Larry Kaye, Author at The Winning Litigator®

The “Ostrich Syndrome” – Don’t Hide from Bad News Before Trial

Female Ostrich (Struthio camelus), Kalahari desert, South Africa

All litigators want to win. Trial preparation is an ordeal that easily saps our physical and emotional resources at times. It’s natural, then, to want to surround trial preparation with as much positive energy as possible. But, how do you handle "bad news" about your case before trial? It will often determine the difference between winning or losing. When we discover a "bad fact", a negative piece of evidence, a hole in our case, a less-than-helpful witness -- or any ...

Need to Read the Jury an Important Transcript? Hire an Actor

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Have you ever faced reading a really dry or tedious, but important, transcript to a jury? Consider hiring an actor to read it for you! It's a great trial presentation strategy. My own close call... In one of my most recent trials, almost every important issue hinged on the testimony of a key witness. My client's treating physician had previously been deposed over a two-day period. The deposition was wonderful. The physician held up beautifully under vigorous cross-examination, and everything ...

Make Industry-Specific Details Clear to the Jury

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One of the most difficult types of trials that I've wrestled with is what I refer to as the “Insidery Trial”. What do I mean by the “Insidery Trial”? It’s a trial where documentary evidence or testamentary evidence involves industry or company specific details that have the potential to be overwhelming or confusing to jurors. For instance, in a case involving a corporation where forms and documents use acronyms abbreviations like ACC, DVT, QTR, ARP, BDC, etc., and which terms ...

Settlement Strategy: Settle More Cases With Interest-Based Negotiation Techniques

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As you develop a settlement strategy for your lawsuit, here's something to consider: Would it surprise you that there is a great deal in common between the negotiations to resolve global conflict and negotiations for the resolution of litigation? I recently interviewed Dr. Matthew Levinger, a Research Professor at George Washington University’s Elliott School of International Affairs, where he directs the National Security Studies Program (an executive education program for senior military and civilian officials) and the Master of International ...

In Cross-Examination, Using the Right Tone is a Key to a Win

I’ve never met a trial lawyer that dislikes cross-examination. Cross-examination provides an opportunity to question evidence put forth by the opposing party. A strong cross-examination can make or break a case. Jurors wait for cross-examination. They’ve seen television shows with dramatic cross examinations: a witness testifies…then, the attorney pounces! As trial attorneys, we spend a good bit of our preparation time thinking about how we will pounce. One difficulty attorneys face carrying out strong cross-examination is how to use the ...

An Injection of Reversible Error Will Kill Your Winning Verdict

Want to kill your good jury verdict? Try a lethal injection of appealable issue and reversible error. There is no doubt about it— trials are an ordeal, even under the best of circumstances. We spend hundreds of hours preparing for cases. We sort through thousands of documents, take and digest multiple depositions, prepare extensive witness lists, design jury presentations, and so many other additional trial preparation tasks. All of this intense preparation is designed to maximize the possibility of our ...

Legal Drafting: The “Extra Ornament” Can Ruin Christmas

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Here's a little lesson I learned about legal drafting when I was a new attorney. One of my first pleadings was an eight-count complaint. The first seven counts were exceptionally strong. But, not wanting to exclude anything, I added the eighth count which was a stretch, and would be very difficult to prove. I appeared before a senior federal judge on a motion to dismiss which had been filed by the defendants. Although the judge denied the motion, what he ...

She’s not a Potted Plant . . . How Your Interaction with Your Client at Trial Can Be Crucial to a Favorable Verdict

As a litigator, you have a lot of details to manage. One of the most crucial details is the jury’s perception of your client relationship. Managing your client relationship is vital at trial. Why is the jury's perception of your relationship with your client important to the outcome of a trial? Jurors notice and discuss attorney-client rapport in the jury room. How many times have any of us seen another attorney who barely speaks to, or even looks at, their ...

Trial Strategy: For Better Rulings in Trial, Write a “Brief Brief”

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Do you have pieces of evidence that you think the judge may not admit? Is there testimony you want to get into the record, but you think the judge might exclude? If you know in advance that you may have a problem with certain testimony or other evidence, but you’re convinced that its admission would be legally correct, how do you maximize your chance to include the evidence, or make the best possible record in case your evidence is not ...