Pin 'Em Down Carefully

Trial by Nature #5 - Tips to Survival in the Courtroom


by Tricia Derr

Humpback whales circle schools of krill, blowing giant bubbles deep under the ocean. The whales know the krill will not swim through bubbles. The “bubble wall” conveniently cages the krill and the whales expend minimal energy for their meal.

Like the krill, your adverse witness must be “caged” in his or her testimony before you impeach! Too many lawyers head in for “the kill” without eliminating all exit routes.

I once saw a perfect Perry Mason moment ruined in a medical malpractice case because the plaintiff’s counsel failed to create his “bubble wall.” The case involved failure to diagnose and treat stroke with devastating injuries. At deposition, the defendant admitted the standard of care was governed by a professional organization. The organization maintained extensive publications on stroke. Plaintiff’s counsel identified guidelines completely contrary to the treatment the defendant provided. The attorney planned to use those guidelines as the “gotcha” moment. However, because the plaintiff’s attorney failed to pin the defendant down on the application of the guidelines to the particular type of stroke involved, the defendant had an easy out.

“Those guidelines,” the defendant smirked, “apply to ischemic stroke and this was embolic.”

The defendant then proceeded to give the jury an impressive lecture on embolic stroke while the plaintiff’s counsel wilted with embarrassment.

When developing impeachment, don’t forget your “bubble wall.” Wall off all exit points and secure them well in advance, or you might be the one getting “schooled.”

Other Articles in the Series

Trial by Nature #3 – Stereotypes are Dangerous

Elephants can swim – even the really big ones. Weighing up to 24,000 pounds, these magnificent animals are impressive in the water. The trunk becomes a snorkel. Huge feet transform into diving fins. While they lumber awkwardly on land, they glide effortlessly in water. It is almost as though they were meant to be there in the first place.

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Trial by Nature #2 – Display Matters

The phrase “odd bird” doesn’t come close to describing this creature. Found in the rainforest of New Guinea, the superb bird-of-paradise looks like a little black bird most of the time. However, during mating season, the male bird goes all out to find a mate.

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Trial By Nature – Introduction

Smart trial lawyers are well-versed in the laws of man. Brilliancy in the courtroom demands appreciation of the laws of man and the rules of Mother Nature. Over the years, I’ve collected a few examples of Mother Nature’s lessons worthy of courtroom consideration.

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