Articles Posted in Trial Strategy

In Anatomy of a Witness List, Hon. Michael L. Stern writes that “each witness should tell the next part of your story and move your case forward… By the time any expert takes the stand, the foundational facts for his or her opinion should have been presented through other witnesses.”

There are as host of reasons why most expert witnesses should be presented last in order. They are the cleanup batters for liability and damages issues. Counsel are depending on these well-paid players to hit trial home runs. Experts should be persuasive salespersons who should be able to summarize the salient points of the case for the jury and maybe even add an element of respectability to some claims.

From Advocate Magazine, June 2008.

n Appraisal Review in a Litigation Support Role real estate expert witness Jack P. Friedman, Ph.D., MAI, CPA, ASA, CRE, describes how the appraisal review process and review appraiser are used effectively in litigation support.

When engaged, or rather enmeshed, in litigation, an attorney will often solicit support from a review appraiser. Typical areas of assistance the attorney needs are:

3. To provide other forms of litigation support, such as preparing courtroom exhibits and helping to frame questions to ask appraisal experts on both sides at depositions and during trial testimony.

In Appraisal Review in a Litigation Support Role real estate expert witness Jack P. Friedman, Ph.D., MAI, CPA, ASA, CRE, describes how the appraisal review process and review appraiser are used effectively in litigation support.

When engaged, or rather enmeshed, in litigation, an attorney will often solicit support from a review appraiser. Typical areas of assistance the attorney needs are:

1. To review appraisal(s) prepared at the request of opposing counsel, identifying areas of strength or weakness as an aid to the attorney in preparing the case, and to provide rebuttal testimony.

Lawyers must be sure that their expert witnesses testify in a way the jury understands clearly. It is often easy for legal counsel to understand testimony because he or she is familiar with it but they must remember that this is the first time jurors have heard it. For example, the equipment and machinery expert witness must be able to testify on the facts, concepts, and technical language in an understandable way on subjects that may include woodworking machinery (radial blades, bandsaws, debarkers, conveyors, lumber stackers, resaws, planers, etc.) and metalworking machinery (cutoff saws, lathes, grinders, sand blasters, punch presses, tipping machines, drills, etc.)

In Mediation as a Discovery Tool, insurance expert witness Guy O. Kornblum describes the benefits of going to mediation:

So, mediation can be very productive as a discovery tool and opportunity to learn more about your client’s case, and what the other side has to say IF the parties come in good faith, with a view towards getting the important facts on the table. But if one side is attending simply to demonstrate that it is playing hardball and merely wants the other side to capitulate for reasons that are not meritorious, then a mediation is not worth the time or money.

One issue that you face is how much you tell the other side. For example, what if you have significant negative information on the other party, or impeachment potential; do you share that? Maybe not. Maybe it has to be saved to avoid the adverse party being able to defuse this potential damaging evidence. Or, it might be that you can disclose the essence of this information in a private letter to the mediator, and can go over its substance and level of importance in your case in a private caucus. That is a judgment call that you as counsel need to make. If you follow this approach and hold it back or disclose it only to the mediator, the mediator might use it if he or she believes it may result in closure. Again, that is something you and the mediator need to discuss to put together a strategy.

In Anatomy of a Witness List, Hon. Michael L. Stern writes that “each witness should tell the next part of your story and move your case forward.”

While most cases are resolved short of a trial, it is important to view each as a potential trial situation. This starts early in the life of a case. Even at an initial client interview, witnesses are named, areas of factual and legal inquiry are outlined, and the necessity of retaining expert (witnesses) may be considered. Pretrial discovery broadens the scope of witness identification and eventually allows refinement of a trial witness list. This is a time-consuming and hugely expensive process. Failure to focus early on the truly important witnesses to call, and what each may contribute to winning, can be fatal to ultimate success.

From Advocate Magazine, June 2008.

In Your Witness, Sam Adam shares eight lessons from a lifetime as a Cook County criminal lawyer.

1) Look at the trial itself as an entity rather than as a collection of witnesses. Remember that the ultimate purpose of cross-examination is to get those gold nuggets for closing argument. Know every fact about the case – and perhaps especially your opponent’s case – before you plan your cross-examination. This should usually include viewing the scene. A well-prepared lawyer who has a superior knowledge of the facts has an enormous advantage going on.

Your Witness: Lessons on Cross-Examination and Life From the Great Chicago Trial Lawyers is published by Law Bulletin Publishing Company, 2008.