Jay Milano Attorney and Counselor at Law

Monthly Archives: September 2010

How to Win Cases – Part I

[teaser]Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.[/teaser]

Unless there is a vigorous objection, this is the first of a series of columns on trial practice. They will all be by me. In fact, we are already looking for authors qualified on the topic (read, willing to write).

Jimmy Buffet introduces one of his songs as a “love song from a different point of view.” This will be trial tactics from a different point of view, an attempt to cover ground not well trod. (The fact that the song is entitled “Why Don’t We Get Drunk and Screw” should not be held against the County Bar).

Any analysis should start with a baseline. In this case we should look at the core principals of effective trial work. They are, I believe:

  1. Credibility,
  2. Integrity,
  3. Education,
  4. Control,
  5. Creativity, and
  6. Simplicity.

Before you dismiss this assessment as too basic, stop and think of how many lawyers you know who don’t hit 2 of the 5 on a daily basis.

1. Credibility

Each year I have at least one law student tell me that it is okay to assist the client in manufacturing a story that will help them to win. Too often we see practicing lawyers who follow that creed. We live in a country where “plausible deniability” and “spin” are considered art forms. Try to practice that way and you will kill your clients and kill your practice.

There is nothing, nothing, nothing more important to the success of your practice. The Justice Center and the Federal Building are very small towns. You get caught hedging even once and people will know. One way to think of credibility is as your duty to tomorrow’s client.

Credibility is also bound up with the concept of how you present your claims. We have all seen lawyers who make outrageous demands in an effort to bluster their way to victory. It is a very shortsighted strategy. Stake out the furthest reasonable position and hold it.

2. Integrity

Integrity is close in concept to credibility, but the difference is operative. For this purpose, integrity means the willingness to do the work necessary to complete the task. No one is going to do you any favors, certainly not someone in a more powerful position than you. The only way that you will succeed over time is to do the work on each case. That means digging in and reading the statutes and rules before all else. As an aside, if you want to understand a new concept, look at the jury instructions.

3. Education

We must stop considering ourselves as warriors and start to look at ourselves as teachers. It is the job of the trial lawyer to educate: first ourselves, then our clients, then our opponents, then the judge, and finally the jury. Do not expect anyone to understand your case. Take the time to explain. Pretrials are for educating the judge as to your point of view. Settlement conferences are for educating your opponents. Office meetings are for educating your clients. Educating ourselves is a continuous process.

4. Control

Here comes the first internal contradiction. To be a good trial lawyer, you need to be a teacher. Control is about the wars we fight.

You need to control yourself. First, look at the practice as an intellectual exercise. A lawyer cannot afford the luxury of recreational anger. (I did not make that up, but cannot remember the name of the lawyer from whom I heard it many years ago.) If you are dealing with a jerk of an opponent, play above or below him. Do not engage, as you will lose focus.

You need to control the situation. Form the issues in discussions. Be the person in the courtroom to whom the jury looks for the right answer. Be the person to whom the judge looks for guidance. Do that by being prepared for the questions. Read the rules and statutes and the cases. If there is one common complaint among judges, it is unprepared lawyers. Knowledge is control.

5. Creativity

The finest compliment you can hear is: “We have never done it that way, but it sounds fair, let’s do it.”

Do not copy and here is why. You need to understand why you are doing something before you can learn it. Why am I asking this question? Why do these facts fit my case? Why did the court rule the way it did? What is the logic? We spend too much time calling each other to ask for a copy of a complaint or interrogatories or a motion. You do not need to reinvent each time you undertake a task, but you do need to know what you are trying to do before you blindly follow.

6. Simplicity

In many ways this is the most important principal. What if the way to measure intelligence is to determine at how many levels of abstraction a person can think. Chess players think many moves ahead, contemplating all of the possibilities. Most of us cannot think past lunch. Jurors may be smarter than lawyers, but in the context of a trial, will hold to the most basic and easily understood principals. Do not get lost in the upper tiers of argument.

We have set the baseline. Nowhere to go from here, but up. See you in the next issue.

Law and Fact
The Journal of the Cuyahoga County Bar Association
April 2003

How to Win Cases – Part II

[teaser]Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.[/teaser]

What makes trial exciting is the heat. Cross-examination is the crucible which, when used correctly, will burn away the mistakes and the shadings and the lies, and leave the truth.

David Pomerantz, in the article preceding, treats the subject of expert cross-examination with depth and precision. As is the nature of this series, let’s divide out a single point. In this piece we will look at how to cross-examine a “target witness” (usually an expert) through an “innocent” witness.

Of the five constructs on which this series is premised (Credibility, Integrity,  Education, Control, and Creativity) control applies most directly to cross-examination. We have all heard, and believe to our bones, that control in cross is manifested by the closed-end question. That is absolutely true. (Of course there are times when you have been so effective that you invite an expansive response, either because you know the answer helps rather than hurts, or because you have progressed to a point where the answer makes no difference.)

That concept of control applies, as do almost all strategies of cross-examination, when directly confronting a witness. Isn’t it true doctor…? Isn’t it true officer…? Isn’t it true sir…? This is the form that we have all used.

We want to look at control from a different…and maybe more creative…point of view. Think now about the idea of using one witness to cross-examine another. What if you could control your “target” witness through the testimony of an “innocent”? Here is how you would do it.

Begin with the premise that one method of effective cross is to move from the general to the specific. Again, we are working with an expert or professional witness. Your strategy is to have them agree to general relevant principles first and then move to the specifics of your case. You apply the general constructs to what happened or what they did. Think in terms of the way a shark hunts, circling its prey more closely with each pass, bumping occasionally to check for reaction. You are circling by means of generally accepted ideas. Your bump as cross-examiner is the mildly pointed questions early on to gauge the reaction of the witness to confrontation. The kill occurs if you can show the disparity between the general principles and the specifics of the witness’s testimony.

I will use a criminal case as an example. Generally there will be a detective sitting at the trial table for the entire proceeding. It is his case and he is very experienced. It is unlikely that you will be able to “break” him. It is far more likely that he will break you. He generally testifies last to clean up.

But what if your general questions are asked of a preliminary “innocent” witness? A uniformed policeman is a good example. Early in the case, a uniformed officer will testify. Usually the first on any scene, she provides background information and any evidence which she might have gathered. Under the standard model there will be few if any questions.

However, under this model you want to use the “innocent” to lay the foundation of general principles that will underlie your point. Let’s assume you have a case where no fingerprints were taken. The “innocent” will gladly tell you about how easily prints are taken and how infallible they are and how they solve cases. The target then sits and squirms knowing that eventually he will have to answer for why he did not do what that nice young woman in uniform told the jury was appropriate.

You have laid the foundation of general principles upon which you will cross-examine the target without yet having asked him a question. He has had no ability to see you coming and to shade his response.

Please don’t limit this technique to criminal cases. Physicians will opine on general principles as well. Use your opponent’s expert to acknowledge literature upon which your expert relies. Emergency room doctors make excellent “innocents.”

The point of this piece: 1) determine first what your issues are, and then 2) look to who might give you the evidence to support your position. Look outside the obvious. Be creative while strengthening the ability to maintain control.

Law and Fact
The Journal of the Cuyahoga County Bar Association
July 2003

How to Win Cases – Part III

[teaser]Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.[/teaser]

“There are no rules in a knife fight.” — Butch Cassidy

Many lawyers, good ones, view dealing with the media as a knife fight. They don’t trust reporters or their editors and feel that even if they win, they will come out bloody. As a result, they take the gentlemanly way out and utter “no comment” at every opportunity. They may be right.

But then again, a competent lawyer should at least think through the options before deciding on a course of action. In fact, there are some rules in the “battle” between lawyers and reporters:

Rule 1: As in all situations, your ethical duty comes first.

Read the disciplinary rules (DR7-107). Given the amount of pretrial comment that goes on, and assuming that you are on solid ground with your statements, you should be able to comply quite easily. Remember, however, that the world tends to dump on the less powerful.

Rule 2: Determine what you want to say before you get near the interview.

The camera (even a reporter’s notebook) acts as an aphrodisiac. Once you get a whiff, you might not be able to stop. You will end up talking until drool runs down the corner of your mouth. Nothing you cared about will get in the story. As a result, it is imperative that you plan in advance exactly what points you want to make. First decide if there are any broad issues of interest to the public, outside of, but related to, your case. There may be a pattern of abuse or a law that needs to be changed. Next, determine the single case-related fact most important to your reason for giving the interview. Move down through your points in descending order of importance. The longer the interview, the more points you can make. If you are trying to get a message out over time, repeat it word for word each chance you get. It will take time to register with the public, but it will.

Rule 3: Consider your media and then fashion your quotes to fit.

For TV you get 10 seconds, maybe 20, to get your point across. In print count on 2 sentences. Before the interview think of how you can fit your thoughts into that framework. Speak English. Sound intelligent. Sound profound. Sound uplifting. Sound plain-spoken. Just don’t sound like a lawyer.

Rule 4: No matter what they ask – follow Rules 2 and 3.

TV has to fill the box everyday. They need words and pictures. A newspaper story needs words. If they are there talking to you, they want you. Say what you need to say, regardless of the questions that are asked. The reporter will then fashion their story around you. You can control what is printed or televised by what you are willing to say. You can devise and string quotes to write their whole story. If you are doing a print press release, consider including only the quotes that you want printed.

Rule 5: Everything is on the record.

You cannot take anything back. Set the ground rules first. Here is a loose interpretation of reporters’ rules:

On the Record: Everything you say is fair game until you say otherwise.

Off the Record: You will not be quoted by name, but you may be quoted in such a way that you should not be able to be identified.

Background: The item cannot be used without separate confirmation. You will not be quoted.

Rule 6: Establish a relationship with the reporter based on credibility and trust.

This is not about reporters using you or you using them. Your ability to function effectively in this arena will come only by being credible over time.

Rule 7: Think simply. Speak plainly. Act decisively.

Law and Fact
The Journal of the Cuyahoga County Bar Association
October 2003

How to Win Cases – Part IV

[teaser]Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.[/teaser]

Fifteen years ago Milliard Farmer, a legendary death penalty lawyer, came to Ohio and spoke. He decried the loss of civil confrontation within the courts. He told us that lawyers were becoming afraid to speak their minds, and that justice would pay a price. We were too worried, he said, about our practices to let the bench know when we thought they were wrong. He talked about a spiral where lawyers became more timid and judges less accustomed to open discourse. I don’t know if he was right, but:

I am afraid to write this column.
I am afraid to say that I am afraid to write this column.
Lean over close so I can whisper to you.

Nothing, absolutely nothing, more surely injects fear into the heart of a solo or small firm lawyer than the thought of the suspension of his license.

Even a six-month suspension kills a practice. You must cease work on all cases, notify your clients, and close your office. No income, no realistic ability to find other meaningful employment: you will have to start over. You are publicly and privately disgraced. Your family knows, your kids know, your friends know, their friends know. You dread the most cordial “How are you?” You are unable to pay your employees. They are out of work.

Mark Gardner was suspended for six months for saying bad things about a Court of Appeals. He said them in a brief to that Court. Among other things he stated the the court had a “prosecutorial bent.” The Supreme Court considered it “an unfounded attack against the integrity of the judiciary.” By all accounts Mr. Gardner acted out of character.

It is not that Mr. Gardner was sanctioned. It is the severity of the sanction. He could have been found in contempt with a finite sanction such as a fine or even cooling his heels in jail to consider his intemperance. He could have been reprimanded, as the hearing panel suggested. He could have been suspended with the suspension stayed, as the board of commissioners recommended. Instead, he was suspended from the practice of law. That is a life-changing punishment.

Now, how many of you lawyers will ever say anything critical, even remotely critical, of a judge or tribunal? Who will split the hairs of what is or is not appropriate if the consequence for the first offense is so grave.

I believe that the majority of lawyers will remain silent. I also believe that if that happens, the integrity of justice will be compromised. Lawyers need the ability to speak their mind. Again, it is not total freedom to deride the judiciary with impunity that is important. It is that the punishment fit the crime.

By the way, after you have read Gardner, read Office of the Disciplinary Counsel v. Wrenn, (2003) 99 Ohio State 3d 222. It was decided one month before Mr. Gardner’s case. In that case, Mr. Wrenn, a prosecutor, withheld exculpatory evidence, including DNA testing, from both the opposing attorney and the court. The Court stated at 225:

Respondent breached his duties as an officer of the court and his public responsibility as an assistant prosecutor. He had ethical and legal obligations to disclose discoverable information that was relevant, exculpatory, and not privileged and he failed to do so on more than one occasion. We do not accept respondent’s assertion that it was an innocent misrepresentation. When the court inquired about the DNA test results at the pretrial, respondent failed to disclose that he had knowledge that testing was complete and the results were favorable to Derr [the Defendant].

Respondent’s failure to disclose the information before the first plea was inexcusable and undermined the integrity of the criminal justice system.

Mr. Wren received a 6 month suspension, stayed.

Read both cases. Make an independent decision as to whether they are different enough to warrant so great a disparity in punishment.

Call me. We will talk about it – in private.

Law and Fact
The Journal of the Cuyahoga County Bar Association
January 2004

How to Win Cases – Part V

[teaser]Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.[/teaser]

All lawyers, and most other Americans, know about Gerry Spence. He is the long-haired, fringed suede, book writing, TV commentating, trial lawyer. Some, myself included, believe him to be the best of us at understanding and then teaching juries. On the other hand some, myself included, fear he has passed over into the stage of his career that Dick Feagler once described as, “Old lawyers do not retire, they turn into caricatures of themselves.”

So what?

Gerry Spence once defended a young man named Escabel, charged with murder. The defense was insanity, except Spence had no psychiatrist willing to opine that Mr. Escabel was insane. He did, however, prove insanity and win an acquittal using the cross examination of the State’s psychiatrist.

Like I said, you’re not Gerry Spence, so go hire yourself an expert.

The following rules apply to both criminal and civil cases, admittedly in differing degrees:

1. Always have an expert in science or other appropriate cases, either to prove your case or to act as a counter-weight.

Though this seems axiomatic in civil cases, we have had defense lawyers proceed without one, usually to a generous settlement.

In criminal cases, too often because of lack of resources, defense experts are absent, usually leading to jail time. A clear example in DUI cases is the need for an expert to teach the jury field sobriety tests are unreliable. Juries, even with proper cross, are seeing the tests are infallible.

2. Credibility. Your credibility is what wins cases. Your expert’s credibility will do likewise for you.

All of us can spot a hooker in a Las Vegas lounge. What makes you think your opponent…or more important, the jury…is any less skilled in this arena.

3. Develop a list of experts from whom you can obtain preliminary opinions.

They do not have to be used as trial experts. They are not necessary in all cases. They may, however, save money and a trip down a blind and expensive alley.

By the way, under all circumstances, get to an expert early. It is a most common complaint among them that they are called by lawyers two weeks before trial.

4. Get the CV, then ask your expert such questions as:

“How often have you testified?”

“Have you been attacked?”

“How might you be attacked?”

“Do you have transcripts?”

“What lawyers have you worked with and may I call them?”

Don’t be afraid to ask “the doctor” questions about himself.

5. You teach the jury, the expert teaches you.

Clients expect us to already know the science that proves their case. Experience teaches us some, but it is impossible to be an expert in all areas in which you might try a case.

Simplistically speaking, science is based upon peer review literature. That means that it has been tested by the scientific community. Get the literature from your expert, whether it be a test-book or articles. Learn the science. Use your expert as your tutor.

6. As you receive the information on your opponents case, use the expert to point out the errors so that you can prepare the cross.

Conversely, determine from your expert how his opinion will be attacked and build defenses to the attack into your direct.

7. Cross an expert from the general to the specific.

The more dramatic of us consider this as cross examination using the method which a shark uses to hunt. Circle the expert with general and irrefutable principles related to his testimony. Bump him once in awhile with pointed questions, just to see how he reacts. Move your circles closer with more detailed cross based upon the science which you have learned. Of course, you will control him by using closed-end questions.

You need to be persistent. We are all used to nodding in awe as doctors make and explain decisions about our lives in language we don’t understand. Learn the language and don’t let him off the hook.

In the end, for the last question, maybe once in a career, you will have placed their expert in such a position that you can ask the open-ended question. Most likely it will be something like, “Doctor, we’ve agreed that the June article in the Journal of the American Medical Association presents the latest data on this issue. You have it in front of you. Now please read to the jury the section that supports your position.”

Ask the question and if you are sure you are right, sit down in one of the chairs in front of the bar and wait for an answer that will never come.

8. The direct of your expert is different.

It is a dance, as is all direct examination. You lead, the witness follows.

  • Don’t go through the CV in the order it is written. Use things your expert has done as a jump-off point into your case.
  • The magic phrase is, “Doctor, what is the significance of…?” It allows them to talk forever.
  • During your direct, build in defenses to the cross. Set up the scenario that you anticipate and let the expert explain during his direct.
  • Most important, although said before, find an expert who is a teacher. Let them teach the jury.

Spence tried and won Escabel without an expert. The flip side of the coin happened to me in a case where a young man was accused of murdering a baby by punching him so hard that he ruptured his intestines. Our expert was a Harvard educated, elected county coroner. He was convinced that the science proved the young man innocent. I traveled the hundred miles to see him over and over so that he could teach me the science and we could then dance in the courtroom.

The trial came and he was called. I tried to use all of the rules above. During his testimony, however, each question I asked him brought only a curt yes or no. We weren’t dancing; he wasn’t teaching, and I was sweating. Finally, after about 15 minutes of this torture, panic set in and I asked him the only question that I could think of:

“Doctor, would you like to explain to the jury what happened here?”

“Thank you, Jay.”

He proceeded to set up his projector and spent almost two hours teaching a fascinated jury just how this child died and how it was not the fault of the young man on trial. I sat and watched the whole thing. When next I spoke I knew I had to say something brilliant, which was “Thank you, Doctor.”

The jury acquitted on the first ballot.

I haven’t spoken to Dr. James Patrick of Toledo in a few years. I hope he is well. Most of what you have read, I learned from him. Much more than the ideas about how to use experts, he taught me (more by example than by lecture) the core concepts which underlie this entire series.

Your credibility, your case’s credibility, and your expert’s credibility are your sword and shield in trial.

That war metaphor notwithstanding, an effective lawyer is a teacher first and a warrior second.

Law and Fact
The Journal of the Cuyahoga County Bar Association
April 2004

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