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Law Practice Tips

LawyersBad plaintiffs. Missing clients. Troubling discovery objections.

At the Wisconsin Academy of Trial Lawyers conference in Door County this month, a distinguished roster of plaintiffs’ attorneys shared tips on how to handle those issues, among others.

The Missing Client

Paul V. Gagliardi, of Gagliardi, O’Brien, Braden, Olson & Capelli, told conference attendees that the most important person in a case “is the person making the claim, whether she’s alive or she’s dead.”

That means that in a wrongful death action, where the case centers around what seems in effect a missing client, many other potential witnesses — not just children and surviving spouses, but also cousins, co-workers, friends, and neighbors — may need to be interviewed to determine who can best tell the jury about the deceased.

“I think overall, most of us would agree that a jury in a personal injury case finds some satisfaction in being a fixer, in being somebody that can help to make some wrong right,” Gagliardi said. “And unless they like your client, if she’s not there, what are they going to fix?”

Gathering the evidence to present to the jurors about the qualities of a wrongful death victim is not an easy job, he added.

“It doesn’t come a week before trial,” Gagliardi said. “It comes months before trial.”

Making Bad Plaintiffs Better

In addition to missing critical witnesses, lawyers sometimes struggle with the problem of necessary witnesses who just do not seem very presentable — including, in some cases, the plaintiff.

But there are ways to work with a “bad plaintiff,” according to Bruce R. Bachhuber of Hanaway, Bachhuber, Woodward, Maloney, Duke & Gast, SC.

For plaintiffs’ attorneys, “There isn’t a more critical witness,” he said. “There isn’t a more critical task for us than preparing a plaintiff to give trial testimony.”

That requires putting the plaintiff at ease, Bachhuber said. Plaintiffs also may need to be told that while the judge controls the courtroom, the real audience is the jury, he said.

“You have to remind the plaintiff that the jurors are the ones who decide the case,” he said.

Bachhuber said that he also tells plaintiffs to be respectful of everyone.

“I constantly remind my plaintiffs, ‘You have got to be respectful, not only to me, not only to the judge, but also to your opposing counsel,’” he said. “‘I don’t care if he’s stabbing you in the guts, you’ve got to be respectful, because everybody’s watching you. This is about you.’”

In considering what testimony he wants to elicit from a plaintiff, Bachhuber said he first asks himself whether he needs the evidence and whether it is credible, consistent, and corroborated.

“In my opinion, less is more when it comes to testimony from the plaintiff,” he said.

Saving the Case on Cross-Examination

Once a plaintiff’s attorney makes his or her case, the next step is to save it through cross-examination of the defense witnesses, according to J. Michael End of Gray & End LLP.

“I think that we plaintiffs’ lawyers have a huge advantage over the defense because of the principle of primacy,” he said. “We get to present our case first, and if we do it right, and if we have a good case, we should be able to get the jurors in our corner. And then it becomes a battle of can we maintain that lead that we have.

“Cross-examination is the way that we have to use to prevent some witness from bringing our case down.”

In order to do a good cross-examination, End said, lawyers must prepare exhaustively for it, start the cross-examination strong, and listen carefully to the witness’ testimony on direct examination and to the answers on cross-examination.

Lawyers sometimes follow prepared cross-examinations so closely that they elicit testimony that is helpful to the other side, by unwittingly bringing out testimony that was not successfully developed on direct examination, he said.

“Don’t get trapped into that,” End said. “Listen to the direct and only get what you have to get.”

Plaintiffs’ attorneys must also avoid overstating anything in the presentations of their cases, in order to maintain the jurors’ trust, he said.

“To get their confidence, I think you have to be honest,” End said. “You have to be a gentleman. You have to treat the witnesses with respect in your presentation of the case.”

Handling Discovery Objections

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Wisconsin Academy of Trial Lawyers

Before a case even gets to trial, evidence can be jeopardized by discovery objections.

John C. Peterson, of Peterson, Berk & Cross SC, told the group of lawyers that in one case, he sent out a set of 10 or 20 interrogatories designed to identify certain issues, parties, witnesses and documents, only to receive responses containing “a prefatory objection interposed to every single answer.”

“And this is a problem,” Peterson said. “Among other things, it’s a problem because if you don’t do something about it, and they have that objection in there, arguably they can claim subsequently not to be bound by the answer that they gave after that prefatory objection.”

Peterson said that he handles such incidents by sending a letter that explains why he believes the objections pose a problem and which “very calmly” asks opposing counsel to either provide an explanation for the objections or strike them.

The letter also may serve as an exhibit if a discovery motion becomes necessary, he said.

In his practice, Peterson said, he endeavors not to be overly zealous in asserting objections to discovery requests.

“I don’t want to be guilty of the same thing that I dislike when I receive written responses to my interrogatories,” he said.

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