Why movies are cliched and anachronistic...

...because, otherwise, you would  be stupid to know who was the "good guy."

Cracked - 6 tricks the movies use to make you root for the good guy.

Jury Instructions.

A lesson from the Blogojevich trial:

As the jurors in the corruption case against Rod R. Blagojevich, the former Illinois governor, entered a 25th-floor conference room here, one problem was instantly clear: They were overwhelmed.

The judge had handed them instructions that ran to more than a hundred pages. The verdict sheet was as elaborate as some income tax forms. And many of the 24 counts they were being asked to consider came in multiple parts and were highly technical and interconnected.


“It was like, ‘Here’s a manual, go fly the space shuttle,” Steve Wlodek, one of the jurors, said Wednesday.

And jurors aren't being paid $300 per hour to work on the damn thing.

Revenge of the Court Reporters

Now, all those dumb things that lawyers say off the cuff - usually because they're thinking of the next question - will be publicized on "Overheard in Court."

Can You Spell That?


Q. Do you have any children, ma’am?

A. Yes. I have one daughter.

Q. And what is her name?

A. Kenyati.

Q. Could you spell that for our court reporter?

A. (Pauses) You know, I never did know how to spell that just right.

And:

Alive or Dead!


Q: Okay. And I guess I didn’t ask you about that. Your mom had a sister?

A: One living sister, yes.

Q: Okay. What’s her name?

A: Lori Johnson.

Q: Okay. Where does she live?

A: Here in town.

Q: Is she still alive?

And:

Restate the question, please.


A. Could you ask the question again? I’m sorry.

Q. Okay. Your knowledge with respect to advice given by their counsel concerning acceptance of a 2X loan over a 1X bridge loan that contained a security vehicle has not changed since the time you filed the complaint and to date?

A. I’m almost through the labyrinth there.

And:

He loved it more than me…


Q. Winnie, Did you deliver Frazier’s fishing tackle box to my office?

A. I most certainly did.

Q. Did the judge tell you not to do anything to Frazier’s belongings?

A. He did. Frazier always loved that tackle box and fishing more than me.

(Lawyer has court reporter mark tackle box)

Q. Is this paper sack the way you delivered this tackle box to my office?

A. It most certainly is. Frazier always loved fishing more than he did me.

(Lawyer opens tackle box by court reporter. Court reporter screams)

Q. Well, then Winnie, who crapped in Frazier’s tackle box?

Good times, good times.

Depositions Texas-style



Apparently, in Texas, it's not a real deposition unless there are threats of bodily injury.

In California, if I was the attorney "defending" the deposition, I think that I would pull the witness, challenge the other attorneys to file a motion to compel, and tell him that I would be attaching the video to my request for sanctions.

But that's just me. I'm sure that Cranky Greg's approach would be fly across the table and "bitchslap" the other attorney.

[Via Cranky Greg]

Trial Practice - Closing Arguments.

I've been busy the last several weeks with a disability discrimination jury trial.

Last Thursday, the jury awarded my client $15,000 in lost wages/benefits and $75,000 in emotional distress. Since we had made a statutory offer to settle for $17,500 last December, the interest on the verdict takes the award to $98,000. We will also be able to recover costs and attorneys fees, which may double or triple the award.

All of which is a "cautionary tale" on the virtue of settling a case before trial.

My favorite part of the trial is the closing argument (and the rebuttal.) In the closing argument, I finally get my chance to put all the pieces together and situate the case in the center of some big concept.

I learn an awful lot in preparing my closings, which may sound strange. In this case, I think I learned a lot about discrimination, stereotypes and the American virtue of judging the individual on his own merits and not on our perception about group stereotypes.

My client is an insulin-dependent diabetic. He became insulin-dependent because of fighting pancreatitis, which wrecked his pancreas. He had worked for the defendant for 9 years as a carpet cleaner. He had been off work for about 10 months, and when he re-applied for his old job, the defendant rejected him as unfit because he had lost a lot of weight and muscle in his illness, although his treating physician had released him to return to work and the defendant's pre-employment physical had passed him as "able to work."

The defendant's attorney had been hammering on the notion that because my client was insulin-dependent, there was the possibility of him suffering from low blood sugar, which defendant's counsel argued could cause him to pass out. The doctor who had done the pre-employment physical offered that he would not pass an insulin-dependent diabetic for work because it would put an "unnecessary liability risk" on the employer (which is hardly a medical or legal standard.)

There was no evidence that my client was at any risk of passing out while driving, and the employer's doctor had no problem with the idea that an insulin-dependent diabetic could drive himself to work. Apparently, the "risk" became an unnecessary liability risk only when it might involve the employers who hired him to do pre-employment physicals.

My opening began.

Ladies and Gentlemen.

I want to thank you for your attention and patience. The more I stand on this side of the bar, the more I come to appreciate our system that allows people like Ray to take their problems to their neighbors and have them sorted out.

It is not every country that allows the working man to bring his grievances before his fellow citizens. That we do is one reason that ours is such a great country.

This is also a great country because we believe that the individual should be judged in his own merits. We let individuals rise or fall on their own merits - we don't judge them based on group stereotypes.

Which brings us to this case - which is about disability discrimination.

What is a disability? A disability is something that limits a person in some way. Ray had a disability. He had pancreatitis and became an insulin-dependent diabetic. Because of the treatment of his pancreatitis, he appeared to be something he wasn't.

What is discrimination? Discrimination involves stereotyping. It involves the erroneous assumption that an individual shares some negative attribute sterotypically asssociated with the group that the person is perceived to belong to. Hence it is discriminatory to assume that redheads (pointing to myself) are all hot tempered and that women should be secretaries and not lawyers without getting to know them individually.

I'm not particularly clever, so I went on the internet last night to find a quote that summed up what discrimination is all about and I found this quote by E.B. White. You may recall White as the author of the children's story "Stuart Little."

White said:

"Prejudice is a great time saver. You can form opinions without having to get the facts."

As we will see, the defense case is based on nothing more than stereotype. It assumes that Ray couldn't do his job because he was disabled, rather than looking at him individually to see if he could do the job.

With that opening, I was thereafter able to build on the idea that prejudice s a time saver that allowed the defense to form its opinions and arguments without having to get the facts and that the jury should resist that approach.

It turned into a pretty neat theme.

I'm probably dense - well, I am dense - but I had never reflected on the notion of discrimination versus individual merits before. Obviously, that is what Martin Luther King, Jr. was talking about in his great "I have a dream" speech. Typically, for me, discrimination involves sense of animus or antipathy - someone who discriminates dislikes some imagined, or even real, characteristic of the group to which the individual belongs.

It seems that in most of my cases, the notion of judging on individual merit is absent from such cases because the antipathy is based on some real characteristic - sex, sexual orientation, pregnancy or even disabilit - that has been ruled "off limits" for consideration in employment.

In the rebuttal, I threw in this quote by the American philosopher William James:

“Many people think they are thinking when they are merely rearranging their prejudices.”

This turned out to be a very strong theme because the defense counsel's argument was based on extrapolating from isolated comments in my client's medical records to create a fantasy that my client would have been dangerous if he had been driving the employer's carpet cleaning van (despite the absence of any evidence that my client ever had any problems driving during the last two years.)

At one point, defense counsel actually began to ask the jury how they would feel if it was their children in a school bus driven by my client. I objected based on the "Golden Rule", which was sustained. I then upped the ante by asking the court to admonish counsel, which the court then did - guite appropriately because violating the "Golden Rule" - i.e., asking the jury to put themselves "in the shoes" of one of the parties - is grounds for a mistrial, albeit I have never, ever heard of a defendant violating the Golden Rule. Normally, it is the plaintiff who has to be be wary of asking the jury how much they would ask for if they were offered the opportunity to experience the injury suffered by the plaintiff.

This case explains the origin of the "Golden Rule" concept:

The biblical 'golden rule' states a standard of conduct for individuals: do unto others as you would have them do unto you. Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 139, 750 P.2d 1257, 756 P.2d 142 (1988) (citing Luke 6:31). Generally, reference by counsel to the 'golden rule' per se, or allusions to the rule, such as 'urging the jurors to place themselves in the position of one of the parties to the litigation, or to grant a party the recovery they would wish themselves if they were in the same position,' are improper 'golden rule' arguments. Adkins, 110 Wn.2d at 139 (quoting J. Stein, Closing Argument sec. 60, at 159 (1985)).

Go figure! I didn't know that the "Golden Rule" objection was literally based on the Golden Rule. I thought it was some kind of metaphor about the importance of this rule.

Of course, to be fair, my background is in breach of contract cases where a Golden Rule appeal to the jury - e.g. "put yourself in the shoes of this farmer who received 15,000 trees contaminated with agrobacterium tumafasciens" - is going to elicit confusion rather than sympathy. (See Serian Brothers v. Agri-Sun Nursery (1994) 25 Cal. App. 4th 306 cited in this case.)

Here is a post about other defense counsel violating the Golden Rule, so it does happen.

Here is an article that details the potential personal liability of counsel who intentionally makes "Golden Rule" aguments.

Interesting.