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Lawyers Journal

Tips from the tops
Noted trial attorneys share their winning tactics and surest strategies

Whether it's a personal injury, medical malpractice or intellectual-property case, trial attorneys are faced with similar challenges: mastering the preparation and judgment needed to convince a jury at trial.

Massachusetts top trial attorneys reflected on their past and ongoing cases for this month's issue of Lawyers Journal.

Using years of experience gleaned before and during trials, they offered advice on the discovery process, direct examinations, presenting evidence and the predictability of outcomes.

The value of discovery

When Camille Sarrouf, founder of Sarrouf, Tarricone & Flemming of Boston, started practicing law in 1961 he could not file interrogatories or take depositions - procedures that are part of pretrial motions for attorneys today. Discovery predominantly took place during the trial itself.

That process now discloses facts, deeds and documents as well as written and oral statements of witnesses under oath before a trial.

"Some cases shouldn't be brought," Sarrouf said. "There has to be a sufficient claim founded on probable facts. It's senseless to take a case that costs the client $10,000 when the recovery is $7,500."

But when there is a sufficient claim, the rewards also can be measured in more than monetary ways. If trials did not take place, safety measures such as airbags in automobiles may never have come to be, according to Sarrouf.

"There are severe financial consequences. We're not stifling companies. It's about responsibility and accountability," he said.

Still, cases that have far-reaching effects on safety and well being are not automatic victories.

"The courts minimize surprise, because the tools are there to put all the cards on the table. But you don't always get [it] due to the adversarial system," Sarrouf said.

No detail too small

Sarrouf contends the course of trials can be more predictable if attorneys familiarize themselves with every fact and aspect of the case.

"One thing hasn't changed: the necessity of the trial lawyer to be successful, to master facts of the case, to be absolutely certain no one on the face of the earth knows more about the facts than you do," he said.

"You can't ever be satisfied unless you personally have touched it all. The main thing is the mastery of the facts. You can't get away from it. You have to get your hands dirty and deal with the irrelevant stuff in order to separate the wheat from the chaff."

Paul Sugarman, founder of Sugarman & Sugarman of Boston, a personal-injury law firm, said a good trial tactic is to over-prepare and under-try, but never to exaggerate damages.

Although some control can be attained through preparation and order of witnesses, Sugarman said the outcome is never certain.

"I've never had a feeling there wasn't something more I could do. That unease during the pressure of preparation always leaves you concerned something is missing and that's a good sign," Sugarman said. "If you're always worried or concerned something is left out, you know you've been focusing on the case."

Files don't tell the whole story

"You can't tell how good a case is just by looking at the file," said Leo Boyle, partner at Meehan, Boyle, Black & Fitzgerald of Boston. "The case in the courtroom is about emotion, personality and equity."

The human aspects of a case particularly arise with tragic events, such as aviation accidents, according to Sarrouf.

As survivors, next of kin, widows and children seek legal redress, an attorney must separate himself from the associated grief and anguish to understand and evaluate the facts.

Getting to the party's "essence"

Boyle, who advocates for injured people, said cases could be made to revolve around the client's favorable characteristics.

"Our job is to get to the essence of the people," he said. "Is the client seen as moral, decent, hardworking, doing the right thing?"

Boyle added that newer lawyers tend to be distracted by a client's lifestyle, habits or resume - factors that can be only on the surface and not at the core of the case.

"I have yet to meet a plaintiff I haven't found something to really like," he said. For instance, one of Boyle's clients had "every problem imaginable" but his marriage was a redeeming quality that carried his case.

"People accomplish things in different ways. The lawyer's job is to find that," Boyle said. "Let the defendant focus on the negative."

On the witness stand

Despite preparation, how a client responds in front of a jury, a judge and the opposition can be unpredictable, given the potential psychological trauma a courtroom setting can invite.

Boyle said the biggest mistake an attorney can make is to not listen to the person on the witness stand. "Sometimes, too much organization in preparation can be a hindrance to listening to what's going on, to moving the case in a different direction," he said.

Referring to a trial as an "organic process," Boyle said attorneys have to be ready and willing to "seize on opportunities that arise."

For instance, if an attorney learns of a client's previous injury during the course of a personal-injury trial, the attorney must never indicate that the evidence is new to him, according to Boyle.

"You have to be able to rebound to win," Boyle said. "With the older lawyers, you could set off a hand grenade in the courtroom and they would say, 'Of course I knew that was going to happen.' You have to diffuse the issue."

James Dilday, founder of Grayer & Dilday in Boston, agreed that an attorney cannot always predict what a client will say on the witness stand. He recalls losing a case in which he was arguing self-defense, because of his client's unexpected testimony on the stand. The client was facing a charge for stabbing his gay lover.

"I sat with the client and prepped him, we went through the testimony five times at least," Dilday said. The client was supposed to explain how he was literally backed up against a wall during an altercation.

"On the stand I asked him why he didn't run, and he said he had a bad knee," said Dilday. He attempted to rephrase the question several times to no avail.

"He never said what I wanted him to say," Dilday said. "I never heard of the bad knee before that day in court. The other attorney came up to me and said he knew what I was trying to get at."

But his client was convicted and later sentenced to two years in jail. "Had he testified the way I prepped him, he would have been found not guilty," Dilday said.

Choosing the right expert

Deciding whom to use for expert opinion can be a rather tricky and serious issue in preparing for trial.

Experts who provide objective, technical explanations on the witness stand have the potential for confusing juries, requiring attorneys to make the facts as understandable as possible.

Prior to trial, hired experts help Jack Egan, senior litigation partner at Posternak, Blankstein & Lund of Boston, understand the science and technology involved with medical devices such as pacemakers.

"Sometimes a problem has nothing to do with the actual design but more to do with what the physician did or did not do in the surgical-implant procedure," he said.

He prefers finding experts through his clients rather than using for-hire expert services.

Francis Dibble, partner at Bulkley, Richardson & Gelinas of Springfield, also prefers not to hire experts who testify professionally, despite their familiarity with the legal process.

Still, finding other people who are experts in their fields, such as professors, can be more difficult, said Dibble. Those experts are often not interested in testifying at a trial or are too busy.

"Inside" experts are found by the client and sometimes kept on file. While some attorneys view experts who are employed by the client as less credible, "the trade-off isn't as big as some people might think," he said.

An honest expert is most important to Dibble, who takes antitrust, health-care, insurance and intellectual-property cases.

"It is difficult to deal with an expert who will do and say anything to help their cause," Dibble said. "A lot of lawyers try to work against the flow by trying to limit what these witnesses say and by not asking them certain things."

One way to become aware of potential challenges is through depositions prior to trial, according to Dibble. In order for the jury to determine the veracity of an expert on the witness stand, lawyers should attempt to disprove the expert's statements, he said.

"You need to misdirect them, make them think you're going somewhere else in your examination than you are actually going, try to come at it from a side direction on some remote topic," he said.

Although not all experts exhibit integrity, the adversarial system allows all issues to be aired and represented by both sides. In this way, experts serve to enlighten, lawyers said.

Getting familiar with the jury

Another challenge during trials is trying to read what jurors are thinking before and after they are left to decipher all the presented evidence.

The lack in Massachusetts of a voir dire examination - the process in which attorneys may question prospective jurors to determine if they are qualified to sit on a jury - can be frustrating for attorneys.

"In Massachusetts, you don't get to know anything," Sarrouf said. "You can't ask, 'Are you prejudiced?'"

Still, Egan said, he has had positive experience with jurors being thoughtful during trials. "I like juries in Massachusetts," he said. "They tend to be intelligent, which is the single most important thing I'm looking for."

Egan said he overlooks age, gender and geographical location and tends to like "juries who are well-educated, intelligent enough, especially in a complicated case like toxic tort, [so] they can get a handle on the technology and learn it in a very short period of time and make a decision based on a reasonably intelligent analysis of the evidence."

Be honest

During the midst of a trial, Egan said, an attorney must be honest with his client as to how the trial is going.

"My client observes what I observe," Egan said. "If a witness tanks on us and we take a real bad beating, I can't give sugar-coated advice. It might push us over the edge toward settling. It depends on the facts and circumstances of each case."

Egan has been surprised by verdicts, but said the ability to think quickly, act on instinct and have good judgment carries the weight.

"Any trial lawyer who has tried more than a handful of cases has lost some cases he probably should have won and won some cases he probably should have lost," he said. "In the large scale, it is a very good and fair process, which works much more often that it doesn't."

And a key aspect of the judicial process is in both what the jury and a new attorney may learn from the experience.

"There is nothing better than to hear from a jury after a case that they've learned so much," Sarrouf said. "Some young lawyer may try to be someone they're not and the style may not fit them. Be true to yourself otherwise it detracts from the integrity of the presentation."

And even if a case may appear as if it will end in a settlement, lawyers should always be ready to go to trial, Boyle said.

"There is no such thing as a case that can't be won or lost, there are no sure winners or losers," he said. "Once you walk in the door it's a blank canvas and you start painting."

©2014 Massachusetts Bar Association