Trial Lawyer Resource Center

We will soon come to a close of the sixth year of a new millennium…something new – something old!  We look to the future hoping that what we have learned in the past will help us make the right decisions.  We see changes in the law.  We see changes in advocacy techniques.  We see changes in our profession and the very way in which lawyers are practicing and will practice law.  Yet we must often look perhaps to events that did not occur or things that did not happen in order to figure out where we are and where we are going.  These “non-events” often provide us with the key to the truth!

    Often, counsel must prove that a given event did not occur or that a particular sound was not made or heard.  Where the attending circumstances show that it has probative force   that it is relevant and material   evidence proving that an event did not occur is admissible and may often have a devastating effect on the case.  This is “negative evidence.”

    Negative evidence is evidence that a fact did not exist or that a thing was not done, did not take place, or that a witness did not hear, see, feel, touch, taste, or smell.  Many courts consider that negative evidence lacks the force of positive evidence, since the memory of a witness is considered more reliable when he testifies to something that occurred as opposed to something that did not.  If this is true, it should go to the weight of the evidence and not to its admissibility.

    Of course, negative evidence must be relevant   that is, it must logically tend to prove or disprove a material fact.  Where the evidence is logically probative, it is relevant and will be admissible unless there is a reason for not allowing the jury to consider it.  In determining whether a fact has probative value, the fact for which the evidence is offered to prove or disprove must be identified.  The same evidence can be relevant to one purpose and irrelevant or immaterial for another.  If evidence is offered to prove or disprove a fact or circumstance which is not a matter in issue, it is said to be immaterial.

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The term “strategy” has been bantered around by so many different people in so many different ways under so many different sets of circumstances that often we lose sight of the true meaning of the term “strategy.”  Some people will say that the strategy of a team in the Super Bowl Game is “to put the ball in the end zone.”  That is not strategy at all but merely an end result or goal.  Others will say that the strategy in a real estate negotiation deal is to “sign the papers and wrap up the deal.”  That is not a strategy at all but rather a destination at the end of a journey.  Therefore, for us to begin this exercise as trial advocates, we must have a plain and straightforward definition or explanation of the term “strategy.”  Accordingly, we will define “STRATEGY” as follows:  Strategy comes in two parts – (a) the step-by-step logical, methodological, and analytical means by which one determines a course of specific action or actions to take or to avoid in order to defeat one’s opponent on a given issue, in a given battle, or in any other form of competition or combat; and (b) a positive approach combined with a negative approach (i.e. playing devil’s advocate) to putting into effect those actual steps that must be taken or avoided to defeat your opponent.  “Strategy” is therefore not the end but rather the means to the end.  Your strategy – simply put – is the way you figure out how in the world you are going to figure out a way to defeat an opponent in any given situation combined with figuring out all of the different ways your opponent is going to utilize to figure out a way to defeating you.  Here is the problem – most trial advocates only take the first part of the approach…by figuring out the steps they need to take to defeat their opponent and ignore the logical analysis being conducted by the opponent as he or she figures out the steps to take or avoid to defeat you.

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Plaintiff lawyers often struggle with determining how to best prove and argue damages during trial.  This is especially so when it comes to proof and argument of “physical pain and suffering.”  On the other hand, defense lawyers for insurance companies and manufacturers concern themselves with determining the right methodology to use at trial in order to defeat plaintiff’s claims of various types of damages.  Advocates on each side are in a constant tug-of-war simply trying to figure out how to enhance or diminish damages during the trial and certainly during summations.  One method to consider in your upcoming trials is that of the “pain equilibration” method of proving and arguing damages.

    The “pain equilibration” method of proving and arguing damages can be described as follows:  It is a method whereby plaintiff’s counsel, through expert testimony, demonstrates the comparative pain of plaintiff “as compared to” similar forms of pain caused by other types of trauma or pain-inducing instances.  Pain equilibration is a method utilized to compare pain of various types to a common denominator amount of pain.  The common denominator for equilibration is the pain medication used for analgesia pain relief.  What you are trying to do is simply provide the judge and jury with a method of understanding a quantification of pain in a description which translates to accepted, common pain types and for which a well-agreed-upon dosage amount of medication is used for analgesia.  This method will assist the judge and jury in understanding the level of pain and suffering experienced by the injured person requiring pain relief.

    Consider this:  If the trial advocate is attempting to show the excruciating pain that her client has endured both before, during, and after a three-level cervical fusion, wouldn’t it be helpful to the jury if the advocate could prove that, for example:  The pain Mary has endured during this 24-month period is equal to the pain a woman would endure in going through 91 hours of labor?

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