IF I KNEW THEN WHAT I KNOW NOW

QUENTIN BROGDON

Crain Lewis Brogdon, LLP Dallas, Texas

214-598-1009 cell

qbrogdon@crainlewis.com

If I Know Then What I Know Now

Knowing Yourself

Knowing Your Client

Knowing How and Why Jurors Assign Blame

“The Wrong Stuff”

“The Wrong Stuff” • “[H]e crashed and was burned

beyond recognition, but he should have known better than to wait so long before lowering the flaps. He nosed over and dove straight into Chesapeake Bay. [H]ow could anybody be in such poor condition as to pass out that quickly from hypoxia? There are no accidents and no fatal flaws in the machines: there are only pilots with the wrong stuff.”

In a Just World, Bad Things Do Not Happen to Good People

Defensive Attribution

• Defensive attribution - attributing blame to victim to create psychological distance between victim and chances of similar fate.

Rational Fears?

Rational Fears? • 74% Think crime way up vs • Reality Murder down 10% etc. • 0.05 Deaths/ billion km–air vs • 3.1 Deaths/ billion km-car. • 28 Shark attacks vs • 4.5 mi Dog bites.

Knowing How to Deal With Bad Facts

The Case’s Achilles’ Heel: Bad Facts

• Damaging admissions • Inconsistent statements • Violations of policies & procedures • Contributory negligence • Prior injuries • Delays in treatment • Criminal records

Inoculation Theory or Sponsorship Theory?

• First line of defense: limine. • Assuming that fails…..? • 1. Inoculation theory, or … • 2. Sponsorship theory

The Manchurian Candidate

Proponents:

• 1. Timing and manner of offer can minimize.

• 2. Apparent willingness to produce all facts.

• 3. Can offer immediate mitigating explanation.

One Client’s Reaction

Sponsorship Theory

• Sponsoring evidence: 1) concedes materiality 2)

magnifies harm. • Jurors know concession is

insincere. • Jurors: lawyers are hired guns

and intro of bad evidence is concession of no better evidence.

Knowing How to Take and Use Depositions

Strategy and Goals • “Discovery depo” or “trial depo”? • Gist of test: only chance to cross? • One clue: opponent does direct

exam. • Show all cards only if: 1) case is

never going to get in front of jury, or 2) may be only shot at the witness.

Hybrid Depo?

• Accomplish goals of discovery depo, but add trial depo questions.

• Later edit out discovery questions from video, and retain trial questions.

• Always prepare trial depo questions.

Myths of Cross

Myths of Cross-Exam

• 1. Only experienced lawyers can be effective.

• 2. Effective cross-examiners need not be caring or sensitive.

• 3. Must be conducted in a very aggressive manner.

• 4. Witness must be destroyed.

Myths of Cross-Exam

• 5. Should always yield dramatic results.

• 6. Cross-exams are an opportunity to debate with the witness.

• 7. Cross-exams on TV and in movies are appropriate models.

To Cross or Not to Cross?

No Cross or Limited Cross

• 1. Witness has not hurt case. • 2. Witness is not important. • 3. Witness was not credible. • 4. Witness is unimpeachable. • 5. Opposing counsel laid trap • 6. Cross will involve reiteration of

harmful testimony …

No Cross or Limited Cross

• 7. Cross is only for improper motive, such as maintaining aggressive position in front of jury.

• 8. Limited ability to achieve worthwhile objectives, or

• 9. Risks outweigh benefits.

Irving Younger’s “Ten Commandments”

Younger’s Commandments

• 1. Be brief. • 2. Use short questions with

plain words. • 3. Ask only leading questions. • 4. Never ask question to which

you don’t know answer.

Younger’s Commandments

• 5. Listen to answer. • 6. Do not quarrel with witness. • 7. Do not permit witness to

explain.

Younger’s Commandments

• 8. Do not ask witness to repeat testimony given on direct.

• 9. Avoid one question too many.

• 10. Save explanation for summation.

Your Cross-Exam Persona

Your Cross-Exam Persona • Wellman – “The sympathies of

the jury are invariably on the side of the witness, and they are quick to resent any discourtesy toward him. They are willing to admit his mistakes, if you can make them apparent, but are slow to believe him guilty of perjury.”

Lead Adverse Witnesses

Non-Traditional Sources

• CIA “KUBARK” Manual • U.S. Army Intelligence manual • Police: ‘The Reid Technique”

Police: “The Reid Technique” • Use projective questions. • “Who do you suspect of doing it?” • “Who do you think would have had

the best opportunity to have done this if he wanted to?”

• Civil: “Who do you think had the best opportunity to ensure that the premises were maintained safely?”

Police: “The Reid Technique”

• Give suspects face-saving reason to tell truth.

• “Do you believe that your employer gave you the necessary resources to carry out your responsibilities for safety effectively?”.

Police: “The Reid Technique” • Answers of deceptive subjects: • 1. Varying levels of detail. • 2. Information strictly in sequence. • 3. Absence of thoughts and

emotions. • 4. Qualifiers: “as a rule,” “the policy

states” or “to the best of my knowledge.”

Police: “The Reid Technique” • 5. Bolsterers: “I swear,” “honestly.” • 6. No contractions: “I did not do it.” • 7. Rehearsed listing responses:

“That’s not true because 1, 2, 3.” • 8. Long “response latency” (often

repeat question back). • 9. “Stop and start behavior” and

“erasure behavior.”

Knowing How to Deal With Experts

Do You Really Need an Expert?

Experts Inappropriate For: • 1. Pure questions of law.

• 2. Mixed questions of fact and law, unless…

• 3. Subjects within jurors’ common knowledge.

• 4. Truthfulness of witness. • 5. Whether conduct is outrageous. • 6. Dollar value of love & affection.

Experts To Avoid

Experts To Avoid

• 1. “Just tell me what I need to say.” • 2. Problems communicating. • 3. Struck by other courts. • 4. No response to communications • 5. Offended by “due diligence.”

Experts To Avoid

• 6. Brag about verdicts. • 7. Conspicuously drop names. • 8. Only expressed opinions in

litigation. • 9. Send ill-advised emails. • 10. Have inappropriate internet

postings.

Experts To Avoid

• 11. Promise unrealistic expertise. • 12. Tell you how lucky you are. • 13. Demand motion to modify

scheduling order. • 14. Promise the moon. • 15. Play lawyer.

Experts To Avoid

• 16. Evasive about budgets or tasks.

• 17. Unwilling or unable to comply with guidance re: their role in the case.

Before You Interview The Expert

Preparation

• 1. CV. • 2. Everything expert has

published. • 3. All prior testimony. • 4. Other attorneys who have hired

expert and/or faced expert. • 5. Relevant authoritative texts and

articles.

Preparation

• 6. Internet: websites, speaking engagements, media quotes, advertisements, chatroom comments.

• 7. Membership in organizations. • 8. Criminal record and disciplinary

history. • 9. Representations re: expertise. • 10. Know your case.

The Interview of The Expert

Interview of Expert

• 1. “Are you the best expert?” • 2. “What makes you qualified?” • 3. “Ever been prevented from

testifying?” • 4. “Anticipate expert deadline

causing any problem?” • 5. “What do you need?”

Interview of Expert

• 6. “Ever testified for or against opposing party?”

• 7. Ask about publications, testimony, Internet, speaking, memberships, criminal record, disciplinary history, and representations about expertise.

Interview of Expert

• 8. “Typically work with other experts?”

• 9. Daubert questions. • 10. Ratio of litigation work. • 11. Explain need to

communicate misgivings.

Interview of Expert

• 12. Ask about opposing experts.

• 13. “How do you prefer to communicate?”

Conclusion

• If I knew then what I know now.