KEYS TO PERSUASION OF THE TRIAL JUDGE: DIRECT EXAMINATION CROSS EXAMINATION 2014 OREGON STATE BAR FAMILY LAW SECTION ANNUAL CONFERENCE

Transcription

1 KEYS TO PERSUASION OF THE TRIAL JUDGE: DIRECT EXAMINATION CROSS EXAMINATION 2014 OREGON STATE BAR FAMILY LAW SECTION ANNUAL CONFERENCE David B. Markowitz Markowitz Herbold PC 1211 SW Fifth Avenue, Suite 3000 Portland, OR Telephone: (503) Fax: (503) TAB 7-1

2 Keys to Persuasion of the Trial Judge 1. Credibility is the most potent form of persuasion - professional and courteous conduct; respectful - demonstrated knowledge (expertise) - candid with judge and witnesses - distinguish important from unimportant; able to be concise and targeted 2. Judges make decisions quickly and intuitively; front load all presentations 3. Focus: nothing unnecessary is said, and everything necessary is provided 4. Use persuasive language - simple v. complex - specific v. vague - incisive v. ambiguous - well-chosen words expresses thought best - vivid and detailed TAB 7-2

3 5. Use visual presentations - focus - validate - assist in explaining complex information TAB 7-3

4 DIRECT EXAMINATION OF YOUR CLIENT 1. Don t Lead - an accurate sign of weakness - even on preliminary/uncontested issues - pretrial preparation should make leading unnecessary 2. As with a good opening statement, direct should tell a story, centering on the case themes. - what point do you want to make; what Q&A s will prove it - discard unnecessary background and detail 3. Don t expose your client to damaging crossexamination - be candid: don t just tell the good facts... tell everything that is important to the judge s decision. Build credibility. - never allow your client to exaggerate or conceal - be consistent with the deposition TAB 7-4

5 4. Length of questions and answers is important - all questions should be as short as possible - answers should be short, short, long; short, long; repeat. - long answers should be no more than 3-5 sentences 5. A: Dot, Dash - give a short, important answer, then necessary explanation or details 6. Be responsive; only answer what is asked 7. Refrain from excessive displays of emotion TAB 7-5

6 CROSS EXAMINATION 1. On What Issues Should the Witness Be Cross Examined? a. Was the testimony important? b. Will further questions cause further damage? c. What can be accomplished through cross examination? d. Do we want to avoid re-direct? 2. Two Basic Purposes for Cross Examination: a. Elicit favorable testimony that was not included in the direct exam. Constructive Cross. TAB 7-6

7 b. Challenge the witness and/or the testimony. Destructive Cross. i. Bias ii. Inconsistent statements iii. Memory iv. Lack of personal observation v. Influence vi. Deception vii. Learned story viii. Inaccurate use of language ix. Concealment x. Exaggeration TAB 7-7

8 3. Questioning Style a. Project a confident, informed attitude. Avoid mean spirited, caustic, or demeaning style. b. Ask leading questions c. Use short, clear questions d. Be brief e. Listen to the witness answer TAB 7-8

9 David B. Markowitz Shareholder Markowitz, Herbold, Glade & Mehlhaf 3000 Pacwest Center, 1211 SW Fifth Avenue Portland, OR P: F: Biography A founding member of the firm, Dave Markowitz is considered by his peers to be among the best trial lawyers in the Northwest. His commanding presence and keen instincts have made him a courtroom icon. Over the last three decades, Dave has shepherded the firm from its beginning as an ambitious two-attorney litigation shop to its present status as one of the premier business litigation firms in the region. Dave is recognized in The Best Lawyers in America as one of Portland's 2013 Bet-the-Company" Litigators, and as well as ranking as a "Best Lawyer" in the category of commercial litigation. Additionally, he was ranked as Portland's 2013 "Lawyer of the Year" in the category of real estate. He is a Fellow and former Oregon State chair of the American College of Trial Lawyers, is a fellow in the International Academy of Trial Lawyers, is a member of the American Board of Trial Advocates and was listed as one of the top ten Oregon litigators by the National Law Journal. He is recognized by Chambers USA as one of the top commercial litigators in Oregon and is one of only 60 litigators ranked nationally. Dave is also listed as a Litigation Star by Benchmark Litigation and Benchmark Litigation Plaintiff's edition. In a statewide survey identifying the top five percent of attorneys, Dave is the number one ranked litigator in Oregon by Oregon Super Lawyers. In 2011, he received the "Leadership in Law" honor from the Daily Journal of Commerce. Oregon Business magazine, in their 2007 Power Book, recognized Dave for "Delivering Results," naming him one of 50 Great Leaders in Oregon. In addition to his active trial schedule, Dave shares his craft with lawyers of all levels. He is a frequent lecturer on litigation-related topics for the Oregon State Bar, the Federal Bar Association and the Multnomah Bar Association. He regularly presents a nationally-recognized training seminar on depositions. Trial Guides produced a DVD of this popular deposition course and it has become one of the company's best-selling products. As a follow-up, Trial Guides recently produced Dave's "Mastering the Art of Persuading the Trial Judge" course on DVD and CD. Dave frequently acts as a mediator and arbitrator to resolve commercial disputes, and he served as a protem judge in Multnomah County for several years. He also is an expert on attorney fees, providing courtroom testimony in legal fee award disputes. Dave graduated from California State Polytechnic University in 1971 and from the University of the Pacific TAB 7A - 1

10 McGeorge School of Law in 1974, where he was legislation editor of the Pacific Law Journal. He was admitted to the Oregon State Bar in 1974 and for eight years thereafter practiced general civil litigation with an established Portland firm. In January, 1983, he and Barrie J. Herbold formed Markowitz & Herbold, the predecessor of Markowitz, Herbold, Glade & Mehlhaf. Some of his accolades include: Fellow of the American College of Trial Lawyers; former Oregon State Chair Fellow of the International Academy of Trial Lawyers Recognized by Chambers USA as one of the top commercial litigators in Oregon Recognized as a top 10 Oregon Super Lawyer by Oregon Super Lawyers magazine; ranked among the top three since the magazine s inception; top vote-getter in Recognized by The Best Lawyers in America as one of the top Portland "Bet-the-Company" Litigators and Real Estate Lawyer of the Year for 2013 Honored by the Daily Journal of Commerce for Leadership in Law 2011 Named a 2013 Litigation Star by Benchmark Litigation Subject of Oregon Super Lawyers 2009 magazine cover story titled The 800-Pound Piranha Selected as one of the Top Ten Oregon Litigators by the National Law Journal Recognized as one of Oregon s 50 great leaders in Oregon Business Magazine Received Commerce Magazine's Rainmaker Mentor Award Received the Oregon State Bar's Special Award of Appreciation for devoting significant time and energy to CLE training for Oregon attorneys Member of the Litigation Journal's editorial board since the publication s inception Admitted to Practice Oregon U.S. District Court, District of Oregon U.S. Court of Appeals, Ninth Circuit U.S. Supreme Court TAB 7A - 2