilings of his tenants’ apartments. This was not some job where he sat behind a desk—Mr. Lopez’s livelihood depended upon his physical capabilities in order to perform routine tasks. The herniated disc in his lower back makes him unable to bend without intense pain. Once his disc ruptured and the nucleus pulposes oozed out leaning on his sciatic nerve, he really didn’t stand a chance at working at the high physical level he once did. And even despite under-going the surgery that his orthopedist recommended, the nerve damage he sustained has been severe and permanent. And the arthritis that has already set in within his knee joint from the surgical removal of his meniscus prevents him from climbing stairs and ladders, and squatting under pipes as he once did.

So what we must give him—at a minimum—is his lost earn-ings: $40,000 per year for the next 25 years until he is 65 years old. But just multiplying that amount times 25 years would be inadequate. Because as the economist told you, his salary

would have increased 4 percent per year, compounded, which would amount to over $1.4 million dollars over the course of his work-life expectancy. But we know that is not enough to fairly and justly compensate him. Because he had great fringe benefits: health insurance for his family, dental insurance, va-cation time and a pension. And Dr. Eco told you that the value of those fringe benefits was worth 40 percent of his earnings. So that he never really earned $40,000 per year, but $56,000 per year with fringes.

Medical Costs. The cost of medical care should be another “given” by the time you stand up to sum-up in the case. You must remind the jury of the necessity for your client’s future medical care and the cost of it that you proved on your direct case.

Just because Mr. Lopez will never get better, it is critical that he not get worse. Without the physical therapy that his orthopedist says he will need for the rest of his life, Mr. Lopez will be doomed to a life of degenerative arthritic changes and inactivity. Although the physical therapy will be just mainte-nance therapy, unlike physical therapy we are more familiar with for the acute stages of injury, it is very important none-theless. It will strengthen the musculature around his lower back and prevent his right leg where he has the radiating pain from atrophying or wasting away. Just as importantly, he needs constant strengthening of the area around his left knee including his quadriceps and his tibial antalis muscle to make up for his weak cruciate ligaments and his missing medial meniscus. The costs are $300 per week, 50 weeks for the rest of his life. With the undisputed medical growth rate added, that comes to $2.5 million dollars. Do you think he wants to spend all of this time in therapy? Of course not. Does he need it? Yes. Otherwise his body will just waste away. And his pain will become even worse than it is now.

Often, an analogy is helpful to bring home the point:What if, instead of Mr. Lopez being injured in that accident,

the defendants instead destroyed a famous painting like a Rembrandt or Picasso? And to repair and restore that paint-ing, there was proof that it would cost $2.5 million. Is there one of you who wouldn’t say, “Of course the owner of that Picasso is entitled to the cost of reparation from the defen-dants”? Well Mr. Lopez isn’t a painting, but as a human being, his body’s mechanisms are just as beautiful, just as precious. And shouldn’t he be just as entitled to repair his body as best as can be done? Of course he is.

A Lifetime of Pain and Suffering. It is very important to communicate the difference between the two concepts: pain and suffering. Although the concepts are included in one charge, along with loss of enjoyment of life, it is good to discuss them as separate categories of damages when speak-ing with the jury at the end of the case. Compare these general damages to the special damages of medical costs and lost earnings, and let the jury know that the special damages are the smallest part of the case.

So now we have 1.7 million in future loss of earnings. And


2.5 million in future medical or rehabilitation costs. And that is merely to compensate him for what he’s lost in economic terms or dollar amounts. Amounts he would have earned. And amounts that he needs to pay for medical care just to keep him in the status quo. And I’m telling you now that those special damages are in fact the smallest part of the case.

I’m going to talk to you about the greatest part of the case, and what he’s lost in human terms: I’m going to talk to you about his pain, and his suffering and his loss of enjoyment of life:

Mr. Lopez is in pain each and every day of his life. Pain he cannot get away from; pain that he will have forever. Each day he will have stabbing pain in his back. Each day he will endure pain that shoots down his right leg into his foot. Each day his right leg will alternate sensations of pain, then pins and needles, then burning and then numbness. He cannot sit because of the pressure on his lumbar spine; he cannot stand because of the spasm that occurs in his lower back. He can-not run, play sports, play with his little boy, or coach his little league team. And on the days that his back pain relents, he has the acute, knife-like pain in his left knee. Because of that he has pain in both sides of his body. Both legs hurt, but from entirely different mechanisms: one leg from an injury to the spinal nerves; the other from an injury to the knee joint. Both are bad separately. When they act in concert, they are debili-tating and torturous.

And speaking of torture, let’s look at our great American Constitution. We can have capital punishment, but we can’t torture people. That’s considered cruel and unusual punish-ment. We can have people put to death, but we cannot put them into pain. But isn’t that what the defendants did to Mr. Lopez? Didn’t they, through their negligence, inflict pain on him. Not just for one day, but for every day: and for the rest of his life.

But this isn’t pain that was just there on the day of the ac-cident. This isn’t pain that went away. Nor will it ever go away. Because he will have this pain every day for the rest of his life. So you must understand that you are not compensating him for just one day, but for all days, all the time, for the rest of his life. So your verdict on pain and suffering must stand for all time, for the remainder of his life.

Pain and Suffering of Short Duration. One of the difficult awards to procure is for pain and suffering of short duration prior to death. Nonetheless, with proper explanation and argument, a jury must be made to understand the basis for the award. For example, in a death case, where a person died after just a few moments after a fire-filled explosion in an automo-bile accident, the need for a substantial award can cry out:

So here sat Mr. Stanton, in this automobile accident, trapped in the back seat behind his brother, with the car on fire originating under his seat near the gas tank. The fire started on his legs, crept its way up his body, searing his flesh. It put him in the worst possible pain imaginable. First, burn-ing his outer layer of skin, the epidermis; it continued moving

up higher and higher on his body. It then burned his flesh deeper and deeper, piercing the dermis and burning his body, not just in a small area, but from toe to head—all while he is totally conscious.

And if that weren’t bad enough, the blast of heat inside the car caused his throat to close from the body’s protective mechanism to protect the lungs from scorching. This laryn-gospasm, similar to the mechanism in drowning closed his larynx so that he could no longer breath. So for the five to ten minutes that he was alive and conscious trapped in the back seat while his flesh was burning, his body was on fire and he was suffocating. If we were to play that fiction many do either philosophically or as children, which way would someone least like to die? By fire? Or suffocation? Mr. Stanton died from both. And did he suffer.

For those people who have burned their finger on a stove top, or burned the top of their hands taking bread out of the toaster oven, they know how painful burns can be. But to James Stanton, his whole body was burned. First through the first layer, then the second, then finally down to his nerves where mercifully they were damaged to the point where hope-fully he could no longer feel pain. Not just his finger, not just the top of his hand, not just his legs, but his whole body and even his face and skull.

Don’t forget the inside of the car got so hot that his blood actually began to boil. How could it not? If that weren’t bad enough, the man couldn’t breath. He was choking. Suffocat-ing. As if drowning in the ocean, but instead, he drowned in a sea of fire.

And people who are in great pain—who suffer tremendous-ly—they sometimes beg for death. They pray that death comes swiftly. But they never, ever, pray for pain. And Mr. Stanton did not have this pain before this accident. Before the negligence of the defendants.

Here is the key: You must underscore the concept that al-though pain is one thing, suffering is quite another:

So now we touch upon just some of the pain James went through in the five minutes he was screaming and then the next five minutes he was suffocating because he could not suck in oxygen. But as painful as those burns were, and as painful as not being able to breath must have been, that was nowhere near the absolute suffering he must have felt know-ing he was going to die. Knowing that he would never see his little boy again. Wondering how his son would cope with his absence. Thinking how he would feel when hearing of his death. What would the rest of his childhood be like without him there?

Lest you have any doubt of just how significant the manner of this death was, any time a tragedy like this occurs, friends and family members are called and notified of their loss. Their one universal question always is: did he suffer? Here, there could be no disguising the harsh reality.

tying in thE suMMation With Jury sElECtion


Summation is the time to remind the jurors of the discus-sion you had with them during jury selection. It is the time to invoke the assurances they made about their agreement with the civil justice system in general and the elements of dam-ages in particular:

We spent a lot of time talking to each other in jury selection about the elements of damages in this case. I asked you if you agreed with the civil justice system, which stands for the prop-osition that negligent parties who cause injuries should pay for those injuries, and you all agreed. And you all assured me that if we proved all the elements of damages you would make an award for each item. And finally, I asked you that if you decided in our favor, and added up the elements of damages, and they came to a substantial sum of money, whether you would, in fact, award a substantial sum of money if the evi-dence warranted it. And didn’t I prove these elements of dam-ages? And don’t they amount to a substantial sum of money? When you all agreed with this during jury selection, I couldn’t look into your hearts and I couldn’t look into your minds, but I believed you. So these are the numbers. All proven.

ConClusionTo procure a substantial damages award, more is needed

than just proof. An effective voir dire that explains and vali-dates the elements of damages is essential. Ensuring that ju-rors are committed to following the dictates of our law regard-ing damages, and identifying those who are not, is crucial to the end result. Above all, you must deliver a summation that reminds jurors of that promise they made to follow the law and compels them to act with a moral mandate for a decision in your client’s favor.

Ben Rubinowitz is a partner at Gair, Gair, Conason, Steig-man, Mackauf, Bloom & Rubinowitz and an adjunct profes-sor teaching trial practice at Hofstra University School of Law and Cardozo Law School. Evan Torgan is a member of Torgan & Cooper. They can be reached at [email protected] and [email protected], respectively. Richard Steigman, a partner at Gair Gair, assisted in the preparation of this article.

100 Days and Counting

Nancy J. Geenen and Suann IngleCorporate Counsel, April 26, 2010

A comprehensive checklist of activities and tasks is vital for success in today’s high-stakes civil litigation, especially as a guideline for in-house counsel with budgetary concerns who may not have experience in trial preparation and delivery

timelines.Preparing for trial is as much about a methodical approach

to tasks and deadlines as it is about the craft of presenting a persuasive story. A trial team — from the most seasoned trial attorney to novice litigator — needs a forward-looking road-map that identifies the destination and describes the land-marks along the way. Methodical trial preparation provides the trial attorney with more time for creative and analytical thinking that is often the difference between winning and los-ing a case.

100 Days Before TrialAssemble the entire trial team for a daylong, in-person

planning and strategy session. At this first meeting, address and assign substantive and logistic tasks.

• Tip: Use this meeting to set the tone and the expecta-tions for the period leading up to trial and then for the trial itself. Regardless of the trial team’s size, the lead trial attorney assigns responsibility for the multitude of tasks that require the attention and diligence of team members. Team meetings should stress accountability and include pep talks regarding the demands of trial preparation and trial.

In addition to the traditional checklists found in many trial treatises, the 100-day tasks and assignments include: schedul-ing interactive team meetings (frequency and mode: phone, video and in-person conferences); creating the trial task list and trial calendar, which includes alerts for the trial team (with a separate external calendar for in-house counsel and client); starting the electronic trial book including all court or-ders, pleadings and discovery; confirming witness and expert availability for preparation sessions and testimony at trial; scheduling tutorials and mock exercises; identifying potential motions in limine , applicable jury instructions, documents and other information likely to become exhibits; and review-ing the most recent iteration of the trial themes.

• Time Saver: Implement a virtual trial site where all of the trial preparation information is available to all trial team members 24/7.

• Tip: The task list and team calendar are living docu-ments with a single editor, usually an experienced paralegal or seasoned associate who owns the editorial rights for the life of the case. Tasks should be numbered with columns for date, description, responsible person, status and sign off for completion. This list is standardized for all trial activities through post-trial motions.

• Tip: Engage the client in the “real” trial preparation process, including client expectations with respect to budget, mock exercises, witness coordination, settlement and trial outlines and themes. Client management is an opportunity to test the client’s appetite for the trial, including budget expec-tations. Certainly the parties have participated in unsuccessful settlement efforts; however, the trial attorney must focus the client, in-house counsel, the chief financial officer and others in leadership, on the strengths and weaknesses of the case at trial, which is often very different from other stages of litiga-


tion.• Time Saver: A good test of the client’s appetite for trial is

a 90-minute presentation of the main case themes, witness testimony, evidentiary issues and a closing argument with an accompanying 30 minutes for questions and answers. Ask the client representative to invite a cross-section of management, excluding any trial witnesses, to attend. This rehearsal pre-pares the client for the value of the upcoming mock exercises, often reveals nuances about the case known only to company insiders, and generates good discussion about the merits of having a jury decide a significant business issue for the com-pany.

Finally, focus groups and mock exercises are a valuable way to test the claims and defenses that survive to trial. Use video depositions or mock depositions to test the reactions of the mock jurors to the witnesses through whom evidence will be introduced.

• Tip: Trial attorneys often lose the advantage of the mock exercise by trying to “win” in front of the client. Successful mock exercises test the strengths of the adversary’s case and the weaknesses of your client’s case. The true value of the exercise comes from identifying which themes or informa-tion are persuasive with the jurors who are undecided. Give some consideration to purpose of the mock exercise: Is it early enough in the process for the trial team to test some com-peting themes? If so, analyze whether client representatives should attend and participate.

75 days bEforE trialTrial preparation activities are chock-full of strategic deci-

sions that may be outcome determinative. The trial team has the mock exercise report and recommendations so that wit-ness and expert preparation can start in earnest.

• Tip/Time Saver: Keep the trial consultants, both jury and presentation experts, involved in the development and critique of the trial presentation. Having the opportunity to work through a storyboard and choose from several graphic presentation styles will standardize your themes and mes-saging. Multimedia is now standard in most courtrooms, and most juries expect to see a “show.” Consistency between what the jury hears from attorneys and witnesses and what the jury sees in exhibits and demonstratives is a critical component in a persuasive trial presentation.

The senior members are working the trial themes into sound bites that are repetitive and memorable for the wit-nesses, drafting the trial brief to tell the story, and matching the jury instructions to both the themes and the trial brief. The elements of the claim/defense and evidence chart are tied to jury instructions and burdens of proof. The paralegal is orga-nizing the witness files, ordering certified copies or originals of documents and scheduling hotel and travel logistics for witnesses and the trial team.

• Time Saver: Have a paralegal develop a working relation-ship with each witness so that the trial attorney is not bur-

dened with travel logistics relating to preparation and trial. The lead trial attorney is crafting the order of presentation of testimony and evidence, observing the trial judge in action and reading recent orders and decisions, and working on the outline of the closing argument.

• Tip: Follow and attend the trial judge’s pretrial motion cal-endar and observe jury selection and trial procedure in other cases on the court’s docket. Ideally, the observing attorney has been through one or more trials from start to finish. Make sure that attorney prepares written summaries and presents an oral report during a scheduled trial team meeting.

60 days bEforE trialThe trial team practices direct and cross-examination with

each witness and expert, becoming more intense and aggres-sive with each session.

• Tip: With fact witnesses, digital recording and observation is an effective tool for continued training and improvement. As expert witness practice goes forward, experts learn to use their reports as persuasive demonstratives that simplify and teach concepts central to the experts’ opinions and testimony.

• Time Saver: Read the case from start to finish; the plead-ings, the primary and secondary witness depositions, the dispositive motions, the declarations and exhibits, the expert reports and the court’s orders. With good preparation, expect only minor adjustments to be made, but there is still time to make significant changes to the case to be tried if necessary.

45 days bEforE trialThe trial team prepares for the fireworks between the par-

ties. Opposing counsel clash swords as each side tries to con-trol the exhibits and the pretrial procedures. Pretrial filings are prepared, filed and served. Many judges ask for joint filings of pretrial statements, exhibit lists, witness lists, neutral state-ments of the case and voir dire for the jury and preliminary jury instructions.

• Tip: Prepare a lead negotiator, with a supporting team, to handle all communications with opposing counsel. Having one point of contact and confirming areas of agreement and dispute streamlines the joint preparation and presentation process, and prepares for a “final” settlement conference that positions the client for the best possible settlement outcome.

• Tip: Consider appointing a senior member of the trial team as lead settlement attorney to attend the settlement con-ference while the rest of the trial team prepares without the distraction of negotiations. Avoid delay in trial preparation in the hope that “the settlement conference will make this trial go away.” Other team members are scouting the courtroom, befriending the courtroom clerk and the court reporter, and mapping the physical layout and technology capabilities of the courtroom.

30 days bEforE trialThe opening statement is outlined; witness scripts are final-


ized; stipulations regarding admissibility of exhibits, deposi-tion transcript designations and jury materials are reached (or not); and cross-examination scripts are started. The lead attorney is refining the order of presentation of the case. Every item on the task list is reviewed for completion or finalized.

• Tip: Work backward through the trial, from the closing argument and verdict form. The lead trial attorney attends one start-to-finish practice session with each witness and expert with the dual purpose of listening for the consistent story line and identifying ways to punch up the trial themes. Know the exhibits and the testimony so that the outline of the clos-ing argument and preparation of the opening statement are focused on presentation techniques that tell the story empha-size the trial themes. Within two weeks of trial, the trial team arrives on site and logistics are tested and finalized.

10 days bEforE trialDemonstratives are finalized and exchanged, objections

to exhibits and demonstratives are filed and resolved, and negotiations regarding jury materials begins again. Witnesses for both sides have been served with trial subpoenas, and the daily trial schedule is finalized with the court. The lead trial attorney works the order of presentation and practices the opening statement with the trial team and client representa-tive. Split the rest of the trial team between witness prepara-tion and jury material preparation. Federal judges are trend-ing toward timed-trials that force the parties to streamline the presentation of the case. Time the witness practice sessions and have witnesses use the exhibit binders as part of the prep-aration. Focus other trial team members on courtroom setup, demonstratives, animations, digital playback of depositions for cross-examination purposes, and voir dire procedures.

• Tip: Move all equipment, courtroom library and trial ma-terials into the courtroom at least one day before jury selec-tion begins. Have at least one laptop with a tested broadband card for Internet access to have real-time research and e-mail available.

• Time Saver: Equipment failures will occur, so have redun-dancies in place so the case is ready to go forward, even if the lights in the courtroom fail. Test all technology, including pro-jectors, sound and monitors and have extra bulbs, batteries and power cords available in the courtroom. An easel pad and markers should always be within reach. In the event a projec-tor bulb fails, the lead attorney is well-versed in the presenta-tion and will describe (and draw) the visual communication piece without pause.

first day of trialJury selection takes most of the day, but the jurors are now

seated, sworn and instructed. The lead trial attorney stands to present a seamless story that is authentic, trustworthy and persuasive. The trial theme is a Twitter-like post that is simple and easy for the jury to remember. The opening demonstra-tives guide the jury through the opening statement and illus-

trate the promises to be fulfilled by the close of the evidence.

ConClusionTrial is demanding, both physically and emotionally. A suc-

cessful trial attorney is a good story teller, reaching the hearts and minds of each juror during the multimedia presentation of the client’s case. Every trial is different, as is every trial team. Rarely does a trial team have the luxury of planning, much less controlling, the events that occur during the 100 days before trial. A systematic approach to trial preparation frees the trial attorney to reach peak performance as trial begins.

Nancy J. Geenen is a partner with Foley & Lardner in the intellectual property litigation, general commercial litigation and bankruptcy and business reorganizations practices. Suann Ingle is a managing director with FTI Consulting Inc. in the fo-rensic and litigation consulting practice. She specializes in jury research, strategic communication and presentation technol-ogy at trial. This article originally appeared in The Corporate Counselor newsletter, a Recorder affiliate.


WOMEN IN THE PROFESSION

WOMEN IN THE PROFESSION

See KHACHATOURIAN page 12

SPECIAL SECTION OCTOBER 2009

By Karineh Khachatourian

The IP challengeISTOCK

RECORDER ROUNDTABLE EVENTS

Upcoming Recorder RoundtablesIn Practice: Class Action ArbitrationWed., June. 8, 2011, 9 - 11 amThe Supreme Court’s recent AT&T Mobility ruling dismantled California’s rule that had previously invalidated class action waivers in arbitration agreements. This leaves plaintiff and defense attorneys asking how this closely watched case impacts the future of consumer class actions. This timely Recorder Roundtable will feature a high-level discussion of this seminal case and what it means for corporate compliance, consumer rights, employment law, litigation and pending legislation here in California and in Congress. This live, two-hour CLE program includes networking time and audience Q&A.

In Practice: SecuritiesWed., June 15, 2011, 9 - 11 amLearn first-hand important securities issues and decisions that could impact your firm or your clients in this special Recorder Roundtable. This high-level discussion will include SEC’s new proxy access regime, the impact of Dodd-Frank, and new rules for derivative actions. This live, two-hour CLE program includes networking time and audience Q&A.

In Practice: Climate ChangeWed., Sept. 21, 2011, 9 - 11 amImportant climate change issues and decisions that could impact your firm or your clients is the focus of this special Recorder Roundtable. Discussion includes the impact of California’s new administration, how CEQA is being interpreted by courts and regulatory agencies, SB 375’s “anti-sprawl” requirements, and proper corporate disclosure of greenhouse gas issues. This live, two-hour CLE program includes networking time and audience Q&A.

In Practice: EmploymentWed., Nov. 9, 2011, 9 - 11 amLearn first-hand important employment issues and decisions that could impact your firm or your clients in this special Recorder Roundtable. Discussion includes terminations, whistleblower actions, avoiding litigation, and workplace bullying. This live, two-hour CLE program includes networking time and audience Q&A.

Best Practices: How to Earn My GC BusinessWed., Dec. 7, 2011, 9 - 11 amThe Recorder will assemble expert in-house panelists who will offer candid feedback and best practices for law firms wanting to earn corporate business, including the ins and outs of referral networks, working with budgets and alternative fees, building valuable relationships, and understanding in-house dynamics. This live, two-hour CLE program includes networking time and audience Q&A.

therecorder.com/events#recordercle on TwitterFor more information cal l 415.490.9990

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