Advocacy injury Trials

• Author: John A. McLeish
• Pages: 91-134

Advocacy

injury

Trials

John

A.

McLeish'

The

members

of the

jury

panel were crowded into

the

courtroom. Some

sat

in the

hard wooden seats

and in

back

of the

courtroom,

and

others

stood along

the

walls.

As the

court registrar called their names, they

shuffled

uneasily

and

acknowledged their individual presence.

Each

potential juror

had

been observing,

in a

discreet way,

the

lawyers sitting

at

the

tables

in

front

of the

courtroom. None

had

failed

to

notice

a

sig-

nificant

difference

in

appearance

and

attitude between

the two

camps

of

lawyers.

On one

side

sat two

neatly groomed individuals; erect

and

attentive, they seemed

to be

studying

the

panel

members'

every move

and

gesture.

On the

other side,

two

lawyers seemed intently engrossed

in

some

private joke.

One

slouched

in his

chair,

had his

hand

cupped

over

his

mouth

as he

whispered

to his

colleague between chuckles.

Studying

these

two

warring camps,

the

anonymous audience began

to

observe

more

differences.

Some

days later, twelve pairs

of

eyes cautiously studied

the

lawyers

standing

before

them.

As the

plaintiffs

lawyer presented

his

final

sum-

mation,

his

words were lost

in the

blur

of

impressions that

had

largely

been formed during those

first

few

moments

at the

beginning

of the

proceedings.

John

A.

McLeish, McLeish

&

Orlando LLP, Toronto.

91

92

ETHOS, PATHOS,

AND

Locos

"Ladies

and

gentlemen

of the

jury,

we

have appreciated your service

and

attention

as

jurors."

[Sure

you

have, that's

why

you've been joking

with

your co-counsel

and

client

in the

courtroom

and

hallways

at

every

break

or

recess.]

...

"We've tried

to

bring

you

this evidence

in a

straightforward man-

ner." [When

you

could

find

the

exhibit, when

you

could decide what

question

you

wanted

to

ask, when

you

stopped rambling

from

point

to

point]

...

"My

client [and that's

all he is to you —

just another fee] demands

strict

justice."

[You'd

better

think

again

if

you

think

you've

got the

right

to

demand anything

from

me for the way

you've presented this

case.]

"We

ask

that

you

give

my

client

the

fifty thousand dollars

in

dam-

ages

that

we

have asked for." [Who does

he

think

we

are, some Ottawa

bureaucrats

running

a

welfare

program?]

...

"We

made

a

bond

during

opening statements,

and my

client

and I

now

call

on you to

live

up to

your part

of the

bargain." [Now he's

going

to try and

shove down

my

throat some bargain

that

he

claims

we

made,

that

I had

nothing

to do

with

formulating,

and

that

he

believes

he

advanced

with

his

tricky lawyering.]

...

"We

have established

the

defendant's

negligence."

[What

was the

legal

definition

of

that

term

the

judge read

a few

minutes

ago?

What

does

all

this

legal jargon mean

anyhow?]

...

"You

will

recall

that

the

first

witness

we

called

was my

client, Bill

Jones.

Mr.

Jones

testified...."

[He's

not

going

to go

through

each wit-

ness's

testimony

in

chronological

order!]

...

"The next witness

we

called

was the

investigating officer, Patrolman

Gilbert

Holloway."

[He's

going

to do it.

He's

going

to

summarize

every

witness's testimony

in

chronological

order.]

...

"The next witness

we

called

was Dr.

George Truman,

the

plaintiff's

treating physician."

[I

think

I'm

getting

sleepy.

I'd

better

not eat at the

hamburger

joint

tomorrow.]

...

"In

summary, ladies

and

gentleman,

we

believe

the

evidence

demands

you

give

us

your

verdict."

[What verdict?

The

judge read

us

a

bunch

of

legal definitions

and

questions. What

did it all

mean? What

are

we

supposed

to do

when

we go

back

to the

jury room? Maybe

the

defence

lawyer

will

explain

it so we can

understand what's

going

on.]

Advocacy

injury

Trials

93

Later,

out in the

hall during

jury

deliberations,

the

plaintiffs

lawyer

was

asked

how the

case went. "Oh,

I

don't think

the

case went that well,"

he

conceded, "but

I

think

I

pulled

it out in final

argument."1

The

foregoing

is not a

fantasy.

Scenes like this take place

in

Ontario

courtrooms almost daily.

A

common belief among many lawyers

is

that

a

trial lawyer

is

someone

who was

born with

a

silver tongue. Some believe that

advoca-

cy

is an

inherent

talent

that

cannot

be

learned.

Nothing could

be

further

from

the

truth:

Advocacy

is a

learned skill. Eloquence

may be

borrowed

and

techniques

may be

acquired.

This article will attempt

to

enhance

the

trial skills

you

already pos-

sess

and to

help

you to

"empower

the

jury"

to

give

an

adequate award

to

your

client.

General

Trial

Techniques

Creating

a

case theme

Before

counsel walks into

the

courtroom,

it is

imperative

to

develop

a

case

theme.

A

good case theme will motivate

the

jury

to

give

an

adequate

award

to the

plaintiff.

Some

factors

counsel should keep

in

mind

in

developing

a

case

theme

are as

follows:

1)

The

theme

should

be

short

and

simple.

It is

preferable that

it be

stat-

ed

in ten

words

or

less.

If the

theme

is

short

and

simple,

the

reten-

tion value

is

higher

and the

theme

can

easily

be

repeated throughout

the

trial. Consider,

for

example, advertising themes that

we all

hear:

"The

Real

Thing"

(Coca-Cola),

"The Pepsi Generation"

(Pepsi),

"We

Try

Harder"

(Avis),

and

"Fly

the

Friendly Skies" (United).

2)

The

theme should

be

bigger than

the

case itself.

For

example,

in a

case involving

a

drunk driver

who

injures your client, your

theme

could

be

keeping

our

streets

safe

from

drunk drivers.

3)

The

theme

should present

the

underlying

facts

and

theory

of

your

case.

4)

The

theme

should

be

delivered early

in

your opening.

It can be

introduced

by

giving your case

a

title.

For

example:

i

This

is

from j.M. Perdue,

Who

Will

Speak

for

the

Victim:

A

Practical

Treatise

on

Plaintiff's

Jury

Argument

(Austin:

Bar of

Texas,

1989)

at 3,

with

changes

to fit the

Ontario context.