Georgia Injury Lawyer Blog

This is a question that we are asked by virtually every client in every case we have. The answer is that if a settlement offer is made which is approximately equal to what one can expect to receive at a jury trial then the case should be settled. In other words, there would be no need for a jury trial because the settlement offer being made is approximately what one would likely receive in front of a fair and impartial jurors. If the offer is below what one is likely to receive from fair and impartial jurors then we recommend that clients not accept the settlement offer. Obviously, if the offer is above what we reasonably believe a fair and impartial jury would award in a particular case, we recommend that our client accept such an offer.

It is not always easy to predict what a fair and impartial jury would do with a particular case. The nuances and unique facts of any case obviously influence claim evaluation. If liability is strong and if damages are good and the client otherwise makes a favorable impression, such a case has a greater settlement value than does a case where there are liability issues, damage issues and/or client problems. As always, the facts are key but sometimes the law as it pertains to the unique facts involved will dictate as well the outcome of the case and/or the evaluation of a particular claim.

Sometimes the law is not favorable to a particular position that a party has in litigation. The less favorable the law to their position, the less valuable the claim from a claim evaluation standpoint. In those cases where a client has been victimized by the negligence of a third party, they are truly innocent in the premises and their damages are clear and easily proven, such a case has greater settlement value than does one where the damages may be attributable to acts other than the negligence, there is contested liability based on the facts and circumstances of the case and/or the client’s expectations are unreasonable or they do not make a very positive impression and thus a jury may not like them.

What we try to do in representing our clients is to make sure that their cases are presented in the best light possible so that we can get the best possible result for them. If an offer is made that is equal to what we believe a fair and impartial jury would award, we always recommend that such a client consider such a settlement proposal assuming it is made. Of course, it is the client’s ultimate decision whether they wish to settle or rely upon fair and impartial jurors to resolve their case. Going to trial can be a gamble because oftentimes one can get a lesser verdict than they would have obtained via settlement. If the client is fully informed of these risks and nonetheless wishes to go to trial, sometimes the award obtained is higher than one might otherwise obtain through settlement. As long as the client is fully informed of their options and counsel is fully prepared to present the strongest case possible to the jury, the client should be advised that a jury trial is an option that they should consider, however, in weighing their options, if the offer made is reasonable and is likely to approximate what a fair and impartial jury might award, then in that event, we always recommend that our clients consider such a settlement offer while deferring to their discretion whether they wish nonetheless to accept the risk of going forward to a jury trial.

Mediation can be employed at any stage of a civil dispute. It can occur before or after a lawsuit is filed. Our experience at this firm has typically been that mediation occurs after a lawsuit is filed and after the parties have become well acquainted with the strengths and weaknesses of both sides of the dispute. Once the parties have access to all the operative and materials facts via written discovery and depositions, it is not uncommon for one party to suggest a mediation of the dispute.

Once mediation is agreed upon, a third party neutral or mediator is selected to preside over the mediation session. The third party neutral is typically an experienced attorney or judge who has experience with the type of dispute at issue. Whether the case involves medical malpractice, products liability, wrongful death, a tractor-trailer accident or other personal injury claim, typically, one tries to select a mediator who has extensive experience in such a case. The parties then appear jointly at a prearranged mediation conference after which time the mediator takes over as a presiding third party neutral.

The role of the mediator at the mediation conference is to facilitate settlement negotiations. The mediator typically listens to both sides summarize their respective contentions and then the mediator meets privately with each side trying to get one side to make an offer and the other side to make a counteroffer thereto. During the negotiation process the mediator probes the weaknesses and strengths of each side and encourages both sides to be open minded always agreeing to compromise their respective positions. Any successful mediator or third party neutral tell both sides that in order for a settlement to occur both sides have to negotiate in good faith and have to agree to compromise, that is accept less than what they would ideally want but nonetheless try to reach a good faith compromise agreement to resolve the dispute.

Typically, at our firm, as long as the mediator is qualified, we allow the defense to select whom ever they wish. Our logic is that if the defense selects a mediator, by definition, they must have confidence in his or her abilities to evaluate a claim. We always agree to whomever the defense selects because we are confident that we can convince a neutral third party mediator of the strength of our case and thus, if they accept our position, they will be able to successfully advocate to the other side who selected them that they should reconsider their position and increase their settlement offer.

Some mediators are better than others either due to experience and/or personality. When an experienced mediator gets involved in the process, we have found that between 80 to 90 percent of the time a case does settle at mediation. This is a very good track record which indicates that when both sides have access to all of the material facts that are needed to evaluate a claim and when both sides are assisted by a third party neutral, the chances of a successful settlement are good.

Today I attended the funeral of Thomas E. Magill, a well respected insurance defense attorney in Atlanta. Tom was a absolute pleasure to work with as a defense attorney. Even though his clients were always large insurance companies, Tom dedicated himself to the administration of justice. He was always fair minded, hard working, competent and professional in every sense of the word. I told his wife at his funeral today that working with Tom made me proud to be a lawyer. There were many lawyers in attendance at his funeral who echoed similar sentiments.

The legal profession often is derided by the public for being greedy, insensitive, focused on money and things of that nature. When you reflect on the life of a man like Tom Magill, you see that some of the lawyer jokes and stereotypes are completely misplaced. Tom Magill is the type of man that makes us here at our firm proud to be lawyers. Tom was an active member of his church and community, he was a selfless worker for making sure that justice was served in the cases that he handled for his clients and he always did so with grace, competence and the highest sense of ethics and professionalism. He was a role model for all attorneys.

It is appropriate that we pay tribute to Tom Magill here in our blog. We can only hope and aspire to achieve the many things that Tom did throughout his life. He was truly a very wonderful man and stalwart member of the Georgia Bar. His grace and sense of humor, ever present optimism and kind nature will be missed. May he rest in peace.

Rule No. 12 of 12: The successful cross-examiner understands the risks of cross-examination.

As set forth above, if an attorney asks a question that he does not know the answer to or asks one question too many, he is inviting disaster. Cross-examination is risky, particularly if a witness is hostile and adverse. If leading questions that are designed to make the witness answer with either a yes or no are not asked or if counsel begins sparring with the witness, counsel has lost control of the witness. Sparring with the witness means allowing the witness to speak or to give speeches in front of the jury, which is never a good thing for a client’s case, particularly if the witness has been called by the opponent to do damage to your client’s case. Thus, before standing up to begin cross-examination, counsel has to understand that it is a risky enterprise. If it is not done correctly, more damage can be inflicted than was done on direct examination. If the Twelve Rules of Cross-Examination are not adhered to or the alternative purposes of cross-examination explored well in advance of the exercise, counsel may do more harm than good in attempting to cross-examine any witness. In short, experienced trial counsel know not to ask one question too many and to sit down when they are ahead after they have scored what points can be scored on cross-examination, if any. By preparing cross-examination well in advance of trial and by following the rules set forth above, the truth will emerge and justice achieved.

Rule No. 11 of 12: The successful cross-examiner has the ability to make what appears to be complex become simple.

In order to adhere to this rule, experienced trial counsel knows that they must use language that layman can understand. Using lawyerly language or expansive vocabulary is not the way to go. Counsel must boil down the issues to as few as are possible so that the jury can understand what the issues are and follow the testimony and the relevance of the examination. If counsel becomes too technical and fails to make sure that the testimony being offered can be understood by the average juror then cross-examination will be ineffective. Thus, it is important that trial attorneys use language that everyday people understand and that they use language in such a way as to communicate effectively and directly. If this is done, there is no reason an attorney cannot be a successful cross-examiner.

Rule No. 10 of 12: The successful cross-examiner knows how to force an evasive witness to give a responsive answer.

When a hostile or evasive witness refuses to answer a question, counsel must be firm and persistent in getting the answer desired. The first thing to do is to repeat the question. If the witness continues to evade, ask the witness what it is about the question that he or she does not understand. If necessary, have the court reporter read the question back to the witness. Finally, if all else fails, ask the Court to admonish and instruct the witness to answer the question.

Counsel must control the witness rather than allowing the witness to use counsel to aid his or her cause. Controlling a witness means insisting on an answer and getting the answer. If a witness has testimony in a deposition that is inconsistent with their prior testimony and they do not want to admit to it, they need to be confronted directly and then impeached. If the witness says that the car was blue and they take the stand and say the car is red, they must be shown their prior deposition testimony, they must be asked if they previously testified under oath to a different color, they must be asked to review their deposition, they must be shown their deposition and they must be repeatedly and persistently questioned until they admit the prior inconsistent testimony. Good trial lawyers can get answers to their questions if they are persistent.

Rule No. 10 of 12: The successful cross-examiner knows how to force an evasive witness to give a responsive answer.

When a hostile or evasive witness refuses to answer a question, counsel must be firm and persistent in getting the answer desired. The first thing to do is to repeat the question. If the witness continues to evade, ask the witness what it is about the question that he or she does not understand. If necessary, have the court reporter read the question back to the witness. Finally, if all else fails, ask the Court to admonish and instruct the witness to answer the question.

Counsel must control the witness rather than allowing the witness to use counsel to aid his or her cause. Controlling a witness means insisting on an answer and getting the answer. If a witness has testimony in a deposition that is inconsistent with their prior testimony and they do not want to admit to it, they need to be confronted directly and then impeached. If the witness says that the car was blue and they take the stand and say the car is red, they must be shown their prior deposition testimony, they must be asked if they previously testified under oath to a different color, they must be asked to review their deposition, they must be shown their deposition and they must be repeatedly and persistently questioned until they admit the prior inconsistent testimony. Good trial lawyers can get answers to their questions if they are persistent.

Rule No. 10 of 12: The successful cross-examiner knows how to force an evasive witness to give a responsive answer.

When a hostile or evasive witness refuses to answer a question, counsel must be firm and persistent in getting the answer desired. The first thing to do is to repeat the question. If the witness continues to evade, ask the witness what it is about the question that he or she does not understand. If necessary, have the court reporter read the question back to the witness. Finally, if all else fails, ask the Court to admonish and instruct the witness to answer the question.

Counsel must control the witness rather than allowing the witness to use counsel to aid his or her cause. Controlling a witness means insisting on an answer and getting the answer. If a witness has testimony in a deposition that is inconsistent with their prior testimony and they do not want to admit to it, they need to be confronted directly and then impeached. If the witness says that the car was blue and they take the stand and say the car is red, they must be shown their prior deposition testimony, they must be asked if they previously testified under oath to a different color, they must be asked to review their deposition, they must be shown their deposition and they must be repeatedly and persistently questioned until they admit the prior inconsistent testimony. Good trial lawyers can get answer to their questions if they are persistent.

Rule No. 10 of 12: The successful cross-examiner knows how to force an evasive witness to give a responsive answer.

When a hostile or evasive witness refuses to answer a question, counsel must be firm and persistent in getting the answer desired. The first thing to do is to repeat the question. If the witness continues to evade, ask the witness what it is about the question that he or she does not understand. If necessary, have the court reporter read the question back to the witness. Finally, if all else fails, ask the Court to admonish and instruct the witness to answer the question.

Counsel must control the witness rather than allowing the witness to use counsel to aid his or her cause. Controlling a witness means insisting on an answer and getting the answer. If a witness has testimony in a deposition that is inconsistent with their prior testimony and they do not want to admit to it, they need to be confronted directly and then impeached. If the witness says that the car was blue and they take the stand and say the car is red, they must be shown their prior deposition testimony, they must be asked if they previously testified under oath to a different color, they must be asked to review their deposition, they must be shown their deposition and they must be repeatedly and persistently questioned until they admit the prior inconsistent testimony. Good trial lawyers can get answers to their questions if they are persistent.

Rule No. 10 of 12: The successful cross-examiner knows how to force an evasive witness to give a responsive answer.

When a hostile or evasive witness refuses to answer a question, counsel must be firm and persistent in getting the answer desired. The first thing to do is to repeat the question. If the witness continues to evade, ask the witness what it is about the question that he or she does not understand. If necessary, have the court reporter read the question back to the witness. Finally, if all else fails, ask the Court to admonish and instruct the witness to answer the question.

Counsel must control the witness rather than allowing the witness to use counsel to aid his or her cause. Controlling a witness means insisting on an answer and getting the answer. If a witness has testimony in a deposition that is inconsistent with their prior testimony and they do not want to admit to it, they need to be confronted directly and then impeached. If the witness says that the car was blue and they take the stand and say the car is red, they must be shown their prior deposition testimony, they must be asked if they previously testified under oath to a different color, they must be asked to review their deposition, they must be shown their deposition and they must be repeatedly and persistently questioned until they admit the prior inconsistent testimony. Good trial lawyers can get answers to their questions if they are persistent.

Rule No. 9 of 12: The successful cross-examiner has a good beginning and good ending to the cross-examination of the witness.

If counsel is prepared through proper investigation and discovery, counsel can start off strong and end strong. A good beginning gets the cross-examination rolling and prepared ending gets counsel down if he needs to get down without being too badly damaged by the opponent’s witness. Again, this all goes back to another rule, which is to prepare cross-examination in advance of trial.

When one looks over their file materials, prior depositions, statements and other information in the file, one should be able to come up with an outline that starts off with a favorable point to be made for the client’s case and after discussing other pertinent matters within the witness’s purview, ends with another favorable point also helpful to the client’s case. It’s always detrimental if cross-examination ends on a low note where a blow is struck and the cross-examination is unsuccessful and the client’s case hurt. To avoid this, a good beginning and a good ending prepared in advance of trial will assist counsel in adhering to this rule.

Rule No. 8 of 12: The successful cross-examiner listens carefully to what the witness says in response to his questions on cross-examination.

As set forth above, counsel should know what a witness will say in response to each question posed. No question should be asked that the answer is not known in advance. Nonetheless, sometimes, an answer more favorable than anticipated may be given by the witness or impeaching or contradicting of yet another witness. By listening closely to what the witness says on cross-examination, counsel can make sure that they take advantage of any “openings” provided by the testimony. It may be that one answer was anticipated but yet a better answer provided which creates an opening for an entire new line of examination. In short, as set forth in our entry above, if counsel is to be a good cross-examiner, counsel must learn to listen, not only to the witness’s direct testimony, but also to responses to the cross-examination underway. Many times, opportunities can be lost if counsel is too focused on their pre-prepared outline and is not listening closely to what the witness is actually saying from the witness stand.

Rule No. 7 of 12: The successful cross-examiner listens to the witness’s direct testimony.

When a witness is called by the other side to testify against one’s client, one must be very careful to listen to that witness. Even if counsel has had the benefit of taking the deposition of the witness and has a beautiful outline to be used for anticipated cross of the witness, counsel must nonetheless listen very closely to the actual testimony given before the jury. It may be that the witness changes their testimony or offers less damaging testimony than was anticipated. It would make little or no sense to adhere to a pre-prepared outline script in such a situation. Counsel must be willing to adapt a proposed cross-examination outlined for any witness. The best way to do this is to listen carefully to what the witness is saying.

During cross-examination, counsel must keep his notes to a minimum because taking notes can be distracting and can interfere with listening to what the witness is saying. If proper investigation and discovery has been done, counsel should know what the witness will say in any event, but there have been many cases where witnesses do slightly alter their testimony, thus causing for a change in the cross-examination of that witness. Listening is the key to this rule.

Rule No. 6 of 12: The successful cross-examiner stays calm and collected whatever happens.

During the testimony of a witness, particularly where the witness is providing very damaging testimony, counsel cannot flinch or otherwise demonstrate through body language that his client’s case has been hurt. Counsel must always stay calm and collected because body language many times can betray counsel’s representation of their client.

When a witness is being evasive or refuses to answer questions or asks counsel questions from the witness stand, counsel must not argue with the witness or answer any of their questions, but rather must stay calm and collected and stay in control of the witness. As long as counsel consistently reflects a professional demeanor, this communicates to the jury confidence in one’s cause.

Rule No. 5 of 12: The successful cross-examiner never asks an open-ended question such as “why” unless it does not care what the answer is.

In discussing rule 4 above, we gave a good example of why you do not ask open-ended questions. If you ask a witness “why?” they will tell you. In other words, they will give a speech, which usually will hurt your client. If you are cross-examining a witness, by definition, that means that the witness has been called by the other side to offer testimony against your client. If you ask them an open-ended question, you are giving them a chance to speak. Thus, you should usually ask questions that ask for a yes or a no response. You should not even ask those questions unless you know what the answer is going to be.

In some circumstances, you really do not care what the answer is. For example, if a witness has been paid by a magazine for their story and they are alleging that a celebrity defendant has allegedly committed a sexual assault against their friend, you can ask them all kinds of questions about, “Isn’t it true that they were paid for their testimony?” etc. Of course, they will deny it, but if you have evidence that they hired an agent, were paid by the magazine, etc., then it does not really matter what they say because they will be sufficiently impeached before the jury in any event. Always ask leading questions that suggest the answer you want. Avoid open ended questions such as why or how and you will follow this rule.

Rule No. 4 of 12: The successful cross-examiner never asks a question unless he knows what the answer will be or doesn’t care what it is.

Unless counsel is fully prepared, has fully investigated the case and has conducted necessary discovery, this rule is difficult to follow. On the other hand, if counsel knows everything about the case then there is no reason why this rule cannot be followed and, in fact, it should be followed in all cases. Otherwise, disaster can strike.

There is an old story that illustrates the rule. A witness apparently in the 1800's witnessed a fight between two men. It was dark outside and the witness had a poor angle on the fight. (The defendant was being tried for biting a man’s ear off and the witness admitted that he did not see the defendant bite the man’s ear off.) Counsel on cross-examination successfully was able to show that the witness could not see the alleged assault and battery for which the defendant was being tried. Rather than sitting down after establishing this on cross-examination, counsel asked one question too many. “So if you didn’t see him bite it off, how do you know he bit the ear off?” The witness answered: “Because I saw him spit it out.”

If you know what the answer is to every question, you are safe to ask the question, but if you do not know the answer you should not be asking the question. By asking questions which will give safe answers not detrimental to your case, you are better off than proceeding blindly into areas that are not safe or known. question, you are safe to ask the question, but if you do not know the answer you should not be asking the question. By asking questions which will give safe answers not detrimental to your case, you are better off than proceeding blindly into areas that are not safe or known.

Rule No. 3 of 12: The successful cross-examiner avoids the appearance of pettiness, nit-picking or unfairness to the witness.

Even though we practice in an adversarial system, there is no necessity to be adversarial with the cross-examination of each and every witness. Righteous indignation needs to be saved for appropriate occasions where the witness is clearly lying or needs to be exposed for some form of aggravated misconduct. Counsel must reserve outrage and indignation for the proper case.

If trial counsel is unfair to any witness or is otherwise petty, the jury may subliminally hold this against counsel and by definition counsel’s client. Thus, the third rule of successful cross-examination is to be fair but firm in the cross-examination of all witnesses and where appropriate, adversarial, provided the case justifies it.

Rule No. 2 of 12: The successful cross-examiner always has a purpose for each question that is asked or not asked.

When preparing a cross-examination of any particular witness, counsel has to consider what they want to say about the witness in closing argument. Sometimes, if a witness does not hurt your client’s case, the best cross-examination is to ask no questions at all. The general rule is “no harm no foul,” therefore, if a witness is called against your client and ends up testifying in a manner that really does not hurt them in any way, the best cross-examination may be one that asks no questions whatsoever. However, if questions are asked, they have to be asked in such a way as to do no harm to one’s case.

Sometimes, the purpose of the cross-examination may be to conceal the fact that you do not really have anything to attack the witness on. In other situations as addressed above, it may be possible to successfully impeach the witness through prior inconsistent statements. Either way, as part of the preparation by counsel, in advance of trial, counsel has to consider each question being considered for the witness and has to satisfy him/herself that the question will achieve a goal and that the goal is worth pursuing with respect to the cross-examination of that witness. Again, the successful cross-examiner always have a purpose for each question that is asked or not asked.

In our prior four (4) entries, concerning the art of cross-examination, we have discussed the objectives of cross-examination and have suggested that there are four (4) alternative purposes for successful cross-examination that should be considered by trial counsel. In this article, we are going to address techniques involved in successful cross-examination. Any experienced trial counsel will recognize these rules as being fundamental to a truly successful cross-examination of any material witness.

Rule No. 1 of 12: The successful cross-examination is well prepared in advance of the exercise.

When you shoot from the hip during a trial, you generally shoot yourself in the foot. Depositions, witness statements, exhibits and everything in the file must be carefully considered and reviewed in advance of trial to find material for suitable cross-examination. As an example, trial counsel should look for opportunities to get two witnesses for the opposing side to contradict one another. Trial counsel must review every single thing in the file to see what objectives can be met when considering the four (4) alternative purposes of cross-examination. This requires extreme attention to detail and meticulous preparation in advance of trial. Even the nature of the questioning, as we shall see in a later discussion of the discipline required for this art is very important because preparation in advance of trial allows counsel to craft questions carefully, usually in a leading manner, which will insure that counsel gets the answers they seek while at the same time insuring against eliciting answers they do not seek.

In this our fourth entry, we discuss again the objectives of cross-examination. We have talked about obtaining evidence which is favorable to one’s case, impeaching or corroborating the testimony of another witness in the case and discrediting the testimony of the witness through proof of prior convictions, inconsistent statements or prior writings. In this entry, we address another alternative to cross-examination and that is “to appear to be cross-examining a witness without really doing so” because counsel really does not have anything that can be accomplished otherwise.

A classic example of what we address in this article is the testimony of a wife or close friend who is called to testify in support of their spouse or friend. Here, questions about the relationships with the parties, cross-examination about their having met with lawyers concerning their testimony before taking the stand and other such innocuous matters may appear to be effective cross-examination in front of the jury when in actuality there is very little that can otherwise be accomplished. If the other alternatives of cross-examination are unavailable, that being that there is no ability to impeach the witness and there is no favorable testimony that can be elicited from them (this is the rare case as typically there is always some favorable testimony that can be elicited) then in such a case, counsel should consider a very brief cross-examination which will leave the jury with the impression that no cross-examination is even necessary given the close relationship between the parties.