A Streetwise Guide to Litigation by Noland Kenneth;Noland Kenneth;

Author:Noland, Kenneth;Noland, Kenneth;
Language: eng
Format: epub
Publisher: American Bar Association
Published: 2013-08-15T00:00:00+00:00

“The evidence has shown that the negligence of defendant Chase was a substantial factor in Ms. Gomez’s injuries. Now let’s review that evidence and testimony and let me show you how it was a substantial factor. When I’m finished, I think you will agree that reasonable people will conclude that those negligent actions were a substantial factor. Do you remember the testimony of …?”

Submit these to the judge and mark them as an exhibit. Make a record. If the judge doesn’t charge what you want, object. When in doubt, object. Object in the conference, object in writing, object in court on the record. Don’t be afraid to object, even if the judge screams, “Mr. Nolan, you have already objected three times. You’ve made your record. Now, sit down and shut up.”

You don’t want to lose on appeal because you failed to object to the charge. Browse any volume of appellate decisions; you will find many where the appellate judges took the easy road and dismissed the appeal because of counsel’s failure to object—in the right way or at the right time. It is not enough simply to say, “I object.” Put on the record exactly what you think should be charged. Insist that the judge make a record of both your objections and of what you want charged. Be persistent, and do not be intimidated.

Your outline must be written—but not read. Your argument must be developed—but not only in your mind and on paper. Someone has to hear it before the jury does. You and others must listen to how the argument sounds. Don’t mouth the words. Say them aloud. Try the argument in front of your mirror and in your car. What you think, in the silent recesses of your mind, that you will say and what you actually say are often totally different. What reads well doesn’t necessarily sound good.

Once you have a bit of confidence, practice in front of an audience—your spouse or ordinary people like your jurors. Practice before someone who will be honest and has common sense. This generally excludes your partners—they may be too arrogant and ignorant of the real world (in other words, too much lawyers) to know good from bad. In New York, it’s the subway test. If they ride the R train to work, they live in the real world and recognize lawyer jive. Bounce your closing off R-train people. They are the jurors.

Toss out the legalese. The average juror watches American Idol, reads the tabloids, roots for da Bears, and has more common sense than the judge does. Speak the language they understand. It is impossible to overestimate how much the sealed environment of college, law school, and years of practice has removed you from how most people talk. What is obvious to you may not be to the jurors.

If you have any doubt whether the jury will understand a word or phrase, practice before someone who did not spend three boring years in law school. Don’t use your secretary.

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