8 Trial Lawyer • Winter 2022 Conservative jurors tend to be rulebased. The law is your weapon, use it. The judge reads the law to the jurors, you argue the law and share the reasons why it applies and is important, and then the jurors take a written copy of the law with them into deliberations. Problems and challenges I create a comprehensive list of all my client’s prior problems and challenges. This walks right into the multiple causation instruction of UCJI 23.02. The longer the list, the more fragile and vulnerable (“as is”) the plaintiff was. This strategically encourages you to embrace all your client’s admissible short-comings. It’s counter-intuitive and akin to the analogy of the “straw that breaks the camel’s back” or a tipping point. Position yourself on the high legal and moral ground. You know the defense will go after your client, so anticipate it and turn it to your advantage. My suggestions will at least minimize its impact and will allow you to punish the defense for the effort. Like the martial art of judo, use your opponent’s anticipated force against them. Don’t polish your client in an effort to help them look as good as they want to believe they were before the liability event. If you honestly have a great client and great damages, then more power to you. I rarely see them. In Don’t Eat the Bruises, Chapter 13, “Owning Their Favorite Facts,” Keith Mitnik does an excellent job of reframing an opponent’s best facts by putting them “in context.” He illustrates this with examples from low impact cases (MIST) and known complications in medical negligence claims. Strategies to consider Let me offer you a few additional strategies. Consider having a conservator appointed to represent the plaintiff per ORS Chapter 125 et. seq. This involves an order by a judge finding that the plaintiff is not qualified to manage their assets or this claim. This can be a tacit shield that helps to protect your client from explicit and implicit allegations of comparative fault. I call the court approved conservator as a witness (technically they are the party plaintiff) and have them explain what their fiduciary duties are and how they must file annual accountings with the court that a judge must review and approve. This means your drug addicted client can’t blow any money the jury awards on more drugs and alcohol. When I’ve sued churches or youth service organizations, their lawyers can’t Embrace Your Clients Continued from p 7 Like the art of judo, use your opponent’s anticipated force against them.
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