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- Resist doing experiments in the courtroom with your experts.
  
  They fail too often, and the stakes are too high. Videotape the experiment under controlled conditions and have your expert walk the jury through it.
- Brainstorm everything.
  
  Trial themes. Informal discovery. Witness exams. Arguments. Limit the brainstorming sessions to two or three others, including at least one person who is not on the case. Have a large white board or easel with notepad handy. Everyone throws out their ideas. No one argues against or criticizes an idea. Limit the sessions to 30-45 minutes.
- Juries understand science.
  
  But jurors do not value scientific evidence as highly as lawyers and experts do. To explain science effectively to jurors, trial attorneys must understand the strategies jurors use to make every-day decisions.
- Weaker evidence undermines your stronger evidence.
  
  Your opponent may argue, and jurors may agree, that you believed you needed the weaker evidence to win. Use only your strongest evidence.
- Notice how good trial lawyers bring the driest documents alive when they read them aloud.
  
  This skill comes from practice. Try to read out loud at least 10 minutes each day. If you read your briefs and letters out loud, you will become a better writer, too.
- Jurors assume that you have presented the evidence in the most favorable light for your case, and perhaps discount it a bit.
  
  But they will not discount concessions. If you introduce unfavorable evidence, jurors will likely give it more credibility than if your opponent had introduced it.
- Defendants sometimes overvalue cases because they believe jurors will find liability based on sympathy for the plaintiff.
  
  Yet time after time juries have turned away very sympathetic plaintiffs when presented with weak liability facts. If a defendant has a strong liability defense, capable defense counsel should know how to keep the jury focused on liability.
- Jurors come to court believing their task will be to decide liability.
  
  During voir dire and openings, the plaintiffs’ counsel will try to shift the jurors to harm and money. The defense must keep the jurors focused on what the jurors first thought their task was.
- Jurors know that everyone else in the courtroom is getting paid more than they are for being there, or at least they’re trying to.
  
  Jurors will not discount expert testimony based on the expert’s hourly rate, though sometimes they may tell you that after the trial when they did not understand or believe your expert’s conclusions.
- When jurors select their own doctor they rarely ask, “Where did you go to medical school?”
  
  Jurors evaluate experts based on their experience and ability to communicate, not credentials.
- If the jurors were not paying close attention before, they will when you state in your opening “This is one of the questions you’ll be asked to answer at the end of the trial.”
  
  Then, show them the most important liability question, and explain what evidence they will need to answer it.
- Arguing alternative damages undermines a liability defense.
  
  The defense should argue damages only when the plaintiff is likely to prevail on liability.
- Good trial lawyers distinguish themselves from litigators by their ability to craft and tell good stories.
  
  Clients sometimes hire the wrong lawyers for cases because they look for lawyers with extensive experience litigating a particular type of case instead of trial lawyers who know how to build compelling stories and then tell them.
- You need not move in limine to exclude every misleading graphic offered by your opponent
  
  The more egregious the graphic the greater the opportunity to show the efforts your opponent will take to mislead the jury. Use the graphic to cross examine unsuspecting opposing experts. They will either agree that the graphics are misleading or look foolish trying to justify a graphic they didn’t create.
- Cases with similar fact patterns invite repetition of winning approaches.
  
  But it is dangerous to believe that what won the last case will win the next. Begin each case with a healthy fear that what worked last time may not succeed again.
- Defendants sometimes overvalue cases because they believe jurors will find liability based on sympathy for the plaintiff.
  
  Yet time after time juries have turned away very sympathetic plaintiffs when presented with weak liability facts. If a defendant has a strong liability defense, capable defense counsel should know how to keep the jury focused on liability.
- Objections create secrets and heighten the jurors’ attention to the offered testimony or exhibit.
  
  Jurors form unfavorable impressions even when the court sustains the objection. Jurors are likely to form a more favorable impression when they believe your opponent is doing something inappropriate. Instead of “Objection, hearsay,” consider “Objection, the jury can’t tell if someone who is not here is telling the truth. This is hearsay.”
- After you conduct the direct exam of your witness, carefully note not only the points made during the cross that must be addressed on re-direct, but also the points not scored by your opponent.
  
  Those failed efforts may become useful in subsequent exams and in closing. Sometimes when your opponents efforts fail, he must change theories leading to inconsistent positions. Inconsistent positions, of course, undermine credibility.
- Action holds your audience’s attention.
  
  Begin your stories, whether in a brief or opening statement, with people doing something.
- We believe that lawyers try all their cases, though maybe not to a jury or to a court.
  
  Lawyers try their cases to their opponent as they proceed through discovery, pre-trial hearings, informal settlement discussions, and mediation.
- When lawyers make the litigation personal, they do not serve their clients well.
  
  First, any opposing lawyer will become a very good lawyer if personally motivated. Disrespect towards an opposing lawyer often compels the lawyer to think long, hard, and often about how to win the case. Second, more time than necessary is spent fighting over matters usually resolved by agreement, which costs clients’ money, time, or both.
- You have heard, “Absence makes the heart grow fonder,” when a couple makes a long distance relationship work.
  
  When it doesn’t, you have also heard, “Out of sight, out of mind.” This is hindsight bias — two statements that sound wise when looking backward. Trial lawyers defending clients must recognize this and know how to deal with it. Voir dire is a good place to start.
- Arguing alternative damages undermines the liability defense.
  
  The defense should argue damages only when the plaintiff is likely to prevail on liability.
- Consider graduate students as resources to help prepare for an opposing expert.
  
  They can often research scientific issues more efficiently than lawyers can and they bring another perspective to the review of prior depositions.
- Generally, pathologists and medical school professors do not make strong medical causation witnesses.
  
  The pathologist’s skills in explaining medical issues to lay people have developed very little since medical school. Medical school professors teach medical students, not lay people. Consider clinicians who explain these concepts every day to their patients.
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Business Litigation

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