Educating the Trial Lawyer
Posted by Jenna Woolf on Sep 16, 2020
Written by David Rosenthal, CCTLA First Vice President
When it comes to learning to be a trial lawyer, nothing is more valuable than actually trying cases. But sometimes, for instance during a pandemic, it’s all but impossible to get in front of a jury to try a case or even to attend a trial skills seminar. In these times, learning trial skills is more about reading some of the many good practice guide books or attending virtual seminars.
There are too many valuable resources for the plaintiff’s personal injury lawyer to cover in one article, but the following is a summary of some of the sources I have found most useful.
Every trial lawyer has to start somewhere, and for someone looking for the nuts and bolts of a personal injury trial, there is no better place to start than the books on damages by David Ball. Ball is a leading trial consultant, researcher and trial advocacy instructor who has spoken at CCTLA events.
For an admitted liability case, David Ball on Damages 3 (NITA, 2011) is all you need for much of the structure and strategy necessary obtain a good damages verdict. The book provides a comprehensive approach to maximizing damages including how to identify bad jurors and leaders in voir dire, how to structure your opening, and how to prove non-economic damages.
It’s worthwhile to see the evolution of Ball’s ideas by reading his previous versions, the original David Ball on Damages: A Plaintiff’s Attorney’s Guide for Personal Injury and Wrongful Death Cases (NITA, 2001), and David Ball on Damages, The Essential Update (NITA 2005). While much of the material is repetitive, there are a few tidbits unique to each version. Of course, the damages concepts, focusing as they do on “harms and losses,” are equally applicable to disputed liability cases.
For disputed liability cases, one of the best trial guides is Rules of the Road (Trial Guides, 2006) by Rick Friedman and Patrick Malone. This book focuses on techniques to be used throughout a case for finding, defining, simplifying and incorporating in your case the “rules” the defendants violated in causing your client’s injury. It offers examples for every phase of the case including discovery, handling experts, opening and closing. The overriding theme is that the defense thrives on creating complexity, confusion and ambiguity, and the plaintiff wins by showing the defendants’ rule violations to the jury in as simple and clear terms as possible.
Another essential read for liability is Reptile: The 2009 Manual of the Plaintiff’s Revolution (Balloon Press, 2009) by David Ball and Don Keenan. While it’s arguable whether the book started a revolution, there’s no question that it has helped plaintiff lawyers frame the issues at trial to focus first on how dangerous the defendant’s conduct was, not just to the plaintiff that was injured in the particular case, but to everyone in society every time it occurs. In its most general form, the concept is that when you show the defendant (or anyone acting show the defendant (or anyone acting similarly) has unnecessarily endangered the plaintiff (or any member of society), the jurors sense danger to themselves, and a subconscious “reptilian” response is triggered. The jurors can then be empowered to stamp out the danger by returning a substantial verdict for the plaintiff.
As Rules of the Road and Reptile demonstrate, there are many common threads that run through the fabric of trial theory. Some of the most enduring threads were created by Moe Levine, a legendary trial lawyer from New York who taught trial skills in the 50s and 60s.
Levine is credited with originating the empowerment technique of charging the jury with acting as the “conscience of the community.” He also developed the “whole man theory,” which posits that you cannot injure just part of a person. When you injure a person’s body part with resulting loss of ability and mobility, you injure the whole person’s ability to function in life and in relationships.
Although it’s apparent by his words and manner of speaking that Levine lived in a different time, the concepts he taught are timeless and still used by some of the best trial lawyers today. Two books that contain his works are Moe Levine on Advocacy (Trial Guides, 2009) and Moe Levine on Advocacy II (Trial Guides, 2009). In my opinion, you cannot fully appreciate Moe Levine unless you hear him speak, so I highly recommend Moe Levine: The Historic Recordings on CD or digital recording.
Another institution that has had a profound influence on the trial lawyer community over the years is Trial Lawyers College, founded by Gerry Spence. There are several graduates within CCTLA and many graduates around the country who have achieved notable trial success and currently teach trial skills. The curriculum is not limited to what many would consider conventional trial skills, and includes tribe building, story telling and psychodrama. Spence preaches that the key to being a better lawyer is being a better person, and in order to tell our client’s stories well, we have to be familiar with our own. The true trial college is a three-week course at Spence’s Thunderhead Ranch in Wyoming, where students stay in dorms without Internet, television or cell phones. The course is said to involve a lot of soul-searching and introspection, and some graduates and introspection, and some graduates claim the results are life changing.
I am not a TLC graduate, but I have attended one of the three- to four-day day regional courses that TLC offers on a specific curriculum topic. If you are thinking of going to Wyoming, a regional course is a good way to get a better feel for the program. TLC has adapted to the pandemic by offering some virtual seminars.
Within the last several years, Trojan Horse Method has established itself as a leader in trials skills workshops and trial consulting. The founder, Dan Ambrose, is a TLC graduate who put together a program that emphasizes presentation skills in all phases of trial. Seminar participants practice the skills in front of groups as they are taught during the workshops.
One of the overriding principles is that the lawyer’s delivery and the testimony of witnesses must be “emotionally congruent” with the case in order to establish a connection with the jury that will motivate them to help the plaintiff. Lawyers are taught methods to “create space” where things happen and fi ll the space with “dialogue” so the juror is “transported” and personally experiences the key events of the case.
THM also teaches voir dire scripts, structuring of openings and closings and witness preparation. One of the great features of THM is the in person skills practice in front of groups which, of course, has been put on hold by the pandemic.
Even before the pandemic, some THM instructors left to establish a new trial skills and consulting firm, Trial Structure. Alejandro Blanco, another TLC graduate, was primarily responsible for developing the “betrayal” trial structure he taught at THM and continues to teach with the new group. The theory behind why the structure works is sometimes difficult to follow, but Blanco claims it is based on solid scientific foundation and works in every case. In my opinion, Chuck Bennett was the best THM instructor on structure, and he is now with Blanco in the new group. Trial Structure has been offering free Zoom seminars during the pandemic.
Some of the best trial guides focus on techniques for countering the anticipated defenses to the case. One such book is Polarizing the Case - Exposing & Defeating the Malingering Myth (Trial Guides, 2007) by Rick Friedman, which hones in on the most often-used defense strategy of attacking the plaintiff’s character by insinuating that he or she is not hurt, is not as hurt as much as he or she says, is motivated by a big payday, and is playing the system through their lawyer.
Friedman points out that most of the time the defense will not make these accusations directly to the jury, but will try to lead sympathetic jurors to the those conclusions through testimony of the IME doctor or by pointing out otherwise innocuous “inconsistencies” in the records.
Friedman suggests that the plaintiff’s lawyer must attack this strategy by forcing the defense throughout the case to acknowledge that they believe the plaintiff is “a liar, a cheat, and a fraud,” and then proving that the client is in fact a person of good character who does not deserve to be attacked in this way.
In my opinion, one of the most practical of all of the trial guides is Don’t Eat the Bruises—How to Foil Their Plans to Spoil Your Case (Trial Guides, 2015) by Keith Mitnik. As many will recall from his presentation to CCTLA a couple of years ago, Mitnik is a masterful and entertaining speaker. He is the lead trial attorney for Morgan & Morgan, a Florida-based firm that touts itself as the largest personal-injury firm in America. According to Mitnik, he is constantly in trial, and it’s not unusual for him to be in two to three different trials per month.
From this vast trial experience, he lays out a treasure chest of strategies to “dismantle” the defense case within the framework of the plaintiff’s case. This is done by eliminating, owning, or putting into context the best defense facts, or “bruises,” if you will, throughout plaintiff’s case.
One of the biggest gems in Mitnik’s treasure chest is his approach to educating jurors about bias and identifying biased jurors during voir dire.
If you have never compared being a juror to eating pie, you should familiarize yourself with Mitnik’s analogy of randomly being selected at the county fair to judge in a pie contest. This particular analogy may be easier for a southern gentlemen to pull off, but it’s easy to see how the concept is effective in allowing jurors to see bias as part of human nature and not necessarily a bad thing, making it easier to confess. After all, who doesn't have a preference between apple and cherry pie?
Once jurors are comfortable with the concept of bias, Mitnik lays out a system for getting jurors to rate their bias against personal injury cases on a scale of 1-10. The system is brilliant in making it easy for potential bad jurors to admit and talk about their biases, laying the foundation for cause challenges.
Mitnik is currently working on a practice guide titled Deeper Cuts that is scheduled to be out by the end of this year.
As bad as the pandemic has been, there have been some positive side effects, including less traffic, less pollution and the ability to wear shorts and t-shirts at work. For learning trial advocacy, it also spawned some of the most valuable training I have ever seen through Dan Ambrose’s Case Analysis.
For the last several months, Ambrose has hosted free Zoom seminars almost daily that feature some of the best trial lawyers in the country, including Brian Panish, Mark Lanier, Adam Slater, Keith Mitnik, Rex Parris, Joe Fried, Dale Galipo and our own Chris Whelan, breaking down their strategies and performances in actual trials.
In normal times, these lawyers would be too busy to dedicate two to three hours to webinar presentations, but during the pandemic, these masters have dedicated countless hours to sharing their techniques with the rest of us.
Case Analysis has presented on almost every aspect of litigation and trial, including videotaped expert depositions, creation of power points and focus groups. But the most effective presentations by far have been the self-critiques by lawyers of their own trials resulting in multi-million-dollar verdicts through the use of footage from Courtroom View Network.
Where else can you watch the actual closing argument, clip by clip, by Mark Lanier in a talc case resulting in a $4.69- billion verdict, and have Lanier comment on the thinking behind the legendary performance?
Case Analysis continues to provide free webinars. However, if you missed some of the past gems, you can still pay to get all of the presentations, including all transcripts, notes and power points, through Ambrose’s Trial Lawyer University. Current pricing is $1,000 per year.
CVN itself provides access to footage from hundreds of trials and allows subscribers to watch great trial lawyers in action in trials from across the country resulting in substantial verdicts. The cost of subscription is well worth it for any trial lawyer looking to learn from the best.
I still remember the look on my wife’s face many years ago when I read my draft opening that told the jury their job was to “fix the harms that can be fixed, help the harms that can be helped, and make up for the harms that can’t be fixed or helped.” It was straight out of David Ball. She didn’t like it. If she didn’t like it, the jury wouldn’t like it. That led to the realization that I couldn’t expect a trial guide to tell me exactly what to say in my trial, and I couldn’t just repeat what another lawyer said in another case.
Since then, I have heard many successful trial lawyers emphasize that you must be genuine, you must be yourself.
So while the above are all good resources, they are only starting points for developing your own skills and style.