Trial Tips and Strategies

Easy link to all Trial Court Administrator and Coordinator emails in North Carolina

The NC AOC (Administrative Office of the Courts) website is often hard to navigate and because it is open to the general public, can be sparse on the email links.

 

This can make scheduling trials and motions difficult.

Here is a link to the names, adresses and emails of the TCAs and TCCs in North Carolina:

http://www.nccourts.org/Courts/CRS/Councils/DRC/Documents/MSCCourtContacts.pdf

 

Chris Nichols

www.NicholsTrialLaw.com 1.800.906.5984

The Customer Service Model of Emotion for better trial results

This post is somewhat of a departure from my "usual" posts about liens and other important (but dry )material and it is also a huge departure from my normal practice of completely ignoring "friend spam."  What's "friend spam"?  Well, you know how you get those "chain emails" from Friends or Friends of Friends about a "Thought for the Day" or other inspirational material?  That's "friend spam".

At any rate, the 3 minute video below came through my email from a friend and I dared to click on it.  It's a little cheesy, potentially apocryphal, and it ends with an advertisement for what may even be a pseudo-religious employee training service.  And yet, I'm reposting it even though it violates many of my cardinal rules for reposting.  So why?  Why would I re-post this?

First if all, even trial hardened lawyers need to be a little mushy from time to time, right? 

But more importantly, I think this video reminds us about how to effectively try a case and prepare witnesses.  In the story, Johnny the Bagger manges to break through the mundane world of grocery shopping by connecting with his customers on an emotional level with a simple but genuine gesture.

How does this apply to jury trials?  First off, most jurors come into the courtroom with a deep set of unrealistic expectations about trials and often a mindset that is "anti-plaintiff."    After decades of insurance company propaganda, Jurors often start out by thinking they can not trust the plaintiff or their lawyer because they "want something."  The Plaintiff's lawyer has a monumental task of overcoming these perceptions while also juggling a long "to do" list of minimum evidence requirements. 

In the pressure of trial, making sure we cross off our "to do" list, we often forget that we MUST connect on some visceral level with our jurors.  Our clients can not simply clinically spout off a list of symptoms and economic losses.  It is our job to find a subject that breaks through the perceptions and connects the jurors and the plaintiff on an emotional level.

I find that when I prep even the most stoic witness, there is usually one subject or another that can get them emotionally stirred up.  I wish I could say it was always the same subject, but it never seems to be.  Often it is how the Plaintiff perceives the emotional impact of the injury on the family.  But that "a-ha" testimony never seems to come in the abstract.  It only comes in story telling.  It happens when I say, "Look, I hear you when you say this injury has impacted your family, but tell me one story, give me one example of how you figured that out."

Once I hear that story, the story that makes my client get misty eyed, I never ask about it again, until trial.  I don't tell my client I am going to ask about it.  I want my client to be raw for a moment, I want them to be emotional, I even want them to be (emotionally) messy and uncomfortable.

I want them to be real.

The video I watched this morning reminded me that being real is so important in what we do.  How do you "stay real"?  When do you let your guard down?  As lawyers, we have so many roles to fulfill in trial that it is very easy to become mechanistic.  What gets you out of that non-emotional role and shows the jury that this is not just another case for you, but a real person with real injuries?

If you can't answer the question easily, watch this video, see if it makes you feel something, and then take a moment to figure out how you can translate that feeling.

The video link

Chris Nichols

www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984

The Truth That Juries Never get to See

As I'm getting ready for a trial, I'm constantly reminded that the "reason the case is going to trial" has more to do with the defendant's insurance company than anything else.  It's frustrating as an attorney fighting for justice because I have the burden of proof for the "facts" of the case, but what the jury really needs to hear, I'm not allowed to tell them.

Why?  Well, the insurance industry has effectively "gagged" anyone from telling the jurors why the case is going to trial.  Typically, the reason for that is that the insurance company who pulls the strings on the defendant, WANTS the case to go to trial, because they know that for every case that goes to trial, 99 just give up, and the insurance company gets to pay less than what is "fair and just" as the rules require.

Here are some of the "hidden" rules and insurance practices that you only learn about after you've been hurt by someone else's negligence.

You Can Not Mention the Insurance Company at Trial

Under no circumstances can a Plaintiff mention the word “Insurance” in trial, even though the person who is being sued has insurance. You cannot mention Insurance, nor can your witnesses, including the doctors, police or anyone else who may testify for you. If you do, the judge will grant a “mistrial” and we will have to try the case over again.

NC Rule of Evidence: Rule 411. Liability insurance.

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. 

Insurance is available in at least 99% of all auto accident cases that go to trial. But, the insurance industry has lobbied the legislature so diligently that it has created a set of court rules that absolutely prohibits the lawyers representing injured people from telling the jury the truth that the little old lady in the defendant's chair has had no choice in whether she is sitting there or not. She cannot settle the case even if she believes you deserve everything you are asking for.

The insurance company is completely in control of how much to offer the injured person, whether to settle the claim or not, and what they should contest in the lawsuit. So, even if the little old lady sitting in the defendant's chair wanted to settle the lawsuit for the same amount as what the injured person is requesting, the insurance company won't offer the money.

In North Carolina, the Plaintiff has virtually no right to sue an insurance company for improperly denying a claim or delaying the payment of what is due. Again, effective political contributions, and legal maneuvering by insurers have resulted in these rules.

Its cheaper to deny the claim than settle.

Believe it or not, insurance companies have saved Billions of dollars since the mid 1990s, by improperly denying claims, and otherwise forcing litigation by paying far below the jury verdict average to settle claims. Frivolous defenses to legitimate claims have resulted in an increase in litigation, against people insured by these companies. This is part of a deliberate claim handling program implemented by McKinsey & Company, the same consulting firm that set up Enron's business model, at many of the nation's largest insurance companies. See "Record Insurance Profits" Article

But, in jury selection, jurors often mention that if the injuries are real, the case should have settled with the insurer. That is exactly what the insurance company is hoping for. It doesn't matter if they offered $0.50 on a claim worth $500,000. The jury will never know, because the lawyers are prohibited from ever mention the settlement negotiations during the trial.

McKinsey & Company counted on this when they told Allstate Insurance in the mid 1990's to quit treating people with “Good Hands” and instead treat them with “Boxing Gloves.” When Allstate forced more litigation and posted record profits, the rest of the insurance industry followed their lead. It is now standard operating procedure in the insurance industry to spend multiple times what a reasonable settlement would be to fight the claim, simply to prove to injured people and their lawyers that filing a claim for injuries is more trouble than it is worth. Read a Transcript of Anderson Cooper's Interview with one of Allstate's Victims

That is because the end result is that most lawyers will not take the cases, and people will not file the claims themselves. These improper denials have led to a huge spike in bankruptcies in the United States, the leading cause of which is an inability to pay for medical bills. So, when jurors turn injured people away, everyone but the person at fault, and their insurer pay for the damage. Instead, the jurors take the financial burden themselves through higher taxes to pay for the bankruptcy. For more, see the article entitled “In Tough Hands” in BusinessWeek.

www.NicholsTrialLaw.com 1.800.906.5984

NC Paralegal Association PowerPoint

I had the wonderful opportunity to speak this morning at the NC Paralegal Association in New Bern, NC.

Because I could not get all my materials printed in time, here are the materials for download:

The PowerPoint Slide Show in PDF format: 

Download nichols_preparing_your_client_for_trial_presentation.pdf

Here is the actual PowerPoint Show:  Power Point

Here is the client trial preparation form:

Download client_trial_checklist.pdf

If you have an questions, don't hesitate to email at nicholsatty@gmail.com or call me at 919.915.0212.  Thanks for inviting me.  You were a great crowd.

Chris Nichols

Nichols Law Firm

www.NicholsTrialLaw.com 1.800.906.5984

Request for Monetary Relief Ideas

In North Carolina, pursuant to NCGS Chapter 1A Rules of Civil Procedure, Rule 8(A), when a Plaintiff files a lawsuit, the Plaintiff may not state a specific amount of relief sought other than to specify that the case seeks either less than $10,000.00 (District Court) or an amount exceeding $10,000.00 (Superior Court).

Under Rule 8A(2), a party may make a written request to another party to seek the exact amount of relief sought in the suit.  This is called a "Request for Statement of Monetary Relief".  The Rule says:

Rule 8A(2)       A demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded. In all negligence actions, and in all claims for punitive damages in any civil action, wherein the matter in controversy exceeds the sum or value of ten thousand dollars ($10,000), the pleading shall not state the demand for monetary relief, but shall state that the relief demanded is for damages incurred or to be incurred in excess of ten thousand dollars ($10,000). However, at any time after service of the claim for relief, any party may request of the claimant a written statement of the monetary relief sought, and the claimant shall, within 30 days after such service, provide such statement, which shall not be filed with the clerk until the action has been called for trial or entry of default entered. Such statement may be amended in the manner and at times as provided by Rule 15.

Requests for Monetary Relief pose a few problems for Plaintiffs.  The first problem is that sometimes the Plaintiff is not yet certain of the exact amount of relief sought.  This may happen if an injury is ongoing, a plaintiff has not recovered from the injury, or the recovery is uncertain.  Sometimes the amount sought is not certain because to determine the exact amount of injury may take further discovery in the suit.

The second problem is that there is an argument, at least, that a Plaintiff may be questioned about the Amount of Monetary Relief Sought, and that the response may be admissible at trial.  This can pose a problem if the attorney responding to the Request "throws out" a single large number that is unreasonable, or may appear unreasonable at the time of trial.  Further, if the trial is not going well, or some key piece of evidence is excluded, even what might have been a reasonable Response amount, might look fully unreasonable (to a jury) at some later date.

Thus, when you respond to a Request for Monetary Relief Sought, I recommend a few things:

Request a range of compensation. 
The rules do not specify that the Plaintiff name a "single" dollar figure.  The rules are fairly vague in terms of itemizing damages.  I suggest asking for a range that you will feel comfortable having a jury hear, even if you don't expect them to ever see the Response.

Leave the door open. 
Even though the Rules specifically allow for amending a the Response, reserve the right to amend in the Response.

Tell the whole truth so the Statement is not attractive as evidence. 
Don't just request a figure, explain where that figure comes from and any other limiting factors or explanations.

EXAMPLE

That Plaintiff requests monetary relief in an amount of $ LOW RANGE to $ HIGH RANGE dollars at this time.  Plaintiff can not give a more specific answer to this request at this time as discovery is still ongoing in this matter. Further, plaintiff asserts that Plaintiff is entitled to damages for past, present, and future pain and suffering, loss of enjoyment of life, loss of use of a part of the body, and permanent disability.  These damages can not be determined by any formula and are to be determined by a jury in a manner which is just and fair. Further, Plaintiff's request includes damages for (include other elements of damages as related to claim).  In any event, the Plaintiff does not request relief to exceed the liability insurance policy of the defendant provided by (INS CO) in the amount of $(LIMITS) though reserves the right to amend this statement of relief requested.

Obviously, if you are requesting an amount that you believe exceeds the insurance policy limits, you may want to change that language or omit it.

I have used this format for many years and only once received an objection, though that objection never went anywhere.  Also, I've never had a defense attorney attempt to enter the Request Response into evidence.  Under NC case law, it seems clear that the Plaintiff would be allowed to explain the request and that that explanation could include the mention of insurance (depending on the Judge, of course).  And don't forget, DON'T FILE THE RESPONSE WITH THE COURT.


 

Chris Nichols

Nichols Law Firm

www.NicholsTrialLaw.com 1.800.906.5984

Exhibits: Make them Big for Free

Have you rasterized today?
I have been given a tip on how to make HUGE enlargements for exhibits from a recent law school graduate, and I want to pass it on to everyone.  The process is called "rasterizing" and it pretty much is breaking a picture into parts, and printing each part on a sheet of paper for assembly into one big picture.

Lawyers keep getting younger, and smarter
Every year I teach at a continuing education seminar hosted by the North Carolina Academy of Trial Lawyers.  The Seminar is designed to provide recent law school graduate with a "working knowledge" of things they don't teach in law school, such as personal injury law.  I teach on "How to Handle Personal Injury Cases from Start through Trial" which is a lot to cover in one hour.

Anyhow, a young lawyer named Shane Perry from Charlotte sent me an email giving me a tip on another way to make poster size (or larger) enlargements for trial exhibits.  Shane recently opened his own law firm in the Lake Norman area with an emphasis on real estate and franchise law.  Check out his website above for more details.

Rasterizing?!  What's that?

Well, if you want a thoroughly confusing "computer" definition that involves vector graphics and bitmap images, you can click right here.

Here is my definition:  Rasterizing is when you take any image file and ask the computer to make it significantly bigger.  Rasterizing uses those little "dots" of color you see in newspaper images.  The rasterizing program then figures out how much you can fit on a printable page, and "divides" up the image into that many pages.  Then when you print it, you get pages that will fit together into one big "poster" size version of your smaller picture.  Like drawing a huge picture on a field of post-it notes and then stacking them all up for easy carrying.  You could then reassemble them anywhere into the original "big" image.

Like this:Rasterbatorcloseup2

The Rasterbator is Free
Shane sent me a link to http://homokaasu.org/rasterbator/ which is a free on line software program called, you guessed it,  The Rasterbator.  You can either upload a file from your computer or use any file that is publicly available on the Internet. After you have cropped the image and selected a desired size, the rasterbated image will be sent to you as an easily printable pdf file.

Rasterbator says you can enlarge your image to 20 meters (@ 60 feet) in size.  Yikes, that's huge! 

Rasterbating is Easy
I rasterbated an image of a courthouse reflecting in a pond that I use on my website.  I enlarged it to poster board size which constituted 12 sheets of legal size paper.

The Rasterbator gives you an option for black and white, monochrome (select a color), and full color.

You upload the image, then crop, then select your output size.  The computer then rasterizes the image and sends you a .pdf version to print.

That didn't work for me. I could never find the .pdf.   But there is a download of the program which did work for me.  The download  did not have the "crop" feature, but you can simply crop your original image instead.

I'll come back and post a "before" and "after" photo but I'm not exactly sure if this is the best way to enlarge images for trial.  I'll have to experiment a little more, but the problem I see is that the image is best if viewed from a distance and gets a little weird if viewed up close.  I'll also have to see how words look when rasterized.

It is still a neat tool to have.  Thanks, Shane.

Chris Nichols
www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984

Expert Speed Testimony now allowed in NC

New DWI Laws Allow Speed Testimony under Rule 702(i)
As of December 1, 2006, the new Rule 702(i) will allow accident reconstructionists who have been qualified as experts to give an opinion as to the speed of a vehicle, even if they did not observe the moving vehicle(s). Please note that this should apply to accidents occurring on or after December 1, 2006.

You can view the legislation as ratified
on the General Assembly's website.

Speed Testimony not Allowed in Past

North Carolina case law over the last decade has not allowed expert speed testimony.  The only speed testimony allowed has been from eye witnesses who actually had the opportunity to observe the vehicles.  There have been several cases where qualified experts have attempted to give speed testimony, but have been blocked.

Speed Testimony a killer combined with Contributory Negligence

North Carolina is, of course, a contributory negligence state.  That means that if the Plaintiff contributed to the negligence that caused the injury or damages, the Plaintiff is completely barred from recovery.

I think that with this new rule, we Plaintiff's will see a huge increase in the number of contributory negligence defenses.  I particularly think this will be the case in Interstate collisions where the common juror knows that most people exceed the posted speed limit.

Also, I think we'll see this defense mounted in country road intersection cases.  The type where the defendant pulls from a side road to the "main" country road that connects two rural towns.  Many of these rural roads have speed limits of 45 mph, and local residents routinely exceed that speed when there are no cars present on the highway.

New Cottage Industry of Insurance Experts?

Because insurance companies have nearly unlimited financial resources, I think that we will see quick growth in the accident reconstruction trade and will routinely see "speed opinions" in personal injury cases.  Insurance defense attorneys know that contributory negligence is an easy way to avoid paying on a claim, and that many juries are happy to point the blame both directions, at the Plaintiff and the Defendant.

Additionally, in smaller cases, the Plaintiff may not have the resources to spend several thousand dollars on an expert opinion to contradict the insurance expert's opinion.  So as lawyers, we need to brace ourselves for this in the coming year.

I personally think this is bad law for North Carolina.  I believe in science, but I also believe the old yard, "Statistics don't lie, liars use statistics."  I think that these experts will be "telling" a jury what to do, using complicated formulas, and may be misleading.

Maybe this will lead our General Assembly to conclude, once and for all, that contributory negligence should be replaced with comparative fault and North Carolina should join 47 others states in the modern age.

Tips to Avoid Contributory Negligence and Expert Speed Testimony

  • Get Pictures Early
Expert testimony based on speed is dependent on physical evidence for the most part.  Experts measure skid marks, co-efficients of friction, tire wear, physical impact to vehicle parts, and other objective criteria to make educated guesses on speed.

I've found that it is important to collect the data early because opposing experts tend to only take photographs of what is favorable to their position.  So I suggest that you get out as quickly as possible and document your crash.

  • Spoliation Letters Should go out Immediately
You need to send a spoliation letter to the Defendant and his/her insurance company to make sure that their vehicle is preserved for your investigation.  My guess is that because insurance companies are often very slow to process these items, you may find that the defendant's vehicle gets fixed or sold before they "preserve" the evidence.  If the insurance company destroys the evidence before you can document it, you have an excellent chance to get their expert's opinion precluded with a motion in limine.
  • Eye Witness Statements Trump Expert Opinions
I also suggest that you have a staff member or a private investigator take statements immediately from eye witnesses, including the defendant.  If you have not filed a suit, you can contact the defendant directly.  While this is not law, I believe that an eye-witness account of the speed of the vehicles will "trump" that of calculations of the expert.  Additionally, eye-witnesses will be able to help establish a defense of "last clear chance" saying that your client had no way to avoid the collision, no matter what speed he or she may have been going.

In conclusion, I think the new law will present some challenges to plaintiff's lawyers but if we get the case moving early and prepare for the worst, we should be able to beat expert opinions that have been bought and paid for by the rich insurance industry.

Chris Nichols

www.NicholsTrialLaw.com
www.NicholsTrialLaw.com 1.800.906.5984

Famous Trials: Trials that Shaped History

I stumbled across a neat little site by Professor Douglas Linder, a professor at the University of Missouri-Kansas City School of Law. 

You can view Professor Linder's website here:   Famous Trials - UMKC School of Law - Prof. Douglas Linder.

Would John Brown have fled in a white SUV?

Linder teaches a class on "Famous Trials" in his law school and has had his class materials "on line" since 1996.   I don't recall ever having any "cool" classes like this at Wake Forest Law School.  I think he has done a great job of collecting the "best of" list of trials that shaped our world and our courts.  From the simply "sexy", like Charles Manson and OJ Simpson, to the political and social watershed cases, like the Scopes Monkey Trial and The Trial Of John Brown.

Warning:  You may lose time here

Professor Linder has provided great resource material for each trial, including time-lines, historical accounts, transcripts, and appellate decisions.  It is easy to "lose yourself" for a few hours on this site, so you have been warned.  Linder also has some neat "personal stuff" linked to famous trials, like his personal political views and his feelings about pies (yes, as in fruit).  I like a guy that puts it out there and stands by his own gut.  Given that he's been at this since at least 1996 (which makes him a pioneer in using the Internet in law, simply because most lawyers lag about half a decade behind the real technology world), he has good insight in what to do, and what not to do with the Internet.  Thanks Prof. L!

-Chris Nichols

www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984

Redact Trial Exhibits on your Computer

Getting Ready for Trial

I've been getting a case ready for trial, and I tried something new that I thought was quite helpful and I wanted to share. I always dread (and my staff dreads) the redacting of the medical records and police report for trial exhibits (and demand packages).

Why We Redact

Because of the collateral source rule, I always "white out" all insurance information on bills, auto insurance information on police reports, and other matters that I know will be objectionable or prohibited at trial. (For the non-lawyer, you may not know, but we are not allowed to tell the jury, or even suggest  to the jury that the negligent person getting sued actually has automobile insurance, or, that it is the auto insurance company that will pay for the damages, or, that it is the insurance company that is refusing to make a fair settlement.  Yes, we know that's unfair, but those are the rules.)

The Messy Options of Redaction

Over the years I've used liquid "white out", tape strip white out, roll on white out, and just about ever product they have released. That resulted in an often messy exhibit, requiring "whiting out" recopying, whiting out and recopying. No fun.

Scanners Work Better than White Out

Despite the fact that I have been using a scanner in my practice for a while, I kept using the "old school" whiteout method out of habit. No more. This time I simply went straight to all my scanned documents.

A Few Simple Steps

  • I saved the medical bills and the police report under new file names, such as "medical records redacted.doc" and "police report redacted.doc ".
  • I then used PaperPort to access the .pdf file and I then used the "eraser" function to simply "erase" the information that I normally "whited out".
  • When I was done, I printed the pages out and they were ready to go to Kinko's for enlargement.

You could use any program that allows you to add text or images to a .pdf file.  You could probably even "paste" a .pdf image into a Word document and use the "picture editor" to erase info, though the tools in PaperPort are much easier.

The Advantages Over Old School Methods
The "eraser" function was so much more precise and easier than the old method, plus, it doesn't leave "white out shadows" or smudges, and it erases the problem the first time, every time.  Also, it makes it easy to make multiple copies with different redacting marks, such as for a police report where you are not sure how much information a judge will let in at trial, so you have to have "choices" on the exhibit.
I'm not sure why this didn't occur to me earlier, but I suppose that old habits die hard sometimes. 
Chris Nichols
www.NicholsTrialLaw.com 1.800.906.5984