As published in The Chicago Daily Law Bulletin
Trying to explain what makes a good trial lawyer is tough.
You don’t have to dress like Gerry Spence.
You don’t have to browbeat a witness like Tom Cruise.
I haven’t seen much suspender-snapping like Clarence Darrow and I’ve definitely never seen Elle Woods.
But, if you don’t know the jury instructions, you are never going to get very far.
Not at trial. Not in settlements. Not in motions.
Trying to explain what makes a good trial lawyer is tough.
You don’t have to dress like Gerry Spence.
You don’t have to browbeat a witness like Tom Cruise.
I haven’t seen much suspender-snapping like Clarence Darrow and I’ve definitely never seen Elle Woods.
But, if you don’t know the jury instructions, you are never going to get very far.
Not at trial. Not in settlements. Not in motions.
I’ve written a lot about IPI 15.01 because I think it’s so important and also so unrecognized. Just recently, I arbitrated a case where a doctor wrote only that the injury could not be connected because it was not a “typical” result.
I’ve also written about IPI 1.01, 3.04, 3.08, 12.04, 12.05, 30.01, 30.21, and 125.04—and I have a few more thoughts.
Today’s column, and my next one, will cover other suggestions and thoughts about the instructions.
IPI 1.01-- We often see witnesses attacked on statements that are merely incidental or hardly relevant. It might be a helpful reminder that impeachment is to be considered only on “an issue important to the case.” Other so-called impeachment is not to be considered (unlike attacks on credibility in politics).
Another odd phenomenon is backward impeachment. Many lawyers seem to think that more impeachment of whatever kind is better. At trial, the witness says something favorable to the cross examining attorney. The attorney still tries to impeach from a deposition where the witness made the opposite statement which was favorable to himself. That’s just confusing. It would seem the best course is to stop cross examination if you get the admission at trial.
IPI 2.02 and 2.04—Evidence for a limited purpose may win the prize for most futile instruction. You just can’t un-ring a bell. Once heard, good luck telling a jury to use it only for a “limited purpose.”
I often hear lawyers say that some piece of damaging evidence will never come in at trial. However, there are many creative and legitimate ways to get evidence in front of a jury and one is through an expert, merely as a basis for his or her opinion under IRE 703. Lawyers basing case value on the certainty that bad evidence will not come in should be very careful. It may seem akin to arresting murderer Al Capone for tax evasion, but it works just as well.
IPI 3.02—In almost every case, we hear about witnesses interviewed by an attorney and, usually, as reflected in the instruction, it is not very effective in showing interest, bias or prejudice. Jurors rarely care.
However, the instruction says, “Such an interview, by itself, does not affect the credibility of the witness.” If you can show more than just an ordinary interview, like paying for fancy hotels and dinners, exorbitant fees, lengthy meetings or pushy emails, you may have something. Usually it’s a waste of time.
IPI 4.01, 4.02, and 4.06—These instructions are no longer given but that doesn’t mean you can’t make arguments about flight from an accident, witness need not be believed, or number of witnesses. It simply means the judge won’t say it.
IPI 5.01—The dreaded missing witness instruction seems much misunderstood. That may have something to do with the comments which make it appear the judge determines if a negative inference is to be taken from failure to produce evidence:
“Before giving this instruction, the trial court must first determine that in all likelihood a party would have produced the witness/document under the existing facts and circumstances except for the fact that the testimony/contents would be unfavorable [citations omitted].”
Actually, the general rule is the judge is to give an instruction if there is some evidence to support it. The proponent only needs some evidence to get the instruction. Once the instruction is given, it is the jury that decides if the negative presumption applies. The trial court makes no determination (usually) as to whether the presumption does or does not apply.
To begin their analysis, the jury “may” (not must) infer that the missing evidence would be adverse only after they consider evidence that surmounts four elements. Those are, (1) under the control and producible with reasonable diligence; (2) not equally available; (3) would’ve been produced by a reasonable person if favorable; and (4) no reasonable excuse to not produce.
Element 2 is a big can of worms. The issue comes up all the time with discarded experts, treating physicians, corporate employees and family members or friends. However, using subpoenas, other than out-of-state witnesses, most witnesses are relatively “equally” available. Some remote or difficult witnesses could be videotaped. How unequal does it have to be? That’s for the jury to decide based on evidence adduced at trial.
Element 3 is another problem: how many extended witnesses would reasonably have been produced? It’s a fair defense to say the witness was not produced because the witness had nothing further to add. Obviously, if the judge bars a witness as duplicative, the instruction should not be given.
Finally, since no party and no witnesses are named in the instruction, the jury often does not even know what the lawyers are talking about. They may not know to which party the instruction refers. This appears to be another lawyer-magnified issue. Juries probably don’t spend a lot of time trying to interpret and apply this instruction.
That’s not to say that juries don’t speculate about why witnesses were not called or evidence not produced.
They surely do. Frequently. Lawyers try to remind juries to make their decisions based solely on evidence produced. Those arguments will go on forever. It just means this instruction may not be the case-dispositive monster so many attorneys believe it to be.
I’ve also written about IPI 1.01, 3.04, 3.08, 12.04, 12.05, 30.01, 30.21, and 125.04—and I have a few more thoughts.
Today’s column, and my next one, will cover other suggestions and thoughts about the instructions.
IPI 1.01-- We often see witnesses attacked on statements that are merely incidental or hardly relevant. It might be a helpful reminder that impeachment is to be considered only on “an issue important to the case.” Other so-called impeachment is not to be considered (unlike attacks on credibility in politics).
Another odd phenomenon is backward impeachment. Many lawyers seem to think that more impeachment of whatever kind is better. At trial, the witness says something favorable to the cross examining attorney. The attorney still tries to impeach from a deposition where the witness made the opposite statement which was favorable to himself. That’s just confusing. It would seem the best course is to stop cross examination if you get the admission at trial.
IPI 2.02 and 2.04—Evidence for a limited purpose may win the prize for most futile instruction. You just can’t un-ring a bell. Once heard, good luck telling a jury to use it only for a “limited purpose.”
I often hear lawyers say that some piece of damaging evidence will never come in at trial. However, there are many creative and legitimate ways to get evidence in front of a jury and one is through an expert, merely as a basis for his or her opinion under IRE 703. Lawyers basing case value on the certainty that bad evidence will not come in should be very careful. It may seem akin to arresting murderer Al Capone for tax evasion, but it works just as well.
IPI 3.02—In almost every case, we hear about witnesses interviewed by an attorney and, usually, as reflected in the instruction, it is not very effective in showing interest, bias or prejudice. Jurors rarely care.
However, the instruction says, “Such an interview, by itself, does not affect the credibility of the witness.” If you can show more than just an ordinary interview, like paying for fancy hotels and dinners, exorbitant fees, lengthy meetings or pushy emails, you may have something. Usually it’s a waste of time.
IPI 4.01, 4.02, and 4.06—These instructions are no longer given but that doesn’t mean you can’t make arguments about flight from an accident, witness need not be believed, or number of witnesses. It simply means the judge won’t say it.
IPI 5.01—The dreaded missing witness instruction seems much misunderstood. That may have something to do with the comments which make it appear the judge determines if a negative inference is to be taken from failure to produce evidence:
“Before giving this instruction, the trial court must first determine that in all likelihood a party would have produced the witness/document under the existing facts and circumstances except for the fact that the testimony/contents would be unfavorable [citations omitted].”
Actually, the general rule is the judge is to give an instruction if there is some evidence to support it. The proponent only needs some evidence to get the instruction. Once the instruction is given, it is the jury that decides if the negative presumption applies. The trial court makes no determination (usually) as to whether the presumption does or does not apply.
To begin their analysis, the jury “may” (not must) infer that the missing evidence would be adverse only after they consider evidence that surmounts four elements. Those are, (1) under the control and producible with reasonable diligence; (2) not equally available; (3) would’ve been produced by a reasonable person if favorable; and (4) no reasonable excuse to not produce.
Element 2 is a big can of worms. The issue comes up all the time with discarded experts, treating physicians, corporate employees and family members or friends. However, using subpoenas, other than out-of-state witnesses, most witnesses are relatively “equally” available. Some remote or difficult witnesses could be videotaped. How unequal does it have to be? That’s for the jury to decide based on evidence adduced at trial.
Element 3 is another problem: how many extended witnesses would reasonably have been produced? It’s a fair defense to say the witness was not produced because the witness had nothing further to add. Obviously, if the judge bars a witness as duplicative, the instruction should not be given.
Finally, since no party and no witnesses are named in the instruction, the jury often does not even know what the lawyers are talking about. They may not know to which party the instruction refers. This appears to be another lawyer-magnified issue. Juries probably don’t spend a lot of time trying to interpret and apply this instruction.
That’s not to say that juries don’t speculate about why witnesses were not called or evidence not produced.
They surely do. Frequently. Lawyers try to remind juries to make their decisions based solely on evidence produced. Those arguments will go on forever. It just means this instruction may not be the case-dispositive monster so many attorneys believe it to be.