Category Archives: Trial Practice

Juror Collapses in Med Mal Trial – Defendant Doctor saves her. What happens next?

This is one of the most common war stories you hear in the medical malpractice world – someone in the courtroom collapses during a medical malpractice trial, and the defendant doctor runs in to render aid and save the day.

Everyone claims to know someone this has happened to. It’s the Eddie Murphy in the elevator of lawyer stories.

Here’s one time it actually happened. 

Bottom line is that the District Court allowed everyone involved to compose themselves over the lunch hour, polled the jury, and when the jury said they could still be fair and impartial, refused the Plaintiff’s request for a mistrial. The Court of Appeals reversed.

I tend to agree with the Court of Appeals. The bigger key is that if this happens to you, there are some citations in the opinion with other cases – so remember that if you need a quick brief on the issue.

(Howard Zimmerle is a personal injury and medical malpractice lawyer in Rock Island, Illinois, practicing in Iowa and Illinois. He can be reached at 309-794-1660 or at hzimmerle [at] mjwlaw.com).

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Filed under Iowa Case Law, Juries, Medical Malpractice, Trial Practice

Stephen King Tells You How to Start an Opening Statement

This is what happened.

If you’re the type of person who reads legal blogs and trial advocacy books to learn how to give a good opening statement, you know you have to grab the jury’s attention. None of this “Good morning ladies and gentlemen. What I’m about to tell you is not evidence. It’s like a roadmap that I think will help you blah, blah, blah” crap. Grab the jury. Lead them where you want them to go.

I’ve always been a big proponent of the Keenan/Ball (mostly Ball) opening statement:

Good morning.

A driver is required to stop at stop signs (or whatever).

If the driver does not, and as a result hurts someone, the driver is responsible for the harm.

Now let me tell you the story of what happened in this case.

It’s clear. It’s succinct. It tells the jury what to look for without telling them how to think. It might not be the best start to a novel – but that’s not what we’re trying to do. Or is it?

Consider this article from the Atlantic where Stephen King discusses his favorite opening lines from books.  Say what you will about Stephen King, but he knows writing, he knows what’s popular, and he knows how to grab someone’s attention. His favorite opening line?

This is what happened.

For me, this has always been the quintessential opening line. It’s flat and clean as an affidavit. It establishes just what kind of speaker we’re dealing with: someone willing to say, I will tell you the truth. I’ll tell you the facts. I’ll cut through the bullshit and show you exactly what happened. It suggests that there’s an important story here, too, in a way that says to the reader: and you want to know.

A line like “This is what happened,” doesn’t actually say anything–there’s zero action or context — but it doesn’t matter. It’s a voice, and an invitation, that’s very difficult for me to refuse. It’s like finding a good friend who has valuable information to share. Here’s somebody, it says, who can provide entertainment, an escape, and maybe even a way of looking at the world that will open your eyes.

That’s exactly what we want to do with our opening statments, right? I mean… really exactly.

“This is what happened” is so close to “Now let me tell you the story of what happened in this case” but yet so different. David Ball makes some good points about the use of the word “story” – we’re familiar with stories, we have learned to listen to them since we were little kids, etc. I’ve always bristled a little at it because “stories” aren’t always true. I read stories to my three year old daughter every day – and none of them are true. Stories are what your drunk uncle bores you with – where everything is exaggerated to make himself look more interesting.

I don’t tell stories in opening. I tell the jury what happened.

Of course, there is a story to it. There’s a narrative about how someone broke the rules, did something that put people in danger, hurt someone, the victim struggled and got better (or not) and the victim’s life was changed, etc. There’s a method to telling that story too, but that’s for another day.

(Howard Zimmerle is a trial lawyer from Rock Island, Illinois. He practices personal injury and medical malpractice law in the Quad Cities area, including surrounding areas of Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Filed under Juries, Trial Practice

Did He Really Tweet that? Careful With Social Media Evidence.

I don’t usually blog about politics or sports, but first I wanted to bring up a couple of things I found extremely newsworthy on twitter…

 

Fake barack tweet

 

Pretty sweet, huh? Didn’t even see that in the mainstream media, did you?

fake lebron tweet

 

I guess the end of the Heat’s huge win streak really took a toll on LeBron, eh?

Of course, that is only if either one of these tweets were real – which they aren’t (duh).

There’s a website that has been making the news lately called Lemmetweetthatforyou. It allows anyone to make a fake tweet under anyone else’s real twitter username. Of course, followers of President Obama and LeBron didn’t see my fake tweets, but these things can spread virally as they did recently with Heisman winner Johnny Football.

Now where does that come in for you lawyers? Obviously I know none of you are going to use this to make up fake tweets for parties in your cases “@johnnydefendant “boy, nothing better than drinking, driving, and running red lights!”. But don’t think that it can’t happen to your client. Don’t get duped by, say, your client bringing in fake social media stuff like this that they might have made in the bizarre hope that it would help their case. And if something like this happens to your client, make sure you understand it and can explain it.

Of course – and I don’t recommend this – this allows anyone to argue against any sort of twitter evidence… kinda like when R. Kelly’s lawyers used the “Little Man defense” to argue that technology has gotten to the point where someone can edit a video to put someone else’s head on someone else’s body, so therefore that sex tape wasn’t mine.

(Howard Zimmerle is a lawyer from the Quad Cities. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com. His twitter handle is @HowardZimmerle).

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Filed under Traps, Trial Practice

Deposition Preparation Tip # 7F02

“Let it all hang out. You – conceal it!”

I’m reminded of this every time I prepare my client for a deposition, or help them with interrogatories, or whatever. Of course, I grew up on the Simpsons and am constantly reminded of them to the point where the show is just part of my subconscious. Anyway, this comes from a second season episode where Homer’s new assistant, Karl takes Homer to the tailor for some new suits. Homer does what guys do and sucks in his gut. Karl yells at him to let it all hang out, and then points at the tailor and says “you – conceal it!”

That’s what we want our clients to do. We need to know the warts in the case – the 30 pounds of excess flab hanging over the belt, so we can dress it up nice and make it look presentable. If a client is complaining of low back pain, we need to know if he had low back pain ever – or had been to a chiro – or whatever. If the client was a convicted felon, we want to know. None of this stuff is the end of the world if we know about it in time and can handle it.

The worst thing a client can do is hide stuff from us out of fear that it will hurt their case. We’re pros. We can dress up Homer Simpson in nice clothes and pass him off as an executive – but only if he doesn’t suck it in.

*hat tip to Dead Homer Society for the yoinked image above*

(Howard Zimmerle is a personal injury and car accident attorney in Rock Island Illinois, practicing in the entire Quad Cities and surrounding area. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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New Illinois Rule 243 – Jurors Can Ask Questions!

Big news today – the Illinois Supreme Court adopted Rule 243, which allows jurors in civil cases to ask questions in certain circumstances. The rule reads as follows:

New Rule 243
Rule 243. Written Juror Questions Directed to Witnesses
(a) Questions Permitted. The court may permit jurors in civil cases to submit
to the court written questions directed to witnesses.
(b) Procedure. Following the conclusion of questioning by counsel, the court
shall determine whether the jury will be afforded the opportunity to question the
witness. Regarding each witness for whom the court determines questions by jurors
are appropriate, the jury shall be asked to submit any question they have for the
witness in writing. No discussion regarding the questions shall be allowed between
jurors at this time; neither shall jurors be limited to posing a single question nor shall
jurors be required to submit questions. The bailiff will then collect any questions and
present the questions to the judge. Questions will be marked as exhibits and made a
part of the record.
(c) Objections. Out of the presence of the jury, the judge will read the question
to all counsel, allow counsel to see the written question, and give counsel an
opportunity to object to the question. If any objections are made, the court will rule
upon them at that time and the question will be either admitted, modified, or
excluded accordingly.
(d) Questioning of the Witness. The court shall instruct the witness to answer
only the question presented, and not exceed the scope of the question. The court will
ask each question; the court will then provide all counsel with an opportunity to ask
follow-up questions limited to the scope of the new testimony.
(e) Admonishment to Jurors. At times before or during the trial that it deems
appropriate, the court shall advise the jurors that they shall not concern themselves
with the reason for the exclusion or modification of any question submitted and that
such measures are taken by the court in accordance with the rules of evidence that
govern the case.

The rule can also be found here.

So what does it all mean, practically speaking? A few thoughts:

  1. Judges do not have to let jurors ask questions. I suspect many older judges won’t do this at all. I’ve spoken to some local judges who are excited about this possibility.
  2. There is room to object and/or edit the question away from the jury. This is important, as I sure don’t want to object to a juror’s question in front of them.
  3. No discussion between the jurors. This is good too – it prevents preliminary deliberation.
  4. This does not need to happen for every witness. Hopefully this doesn’t slow down trials too much, although in a way it reminds me of letting fans suggest pitches to a pitcher – slowing down an already molasses-slow process.
  5. I’m a little scared of this. I like control. I usually know what the defense lawyers are going to ask, and they probably know what I’m going to ask.
  6. I also like the idea that jurors might feel more involved and more “into” a trial. This is a much better option than having jurors who are asleep by 1pm the first day of trial (or even in closing arguments… I had a juror sleep through my closing arguments once, and guess what… she became the foreperson, and I lost. GRRR…)

What do others think?

A recent article in the Illinois Bar Journal notes that other states and federal courts have tried it, and that the reaction of juries, judges and even attorneys has been largely positive.An example of this would be a pilot program in New Jersey, with similar results.

Will it change case outcomes? We’ll see. This may be the biggest change in trial practice since I became a lawyer – or it might be nothing.

(Howard Zimmerle is a plaintiff’s personal injury lawyer practicing in Illinois and Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Filed under Illinois law, Juries, Legal News, Trial Practice

Some Tips for New Illinois Workers Comp Attorneys from the Late Arbitrator Jutila

As some may know, former workers comp arbitrator Jerry Jutila passed away recently. While he was battling illness, he nevertheless found the time to write a wonderful guide to arbitrators.

If you’re a workers comp lawyer, stop what you’re doing and read it.  Right now.

It’s intended for arbitrators and practitioners and should help people (especially new attorneys) learn to do things the right way. Many do, many more don’t.

I’ll keep a copy at my desk and read it from time to time. I suggest you do too.

(Howard Zimmerle is a personal injury and workers compensation attorney from Rock Island, Illinois, practicing primarily in Rock Island, Henry, Mercer, Knox and Whiteside counties in Illinois and Scott and surrounding counties in Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Filed under Illinois law, Trial Practice, Workers Compensation

“Ummmmmm” Might Make You a Better Lawyer

Lawyers always try to speak clearly and concisely. We (should) think before we speak.

We want to look polished, especially in front of a jury. If we speak without stammering, without “uhs” and “ums” we will seem better, stronger, more knowledgeable, and more persuasive.

Right?

Probably not. There is a study linked in this interesting article in Slate that involved telephone survey interviewers. Interviewers who said “uh” and “um” more were more successful in getting people to agree to take a phone survey. The hypothesized reason was that people who didn’t have those verbal tics seemed more scripted – less authentic.

This really supports a point made by most people who discuss trial advocacy, from Gerry Spence all the way down to me. Juries love authenticity. Juries want to know that you are speaking with them, not at them. If you come off too polished, you can come across less believable.

(Howard Zimmerle is a trial lawyer in the Quad City area of Iowa and Illinois who specializes in personal injury cases. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660). 

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Filed under Juries, Trial Practice