Fewer Objections, Better Witnesses: Trial Lessons with Craig Peters

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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.

My name is Kevin Morrison

and I'm in San Francisco.

And today my guest is Craig Peters,

who's also in San Francisco.

He's my friend and he's my law partner.

Craig was raised in the Bay Area and

he went to UCSD and then onto USF

Law School. After graduation,

he went to work as a public defender

first in Contra Costa County and then San

Francisco. By the end of

his time in San Francisco,

he was training other

lawyers on trial techniques.

Craig then decided to leave criminal

practice and went to work at a plaintiff's

firm specializing in asbestos cases

where he was their trial attorney.

After some time there,

he got into non-asbestos personal injury

and wrongful death cases working at

Bill Vean's office where he immediately

achieved great success in trying a

variety of cases, including

products, trucking,

and pretty much every form of serious

personal injury or wrongful death cases.

For the last eight years, along

with me and some other folks,

he founded Altair Law in San Francisco

where he's continued to try cases on

behalf of what Craig likes

to describe as the underdog.

He's had remarkable success,

including helping to obtain a $40 million

verdict for non-economic damages only

for a plaintiff with

serious back injuries,

but not a spinal cord injury and not

a brain injury and verdicts for three

African American women totaling over $8

million in federal court for essentially

being detained in a parking lot

for an hour driving while black.

When Craig's not trying

cases, he's mentoring others,

including as a faculty member

at the ABOTA Trial College.

Craig is a member of the Big Four

invitation only organizations,

ACTL, ISOB, ABOTA,

and the International

Academy of Trial Lawyers.

He's next year's president of the academy

and has also served as president of

the Consumer Attorneys of California.

I can tell you that Craig is one of the

most creative people I know,

always has great ideas and quickly

can distill a case into its overall

meaning from the 36,000 foot view.

He does not get lost in the weeds.

He is adept at keeping it simple.

Craig, welcome to Verdict Academy.

Thanks, Kevin. That was

a really nice intro.

Feels like maybe that's a little much.

I don't know, but thank you. Nice.

That's actually how I feel about you.

So it didn't even have to research,

just do that from heart.

I also know that you're one of the top

two favorite children of your mother.

I am. I am. I'm definitely in

the top two running, I think.

I think so.

I mean, if you exclude grandkids and

dogs, I definitely make the top two.

So kids, it's the kids.

Yeah. As you know, Craig,

the format of the show is three trial

tips from the top trial lawyers.

You're certainly among the trial

trial lawyers in the country,

but I do like to ask an

icebreaker question. I'm curious,

I know I knew this at

one point, but I forgot.

Why did you decide to leave

criminal law and get into civil law?

I think I was having a little

bit of a midlife crisis.

I had done criminal law for so long and

I really had tried every kind of case.

I've worked on every

kind of case there was.

I had been the director of

training as you mentioned.

I'd been doing that for I think

just over three years at that point.

And I was kind of ready to either go

back into the line and manage my own

caseload again or maybe try something

else, but I was kind of a sunder.

I wasn't really sure what to do.

And I think if you're male

having a midlife crisis,

you either go find a young

woman to run around with,

you go get a sports car or you

change jobs. And I like my wife.

I'm not big into cars,

so it seemed like change jobs was the

good options. And it just had so happened

that I had gotten a call from that firm

that you mentioned that did mesothelioma

asbestos cases and they had asked me to

come work for them. And I had said, "No,

thanks, but no thanks. I'm pretty

happy." And the urging of Maureen,

I gave them a call back, said,

"Hey, is that job still available?

Maybe we should talk." And we did.

And here I am many years later.

I'm not sure how long.

I really at the time though it

would be a very short stint,

kind of an expose into some other field,

sort of see what that was

like and then go back.

I really loved being a public defender.

So nobody was more surprised than

me that I'm still here doing this.

Yeah.

No a lot of people spend significant

time doing criminal work and then spend

significant time doing civil

work. It's unusual. Well,

you succeed in both

areas, so it's amazing.

The three tips you want to give generally

in the area of objections or lack

thereof,

three things from a witness and

then non-economic damages and

subtopics within that. So let's start

with the first objections or lack thereof.

Craig, what do you want to share

with our audience about objections?

Yeah, and I want to say Kevin,

you're doing great podcasts.

I think these are super

helpful in watching them.

I was trying to find some things

that maybe hadn't been covered yet,

so hopefully these fit that

bill. I think from again,

sort of 30,000 feet, a trial

is all about credibility.

It tends to be less about facts.

It tends to be about who the

jury feels like they can trust.

And so I want that case to go as

quickly and as smoothly as possible.

I want them to start to notice things

about me that maybe make me different from

the other side. And so as

it relates to objections,

I really try to work hard and depending

on who's on the other side of the case

and depending on the judge,

it can be challenging,

but I try to work very hard to build a

relationship with the other side with the

defense and be upfront with them about

what's going to happen in my case and

give them a heads up in the hopes that

they will reciprocate. So for instance,

as soon as I know when a witness

is going to be on the stand,

I let the other side know. If it's five

days from now, three days from now,

whatever, I just let the other side know.

I don't think that there's those games

of holding back and not letting them know

until the last minute, I don't think

that serves either side very well,

certainly doesn't serve the jury well.

And I think it builds some credibility

with counsel on the other side.

And in doing so,

I'm then hopeful that we'll have clarity

about what is coming in and what isn't

so that I can avoid objecting. I

want to object as little as possible.

And I have had trials where I have not

objected once during the trial. Again,

kind of depends on the counsel I

have on the other side and again,

depends on the judge. I have found in

some cases where I've attempted to do this

sort of not do the objecting. There's

things I've needed to object to.

A technique that I've found is successful

is to let the judge know that my

general manner in trial is to not object.

And the only time I'm going to do it

is if it's something really important.

And so I may not give the basis

for the objection upfront.

I may ask for a sidebar because I want

to talk to the judge because usually it's

something really significant.

And judges generally speaking,

I've found appreciate that.

Counsel appreciates that as well.

Some will take advantage of me declaring

that my intention is not to object,

but I have found that that has

been the small minority. Again,

I think you're mirroring what you want.

And so if you're being forthright and

honest with the other side about what you

intend to do, more often than not,

you'll get that back from the other side.

And then what I have found is in many

cases, sometimes on the other side,

particularly because they have resources

and systems that are different from the

plaintiff side on the defense side,

they'll maybe have an appellate attorney

that's working on the other side or

some other counsel who's

supervising or watching.

That drives behavior differently, I think.

And so sometimes they'll feel compelled

to object because somebody's telling

them they have to.

And so there's the dichotomy I'm

looking for is generally speaking,

once we've gotten past motions in limine,

we know what the field looks like,

if you will.

I'm going to be okay with all that stuff

because those are the rulings the judge

has made. That's the playing field.

I'm going to hope that this jury is going

to take all that information and still

find in the right way for my client.

So that's kind of a general philosophy.

And I find that if you, again,

trials are so complicated.

There's so many weeds and

minutiae to get involved in.

I like to have things that are sort

of kind of like what you mentioned.

I like to sort of try to

think every morning as I'm

going into trial from 30,000

feet what I'm generally trying to

accomplish because that will ultimately

dictate the behavior that I have

during trial and trying to create that

dichotomy for the jury that hopefully

it ends up with them trusting me more.

I definitely share that philosophy and I

think objections tend to draw attention

to whatever is going on because

attention spans are shorter and shorter.

And I can tell you as someone as a juror,

you're flat out bored. I'm like, "Oh,

objection. I need to pay attention now.

I was just thinking about my dry

cleaning, but what's going on?

" That's one of the things I think that

draws attention to whatever's happening.

There are moments of course, Craig,

there's an exception to every rule

where it's a significant misstep.

It's a violation of an order or it's

just really grievous and you need to put

something on the record.

Is it your strategy that puts

the objection on the record,

ask for a sidebar and hash it out?

Is that generally what you do?

Yeah. No, you just

recently experienced this,

which is always really disappointing.

There's advocates on both sides on each

case and we expect them to fight hard

for their client,

just like I'm sure they expect

us to fight hard for our client.

But the rules should matter

and sounds quaint maybe,

but honor should matter and doing

things the right way should matter.

And when they don't,

it's so disappointing because it feels

like not only a violation of trust for

you as the person who's had

this horrible thing happen,

but it sort of feels like it degrades

the system in some way too. So yes,

when that happens, and that's

happened to me as well,

I think it's probably happened

to every trial lawyer,

my general approach is I want to

go do a sidebar with the judge.

And I think you're right.

What objections do is they generally

call attention. They kind of wake up the

jury.

You don't have to go any further than

turning on YouTube or if people still

watch news, look at the news. The

news is bad. There's conflict.

When there's conflict, people pay

attention. What is an objection?

It's conflict.

As opposed to that thing just going

along and there's no conflict from you,

it tends to make it less impactful at

times. But again, I think you're right.

There's certainly going to be

occasions where you have to object.

It does take a while to get out of

the issue spotting lawyer like, oh,

that's a technical objection.

It's a correct technical

objection, but who cares?

So it takes a while to get out of the

issue spotting to say, you know what?

Who cares? It takes a while for that,

but we want to make sure that folks

understand when they're starting to try

cases.

Just because there's an objection that

should be sustained doesn't mean you have

to make it.

And similar,

just because you have a good fact

doesn't mean you have to put in that good

fact. Again, jurors, they're

like all the rest of us.

They can only take in so much.

And so I think there's a real value in

picking the facts that you think are the

most important and giving

them just those or at least

spending most of your time on those so

that those are the things they remember.

Well.

Great transition. The three

things from a witness.

I think you and I share the rule of

three, the love for the rule of three.

I know we do. Tell me about your

thoughts on three things from a witness.

Yeah.

And this actually came from way back in

my public defender days where we were

pretty under-resourced for

the first half of my career.

And then thanks to Jeff Adachi and

his innovative ways we became better

resourced. We could have experts

and sometimes even multiple experts,

people to help us with

graphics, that sort of thing.

But early on what I was doing,

and it was in part because I

think I'm a visual learner,

but it was also in part because it

helped me make sense of the case is that

I would essentially storyboard

my case with very terrible

hand-drawn drawings that

I made. I'm not an artist.

And I would then try to figure

out who in the case could testify

to each of those pictures.

And the goal was you could look at this

row or a couple of rows of pictures and

you could generally understand the case.

That's now morphed and transitioned a

bit. And now I do it a little

bit in reverse and I think about,

I always start with the verdict

form. From the verdict form,

I go to closing argument.

Once I've got my closing argument

and the verdict form done,

now I know here are the things I got

to get in. And so with each witness,

presumably I've already got them linked

to those things and I want to figure out

for each witness what are the three

things max. By the way, it can be one.

In fact, I love the one thing witness,

but max three things that they

are going to give to this jury.

And then how do we get those things

to the jury in a way that has a visual

representation? I think it's

important for two reasons.

One is most of us who have tried cases

and read about all these amazing books

that are out there about trying cases,

people remember things at a far greater

rate when they hear it and they see it

than if they just hear it. So that's a

good reason to have a visual to go with

the testimony.

But the second and I think more important

reason is because we forget that a

great closing argument will frequently

not win a case unless it's done one

important thing, which is

give to your good jurors,

presumably you've got at

least one, hopefully more,

the arguments that they need to make

when they go back in that jury room to

get the other jurors

to come to their side.

And my experience has been the best way

to do that is with those visual aids

because those are links back

to the testimony they heard.

And so I can use those graphics with

the jury to remind them when somebody

back there says X, Y, and Z, you remind

them that it's actually A, B, and C.

And remember we heard it and we saw it

and here are the three documents that

support that and they didn't

have anything to contradict it,

whatever the argument might be. So I have

lots of particularly expert witnesses

who resist this. They either

don't want any or they want 50.

And I think that's a really important

thing that I learned as well.

Visual aids you're talking about?

Yeah.

Okay.

Again, when I was a public

defender, we rarely got experts.

And then when we did, it was such a treat

that you really curated that expert.

And so we basically would say,

"This is what you're going to do.

" And there was kind of no

ifs, ands or buts about it.

And so when I came into

the plaintiff's world,

one of the things I noticed

was a lot of experts,

the relationship seems to work the

other way frequently where the expert's

telling the plaintiff's attorney,

and I imagine probably same

with defense attorneys,

"Here's how I'm going to do this. "

It's like, "No, you have your opinions.

Those opinions are helpful to me.

Here's how I'm going to

get that information to the

jury in a way that's most

effective. And if they're

not on board with that,

then I go find myself another expert."

But I think that's really getting

witnesses to narrow down and

think critically about what

are the most important points they're

making and how does it help move the ball

forward as it relates to the verdict form?

Because at the end of the day,

those are the only answers that

matter are those questions.

And there's of course exceptions to

this like every rule with a life care

planner. If I've got an econs case, I

want to put the whole life care plan in.

That's obviously going to

be more than three pages.

It's a single document arguably,

but there's some wiggle room here,

but I caution people that don't think

that everything gets wiggle room because

then pretty soon the rule's

gone. At least for me,

it has importance in terms

of simplifying the case.

Yeah. Let me just kind of put a little

meat on those bones as they say it.

I saw what you did when we tried the

allied case, the mass shooting case.

We had a security expert who we kind

of set the case up through that expert.

And this is also true for doctors

who are kind of notorious.

Orthopedic surgeons, for example,

are quite confident in their

abilities to do things,

including surgery and their

ability to explain things.

And this is how they're

going to do it, period.

And let me show you what

I'm going to show the jury.

And you have to have the guts, the courage

and presence to say, "You know what?

I appreciate it. Noted that's not

how it's going to happen here.

And this is what I'm going to show you

and this is what we're going to show

through you. " And you have to work

with that expert to make sure he or she

understands and buys into the graphic,

make it simple and does it on

the way that you want to do it.

And I know that takes

enormous amount of time.

I saw how much time it took you

with our expert in security case.

It can take many, many

hours, many, many sessions,

but it's necessary and it's just

a lot of advanced work, right?

My grandfather on my dad's side was a

painter and he told me something that has

stuck with me my whole life,

particularly as a lawyer,

which is the key to painting

is prep. It's all about prep.

Painting's actually really easy.

If you do a lousy prep job,

you will have terrible painting.

But if you spend the time and you're

diligent and conscientious about the prep

work, even the things that you'd really

rather not have to do, doing the edging,

filling in with plaster, if

you're willing to do that work,

then by the time you get

to the painting, it's easy.

It's the same way with trial and our

experts, every witness. You got to put in,

I mean,

I can't tell you how many times I've

spent hours and hours and hours with a

witness and I put them on the stand

for 15 minutes. But that's also,

I think in some ways,

that's the fun part of our cases is

that we get to learn about people.

We're really, we're

investigators ultimately.

That's really a big part of the

job is being a good investigator,

being curious and inquisitive and

learning how to ask good questions,

not trial cross-exam questions,

but more kind of open-ended questions and

building a relationship with people so

they feel comfortable

giving you that info.

And I think that's true

with experts as well.

Yeah. How does the jury

help to understand this?

You're always phrasing it in such a way

as in order to help the jury do its job,

how do we best explain this to them?

You're going with that mindset,

that's really important. But

boy, you can't shortcut it.

You can't be doing this two days before

the expert takes the stand or two days

before his deposition because it's going

to go real bad if you wait that long.

Agreed.

And the attended benefit that maybe should

be the primary benefit when we think

about this is that when you workshop

in a workshop and a workshop and get it

down to its simplest element and

you've got these good graphics,

you can then turn around and you can

use those with the defense witnesses.

I had a case in Monterey where

there was a neurosurgeon.

He's the neurosurgeon who worked on

the poor guy who got beat up at the

ballpark.

Brian Stowe?

Brian Stowe. Yeah. I think his name.

Was - So UCSF? Isn't the guy at UCSF?

Yeah, UCSF.

I forgot his name. Yeah, yeah.

Really smart guy, really good

witness, really tough witness.

But I had created a checklist for my

own expert. And as he was testifying,

I was like, "Hey, wait a minute.

I can use that same checklist with him

and he's going to have to agree with me.

" Which the issue was whether this

rolled down a mountainside and a

caterpillar bulldozer head. Why had

my decedent died as a result of that?

We said it's because his head had smacked

into one of the pillars and they said,

no,

it's because of the centrivical forces

of rolling down that caused serious brain

injury. And so we had

a checklist of, well,

which things here would've been caused

by centrival forces and which things by

smacking your head into one of these

solid steel pillars? And of course,

the last one was this giant gash that

opened the poor decedent's head and he had

to agree.

Yeah, that was just the B pillar.

All right. Last point, non-economic

damages. How do you set the table?

What kind of witnesses do you call?

Talk to us about non-econs, Craig.

Yeah. And this, I just referred

to or alluded to this earlier.

I love the one topic witness I've said

many times in some of the talks that I

will give about trial testimony and trying

cases generally that you really want

to spend time with your client

because in doing so where they live,

spending time with them where they are

spending their time when you're not

around,

that's where you want to be because that

is where you will frequently find some

real gold in terms of witnesses you can

talk about the changes to your client.

And my favorite example of this was a

client that I had just outside of Fresno

in the Central Valley. And I met him at

his house with his wife and his kids.

It was near lunchtime. They said, "Hey,

do you want to get lunch?" I said,

"Yeah, that'd be great.

Let's go get lunch." And they said, "Well,

there's a great queria around

the corner that we like to go to.

Fantastic." So we walked there.

And as we walked a block and a half to

this kind of main street and we made a

right, we went around the corner of

this kind of bodega corner store place.

And my client kind of nodded his head

inside of the guy at the counter and the

guy inside waved and we kept walking. I

said, "Do you know that guy?" He goes,

"Oh no, I need to pick

groceries up or something.

Last minute I go there." And

I was like, "Okay." I said,

"Do you know his name?" He's like, "I

can't remember." He sort of struggling.

I said, no, no big deal. So anyhow, we

have lunch. We go back to his house.

I spent maybe six-ish hours with him.

It was late in the afternoon.

I was getting ready to get

back in my car. Though,

I'm going to go back to that corner

liquor store and talk to that guy and see

what he knows about my client. So I

went in and said, "Hey, I'm a lawyer.

Represent my client. Have you

noticed any changes to him?" He goes,

"Oh yeah." When he'd come in, he was

always happy. He was really upbeat.

He usually had one of his kids hanging

on him. He loved being out with his kids.

And for the last year and a half,

two years, something's different.

He just doesn't seem the same.

I noticed physical differences,

but there's something

different just about his face.

I don't see him smile very

much. And I asked him,

"Do you know his name?" And same

thing. He was struggling. He's like,

"Ah." He made some guesses.

I said, "That's okay." I said, "Hey,

if I needed you to come talk to a

jury about what you just told me,

would you be willing to do that?

" He goes, "Oh, I don't know.

It's really busy." And he gave me all

the excuses. Anyhow, long story short,

he ended up agreeing.

I went back and saw him again and he

was just an amazing witness because what

does the other side do with that witness?

The guy doesn't even know my

guy's name. He knows him by face,

but doesn't really know his name. But

he can talk about the differences.

So I also,

I think when we're building our case

and talking about the losses our clients

have experienced, you want as

360 investigation as possible,

all sides.

It's not just aunts and uncles and

brothers and sisters and spouses and kids,

super close friends,

but the larger community. If they go

to a church or a temple or a mosque,

if they play pickleball, if they pick

their mail up someplace, I used to be,

and I had this in one of my cases when

I was doing criminal defense work,

called a mailman in who used

to se my client all the time.

So being with them where they live really

helps you get a better sense of who

they may be interacting with,

which then can lead you to those folks

who might give you great testimony.

So I think that's the piece that's

really important on top of all the other

pieces, the people that we

I'm sure all could think of.

Then the question becomes,

well now what is the number?

And what I have done recently,

the case that you mentioned in Hayward

where client was compensated 40 million

bucks,

the way we decided to approach that was

we're going to figure out what we think

the value of the deficits are on a yearly

basis. And we're going to do that by

looking at what do we pay for

joy? And so we look at whatever,

Steph Curry's, the Shohei

Ohtanis, the Jennifer Aniston's.

People that everybody knows that are out

there in the public that get paid good

money to bring joy. Now granted,

there is an economic piece to that,

but what's driving it is joy.

So now the scale has to

be equal, right? I mean,

my dad used to say you're

going to have rough times.

Just remember those rough times are

going to help you feel joy to the same

extent on the other end of the spectrum

because you've had those tough times.

And so it's still going to be

hard when nobody likes hard times,

but they're a really important part of

being human and being able to experience

the full spectrum of emotion.

And so talking to a jury about that

and saying it has to be that we have to

compensate for those losses that

make our lives worse in the same

way that we would compensate for joy.

And so if we think about it as a job with

a job description, and now here is

my client's new reality. You said,

I'm going to pay that person.

I'm going to offer them a million dollars

a year to have this current condition.

Alternatively,

say you don't get the million dollars

a year and you can have your old health

back. Which one would they take? Well,

of course they'd say, keep your million.

Give me my health. What does that tell us?

It tells us that a million dollars

a year is a reasonable number.

I'm pulling a number out just randomly

now for purposes of hoping people can

understand where I'm headed here.

But now you've got your base number.

You let the jury know, look, the

reason you're here by and large. Yeah,

they might be fighting me

on liability or causation,

but not really.

At the end of the day,

really why we're here is because they

don't want to pay for the full value of

what my client's loss.

So that's your job is to figure

out what those losses are.

What we know is the floor

is a million bucks a year.

Now you can decide this however you want.

You think about my client's

future life in chapters,

the next 10 years versus the last

10 years versus the preceding four

years. You can go year by year.

You can think about when my client's not

going to be able to walk his daughter

down the aisle when she gets married

and what that's going to feel like.

You can pick,

but that's your job when you go back

there is for all of you to figure out what

the right number is that's between one

and whatever you think the cap is. Maybe

it's seven million a year. And I think

that this does a couple of things. One,

it helps drive home this point that

losses need to be valued commensurate

with what they have actually

taken from people's lives.

It's preventing the kind of joy

people would otherwise have. But two,

it gives the jury a job. And I think while

we want to make it easy for the jury,

they want to figure something out.

And so this gives them something to figure

out that's perhaps the most important

and meaningful decision they're going

to make of all the questions on the

verdict form.

So I like it for that reason because it

feels like I'm helping to empower them

to make this really important decision.

So that's kind of my approach

every time it's slightly different,

but that's generally from sort

of 30,000 feet how I aproach it.

Great advice. Well, unsurprisingly

the 30 minutes has flown by,

but I do want to give a last opportunity

to give any parting words for folks who

are struggling with the concept of being

a trial lawyer or think it's too hard

or what advice do you want to

give to our audience, Craig?

So I think being a trial lawyer is hard.

I think being a litigating

attorney is really hard too,

in some ways even harder.

For those of us who try a lot of cases

there's this frenetic period right

before trial and then during

trial, and that's really hard.

It's not great sleep and

probably not great nutrition and

lots of things that aren't going the way

we normally would have them go in the

rest of our life.

But the folks who actually litigate a

case and fight with the other side to get

the information they need and all of

that stuff, that's really hard too.

It's a different kind of hard.

And I think that it's really important

that people figure out what feels right

for them.

I don't think people should feel compelled

to be a trial lawyer because they

have some perception of what that means.

Trial lawyers are no better or more

important than really good

litigating attorneys in my mind.

And that's because I'm not

that good at litigating cases.

I don't like those fights

and it's exhausting and I

would much rather take the

kind of exhaustion that I get

from being a trial lawyer.

So I think thinking about that and being

really intentional about what role,

what piece you want to play in somebody's

case really will lead to greater

happiness. I know it has for me.

It always makes me sad when I hear about

the level of discontent amongst lawyers

with their job because I feel like I've

got one of the greatest jobs on earth.

But it's great for me because

it fits my personality.

And so I just feel like if people

could really think about that piece,

I think that would lead to more happiness.

And I think anybody can be a trial lawyer

that wants to so long as they go in

with eyes wide open recognizing what

those challenges are compared against the

challenges of some other piece of the

litigation process. So I don't know if

those are words of wisdom, but that's -.

They are for sure. Life is short.

You got to love what you do, right?

So if it's trial law, that's great.

It's what I love. It's what you love.

But if it's not, do something you love

because who knows how long we're here,

right?

Yes. As my dad used to say,

all of our stories end badly,

which was not actually negative.

It was just saying like, "Look,

forget it is going to end someday.

And so take advantage of the time you

got." But nobody's getting out alive.

No one here gets out alive as Jim

Morrison said, right? Yeah. Craig Peters,

it's been a delight. Thanks for

being a guest on Verdict Academy.

Yeah, thanks for having me.

Thank you for listening

to Verdict Academy.

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