Personal Injury Trial Notebook

Time pressures and stingy juries require you to be efficient but effective when working up your personal injury cases. Don Woody’s Personal Injury Trial Notebook gives you the tools to do so.

Developing an overall trial strategy. Concepts that should be considered in every case.
What to do in the final weeks to make your trial presentation more effective.
Getting witnesses to appear on time during the trial. Making sure witnesses do not surprise you with physical appearance, conduct, or substantive testimony.
Obtaining, admitting, and using real and demonstrative evidence in the trial of personal injury cases, including medical demonstrative evidence.
Using live and internet focus groups to guide and strengthen your trial presentation. Using jury questionnaires; employing jury consultants; and questioning the potential jurors to identify biases and to eliminate unfavorable persons. Educating and persuading the jury during voir dire.
Preparing and delivering the opening statement, with sample openings and motions in limine.
Practical tips on how to conduct cross-examination effectively and how to frame cross-examination.
Ensuring that scientific and medical evidence and testimony either gains admission at trial or is precluded from evidence, depending on counsel’s position in the case. Pretrial motions in limine and to strike, and gatekeeping hearings by the trial judge.
When, why, and how to object to proceedings during trial.
When, why, and how to make motions during trial.
Preparing, objecting to, and using jury instructions. Avoiding common pitfalls.
Preparing and delivering the closing argument, with samples. What can or cannot be said or done in closing argument. Limiting and objecting to closing argument. Sample motions in limine.

11 practice tips from the book

Strategy meeting. “It is extremely helpful to gather members of your office staff together shortly before trial for one final brainstorming session regarding trial strategy and trial tactics. This not only provides very useful information from the participants who are not deeply involved, but also forces you to begin to formulate an effective presentation of the key information in a group setting similar to the courtroom. Present any troublesome questions or areas of the case to the group in light of new or additional discovered evidence in order to get their gut reaction to it and to seek their input on formulating a response or way to deal with the situation at trial.” §2:03

Preparing deposition testimony. “When you propose to introduce extensive portions of a deposition, to avoid the appearance that the statements are taken out of context, photocopy only the pages of the deposition from which answer will be read and arrange them according to subject matter rather than page number in a separate booklet. This will avoid the appearance of jumping from one page to a distant page as if you were selecting testimony out of context. Interrogatory answers may be handled in the same fashion.” §2:110

Jury Selection

Phrasing of questions. When using questions that are not open-ended, give prospective jurors a range of answers so you can identify those who fall within the extremes on the issue. For example, one way to ask a specific question is to simply make a statement and ask whether the prospective juror agrees, disagrees, or has no opinion. However, the more revealing format is to ask the prospective juror if he or she strongly agrees, agrees, somewhat agrees, has no opinion, somewhat disagrees, disagrees, or strongly disagrees. This format will help to identify those with the extreme attitudes on each end of the relevant subject.” §5:13

Alternate phrasing. “The plaintiff’s counsel could change the effect of the question by skewing the voir dire question to read, “Do you think some product manufacturers put their financial interests ahead of product safety?” The response distribution to this question will favor the plaintiff because only a few will say, “No,” and those persons would easily be identified as plaintiff’s likely strike candidates.” §5:13

Using peremptory challenges. “In deciding on peremptory challenges, it is important to consider how influential each prospective juror may be on the jury. Typically, jurors will fall within one of three levels of participation in the jury deliberation room…. If a prospective juror of concern falls into the category of a non-participant, it is less of a concern to use a peremptory strike to eliminate that person, because he would probably not be a person who would be able to persuade others to agree with him.” §5:73

Openings

Grabbing attention. “The secret to story telling is in creating a sort of tension. If conflict is set up, the audience knows something is about to happen and will be curious as to what it is going to be. In the plaintiff’s opening statement, the key is making the jurors want to know what is about to happen.

How long does it take a bullet to travel through a piece of glass, through a car seat belt, through a shirt, and into a human being….
A mother should never have to bury her daughter. This is the tragic story of….
May 12 was Mother’s Day and it was a Mother’s Day that will live forever in Jeannie and Robert ____’s nightmares…. §6:21

Questioning credibility. “Although counsel will not be allowed to directly bolster or challenge any witness’s credibility in the opening statement, the groundwork may be carefully laid to do so at a later point in the trial. You can suggest that the jurors should carefully listen to a certain portion of a witness’s testimony regarding a certain subject to see if it fits in with the other evidence they will see or hear in the case. This approach calls the juror’s attention to the fact that the witness may not be telling the truth and permits subtle indirect impeachment of the witness’s credibility in the opening statement without calling the witness a liar.” §6:24

Inoculating jurors. “If your client has a criminal record that will surface on cross-examination by opposing counsel, point out that this prior conviction has nothing to do with the facts of the case at hand. The client made mistakes as we have all made mistakes, and he or she paid for those mistakes. The client should not be required to pay for them again by being penalized because of the negligence of the defendant at this time and place. Those mistakes have nothing to do with what happened on the day of the collision. The client was not committing any crime on that day. And having paid for the earlier mistakes, the client still has the right to be compensated for his or her injuries at the negligent hands of the defendant.” §6:25

Closings

Using jury instructions. “If permitted by the trial judge to do so, scan the instructions into the computer and show the jurors the relevant instruction as it is being discussed so they can see it. Also, if permitted to do so by the trial judge, as the verdict form is being shown to the jurors, physically fill in the blank spaces as you believe it should be completed. This is particularly helpful when damages are being discussed and particular numbers are being mentioned for certain elements of damage.” §13:27

Adverse inferences. Powerful argument can be formulated about a party’s failure to call a key employee. Careful groundwork must be laid so the proper foundation is established to make the argument, including the key employee’s current employment with the party, the key employee’s position of relevant knowledge with party on the subject matter of the litigation, and his or her availability to testify. This can be accomplished through the testimony of other employees of the party or through their depositions.” §13:72

Pain and suffering. “The most difficult task for plaintiff’s counsel is conveying a translation of the intangibles of injury and death into dollars from the jurors’ perspective. All of the other elements of damages can usually be easily quantified through the use of life care planners and economists. In spite of all of the years that thousands of attorneys have, by trial and error, tried to find the magical argument or formula to convey intangible damages to a jury resulting in fool-proof verdict results, it still remains an enigma.” Consider this approach…. §13:28

Updated annually. ISBN 1-58012-121-7. Price: $99.00

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