Tips from the Bench

What Works in Civil Litigation

10 Ways to Improve Your Chances

by Judge Jerome LaBarre

Multnomah County Circuit Court

 

I tried my first case over four decades ago. Since then I've been asking myself the question: "What works in trials and hearings?" Here are some answers to that question which have rung true for me over the years.

            1. Seek Simplicity - The seeds that blossom into the successful handling of a case are planted long before the trial or dispositive hearing. Make the complex simple so it can be boiled down and presented to the decision maker in a persuasive manner. This is easier said than done. Two ways to achieve this are to select a theme and to tell a story.

            2. Select A Theme - The law is but a tool to achieve justice. Again and again as a judge I see the quest for a just and fair solution driving successful presentations to the court or to the jury. The case needs to be clothed in a theme. It works the same way in arbitration and business litigation. A few examples of good themes I have recently seen are: "She got blindsided... she never had a chance"; "He was greedy and abused his power"; "It's all 20/20 hindsight"; "The contract wins."

            3. Tell A Story - At our core we succeed members of our clan who sat in front of the campfire and told stories to each other. Judges, arbitrators and jurors are all hardwired to relate to facts which are presented in story form. That's why I believe it almost always works best to try to organize and present things in chronological order. This is how stories unfold.

            4. Strong Start/Strong Finish - The first three minutes in openings and closings are critical. You have the attention of the decision maker and you need to make the most of it. Get out your theme and lay out your persuasion. Say where you are going. Long ago my debate coach spelled out the essence of a good speech: "Tell them what you are going to say, say it and tell them what you have said." Try to boil the content down to three major points. Signal that you are going to end by using words like "In conclusion" and then end on a high and persuasive note.

            5. Keep It Short - I have come to believe that the ideal amount of time for most openings or closings is 20 minutes. Remember that it is really hard to hold someone's attention for even that long. When you start going a lot longer it is inevitable that the audience's attention will drift and your points will be lost.

            6. Take the Decision Maker on a Journey With You - I believe in drawing charts, key words and concepts on an easel in front of the decision maker and then making that a demonstrative exhibit. To argue damages it also works best to add up the totals in front of them. This is a human touch. It connects them to you far better than a power point or prepared chart. Use whatever practical approaches will get the decision maker involved. Low tech can be best.

            7. Maximize Rebuttal - In argument and in presenting evidence the party who has the right to present rebuttal has a real advantage. Again and again I see this opportunity wasted. Litigation is a polite form of combat. Rebuttal is a place you can deliver the knockout blow.

            8. Hand Out Copies of Key Exhibits - Many civil cases have tons of exhibits. But almost always there are only a small number of really important ones. Try early on to get these admitted into evidence. Then put them into notebooks for the judge, jury or arbitrator. Throughout the hearing you can repeatedly refer back to these key exhibits.

            9. Focus On Damages - Civil cases are about money. Yet repeatedly I see plaintiff's attorneys who seem afraid to deal with damages. Defense attorneys love this and are given the advantage. Admittedly this must be handled delicately and with planning. But all of us know that money does not grow on trees. Unless a compelling reason is presented to make an award it will be denied.

            10. Aim Toward the Verdict or Arbitration Award - Not just in openings and closings but during the evidence phase remember your goal. It's all about having the decision maker fill out the form so that your side wins. It's good to draft out the verdict or arbitration award at an early stage in your case. You will be tempted to lose sight of this. But you do so at your peril.