Presenting an effective defense in the courtroom

• Author: Stewart Edelstein
• Pages: 205-234

205

CHAPTER TEN

PRESENTING AN

EFFECTIVE DEFENSE IN

THE COURTROOM

This chapter complements the prior chapter on presenting an effective

plaintiff’s case in the courtroom. For example, the discussion in this

chapter about cross-examination of plaintiff’s witnesses applies equally

to crossing defendant’s witnesses. As with that chapter, the tips offered

here focus on what happens in the courtroom during a bench trial

(except for section 16, which provides tips for a jury trial), although the

discussion necessarily encompasses pretrial preparation as well.

The goal of plaintiff’s counsel is to get from point A (start of the

trial) to point B (a plaintiff’s judgment). Your goal in defending is to get

from point A to point C (a defendant’s judgment).

1. CHOOSEACOMPELLINGCOUNTER-THEME

Persistence of belief (also known as confi rmation bias) is a psychological

concept explaining a common way people deal with indecision. Assume

you are planning to buy a new car. Until you decide which car you will

buy, you are in a state of some discomfort, eager for a resolution of the

dissonance your indecision ha s created. You find relief by final ly making

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your decision, after which you wi ll likely focus on information support-

ing your decision, minimizing the information challenging it, such as

in magazine and television car ads. For more on confirmation bias, see

the work of Dan Kahan, Professor of Law and Psychology at Yale Law

School, and Jeffrey Rachlinski, Professor at Cornell University Law

School.

And so it is with trial themes. Plaintiff’s counsel has the advantage

of presenting the first theme. If the judge or jury is so beguiled by that

theme as to be swayed (while trying to keep an open mind, of course),

you must present a counter-theme at least as compelling as plaintiff’s

in order to overcome the “persistence of belief” created by plaintiff’s

theme.

Ideally, your theme should be more than “Plaintiff is wrong,”

although you certainly want to undermine the plaintiff’s theme. You

should present your own independent theme that takes t he legs out from

under the plaintiff’s theme. For example, if plaintiff is suing for breach

of contract for the sale of goods and plaintiff’s theme is that “people

should live up to their promises,” your counter-theme (assuming you

have the facts) may be that “people should not be required to pay for

shoddy goods.” You may also be able to co-opt the plaintiff’s theme and

turn it against the plaintiff (again, assuming you have the facts) by a

counter-theme like “people should live up to their promises by deliver-

ing what they promise.” Of course, such counter-themes are possible

only if you have pled effectively, as discussed in the next section.

2. DRAFTYOURANSWER, AFFIRMATIVEDEFENSES,

COUNTERCLAIMS, ANDCROSS-CLAIMSTOBECONSISTENT

WITHYOURCOUNTER-THEME

From your first meeting with a client when defending a commercial

case, you must learn every thing of potential interest about the underly-

ing transaction and about your client’s business. It is often beneficial

to meet at your client’s place of business, where you can tour the facil-

ity to learn the ins and the outs of the operation in a way that is not

possible by merely talking with your client and reviewing documents.

Such a meeting also gives you the opportunity to meet with other cli-

ent employees in their work setting, giving you insights otherwise not

available.

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