How to Win Cases – Part V

Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.

All lawyers, and most other Americans, know about Gerry Spence. He is the long-haired, fringed suede, book writing, TV commentating, trial lawyer. Some, myself included, believe him to be the best of us at understanding and then teaching juries. On the other hand some, myself included, fear he has passed over into the stage of his career that Dick Feagler once described as, “Old lawyers do not retire, they turn into caricatures of themselves.”

So what?

Gerry Spence once defended a young man named Escabel, charged with murder. The defense was insanity, except Spence had no psychiatrist willing to opine that Mr. Escabel was insane. He did, however, prove insanity and win an acquittal using the cross examination of the State’s psychiatrist.

Like I said, you’re not Gerry Spence, so go hire yourself an expert.

The following rules apply to both criminal and civil cases, admittedly in differing degrees:

1. Always have an expert in science or other appropriate cases, either to prove your case or to act as a counter-weight.

Though this seems axiomatic in civil cases, we have had defense lawyers proceed without one, usually to a generous settlement.

In criminal cases, too often because of lack of resources, defense experts are absent, usually leading to jail time. A clear example in DUI cases is the need for an expert to teach the jury field sobriety tests are unreliable. Juries, even with proper cross, are seeing the tests are infallible.

2. Credibility. Your credibility is what wins cases. Your expert’s credibility will do likewise for you.

All of us can spot a hooker in a Las Vegas lounge. What makes you think your opponent…or more important, the jury…is any less skilled in this arena.

3. Develop a list of experts from whom you can obtain preliminary opinions.

They do not have to be used as trial experts. They are not necessary in all cases. They may, however, save money and a trip down a blind and expensive alley.

By the way, under all circumstances, get to an expert early. It is a most common complaint among them that they are called by lawyers two weeks before trial.

4. Get the CV, then ask your expert such questions as:

“How often have you testified?”

“Have you been attacked?”

“How might you be attacked?”

“Do you have transcripts?”

“What lawyers have you worked with and may I call them?”

Don’t be afraid to ask “the doctor” questions about himself.

5. You teach the jury, the expert teaches you.

Clients expect us to already know the science that proves their case. Experience teaches us some, but it is impossible to be an expert in all areas in which you might try a case.

Simplistically speaking, science is based upon peer review literature. That means that it has been tested by the scientific community. Get the literature from your expert, whether it be a test-book or articles. Learn the science. Use your expert as your tutor.

6. As you receive the information on your opponents case, use the expert to point out the errors so that you can prepare the cross.

Conversely, determine from your expert how his opinion will be attacked and build defenses to the attack into your direct.

7. Cross an expert from the general to the specific.

The more dramatic of us consider this as cross examination using the method which a shark uses to hunt. Circle the expert with general and irrefutable principles related to his testimony. Bump him once in awhile with pointed questions, just to see how he reacts. Move your circles closer with more detailed cross based upon the science which you have learned. Of course, you will control him by using closed-end questions.

You need to be persistent. We are all used to nodding in awe as doctors make and explain decisions about our lives in language we don’t understand. Learn the language and don’t let him off the hook.

In the end, for the last question, maybe once in a career, you will have placed their expert in such a position that you can ask the open-ended question. Most likely it will be something like, “Doctor, we’ve agreed that the June article in the Journal of the American Medical Association presents the latest data on this issue. You have it in front of you. Now please read to the jury the section that supports your position.”

Ask the question and if you are sure you are right, sit down in one of the chairs in front of the bar and wait for an answer that will never come.

8. The direct of your expert is different.

It is a dance, as is all direct examination. You lead, the witness follows.

  • Don’t go through the CV in the order it is written. Use things your expert has done as a jump-off point into your case.
  • The magic phrase is, “Doctor, what is the significance of…?” It allows them to talk forever.
  • During your direct, build in defenses to the cross. Set up the scenario that you anticipate and let the expert explain during his direct.
  • Most important, although said before, find an expert who is a teacher. Let them teach the jury.

Spence tried and won Escabel without an expert. The flip side of the coin happened to me in a case where a young man was accused of murdering a baby by punching him so hard that he ruptured his intestines. Our expert was a Harvard educated, elected county coroner. He was convinced that the science proved the young man innocent. I traveled the hundred miles to see him over and over so that he could teach me the science and we could then dance in the courtroom.

The trial came and he was called. I tried to use all of the rules above. During his testimony, however, each question I asked him brought only a curt yes or no. We weren’t dancing; he wasn’t teaching, and I was sweating. Finally, after about 15 minutes of this torture, panic set in and I asked him the only question that I could think of:

“Doctor, would you like to explain to the jury what happened here?”

“Thank you, Jay.”

He proceeded to set up his projector and spent almost two hours teaching a fascinated jury just how this child died and how it was not the fault of the young man on trial. I sat and watched the whole thing. When next I spoke I knew I had to say something brilliant, which was “Thank you, Doctor.”

The jury acquitted on the first ballot.

I haven’t spoken to Dr. James Patrick of Toledo in a few years. I hope he is well. Most of what you have read, I learned from him. Much more than the ideas about how to use experts, he taught me (more by example than by lecture) the core concepts which underlie this entire series.

Your credibility, your case’s credibility, and your expert’s credibility are your sword and shield in trial.

That war metaphor notwithstanding, an effective lawyer is a teacher first and a warrior second.

Law and Fact
The Journal of the Cuyahoga County Bar Association
April 2004

Posted in How to Lawyer, Reports.