New and events of the Philadelphia Bar Asso.
Issue link: https://thephiladelphialawyer.epubxp.com/i/574228
what was said at that meeting. d. There is pretty good authority for using a video deposition in your closing, assuming it is in evidence. C. Michael Burton & Michael Glover, "Managing A Big Case Down To Size," 15 Litigation 22 (Summer 1989), though it may be wise to clear such use in advance with the trial judge. CLOSINGS a. Know the rules. As noted in a prior article (paragraph 19), in some jurisdictions, plaintiff goes first, then defendant; and then, if defendant has put on a case, plaintiff gets a rebuttal. In others, defendant goes first. I know of one case in which counsel for defendant, a very experienced trial lawyer who was trying a case outside his home jurisdiction, was caught off guard when the judge called on him to go first. Again, know the rules. b. Review your opening. Remember, the opening and closing are supposed to fit together. If you told the jurors in your opening that they would have to decide three key fact questions, you do not want to forget about them in your closing. c. Give thought to the order of topics. There is no rule that requires that you discuss liability first, then damages. Is there some reason to flip them? d. Look for snippets of trial testimony that will help to make your case. Using the exact words of some key witnesses will help to bring things to life. e. Look to exploit things that the other side has inexplicably contested. For example, in one insurance coverage case, the insurance company refused to admit that Exhibit 1 was a copy of the insurance policy it had issued to plaintiff even though the evidence on that point was overwhelming and the insurance company had no particular basis for contending otherwise. That gave counsel for the insured the opportunity to say in his closing, "Why won't the insurance company concede that this is its insurance policy? What does such refusal tell you about the insurance company?" Comments that never could have been made if the insurance company had conceded the obvious. f. As suggested in the preceding paragraph, look for opportunities to use rhetorical questions. g. Use plain language. Lively Wilson, a renowned Kentucky defense lawyer, told the story of saying to the jury in his closing that plaintiff's expert "is an enigma to me." Later the deputy clerk told Wilson that, as he was leading the jury to the deliberation room, he heard juror A say to juror B, "I can't believe that in 2001 a lawyer would stand up in a federal courtroom and call a man [the "N" word]." Wilson pleaded with the judge to bring the jurors back to explain that the word he used was "enigma," that enigma meant mystery, and that it was not a racial slur. The judge refused to do so. Lesson learned. h. It is not so easy to speak bluntly and honestly to jurors about the evidence against you because we all want to act as if the other side never laid a glove on us. But jurors listen when attorneys talk straight to them. In one case, after recapitulating the worst of the testimony against my client, I found myself blurting out, "Now that's troubling, isn't it?" All eight jurors moved forward on their seats as one. Why? Because, without planning to be so forthcoming, I was talking straight to them. They came back in my favor. In another case involving a very badly injured plaintiff, defense counsel Adrian King, a trial warhorse, said to the jurors, "If you don't follow the judge's instructions about putting aside sympathy and just deciding this case on the evidence, I cannot win." The jury came back in King's favor. While most of us would hesitate to be quite so candid, in a given case it may be necessary to approach this degree of straight talk with the jury. i. If you represent plaintiff and have the right to a rebuttal closing speech, consider working backwards from there. Herb Kolsby, a legendary plaintiffs' personal injury attorney, said that he would decide what he wanted to be talking about to the jury in his rebuttal before outlining his main closing. So, if Kolsby wanted to be talking about topics A, C and F in his rebuttal, he would say just enough in his main closing to carry the day on those topics but would hold back some excellent material for use in his rebuttal. But be careful: there is always the risk that savvy defense counsel might not talk about topic F at all in his closing, thereby putting if off limits for plaintiff's rebuttal. BE YOURSELF? For many years, Judge John Gerry (D.N.J.) used to exhort rising trial attorneys: "To be a successful trial lawyer, the most important thing is to be yourself. Unless you're a jackass. Then pretend to be somebody else." Dennis R. Suplee (dsuplee@schnader. com) is a partner in Schnader Harrison Segal & Lewis LLP. the philadelphia lawyer Fall 2015 27 "If you don't follow the judge's instructions about putting aside sympathy and just deciding this case on the evidence, I cannot win."