Unconventional Lawyering Leading to Conventional Credibility

The topic for the panel was a discussion of ways in which unorthodox lawyering can lead to exceptional credibility with juries. The panel included the late Herald Price Fahringer, a high-profile defense attorney, co-author Jeff Korek, Judith Livingston, of Kramer Dill of Livingston & Moore, and Paul Callan, of Cable News Network (CNN).

Character Evidence

Fahringer, who represented high-profile defendants such as Larry Flynt, Al Goldstein of Screw magazine, Claus von B low and Jean S. Harris, and who championed for the rights of the accused in numerous cases in front of the U.S. Supreme Court, offered this example: An attorney is representing a defendant accused of murder. At trial, seeking to bolster his client's character, the attorney requests from the presiding judge that he allow the attorney to call 30 character witnesses on his client's behalf. The judge laughs at the attorney and informs him that he will be allowed to call a maximum of seven character witnesses. The next day, the attorney lines the front rows of the courtroom with 30 people, and, in front of the jury, brazenly asks the judge to reconsider and allow him to call the 30 character witnesses sitting in the front rows. The judge again refuses and insists the attorney call a maximum of seven. With that, making sure the jury has a clear view, the attorney turns to the front rows, selects 23 of the 30 people he had brought with him, and, feigning frustration, exclaims loud enough for the jury to hear, “You 23 can go home because the judge will only let me call seven character witnesses.”

With those few words, not only does the attorney indicate to the jury that there were 23 other people willing to testify favorably for his client, but he also denies the prosecution the opportunity to cross-examine those 23 witnesses and potentially mitigate the effect they would have. In doing so, the attorney collects credibility with the jury that conventional lawyering could never achieve.

Criminal Defense

Fahringer offered another illustration from a criminal case involving an attorney representing a client accused of stabbing a victim over 20 times. One fact of the case was that all of the stab wounds on the victim were no more than a half-inch deep. A skilled lawyer thinking outside the box might argue that the defendant was simply defending himself against an attack, and he was juking (lightly jabbing out with a knife in a dance-like motion to stave off an attacker) back and forth to prevent harm to himself. To drive home the point, the lawyer could physically act out the juking with the defendant, to demonstrate to the jury that this was the reason none of the stab wounds were more than a half-inch deep. Here is another example of unorthodox lawyering leading to credibility with a jury that common lawyering could never obtain.

Personal Injury

One area in which out-of-the-box thinking and lawyering works particularly well is in the personal injury context. Let us take as an example a personal injury attorney representing a plaintiff who, while intoxicated, was struck by the mirrors of a bus owned by a state transit authority, resulting in serious injury. Or, a similar plaintiff, also intoxicated, who fell through the gap between a subway and the platform owned and operated by a state transit authority, resulting in serious injury. Let us presume that, in both of these cases, it is clear from the facts that the defendants had acted negligently and were somewhat at fault for the accidents. However, it is also clear that the plaintiffs were partially at fault as well, due to their intoxication. Both examples are based on cases tried by co-author Jeff Korek.

Given these facts, many lawyers would run through the gate full trot ahead, arguing that the defendant was 100% at fault, and that the plaintiff was not at fault in any way. However, a seasoned trial attorney might try an out-of-the-box method of gaining credibility with the jury. The attorney would stand up and tell the jurors that they should not bother debating the issue of whether the plaintiff was negligent and somewhat at fault, because it is clear that he was. However, the attorney would explain, “The facts will show that the defendant was also negligent and at fault, and that is what the case is all about.” This unconventional tactic would give the plaintiff vast amounts of credibility with the jury. In both of these cases, the jury handed down a verdict finding the defendant at fault for a percentage of the accident, found the plaintiff comparatively at fault for a percentage, and allotted damages accordingly. However, without the unorthodox strategy employed at trial, it is possible the verdict would have been that the plaintiff was 100% at fault.

Another example co-author Korek shared with the Fordham panel from his own experience was of an attorney representing a 15-year-old girl who had unfortunately crossed the street against the “Do Not Walk” signal, and was hit by a van. When questioned, the driver of the van claimed that he was unable to see the plaintiff because of a barrier, which had been erected for construction purposes by a sub-contractor of the local city transit authority. The plaintiff in the case suffered serious injuries that, by the time the case went to trial, had required her to be treated in several hospitals over the course of 14 years.

The attorney wanted to demonstrate to the jury just how extensive the plaintiff's injuries were. So, thinking outside of the box, the attorney and his trial team had bookshelves built in the courtroom, to prominently display 160 binders full of medical records, each binder representing another one of the plaintiff's admissions to a hospital as a result of the injuries sustained during the accident.

When the attorney stood up to give his opening statement, he began by listing all the terrible medical issues the plaintiff suffered from as a result of the accident. Then, the attorney held up one of the binders and explained to the jury what it contained. He gestured to the bookshelves behind him, placed directly in the jurors' views, and explained that behind him were the rest of the binders, each one representing a new admission of the plaintiff to a hospital, over the 14 years. The jury looked at the bookshelves and in an instant they were able to see just how extensive the plaintiff's injuries were, and how much she had suffered throughout the years.

Given the same fact pattern, an attorney could use other unconventional avenues of gathering credibility with the jury. The attorney might have a life-sized barrier built and delivered to the courtroom, representing the barrier the defendant argued had obstructed his view. Next, the attorney could obtain a life-sized blow-up photograph of the obstructed view that the driver saw on the day of the accident, and display it prominently in the courtroom. Although trial rules will likely require that the barrier and photo remain covered by a tarp during the beginning of the trial until they are needed, they would signal to both the jury and defense counsel that the plaintiff's attorney is prepared with an arsenal of life-sized exhibits, to prove that the defendants were liable for the plaintiff's injuries. Such unconventional lawyering can lead to strong credibility with a jury that might ultimately lead to a verdict in favor of the plaintiff, or a large settlement. In the real-life version of this example, a mere three days into the trial, the defendant offered a $9 million settlement, which the plaintiff accepted.

Corporate Defense

What's more, these unconventional methods can be applied to any area of law, not just criminal and personal injury matters. In another example given by Fahringer, we are introduced to an attorney who is defending the rights of a corporation and its employees. The opposing counsel cleverly insinuates that the corporation is a non-human entity “without any heartbeat,” and therefore is not deserving of rights. The next morning, the defense attorney buses in 75 employees of the corporation, all dressed up in their uniforms, from lab coats to overalls to expensive suits, and sits them in the front rows of the courtroom. Gesturing toward the crowd, the attorney says to the jury: “Ladies and Gentlemen, is this the face of a non-human entity with no heartbeat? These are the living, breathing faces of the corporation. They deserve every right that any other living, breathing human being would deserve.” With just a few words, the attorney has destroyed his opponent's position with out-of-the-box lawyering, leading to credibility with the jury that conventional lawyering could never have achieved.

Conclusion

The lesson to take from these examples is that, oftentimes, lawyers become so entrenched in doing the conventional, that they end up losing out on great opportunities to strengthen credibility with a jury. What's more, not only in front of a jury, but from the start of a case, attorneys can get caught up in the vision of fighting tooth and nail, line by line, and as a result miss out on important perspectives that can help their cases simply because they refuse to think outside the box.

From client intake through trials and verdicts, attorneys can capitalize on exceptional credibility boosters that can potentially change the outcome of a case and a client's life. There is no reason out-of-the-box lawyering should be reserved exclusively for the Perry Masons of TV fiction. Let us bring some of these unconventional and innovative lawyering skills to reality today.

Jeff S. Korek is a partner at Gersowitz Libo & Korek and a past president of the New York State Trial Lawyers Association. Abraham Z. Melamed is a practicing attorney, and a professor of political science and pre-law adviser at Touro College.This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

We have all heard the story of the defendant who is on trial for murder but, despite months of investigation, the police never recover the victim's body. So, in the defense attorney's closing statement, he devises a clever ploy. While addressing the jury, he says, “Ladies and Gentlemen of the jury, I have a surprise for you. Momentarily, the presumed murder victim will actually walk into this courtroom!” And with that, he points to the courtroom door. Immediately, everyone in the courtroom turns to the door in great anticipation, yet, a couple of minutes pass, and nothing happens. Finally, the lawyer turns toward the jury, smiling, and says, “The truth is, the presumed murder victim will not be walking through the door, I made that up. However, everyone here looked on with great anticipation, expecting the victim to walk through the door. That means you must have reasonable doubt as to whether anyone was ever killed in this case, so I must insist you return a verdict of Not Guilty”!

The ending to this story varies greatly from one version to the next. Some claim the jury still returned a guilty verdict, and others claim the ploy worked and the defendant was acquitted. Most believe the story is simply a fable crafted in the scripts of Perry Mason and the like. But fact or fiction, the story illustrates an important point. Thinking outside the box, and practicing unconventional lawyering skills, can often lead to credibility with a jury that run-of-the-mill lawyering could never achieve.

Although the above example is likely fiction, there are many real-life examples of out-of-the-box methods that attorneys can adapt and employ at trial, and indeed throughout the development of their case. The following are some examples of unconventional lawyering that work very well. Many of the examples were shared at a Sept. 16, 2014, panel discussion at Fordham Law School, organized by Professor James Kainen of the law school, and Justice Douglas McKeon, of Supreme Court, Bronx County. Justice McKeon is Statewide Coordinating Judge for the New York State Medical Malpractice Program, which has been cited by the Obama administration as a way to contain medical costs and liabilities. See “Bronx judge to head statewide court program that could cut healthcare costs,” New York Daily News, June 17, 2014.

The topic for the panel was a discussion of ways in which unorthodox lawyering can lead to exceptional credibility with juries. The panel included the late Herald Price Fahringer, a high-profile defense attorney, co-author Jeff Korek, Judith Livingston, of Kramer Dill of Livingston & Moore, and Paul Callan, of Cable News Network (CNN).

Character Evidence

Fahringer, who represented high-profile defendants such as Larry Flynt, Al Goldstein of Screw magazine, Claus von B low and Jean S. Harris, and who championed for the rights of the accused in numerous cases in front of the U.S. Supreme Court, offered this example: An attorney is representing a defendant accused of murder. At trial, seeking to bolster his client's character, the attorney requests from the presiding judge that he allow the attorney to call 30 character witnesses on his client's behalf. The judge laughs at the attorney and informs him that he will be allowed to call a maximum of seven character witnesses. The next day, the attorney lines the front rows of the courtroom with 30 people, and, in front of the jury, brazenly asks the judge to reconsider and allow him to call the 30 character witnesses sitting in the front rows. The judge again refuses and insists the attorney call a maximum of seven. With that, making sure the jury has a clear view, the attorney turns to the front rows, selects 23 of the 30 people he had brought with him, and, feigning frustration, exclaims loud enough for the jury to hear, “You 23 can go home because the judge will only let me call seven character witnesses.”

With those few words, not only does the attorney indicate to the jury that there were 23 other people willing to testify favorably for his client, but he also denies the prosecution the opportunity to cross-examine those 23 witnesses and potentially mitigate the effect they would have. In doing so, the attorney collects credibility with the jury that conventional lawyering could never achieve.

Criminal Defense

Fahringer offered another illustration from a criminal case involving an attorney representing a client accused of stabbing a victim over 20 times. One fact of the case was that all of the stab wounds on the victim were no more than a half-inch deep. A skilled lawyer thinking outside the box might argue that the defendant was simply defending himself against an attack, and he was juking (lightly jabbing out with a knife in a dance-like motion to stave off an attacker) back and forth to prevent harm to himself. To drive home the point, the lawyer could physically act out the juking with the defendant, to demonstrate to the jury that this was the reason none of the stab wounds were more than a half-inch deep. Here is another example of unorthodox lawyering leading to credibility with a jury that common lawyering could never obtain.

Personal Injury

One area in which out-of-the-box thinking and lawyering works particularly well is in the personal injury context. Let us take as an example a personal injury attorney representing a plaintiff who, while intoxicated, was struck by the mirrors of a bus owned by a state transit authority, resulting in serious injury. Or, a similar plaintiff, also intoxicated, who fell through the gap between a subway and the platform owned and operated by a state transit authority, resulting in serious injury. Let us presume that, in both of these cases, it is clear from the facts that the defendants had acted negligently and were somewhat at fault for the accidents. However, it is also clear that the plaintiffs were partially at fault as well, due to their intoxication. Both examples are based on cases tried by co-author Jeff Korek.

Given these facts, many lawyers would run through the gate full trot ahead, arguing that the defendant was 100% at fault, and that the plaintiff was not at fault in any way. However, a seasoned trial attorney might try an out-of-the-box method of gaining credibility with the jury. The attorney would stand up and tell the jurors that they should not bother debating the issue of whether the plaintiff was negligent and somewhat at fault, because it is clear that he was. However, the attorney would explain, “The facts will show that the defendant was also negligent and at fault, and that is what the case is all about.” This unconventional tactic would give the plaintiff vast amounts of credibility with the jury. In both of these cases, the jury handed down a verdict finding the defendant at fault for a percentage of the accident, found the plaintiff comparatively at fault for a percentage, and allotted damages accordingly. However, without the unorthodox strategy employed at trial, it is possible the verdict would have been that the plaintiff was 100% at fault.

Another example co-author Korek shared with the Fordham panel from his own experience was of an attorney representing a 15-year-old girl who had unfortunately crossed the street against the “Do Not Walk” signal, and was hit by a van. When questioned, the driver of the van claimed that he was unable to see the plaintiff because of a barrier, which had been erected for construction purposes by a sub-contractor of the local city transit authority. The plaintiff in the case suffered serious injuries that, by the time the case went to trial, had required her to be treated in several hospitals over the course of 14 years.

The attorney wanted to demonstrate to the jury just how extensive the plaintiff's injuries were. So, thinking outside of the box, the attorney and his trial team had bookshelves built in the courtroom, to prominently display 160 binders full of medical records, each binder representing another one of the plaintiff's admissions to a hospital as a result of the injuries sustained during the accident.

When the attorney stood up to give his opening statement, he began by listing all the terrible medical issues the plaintiff suffered from as a result of the accident. Then, the attorney held up one of the binders and explained to the jury what it contained. He gestured to the bookshelves behind him, placed directly in the jurors' views, and explained that behind him were the rest of the binders, each one representing a new admission of the plaintiff to a hospital, over the 14 years. The jury looked at the bookshelves and in an instant they were able to see just how extensive the plaintiff's injuries were, and how much she had suffered throughout the years.

Given the same fact pattern, an attorney could use other unconventional avenues of gathering credibility with the jury. The attorney might have a life-sized barrier built and delivered to the courtroom, representing the barrier the defendant argued had obstructed his view. Next, the attorney could obtain a life-sized blow-up photograph of the obstructed view that the driver saw on the day of the accident, and display it prominently in the courtroom. Although trial rules will likely require that the barrier and photo remain covered by a tarp during the beginning of the trial until they are needed, they would signal to both the jury and defense counsel that the plaintiff's attorney is prepared with an arsenal of life-sized exhibits, to prove that the defendants were liable for the plaintiff's injuries. Such unconventional lawyering can lead to strong credibility with a jury that might ultimately lead to a verdict in favor of the plaintiff, or a large settlement. In the real-life version of this example, a mere three days into the trial, the defendant offered a $9 million settlement, which the plaintiff accepted.

Corporate Defense

What's more, these unconventional methods can be applied to any area of law, not just criminal and personal injury matters. In another example given by Fahringer, we are introduced to an attorney who is defending the rights of a corporation and its employees. The opposing counsel cleverly insinuates that the corporation is a non-human entity “without any heartbeat,” and therefore is not deserving of rights. The next morning, the defense attorney buses in 75 employees of the corporation, all dressed up in their uniforms, from lab coats to overalls to expensive suits, and sits them in the front rows of the courtroom. Gesturing toward the crowd, the attorney says to the jury: “Ladies and Gentlemen, is this the face of a non-human entity with no heartbeat? These are the living, breathing faces of the corporation. They deserve every right that any other living, breathing human being would deserve.” With just a few words, the attorney has destroyed his opponent's position with out-of-the-box lawyering, leading to credibility with the jury that conventional lawyering could never have achieved.

Conclusion

The lesson to take from these examples is that, oftentimes, lawyers become so entrenched in doing the conventional, that they end up losing out on great opportunities to strengthen credibility with a jury. What's more, not only in front of a jury, but from the start of a case, attorneys can get caught up in the vision of fighting tooth and nail, line by line, and as a result miss out on important perspectives that can help their cases simply because they refuse to think outside the box.

From client intake through trials and verdicts, attorneys can capitalize on exceptional credibility boosters that can potentially change the outcome of a case and a client's life. There is no reason out-of-the-box lawyering should be reserved exclusively for the Perry Masons of TV fiction. Let us bring some of these unconventional and innovative lawyering skills to reality today.

Jeff S. Korek is a partner at Gersowitz Libo & Korek and a past president of the New York State Trial Lawyers Association. Abraham Z. Melamed is a practicing attorney, and a professor of political science and pre-law adviser at Touro College.This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.