Wormwood, Kenneth M.

English

University of Denver

Denver Law Review Volume 31 Issue 11 Article 2 June 2021 The Role of the Trial Attorney Kenneth M. Wormwood Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Kenneth M. Wormwood, The Role of the Trial Attorney, 31 Dicta 417 (1954). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. November, 1954THE ROLE OF THE TRIAL ATTORNEY*KENNETH M. WORMWOOD of the Denver BarPreparation for a trial is certainly different these days thanit was in the days when I started in the practice of the law. Inthose days we had the Code of Civil Procedure and our professorswould tell us all about code pleading and everything that we shouldset up in our complaints. We were scared to death that if we didn'tsay the right thing we would be out of court before we ever gotto the jury; quite often we were.Now we have the Rules of Civil Procedure, which are stream-lined and are certainly very different from the old code pleadingrules. I am a great advocate of the new rules, although I will haveto admit that there are some situations in which the new rules area little too simple. Practically all that must be done in this dayand age is for the plaintiff to draw up a complaint, "John Jones vs.Jim Smith-comes now the plaintiff who says the defendant dfdit." Whereupon some defense attorney files an answer and saysin reply to the plaintiff, "The defendant says he didn't do it." Andyou're at issue.Preparation for trial is a complex matter. Difficulties startlong before you walk into the courtroom to select a jury. Prepara-tion is essential. One must know what his case is about, and cer-tainly should know what his opponent's case is about, before get-ting into the courtroom. Our new Rules of Procedure are veryhelpful in this matter and in many ways in preparing a case fortrial. Just as the football coach scouts the opposing team, so thetrial attorney will scout his opposition to find out just what kindof play he is going to call at the time of the trial.This article contains no trade secrets but does contain factsthat are already known, or should be known by trial lawyers.I don't think you can over emphasize the importance of takingfull advantage of the discovery rules under our Rules of CivilProcedure. Its one way to find out what the opposition knows orwhat they are going to claim. Many illuminating things may bediscovered from the opposition through depositions. Our SupremeCourt has ruled that discovery depositions are luxuries, so onecan't charge them up as costs.DEPOSITIONSDepositions may be luxuries, but that's a luxury tax that aclient should be most happy to pay if he wants the case adequatelyand properly tried. There are many attorneys--maybe I shouldn'tsay "many," but there are some attorneys who think, "Well, let'sdon't go to the expense of a deposition. Let's don't call in this plain-tiff,"-or defendant, whichever side you are on-"to question himon what he claims are the facts regarding this accident or the facts* From a speech delivered at Colorado University Law Day, April 24, 1954.DICTANovember, 1954on whatever the controversy might be. Let's serve a bunch ofinterrogatories." So they figure out maybe twenty-five, thirty,forty or fifty interrogatories and serve these upon the opposingattorney. I think that's a big mistake, because, when one does that,here is what happens. The attorney says, "John, come on in, we'vegot some questions here that we've got to answer." They sit downand they really go over those questions-and they figure out justwhat the answer should be. Now understand, they are honest aboutit, but there is more than one way to answer a question and still behonest. When those answers come back-it will be surprisingindeed if they are of any use to the attorney who served them.An attorney for one of our public utility companies in Denver,some time ago, had a practice of attaching to his answer one in-terrogatory to the plaintiff, in which he said, "Please state all ofthe facts and circumstances surrounding the accident." The plain-tiff's attorney invariably had a heyday with that kind of questionand in short, nothing of importance was learned. After doing thatfor awhile he told me that he thought he had made a mistake andhad stopped the practice and was taking depositions.Another valuable thing as to the deposition: it affords a chanceto see that witness, under oath, under cross-examination, as itwere, and to see how that witness acts. It gives one some idea howthat witness is going to act on the witness stand. I have found thatmore than one case has been settled on the attorney's recommenda-tion after the attorney has taken the plaintiff's deposition. I havetold a client, "That witness is going to crucify us when he (or she)gets up before the jury. That witness is so convincing that the juryis going to believe his (or her) story no matter what we say on ourside. We're stuck; we had better settle." That's just one of themany considerations to keep in mind. Remember that under thenew rules people other than the parties may be questioned and thatdiscovery depositions are not limited to plaintiffs or defendants.WITNESSESIf possible, when talking to witnesses, go over the evidencewith them. Don't put the witness on the stand without havinggone over their testimony with them. That may sound superficial,but it is surprising how many attorneys do just that. They willdepend upon some junior in the office, who isn't trying the case,to go out and round up the witnesses, and when put on the standwitness and attorney confront each other for the first time. Theresults are often disastrous.Occasionally a witness wants to make a career of it. They loveto be on the stand. It presents a dangerous situation and an attor-ney must sometimes decide to exclude such a witness entirelyrather than chance unfavorable testimony. Sometimes, it's betterto have some evidence left out entirely than have a witness crucifythe party which called him.DICTANovember, 1954Never try a damage case-an automobile collision case-with-out first visiting the scene of the accident with your client if it isphysically possible to do so. Much can be clarified by such a visitwhich would otherwise be impossible to visualize. I had a case onetime where our client, in attempting to pass another car, collidedwith a car coming from the other direction. I could figure no pos-sible defense. Since the case occurred at night, we went out tothe scene of the accident and watched-and lo and behold, just ahalf mile from the point of collision there was a dip in the road-not much of a dip-but enough that the lights of cars coming fromthe other direction disappeared for about two and a half to threeseconds. We sat there and timed it. I at least had something toargue to the jury, because when my client pulled out, the othercar was in that dip. The jury didn't believe me, but it was a goodargument. It might have worked, and at least it gave the opposi-tion some worry.Photographs are very important in these matters. When thejury can see something with their own eyes it helps tremendously.That's part of demonstrative evidence and is of some importance.MEDICAL TESTIMONYMedical testimony is another subject to think about. Like at-torneys, practically all doctors are honest and sincere in theirbeliefs, but medical science isn't an exact science. Two doctorsmay not agree. It's very important when preparing to examine,either to put on the evidence or to cross-examine a medical witness,that you know something about medicine. Take time to talk toyour own medical witness about the problem. If the other medicalwitness can't be present for trial-if they are going to take hisdeposition-it is well to spend a little money and have your doctorthere when his deposition is taken, so that he can advise you as toquestions to ask on cross-examination.PRE-TRIAL CONFERENCEThere has been and still is considerable controversy betweenthe older practitioners and the younger ones on the value of pre-trial conferences. In fact, our Supreme Court is pretty well dividedon the value of pre-trial conferences, as demonstrated by some ofthe decisions that have been handed down. I, personally, am a greatbeliever in pre-trial conferences. Law isn't a game; we are involvedwith human rights, and we are playing for keeps. We have aclient's interests to represent, and it isn't a question of, "Well, Iam going to catch this boy, and boy, am I going to surprise him."It is a question of knowing what the facts are-knowing what yourcase is-knowing what the opposition's case is and whether or notone should settle or go to trial. Then on the basis of these factshonestly advise your client. One cannot honestly advise a clientunless there has been adequate preparation before trial includinga pre-trial conference where these matters come into the open.DICTANovember, 1954When it is ascertained who the witnesses are on the other side, ifan attorney doesn't know by that time what they are going totestify to, an opportunity in which he can find out will be affordedto him between the pre-trial conference and the trial date.THE TRIALNow, concerning the trial itself. There is no question that theplaintiff has an advantage over the defendant if he will utilize it.He has the opening on the voir dire examination. He has the open-ing statement. He has the opening so far as the evidence is con-cerned. He has the opening argument, and he has the closing argu-ment. And there is the poor defendant all along trying to say, "Ididn't do it," as it were.As stated, plaintiff has a big advantage if he will use it. Hehas the opportunity on voir dire of getting across to the juryexactly what the case is about, or what this plaintiff claims it isabout. These first impressions are important. Of course, defenseattorneys try to minimize that. When defense attorneys get upthey start telling the jury, "Remember, there are two sides to everyquestion, and brother, we've got a side here." Point this out tothem:"Remember now, the plaintiff can call any witness.He can subpoena all of our witnesses too, if he wants to,and call them ahead of us. Doing that would make youthink that everybody is for the plaintiff. But remember,ladies and gentlemen of the jury, just because the plain-tiff calls a witness doesn't mean that witness is for theplaintiff. That witness is here to tell the truth no matterwhich side called him and I am sure that if they hadn'tcalled all these witnesses, we would have."As a matter of fact it may often be advisable to subpoenapractically all of the plaintiff's witnesses. It certainly doesn't hurt.One can then ask the witness, "Now, Mr. Smith, you received asubpoena from the defendant to be here too, did you?" "Yes."And then, when you are through with the evidence you can say tothe court, "Well, we don't care to hold this witness for our defense.This has all been brought out here on cross-examination." Thatsometimes helps.Another problem is that we are too apt to lose sight of the factthat jurors are not lawyers. Many times a juror who sits on a casehas never been in a courtroom before. When the attorney gets upbefore those jurors and argues legal points in complex terms, thejurors think that he doesn't know what he is talking about. Thenwhen said jurors go into the jury room and look at all those in-structions they are sure he doesn't know what he is talking about.The attorney must get down to the jurors level and try to "com-municate" with them, in common sense words which they willunderstand. If one is trying a case in a mining district, don't wearDICTANovember, 1954a tuxedo, wear a blue shirt. They will think you are one of them,just trying to get the truth across to them.Bear in mind another matter. Don't object too much becausejuries don't like it. Juries get the idea that the attorney is tryingto hide something from them. Objecting gives the appearance thatthe opposition has something here it doesn't want out. It seemswiser not to object unless there are two things present: first, thatyour objection is good; and second, that it's important to keep outwhat the party is going to say. Follow those two rules on objec-tions and you will avoid giving a bad impression to the jury.Don't always "save an exception" when the court overrulesyou. This is no longer necessary under the Rules since they areautomatically saved for you. Such a practice serves only to takethe attention of the jury away from the issues of the case.Determine beforehand in what order you want the witnessesto appear. In this respect I recommend that the attorney for theplaintiff not call the defendant for cross-examination as the firstwitness. My reasoning is this: the plaintiff has enjoyed the ad-vantage on the voir dire and on the opening statement to the juryin which he has presented his case in its most favorable light. Andthen whom does his attorney call? He calls the defendant forcross-examination and affords him the opportunity to get his theoryof the case to the jury before any witnesses have substantiated theplaintiff's story! It is a very bad mistake, but attorneys still doit time and again. Actually, when I go into court I just pray thatmy opposition will call my client in this manner.DEMONSTRATIVE EVIDENCEIn recent years there has been an increase in the use of dem-onstrative evidence. Plaintiff attorneys are using it more andmore, and defense attorneys some. There is no objection to demon-strative evidence but let's be fair about it! Let's say a personhas a simple fracture of the arm. The idea of having a plastercase or plaster model of the bones of the arm made, having itmarked as an exhibit, and then having the doctor take his penciland make a mark where the break was-and then to hand this tothe jury and have the jury look at this skeleton, serves no purposetoward promoting justice. Such a practice does nothing but in-flame a jury so that the plaintiff can get the largest possible dam-ages irrespective of how good a result the doctor got on that brokenarm! Now I'm speaking like a defense attorney.Recently I had a case where the plaintiff suffered very seriousinjuries of the type that Arthur Godfrey had in which a new socketand ball are made to replace a joint which has been irreparablybroken. It developed that there hadn't been too many of that kindof operation, so the doctor who performed it had colored movingpictures taken of the operation to use at the University of Colo-rado School of Medicine. When the plaintiff's attorney found outabout it, he came into court with the colored movie film of thisDICTANovember, 1954operation and wanted to show it to the jury. I objected and askedthat we have a private showing first to see what the film was go-ing to show. We had a private showing'and I nearly fainted, see-ing all that blood and mecurochrome and whatever else it was. Iknow that the judge was just about ready to faint too. When we gotthrough he said, "It will serve no useful purpose to have the jurysee that." As a result it was kept out. That was an attempt tocarry demonstrative evidence too far. Let's be fair. Get yourphotograph. Get your plats. They are the things the jury shouldsee. If necessary, try to get the court to let the jury go out to thescene of the accident if that will help. That type of evidence isexcellent.Another practice to discuss is the use of blackboards. Thatpractice can work to produce both justice and injustice. Cali-fornia is one of the states where the use of blackboards fora graphic impression on juries was developed. In a recent Cali-fornia case it was held to be improper to use a blackboard prior tothe closing argument. The use of blackboards in an opening state-ment is tantamount to putting up a chart that is not yet in evi-dence, or of putting up a picture of the scene of the accident whichisn't in evidence. What one does is to put before the jury, visually,evidence not yet properly introduced into evidence.'One more point in connection with blackboard calculations: somany defense attorneys and plaintiff attorneys too, forget thatthere is a difference between "life expectancy"and "work-life ex-pectancy." A man may have a life expectancy up to 90, but thatdoesn't mean he can work up to 90. There are charts on that, putout by the Society of Actuaries, that are very helpful when onehappens to be on the defense. Of course if one is on the plaintiff'sside you would never think of such a thing as a "work-life ex-pectancy."Trail work is a lot of fun and a lot of work. There are manyheadaches involved, and much worry. One can get a lot of greyhairs and have many sleepless nights. When an attorney is deal-ing with the court, he should remember that he is dealing not onlywith the judge but the jury. Be honest, concise, clear, polite, andto the point. If the court asks about a certain point of law, andyou know what it is, even if it's against you, tell it. Don't starthemming and hawing. The court is smart enough to tell when youare bluffing. If an attorney tells the truth, the court will have morerespect for that attorney next time when the law is for him. It'snot only one's duty to do that, but it will pay dividends in thelong run.Again, I say that throughout the trial of a law suit yourdemeanor is important, and honesty is imperative! Whether youwin or lose, when you leave a courtroom at night and go home, ifyou have done your job in a manner befitting an officer of the court,you can't help but have a feeling of satisfaction.I Bates v. Newman, 264 P. 2d 197 (1953).DICTA

The Role of the Trial Attorney

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