By Greg Haubrich
Foshee & Yaffe
Metaphysics is the philosophical inquiry into what existence really is: What is real? What is reality really like? Rene Descartes answered the existential question, “Am I real?” with five words: “I think, therefore I am.”
Of course, that’s really bad news if you are a non-sentient being. If you don’t think, you can’t know whether you are real. Sad, really. I’m feeling for you.
Most people misunderstand the meaning of the word “philosophy” just as the original meanings of the words “liberal” and “conservative” have been distorted by politics. Philosophy is not the answer, it is the process of questioning: the search for the answer. “Liberalism”, in its origins, was the idea that people are by nature progressive, and need not be ruled by the “Divine Right of Kings”, which kings claimed was conferred on them by God. Liberal thinking led to democracy and the revolutions against despotic power of the 17th and 18th centuries. “Conservatism” in its origins, was the idea that people are inherently defective and nasty, and therefore need to be regulated and given order by government so that change does not happen too fast and create chaos.
What does any of that have to do with the workings of our legal system and, specifically, jury trials? Perhaps nothing, perhaps everything. We are supposed to ask questions; we don’t always get to have all the answers.
The reality of the courtroom, metaphysically speaking, is a lot different than law books, burdens of proof, or jury instructions. Last week I wrote about the nuts and bolts, the order and sequence, of a jury trial. Right now I’m thinking about some of the things that make the difference between winning and losing, and how you as a litigant can increase your chances of having a successful outcome.
Question 1. What is good testimony?
Answer: Good conversation. Good testimony is simply good conversation. When you are on the witness stand you pick out a juror, look that person straight in the eye, and treat them like a person. Talk to each juror, one after another, as if they were friends or acquaintances. Listen to the lawyer’s question, pick out a juror to talk to, and talk to that human being. You and they should feel like you have shared a story about your life, something you observed or experienced and are willing to reveal to them. “I’ll show you mine, you show me yours.”
We have all watched courtroom drama on television, and want to be Mr. or Mrs. Superwitness. No. Wrong. Be yourself. The greatest fear of Americans, worse than snakes, spiders, flying, or heights, is fear of public speaking. Testifying, however, is NOT public speaking. It is conversation, just talking, just visiting, just being yourself. If you reveal yourself to them, they will trust you and like you — and therefore you increase your chances of getting a reasonable verdict.
Question 2. How Do I React if the Lawyer is Mean?
If the lawyer is getting on you and you start fighting back, you are a fish on the hook and you will get caught. The lawyer knows the law and may be trying to provoke you. Just because somebody is trying to push your buttons doesn’t mean you have to react. Quite the opposite. Agree with the lawyer’s true statements, politely disagree with what she says that is not right, and trust YOUR lawyer to clear up the discrepancies. Use good manners: “Yes Ma’am; Yes Sir; No, Ma’am, No, Sir. I don’t remember, Ma’am. I don’t know, Sir.” Politeness and respect under fire go a long ways towards earning the trust of the people who decide your case, specifically, the jurors.
Question 3. When and Where Am I On Trial?
Answer: All the time. If you are an injured person with a personal injury claim, you are on trial anywhere and everywhere you go. Insurance companies use private detectives to videotape your activities. Do what you can do and need to do. If you can work, work. If you can play, play. Just don’t lie about it.
Juries respect people more who go out and bust their butts despite adversity, than those who allow a non-crippling injury to destroy their lives. Just don’t lie to them. Don’t tell them you can’t run or play with your kids, if you actually do those things. Credibility is everything for an injured person. Be straight about your injuries and limitations, but do not exaggerate them in the slightest.
I had a client who showed up two days before trial with a walker. She said she needed it. Her doctor prescribed it. She knew how to look horribly helpless in her walker. I warned her not to bring her walker to the courthouse unless she absolutely had to have it. During trial, jurors in the courtroom saw her hobble to the elevator, then pick up her walker and stride on in. It took that jury about 3 minutes to find for the other side. The reality they saw outside the courtroom was not testimony, but it was decisive. You are on trial all the time so be who you are, and tell the truth about it.
Question 4: How Should I Act if They Say Stuff That’s Not True?
Answer: Don’t act like who they say you are. In fact, don’t react to their calumny. One of my friends was in a divorce hearing. To his complete surprise his mother-in-law showed up and testified that he had been abusive in the marriage. It wasn’t true. My friend stood up and started acting outraged and foaming at the mouth because he was so shocked at the injustice of the lie. His lawyer was telling him to sit down and shut up but his emotions overtook common sense. He acted like what they said he was, even though he really wasn’t that way at all. It took a lot of rehabilitation over many months, in order for my friend to get a fair shake in that courtroom and ultimately win custody of his son.
When the other side starts lying about you, be cool, calm, and collected. Show respect for the process and trust the jury to see through the falsehoods. Let your lawyer use his or her skills to reveal reality. You are not the only witness, and you don’t have to try to win the case all by yourself. But whatever you do, when they say you are nasty, don’t act like what they say you are because if you do you just lost your case.
Question 5: Why Did I Call This Metaphysics?
Answer: because the inside game rules the reality of jury trials. Jurors see things, and decide things, based on a reality that is beyond the rules of evidence. Perceptions are real. Emotions are real. Feelings are real. None of those things can be added up or subtracted when the blind lady of justice holds out her scales and assesses the balance we call the “burden of proof.”
The famous McDonald’s hot coffee case was won by the injured person largely because the McDonald’s executive testified that they would not reduce the temperature of their coffee despite having had over seven hundred reports of serious burns. A test case in the breast implant litigation was lost by the plaintiff because jurors saw her “running like a deer” outside the courthouse during a lunch hour, in direct contradiction to her testimony that she was crippled by arthritic symptoms.
Metaphysics is a search for reality. A jury trial is a search for truth. If you are injured by another you want a lawyer who can think outside the box and inside of the game, because the inside game is outside the box.
* Call NOW to speak with Gregory Haubrich about your legal case. The initial consultation is at no cost to you. Toll Free (888) 873-9238.