Didn’t that only happen in the “olden days” of trial?
The modern day rules of procedure and evidence supposedly did away with “surprise“ in trial with requirements to disclose and identify witnesses and documents and answer never ending interrogatories and demands to produce.
While surprise in the “olden days” usually was a surprise witness or document and while it was demeaned by the more genteel (or perhaps inexperienced) of lawyers as an unsportsmanlike tactic undermining “justice”, it really wasn’t. The party bringing the surprise just worked harder and found the witness or the document. I grant that such a view reflective of a bent for survival of the fittest is probably not politically correct and didn’t sway the intellectual powers that be who created modern day discovery with the maddeningly and economically coercive discovery practice in existence today and which has spawned a cadre and class of discovery litigators distinct from trial lawyers. The end result in today’s politically correct “discovery” practice is those who work harder, find more witnesses and documents educate opposing counsel free of charge and work. However, surprise still lurks in trials and is there for those willing to work harder than their opponent.
SURPRISE IN TRIALS TODAY
The surprise in trials today is largely in the characterization of witnesses, facts and evidence or in the theme, name and title we give to incidents and trials ala Johnnie Cochran’s “if the glove doesn’t fit” or in taking the strength of the opponent’s case and turning it into a weakness. For example, in a products case I was defending the focus of plaintiff’s counsel was on the lack of guarding for an opening (on a steel roll trimming machine) large enough that her client could put his hand into to try and clear a jam up of scrap. At the plaintiff’s deposition, he accepted my description of the opening as dark black. At trial, I characterized the opening as essentially a dark black hole in a tree in a forest: “Who would ever stick their hand into a dark black hole in a tree in a forest?” In essence taking plaintiff’s strongest point, lack of guarding, and turning it into a strength for the defense.
Good trial surprises have several characteristics. First, they are a surprise for your opponent leaving them stumbling and bumbling trying to come up with a rejoinder while the jury and you watch in delight. Being caught “flat footed” is one of the most uncomfortable of emotions for a lawyer in trial. (Note the wording and difference of “a lawyer in trial” and “a trial lawyer”. They may be the same words but they are not synonymous.) The benefit here is both the enhancement to your overall credibility and a diminution of the credibility of the opposing counsel. To make this happen you must make sure you haven’t tipped your hand in a deposition or in pre-trial hearings. The words, the phrase, the “spin” must be new or else a good opponent will be ready having heard it before in the depositions or motions hearings.
Second, the “surprise” must be accurate. For example, in those states where it isn’t prohibited, if you are going to characterize an expert as a “hired gun” you need a solid foundation of examples of molding opinions for who hired them as opposed to the facts.
Third, the surprise must be easily perceived and resonate with jurors. If it is lengthy or requires explanation for jurors to “get it” it will not work.
Fourth, to recognize opportunities for surprise you must have peripheral vision and an ability to “see around corners”. Here is an example from a recent pediatric quad amputee sepsis case. The family had been on vacation and brought their 4 year old son to an emergency room because of vague symptoms of fever, high heart rate and abdominal discomfort. He was treated and observed for over 3 hours with resolution of the fever and discomfort and had only an elevated heart rate on discharge. The parents made their flight, flew home, passed numerous hospital emergency rooms on their way from the airport to their home and only later in the nighttime did they take the child to an ER where for the first time symptoms of septic shock had appeared. Plaintiff’s counsel was very offended by the deposition questioning of the parents as to all the hospitals they passed after landing at their home airport and not having taken the child to any for examination. The “surprise” was that such questioning would not be used to claim neglect of the parents but to corroborate that even long after the discharge by my ER doctor the child still didn’t have symptoms visible that caring and concerned parents would have noticed and thus corroborating that the particular rare infection that triggered the septic response was as described in the medical literature as a “lightning strike” and one that “hides in plain sight” and did not exist when my doctor saw the child much earlier in the day.
HOW DO YOU MAKE IT HAPPEN?
Just like in “the olden days” you must work harder than your opponent by thinking harder. One thing that helps me is the focus group jury simulation testing we do. Epiphanies occur to me as I hear the words of my case being read to the mock jurors by a voice not my own and as I am watching the body language of the mock jurors as they are hearing the words, phrases, facts and evidence. If I was saying the words myself as opposed to listening to a neutral reader my brain wouldn’t have been able to process them as an outsider. Hearing and seeing your case as an “outsider” triggers new thoughts, reactions and understanding that allows you to come up with new thoughts and characterizations that haven’t already been used in the depositions, discovery and hearings that your opponent has been also engaged in.
But, don’t get me wrong. These characterizations don’t always have to be new. Don’t abandon the good characterizations, words, and phrases you’ve developed in the discovery. Just hone your peripheral vision and look for new ways of characterizing that your opponent has heard yet to put “surprise” back into your next trial.
J. Ric Gass is a shareholder of the firm Gass Weber Mullins LLC, in Milwaukee. Ric was the 2012 President of the Litigation Counsel of America and is the Lifetime Dean of the Trial Law Institute. He is a Fellow of both the American College of Trial Lawyers and the International Society of Barristers and a Diplomat in the ABOTA. He is a Past President of both the Federation of Defense & Corporate Counsel and Lawyers for Civil Justice. He has been described in Chambers USA as "A personality the jury wants to listen to", and has also been described as "one of the few lawyers who can beat you with his facts or can trade facts with you and beat you with your facts."