April 26, 2006

In a jury trial, credibility is everything. Yes, the law matters. But at the end of the day, jurors remember facts, not law. They remember the witness who lied to them, more than any witness who told the truth. And because jurors are suspect of lawyers, the trial lawyer must avoid any move that reinforces the jurors’ distrust. A recent trial illustrates these points.

We were retained last year to try a very difficult case for the San Joaquin County Superior Court. The Court and one its clerks had been sued for negligence. The negligent act was that the Court had allegedly failed to properly report a juvenile conviction to the California Department of Motor Vehicles (“DMV”). Under California law, if a person is convicted of assault with a deadly weapon and the weapon is a vehicle, the person’s license is revoked for life.

In this particular case, a juvenile had pled guilty to assault with a deadly weapon, a vehicle. The judge, however, did not revoke the license. Instead, he restricted it for one year, which is what the clerk reported to the DMV. A year later, the juvenile fell asleep at the wheel, veered into another lane, and collided with a small vehicle. The driver of that vehicle suffered irreversible brain damage.

The Court was hoping that it would be dismissed under the doctrine of judicial immunity. It was not. Instead, the judge essentially granted summary judgment to the plaintiff, holding that the clerk should have advised the DMV that the license should be revoked, irrespective of the judge’s sentence. At that point, the Court began a search for trial counsel, and we were chosen.

Upon being retained, we realized that the primary obstacles for the Court were: (1) there was a pretrial ruling that the Court had violated the law, and (2) the brain-damaged plaintiff and his wife appeared to be sympathetic witnesses. Discovery was coming to a close. How would we defend the case?

Learning all that you can about an adversary (both the party and the lawyer) is very important. It turns out that the plaintiffs were not quite the happy couple that was represented in the complaint. The wife had filed four applications for temporary restraining orders against her husband. They both appeared to have drug and alcohol problems.

The first witness called by the plaintiffs at trial was a psychiatrist who testified about the devastating emotional impact that the accident had on the close family. We had to make a tactical decision. Do we ask the psychiatrist about the TROs or wait? We chose to wait. Instead, we simply laid the foundation for later impeachment. “When you spoke to the wife about her prior relationship with her husband, did she say anything to you about violence in the home?”

The second witness was the wife. She testified about her relationship with her husband and how the accident affected her. On cross-examination, I asked if there had ever been any violence in the home. She said “no.” I then asked her about the four TROs.

Changing Tactics

A good trial lawyer understands that flexibility and the ability to adapt are essential. Try as you might, you can never predict with certainty exactly what will happen in a trial. Witnesses change their testimony, the court rules certain evidence inadmissible, or your opponent comes up with a previously undisclosed witness or document. If so, you have to change your tactics.

As you might expect, the jurors were not happy with the wife after we finished cross-examining her about the TROs. Her credibility was shot. To our amazement, however, her counsel did not alter his plan. He proceeded to parade four other family members into the courtroom to tell jurors about the loving couple.

This ill-advised strategy was the break that we needed. We made the tactical decision to keep our cross-examinations short and pointed. “Did you ever speak to your sister about the fact that she had filed four TROs to keep her husband away from her?”

In addition, because we thought that the plaintiffs’ case was falling apart, we shortened our witness list. If you believe you are winning a jury trial, you have to re-examine whether the risk of putting a witness on the stand outweighs any benefit. “Do I really need this evidence?”

When it came time for closing argument, plaintiffs’ counsel asked the jurors to award $16 million. I thought this was a mistake. It was fairly obvious that the jurors were not happy with the wife, her family members who testified, or the lawyers who put them on the stand. Nonetheless, because the legal issues were close, and the husband permanently brain-damaged, the jurors might have compromised to reach a reasonable verdict.

The Verdict