How to Defend an Auto-Negligence Case From a Plaintiffs' Lawyer's Perspective: "I Saw You In Court"

By: A.P. Pishevar, Esquire
(copyright 2004)

The penultimate fulmination at the end of failed negotiations is to say "I'll see you in court." Well, I've seen you in court and learned a few things from the best teacher- experience. I have seen the approaches and techniques of many of my brothers and sisters of the Bar in the Defense of Auto-Negligence Cases, inter alia. My perspective in this article is from that of the opposing counsel or on the occasions in which I assisted co-counsel or when I was simply a spectator observing a trial from the gallery. From those vantage points, I have seen many effective approaches and some ineffective ones. Some of what I have gathered and learned are encapsulated in this article. I will state the three (3) most important lessons here and now: (i) do not assume or take anything for granted, the jury might be blind to some of the most seemingly simple facts (but if you did not tell them, they won't know); (ii) listen carefully to all witnesses at all stages of the litigation - you might be blind to what the jury might be seeing quite clearly if you do not listen carefully and critically to every witness; and (iii) there is no substitute for the twin towers of good, old-fashioned hard work and honesty, i.e. credibility and objectivity. These lessons are important propellants that advance us in our journey - the metamorphosis from simply litigating to becoming a genuine Trial Lawyer.

Contents:

Liability

Evaluation Of

Parties

Other Fact Witnesses

Experts

Other Potential Liability Factors

Injuries

                        Serious Enough to Seep Sympathy into Liability

                        MIST?

                        Nature and Extent of Treatment                                                                            

Lost Wages?

Cost of Litigation

                        Attorney's Fees

                        Suite Costs and Expenses

Intangible Considerations

Preparing for Trial

                        Checklist

                                    Interrogatories

                                    Deposition Transcripts

                                    Demonstrative Evidence and Exhibits

                                    Voir Dire

                                    Jury Instructions

                                    Opening Statement

                                    Direct Examination

                                                Fact Witnesses

                                                Expert Witnesses

                                    Trial Brief/Notebook

                                    Lawyer's Notes

                                    Cross Examination

                                                Fact Witnesses

                                                Expert Witnesses

Pre-Trial

Trial

                        Voir Dire

                        Opening Statement

                        Direct and Cross Examinations

                        Motion for Judgment/Directed Verdict

                        Rebuttal/Surrebuttal

                        Closing Argument

            A.        The Liability Issue.

1.    Evaluation of Parties.

Many traffic accident cases pivot on the shaft of the classic "he said she said" dilemma. There are no independent witnesses or a full police investigation. Such investigation of facts is all-important to the fact-finder. A police officer cannot be questioned concerning the ultimate issue of fact. Liability must be determined by the trier of fact. Especially with regard to a disputed traffic light collision and/or lane change collision, the credibility of the parties as witnesses is all-important. Credibility is the real ultimate issue in front of a jury.

Thus, it is vital that depositions to be taken of the plaintiff and any other additional witnesses present at the time of the collision. If there were passengers in the plaintiffs automobile, it is critical to take their deposition even in the absence of serious bodily injuries. Interrogatories might seem sufficient with a minimal injury, but the appearance of a person to a jury is one of the most important factors, if not the most important factor in determining the strength or weakness of your case. If a thorough deposition has been taken of the plaintiff you are in a position to evaluate him as a witness in terms of credibility as well as the ability to see, hear or perceive the facts important to the liability determination. The personal appearance and presentation of the witness is key. A well-dressed family man or professional businesswoman will make a much better impression upon a jury than your classic biker-type with tattoos and a beard or a woman who would wear a short skirt or a halter top to a deposition. We all know that many people are cleaned-up for trial, but many people cannot be convinced to change their outward appearance even for the purpose of a trail.

A good trial lawyer minimizes the poisons known as blind spots with the antidote known as objectivity. Objectivity is a fancy way of saying - be honest with yourself. Take a Good Look at your own client's potential and image as a witness. If the evidence at trial warrants, you have the option of not putting your client on the stand. If your client is going to be a bad witness, as the saying goes "no new is better than bad news." This is a balancing test - a "risk/benefit analysis." One that is an art and not a science. A good trial lawyer must rely on instinct and experience here. Of coarse if your client demands to testify, all you can do is lead him to the water, you can't make him not choke or not drown. The bottom line here is, the risk of severe damage on cross-examination is greater than the benefit gained on direct examination, the decision to put your client on the stand might be a fatal one to the case. Oft times defense lawyers are of the mind-set that a jury must hear what the defendant has to say regardless of what might happen on cross. I have seen plenty of lawyers cock their head and call their client to the stand and have them look blameless and sympathetic on direct. Then, only to have it fly back in their mortified faces ten-fold on cross-examination. I believe that this playing it by the numbers is one of the major pitfalls of defense attorneys. This is probably a mindset, which is brought on in the large defense firms, but many defense lawyers are guilty of this particular trait. Thus, it is very important to meet and know your client thoroughly and to evaluate his or her potential as to how they would appear at trial and hold up under cross-examination.

            Another fatal sin is to attack the opposition, just because they can, on some relatively innocuous point, thereby appearing to make a mountain out of a molehill. Do not attack just because you can. Aside from the fact that the jury will see it as disingenuous, chances are that your client is probably vulnerable to an identical and effortless looking attack by opposing counsel who is prepared and knows the case. This time the line of questioning will not look so "innocuous" because you raised this point so flamboyantly when cross-examining the plaintiff. An example of this is, technical inconsistencies and omissions which exist in all answers to sets of interrogatories. If you are going to "grill" the plaintiff on omitting some minor fact, you better make sure your answers to interrogatories are plenary and thorough. Putting you client on the stand only to be assailable to such "easy pickings" attacks is poor trial lawyering.

2.    Evaluation of Other Fact Witnesses.

            Many of the prior noted consideration with regard to the parties as witness apply equally to other factual witnesses.

One of the primary concerns with regard to other independent witnesses is their availability for trial. Contact should be made with favorable independent witnesses early and a rapport established to keep their cooperation. A deposition with a waiver of signature is an important backstop should the witness later on become uncooperative. It is also important to make sure that the deposition is filed well in advance of trial so that the argument can be made to the court that the witness is unavailable, not subject to the subpoena power of the court and so their deposition testimony can be substituted in lieu of their appearance at trial.

It is important to keep the element of cooperation with any favorable independent witnesses at the forefront throughout the course of the litigation, especially when evaluating your chances of prevailing upon the liability issues at trial. Too often attorneys believe that the subpoena power is all encompassing within their jurisdiction. They believe they have nothing to worry about if all they do is issue a subpoena at the time of trial without any explanation to the witness. This also assumes that you will be able to serve the witness with a subpoena. Most law-abiding citizens will comply with a subpoena, but there are many that will not. The only alternative at that point is to either attempt to substitute the deposition testimony of that individual or have the court issue an order for the Sheriff to pick up that witness for failing to comply with the subpoena. That individual will be far from cooperative if they are picked up by the Sheriff either at their home or their place of employment.

One way to approach this issue is to direct a copy of the subpoena to the witness at their home with a letter explaining the fact that they will be subpoenaed and that you would like to secure their voluntarily cooperation with regard to their appearance. The subpoena should indicate that they are to contact the attorney or their paralegal upon the receipt of the subpoena so that time schedules can be worked out. It is without question that the helpfulness of one or more independent witnesses in a disputed liability situation is a very strong factor in moving a matter towards settlement if it can be clearly established that the individual will be present to testify at trial. All of the other considerations with regards to appearance and presentation also apply to factual witnesses.

3. Evaluation of Expert Witnesses (Liability Issues).

In many automobile accident cases involving disputed liability, lawyers have continued more and more to utilize the services of accident reconstruction experts. Personally, I believe that juries are somewhat swayed by these expert witnesses, but are probably equally swayed by good independent factual witnesses. Obviously, there are situations where no independent factual witnesses exist and, thus, many lawyers feel the need to obtain an expert witness. Discovery depositions should always be taken of these individuals well in advance of a pre-trial, if possible, and certainly, in advance of trial. Many of these witnesses have testified numerous times at deposition or trial on both sides. Get every transcript of testimony you can find and be prepared. With these types of witnesses as well with all other witnesses, personal appearance and presentation is very important for the purpose of evaluating the matter.

4. Evaluation of Other Potential Liability Factors.

Under this general subheading, we can discuss the other factors involved in making an evaluation of a case with regard to liability issues. One of the more important factors is the involvement of alcohol or drugs. With the advent of stricter controls on alcohol consumption and the operation of automobiles, it is important to take any alcohol consumption into consideration when making a liability evaluation. Even if there is not evidence of legal intoxication, I still believe that juries do look askance to even the smallest amount of alcohol consumption and its involvement with a motor vehicle accident. This also applies to drugs; through very few individuals admit to the consumption of any illegal narcotics and the subsequent operation of an automobile. The abolition of tort reform obviously alters the playing field on this issue.

In addition, it is not a bad idea in making your liability evaluation to actually go to the scene of the accident. This should be done at or near the time that the accident actually occurred and, if at all possible, in the same general season that the accident actually occurred in order to evaluate the lighting conditions, traffic, etc. This will help you make a determination as to which version of an accident is more probable.

Another consideration is whether or not a full and complete police investigation was undertaken and whether or not that investigation included witness statements, measurements and photographs taken at the scene. I believe that many juries place quite a bit of credibility on the testimony of the investigating police officer with regard to his observations at the scene.

Another factor to consider of a general nature is the identity of the defendant. Is it a large multinational corporation being pursued by an individual of little financial means for a serious and debilitating injury or is it a one-on-one situation of two individuals who appear to be of fairly equal stations in life with no particular bias, sympathy or prejudice being able to be placed against either one.

B. How Serious are the Injuries?

1. Is the Injury of Such a Serious Nature as to Invoke Sympathy Regardless of the Liability Factors?

It can be strongly argued that regardless of how strong your defendants position might be with regard to liability, certain injuries will invoke a great deal of sympathy which may or may not tend to obscure the liability issues. Chief among these types of injuries are head injuries involving loss of bodily functions and/or loss of memory, learning or cognitive abilities. I believe juries have a difficult time when an individual is a completely different person than he or she was prior to the accident in question. This also applies to any physical deformity and would include scarring, especially of the facial area. A middle-aged man or woman in the prime of their life with a permanent brain injury, which is obvious to the layman, is an important factor to take into consideration in evaluating a case. This would also apply in the situation of an athletic-looking young man who has sustained a debilitating injury to one of his limbs which would prevent his participation in any sports or other recreational activities or the situation of an attractive young man or woman who has sustained some serious facial scarring. These types of permanent and/or debilitating injuries with no indication of a return to any type of pre-accident functioning or appearance merit special consideration in evaluating a case.

2. How Common was the Injury and/or Injuries Sustained in the Accident?

On the opposite side of the spectrum, the defense lawyer must take into consideration whether or not the injuries are the common injuries of a soft tissue nature (whiplash). Most jurors can relate to an occasional strain or sprain and the need for additional follow-up treatment immediately thereafter. However, most juries do not look favorably upon soft tissue injuries that continue to be treated by a chiropractor, physical therapist or otherwise for extended periods of time, especially without any treatment rendered by any type of medical specialist, i.e. orthopedist, neurologist, neurosurgeon, etc. This is especially true in the low impact/minimal damage type cases.

3. What is the Nature and Extent of the Treatment Rendered?

It is also important to evaluate the case taking into consideration the nature and extent of the treatment rendered to date. Has all the treatment been by a family physician or well known auto accident practitioner with a referral to one of the mills for physical therapy or chiropractic treatment? Has there been any referral to any type of specialist in the medical field, be it orthopedic surgeon, neurologist or other specialist? Has all of the diagnostic work performed been noninvasive?

One of my own personal barometers with regard to the nature and severity of an injury and continuing complaints is whether or not an individual has undergone any type of diagnostic work up which would involve some type of injection or other actual invasion of the body, be it by way of a myelogram or a CT scan with contrast, etc. It is not uncommon for extensive x-rays to be taken or, of course, the MRI scan that can run to $1,000 with no type of invasive procedure being undertaken.

Another obvious factor would be whether or not the individual involved has undergone any type of in-patient hospitalization for treatment and/or surgery. In-patient hospitalization is not always a good barometer in light of the fact that many individuals are placed in a hospital for in-patient physical therapy and traction. This does not equate with an in-patient hospitalization for a surgical procedure. Surgery is a drastic step which is a good indication that an individual is suffering from a rather serious condition causing problems to such a degree that surgery is required. Very few people will undergo surgery in order to enhance their claim.

4. Loss of Wages?

Another good indication of whether or not an injury is as serious and debilitating as claimed is whether or not one has missed any extensive time from their place of employment. If one is out of work for an extended period of time without any indication of any available compensation for that time, it is a sign of the seriousness of the injury. On the other hand, if the employer offers generous vacation and sick leave time, such an extensive period may or may not be a good benchmark.

The nature and type of work performed by the individual comes into play in making such an evaluation. If someone complains of low back trouble but continues to sit at a typewriter or machine for eight hours a day, forty hours a week with overtime there is some issue as to whether or not such an injury is as serious as perceived. Employment involving physical activity to a great degree, i.e. construction work, speaks for itself with regard to the nature and extent of any injury.

C. How Much Will the Case Cost to Try?

1. What are the Expenses to be Incurred in Preparing the Matter to Proceed to Trial?

The issue of expenses, depending upon the real party in interest, may or may not come into play. Most defense counsel represent several clients with differing philosophies concerning the issue of expenses. Thus, this consideration has to be undertaken on a case-by-case or client-by-client basis. Many clients have the attitude of millions for defense and not one cent for tribute. With this type of client expenses do not come into play. However, there are clients who wish to minimize expenses and to attempt to have the matter resolved by way of settlement or ADR in order to keep expenses down. This is especially true in smaller cases with exposures of less than Twenty Thousand Dollars ($20,000). These are some of the toughest cases to settle. With regard to expenses, one has to take into consideration, initially, the securing of all applicable deposition transcripts for all witnesses who will testify at trial. There is also the cost involved in securing expert witnesses to testify at trial, be they medical experts or factual experts. Whether or not any travel expenses will be involved in securing depositions is to be taken into consideration. In addition, videotape expenses are a concern, especially in light of the fact that rarely does an expert witness appear to testify live at trial. Minor expenses would also include costs involved in reimbursing witnesses for their travel expenses and/or parking fees. There would also have to be the consideration of expenses involved in producing demonstrative evidence for use at the time of trial, be it by way of diagrams or photographic enlargements.

D. Intangible Considerations

Chief among the intangible consideration to be considered in evaluating a matter is, principally, your opponent. There are many, many lawyers who hold themselves out as trial attorneys who have never seen the inside of a courtroom in their lives or are living on past reputation. Everyone knows who they are and, though they may not admit who they are, any defense attorney worth his salt who has tried a large number of cases has a list of those lawyers in the back of his mind. There are many lawyers who will do a very credible job in preparing a case for trial through the discovery process and even through the process of deposing expert witnesses on direct examination for use at the time of trial. Many lawyers will handle a case through arbitration and do a nice job at the arbitration, but when it comes time to step into the courtroom do their utmost to convince their client that the settlement offer is a reasonable one based upon all the facts and circumstances. This is the ultimate advantage for a defense attorney, for no matter how your case should appear on its face, if your opponent will not try the case; you always know that you have the upper hand.

II. PREPARING FOR TRIAL

A. Checklist

1. Interrogatories.

If there is sufficient time between the final pre-trial and trial, or even prior to the final pre-trial, it is a good idea to submit trial interrogatories requesting specific information concerning the identity of expert witnesses and the substance of their testimony. These trial interrogatories can be utilized in those situations where other interrogatories have not been previously submitted but only depositions have been taken.

It is also important to review all of the defendant's answers to the interrogatories so that any additional supplementation can be made. Very often, interrogatories are submitted early in the litigation or even at the time that the complaint is filed and many of the answers provided indicate that the answers will be supplemented with additional information prior to the time of trial. If one overlooks this supplementation, the defense lawyer might run into a problem with introducing evidence by way of testimony and/or exhibits which were not previously identified to counsel for the plaintiff by way of supplementation of the interrogatories. At the moment that you are about to introduce this evidence is not the time to find out that you forgot to supplement your interrogatories.

2. Deposition Transcripts

It is important once a case has been set for trial, or even prior thereto, to order all applicable deposition transcripts and to have filed those deposition transcripts which may become necessary for use as direct evidence at the time of trial. Technically, all deposition transcripts, I believe, should be filed in order to utilize them even for the purpose of cross-examination, but you can always obtain a waiver of that requirement at the conclusion of the deposition.

            It is important to review thoroughly all deposition transcripts and to summarize the deposition testimony in order to highlight points for cross-examination and impeachment. One way to summarize a deposition transcript is to note on a separate piece of paper, either handwritten or typewritten, the page where the important testimony appears, be it paraphrased or a direct quote and place that information immediately to the right of the page number. One can even be more elaborate by indicating the line, but usually the page number is sufficient. The original summary should be kept in the transcript itself for easy reference during the course of cross-examination at trial.

3.    Demonstrative Evidence

            Well in advance of trial, all demonstrative evidence should have been obtained and prepared for use at the time of trial. This would include all diagrams and any photographic enlargements or videotapes. The companies, which produce this type of demonstrative evidence, charge a premium for a rush job, which can run as much as twice the original cost. Thus, if one has a good indication that the matter will go to trial, you should be prepared with this material at least thirty days prior to trial in order to make sure everything is in proper order. This will also give you ample opportunity to provide your opponent with the chance to examine any of this material to be utilized at trial.

4.    Jury Instructions and Interrogatories to the Jury.

            Many lawyers believe that you cannot submit jury instructions until shortly prior to the end of the case because one never knows exactly what evidence will be adduced at the time of trial. However, if one is well prepared, you have a pretty good idea, if not an exact idea, as to what evidence will be produced. There really should be no surprises once the trial begins if discovery has been completed in a competent matter.

Accordingly, one should have at the commencement of trial time-stamped copies of proposed jury instructions available. This, I believe, impresses the judge and shows that one is well prepared. There are, obviously, boiler plate instructions, which are applicable no matter what the facts. Additional instructions can then be tailored to the specific case. It is a good idea to at least have this out of the way so one is not scrambling like mad throughout the course of the trial looking for jury instructions.

In the same vein, interrogatories to the jury should always be submitted at the beginning of the trial on blank legal paper. Quite often, these are not the actual interrogatories, which are utilized, but they give a judge assistance in preparing them and you usually have the interrogatories submitted in the order, which you have requested. Again, these can be supplemented as the trial proceeds, but it is a good idea to get some boiler plate interrogatories, particularly in a disputed liability situation, to the judge early. This is especially true if you want the first interrogatory to read. If you should find the defendant not negligent then you can cease your deliberations and need not go any further.

            As noted previously, all of proposed jury instructions and interrogatories should be filed with the court with time-stamped copies given to the judge. You want to make absolutely certain that the interrogatories and proposed jury instructions on behalf of your client have been filed and docketed. The fact that you give the judge time-stamped copies as opposed to the originals is no big deal. The originals will make their way to the court file by the item any appeal would be appropriate.

5.    Trial Brief

            Not every case merits a trial brief. In the case of admitted negligence, there is really no need for a Trial Brief as the only issues are ones of proximate cause and damages.

However, in other situations, i.e., intersection collisions, left turn situations, lane change collisions, and assured clear distance ahead situations, especially one at night, it is important to have a Trial Brief prepared citing all recent case law especially those decisions from the same appellate jurisdiction. A time-stamped copy of a Trial Brief should also be submitted at the same time with the Jury Instructions and Interrogatories to the Jury.

6.    Trial Notes

            Trial work is essentially extensive, meticulous and methodical preparation. Generally, a law professor is not necessarily going to be a good trial lawyer, especially with regard to trying automobile accident cases.

It is important to plan out the trial in skeletal form. Include important points which have to be covered during the trial along with proposed voir dire questions, a proposed opening statement, cross-examination and direct examination of all witnesses and a rough sketch of a final argument. This would be based upon what you believe will be adduced at the time of trial. For many individuals this might be a long and tedious process for which they do not have the time, be it by reason of family, work load, etc., but it is extremely important to take the time to make sure that the presentation will flow smoothly. Nothing bothers a jury more than a lawyer that looks as though he cannot find his way through his own file.

B. Experts

As we are all aware, the securing of expert witness testimony can be a rather frustrating and annoying task.

As previously noted, in this day and age it is rare, if ever, that an expert appears to testify live at trial. Thus, the videotaped deposition has become a fact of life in trial preparation.

May lawyers procrastinate, sometimes until even after the pre-trial date, to schedule the expert's deposition? It is not a bad idea if you have an expert retained, either to review medical records or to perform an independent medical examination, that you schedule his/her videotape deposition at the same time you retain their services for either the records review or the examination.

If the case has not yet been set for trial and you are unaware as to what time parameters you are working under, it may be a good idea to schedule the deposition maybe eight to ten weeks following the examination or the review of the records. This will permit ample opportunity for you to obtain the report and provide it to your opponent so there is no objection about the deposition. In light of the fact that very often the expenses involved are not an issue with your client, it is better to have the videotaped deposition in the can and available for trial well in advance rather than to seek a continuance from a judge because of the fact that you cannot get your expert in on time.

In addition, there is absolutely no rule anywhere that says because you take a videotaped deposition that you have to use it. You can get the necessary waiver of the filing requirements from your opponent, but even that does not mean that you have to use it. Let the case develop on the plaintiffs behalf and then make your decision.

            With regard to the pros and cons of having someone appear live at trial, always remember that it is much better to have somebody destroyed on a videotape, which, if necessary, will not have to be shown, versus having them destroyed live in front of a jury.

III. TRIAL

A.   Voir Dire

            The literature throughout the years has been extensive on voir dire and its psychology. However, in the simple automobile accident case, it does not take a genius to conduct a proper and complete voir dire without boring a jury to death.

The thrust of the voir dire to a large extent would be controlled by the parameters set down by the presiding trial judge. Many trial judges do not permit the indoctrination of a jury by the use of the legendary rhetorical questions concerning how much money one potentially would give or paraphrased statements of the law. Many judges currently limit voir dire to actual questions concerning the facts to be presented at the time of trial and some questions, which go slightly beyond those facts.

B. Opening Statement

Many people are of the mind that the case is won or lost in the opening statement. This may or may not be the case, but it does not hurt to make an opening statement almost as argumentative as your closing argument depending upon the experience of your opponent.

It is important to stress that although the opening statement should be short it should also attempt to preview the testimony in its entirety, highlighting the strong points for the defendant. Remind the jury that it is the first complete presentation of all of the evidence and also that it is your client's only day in court as much as it is for the plaintiff.

It is also important to stress to the jury that they utilize their own common sense in evaluating all of the testimony. You should stress that the jury is to use its own tests of credibility, believability and probability that they use in their own normal daily lives.

In additions, remember that an opening statement can come back to haunt you at the conclusion of the trial. Many lawyers, but primarily plaintiffs lawyers, make the representation that the opening statement is like a preview in a movie or the jacket on a book. These are nice analogies, but juries are not idiots. You can make all the promises in the world just as many politicians do, but if you do not deliver, people remember that. Thus, it is important not to promise, pie in the sky, especially when one cannot always anticipate what the evidentiary rulings are going to be during the course of trial. More often than not a plaintiff's lawyer makes rather grandiose promises in his opening statement and when he gets down to his closing argument has left with a hollow shell. Thus, keep it short and to the point and within the points that you really believe that you are going to be able to establish.

C. Direct and Cross-Examination of Witnesses

This particular aspect of the trial is where preparation really comes into play. One should never have to rely solely upon the direct examination of a witness in order to prepare their cross-examination. Have all exhibits prepared that you want to use to cross-examine the witness along with whatever deposition summaries you need. Do not be afraid to ask a witness to step down from the witness stand to demonstrate important facts which took place during the course of the accident, including, their movement in a vehicle, etc. In addition, do not forget to make use of the witnesses' perspective in the courtroom, in reference to other fixed objects, for the purposes of gauging distances, etc.

D. Motion for Judgment / Directed Verdict

Always remember that no matter how much of a question you may believe there exits for a jury that as a defendant you should always make a motion for a directed verdict at the close of the plaintiff's case in chief in a disputed liability situation.

You may, under the rules, make a motion for a directed verdict at the close of the plaintiffs opening statement, but unless your opponent is a complete idiot, he or she will always get past the motion, and you will probably aggravate the judge to no end by making it at that point unless it is clearly warranted.

            You will have some idea going into the trial whether or not a meritorious Motion for a Directed Verdict will lie and you can prepare accordingly during your trial preparation by securing the applicable law on the points in question and tying that in with the testimony adduced at trial. This is where a carefully prepared Trial Brief will come in handy to press forward your points.

E.    Is It Necessary to Produce Any Evidence for the Defense of this Particular Matter?

            As previously noted, quite often defense attorneys feel some overwhelming desire to place upon the stand witnesses whose contributions by direct testimony will be far outweighed by their destruction upon cross-examination. It is always important to weigh the pros and cons in that context. One must always ask what has the plaintiff established and proven by a preponderance of the evidence as this is going to be the thrust of your closing argument. Many times a lawyer will be winning a case and then lost it by putting on his defense. Always remember that no matter who your opponent is, all it takes is one lucky question to destroy your case. Always remember that. However, if your client or your witnesses can withstand the scrutiny of cross-examination and you believe that the facts as presented will be un-refuted by way of rebuttal testimony or otherwise, then by all means proceed.

F. Renew Motion for Judgment / Directed Verdict at Close of all the Evidence

Even if you don't believe that you have any greater opportunity then you did at the close of the plaintiff's case to prevail on a Motion for a Directed Verdict, it is important to renew that motion at the close of all of the evidence. One never knows exactly the thought process of the presiding trial judge. Thus, it is important to renew that motion on the off chance that the judge has only been waiting for a complete presentation of the evidence to permit counsel for the plaintiff every opportunity to present a prima facie case to get to a jury before entertaining the motion again. Obviously, it also must be renewed to preserve the record for any potential appeal.

G. Final Argument

The "Closing" can be the most important aspect of the case. Oft times, juries may have actually taken you seriously when you asked them during your opening to "keep an open mind until the close of all the evidence." They may be waiting to have the entire case pulled together in the final argument. A well-prepared, concise but passionate final argument, within reason, can make all the difference.

In the final argument, it is important to stay away from all of the standard, hackneyed analogies and the references to the Unites States Constitution, jury service, etc. Many lawyers go into a little mini-American history diatribe. Chances are neither the Declaration of Independence nor the United Nations Declaration of Human Rights is going to have any baring on who ran the red light or failed to yield the right of way. More likely, the jury is going to want to hear about what happened and who did what, where, when, why and how in the incident that brings everyone to court. Some lawyers also like to pull out quotations from famous books or speakers. That is the stuff of T.V. and movies. Trials are about finding the legal, logical, factual and emotional center of the case. That is what juries decide case on. However, nothing is wrong with thank the jury and the judge for their attention and service. I've also heard too many stories of juries liking a lawyer and relating to her because of simple manners, politeness and things like offering water to witnesses.

You should tell the jury that, because you are the defendant, you will not have the opportunity to speak again. You may also want to note in your final argument that the plaintiff had the opportunity to present rebuttal testimony at the close of the defendant's case, but, if applicable, chose not to do so.

You then review the testimony of each witness in detail and not in generalities. Highlight the contradictions. Show where it is inconceivable that events occurred as the plaintiff portrayed them. Highlight the aspects of the medical testimony, which are contradicted.

Avoid making personal attacks upon your opponent. Too often, closing arguments become arguments between the lawyers and not about the facts. Stick to the case and the facts as presented.

Remind the jury that the case is about the evidence and that the evidence is not the statement of the lawyers, but as instructed by the court, the testimony of the witnesses and the exhibits that will go to the jury.

Utilize, if at all possible, those exhibits, which highlight your strong points. Pick them up, identify them and show them to the jury.

As much as permitted by the trial judge, interweave the jury instructions, especially the boiler plate instructions into your closing argument, i.e. Burden of proof, preponderance of the evidence. The jury will hear those phrases and words, which you have used, and they gave credibility and strength to your closing argument.

Speak with the truth of your convictions and get that point across to the jury. If all has gone according to plan, the closing argument should be the conclusion of an overall successful presentation, leading to a defense verdict or an award less than your final offer.