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Expertice 2022

How to Litigate Your First Civil Trial in Massachusetts

I. THE FIRST STEP – PLANNING AND PREPARING FOR TRIAL

A. Choosing a Case Theme

Identifying key points or themes is essential to convey your message and to help the jurors process the vast amount of information with which they will be presented. A theme should simplify the case and convey your client’s position on the critical issues. The simpler the better. A memorable word or phrase can suffice. The trial lawyer must identify the critical issues in the case and develop themes for each of them and constantly reinforce these themes to the jurors who can use them in processing the information and resolving disputed issues. The best themes resonate with what the jurors already know emotionally, psychologically and mentally and appeal to their sense of fairness. They need to be consistent with basic truths and principles. They cannot be esoteric or complex. Rather, simplicity and immediacy has the most impact. They should focus on people, not legal issues and must avoid legalese. Simple, compelling, human propositions that are consistent with the juror’s existing knowledge and beliefs are essential.

Common themes, for example, capture what the jurors already know, such as “people who are in a hurry take chances” or “people who take chances can hurt others”. These themes become the focal point for the juror’s thinking. These are anchors or reference points that the jurors can use to decipher the evidence. Themes should be developed on both liability and damages.

A sub-category of themes is labels. Labels are simply the way we refer to a specific person or event. For example, in a car accident case, the word “accident” conveys a different meaning than “crash” or “collision”. Even the names of the parties can convey a meaning. The word “Peter” conveys a different meaning that “Mr. Smith”. Selecting the proper labels for parties, events and issues in the case and making those labels consistent with your theme is essential.

We are all familiar with the use of themes in communication. Nike uses the theme “Just Do It”; fast food chains use the theme “Where’s the Beef?”. All of these themes use simple, plain language to drive home a message. Themes are everywhere in our thinking and behavior. The title of a book or movie itself can convey a theme or message. TV commercials are ingenious in the way they use themes and labels to convey a message often in as short a time as ten seconds. To win a case, it must be more than a mere fact line or story. Rather, it must have a compelling theme that resonates with the jury and invokes them to action for your client.

Good themes also grab the jury’s attention and play into their sense of justice and create drama. To be effective, the theme must do the following:

1. Simplify the facts and issues in the case.
2. Show how disputes need to be resolved and the evidence in your favor.
3. Be consistent with common human experience and knowledge.
4. Don’t require that any credible evidence be discarded or any legal principal ignored.
5. Captionalize the entire claim or defense.
6. Are consistent with clear logic.
7. Pull the rug out from under the opponent’s case without unnecessary hostility or ridicule.
8. Appeal to the juror’s highest sense of fairness, hard work and personal responsibility.

While the source of themes abound and are constant in human nature, common axioms, passages from the Bible, literary works, movie titles, proverbs, slogans, songs, and quotations can be the source of compelling themes.

In a sense using themes is similar to using analogy or comparison. It makes what may be a complex set of facts into a simple analogy or known parable. To be successful, the theme must do at least the following:

1. Summarize the story.
2. Have emotional as well as factual appeal.
3. Paint a visual image for the jury.
4. Be consistent with and blend with the juror’s life experience, values and perceptions.
5. Apply classical, rhetorical principles.
6. Accommodate the juror’s decision making process and the evidence and accommodate their perceptions.
7. Be consistent with the applicable law and facts.
8. Appeal to a sense of justice and consistent with community values and interests.
9. Have universal application and appeal.

In essence, themes play into the juror’s personal frames of reference and reminds them of things they already know and permits them to put the evidence and law within that existing framework.

Ideally, the case should be reduced to one overall theme. However, it will then be necessary to break down the theme into sub-themes to accommodate legal theories, liability, damages or evidential issues in the case.

The best themes merely capture knowledge and principles that the jurors are already cognizant of and living by. Themes often revolve around issues of health, happiness, the values of freedom, fairness, safety, the importance of home and family, pain and tragedy and injustice. They also may revolve around responsibility and duty. Common themes in personal injury cases, for example, include “impatience”, “prevention”, “indifference” and “haste”. Often in product liability cases, themes revolve around “corporate greed” and “consumer safety”.

Effective themes avoid legalese and are simple. For example, the O.J. Simpson defense team’s theme “If the glove don’t fit, you must acquit” was simple and direct. Themes often revolve around issues of accountability and responsibility. Corporate greed is a common theme. “Hired gun” is an example of a label that can be used effectively against opposing experts. Themes of negligence include “a moment of carelessness can cause a lifetime of misery” and similar themes. Product liability cases often revolve around the theme of “an ounce of prevention is worth a pound of cure”. The more familiar the theme and consistent with the juror’s everyday aspects of living, the more powerful and meaningful.

B. Selecting the Evidence to Use

Witness Selection . Your case in chief is obviously presented primarily through the witnesses you call and the exhibits you introduce. Therefore, you must decide who will be called as a witness, what you will have these witnesses testify to and in what order you will present these witnesses.

Some witnesses simply must be called as they are necessary to establish a prima facie case. However, there may be a number of witnesses who are available to testify on an issue and therefore there are choices. In considering which witnesses to call, the following considerations should be kept in mind:

1. Credibility. Obviously the more credible appearing and truthful and sincere the witness, the more powerful and effective in persuading the jury.
2. Redundancy. Do not call too many witnesses on the same point, or oversell the case. One or two corroborative witnesses is generally all that is necessary.
3. Use strong witnesses. Witnesses who are weak will be exploited on cross-examination.
4. Don’t call a witness to prove something that is not important.
5. Don’t call a witness unless it is clear that the witness is going to add to the claim or defense and add something substantial to the case and to what you are persuading the jury to.
6. Don’t plan on “surprise” witnesses. Strong witnesses should be called early on in the case while the jury is still fresh and minds are undecided.
7. Don’t expect to call a surprise rebuttal witness or to make a dramatic impact late in the case as the strength of that witness’ testimony may be lost.

Exhibit Selection and Preparation. Certain exhibits will be necessary such as medical records, photographs of the accident scene or property damage or physical injuries, medical bills, key documents, etc. However, a more creative approach should be taken to exhibits so that not only the essential documentary photographic and related physical evidence is admitted but that exhibits are created that would persuade the jury on the issues of liability and damages. Err on the side of creating more visual exhibits rather than fewer. Also, enlargements are critical. Generally, the bigger the better. Color exhibits are more dramatic than black and white. Exhibits must be well thought out both as to what they display but also as to the foundation that will be necessary for their admission. Often this will involve cooperation with one’s expert to create exhibits that convey the expert’s theory of liability or damages.
Your trial note book should keep a list of all exhibits. The exhibit list will show each exhibit, the exhibit number, the exhibit description, and contain boxes to show the evidentiary status of the exhibit, that is, whether it has been offered, admitted, refused, reserved or withdrawn. For more discussion on exhibits, see Section E below.

C. Outlining and Creating a Trial Strategy.

The difference between merely presenting a case and winning a case is one of strategy. The trial lawyer needs to focus on the case and develop a strategy to win the case. This often involves identifying the key issues and facts and putting them together to develop a theory of the case. The evidence can then be approached as part of a consistent theme. The strategy must obviously be able to accommodate the facts and the law in the case and the juror’s common sense and common experience.

After all trial preparation has been completed, the trial lawyer should refine the strategy to accommodate all that transpired. At this point, the trial lawyer has reviewed the litigation file, filed all amendments and supplemental responses to discovery, prepared his witnesses and exhibits, talked with his experts, prepared demonstrative aids and exhibits to illustrate the theory of the case and experts’ testimony, issued trial subpoenas, set up a trial notebook with a trial chart, witness list, exhibit list and proposed jury instructions, prepared a witness folder for each witness and an exhibit folder for each exhibit, and prepared the witnesses. Against this backdrop, the theme and theory of the case will emerge, but then needs to be refined and employed for an effective trial strategy.
Strategy is a corollary of the theme of the case. See discussion in Part IA. The theme must be credible and resonate with the jury’s common sense and sense of fairness and daily perceptions. All of the evidence, including the expert testimony, must play into this theme. For example, the theme in a negligent motor vehicle case may be that “people in a hurry take chances”. On the damage aspect of the case, the theme may be that even “common injuries can sometimes have long standing devastating consequences”. Jurors understand these concepts. People know that not everyone bounces back 100% from an injury. People know that people who are in a hurry may take chances. The words you use or labeling should convey this theme. Action words such as “crash”, “smash”, “thrown forward”, “snapped back” convey this meaning, as opposed to “accident” or “injury”.

In order for the theme to come alive and the strategy to work, often visual aids will be required. For example, the recreation of a collision through visual animation is compelling. Even the story told by a witness can be effectively presented with action and dramatic phraseology. The strategy must be human and create a dramatic visualization. Theories, themes and labels are the way to implement the strategy. Witnesses will be selected to tell a story and make it come alive in dramatic human terms.

Good witnesses will do the following:
1. They will make the jurors like the plaintiff so that they will want to help him or her.
2. They will be credible.
3. Witnesses other than the plaintiff will be used to prove damages.
4. The witnesses will speak genuinely, simply and honestly.

In addition, all of the exhibits will be directed towards the case theme and strategy of the case. Common exhibits such as photographs, aerial photographs, x-rays, anatomical diagrams, anatomical models, and charts are essential.

One should keep an open mind and keep on thinking about strategy again and again and refining it and shaping it as one talks to the witnesses, prepares exhibits, prepares the experts and focuses on cross-examination of opposing witnesses and experts. An effective strategy will do the following:

1. Develop a persuasive theory of the case.
2. Develop persuasive themes.
3. Develop persuasive labels for people, places and events.
4. Identify the key issues in dispute.
5. Develop important facts on the disputed issues.
6. Be realistic and accomplish realistic goals.
7. Anticipate the opponent’s strategy.
8. Anticipate problems and weaknesses in the case.
9. Use storytelling techniques to present facts and evidence.
10. Use persuasive exhibits.
11. Be simple and consistent with the jury’s common experience and with the facts and law.

D. Trial Checklist – What to Bring to Trial

1. Litigation Files. Well before trial begins and during the course of a case, a litigation file must be started, which is organized, divided and indexed to provide immediate access to the litigation material as it develops. Trial books are different from litigation files. They are designed to be an organized notebook that provides an outline of the trial and quick reference to the testimony and exhibits that will be utilized during the course of a trial. Preparation and organization are key as the lawyer must appear prepared, confident and professional to the judge, jury, client and opposing side, and must be freed from organizational and logistical issues to focus on the actual trial.

Litigation files are usually divided into several categories and are commonly divided as follows:

1. Court documents.
a. Pleadings
b. Discovery
c. Motions and responses
d. Orders
e. Subpoenas
2. Attorney’s Records.
a. Chronological litigation history
b. Retainer contract, bills, costs
c. Correspondence
d. Legal research
e. Miscellaneous
3. Evidence.
a. Exhibits
b. Chalks

c. Witness statements
d. Depositions
2. Trial Notebook.

Organizing materials for trial differs from organizing your litigation file. Litigation files are all inclusive whereas trial notebooks are the actual material that will be used during the course of the trial and need to be organized in such a way that they are consistent with the way that they will be presented at trial. Through the use of new technology and computers, the storage and presentation of evidence has changed dramatically. However, the basic components of a trial notebook nonetheless remain relevant.
Traditionally a trial notebook was a three-ring binder containing appropriately tabbed sections that paralleled the trial process. It might contain sections involving facts, pleadings, discovery and motions in one notebook and then in another notebook witnesses, evidence, exhibits, cross-examination material, and related documents. Commercial trial notebooks and forms are available. A common organizational system is the following:
1. Facts
2. Pleadings
3. Discovery
4. Motions
5. Charts
6. Jury
7. Opening
8. Plaintiff
9. Defendant
10. Closings
11. Instructions
12. Law
1. Facts. This section generally contains a chronology of events, the pertinent accident and police reports, investigative reports and other fact summaries and summary sheets containing summaries of relevant testimony and documents.
2. Pleadings. This section will contain all of the updated and amended pleadings, as well as the prior pleadings, the pretrial order, and copy of applicable statutes.
3. Discovery. Obviously answers to interrogatories and responsive documents, deposition summaries, response to requests for admissions and other relevant discovery will be contained in this section.
4. Motions. Any motions, responses, orders, pretrial memoranda and anticipated trial motions should be placed in this section.
5. Charts. In this section will be the trial chart showing each claim and defense and each element and proof for each claim and defense, a list of witnesses with their addresses and telephone numbers and a list of exhibits.
6. Jury. This section will contain juror information, juror profile outlines, requested voir dire questions submitted to the judge and a copy of the applicable jury selection statutes or rules.
7. Openings. This will contain an outline of your planned opening statement.
8. Plaintiff. This will contain an outline of your direct examination.
9. Defendant. This will contain an outline of your anticipated cross-examination.
10. Closing. This will contain an outline of your planned closing argument.
11. Instructions. This will contain your proposed jury instructions.
12. Law. This section contains the rules of evidence, your trial memorandum, opponent’s trial memorandum, copy of key statutes and copy of key cases.

In addition, the trial notebook will then organize and contain everything you need to conduct the entire trial and should include separate folders for the following:
1. Exhibits. Exhibits should be placed in separate file folders and enough additional copies should be made so that the judge and opposing counsel at a minimum have copies of the exhibits.

2. Witness folders. There should be a separate folder devoted to each witness and his/her expected testimony at trial. For each such witness there will be a folder containing his deposition transcript, reports, statements, and prior testimony.
3. Trial chart. This chart spells out each claim and defense and the evidence that will be used to satisfy each element of each claim or defense. It will show the source of proof for each element. It will be a blue print for satisfying the prima facie case or affirmative defense.

E. Preparing Exhibits.

The use of exhibits at trial is critical. The first consideration regarding using any exhibit is getting the exhibit into evidence. To some extent, this is a mechanical skill that must be learned, but there are basic steps for admitting an exhibit into evidence and it is necessary to lay the proper foundation before any exhibit can be introduced into evidence. Procedurally, the exhibit must be marked, shown to opposing counsel, admitted upon laying a proper foundation and only after being offered and a ruling on its admissibility made, can an exhibit be used at trial and by a witness and published to the jury. Each step must be observed.

In using exhibits the following should be kept in mind:
1. Premark exhibits. Most pretrial orders require that all exhibits be premarked. This is good practice in any event.

2. Attempt to reach stipulations regarding the exhibits. Often foundational requirements such as authenticity are not genuinely in dispute, but would require time consuming and boring testimony from a witness. Often stipulations can be obtained regarding the foundational elements for introduction of an exhibit to avoid time consuming and boring foundational testimony. However, be clear on the scope of the stipulation. Is the stipulation just to authenticity or is it a stipulation as to all elements necessary to lay a proper foundation including relevancy or is it an actual stipulation to admissibility and the use of the exhibit for all purposes? This should be addressed specifically and clarified so as to avoid surprises.

3. Don’t use the exhibit or show it to the jury until it has been admitted into evidence. This would be improper and is likely to elicit an unfavorable response from the judge if not opposing counsel.

4. Do not ask a witness about a document before it has been admitted. Get the document admitted and then present the document to the witness before asking about its contents. If Power Point or similar computer assisted software is not being utilized, the document should be blown up and in full view of the jury. If using an exhibit in opening statement, clear it with opposing counsel and the court first.

5. Make sure the judge has a copy of all exhibits. Give the judge an extra copy and not the copy that is being marked for the record. Of course, opposing counsel needs to be presented with the exhibit before it is offered. It is best to have a separate copy of the exhibit for opposing counsel as well. It will generally be necessary to have one copy for opposing counsel, one copy for the judge, the original to be marked and admitted and then either copies for the jury (less preferable) or a blow up or overhead projected image or digital computer projection of the document.

6. Make sure you use the proper terminology in offering an exhibit. The exhibit is “offered” and not “moved to admit”.
7. Make sure that exhibits are properly identified and referred to for the record. If a witness is describing a photograph, make sure that you indicate its is a photograph marked as Exhibit 7 and each time there is a reference to the exhibit, it is referred to by exhibit number so that the record is clear.

8. Keep a record of the exhibits and their status. Make sure you keep your own exhibit list and follow the exhibits and what their status is, whether they have been marked for identification only, admitted or not, rulings deferred, etc.
9. Review the exhibits before closing your case. It is essential to make sure that all of the documents and exhibits that are necessary and were planned were in fact admitted or if not, suitable adjustments were made to the trial strategy or different a

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