Quote of the Day - What is the answer? In that case, what is the question? - Gertrude Stein
How To Try A Case: University of Iowa College Of Law Trial Advocacy Intercession, Day 3
Some 32 law students, graduate teaching assistants and two adjunct professors invaded Sixth District Court Judge Russell's wonderfully large and properly ostentatious courtroom to watch voir dire. It was the first time in some 20 years I had been in an Iowa courtroom, and it was nice to be able to make an official appearance in front of the bar rather than behind it.
We spent the better part of the morning watching two lawyers battling it out over a car accident. While the case itself was not necessarily an intellectually stimulating issue to dissect, we weren't there for the accident.
The analysis instead looked into the crystal ball of how the jurors might decide the case based on their prejudices and biases. It was the attorneys' job to discover those hidden emotions and then determine who to strike for cause and who to "kick" off the jury via peremptory strikes. In Iowa, only eight jurors sit for civil cases, and out of a pool of sixteen possible jurors on the panel, each side must use their peremptories to reduce the venire panel to the requisite number of ideal jurors.
Luckily prior to the start of the voir dire, Judge Russell was able to spare our students a few moments of his time in an adjoining courtroom to explain the examination process from his perspective and answer a few questions. The judge explained that only lawyers were permitted to pass the bar that divided the gallery from the counsel tables and bench once they 'passed the bar (exam).'
Our actual car accident trial lawyers did a fine job questioning the jury panel, first introducing themselves and giving up their requisite personal details to entice the nervous jurors to likewise exchange their personal details. The lawyers started slow, drawing out typical background from the jurors about their jobs, family members, relationships to the parties and lawyers and the like.
Then it came time to identify the jurors' prior car accidents, run-ins with the law and victims of various criminal activities. The lawyers unfortunately got the juror questionnaires just a few minutes before the trial - not enough time to fully review them. They had to spend more time drawing out the answers already on the forms. Each lawyer took about an hour to conduct the voir dire. Neither asserted objections to the others' examination, but a couple of times each came close to 'trying their case' to the jury before the trial actually started.
Interestingly each lawyer used the jurors favorable to their side to point out prejudices to the other members of the panel. For example, the defense lawyer identified one juror likely to be struck by the plaintiff's lawyer, and used that juror to argue against evidence from chiropractors because her father, a doctor, didn't believe in chiropractors. The plaintiff had sought extensive treatment from chiropractors, and it made up a large portion of his damages.
The defense lawyer likewise found a sympathetic juror who was in the midst of a nasty divorce, didn't like lawyers and argued for tort reform. Ultimately struck by the plaintiff's lawyer, the juror likewise served her purpose, drawn out by the defense lawyer to complain about too many lawsuits. The plaintiff, too, used the same tactic after identifying jurors who had been in car accidents and showed the other jurors why just compensation was necessary to make the injured victim whole. Overall, an interesting study in human dynamics, which is a large portion of the trial after the facts and witnesses. There's no better teacher than experience, and the students got a full dose, with Monday-morning quarterbacking galore after we got back in class. 20/20 hindsight makes for a great jury panel.
An afternoon of Direct and Cross
From our two fictional case files, State v. Jackson and Dixon v. Providential Life, we started direct and cross-examination of Mary Dixon and Robert Wilson. In the latter case, we put Marie Williams on the stand followed by the Defendant himself, Arthur Jackson. Mr. Jackson, of course, gave a knowing and intelligent waiver of his Fifth Amendment right not to testify.
As any good criminal lawyer knows, however, criminal defendants are guilty until proven innocent and despite Constitutional protections to the contrary, they must actually prove their innocence first. If you have any doubts, then just corner your favorite criminal attorney at your next afternoon or evening cocktail party and ask. Let me know if she disagrees.
Before I get too far, however, let me give you some basic background on the two cases. If you're looking for more details, may I suggest a NITA class or perhaps Trial Advocacy at the good ol' U of I? These are fictional cases, where both the names and the facts have been changed to protect the innocent. Or something like that.
In the civil breach-of-contract case of Dixon v. Providential Life, the question is whether pillar of the community Judge John Dixon committed suicide. He had a 24-year marriage to his lovely wife Mary, and had recently taken in Mary's younger sister, Anna Martin, after her nasty divorce. Background questions abound whether Judge Dixon and his sister-in-law were, shall we say, engaged in something other than a family relationship.
Judge Dixon was well-respected and liked in the community, an avid hunter and a justice of the peace who collected fines he levied as part of his job. Unfortunately, he was under investigation by the State Attorney General's office for failing to remit some $90K of these fines, and had recently seen a high-risk (read: desperate) $100K investment go bad. The evidence developed on both of these issues is somewhat (necessarily) sketchy.
His favorite - long - shotgun had accidentally discharged several times while hunting, and unfortunately was found dead by his wife with the shotgun by his side, a nearby screwdriver laying on the floor and a gun-cleaning kit positioned on the chair. The office had been locked from the inside and the Judge's eye and left side of his head had been blown away, blood spatter all over the door.
The good judge had purchased a double-indemnity, $250,000 policy just before his untimely death, which increased to $500,000 in the event of an accident. It also included a suicide provision that invalidated coverage if suicide was the cause of his death within two years after purchase. The defense argues Judge Dixon led a double life, plaintiffs claim the Sheriff's determination and Coroner's inquest, which both concluded his death was accidental, control. Just to make things interesting, both the Sheriff and the Coroner were life-long friends of the Judge.
Mary, his wife, had made a claim for the full $500K, but big bad insurance company Providential Life denied the claim, arguing suicide was the cause of death. Thus, our lawsuit for breach of contract. As Sherlock Holmes would say, "Watson, the case is afoot."
To keep things interesting, the other case explores the criminal side of law. State v. Jackson involves allegations of arson against Defendant Arthur Jackson. In short, Jackson's business burns down under suspicious circumstances. Another game is afoot.
Jackson, too, is married, but here to an independently wealthy woman, and they have two lovely children. For the last 15 years, Jackson has owned the highly successful manufacturing business known as Flinders Aluminum. The company manufactures aluminum siding.
Apparently, the market for aluminum siding has fallen through the floor and Jackson has a big loan due and other than his nip-tuck wife's checkbook, no means of paying the loan when it comes due. Since we need some sexual intrigue in this case too, Jackson has a long affair with his bookkeeper, Marie Williams, but breaks it off when he hires a new assistant, Sonia Peterson.
Since we perhaps obviously need more sexual intrigue, Peterson and Jackson take their relationship to the next level, too, much to the chagrin of Williams - and Jackson's wife. In other words, both have motive to betray him when they're questioned by the police about Jackson's involvement in the arson. Predictably, Jackson's wife stands by her man. On the other hand, completely jilted Marie Williams sells him down the river.
Peterson, the new assistant, becomes involved with Flinders at a time when Jackson is most desperate. She suggests hiring George Avery, who she had worked with in the past. Suspicious circumstances, however, seem to follow Avery at his two prior places of employment. They both burned down, too, also with the use of hydrochloric acid, allegedly the favorite accelerant of those known as a "torch."
In the Flinders Aluminum business, HCL also shows up, but this time George Avery, who is working late on new "automobile designs" gets killed in the fire. Jackson had previously told his bank that he hired Avery to design a new line and move the company into the black. The bank was excited and wanted to see financials and the designs, even contemplating a joint venture.
Instead, Jackson finds himself charged with arson. Not apparent in the case file, but certainly a possibility, Jackson could also get charged with felony murder. Oh, I forgot to mention one little thing. Right before the fire, Jackson increased the amount of insurance coverage on his building. You know, the one that burned down? Coincidentally more than enough to cover both the building and the loan. How convenient.
Since you've been paying attention this long, you now have seen most, if not all of the issues we've identified. There's more than enough issues to keep a full class going for an entire semester - and that's saying a lot for a law school professor, who's never at a loss to develop an issue.
Now that you've got the lay of the land, I imagine you can probably imagine the range of direct and cross-examination questions to ask. My students certainly have done a stellar job. Your questions are welcome in the comment section below.
Not to leave you hanging about the how and why of direct and cross-examination, let me breifly explain. Direct examination requires open-ended questions, and does not allow leading questions, which summarize the answer and allow the lawyer to testify. Chronological sequence is generally considered best, because we all absorb information in that fashion.
Cross-examination, on the other hand, is an art form. Lawyers do the testifying through leading questions. "Isn't it true that the light was red?" and the like. But there's no one better than Irving Younger, lawyer and law professor extraordinairre, to give us his 10 Commandments of Cross-examination:
- Be brief.
- Short questions, plain words.
- Always ask leading questions.
- Don't ask a question, the answer to which you do not know in advance.
- Listen to the witness' answers.
- Don't quarrel with the witness.
- Don't allow the witness to repeat his direct testimony.
- Don't permit the witness to explain his answers.
- Don't ask the "one question too many."
- Save the ultimate point of your cross for summation.