the case against clutter: presenting too much 'stuff' will drive the jury to distraction

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The Case Against Clutter: Presenting too much 'stuff' will drive the jury to distraction Author(s): JAMES W. McELHANEY Source: ABA Journal, Vol. 85, No. 7 (JULY 1999), pp. 76-77 Published by: American Bar Association Stable URL: http://www.jstor.org/stable/27840883 . Accessed: 13/06/2014 07:31 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to ABA Journal. http://www.jstor.org This content downloaded from 195.78.109.54 on Fri, 13 Jun 2014 07:31:51 AM All use subject to JSTOR Terms and Conditions

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Page 1: The Case Against Clutter: Presenting too much 'stuff' will drive the jury to distraction

The Case Against Clutter: Presenting too much 'stuff' will drive the jury to distractionAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 85, No. 7 (JULY 1999), pp. 76-77Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840883 .

Accessed: 13/06/2014 07:31

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to ABA Journal.

http://www.jstor.org

This content downloaded from 195.78.109.54 on Fri, 13 Jun 2014 07:31:51 AMAll use subject to JSTOR Terms and Conditions

Page 2: The Case Against Clutter: Presenting too much 'stuff' will drive the jury to distraction

M??m LITIGATION

The Case Against Clutter

Presenting too much 'stuff will drive the jury to distraction

BY JAMES W. McELHANEY

Angus was in the Brief Bag, looking pensive; a blank legal pad

was lying on the table in front of him.

"What's the matter," I said, "cat got your pen?"

Angus smiled without bother ing to untwist my metaphor. "No," he said. "I was just thinking about whether cluttering is one of the seven deadly sins of trial lawyers."

"How can that be a sin?" I said. "Where is it written, Thou shalt not clutter?'

"

"That's what the pad is for," said Angus.

"OK," I said, "you got me. But why is a little clutter so serious?"

"You've got to understand," said Angus. "I'm not talking about whether you keep a messy desk or you have too many notes and books and briefs piled on the table in your office. I'm talking about lawyers cluttering their clients' cases.

"Every case I have ever seen has been badly cluttered with stuff that seriously hampered how it was tried or eventually settled.

"All cases collect clutter. Un necessary legal theories that can kill the case. Disconnected factual issues that alienate and confuse judges and juries. Witnesses who do more harm than good. Moun tains of documents that smother simple facts and confound basic ideas. Clouds of needless exhibits that numb judges' and juries' per ceptions.

"Then there is verbal clutter: long, confusing questions that de stroy the pace and flow of even the best witness's testimony. Arcane l? galisme that hamstring everyone's comprehension. Strange, even silly arguments that do serious damage to an otherwise powerful case."

Beth Golden sat down and

James W. McElhaney is Joseph C. Hostetler Professor of Trial Prac tice and Advocacy at Case Western

Reserve University School of Law in Cleveland. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

joined the conversation.^^^^Hk "I agree," she said. "Out-

^^^^^^L ter is everywhere. The question is where does it^JHjjj^^H come from?" *9H|^^H "It comes from ̂ SH^^H lots of places," said '^^^Hj^B Angus. "Law school is

^^^^H a major source of sin. li^^l That's where you were

taught to identify and ^^^H articulate every possible legal theory, but you were never given a good J^H process for sifting out

^^ the bad ones." V"^WHH "Fear is another ^:.?^ | reason why we hang

on to doubtful theories," IS^IH said Dick Mudger, pulling up a chair. "Just last week I heard an expert testify in a mal practice case against a lawyer. The expert said the lawyer was guilty of malpractice because she didn't make a claim for specific perfor mance in an ordinary contract case.

"The expert was full of beans," Mudger said. "It was like telling a doctor to prescribe penicillin for colds. It's a lot easier to get money damages than it is to get specific performance, and asking for spe cific performance would not have helped her case. But it shows that you are more likely to get criticized for what you leave out than what you put in."

"Another part of the problem," said Angus, "is that we grow at tached to our own ideas."

"Bishwah," I heard Myra He bert say as she joined the group.

Angus looked at Myra over the top of his glasses. But it was Beth Golden who piped up with, "Hey, Myra, I've been meaning to tell you. Judge Mudrock said your sug gestion for changing the jurisdic tion of the Court of Common Pleas was the dumbest idea he's heard in years."

Myra started to explode about what a fool Judge Mudrock was, but Beth said, "Relax, Myra. The

HP?

judge ^^^ij^eWIBIIBillP ? -

really didn't say anything about your sugges tion. I just wanted to see how at tached you are to your ideas."

Angus continued. "It's kind of like pride of authorship. Once you've written something, it's hard to let it go, even if it no longer fits what you're working on,"

"You're not alone," I said. "Richard Leighton at the law firm Keller and Heckman in Washing ton, D.C., says, 'After you've lived

with an idea and

'Creating a unified, coherent theory is the most important job you've got in any case.'

worked on it for a number of years, it's part of you. Get ting rid of it is like cutting off one of your fingers.'

"

"Which means," said Angus, "that the sin of clutter ing is not always letting something into the case, but failing to get rid of it when it counts. What we need are techniques for clearing out the clutter."

"Sounds great," I said. "I knew that's why you were

here," Myra said to me. "You al ways come to the Brief Bag looking

76 ABA JOURNAL / JULY 1999 ILLUSTRATION BY JOHN SCHMELZER

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Page 3: The Case Against Clutter: Presenting too much 'stuff' will drive the jury to distraction

for Angus when you need some thing to put in your column."

I tried to look at Myra over the top of my glasses the way Angus did, but it must not have worked because Beth Golden didn't jump in this time.

Anyway, here are my notes:

Unclutler Your Case Theory *

Creating a unified, coherent theory is the most important job you've got in any case. It is the com bination of story and legal principle on which you hang all of your im portant facts, and it should make

the judge and jury want you to win.

Approach this job with care. What you keep out of your theory of the case is just as im portant as what you

include. Albert Zakar

ian at Day, Berry & Howard in Hartford, Conn., says, "More than half my time in final preparation is in thinking about what I'm not going to do."

Think of putting your case together as if you were cleaning out your desk drawer. When it's filled with three or four years' accumula tion of junk, the quickest way to set it right is to dump everything out on top of your desk and only put back what really belongs.

The chicken soup theory is wrong when it comes to trying cases. While hot chicken soup may not cure the flu, people always say, "At least it can't hurt."

But when it comes to trying a case, if something doesn't help, it hurts. It's clutter that gets in the way of something valuable.

Whenever you can, concede the points you are not going to win. Putting your heart into trying to prove a loser undercuts your credi bility and poisons your whole case.

Of course there are times when

your case demands jousting with a windmill. But only do it when you must. Don't fight unnecessary battles.

Keep the claims that show the unfairness of your opponent. Asking the judge and jury to right a wrong is the most powerful thing you can do. Like they say, the key to big damages is big fault.

Get rid of claims or defense that make you or your client look greedy, grasping, overreaching or

vindictive. This ?will sometimes put you in the difficult position of trying to re strain an unrea

sonable client who has become the victim of his or her own rhet

wdHF: rein on your cli

j?MMlJJ^t ent is an impor

Hy'^g^p^" tant part of trial

A ^?feP^ ? Be consis ?y-^glfet--

tent. Although the

P^ss^^** law specifically per

s^^i^??f ' 'mits inconsistent de ^^ ^?1

fenses and claims, com

^Jj^S^ mon sense says they

)?^mmf are often an invitation

HB&^ to disaster. L ? No matter how much

you like a theory or the evidence that proves it, if it doesn't fit, get rid of it.

Talk to someone who has a fresh view of the case.

Don't Use All Your Evidence Prudence says start out hav

ing at least two ways to prove every fact essential to your claim or de fense. You can use any combination of witnesses, documents, exhibits and depositions. This is not a legal requirement?just a good insur ance policy.

Now that you've got more than enough evidence to prove your case, you are ready for the second rule: Don't introduce everything you've got. First, youH put the judge and jury to sleep with need less repetition of things that really are not in dispute. Second, you'll in crease the risk of inconsistencies that will give your opponent some thing to attack you with.

Pick what is easy, simple and direct.

Choose witnesses who are

pleasant, understandable and fun to listen to.

Avoid long-winded, disagree able, pompous and incomprehensi ble witnesses whenever you can.

Don't haze the jury by mak ing them go through ever^hing you had to learn to understand your case. Use what is interesting, rele vant and persuasive. Ask yourself, what do they really have to hear, and what can I leave out?

Use summaries, charts, dia grams and pictures under Rule 1006 of the Federal Rules of Evi dence to avoid burying the judge and jury under a mountain of paper.

Include why things hap pened as part of your proof. Law yers spend too much time proving what and tend to forget about why. But jurors care a lot about why. Without a good reason for some conduct or event, they may have trouble believing it actually hap pened.

Evidence that makes the case come alive, makes the jury care about your client, or makes the facts interesting and understand able is not clutter.

Don't try to conceal evidence that hurts your case. Bring it out yourself in the middle of the case (so you don't draw undue attention toit).

Don't quibble on cross-exam ination or spend your time on picky, little inconsistencies unless you can

eventually make them pay off in a

big way. Juries are not impressed when you impeach a witness on

something that really is not impor tant.

Don't needlessly attack any one?especially independent eye witnesses or people you think the jury will like.

Think about what objections your opponent could make to each piece of potential evidence.

Always think about what doors to other proof you are opening with each piece of evidence you are

planning to introduce. Keep your questions clear

and simple. It will improve all of your witnesses' answers.

When Angus stood up to leave, Myra Hebert said, "If cluttering is as good as you can come up with for the first of the seven deadly sins of trial lawyers, you'll have trouble coming up with six more."

Angus looked at her over the top of his glasses.

ABA JOURNAL / JULY 1999 77

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