Good Advice about Clutter

Every month the ABA Journal has a column "McElhaney on Litigation". The column is written by James W. McElhaney, the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland, and the Fred Parks Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. The column in the April 25, 2005 issue commented on how to put on a streamlined, clutter-case. I have paraphrased some of the author's points below(with apologies to the good professor):

1. If evidence doesn't help your case, it hurts. Dump it.

2. Concede the points you will not win and move on. If you think your argument on a certain point stinks, odds are the jury will likely hold the same opinion - or worse. Don't risk your credibility on a issue or fact you won't win.

3. Show the jury that your cause is just and the defendant's arguments are not. Juries like to right wrongs. As Professor McElhaney notes "...the key to big damages is big fault".

4. Get rid of those claims that that make your client look greedy. Example: years ago, I was involved in a medical malpractice case where the plaintiff, a nice old guy in his late 70's had a bad result after a hernia operation. He had legitimate pain issues. In addition however, he further claimed the malpractice had impacted his sex life- he could no longer have sex with his wife(also in her late 70's) four to five times a week like he had before the surgery. The defense lawyers could barely contain themselves at his depo. Needless to say, that portion of the case was dropped. Again, to paraphrase McElhaney, don't let your client become a victim of his own rhetoric.

5. Be careful advancing inconsistent claims. Although the law may allow for it, juries usually won't understand the distinctions, no matter how hard you try to explain them in closing.

6. Drop any evidence or theories if they don't into your overall scheme of the case[no matter how brilliant they may be].

7. Don't put in all the evidence you have. First, the last thing the jurors will be thinking[before nodding off]is that the case, is boring and repetitive. Secondly, putting all that evidence in just gives the defense all kinds of opportunities to score easy baskets when an inconsistency inevitably surfaces.

8. Be careful choosing your witnesses. You want your witnesses to be pleasant, understandable and interesting. If possible[and sometimes it simply isn't]avoid using pompous, self-important windbags who love the sound of their own voice. Again, sometimes you can't avoid the self-important windbag/expert. If so, spend extra time preparing said windbag. Try to make him human. Have him discuss the years he served[at no cost] as the high school team doctor. Stop him when he uses those big medical words and have him explain, in English, what they mean. Maybe you'll want to put a piece of chalk in his hand and have him draw the cervical spine on a blackboard and highlight where the fractures were located. If you can get the jury to see the expert as someone they would trust to help them with a complicated issue, you've done well.

9. Charts, graphs, pictures and summaries make impressions and save time. The jury will silently thank you.

10. Don't try to hide bad evidence. Bring it out yourself. Don't give the defense an opportunity to bludgeon you with something.