Handling Objections and Related Motions Developing and Presenting a - - PowerPoint PPT Presentation

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Personal Injury Opening Statements and Closing Arguments: Preparing and Delivering, Handling Objections and Related Motions

Developing and Presenting a Persuasive Roadmap, Delivering a Convincing and Memorable Case Summation Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, APRIL 12, 2017

Michael A. Brusca, Shareholder, Stark & Stark, Lawrenceville, N.J. Robert F . Glass, Partner, Glass & Robson, Atlanta

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Opening Statements, Motions, and Closing Argument

Michael A. Brusca Stark & Stark NJ and PA 609.996.9060 mbrusca@stark-stark.com

OPENING STATEMENTS

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Opening Statement

 Why Important

• Opening salvo
• Up to 65% - 80% of jurors reach the verdict

they ultimately render

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Opening Statement

 What can it give you?

• Showcase your abilities
• Organized
• Gain the moral high ground

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Opening Statement

 Tell it, don’t sell it

• You can’t advocate
• You don’t have the right

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Opening Statement

 Avoid my client’s sad story

• Low activation emotion

 Focus on the defendant

• Fear, anger, disgust and hope
• High activation emotion

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Opening Statement

 Begin about three weeks out  Follow an outline

• Cohesive
• Good transitions

 Bring my outline up with me  Basic Structure

• No mention of client
• Rules
• Terms
• Story
• Defenses

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Opening Statement

“Folks, I ask you to keep an open mind because,

• bviously, I talk to you last. I get up here,

question witnesses after they’re done, when -- Mike was giving his opening, I saw some of you were shaking your heads. I don’t know what was going on in your minds but you were shaking your heads. I beg you to keep an open mind on this case. I beg you.”

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MOTIONS

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Motions

 Be clear and succinct

• Preliminary statement less than 40 words
• Keep it as short as possible
• Who are you writing for?

 Clerk maybe – with 1,000 motions to read

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Motions

 Explain it like someone is 6

• Avoid citing 100 cases
• Short paragraphs, lots of white space

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Motions

 Concede the obvious and don’t over-reach

• Gain credibility

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Motions

 Attachments cut and pasted in document

• Avoid “see exhibit…”

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Closing Argument

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Closing Argument

 You can now advocate

• Your Perry Mason moments
• Witness credibility
• Use the instructions

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Closing Argument

 Cohesive

• Usually have and idea before trial
• Follow opening
• Use same documents
• Good transitions

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Closing Argument

 What I avoid

• Don’t re-hash the case
• Don’t comment on defense counsel’s argument

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Closing Argument

 Give the jury what they need

• “If someone tells you…you can remind them…”

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Personal In Inju jury ry Opening Statements and Clo losing Arguments: Preparing and Deli livering, g, Handling Obje jections, and Rela lated Moti tions

Robert F. Glass Glass & Robson, LLC Atlanta, GA www.glassrobson.com April 12, 2017 Webinar

Opening Statements: Key Elements

• Storytelling
• Credibility
• Explaining why you are there
• Begin to dismantle defenses
• Set reasonable expectations
• Empower the jury as the last chance for hope for your

client

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Opening Statements: Key Elements

• Storytelling
• Use the present tense
• Keep it interesting with adjectives and descriptive words
• Get the jury’s attention and establish a theme early on
• Practice, practice, practice

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Opening Statements: Key Elements

• Credibility
• First impressions go a long way
• Be an advocate but don’t over advocate without having

established your credibility to the jury

• Be respectful of the jurors and your opposition

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Opening Statements: Key Elements

• Why are We Here?
• Establish yourself as the leader of the trial
• Begin Dismantling Defenses
• What can you expect to hear from the opposition
• “Let’s put that in perspective”…
• Setting Expectations
• Do not overpromise
• Empowering the Jury
• Emphasize the importance of their role

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Opening Statements: Demonstratives

• Is a picture is worth 1,000 words?
• Option 1: Tell the Story:
• “Because of the wreck, Ms. Smith had to

have some plates put in her neck to secure her spine after the surgery”

• Option 2: Show the Story...

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Opening St Statements: Usin ing Opposing Party’s Pleadings

• Opposing counsel rarely expects to see their pleading

responses after they have been filed

• Using their own words against them seems to get the

attention of the jury, especially when it contradicts what the lawyer will say

• In an injury case, how often do you hear the defense

say, “we accept responsibility for the wreck?”

• What are they accepting responsibility for?

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IN THE STATE COURT OF COUNTY STATE OF GEORGIA CHRISTINE , ) ) Plaintiff, ) CIVIL ACTION ) v. ) FILE NO. ) ANGELA ) ) Defendants. ) ) REQUESTS FOR ADMISSION Please admit the following: 10. Please admit that you are liable to Plaintiff for the physical and emotional pain and suffering she has incurred and will incur as a result of the subject collision. Response: Denies. 11. Please admit that you are liable to Plaintiff for the medical expenses she has incurred and will incur as a result of the subject collision. Response: Denies. 31

Opening Statement Pitfalls

• Over-promising and under-delivering;
• Using legalease or complicated words;
• Taking up too much time;
• Disparaging the opposing party or their counsel;
• Advancing too much argument rather than

expectations of what the evidence will show.

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Closing Argument: Key Elements

• Don’t rehash the entire case: Hit the high points;
• Describing events of trial that support your theme advanced

in opening;

• Speak with conviction;
• Show emotion when appropriate;
• Maintain a big picture view;
• Ultimate objective: Arm your favorable jurors with the

facts to advocate for your client in jury deliberations.

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Bolster and Rebut Using Demonstratives: Hired expert vs. Treating Provider

Hired Gun versus Lynn’s Doctors

• Dr.

Jeffries Dr. James Chappuis and Dr. Lee Kelley

• ฀ Not

seen at Lynn’s request ฀ Never met Lynn ฀ Never talked to Lynn ฀ Never taken medical history ฀ Never examined ฀ Not an

• rthopaedist

฀ Not a surgeon ฀ Reviews films all day ฀ Not allowed to

• perate

฀ Never performed spinal fusion ฀ Testified for Sharon Ware & Associates

• ver

600 times in his career ฀ Made millions

• f

dollars testifying people are not hurt without treating them ฀ Testimony is bought and paid for ฀ Discredited by Dr. Kelley ฀ Admits what Dr. Kelley and Dr. Chappuis say is correct: asymptomatic before wreck, then wreck = need for surgery

• ฀ Seen

in person at Lynn’s request ฀ Personally examined and treated Lynn ฀ Took her medical history ฀ Personally reviewed MRI films ฀ Board-certified

• rthopaedic

surgeons ฀ Operate

• n

their

• wn

patients at the patient’s request ฀ Help their patients

• n

a daily basis ฀ Conclusions based

• n

first-hand treatment and medical

• pinions

฀ Dr. Kelley: seen Lynn’s cervical spine with his

• wn

eyes ฀ Dr. Kelley: watched and monitored Lynn’s recovery from surgery ฀ Not hired by anyone

• ther

than Lynn, the patient

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Bolster and Rebut Usi sing Demonstratives: Pri rior Treatment for r Same Body y Part rt - Tim imeli lines

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Damages: Asking for the Money

• Medical bills and Lost Wages: “The easy part”
• Use a demonstrative or PowerPoint listing medical bills

so the jury can see and write them down

• Non-economic damages
• Be creative with ways to extrapolate a large lump sum to

a daily/weekly/yearly amount

• For hourly rates, compare a modest amount you ask for

to the hourly rate of the opposing side’s experts’ hourly rate

• Use Mortality Table for permanent injuries

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Clo losing Argument: : Pit itfalls

• Talking “at” the jury instead of with them;
• Not making and maintaining eye contact;
• Negative statements about opposing counsel;
• Not emphasizing that this is the client’s one chance

for justice.

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