Our Noteworthy Articles
Listening: The Art of Advocacy
Richard M. Rawdon, Jr. Attorney at Law
“Whatever success I have had in life,” he told an attentive Gertrude, “I owe to having been willing to accept information from any source. It only meant a little trouble, being nice to people, and polite when they came to me with news, and rewarding them for it when it was worth having. The government offices won’t accept information except from official sources. I know hundreds of people in the Far East who could give them the most valuable information, but they won’t take it.” 1
“Communication cannot be a monologue in which only the sender is at work. To be effective, both parties, the teller and the receiver…, must be actively involved….
Listening is not only an attempt to hear, it is also processing feedback.
Thus, we listen with our ears and our eyes; we listen by being aware, focusing on all that is around us. When should we listen? When we meet our client; when we review the opponent’s discovery; when we observe the judge react to various motions. At depositions we listen not only to the spoken answers, but we watch the deponent. How do they speak? What is their body language? Are they bold or afraid, sure of themselves or meek? Always we concentrate.
On the way to Court we listen in the elevator, in the restroom, in the court room. Aware of those around us, we collect information. During the trial, we listen to the witnesses, to the Judge, and to the jury. We process what we hear, we adjust our case to address what we have heard.
Historically, lawyers are the mouthpiece, the talker. We are the sender of the message, the Judge and jury are the receiver, the listener. To be an effective mouthpiece, we must be the listener. How else will we know what to say, much less how to say it?
Gerry Spence wrote:
“If I were required to choose the single essential skill from the many that make up the art of argument, it would be the ability to listen. I know lawyers who have never successfully cross-examined a witness, who have never understood where the judge was coming from, who can never ascertain what those around them are plainly saying to them. I know lawyers who can never understand the weakness of their opponent’s case or the fears of the prosecutor; who, at last, can never understand the issues before them because they have never learned to listen. Listening is the ability to hear what people are saying, or not saying as distinguished from the words they enunciate.” 3
Your client: When the client first tells you their story, leave your pen in your pocket. Listen, probe, ask questions. Let them tell their problem uninterrupted, then interrogate, drawing information from them. Only when you feel you have a solid grasp of the information do you record or take notes. As you write, ask questions, get the correct information.
Why don’t you write initially? First, by taking notes, you are not giving your full concentration; you won’t hear it all. Second, the client’s storytelling will lose its rhythm, continuity, while they wait on your note-taking. Information will be forgotten; it will be given out of sequence. Third, “(Y)our potential client feels that you are involved in the case because you have listened carefully and allowed him to tell it his way.” 4
Each time we talk with our client; probe, question and listen. Expand your base of understanding.
Your opponent: Not only must we know the defendant, but you must know the defendant’s attorney. What does the attorney emphasize, how serious do they take our case, what is the real defense. You learn by studying discovery requests and answers, by the way they ask questions in deposition, by the motions they file. But, maybe most important of all, we learn from casual conversation.
In depositions we listen not only to the other party’s words, but how they answer. Their voice, their eyes, their body language. Depositions are the time to not only find out what the person knows, but to evaluate their credibility and whether a jury will like them.
The Judge: It’s important to know, not only whether the Judge likes our case, but why. What is it that the Judge does not like? With this information, we can restructure our theme, our evidence, our emphasis. We learn the Judge’s bias by listening to the questions and the comments about the parties or the case in chambers, on the phone, or socially. What does the Judge emphasize or question in his written opinions.
Voir Dire: Listening in voir dire begins long before the bailiff says, “all rise for his Honor.” If we investigate the jury panel, how do others speak of the prospective juror, what is their environment, their job duties. At trial, watch them come in the courtroom. Who is a loner; who makes friends; who talks, jokes. What do they read. Do they read or converse; who crochets. How do they carry themselves. Who smokes, who is preoccupied. Are they calm or nervous, bored or attentive. What do they bring with them — newspaper, book, totebag. Who’s handicapped, overweight. How do they dress — neat or sloppy, clothes match, suit or casual. Are the clothes flamboyant or conservative, expensive or Wal-Mart, jewelry, shoes polished.
When they talk to each other, do they pay attention.
As you question prospective jurors, maintain eye contact, listen, pay attention, follow up with a logical response or question. Only after the juror stops talking, do you make notes, think about the next question. Concentrate on your dialogue with the juror. Listen not only to what they say, but how they say it. Equally important listen for what is not said.
In establishing rapport with jurors, Larry Smith feels you should use their words, imitate their body movements, copy their voice levels and patterns. We simultaneously assess information at the vocal, visual and nonverbal levels. Smith says, “We, as trial lawyers, assess the information that is available to discover if, in addition to communicating with the juror’s conscious mind, we are reaching his unconscious mind through the kinesthetic, visual and auditory channels.” 5
Remember, “(T)here are enormous pressures upon the venire to give socially acceptable answers, irrespective of the true subjective beliefs of the responders.” 6 It’s not what they say, its how they say it, their body language, what they leave out. Do they look you in the eye as they answer your question?
Questions such as, “How do you feel about…” and “Why do you feel that way,” give the juror an opportunity to express themselves. These type questions make it easier to understand the juror.
At no time in the trial is listening any more important than when questioning a witness – direct or cross. If we don’t concentrate on the answers, we’ll never know what answer has been given. We’ll never know the jury’s perception of the answer.
We can’t worry about the next question until the complete answer has been given in an understandable form. As Sonya Hamlin writes, “It is very hard for any human being to listen to answers, while, at the same time, thinking ahead to the next question and thinking of the consequences of what has just taken place.” 7
This leads to the use of notes. Do you write out questions. Do you list areas to cover — a checklist. Or do you do as Herbert Stein suggests, write out the answers and ask questions using the answer. Regardless of the method, we must know where we want to go; the information the jury needs in order to decide in our favor, why that information is important to them, and the information to legally prove our case.
Sonya Hamlin makes several points on using notes. First, “See your notes as flexible, mobile, so that if you really are listening to the answers of the witnesses, you will still be able to get to these key stops, although they may need to be rearranged somewhat, depending upon what the witness has just said.” 8 Second, jurors know you’ve prepared a plan so they will give you permission to refer to your notes after the answer. “If you surreptitiously try to peek down at your notes while the answer is being given, you will give the jury the impression of either rudeness or anxiety, because they see you trying to plan ahead, worrying about where to go next.” 9 And third, you will appear relaxed and in total control if you listen, then deliberately refer to your notes, look up, and then form your next question.
Sometimes we “loop” our questions. Looping is using the answer in the next question.
“What direction were you driving?”
“As you were driving west, did you see the red car?”
“What direction was the red car going?”
If we don’t listen, we can’t use “looping” questions.
During direct examination we must listen with our eyes too. We watch our witness, the jury, the judge, and opposing counsel. What does opposing counsel think is important. When does the opposing counsel take notes. What impression is the witness giving? How is the jury reacting to our witness? Are they listening or bored? Are they taking notes? In a recent trial, I knew a point had been made when an expert testified to his outrageous fee and a juror turned to the juror behind her and said loud enough to be heard, “can you believe that?” By noting the juror’s reception, we can alter our proof if necessary.
Concentrate, focus, total attention! When the opponent’s witnesses testify, there must be no interruptions. No conferring with co-counsel or client, minimum note taking, no dozing. We listen for inconsistencies, for impeachable material, for weaknesses in the witness’s observations. Although we have prepared a cross-examination, we must be ready to modify our plans, to add new areas, to delete others.
Again we study the perception the witness is giving the jury. Are they interested or bored? Has the jury learned something that is valuable to their decision making? Only by total concentration will we be ready to take advantage of a witness’s mistake, or inquire into unanticipated areas.
When we ask, besides listening to the answers, we must observe the jury’s reaction to our questioning and the witness’s answer. What do our body language and facial expressions convey to the jury? What do the witness’s body language and facial expressions convey to the jury? We need this information.
By listening we know whether to begin with the prepared cross or answer the direct examination first. We must be aware of the rules of primacy and recency.
Has the expert testified as anticipated. Did they use the correct wording – “probability” v. “possibility.” Were the Daubert factors covered. The right questions are asked, but did the answer qualify the expert to express an opinion. Is the jury understanding the testimony; are they interested. If not, how do we make it interesting.
“Try to hear the testimony of the expert with the jury’s ears. Stop him whenever the words get too big, when the concepts get too involved or when he’s gone into too great detail too soon. Go back over certain points that would be unclear if you were a juror listening for the first time.” 11
Be ready to interrupt if the expert gets off track.
We all know the questions, but the jury doesn’t decide the case on questions. Verdicts are based upon answers. We must be sure the answer is given.
Without listening to the opposing expert, how will we know if we’ve been given cross examination fodder. Was the opinion based on erroneous facts. Did the expert bolster their opinion beyond scientific limits. Prepare and concentrate.
Listening is not easy. It’s not natural for trial lawyers. We must learn to listen if we are to be successful. Listening develops knowledge. Knowledge grants power. With power we win.
- Wallach, Janet, Desert Queen: the extraordinary life of Gertrude Bell: adventurer, adviser to kings, ally of Lawrence of Arabia (1995), p. 79
- Hamlin, Sonya, What Makes Juries Listen, Prentice Hall Law & Business (1985), p. 17
- Spence, Gerry, How to Argue and Win Every Time, St. Martin’s Press (1995), p. 67
- Russ M. Herman, Courtroom Persuasion: Winning with Art, Drama and Science, ATLA Press and Clark, Boardmen Callaghan (1997), p. 12
- Stern, Herbert J., Trying Cases To Win, Vol. 1, Wiley Law Publications (1991), p. 485
- Hamlin, p. 187
- Hamlin, p. 213
- Hamlin, p. 213
- Larry S. Poxner and Roger J. Dodd, Cross Examinations: Science & Techniques, Michie (1993), p. 349
- Hamlin, p. 301
Kentucky Products Liability Law: Explaining the McDonald’s coffee case
What we read in the newspaper or see on television is not what the jury hears in a trial. Because our news reporters are only giving us summaries of cases and only tell us what they want us to learn, their opinions and reports often are misleading and give a false impression as to what actually occurred in the courtroom.
Many people have heard about the elderly woman who got almost three million dollars for burning herself when she spilled a cup of coffee she got at a McDonald’s drive thru. Perhaps when you heard about that verdict you thought to yourself, “there ought to be a law.” In fact, when you are injured by a product there is a body or set of laws that governs whether or not you are entitled to compensation. That body of laws is known as products liability. Products liability law covers things as complex as your automobile as well as things as simple as the cup of coffee you buy at the local fast food restaurant. Although the lady in the McDonald’s coffee case never actually received the almost three million the jury awarded her because the judge reduced the verdict, the case is a good example of how products liability law protects consumers.
What was the Jury thinking?
The McDonald’s coffee case began when a 79-year-old woman went with her son to a McDonald’s drive thru and ordered a cup of hot coffee. The woman, a passenger in the vehicle, put the coffee between her legs and was attempting to remove the lid when the spill occurred. How hot was the coffee? The evidence at trial indicated that it was 180-190 degrees Fahrenheit when served and that it was between 165 and 170 degrees Fahrenheit when it was spilled. The evidence also showed that the coffee you make at home is usually about 135-140 degrees Fahrenheit. In a matter of six to seven seconds the spilled coffee caused third degree burns to the woman’s inner thighs and buttocks. She claimed to have approximately $10,000.00 in medical costs, including the costs associated with the debridement and skin grafting necessitated by the injury. She also claimed to have permanent scarring as a result of the injury.
Under products liability law, the jury is asked to consider the same types of questions you might be asking yourself at this point: Did McDonald’s know the coffee was that hot? Did McDonald’s know that coffee served that hot could cause serious burns to people who might spill it? If McDonald’s did know that coffee served that hot could cause serious burns why did they continue to serve it so hot? Can people really drink coffee that is that hot? Do all restaurants serve coffee that is that hot? Doesn’t the lady who got burned bear any responsibility for what happened?
The jury in this case decided that the coffee was a defective product and that McDonald’s had breached implied warranties of merchantability and fitness for a particular purpose. The jury also decided that the lady did bear some responsibility for what had happened. The jury said that she was twenty percent at fault and that McDonald’s was eighty percent at fault for the injury. The jury awarded her $200,000.00 in compensatory damages (to compensate her for past and future pain, suffering, emotional distress, lost wages, medical bills, etc) and $2,700,000.00 in punitive damages. The award of compensatory damages was reduced by the plaintiff’s twenty percent of fault. The judge reduced the award of punitive damages to $480,000.00 or three times the compensatory damage award. The case settled for an undisclosed amount before it was appealed.
As you can imagine, the question central to any product liability case is whether the product is in fact defective. A product can be defective in a number of ways. If a product is marketed with inadequate instructions or warnings as to foreseeable risks, it is defective. If a product is manufactured with a flaw, but the design and marketing of the product are fine, it is called a manufacturing defect. If a product is designed in such way that it is foreseeable that injury could result, and if the risk of injury could have been reduced by an alternative design, then a product is said to be defective in its design. When looking at alternative designs, the court will look at the costs associated with the alternative designs, whether the proposed alternative would in fact have reduced the foreseeable risks of harm associated with the product, and whether the failure to use the alternative design made the product unreasonably unsafe at the time it was manufactured. If a product is defective in the way that it is marketed, manufactured, or designed, and someone is injured as a result of that defect, then the manufacturer, distributor and/or seller of the product are usually liable, or responsible for consequences of the defect.
As noted above, the jury found that McDonald’s had sold a defective product and had also breached implied warranties of merchantability and fitness for a particular purpose. A warranty is like a promise. An implied warranty is something that exists whether or not you have a piece of paper titled “Warranty”. An implied warranty of merchantability means that the goods sold conform to the ordinary standards of care and that they are of average grade, quality and value as similar goods sold under similar circumstances. Put more simply, when you buy a cup of coffee at McDonald’s, you have a right to expect that it will be pretty much the same as the coffee you could buy at any similar drive thru. An implied warranty of fitness for a particular purpose exists when the retailer, distributor, or manufacturer has reason to know the particular purpose for which the consumer goods are required, and that the buyer is relying on the skill and judgment of the seller to select and furnish suitable goods. In the case of coffee purchased at its drive thru, McDonald’s would know that the buyer of the coffee wanted to drink it and that the buyer is relying on McDonald’s to sell coffee that the buyer can drink. When the McDonald’s employee hands the customer the cup of coffee, it is as if McDonald’s is saying, “I promise this coffee is drinkable and that the cup it is served in is suitable.” If the warranties of merchantability and fitness for a particular purpose are breached, or the promise is broken, then the manufacturer, distributor, and/or seller of the product are liable or responsible for the consequences.
While the wording of breach of warranty and product liability theory is somewhat different, the underlying goal is the same. The idea or theory behind the courts imposing liability for product defects is not just to compensate a victim. It is also to provide an incentive to manufacturers, distributors, and sellers of products to ensure that products put into the hands of consumers meet consumer expectations and that they are reasonably safe for their intended purpose. The law is not meant to punish a manufacturer, distributor or seller, that is the purpose of punitive damages. Rather it is meant to distribute the burden of injuries to those in the best position to prevent the injury and also to shift the financial burden to those in the best position to handle the financial problems that attend injuries. It is expected and accepted that the higher costs associated with avoiding and/or paying for injuries will be passed on to the consumer in the form of higher prices for products.
In the McDonald’s coffee case, the plaintiff claimed that McDonald’s knew that its coffee was being served too hot and had in fact received hundreds of complaints about how hot its coffee was. Moreover, the plaintiff argued that the coffee was served at a temperature 40-50 degrees hotter than recommended. The plaintiff claimed that despite this knowledge, McDonald’s continued to serve coffee hot enough to cause third degree burns. Is coffee served hot enough to cause third degree burns not fit to drink? Do other drive-throughs serve coffee at a lower temperature? Is coffee served that hot defective? The jury in the McDonald’s case answered “yes”.
The law of products liability is complex and states differ in the degree to which they are willing to hold a defendant accountable for an injury caused by its product. Even in the case of a product as simple as a cup of coffee, states may vary widely in their willingness to find liability for injuries resulting from spills. Many courts do not accept the notion that a cup of hot coffee is defective by virtue of its excessive temperature. Those courts require the injured person to show evidence that the coffee was served hotter than accepted industry standards or that it was hotter than the purchaser could reasonably expect. The courts of many states feel that the danger of a hot beverage is obvious and that it is not something a vendor should have to warn customers about. Other courts look to the manner in which the spill occurred on the theory that it is unrealistic to expect a vendor to make a cup of coffee completely spill proof no matter how the cup is handled. Given such differences in the way courts look at issues of liability, if you are injured by a product you should consult an attorney with experience in handling products liability cases in your state.