2019 NJSBA Mid-Year Meeting

Credibility: Proving your case through the other side’s witnesses (or Adverse Witnesses)

Moderator/Speaker:

Craig M. Aronow, Esq. Rebenack, Aronow & Mascolo, LLP, New Brunswick

Speakers Include:

Hon. Alberto Rivas, A.J.S.C., Middlesex

Norberto A. Garcia, Esq., NJSBF President Blume, Forte, Fried, Zerres & Molinari, Jersey City

Edward J. Rebenack, Esq. Rebenack, Aronow & Mascolo, LLP, New Brunswick

David L. Wikstrom, Esq. Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C., Springfield

TRUSTWORTHINESS REDUX Crucial Trial Techniques for Personal Injury Cases in New Jersey for Plaintiffs and Defense.

JAMES HELY, J.S.C THE NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION

For over 50 years, the New Jersey Institute for Continuing Legal Education, a division of the NJSBA, has served the needs of the New Jersey bench and bar. From seminars and legal manuals to CLE on-demand videos and other educational tools, our products are designed to provide the latest strategies, expert advice and guidance to practitioners at every stage in their career.

Our success in providing the legal community with the highest quality educational products would not be possible without the countless attorneys, doctors, dignitaries and other legal experts who volunteer their efforts to serve as lecturers and authors. NJICLE is proud to be the conduit through with they share their knowledge, skills, and expertise with their fellow professionals.

For more information about NJICLE seminars and publications, please visit NJICLE.com.

The material contained in this publication is for educational purposes only and is not intended to serve as a substitute for the professional services an attorney would normally provide to a client, including up to the minute legal research.

©2017 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to NJICLE, a Division of the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520. About the Author

James Hely is a New Jersey Superior Court Judge in Union County. Before becoming a judge in 2009, he was a Supreme Court Certified Civil Trial Attorney and practiced law for 29 years. As an attorney, he tried more than 100 jury trials. As a judge, he has presided over more than 100 jury trials.

He wrote the book, Trustworthiness: A Trial Strategy Manual for Plaintiff’s Injury Case in New Jersey. This manual was published by the New Jersey Institute for Continuing Legal Education in 1998. He is also the author of the book, New Jersey Law of Personal Injury, which is updated annually.

Judge Hely serves as an Adjunct Professor of Law in trial advocacy at Rutgers Law School. For the last ten years, he has been a member of the New Jersey Supreme Court Rules of Evidence Committee.

He is a graduate of Westfield High School, Gettysburg College and Rutgers Law School. He has been married to his spouse, Lois, for forty-two years, and they have three grown children.

NJICLE would like to thank Judge Hely for his selfless donation of time and effort in writing this book. He does not receive any remuneration or royalties of any kind.

Chapter 1

Learning the Craft

Back in the 1990s, I thought I had learned enough about the trial of a personal injury case in New Jersey to commit those thoughts to paper. Based upon that writing, the New Jersey Institute for Continuing Legal Education (NJICLE) agreed to publish it as a small book titled, Trustworthiness: A Trial Strategy Manual for the Plaintiff’s Injury Case in New Jersey (1998).

Back then, I was part of a small plaintiff’s law firm, so almost all of my trial experience was from the plaintiff’s side. Thus, the book was for plaintiff’s attorneys. However, I do recall trying two cases for defendants, one of whom was self-insured, and the other where a young man was insured by his auto carrier, but he asked me to try the case as personal counsel.

Right out of the gate from law school and the bar exam, I tried to learn as much as I could soak up about trial work and the Rules of Evidence. As many law school students and lawyers will remember, the greatest and most popular teacher of evidence and trial technique during the 1970s and 1980s was Irving Younger. Professor Younger had been an Assistant U.S. Attorney, a trial lawyer in private practice, a judge in New York, and a law school professor. Back in the early 1980s, one of the first investments I made in my then front porch solo law office was to purchase Irving Younger’s lectures on audio cassette tapes. The whole Younger oeuvre consisted of about 50 hours of lectures.

I listened to those lectures over and over, particularly as I was driving back and forth to court houses all over Northern and Central New Jersey.

Also, I tried to hear as much as I could from New Jersey trial lawyers. Prominent speakers at that time were former U.S. Attorney Herbert Stern and U.S. District Court Judge Lacey, and ICLE showcased those two. The Association of Trial Lawyers of America, now the American Association of Justice (AAJ) held very helpful seminars around the country, and I purchased cassette tapes of those lectures as well. The basic question addressed by that organization’s programs was, how do you get a jury to give a client money in a personal injury case?

The New Jersey branch of the Association for Trial Lawyers of America, which is now called the New Jersey Association for Justice, really got rolling on continuing legal education as the 1980s unfolded. That organization developed

1 what became known as the Boardwalk Seminar down at Atlantic City every spring. The Boardwalk seminar has grown to be a huge two-day event for New Jersey lawyers seeking to improve. On Friday mornings at Boardwalk, more than 200 attorneys will typically gather at 6:30 AM for two hours of what they call Litigation at Sunrise. There each designated speaker has just 10 minutes to make a presentation on a key practice area. I got tremendous benefit from attending those NJAJ seminars over many years.

Again, back in the 1980s, Jerry Baker and others started something called the Plaintiff’s Trial Academy. This was also sponsored by NJAJ and went for about twelve, two-hour sessions. This really helped me as a young attorney. Jerry Baker has devoted thousands of hours to training trial attorneys, and he is still doing so as I write.

Thus, when I started on the lecture circuit myself and wrote Trustworthiness, I not only had the benefit of my own trial and error experience, I had received the best of what sharing trial attorneys had passed on to me in continuing legal education classes. This was all before mandatory continuing legal education.

After Trustworthiness was published, it slowly developed what I came to call “a small, cult following.” I began to get letters from lawyers all over the state which thanked me for the insights they believed they got from the book. I also was approached at events by lawyers telling me the same thing. Many times, these letters and oral approaches recounted very successful verdicts obtained using a technique or techniques described in Trustworthiness. However small or large the cult may be, that is one of the proudest legacies I have.

In 2009, after twenty-nine years as a lawyer devoted to trial work, I had the good luck and honor to become a Superior Court Judge in my beloved home state of New Jersey. My assignment has included several years of conducting civil jury trials. I have been the judge in more than one hundred jury trials. I have interviewed more than a thousand prospective jurors. Sitting on the judge’s bench is physically elevated, and it has given me an enhanced view of civil justice. It certainly has given me an even deeper appreciation of the preciousness of our jury system.

I have observed some very great lawyers working the craft of trial advocacy. I have watched great lawyers as adversaries in a case. I have seen some serious mismatches. And, I have seen some below-average practitioners. All in all though, the trial of a lawsuit is a very honorable part of a noble profession. I hope I can impart the best of what I have observed here.

2 For the last couple of years, I have also served as an Adjunct Professor of Law at Rutgers Law School in a course on trial advocacy. There I get to work with full time Professor J. C. Lore and several other practical adjuncts like myself helping aspiring trial lawyer law students. That work with enthusiastic students is very invigorating, keeps me fresh, and has me always thinking about effective approaches.

It is invigorating to be part of this historic, yet vitally contemporary process. We can never forget that the resolution of a dispute through our courts’ civil trial process is what provides a peaceful alternative to violence or other extra legal means. A civil case has the same root word as civilization. Civilized society based on law is one of the greatest accomplishments in human history. As lawyers and judges, we get to be part of that wonderful evolving history.

What about the word in this book’s title, Redux? I first noticed this word from the title of John Updike’s second book in a series about a character he called, “Rabbit.” The title of that second book was Rabbit Redux, an update on the character after some years passed. Redux means brought back, revived, or restored. John Updike did not coin the term. Other novelists and poets have used the term much earlier. Since the original of this book was published almost two decades ago, a number of attorneys have suggested I update the older book with a fresh view of trustworthiness in the court room. Hence, Trustworthiness Redux.

This time around I am writing for defense attorneys and plaintiff’s attorneys. Some things have changed. Some things have not. In this writing I will try to bring some suggestions up to date. However, there is much in the original book that is just as valid today as it was in the 1990’s. Therefore, many of the original points will be repeated here.

The biggest substantive change slowly taking place in New Jersey trial practice is the stated goal of meaningful jury selection. Trial attorneys must be thoroughly familiar with our Supreme Court’s efforts to improve the jury voir dire process. Without meaningful jury selection, trials can be easily lost because of jurors who have not been properly queried about bias or prejudice for or against the civil jury system. I will discuss the rules of proper jury selection at length in a completely rewritten analysis of the subject.

Another substantive change that has had an impact on the trial of civil lawsuits is the procedural Court Rules that were revised under the rubric of “best practices.” Although this is not a book about pretrial procedures, the best practice rules are an

3 effort to allow both sides to know what each other’s case is about well before a trial starts. There should be no big surprises at trial, such as new witnesses or new theories that were not disclosed in discovery. Attorneys preparing for trial have to be sure that they have properly provided to their adversaries all the materials required by the discovery rules. If an attorney has not done so, he or she may well be barred from presenting such material at trial. That is as it should be.

4 Chapter 2 Where did the Civil Jury Trials come from and why does it matter? Trial attorneys need to know about and think about why we have jury trials. How did the jury trial develop? Why do we still have jury trials? Do we need to have jury trials? Lawyers need to know this stuff because they have to convey the essence of all this to the jury.

New Jersey was the geographic heart of the American Revolution. After years of debate and tumult about the British right to dictate and control the lives of those who lived in the American colonies, the Declaration of Independence was openly declared on July 4, 1776. As Benjamin Franklin said at the time of the signing, “We must all hang together, or assuredly we shall all hang separately.”

The British did not cotton to this colonial audacity. They proceeded to land hundreds of troop ships and thousands of troops on Staten Island in the summer of July, 1776. Then, the British assaulted and took over all of New York City, causing General Washington and his remaining troops to evacuate across the Hudson to Fort Lee. From high on the Palisades, Washington could see across the river his captured troops being executed as traitors. When the British attacked Fort Lee in November of 1776 in New Jersey, again the American forces had to withdraw. All through the remainder of 1776, Washington and his army were in retreat from Bergen County on down northern and central New Jersey and over into Pennsylvania on the other side of the Delaware River.

With General Washington during that time of retreat was Thomas Paine. It was then that Paine wrote, “These are the times that try men’s souls.” He added, “The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country.” Paine’s words were used by Washington to inspire his remaining soldiers.

The retreating stopped on Christmas day of 1776. Washington’s army re- crossed the Delaware and shocked the British forces in the Battle of Trenton. This was soon followed by another American victory at the Battle of Princeton. Over the next three and a half years, battles were fought throughout New Jersey; north, central and south.

Those New Jersey battles included the Battle of Connecticut Farms (June 7, 1777), the Battle of Red Bank at Fort Mercer (October, 1777), the Battle of Gloucester (November, 1777), the Battle of Short Hills (June 26, 1977), the Battle

5 of Monmouth (June 28, 1778), the Baylor Massacre (September 27, 1778), the Battle of Osborne Island (March 18, 1778), the Battle of Hancock’s Bridge (March 31, 1778), and the Battle of Springfield (June 23, 1780).

When the British left New Jersey following their inglorious defeat at Springfield, the British tried to cause as much damage as they could on the way out. They set fire to the village of Connecticut Farms (now Union) and Springfield. Earlier in 1780, they burned down the court house in Elizabethtown which sat on the site of the present-day Union County Court House.

It is commonly known that Washington and his army settled for the harsh winters during that period twice in Morristown and once in Raritan. The army was frequently ill clothed and close to starving during those winters. It was everything Washington could do to hold his troops together.

In thinking about the struggles that took place in our surrounds, it is worth wondering, what were they fighting for? The short answer is that they wanted to have control over their own destinies. The colonists did not want to continue under the divine right of kings.

Following the British surrender at Yorktown in Virginia in the fall of 1781, the colonies continued to limp along under the very loose Articles of Confederation. As this form proved unsatisfactory, colonial leaders gathered in secret in Philadelphia to set up a structure of government that would include free elections and rotating leadership. What they came up with in 1787 was a system where a president would be elected every four years. There would also be a legislative branch with a Senate and House of Representatives. As a third branch of government, there would be an independent federal judiciary.

When the proposed form of government was made public, and the Federalists explained the system and urged its adoption, there was a backlash at the grass roots. Where were the guarantees of individual rights and liberty that would consistently remain in place regardless of who was in power? After lengthy state by state debates and much hemming and hawing, it was agreed that the Constitution would be adopted as long as the ten Bill of Rights were included as amendments. These rights included freedom of religion, freedom of speech, and the freedom to be free in one’s home from search and seizure unless there is a warrant. The enumerated rights also specifically provided for the right to a jury trial in both criminal and common law civil cases. Why was a civil jury trial seen as so important?

6 The first civil jury trial in New Jersey goes back to the 1600s. Courts were established within the colonies long before the American Revolution in order that citizens could get disputes resolved peacefully without resorting to violence. Juries were seen as essential to a fair playing field in court. If the King or the King’s appointee sitting as a judge decided all disputes, a litigant would always be left to wonder if a decision was based upon who was in cahoots with the establishment or even, who had bribed the judge. The citizens who insisted upon the Bill of Rights wanted to be guaranteed that when disputes arose, the “fix was not in.”

In the years before the Revolution and the subsequent adoption of the Constitution, one of the most influential thinkers was William Blackstone. His Commentaries were originally published from 1765-1769. Blackstone’s Commentaries included a chapter entitled, “Of the Trial by Jury.” There Blackstone wrote that a jury trial “prevents the encroachment of the more powerful and wealthy citizens.” He added that not having juries establish facts is, “a step towards establishing aristocracy, the most oppressive of absolute governments.” True in the 1700s. True in the Twenty-First century. This is the way to resolve disputes peacefully.

In the Declaration of Independence, Thomas Jefferson noted one of the specific grievances against the King as, “depriving us in many cases, of the benefit of trial by jury.”

In the early days of our budding nation, two of the early leaders and fighters in the American Revolution got into a civil dispute. As it happens, both had part of their early education at the Old Academy school in Elizabeth just yards away from the court house. One went off to college at what would become Columbia. The other went down to Princeton. Did these two well-educated, eminent political office holders bring their dispute to court for non-violent resolution? No. They met early one morning in 1804 at Weehawken, New Jersey. They had a duel with pistols. Their names were Alexander Hamilton and Aaron Burr. Hamilton, the first United States Secretary of the Treasury was killed. Burr, the sitting Vice President of the United States at the time, destroyed his career. It would have been better for all concerned if this civil dispute had been resolved by a civil jury trial.

Even with the Bill of Rights, the Constitution was not a perfect document. Millions of Americans did not have the individual rights spelled out by the Constitution. Well after the Hamilton-Burr duel, a gentleman had a dispute, and he sought civil justice. He brought a lawsuit to court, and a jury found he was right. His case worked its way up to the United States Supreme Court, and what did that

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wise high court say? You cannot bring a lawsuit. You are black. You are a slave. You have no right to seek civil justice in the courts of the United States. Your name is Dred Scott.

The Dred Scott case exposed the open and festering sore of slavery tacitly embedded in the Constitution. That case, decided in 1857 was one of the key triggering events that lead to southern states seceding from the Union and the Civil War.

Before Abraham Lincoln could even take office in March, 1861, seven states had declared they were leaving the Union, South Carolina being the first, in December 1864. As Lincoln made his way to Washington by train from Springfield, Illinois, he stopped several times in New Jersey at station stops, along what would become the main Pennsylvania railroad line, now the Amtrak line. He spoke in Jersey City, Newark, Elizabeth, Rahway, New Brunswick, and Trenton. His message was one of union above all else. No state could legally leave the United States. At the time, Lincoln did not speak of slavery, or the elimination of slavery.

As he later would say during the cemetery dedication at Gettysburg, the question was whether this nation or any nation conceived in liberty could long endure.

Lincoln never came back to those railroad tracks alive. He did come back through New Jersey in a casket. All the way from Trenton to Jersey City the tracks were lined with citizens to honor what he had done. Before his death, Lincoln did hold the nation together as one, but after four years in office also came the passage of the Thirteenth Amendment which eliminated legal slavery for all time. Then, three years later the Fourteenth Amendment was passed guaranteeing those individual rights to all persons born in the United States or naturalized citizens.

Now, we all retain the rights under our state and federal Constitutions to have a common law civil dispute resolved by a jury. This process assures that everyone can try to get a fair shake from a group of people with no axe to grind or stake in the matter. The fix is not in.

Members of a jury are unlikely to know and appreciate all this history. A trial attorney should know all this history and try to pass some of it on to the jurors. Jurors can view their service not as a nuisance or burden, but with an uplifted, enlightened view of their role in a historic process.

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Chapter 3 Professionalism to the Core The trial of a civil case is an adversarial one, a contest. Let the dispute in controversy never get in the way of the trial attorney’s profound obligations to the bar, the court, and the public to operate at the highest levels of professionalism.

There’s a handful of key themes in our Rules of Professional Conduct which every trial lawyer should incorporate into his or her persona both inside and outside of a courtroom. Outside of court following these particular rules will make you happier and likely allow you to live longer. In court, living by these rules will make the judge’s job easier, and there is nothing so appealing to a jury than an attorney who acts at all times in accord with these rules. Adversary attorneys who honor these rules in front of its jury are appreciated and rewarded with fair and appropriate results. However, where one attorney is perceived as following these golden rules of professional conduct, and an adversary is not, the jury will always lean towards the former.

Reading through our Rules of Professional Conduct can be tedious. Thus, I have distilled these Rules down to their essence.

Here are the core values. The first is all embodied by the straightforward title to the specific section, “Fairness to Opposing Party and Counsel” RPC 3.4. That rule articulates various details, but the details are less important than the title of the rule itself. Again, fairness to the opposing party and counsel is all you really need to know, understand, and project. What does it mean to be fair to the opposing party in the course of a trial in front of a jury? It means never being demeaning or discourteous to the plaintiff or defendant during a trial. It means not taking an opposing party’s words out of context during testimony or during openings or summations. It means being fair, courteous, and even kind to the opposing party when he or she is on the witness stand. Can you do that and still be an able advocate for your side? Juries are very good at discerning credibility and exaggeration. The jury does not need or want to see an attorney debase an opposing party. An attorney who needlessly or unpleasantly goes after the opposing party will be perceived as unfair. The jury is unlikely to forgive such unfairness.

What about fairness to the opposing attorney? There is nothing so refreshing to a jury as adversarial attorneys who appear to get along with one another during a trial. Such conduct by the lawyers frees the jury to focus on the factual issues and applying the law to the facts. Fairness to the opposing attorney means no surprises

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or ambushes at trial. Our discovery rules are designed to allow each party to understand and fully evaluate what will be presented by the other side at trial. Fairness means no cat and mouse games about when and whether witnesses will be called.

Adversary attorneys who truly treat one another as professional colleagues will be rewarded by a verdict which is true and reasonable based upon the evidence, and not one that is infected or inflamed by attorney deception or misconduct.

The rest of the Rules of Professional Conduct which apply to trials follow in a similar vein. The second rule of note is under the title, “Candor Towards the Tribunal.” RPC 3.3. That rule states, “A lawyer shall not knowingly make a false statement of material fact or law to the tribunal.” The most important word is candor. The trial judge has quite enough on his or her plate without having to be concerned about whether a lawyer is to be trusted. The trial judge will be the one to provide the law to the jury at the end of the case. The candid and truthful attorney will get the benefit of any doubt as to any nuances in the final jury charge. If all the attorneys are candid and open, the judge can work with the attorney to craft a truly appropriate and neutral charge.

The third rule follows from the first two. Rule of Professional Conduct 4.1 requires, “Truthfulness in Statements to Others.” This rule mandates truth as to representations on both fact and law to everyone in the court, opposing counsel, and opposing parties. Wait a minute! Don’t these first three rules go against all those perceptions that many have that lawyers are knaves and dishonest tricksters who would do anything to get an advantage? Yes, that is what practicing under these basic rules does. Practicing law, in and out of court, in this fashion, is a refreshing anecdote to those poisonous perceptions about the law and lawyers.

A fourth rule underscoring these values is buried in a rule whose title is, “Expediting Litigation.” RPC 3.2. That title is incomplete because it doesn’t refer to the very essence of that particular rule. The rule requires a lawyer to “treat with courtesy and consideration all persons involved in the legal process.” That doesn’t mince words. How many times do we see attorneys not treating all persons in the process with courtesy? We see this way more than we should. In any event, we must strive at all times to be courteous to everyone in the legal process, and this includes when being in front of a jury.

The fifth and last rule which serves almost as a summary is titled, “Misconduct.” RPC 8.4(c). Under that rule it is professional misconduct for a

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lawyer to, “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” That is a very sweeping mandate indeed. Yet, avoiding even a hint of any kind of misconduct is required to be an effective trial attorney.

These five, closely related conduct commands are what can be called the Golden Rules for Trial Attorneys. The essence of these golden rules are the basic reciprocal principle common to all of the great world religions. Do unto others, as you would have them do to you. This basic golden rule of reciprocity is the foundation for the evolution of human civilization and our precious rule of law. The vast majority of thinking jurors understand these basic concepts of reciprocity, courtesy, and honesty. The attorney who openly presents in accordance with these rules will inevitably be favored by a jury wrestling with a subtle case. Revisit these basic rules often. Make them the core of who you are as an attorney. Everything else falls in place after that.

Here’s a quick summary chart.

The Golden Rules for Trial Attorneys  RPC 3.3 Candor towards the tribunal  RPC 3.4 Fairness to opposing party and counsel  RPC 4.1 Truthfulness in statements to others  ROC 3.2 Expediting Litigation A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client and shall treat with courtesy and consideration all persons involved in the legal process.  RPC 8.4 Misconduct It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation

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Chapter 4 What does a Jury want? We are not permitted to discuss a case with jury members in a trial in which we have participated, even after a verdict. Much as we would like to know precisely what went on in the jury room, we’ll never get that in detail in one of our cases. In spite of this, there is almost a universal sense among lawyers and judges that juries almost always reach common sense, well-reasoned conclusions. While we cannot talk to jurors about our own cases, we can learn from friends, family and acquaintances about their jury experiences. In such conversations, what is found is that the vast majority of people who have served believe that the process of give and take toward reaching a final verdict is an extremely satisfactory mechanism for resolving a dispute.

If we think generally about what jurors are looking for, then we will better know how our overall presentation must be made in all aspects of the trial. Maybe it can be considered too basic to even say it, but since it is at the very foundation of what we’re doing in a courtroom, it must be stated. Juries are looking to find the truth in a case. Beyond that, in terms of damages, juries want to be fair. Truth and fairness. That is what the collective wisdom of a jury will always seek.

Work backwards and analyze any verdict with which you are familiar. Talk in depth with anyone you run into who has served on a jury. What you’ll find is that among the individuals making up the jury, there was a verdict reached that was not based upon wild speculations, or astrology, or mysticism. Juries by and large reach for truth and fairness based upon their common experience and logic. What then does this tell us about what we should be in the courtroom? The answer is apparent if we think about it and act in accord with these thoughts. We as advocates must be the ones in court who are on the side of truth and fairness. Our conduct must truly demonstrate at every turn our interest in procuring what is true and fair.

You might respond to this basic contention that advocates be perceived as being the ones in court who are on the side of truth and fairness as so overwhelmingly obvious that it’s time to close this book and get on to something more worthwhile. But think about it. How many lawyers do you see in court day after day, week after week, year after year, decade after decade, who are nasty,

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arrogant, deceptive, impolite, hostile, argumentative, nit-picky, unfriendly, or otherwise demeaning either overtly or subtly?

Lawyers who twist the words of a witness out of context through cross examination are not seen as purveyors of truth. Lawyers who are sarcastic or caustic with adversaries are not seen as truth deliverers. Yet, we see this kind of advocacy all the time. It may be the rule, not the exception. We lawyers may be so accustomed to the adversarial nature of many non-jury proceedings, that we forget that some of our mannerisms look doggone ridiculous to lay people in the courtroom sitting a jury box. Earned or unearned, lawyers are at the tail end of a lot of jokes. These jokes are premised upon the notions that lawyers are slick, cheaters, tricksters, money grubbers, and you know all the rest. These notions held by many do not get suspended when a prospective juror walks into the courtroom for possible service.

In response to these preconceptions, we as individual trial lawyers must show in all our time with jurors, including jury selection, that we are absolutely trustworthy. We must show that it is our side that is trying to obtain truth and fairness. If we use this as our overall guide, we are going to be at a tremendous advantage in the jury room during deliberations when we are no longer present.

By the end of the case, unless your opponent has also used total trustworthiness as a guide, you will be able to subtly show the jury just how the other side has tried to obfuscate, deceive, or trick the jury away from truth and fairness. In a substantial percentage of cases, you will be able to demonstrate that the other side has tried to obscure the truth. That is because many trial lawyers develop bad habits, such as distorting cross examination or conveniently omitting important facts.

Trustworthiness. That is what jurors want. Give it to them. You don’t provide it by simply telling the jury, “I’m trustworthy.” Your trustworthiness must emanate from every move you make and word you utter in the courtroom. Every moment you are in the presence of a jury, you need to strip away any negative stereotype of the trickster lawyer.

Two thousand three hundred years ago, Aristotle laid out this principle in the still classic work on persuasion entitled, On Rhetoric. As part of Aristotle’s three- pronged approach, he cites Ethos as one of the critical three elements. That is to

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say, the orator must convey to the listener that he or she is of the highest ethical and moral character. In other words, he was talking about emanating trustworthiness.

The other two prongs Aristotle describes are Logos (logic or the appeal to the listener’s reason), and Pathos (the appeal to feeling for another human being’s condition). Logos is something most lawyers have developed. Three years of law school and passing the bar exam requires a high degree of logical thinking.

Pathos is not as common in lawyers because many lawyers have taken on quite a high station in life in their own minds. Pathos, of course, is essential to obtaining fair damages in a civil injury case, and this ability is somewhat rare.

Yet, in today’s often cynical climate, the most important thrust must be Ethos, or trustworthiness.

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Chapter 5 Arguing in the Zone of Truth After trying a number of criminal cases in my earliest days, it slowly dawned upon me that juries are unlikely to swallow preposterous explanations of what happened in a particular case. Practicing criminal defense does provide a fair amount of opportunities to attempt reaching beyond the limits of plausibility. This is because the criminal defendant’s deeds have frequently triggered disastrous sentencing possibilities. Thus, the client has plenty of incentive and time to invent versions of the events in question. The plea offers in terms of sentencing sometimes provide no reason to forego a trial which has a predictable outcome. Usually, the accused gets charged with a lot more than what he or she is guilty of, so very often the best course, absent a satisfactory plea arrangement, is to try the case in the area where the truth most likely lies. The prosecutor hammers away and tries to convict on every count, never conceding a weak proof on anything. The response strategy can show how unreasonable and overreaching the prosecutor is being.

From this criminal experience, I developed a little schematic model to help me analyze, prepare, and then try cases. It’s somewhat corny and simplistic, but it helped for many years, and it may help you in thinking about trial strategy in a case.

It is called the Zone of Truth. Since juries want to get to the truth, and they will take it from a trustworthy advocate, you must argue within the Zone of Truth. Louis Nizer in his autobiographical books on his trial career developed a similar phrase called the “rule of probabilities.”

Of course, what is true and fair in a particular case is not absolutely definitive. Truth and fairness are imprecise. On the other hand, there is somewhat limited range in which a jury is most likely to decide a particular case. Civil settlements and criminal plea agreements are based upon the likely range of jury findings. All of us have some familiarity with this concept of the likely range or “Zone of Truth.”

The Zone of Truth schematic is not, however, designed to assist assessment for settlement purposes. Its purpose is to get the best, consistently favorable results for your side from a jury. Because it is a schematic picture, it’s easy to think about in your head.

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Here is the basic schematic. Then we’ll follow it with an example. Understand that the Zone of Truth varies according to the facts of each individual case.

Jury finds plaintiff 51% Jury almost totally ignores direct negligent so no damage evidence of plaintiff’s negligence award is made high damage award

ZONE

OF TRUTH

Complete Defense Stingy Small percentage Damage award Verdict Damage of plaintiff so high that it shocks the No defense Award negligence liability Solid damage conscience and Zero Damages award is set aside

Middle of the Road

verdict 50%/50%

liability with fair

damages

DIAGRAM I

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Example #1 Plaintiff drives a car to a stop light, and she gets rear ended by defendant’s car. Plaintiff gets a front tooth permanently knocked out which is replaced by a false tooth, and has soft tissue neck and back injuries. The neck and back problems resolve with six months of treatment. She was not wearing a seat belt.

The range of verdicts both inside and outside the Zone of Truth are illustrated in Diagram II.

50%/50% Liability Verdict $75,000 award Gross damage award $7,500 with no comparative fault ZONE OF TRUTH

No Damage Award Total $30,000 in Plaintiff Jury finds no Damages at damages awarded injury would have $15,000 Only 5% $200,000. Seat occurred if seat minus 45% comparative Belt made no belt had been worn Comparative difference Negligence

DIAGRAM II

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Now, with the schematic model in your head, frame the case you are going to be trying. Figure out where the Zone of Truth is in your case. Keeping trustworthiness in mind, knowing the jury will want to find the truth and be fair, you want to make sure your presentation is targeted to your side of the Zone of Truth. You can’t make a silk purse out of a sow’s ear. If you overreach, you won’t be trusted. You cannot exaggerate your injury. You cannot ignore evidence of comparative fault. In fact, the case law says you can specifically argue comparative negligence percentages. Brodsky v. Grinnel Haulers, Inc. 181 N.J. 102(2004).

Argue your case to the edge of your side of the Zone of Truth. You want to move it away from the exact middle, but you can’t argue outside the Zone. When you argue outside the Zone by pushing an unreasonable position, your case will wind upon on the wrong side of the middle.

Frequently cases do get decided by juries outside of the reasonable Zone of Truth, and here’s usually how that happens. One of the attorneys has pushed too hard, and tried to sell some garbage. The jury unconsciously punishes that lawyer, and sides with the more trustworthy advocate.

The big plaintiff verdicts come when the plaintiff’s attorney has advocated a sound, reasonable and humane view of the case, while the adversary has argued every point, conceded nothing, and belittled each aspect of the plaintiff’s case regardless of merit. Gong. That’s when the bell gets rung.

Conversely, when the defense attorney positions his or her case within the Zone of Truth and treats all of the players with appropriate dignity, you won’t see an extraordinary plaintiff’s verdict. However, the reality is that not all defense attorneys are willing or courageous enough to abandon illogical points or arguments. By custom and habit, defense lawyers often take a kitchen sink approach to discovery, and it carries right over into trial. They give the jury an a la carte menu. They get so cynical that they see every person as a phony or an exaggerator. They argue liability in rear end hit cases. They suggest all soft tissue injuries are fraudulent. They take plaintiff’s testimony out of context to support a contention that the injury is not significant.

In sum, you need to put forth your case just inside of the Zone of Truth. Go outside the zone, and you are untrustworthy to the jury. Some plaintiff and defense attorneys will not always stay completely in the Zone of Truth. Defense lawyers usually have an insurance adjuster breathing down his or her neck, suggesting that all imaginable defenses be put before the jury. To protect himself or herself, the

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defense lawyer often throws it all in, thereby remaining outside the zone. A good defense attorney who knows he or she cannot consistently hoodwink a jury, and who will try the case within the reasonable parameters of the Zone of Truth, will get appropriate results.

I suppose arguing outside the Zone of Truth is what some attorneys mean when they say, “that lawyer over-tries a case.” I like the Zone of Truth schematic because, simple or silly as it may be, it is a constant reminder of what we must be with a jury. We must be truth tellers. Let the other side be the one to try to pull a fast one. You’ll catch it and be able to expose it to the jury. Playing three car monte with a jury is a recipe for failure. The jury won’t swallow a whopper. Push your case for more than it is, and you lose your credibility. Stay on your side of the Zone of Truth.

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About the Panelists…

Craig M. Aronow, Certified as a Civil Trial Attorney by the Supreme Court of New Jersey, is a Partner in Rebenack, Aronow & Mascolo, LLP (RAM) with offices in New Brunswick and Somerville, New Jersey, where he handles personal injury matters with a focus on truck crashes. Admitted to practice in New Jersey and New York, Mr. Aronow was the first Chair of the New Jersey State Bar Association Solo and Small Firm Section; has served as President of the Middlesex County Bar Association and is a member of the New Jersey State Bar Association Judicial and Prosecutorial Appointments Committee. He also serves on the New Jersey Association for Justice’s Board of Governors and is a member of the Million Dollar Advocates Forum. The recipient of several honors, for 10 years he was the head coach for the Rutgers University undergraduate mock trial team, which finished 2nd in the country in 2012. Mr. Aronow received his B.A. from Penn State and his J.D., cum laude, from Quinnipiac University School of Law.

Norberto A. Garcia is part of Blume Forte Fried Zerres and Molinari in Jersey City, New Jersey. As a Certified Civil Trial Attorney and member of the American Board of Trial Advocates (ABOTA), Norberto A. Garcia has represented clients in a broad spectrum of personal injury matters including automobile accidents, construction cases, premises liability and medical malpractice. He has been named as a New Jersey Super Lawyer from 2013 through the present year. Mr. Garcia is currently the Vice President of the New Jersey State Bar Foundation, an organization dedicated to promoting law-related education and giving all New Jersey residents a basic understanding of the legal system. He has also served the organization as a trustee since 2009. He is the co-chairperson of the New Jersey State Bar Association’s Diversity Committee. Mr. Garcia is the past president of the Hudson County Bar Association, where he served as a trustee from2000 through 2013, He is currently a trustee of the Hudson County Bar Foundation. Mr. Garcia has been certified by the New Jersey Supreme Court as a civil trial attorney since 2001. He has been active in the Hudson County Inns of Court program since 1996 and is currently a master in the program. He served as a president of the North Hudson Lawyers Club in 2003. He has been co-chai rperson of the Hudson County Civil Practice Committee since 2003. The committee serves as a liaison between the civil bench and bar on issues affecting civil practice, arranges seminars and holds an annual meeting between all the civil judges and the bar to address rule changes and other concerns. Mr. Garcia is a member of the executive committee of the Civil Trial Bar Section of the New Jersey State Bar Association. The section provides a forum for the professional advancement of civil trial attorneys. He served on the Supreme Court Office of Attorney Ethics, District VI Fee Arbitration Committee from 2004 through 2009, becoming its chairperson in 2009. From 2005 through 2008 he served on the Supreme Court Committee on Minority Affairs, which advises the New Jersey Supreme Court on how the state judiciary can assure fairness, impartiality and equal access to the courts. It also monitors legislation that may affect minority citizens of the state. He is an incoming 2019 trustee of the New Jersey State Bar Association. Additionally, he lectures on civil practice issues for various bar organizations including the New Jersey Institute for Continuing Legal Education, the New Jersey State Bar Association, the New Jersey Association for Justice, The National Business Institute of Continuing Legal Education and the Hudson County Bar Association. Mr. Garcia has had numerous jury trial verdicts in cases where the defendant’s insurance company was not making any offers. In recent years these verdicts on “no-pay” cases include Ryou v. Kim (Bergen County) $420,000.00, Savi v. Cohen (Hudson County) $300,000.00, Manzanal v. Manzanal (Hudson County) $237,000.00, Pak v. Lee (Bergen County) $200,000.00, Magner v. Geico (Essex County) $124,000.00 and Lowery v. Smith (Union County) $70,000.00. Other significant recent trial verdicts include Suarez v. Benoit (Hudson County, Fatal Bus Crash) $1,240,000.00, and Baldeon v. Molfetta (Hudson County, fall on ice) $829,000.00. In addition to these jury trial verdicts, Mr. Garcia has achieved millions of dollars in settlements for his clients throughout his career. Recent settlements include a $450,000.00 dram shop case, a $625,000.00 auto case and a $2.1 million trucking accident case. Mr. Garcia’s first exposure to the law was in college at Seton Hall University where he worked for Pressler & Pressler in East Hanover as a collection team manager. While attending the University of Pennsylvania Law School, he worked for the Bronx Legal Aid Society assisting public defenders. Shortly upon graduation from Law School, he joined Sinins & Bross in Newark and began working for the rights of negligence victims. He later joined Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte where he became a partner in 2008. He became Of Counsel and later partner with Javerbaum, Wurgraft in 2013. He returned to the Blume firm as a partner effective April 1,2019. Born in Camaguey, Cuba, he came to the United States with his parents as a young child and grew up in Hudson County. He has a B.A. cum laude in history from Seton Hall University and graduated from the University of Pennsylvania Law School. He has been admitted to the bars of New Jersey, New York, and Pennsylvania. He is fluent in Spanish. Mr. Garcia resides in Kinnelon, New Jersey with his wife and two sons. He is a member of St. Mary’s Church in Pompton Lakes.

Edward J. Rebenack, Certified as a Civil Trial Attorney by the Supreme Court of New Jersey, is a Partner in Rebenack, Aronow & Mascolo, LLP in New Brunswick, New Jersey. He concentrates his practice in civil trial practice and litigation with an emphasis in personal injury, including wrongful death, car accidents, workplace injuries, slip and fall cases, pedestrian accidents, dog bites, defective products, assaults, civil rights violations and insurance coverage disputes.

Admitted to practice in New Jersey and New York, Mr. Rebenack is Past President of the Middlesex County Bar Association and a former Trustee of the New Jersey State Bar Association. He has lectured on civil trial practice and litigation topics for ICLE’s Skills and Methods course and a number of other organizations, and is the recipient of the Civil Practice Award bestowed by the Middlesex County Bar Association. Mr. Rebenack received his B.S., magna cum laude, from Seton Hall University and his J.D. from Seton Hall University Law School.

Honorable Alberto Rivas, AJSC is Assignment Judge, Middlesex County, and sits in New Brunswick, New Jersey, and was formerly Presiding Judge of the Superior Court, Criminal Division, Middlesex County. Appointed to the bench in 2010, he is a Former Partner in Lite DePalma Greenberg & Rivas, LLC and a former Assistant United States Attorney for the District of New Jersey. He has also served as Law Director for the City of Perth Amboy. Judge Rivas has served on several court committees, including the Lawyers Advisory Committees for the Third Circuit Court of Appeals and the United States District Court for the District of New Jersey. He was appointed to the Third Circuit Court of Appeals Task Force on Equal Treatment in Courts, Race and Ethnicity Commission, and is Past Chair of the District VA Fee Arbitration Committee. Past President of the Rutgers University School of Law-Newark Alumni Association, Judge Rivas has been an adjunct professor at Rutgers University School of Law. He has frequently appeared as a commentator on Court TV. Judge Rivas received his undergraduate degree from Princeton University and his J.D. from Rutgers University School of Law. He was Judicial Law Clerk to the Honorable Anne E. Thompson, United States District Court for the District of New Jersey.

David L. Wikstrom is a shareholder for Javerbaum Wurgaft Hicks Kahn Wikstrom and Sinins, P.C. in Springfiled, New Jersey. As a Certified Civil Trial Attorney, David Wikstrom represents clients in claims involving Legal Malpractice, Product Liability, Personal Injury, Dramshop and Employment Discrimination. Mr. Wikstrom has been named one of New Jersey’s Super Lawyers in the product liability category for the years 2006 to 2019, and in 2019 was named to the prestigious Top 100 Attorneys of New Jersey by New Jersey Monthly’s Super Lawyer Magazine. He is the Immediate Past-President of the Union County Bar Association, former Chairman of the Product Liability Section of the Essex County Bar Association and a member of the Standing Committee for Legal Malpractice and Insurance. He is currently serving as Trustee of the New Jersey State Bar Association, and is the former Chairman of the Union County Bar Association’s Civil Practice Committee. He the Chair of the New Jersey Supreme Court Committee on Civil Trial Certification. He is a member of the Million Dollar Advocates Forum, which recognizes attorneys who have demonstrated exceptional skill, experience, and excellence in trial advocacy and have obtained recoveries on behalf of their clients in excess of one million dollars. He is a frequent lecturer for ICLE on Legal Malpractice and Ethics, and has presented seminars both nationally and internationally. Mr. Wikstrom is also an adjunct professor at Union County College where he teaches Business Law. Finally, David co-chairs a yearly service trip for lawyers to lend a hand to communities struck by natural disasters in locations such as Puerto Rico.