Texas Judge's Advice to Lawyers on Ten Best Tips to Win Cases . . . .
Judge's Top 10 Tips for Winning Cases
Angela Morris, Texas Lawyer
June 26, 2015
Judge Roy Ferguson
Here's the secret for lawyers to win all of their cases: Don't take losers.
That's the first nugget of advice from a state district judge who shared a top 10 list for lawyers to win their cases during the State Bar of Texas Annual Meeting on June 18. "It sounds like a joke, but it is actually true," said Judge Roy Ferguson of Alpine. "What you want is a client with realistic and reasonable expectations. What you don't want is a client who comes to you and says, 'I want the moon and you can't talk me out of it.'"
Before taking the bench, he was a small-town general practice solo, the proverbial "jack of all trades-master of none," he said. Ferguson now sits in the 394th District Court, a general jurisdiction bench that covers five counties. He said that he hears all types of cases. "It has given me a new perspective on what works and what doesn't now that I see it from the other side," he said.
Here is his advice for lawyers.
1. Carefully choose clients.
Ferguson said that it's a "red flag" when a client states that his case isn't about money, but rather principle.
"I have issued a lot of verdicts, and I have never put the principle in there," Ferguson said.
2. Know your audience-judge or jury.
Ferguson said that only 1 percent of criminal cases went before a jury in 2014. A half of 1 percent of civil cases saw jury trials. But many lawyers handle bench trials each year, he added.
"That's our meat and potatoes as litigators, and you have to know the difference," said Ferguson.
A lawyer shouldn't present cases to a judge the same way that she presents cases to a jury, he noted.
For a bench trial, it's important for lawyers to know a judge's preferences regarding the time allowed for arguments, digital versus paper evidence and more.
"Don't give us the dog-and-pony show," said Ferguson. "Juries might love that; it just irritates us. What we want is what we need to make a just decision. That is what we are after."
3. Don't waste a judge's time.
Ferguson warned lawyers not to waste judges' time with "abusive objections," for example, claiming that all of an opposing counsel's questions are leading. If one lawyer makes such objections and wastes all of another lawyer's argument time, Ferguson said, "you will pay." It might not happen in that hearing, but Ferguson said the next time the lawyer appeared in his court, he would warn him not to waste opposing counsel's time again, or else the time would come out of the offending lawyer's allotment.
In opening and closing statements, judges don't want to hear jury arguments, added Ferguson. They want a fast, focused statement.
"Focus our attention: Tell us what to listen for and get on with the evidence we need to make a decision," he said, adding that one of the best closing arguments he heard in a bench trial was: "Unless the court has any questions, I will be seated."
He said that he's had cases in which he had made up his mind to rule in one party's favor, but then that party's lawyer kept talking and changed his mind.
"Don't talk yourself out of a win," Ferguson said.
4. Organize evidence and present it simply.
Ferguson recalled that he once saw a lawyer win a case by taking a notebook, flipping to a blank page and writing down "$100,000." He told the jury to go into the jury room and write the figure on the blank line. Within 10 minutes, they were back--$100,000 was written on the line.
Lawyers should present evidence to the jury in a simple way so that they can keep up, he said. Otherwise, they will tune out and find something else they can keep up with-like a bird out the window or opposing counsel's cowboy boots, said Ferguson.
A lawyer must focus each juror's attention, not scatter it, he said. Five simple slides work better than a complicated one. The old adage that a picture is worth 1,000 words only works if the picture is not of 1,000 words, he joked. It's effective for an attorney to tell the jury that he's about to show them a slide, and ask if they will read it in their heads as he reads it aloud.
It's ineffective for a lawyer to talk about one thing, while showing a slide with a different message. Ferguson recalled that this happened during jury selection in one case, and a prospective juror raised her hand to ask the attorney whether he wanted them to listen to him or read the words on the screen.
"'We can't do both,'" Ferguson recalled that the prospective juror said. "I thought, yes!"
5. Tell your story.
Ferguson said that he commonly sees lawyers making a mistake in trials by trying to make the evidence and the exhibits tell the story of the case. For example, he tried a high-profile murder case in which the prosecutor took seven days and presented hundreds of exhibits and photos and 20 witnesses. In the end, the defendant took the stand and took 15 minutes to tell a chronological story about what happened that night.
"They were locked onto that defendant with a laser beam," said Ferguson. The story contradicted evidence and strained credulity, Ferguson said. But for the jurors, it was the only story that they had, and it raised a reasonable doubt.
They acquitted the defendant.
6. Interview witnesses before trial.
Ferguson recalled that in one criminal case, a prosecutor was interviewing an expert witness who was a neurosurgeon and was testifying that a child's brain injury was consistent with a blow to the head by a person with the same physical characteristics as the criminal defendant. The prosecutor then asked whether the injury could have been caused by a blow to the child's head by the defendant on a specific date.
"'Absolutely not,'" Ferguson recalled about the expert's answer. The prosecutor froze and asked what he meant. The expert said the blood was coagulated in the child's brain, and the injury had to have happened two to four weeks before the date in question.
"The case was over, folks," Ferguson said. "He never interviewed his star witness. I see that in almost every case."
7. Prepare your witnesses and turn her loose.
When a lawyer has not interviewed a witness before trial, he might try to cover by asking leading questions, said Ferguson. It does not create compelling testimony, he said. In one case in which this happened, Ferguson recalled that opposing counsel addressed the jury and said that he would read back to the jury a transcript of testimony of the other side's star witness: Yes; Yes; No; Yes; I guess that you could say it that way.
The jury laughed.
It's much better to prepare witnesses thoroughly and then "turn them loose" on the stand by asking short, open-ended questions like "What happened?" or "How did that make you feel?" or "What happened with your business when this was all over?" said Ferguson.
8. Never lead your own expert.
The reason a lawyer has chosen her expert witness is because the person is an expert in something. Although lawyers always want to appear as the smartest person in the room, said Ferguson, the expert is smarter than them in something. Lawyers shouldn't lead them through questioning, he said.
"Let them be smart. You be the straight man," said Ferguson.
9. Listen to evidence and follow it.
"Listen to the evidence as it comes in. This is a forgotten skill. If you script your case and try to stick with it, it will not go well," said Ferguson.
He said that attorneys must listen to "throwaway statements" from witnesses. In one criminal case, a witness made an offhand comment that blood on the floor was not coagulated when she saw it. The prosecutor did not address the statement. But the jury remembered, and the defense lawyer highlighted the statement in closing, arguing that his client could not have committed the crime eight hours before the time that the witness had seen the blood because by that time, it would have coagulated.
Rather than ignoring such "throwaway statements" and hoping that they go away, Ferguson said that lawyers must fix it.
10. Use the rebuttal case.
Lawyers should call rebuttal witnesses more often to fix problems with their cases that come up in trial, said Ferguson. People pretend that the rebuttal case does not exist.
For example, Ferguson heard a case that involved allegations of domestic violence. One side argued that the woman could not have been abused because she never went to the police, and she only complained after her partner took away her credit card. Ferguson said that the woman's lawyer could have called up an expert witness in rebuttal to explain how battered women's syndrome could have stopped the woman from leaving or going to police.
"You can call a rebuttal witness that no one expects and get away with it because the rules allow it," Ferguson said. "Use rebuttal, and you will win the cases."
Read more: http://www.texaslawyer.com/id=1202729990049/Judges-Top-10-Tips-for-Winning-Cases#ixzz3eKfHVJCe
Angela Morris, Texas Lawyer
June 26, 2015
Judge Roy Ferguson
Here's the secret for lawyers to win all of their cases: Don't take losers.
That's the first nugget of advice from a state district judge who shared a top 10 list for lawyers to win their cases during the State Bar of Texas Annual Meeting on June 18. "It sounds like a joke, but it is actually true," said Judge Roy Ferguson of Alpine. "What you want is a client with realistic and reasonable expectations. What you don't want is a client who comes to you and says, 'I want the moon and you can't talk me out of it.'"
Before taking the bench, he was a small-town general practice solo, the proverbial "jack of all trades-master of none," he said. Ferguson now sits in the 394th District Court, a general jurisdiction bench that covers five counties. He said that he hears all types of cases. "It has given me a new perspective on what works and what doesn't now that I see it from the other side," he said.
Here is his advice for lawyers.
1. Carefully choose clients.
Ferguson said that it's a "red flag" when a client states that his case isn't about money, but rather principle.
"I have issued a lot of verdicts, and I have never put the principle in there," Ferguson said.
2. Know your audience-judge or jury.
Ferguson said that only 1 percent of criminal cases went before a jury in 2014. A half of 1 percent of civil cases saw jury trials. But many lawyers handle bench trials each year, he added.
"That's our meat and potatoes as litigators, and you have to know the difference," said Ferguson.
A lawyer shouldn't present cases to a judge the same way that she presents cases to a jury, he noted.
For a bench trial, it's important for lawyers to know a judge's preferences regarding the time allowed for arguments, digital versus paper evidence and more.
"Don't give us the dog-and-pony show," said Ferguson. "Juries might love that; it just irritates us. What we want is what we need to make a just decision. That is what we are after."
3. Don't waste a judge's time.
Ferguson warned lawyers not to waste judges' time with "abusive objections," for example, claiming that all of an opposing counsel's questions are leading. If one lawyer makes such objections and wastes all of another lawyer's argument time, Ferguson said, "you will pay." It might not happen in that hearing, but Ferguson said the next time the lawyer appeared in his court, he would warn him not to waste opposing counsel's time again, or else the time would come out of the offending lawyer's allotment.
In opening and closing statements, judges don't want to hear jury arguments, added Ferguson. They want a fast, focused statement.
"Focus our attention: Tell us what to listen for and get on with the evidence we need to make a decision," he said, adding that one of the best closing arguments he heard in a bench trial was: "Unless the court has any questions, I will be seated."
He said that he's had cases in which he had made up his mind to rule in one party's favor, but then that party's lawyer kept talking and changed his mind.
"Don't talk yourself out of a win," Ferguson said.
4. Organize evidence and present it simply.
Ferguson recalled that he once saw a lawyer win a case by taking a notebook, flipping to a blank page and writing down "$100,000." He told the jury to go into the jury room and write the figure on the blank line. Within 10 minutes, they were back--$100,000 was written on the line.
Lawyers should present evidence to the jury in a simple way so that they can keep up, he said. Otherwise, they will tune out and find something else they can keep up with-like a bird out the window or opposing counsel's cowboy boots, said Ferguson.
A lawyer must focus each juror's attention, not scatter it, he said. Five simple slides work better than a complicated one. The old adage that a picture is worth 1,000 words only works if the picture is not of 1,000 words, he joked. It's effective for an attorney to tell the jury that he's about to show them a slide, and ask if they will read it in their heads as he reads it aloud.
It's ineffective for a lawyer to talk about one thing, while showing a slide with a different message. Ferguson recalled that this happened during jury selection in one case, and a prospective juror raised her hand to ask the attorney whether he wanted them to listen to him or read the words on the screen.
"'We can't do both,'" Ferguson recalled that the prospective juror said. "I thought, yes!"
5. Tell your story.
Ferguson said that he commonly sees lawyers making a mistake in trials by trying to make the evidence and the exhibits tell the story of the case. For example, he tried a high-profile murder case in which the prosecutor took seven days and presented hundreds of exhibits and photos and 20 witnesses. In the end, the defendant took the stand and took 15 minutes to tell a chronological story about what happened that night.
"They were locked onto that defendant with a laser beam," said Ferguson. The story contradicted evidence and strained credulity, Ferguson said. But for the jurors, it was the only story that they had, and it raised a reasonable doubt.
They acquitted the defendant.
6. Interview witnesses before trial.
Ferguson recalled that in one criminal case, a prosecutor was interviewing an expert witness who was a neurosurgeon and was testifying that a child's brain injury was consistent with a blow to the head by a person with the same physical characteristics as the criminal defendant. The prosecutor then asked whether the injury could have been caused by a blow to the child's head by the defendant on a specific date.
"'Absolutely not,'" Ferguson recalled about the expert's answer. The prosecutor froze and asked what he meant. The expert said the blood was coagulated in the child's brain, and the injury had to have happened two to four weeks before the date in question.
"The case was over, folks," Ferguson said. "He never interviewed his star witness. I see that in almost every case."
7. Prepare your witnesses and turn her loose.
When a lawyer has not interviewed a witness before trial, he might try to cover by asking leading questions, said Ferguson. It does not create compelling testimony, he said. In one case in which this happened, Ferguson recalled that opposing counsel addressed the jury and said that he would read back to the jury a transcript of testimony of the other side's star witness: Yes; Yes; No; Yes; I guess that you could say it that way.
The jury laughed.
It's much better to prepare witnesses thoroughly and then "turn them loose" on the stand by asking short, open-ended questions like "What happened?" or "How did that make you feel?" or "What happened with your business when this was all over?" said Ferguson.
8. Never lead your own expert.
The reason a lawyer has chosen her expert witness is because the person is an expert in something. Although lawyers always want to appear as the smartest person in the room, said Ferguson, the expert is smarter than them in something. Lawyers shouldn't lead them through questioning, he said.
"Let them be smart. You be the straight man," said Ferguson.
9. Listen to evidence and follow it.
"Listen to the evidence as it comes in. This is a forgotten skill. If you script your case and try to stick with it, it will not go well," said Ferguson.
He said that attorneys must listen to "throwaway statements" from witnesses. In one criminal case, a witness made an offhand comment that blood on the floor was not coagulated when she saw it. The prosecutor did not address the statement. But the jury remembered, and the defense lawyer highlighted the statement in closing, arguing that his client could not have committed the crime eight hours before the time that the witness had seen the blood because by that time, it would have coagulated.
Rather than ignoring such "throwaway statements" and hoping that they go away, Ferguson said that lawyers must fix it.
10. Use the rebuttal case.
Lawyers should call rebuttal witnesses more often to fix problems with their cases that come up in trial, said Ferguson. People pretend that the rebuttal case does not exist.
For example, Ferguson heard a case that involved allegations of domestic violence. One side argued that the woman could not have been abused because she never went to the police, and she only complained after her partner took away her credit card. Ferguson said that the woman's lawyer could have called up an expert witness in rebuttal to explain how battered women's syndrome could have stopped the woman from leaving or going to police.
"You can call a rebuttal witness that no one expects and get away with it because the rules allow it," Ferguson said. "Use rebuttal, and you will win the cases."
Read more: http://www.texaslawyer.com/id=1202729990049/Judges-Top-10-Tips-for-Winning-Cases#ixzz3eKfHVJCe