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Richard Cook

By: Richard A. Cook, Esq. (Guest Blogger)

Reprinted with permission from The Barrister’s Toolbox: www.the-barristers-toolbox.com.

You have officially re-entered the land of TPS. Welcome back! We’re happy to have you. Today, Rich Cook is here to share some common trial strategies and tactics used in personal injury cases. Perhaps you find yourself thinking: “What does that have to do with me? I’m a paralegal.” Well, you certainly got the second part right! That’s why all those people continue to ask you if you want to be a lawyer…right?! Now whether you work in the litigation realm or never see a single day of action in the courtroom makes no difference. We think you’re smart. So read this post!

You never know, perhaps one glorious day, one of these ideas will make its way into that brilliant legal mind of yours when the perfect scenario presents itself and your attorney will be super impressed. At the very least, you’ll have a better understanding of trial strategy. Your class in distraction, misdirection and the art of verbal jujitsu begins right now! 

Distraction, misdirection and appeals to prejudice are common tools of the defense. Ideally, you keep these improper arguments or evidence from the jury through the use of motions in limine. However, sometimes this is impossible to do. What do you do to keep the jury from being misled or distracted by meaningless side issues? How about a little verbal jujitsu! “Jujitsu” is the oriental “art” of manipulating the opponent’s force against himself rather than confronting it with one’s own force. You can do this by verbal jujitsu using effective analogies and counter-arguments. Below are a few of my favorite analogies and arguments. I hope they help.

STREET LIGHT ANALOGY: One dark evening a woman was on her hands and knees under a street light looking through the grass. A man walking by stops and asked what she was looking for. “The keys to my car.” replied the woman. Having some time and feeling helpful, the man joined the woman in her search for her keys. After looking for quite a while with no success, the man asked: “We have been looking for well over 15 minutes here. Are you sure this is where you were when you lost your keys?” “Why no, I lost them a couple blocks back over there by my car” the woman explains as she gestures back towards her car. The man puzzled, asks, “If you lost them a couple blocks back, why are you looking for them here?” The woman without keys responds: “Because the light’s so much better here!” That’s what the defense did here, even though the real issues are two blocks back…

WHEN THE LAW & FACTS ARE AGAINST YOU: In law school they say if the facts are in your favor, argue facts, if law is in your favor, argue law, if neither law or facts are in your favor, argue like a lawyer and try to confuse the jury about what the case is really about. It’s the oldest trick in the book. The defense took a nice simple case that is straight forward and tried to make it complicated by pointing to a bunch of things that really have nothing to do with the case’s merit, in hopes that you’ll forget what this case is really about…

OCTOPUS ANALOGY: The defense is just like an octopus hiding behind a cloud of black ink, they try to obscure your view with their arguments and B.S. However, all you have to do is just move straight ahead through the ink and you can see the truth once again. Most octopi squirt thick clouds of black ink to confuse predators. However, a type of Tremoctopus, or blanket octopus (murasakidako in Japanese), employs a different technique. When threatened, the octopus unfurls a giant sheet of webbing that trails behind like a cape. The webbing breaks apart rather easily when attacked — much like a lizard’s tail — and it gets wrapped around the predator’s face, giving the octopus a chance to flee. The defense took a nice simple case that is straight forward and tried to make it complicated by muddying the waters with a bunch things that really have nothing to do with the case, in hopes that you’ll forget what this case is really about…

RED HERRING ANALOGY: A “red herring” is normally used by people to divert the attention of others from something important; from the central point that is being considered. A “herring” is a kind of fish that turns red only when it is “cured” – that is, when it is smoked and salted. Such a fish emits a very strong smell and in the past criminals made use of red herrings to help them in their bid to escape the authorities. Convicts used the herring to help them throw dogs off his scent. Since the herring had a very strong smell, the police dogs followed the scent of the herring and not that of the escaped convict! The original expression was “drag a red herring across the trail”, but now it’s been reduced to “red herring”. That’s what’s happened here…

AD HOMINEM ATTACK: An Ad Hominem attack falls into a general class of fallacies in which a claim or argument is rejected because of some irrelevant fact about the author of or the person presenting the claim or argument. The reason this sort of argument is fallacious is that the character, circumstances, or actions of a person do not (in most cases) have a bearing on the truth or falsity of the claim being made (or the quality of the argument being made). These sort of arguments appeal to prejudice and bias in hopes that you will ignore your sworn duty as jurors. They are wrongheaded and improper. Lady Justice stands there holding the scales of justice blindfolded. Lady Justice does not care if we are black or white, Christian or Moslem, male or female, rich or poor, married or divorced… Her sole concern is to fairly and impartially evaluated the evidence based upon the law. The defense’s personal attacks on my client have nothing to do with this case’s merits. It is bad enough that they have shamelessly injured my client, now they want to profit from insulting and degrading him in your eyes. These attacks have no bearing on what is a fair and just outcome given the facts and the law in this case which, weigh heavily in favor of my client…

One book which has a number of great counter-arguments is Closing Arguments: The Last Battle. This book is a well-organized collection of miscellaneous arguments and analogies used to explain and illustrate various legal issues and address common defense attorney arguments and tactics used to undercut, confuse, distract or sidetrack juries from the central issues in a personal injury case.

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, he served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Indiana Prosecutor’s Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector’s Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney’s office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook Shartzer & Tisch in Indianapolis. Richard is also a member of the ITLA and the ABA.

Rich also hosts a legal blog: http://the-barristers-toolbox.com/ and a blog discussing cool apps for your iPhone: http://apptousemyiphone.com/.Be sure to check them out!

Hey TPS readers – If you have any other strategies you’d like to share with our super cool readers, just hit that comment button and tell us all about it. The words: “Jello sliding down a wall and seeing what sticks” come to mind! I know those of you working in the litigation realm can certainly appreciate that one. Anyway, we’d love to hear from you, so don’t be shy!

We’ll see on that unofficial, paralegal holiday otherwise known as “Friday!”