Voir Dire, Expert Cross, and Closing Metaphors, with Mike Kelly

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Welcome to another episode

of Verdict Academy,

where we bring you the best trial

lawyers in the country to share their top

three trial tips. I'm Kevin Morrison,

and this episode's guest is Mike Kelly,

a partner at WalkUp in San Francisco.

Mike is a giant in the profession and

his accomplishments and well-deserved

accolades are too numerous to

mention in this 30-minute podcast.

A small sampling of his extraordinary

results include a $23 million

verdict in a birth injury case against

a local doctor in a small town in rural

Minnesota and an $8.3 million

verdict in LA for the pain caused

by the defective design of a

metal hip implant against DuPuy.

That verdict helped facilitate

a $2.5 billion national

settlement for all victims

of this dangerous design.

Mike is a member of the Inner Circle of

Advocates, the International Academy,

the American College, and the

International Society of Barristers,

where he served as president, and ABOTA,

where he served as San Francisco chapter

president and was awarded Kalabodo's

Trial Lawyer of the Year. Mike is a San

Francisco native, graduated from St.

Mary's College in Moraga,

where he met his wife, Trish.

He then went to UC Law San

Francisco, AKA Hastings.

While Mike was in law school, the

couple had their first two kids,

and he juggled jobs, diaper

changing, and law school classes,

thereby perfecting the art of

multitasking. After graduating law school,

he worked at a small firm

doing some criminal defense,

quickly getting trial experience.

He then joined the Walkup firm where

he was mentored by some of our local

legends like Dan Kelly, George

Shelby, and Ralph Bastian.

And now Mike returns the

favor by mentoring trial

attorneys across the country

and is active in teaching at NATA

and other organizations. Mike Kelly,

welcome to Verdict Academy.

Thanks, Kevin.

That's the nicest thing anybody has said

about me and at least the last hour,

but probably the last year

or so. I appreciate it.

Thanks for being a guest. Before

we get into the three top,

the format of the show is asking the

best trial attorneys in the country,

and you're certainly among those. They're

best or top trial tips to younger,

less experienced attorneys.

But before we get there,

I just want to ask you a question.

Did you always know that you

wanted to be a courtroom lawyer?

I think probably not. I went to

undergraduate school at that time,

mostly not to go to Vietnam. And

while my family didn't know lawyers,

didn't have lawyers, although my father

occasionally got himself in a jam.

I think that's something that kind

of dawned on me while protests were

ongoing against the Vietnam War,

and I think I probably became a little

more aware of the power of lawyers,

particularly with respect to at that time.

So I think that's what got me interested.

And certainly I had no idea that people

even went to court over injuries.

I know you're a fan of Senator

Robert Kennedy and his campaign.

When you got to law school,

were you involved in trial advocacy or

was it until your first job when you

actually got into a courtroom to try

a case where you said, "You know what?

This is for me.

" Well, I don't think that when I was in

law school that we had a trial advocacy

program. I'm pretty confident

we did not. And yes, I mean,

the first time I was in a courtroom, I

was the lawyer representing somebody.

I actually can see that in my head and

can remember how anxious I was because it

was in a criminal case where the defendant

had been in court far more times than

I had and actually knew his constitutional

rights far better than I did.

Did he give you some tips?

No, but it caused me to do unbelievable

amounts of homework so that I didn't get

caught flatfooted in terms

of protecting his rights.

And so when you got your first taste

of trial, was that all it took?

You got the bug and you can't shake it?

I recognize that now as I talk about it,

but I think I recognized at that moment,

this was the ground floor of participatory

democracy and you could make a

difference, you could

make a change. And look,

I went to 16 years of Catholic school,

so nothing else had drummed into you

that you needed to be able to make other

people's lives better.

That was why you're here.

You've certainly done that in your

career. You continue to do that.

So let's get right into it. Your

three top tips for trial lawyers.

We've got connecting mini

openings and voir dire.

We've got expert cross

exam and we've got damages,

metaphors in closing.

Let's start with the start of trial

connecting mini openings and voir dire.

Talk to us about that, Mike.

It's a new recent development

right in California,

the notion of the mini

opening. And as you mentioned,

I've been blessed to do a fair

amount of mentoring, teaching,

demonstrations, trial ad

teaching. And historically,

I have always been a believer that opening

statement was kind of a disrespected

stepchild of the trial process.

When I was a young lawyer,

the fear you had about opening statement

was that you wouldn't say the right

things and you would get non-suited.

The practice was always motivated,

at least at some level, by fear

of screwing up. But over time,

as I read more books, as I

got to watch good lawyers,

it became readily apparent to me that

openings were critically important.

And I did a lot of work teaching on

the whole notion of you can't argue in

opening, you can only recite the facts,

which sounded like a caution

that basically made everyone

unis. But the truth of

the matter was, once you figured out

how to tell a story with only facts,

no adjectives, no adverbs, no hyperbole,

and you structured the facts in a

way that really told your story.

You could see the lawyer on the other

side of the defense lawyer wanting to jump

out of her or his chair and object,

but they couldn't figure out how.

Gotten that to a place

where we were good at it.

The legislature then gives us here in

California the opportunity to do these

mini openings, which I think

they're better understood,

but I think they're misunderstood to

the extent that what are they for?

Because they're not for

doing a shorter version,

like a TV show gives you the first 60

seconds and you watch the next 29 minutes

anyway. What is that about? For me,

the mini openings are about let's get

everything out there that's bad because

it's a shoehorn into voir dire.

There's none of this objections oh,

counsel is pre-trying the case or

arguing the case. And so for me,

the mini opening and voir dire

kind of marriage or handshake is,

and predominantly, I'll

just talk about damages.

It's a place where I think everyone now

recognizes how important anchoring is.

Defendants like to make

motions to prevent anchoring.

Their favorite is to make a motion in

limine to prevent somebody from talking

about the specific number they want.

And my view on that is to be prepared

for it and to use the mini opening and

say what some people historically

have been afraid to say in opening,

what's the number you're coming

for? And whether you want to say,

and at the end of this case,

we will ask you for a verdict of

$50 million or 20 to $40 million or

$5 million,

just to get the number out there so that

we're not in this place in voir dire

that's not helpful. And I don't

think it's helpful to say, "Well,

is there anything about making a

substantial award that you have difficulty

with? " Or the facts in this

case compel a substantial award.

It's like talking in code and conclusions.

Lawyers love conclusions

because it somehow makes you

think or makes them think

we've covered the topic,

but conclusions are just

overwhelmingly unpersuasive.

And so I think the many openings are

a gift. They're guaranteed by statute.

I think there are still judges who

are hesitant and reticent to do it.

I think everybody's trial

notebook needs to have in it the

code section that authorizes

it. A month and a half ago,

I was picking a jury in Napa and we went

through these motions and the judge who

was a former public defender hadn't

tried a civil case, said, "Okay,

well, I see the statute,

yes," and denied the defense

motion to preclude discussion of

specific numbers,

but then kind of almost lost his mind

when in mini opening and my colleague,

my partner who I tried the case with,

gave the mini opening and gave a number.

And once we got into voir dire,

the judge was beside himself that this

was all the jurors wanted to talk about.

I think $20 million is too much in this

case and then wanted to go back and talk

about, let's talk about

substantial numbers. So that point,

I think you only need to say it

once. I think anchoring is real.

And then there were other issues in the

mini opening in this particular case

that had to do with,

it was a wrongful death case where my

clients were visitors and tourists against

a local defendant. The defendant

was very well known and liked.

And then that was just about

getting those things in as for me,

the pathway to voir dire.

And so I think for folks who have

not done one, have not used one,

we shouldn't be confused that, again,

I've been doing this for so long.

I read every practice book that tells you

everything to be worried

about and afraid of,

which changes about every five

years. But for years, well,

I'm afraid to get into bad stuff because

maybe I'm putting the thoughts of bad

things in the jurors' minds. I

think we figured out that's bunk.

We're much better off getting

the stuff out on the table.

It surprises me how often judges don't

seem to understand the word shale when

you cite the statue, but I do know

from some stories that some judges,

despite the shale, don't let you,

which is assuming you get one,

the judge follows the law,

then is your goal to, one,

make sure the prospective panel has

all the bad facts that are going

to come in.

So you can talk about those in jury

selection and get your number out there,

the number you're going to ask for.

Are those essentially your goals?

If you look at it from that perspective,

you have just driven right around or

right past all of the objections that we

would often get about prejudging the

case or specific evidence. They're there.

You made your opening. And if you think

of it at the next level, it's like,

this is actually kind of cool.

I made my opening statement.

Now I'm going to voir dire you

about did you like it or not?

But it's simply the opening statement

I made wasn't about persuading you.

It was about finding out about you. Now.

There seemed to be two philosophies on

giving the number early. Philosophy A,

which I am a strong proponent

of, it sounds like you are too,

get the number out there.

So my view is the jury assumes that the

lawyer asking for the money knows what

the case is worth.

This lawyer damn well there know what

the case is worth and I expect them to

tell us. And then there's

the view that, oh my gosh,

something could go wrong at trial.

Maybe you're getting too ambitious and

the doctor takes the dive, your client,

screws the pooch and that sort of

thing. So don't commit to anything.

What is your view there, Mike?

I think that correctly does outline

what we want to be worried about.

And let's take the fear of scenario B.

I'm a proponent of scenario A. But look,

if I'm worried that at some point

something is going to go wrong,

that is going to cause

me usually not to say,

and I'm going to ask you for $20

million or $8 million or $4 million,

but to give a range, the

range is just as good.

We're going to come back and say the

value of this case is somewhere between

four and $10 million. I mean,

I don't like that as much,

but that takes into account. It

gives me both a high and a low.

And interestingly, when I've done

that, jurors only hear the high,

but it protects you psychologically

from the notion that, well,

the wheels fall off this truck.

I can still ask for four million bucks

just because of the nature of the injury

or whatever it is.

So there's no perfect template,

there's no perfect roadmap.

But part of what we are supposed to

be able to do is figure out, okay,

if we hit a pothole, how

are we going to keep going?

And I think that's kind of it.

Point two, cross-examination of experts.

How critical is this and what's

your philosophy here, Mike?

I mean,

I didn't lose all my hair and look

this old because I had one frightening

experience that made me look

old. If you cut my forearm,

the tree rings will tell you that I

have been here not since the dinosaurs,

but for a while.

So I think I would think historically

that tried or bought into or looked at

every philosophy on cross-examining

experts at trial. And at the end,

I come down to what's the safest

thing. And the safest thing,

whether or not you're using AI or

Google or something else is generally to

live in a place where the opposing

expert, two things. First,

that it's not part of your job,

except in the really exceptional case

where you have a frequent flyer who is

obvious to everyone in the room is a liar,

but that is so rare that trying to

cross-examine most experts on the

substance of their expertise can't

learn overnight on Google how to become

a neurosurgeon, or if for that matter,

a mechanical engineer or anybody

who has spent 10, 15, 20,

or 30 years of their life in

some discipline. And so for me,

when I'm working with young lawyers,

I like to think about what ...

It's a package. You can always

start nice and finish mean.

You can never start mean and finish nice.

Although I have seen it

and confessed 30 years ago,

I have attempted it where you

come out of your seat far too hot.

And there's a couple problems

with that. One is the jurors,

you had this case for two years.

You are not fond of defense counsel.

You are not fond of their failure

to have integrity or be honest.

You don't like their experts.

But the jurors have only been in the

case for four and a half hours in the

courtroom and can't figure out why

Mr. Kelly lost his mind and turned

into the most angry person in the world.

So we got to figure out how to do that.

And so for me,

it's a package of two things.

One is, to the extent possible,

I like to cross-examine experts

first about getting agreements,

usually about my expert, about their

qualifications, about their licensure,

about their methodology. Do they

at least do the right thing?

Is their math at least accurate?

Have they read the right books?

Is the diploma from Dartmouth or the

University of California or the University

of Phoenix, a decent

degree? And then for me,

I like to see if there's some way that

the cross-examination in a place where

it's safe is all of the things they

haven't done or haven't considered

because those are objectably

verifiable facts you can argue.

I like to tell people that

cross-examinations like

standing on a small island

in the Pacific, surrounded by sharks,

you can get in the water about to your

ankle before you're close enough for one

of the sharks to eat your toes.

So you could get a little bit wet,

but you don't want to be waist deep in

this place where you're never getting

out. And so for me,

typically trying to do crosses

on things not considered,

things not looked at, things not done,

in some ways it's a curse

of expert depositions.

The problem with expert depositions,

at least in California is nobody's quite

sure are they trying to settle the case

or try the case because if you really

knew you would do different depos,

but I'm mostly interested at

trial that I have a list of things

that without an adjective,

without an adverb,

I can ask 20 questions in a

row where the answer is yes.

They are not mean,

they're not argumentative.

And I call that the

cross-examination of knots, K-N-OTS,

but N-O-T-S of all the things

not done. If I'm really lucky,

maybe I can get a little bit into

substance. If I'm super lucky,

maybe they've testified 180

degrees different one time before.

I took a lot of hair turning white and

falling out to figure out you're never

going to make a jury, except

in a really exceptional case,

believe that somebody is a dishonest,

evil person. I have done it,

but they had to really leave a trail

of breadcrumbs that could not be

missed or have made an assumption

that the jurors decide before

my tone or intonation

influences it, this is baloney.

I like to say that you cannot be more

indignant than the least indignant juror.

It's a curse for all of us. I

mean, we're trying to do our best,

but we talk too much to ourselves and

then we believe ourselves and then we

can't hear or see ourselves.

That's kind of my take there.

And I think the other part of

it is one about duration. Have

I done a cross-examination

in trial for two hours of an

opposing expert? Was any of that

as recent as 10 years ago? No.

I feel like there's a place to

get the stuff you want to argue.

There's a place where we have to trust

the jurors to get the main point.

Somebody once told me during a deposition

that I could depose a witness for two

hours on their driver's license.

I thought that was both funny,

but also disturbing because

I got 60 or 90 minutes,

depends on the case, depends

on complexity. Before I get up,

I have to know what the last question

and answer is because I structure it.

So I know it can't

possibly be a bad answer,

even if it's not chronologically correct

or temporally consistent with the story

and then hope that there's

enough there to say at the end,

we got the benefit of the

jury instructions and know

how to argue them. That's

kind of my take on expert cross.

Two quick questions there,

so much to talk about.

But your philosophy then when

you take an expert deposition,

my philosophy is I just want

name rank, serial number.

Give me all your opinions,

every reason why,

because I want to use good

stuff for trial. Others say,

"I'm going to torture this guy and take

his depth for five hours and make him

settle the case." I just don't have

that philosophy, but where are you?

Does it pend the case for

you or where are you on that?

I think it has something to do with

where you are in the arc of your career.

I've now tried cases in states where

there is no expert discovery and

40 years on the day shift,

that's not a problem because the defenses

mostly are formulaic and you know

how to reconstruct any answer into series

of leading questions that you like.

These injuries are overtreated and

she's probably complaining too much.

Is that a possible defense? Yeah.

So the five-hour deposition that tries

to beat somebody up to me is an effort to

get your case settled. If you

have a really good insight,

then I'm working on the first one,

what, who, won, when, where, why.

And then I will spend some

time on not doing an aggressive

cross-examination of knots,

but tying up the loose ends on things

I'm pretty sure the person didn't do,

but ask them not the, "You

never did X. By the way,

were you able to do something or at

least be conversational so that those

questions are restructured as part of a

series of having not done the work?" And

I'd like the flexibility because the

five-hour deposition is essentially you

preparing the expert for their cross

at trial. There's nothing left.

They're going to read their

depth three or four times.

They're going to know where it's coming.

Unless you're hugely skilled,

which I am not,

you have put a lot of stuff out

there that you're never coming back.

It depends how deep do we want

to get into what's our strategy?

Do I really want to confuse

him by confusing myself

by spending three hours on

something I'm never going to touch?

I could actually see doing that,

but I think that is the exceptional case.

All right. Third and final

topic, damage metaphors,

how you use those in closing.

We are supposed to be storytellers.

There's two things in my head,

and I've done some teaching on this,

is how important visual information is,

both actual photos,

charts, diagrams, pictures,

the photos, charts, diagrams, and

pictures that we create in people's head.

And I'll just give you a simple

one. I love the iceberg metaphor,

which is a picture of an

iceberg. And I have said,

"I have never seen an iceberg." The

thing that's always been striking to me

is that only about one-tenth

of this iceberg is visible

above the water. And what is

below the water and unseen,

and then I have a second picture of

this massive underpinnings is 90% of it.

So you can't just look at what you

see there and ignore what's below.

And that really is the

story of Jane Anderson,

whose case you have heard this.

What you see here in this courtroom

is about 5% of what Jane endures.

You don't see her at home. You don't

see her unable to button a shirt.

You don't see her unable to drive.

You don't see the frustration

in her head and in her mood.

You don't see what happens to her when

she can't remember something because of

her brain injury or she can't recall

a phone number or a person's name.

So just tiny, I mean, there's

plenty of them. I actually,

I'm sitting in my office and I

didn't put this here on purpose,

but I have these old binders.

And the guy who founded my law firm

was named Bruce Waka was one of the

original members of this group

called The Inner Circle of Advocates,

which at its founding in the '70s was

kind of a nationwide group of personal

injury lawyers who were sharing

stuff. And these are typewritten,

onion skin.

I have a collection of final

arguments from the '70s and '80s

that they shared with each other.

They mailed back and forth.

There was no email, there

was no digital transmission.

And it's fascinating that some of the

same ... I mean, the numbers are lower,

but the same concepts, trying

to create visual images.

Molevine has a great final argument

if folks can find Molevine stuff.

You think about Molevine won a slip and

fall case in New York City. Actually,

the original book is really hard

to find that has his arguments.

And if you'd like to use it

someday, Kevin, I'll get it to you.

Here's a guy who convinces 12 jurors

that a frozen driveway in a part

of New York City is dangerous when the

whole damn city with eight million people

is frozen, right? And how do you do that?

You do that by creating

pictures in people's minds.

But he has a great argument on

creating a picture in your head that

somebody who the defense

lawyer came in and said,

"There's only 15% or 25% maximum

disability." And his argument is,

ladies and gentlemen,

I want you to think that a car and

one of the tires is shredded. You

wouldn't say that that car is

25% disabled because that car

is not usable. That car,

like a person, of course,

Molavine has a whole riff on the

whole person, the whole man or woman.

I think there is a place to find

those things. Jim Produce Senior,

his original book, Who Will Speak for

the Victim has some really good examples.

And I think there's plenty of practice

books. I'm not selling anybody's books.

There are ways to look at them.

And then I think the other image that

is important to get in people's minds

has to do with the analogies and

whatnot, has to do with why we're here.

I think most lawyers don't quite

appreciate that the right to trial by

jury is in the Bill of Rights.

I mean, freedom of religion,

freedom of speech, freedom of

association, the right to bear arms.

All of the framers of the Constitution,

which hopefully will be intact

whenever our current political trauma

ends, demanded that the right

to a civil jury trial be

embedded, not just in the Constitution,

but in the first 10 amendments in the

Bill of Rights. And so I like to talk

about when I'm talking

about empowering jurors,

but most of them don't know that,

partly because we quit teaching civics

in the United States 15 years ago.

But we also have in the

California Constitution,

some people at least have seen Hamilton

and some know about John Adams and some

know about Thomas Jefferson.

They all have phenomenal quotes

about the right to a jury trial.

And so I think there are different places

for different things where metaphor

and analogy and word pictures can

be used with jurors to get them

invested. And there's a couple

different ways to do it.

And I'll just give you one I really like.

Jim Perdue Senior who

wrote his book, his son,

Jim Purdue Jr., Is a really

gifted lawyer in Houston,

and he does a very nice job.

He tries to find out in every courtroom

that he goes to was a big or important

case that everybody knows tried here.

So that I can say you're sitting in a

courtroom and you could actually

do this in San Francisco,

except it wasn't a jury trial where

there was a trial about the right of same

six persons to be married. That took

place in this building. And again,

you got to make sure that above all

that you're owe is entirely honest.

So you can't use a jury

metaphor there. But Purdue has,

he tries to find a jury

metaphor where he goes and says,

"This is the courthouse where 12

people who just like you held the

XYZ oil company responsible for whatever

the most notorious event was that

happened." And I think that in terms

of metaphor and analogy and getting the

jurors to see and feel, "I'm

in someplace that's important.

I'm doing some work that's important.".

Incredible advice. As anticipated,

the half an hour flew by.

Mike, for any younger,

less experienced trial attorneys out

there trying to figure out how to get into

a courtroom or what advice would

you give him or her out there?

I would not be bashful about

approaching lawyers who they have

met,

whether in specialty bar associations

or other places and saying,

"I have this case that I'm going to try.

I'm wondering if you will try it with

me. " Not I want to refer it to you.

And that's where I think you test the

character and integrity of the people in

your community. And I haven't

done this. I want to try a case.

I would love to have you try it with me.

And I would put that

at the top of my list.

There are also opportunities to

volunteer your time on a bunch of

different levels, mostly

in metropolitan areas,

either on cases usually that may involve

tenants rights or housing or with the

DA. But if you find somebody

or pick up your telephone,

I think the telephone

has become underutilized.

Alexander Graham Bell would

be quite distressed. I think

the sound of somebody's

voice and the fact that they picked

up and dialed your number. So I mean,

I would put that at the top of my list

and it's going to tell you two things.

It's going to tell you first and foremost,

what is the character of

the person you're asking?

And we'll tell you a little bit

something about yourself because if you

ultimately want to be good at

it, you have to do it a lot.

Two things about that I would say is we

could read all the practice books in the

world,

but the greatest pianists don't sit

around reading sheet music for six months

and then say, "I'm going to go play

this goddamn song." They practice it.

And the same thing,

if you wanted somebody to fix

a leaking faucet in your house,

you would hope that they had done it

300 times before because if they came in

with a t-shirt that said,

"This is actually my first rodeo." You

hope that the integrity of the people

you're with and you'll learn something

by doing it and you cannot learn it by

not doing it. And we see this. I mean,

I see it. Lawyers, even in my vintage,

if they haven't tried something

in a year or two years,

even though they know it inside out,

they're riddled with anxiety

because they don't know it,

but who the heck knows what's

coming? So doing it's important,

doing it as much as possible is important.

Certainly you and I both have heard more

than we wanted ever to hear about the

vanishing jury trial.

It's not quite vanished,

but doing nothing will assist

in its ultimate invisibility.

Yeah, 100%. And hopefully

this podcast is a tiny, tiny,

tiny impet or a weapon or

something that spurs people to

try to get into courtrooms and try cases.

And I really appreciate you being

a guest on Vertic Academy, Mike.

And more importantly, thanks

for all the work you've done,

not only for your clients, but for our

community and frankly, for our country.

I really appreciate

your work for all of us.

Oh, that's so nice. Thank you, Kevin.

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