Trial Attorney Blog

Two years ago at our law firm, I received a phone call I could not believe–another episode of sexual abuse of a a young child, entrusted to the care of a prominent day care center.
The child’s mother said her lawyer did not know what to do to help her. She was told to call our law firm because we had successfully helped other families whose children had been molested in child care or after school programs.
What shocked me was that her child was molested (by an older child) in the very same “after school care” room of the same day care center that had allowed another client’s first grade child to be molested. Different staff, different manager, but same result. It was another in a series of case our lawyers have handled involving sexual assault and sexual abuse.
These are disturbing cases, but fortunately we had identified knowledgeable and experienced experts to advise our clients on what treatment their little ones need to begin to heal. A courageous young teacher told the truth about how the center regularly left him “over ratio,” with too many children to supervise. The center also had failed to warn its young staff that children in its facilities had been known to sexually abuse other children.
We built a strong case, and the center’s insurance carrier paid our clients too much to go to trial. I hate that it happened to yet another child, but am very happy for the family that their child will have the treatment needed.

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As we all know, trial lawyers are under assault by the business community. We are accused of being sleazy, money hungry ambulance chasers. I need not further discuss this nationwide propaganda campaign, but suffice it to say, our public image has been and continues to be at risk. Accordingly, it is imperative that as trial attorneys we conduct ourselves as ambassadors for justice when we appear in a courtroom.

The best way to get a favorable result in any case is to exude confidence and to practice the highest standards of professionalism. This is a fundamental rule of trial practice. The plaintiff’s lawyer cannot afford to be viewed with skepticism by the jury. The jury must trust the trial lawyer and his sincerity.

Accordingly, it is absolutely vital that counsel exude professionalism in everything he does. The manner of one’s dress, the extent of his preparation, the manner in which he conducts himself, his competence and his demeanor all reflect on our profession as well as the case before the jury. If we are to overcome the negative stereotypes being advanced by enemies of our civil justice system, during closing argument, it is recommended that counsel continue to practice the highest standards of professionalism in the manner in which he conducts himself. If the jury sees for itself the extent of counsel’s preparation, the extent of his confidence and the extent to which he embodies the quest for fairness and justice, this will not only enure to the benefit of the client, this will help our profession as a whole. In short, it is good business to be professional and if one is to be successful in a summation, professionalism must be exhibited in the presentation.

It is amazing to watch television commercials advertising lawyer services for personal injury cases. One often sees a client holding a fist full of cash praising their lawyer for securing a large cash settlement. The client is typically shown smiling and happily talking about how much money they received from their personal injury claim. These ads have often surprised me because it is typically only in the very serious case that clients receive large settlement amounts and in those cases, they usually deserve the amounts of the settlement because their injuries are typically horrendous. It is hard to imagine our clients smiling about these matters because typically large cash settlements mean that the victims have suffered life altering and permanent injuries from which they will never recover.

The insurance lobby has been successful in portraying personal injury claimants not as innocent victims, but rather as those seeking “jackpot justice.” The propaganda is that many people are not injured at all, they simply want money. Of course, given the human condition, there are always those who will embellish their injuries and who may be motivated by secondary gain. The propaganda is an insult to those victims who are unfortunate enough to be seriously injured by the negligence of a third party.

Our experience has proven over and over again that those who receive significant cash settlements are those who deserve such an award. A child has been killed, a leg has been lost, a back broken. These are hardly the kinds of injuries that result in people smiling about money. Usually money is inadequate to compensate the victim for the loss of their independence and a loss of the lifestyle that they experienced prior to injury. Thus, the myth of “jackpot justice” is just that, a myth. The truly deserving clients are not seeking money simply to inherit a windfall from a tragedy. Rather they are seeking justice, which can only be monetary compensation to provide some level of compensation for that which they have lost, which is usually the most precious gift of all, good health. Obviously, if someone’s health is impaired significantly enough their livelihood can be endangered and their earning capacity greatly diminished. Indeed, in many of our more serious cases, our clients can never work again and lose their career, their livelihood, their home, their credit and virtually everything they once had because of the severity of their injuries.

Any lawyer who has a client with a claim against any branch of government knows full well that there needs to be investigation of that claim in order to be successful in prosecuting it. One of the first steps in the process is to serve a timely ante-litem notice claim within six months of the claims against a municipality or within twelve months if it involves a claim against the State or a county government agency. We have previously blogged about these requirements in other entries. Nonetheless, once counsel has filed a timely ante-litem pre-suit notice of a claim, counsel further needs to use Open Records Act requests available under Georgia law to request any and all documents that will be necessary to prosecute the claim. Some records are exempt from the Open Records Act such as criminal investigative documents in a pending criminal investigation, however, most public government documents can be obtained via an Open Records Act request as they are required to be maintained in the normal course of business.

An example of the type of documentation one might wish to secure via an Open Records Act request would be a request for insurance data for the city or county and other required government policies applicable to the incident. Obviously, the key is to demonstrate that there has either been a waiver of sovereign immunity through the purchase of available insurance coverage and/or the enactment of policies and procedures whereby counsel will be able to argue that there was a breach of a ministerial duty in failing to execute a simple ministerial duty required under local policies, procedures or state law.

Any time there is a potential claim against any governmental entity, sovereign immunity defenses loom large. The courts have been very protective of most governmental agencies and absent an exception to sovereign immunity, counsel will be unsuccessful in helping a client obtain redress for any damages caused by governmental negligence. However, there are numerous exceptions to sovereign immunity and through proper pre-suit investigation and utilization of the Open Records Act request and other investigative techniques, it is still possible in certain circumstances to successfully prosecute a personal injury claim against a government agency or employee. While every case is factually specific, investigation is the key in all of these cases.

In the typical negligence case, it is not necessary that a jury be reminded that they have taken an oath to set aside any prejudice or biases they have and to render a verdict solely on the evidence and the law presented to them. However, there are cases of a more controversial nature where it might be necessary for counsel to consider reminding the jury of its oath. Examples would include medical malpractice cases and other controversial cases such as high speed police pursuits.
We all know about the propaganda campaign waged by the medical lobby and the Chamber of Commerce relative to caps on malpractice awards. As many observers have already noted, we do not need tort reform in Georgia because it has already occurred. The juries have been polluted by the massive propaganda campaign being waged against our clients. Thus, when a jury steps in the jury box, they may be fearful that if they return a verdict for a plaintiff, that they may be putting a doctor out of business or causing other doctors to leave this state. They may also be fearful that they will be participating in a “jackpot justice, lottery situation” where the plaintiff is made rich, as his attorney, while the poor doctor is sent home to pay the judgment himself. While we know that this propaganda is not true, nonetheless, juries have been so exposed to it that they may actually believe some of these falsehoods.
Accordingly, it might be necessary for counsel to advise the jury during summation that they promised during voir dire that they would follow the law and the evidence and that they should not disregard their oaths for fear of the collateral consequences of a just verdict.

As discussed above, counsel should utilize the structure in delivering his/her summation. If counsel is disorganized in his approach, the jurors will not follow the arguments made and subliminally will believe that counsel is not entitled to a verdict. Again this is a fundamental rule of a winning summation.
Although the fundamental dos are sometimes easy to recognize, there are some fundamental don’ts as well. For example, do not select an issue that an intelligent juror will recognize as being disingenuous or phoney. Never misstate or overstate the evidence. Do not attack a lawyer personally. Do not attack a party or a witness in the case if the attack is not warranted. Do not talk too fast. Do not oversell your case. Do not use big “lawyerly” words. Avoid undue repetition, this includes talking too long. Do not mumble. Do not criticize the Court. Do not personalize your adversary, and instead refer to the “defendant” or the “corporation,” while referring to your client by his first or last name.
Do not rely too much upon the inspiration of the moment. Do not mimic others. Do not demean or criticize unfairly. Strike hard but no foul blows. Finally, do not let your opponent outwork you. As stated, if you are not a show horse, you must be a work horse and practice good fundamentals if you are to be successful.

In a hotly contested liability case, it is often easy for counsel to forget that the reason they are there is to achieve a favorable monetary verdict for their client. It is tempting sometimes to spend far too much time discussing liability thereby leaving counsel with little or no time to discuss damages. The reason we are in Court is to try to get a verdict to compensate our client for the damages they have sustained. Obviously, we have to discuss liability. However, we should never discuss liability exclusively and should always reserve a sufficient amount of our time in summation to devote to the subject of damages.

If the case is a close one and it is necessary that counsel discuss liability extensively, I would suggest that counsel discuss liability at least seventy percent (70%) of the time and reserve thirty percent (30%) of his time for damages. If counsel believes that liability is fairly strong, counsel might wish to divide his arguments between fifty-five and sixty-five percent (55-65%) liability and thirty-five to forty-five percent (35-45%) damages. If liability is strong, the counsel might wish to reverse this percentage and focus more on the damage equation to the case. Whatever the issues involved, however, counsel must be organized enough to allocate a sufficient percentage of his time to discuss the damage question such that the jury knows what it is counsel is asking for and why it is that the damage position of the plaintiff is both fair and just.

When discussing money with the jury, I would recommend that counsel always give the jury a range of suggested verdicts. If the jury is not given a range of suggested verdicts, then they have to come up with their own range and they may not pick a range that you will like. By giving a jury a range as to what would be appropriate, this gives the jury something to rationally discuss in the jury room.

As stated above, it is most important that counsel appear to be completely sincere in everything he says and does. The best way to do this is to speak from the heart and tell the jury exactly what you think. If the jury senses that counsel is speaking candidly in a forthright manner about the issues in the case, the jury is more likely to have confidence in what is being said.
If you speak from the heart, by definition, you are being yourself. If you speak from the heart, by definition, you are being sincere. If you speak from the heart, a jury will recognize that you are doing so. This can only help your client because the jury is more likely to side with the attorney who strikes them as being the most fair, the most believable and the most genuine. Make sure that this person is you by speaking from the heart.

Every good trial lawyer knows that a jury remembers best that which they both hear and see. Accordingly, demonstrative exhibits should always be used during closing argument. Sometimes demonstrative exhibits are necessary in order to emphasize a point about liability. Sometimes they are used to emphasize principles of law.
Effective demonstratives can also be used to discuss damages. A good closing argument might use demonstratives in all of these areas. In short, a well prepared demonstrative exhibit will assist counsel in making his point while at the same time assisting the jury in remembering it.
Of course, in addition to using demonstrative exhibits, actual trial exhibits should be shown to the jury just as a demonstrative exhibit would be shown. If a particular exhibit is important, the exhibit should be referred to by number and shown to the jury and its importance to the case should be discussed. An actual trial exhibit (blown up) can be used as a demonstrative exhibit in this fashion where counsel uses the exhibit to demonstrate to the jury why it is that the evidence supports his client’s contentions on any contested issue in the case.

In giving a closing argument, it is essential that counsel use the legal language of the case. The court will be instructing the jury on various principles of law that could be absolutely crucial in the jury’s determination of the facts. Thus, when discussing a case with the jury, counsel should use the language of the case. Counsel should use and explain terms such as “preponderance of the evidence,” “proximate cause,” “breach of duty,” “failure to exercise ordinary care,” “negligence,” and “damages.” If, for example, a central issue in the case is whether the plaintiff was contributorily negligent, that term should be used (exactly as will be charged by the Court) and explained as are other terms of art.
Many cases have unique questions of law that ultimately will control a jury verdict. It is absolutely essential that counsel use the language of the case from the beginning of the case through its end. Hopefully, the key language of the case was used in Opening Statement. Utilizing “the echo effect” during summation, counsel can use the same language of the case during summation in convincing the jury that their view of the evidence should be such that the issues are resolved favorably to the client.