How to get good settlements.
Evan Schaefer refers to a great post on the Virginia Injury Lawyer Blog which sets forth sixteen recommendations for getting good settlements. Read it. I thought it was inspiring.
More on E-Discovery
Dennis Kennedy recently posted on the issue of unanswered questions in E-Discovery. He links to a Ron Freidman post on the unanswered questions regarding web based databases or Web 2.0. Often times multiple users or companies will team up on such a database where all users are adding and editing content and documents. How does a court issue an order to preserve this information? Answer? There is no answer you may be the first to tackle the problem.
Washington Supreme Court overturns "completion and acceptance" doctrine.
Just this week on January 18th, the Supreme Court of the State of Washington in Davis v. Baugh Industrial Contractors Inc. No. 76696-7, overturned the "completion and acceptance" doctrine. The doctrine has long existed in common law. It provides that when a contractor completes his work and it is accepted by the owner, the contractor is no longer liable to third parties for negligence.
In Davis, Baugh installed underground high density polyethelene pipes for Glacier Northwest at a processing facility. The work was completed and accepted in April 1997. In December 2000 Glacier noticed a pond forming. A foreman for Glacier, Alan Davis, took a crew out and dug up the pipe which was leaking. While Davis was in the hole with the pipe a wall of the excavation collapsed and two ton and a half concrete blocks fell in the hole and killed him. The Plaintiff Personal Representative alleged that Baugh was negligent as the Plaintiff suspected the pipe, which is supposed to last 100 years, was either gouged or dented when it was installed.
Baugh moved for summary judgment citing the "completion and acceptance" doctrine and the trial court found in favor of Baugh. On appeal the Supreme Court overturned the summary judgment order and the "completion and acceptance" doctrine that had supported the judgment. The Court instead favored Restatement (Second) of Torts Sec. 385 which holds that a contractor is liable for injury or damages to third parties when it is reasonably foreseeable that third parties could be injured by the contractor's negligence regardless of the completion and acceptance rule. The Court reasoned that the rule was based on many outdated concepts such as "privity of contract". The Court further noted that 37 other states had abandoned the doctrine and that the six year statute of repose, RCW 4.16.030, would protect the contractor from limitless liability.
The vote was 6-3 with Thomas Chambers writing the majority opinion.
Paint a picture with direct testimony.
Face it, direct testimony is frustrating. Both the attorney and the witness want to break loose with a long narrative answer. But, of course, you can't do that so what comes out question by question seems to be a very slow, disjointed narrative. However, it doesn't have to be that way.
A direct examiner can actually paint a vivid picture in the jury's mind with a serious of short declarative answers. For example, consider the following passage from Pastime, a detective novel by Robert B. Parker (Spencer for Hire remember). Read through it and see whether or not these consice sentences with very few adjectives paints a picture in your mind:
I went to Chez Vous, which was located next to an ice cream parlor behind a bookstore in a small shopping center on Massachusetts Avenue. Four desks, four swivel chairs, four phones, four side chairs, and a sofa with maplewood arms and a small floral print covering. The wall was decorated with flattering photos of the property available, and the floor was covered with a big braided rug in mostly blues and reds. Two of the desks were were empty, a woman with blue'black hair and large green-rimmed glasses sat at one of the remaining desks speaking on the phone. She was speaking about a house that the office was listing and she was being enthusiastic. The other desk was occupied by a very slender blonde woman wearing a lot of clothes. Her white skirt reached her ankles, nearly covering her black-laced high-heeled boots. Over the skirt she wore a longiish ivory-colored tunic and a black leather belt with a huge buckle and a small crocheted beige sleeveless sweater, and a beige scarf at her neck, and ivory earrings that were carved in the shape of Japanese dolls, and rings on all her fingers, and a white bow in her hair.
Now take this paragraph and come up with the direct questions which will move the witness through this description at an even pace. Get someone else to be the witness and practice your direct examination based on the facts in the paragraph.
I would suggest that when you are working up your own case for direct start with a story that has all the relevant facts that you need to get in and then work your questions so that the witness delivers the story sentence by sentence or even phrase by phrase.
Sign Posts
It is easy to lose a jury in opening, during direct and cross examination and during closing. By the time a case goes to trial we usually have a command of the facts that often times is better than the witnesses'. And we certainly have a better command of the issues and the law. This knowledge tends to produce what I would call skips in our delivery. We know the facts so well that we jump from one subject to the next with all sorts of assumed connections that only we see or understand. We may think the jury is following along with our mental processes but most of the time they don't.
One way to keep this from happening is to use sign posts. Sign posts are an announcement of what is coming next. For example: "Mrs. Jones I am now going to ask you some questions about things that occured between the time you left the store and the time you slipped on the ice." or, "[to the jury] I am now going to tell you about what caused the accident." This lets the jury know what is coming and why you are asking the questions that you are asking. It also is a good way for you to break things down in coherent, digestible bites.
