6 Trial Lawyer • Winter 2022 By Bill Barton OTLA Guardian As I review my career, most of my clients have had plenty of blemishes on their character and in their lives. I was born into the world’s dark underbelly, so growing up I rarely met anyone who wasn’t beat up or broken. Maybe that’s an explanation for why I’m so comfortable representing real people, with all their shortcomings and flaws. It’s easy for me to see the best in prostitutes, the homeless and society’s “failures.” When younger, I took this quality for granted. However, with age I’ve come to understand it as a gift. My judgmental shadow always lurks nearby, however, it’s a short step to compassion and hope. I’ve had multiple bouts of therapy, and I work hard to live in keeping with my “better angels.” Maybe that’s why, when representing my “unworthy” and/or disadvantaged clients, I feel like I’m looking across, and sometimes even up, rather than down. I view jury trials as referendums of citizenship between the parties and their lawyers. This demands that you embrace all your client’s admissible flaws. Your honesty must shine through. As the plaintiff’s lawyer, you’re the one attorney who must overcome the burden of proof. You must wear the white hat, or at least the whitest one. Remember, if you’re pointing your finger at an opponent, your other three fingers are pointing back at you. First, try to get rid of the worst or most damning facts with a pretrial motion to exclude them because they’re too prejudicial per ORE 403. This argument is often successful. However, if you lose, then, the sooner you own your problem facts, the more credible you will be. Yes, you might lose the trial, but it won’t be for the wrong reason, meaning you and your client lacked credibility. Begin with liability There’s never just one approach to maximizing damages. I always begin with the defendant and liability facts. Why? Because strong liability keeps the jurors’ “focus of judgement” on the defendant. I go upstream as far as possible in a vigorous investigation and discovery to try and turn otherwise vanilla allegations of fault into a choice motivated by indifference, self-interest or profit. Then I return to the present and show every time this prior “choice” was affirmed and a potential advantage gained. I’m also searching for any effort by the defense to minimize or hide this danger. My argument is the defendant knew, or should have known, that sooner or later someone was going to get hurt. The question is not if, but when. Therefore, the plaintiff is not just a statistic, but an accident waiting to happen and, therefore, a cost of doing business to a commercial defendant. This turns my case into a public de facto class action and is what the Reptile1 is all about. When your opponents inevitably defend by highlighting your client’s many shortcomings, it further legitimizes your arguments that it is they who lack character. Your client is their victim, they effectively picked her, and now they opportunistically want to complain about what she’s not. No, it’s not the plaintiff who lacks character, it’s the defendants Bill Barton EMBRACEYOUR CLIENTSWITH ALL THEIR FAULTS
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