Articles

Advanced Civil Litigation: Presentation of the Case--Plaintiff's Perspective by John F. Nichols

TABLE OF CONTENTS

ACKNOWLEDGMENT

Many thanks to all of the wonderful authors whose writings made this article possible, including but not limited to the following:

Chapter 101 of the Texas Pattern Jury Charges, 1997 Edition - for its language and case law cited therein
Alejandro Acosta, Jr- for the Materials he prepared for the 20th Annual Advanced Civil Trial Course, 1997 The author should receive full acknowledgment for his work and I extend my appreciation to him for his extensive labors.
Judge WRoss Foote - for his observations in his article "Things That Bug Juries" which originally appeared at 42 Louisiana Bar Journal No6 and reprinted with permission in 58 Texas Bar Journal No10 (November 1995) beginning at page 1038.
The Honorable Jay Patterson, Judge of the 101st District Court, Dallas County, Texas - for his thoughts, reflections and self improvement test for every trial lawyer contemplating the next trial These "golden rules", in question form, appeared in the August 5, 1996 edition of the ATexas Trial Lawyer.
Jim Pickens - for the information and excerpts from the best-selling and best-ever written book on selling, "The Closers." This book is obtainable at minimal cost through Hampton House, Box 67-8000, Placerville, CA 95667, phone 916/622-7777.
Articles appearing in the April 1996 edition of the American Trial Lawyers Association Trial Magazine.
AGerald Spalding, a psychotherapist in Dallas, Texas, - for an outstanding article previously published in 1980 and 1981 by the State Bar of Texas, which serves as the backdrop for the foregoing article from which this trial outline was taken The author wishes to thank DrSpalding for his outstanding contributions to the trial bar Also, excerpts have been taken verbatim or in summary from the classic work of Desmond Morris "MAN-WATCHING - A Field Guide to Human Behavior", Harry NAbrams, Inc., Publishers, New York.
Robert Scotee of Tinsman & Houser and Lewis Plunkett of Plunkett & Gibson - for their articles delivered at the State Bar of Texas - "Preparing, Trying and Settling Auto Collision Cases" Institute in March 1996.
Jim MPerdue, the lawyer=s lawyer - for the information gathered from his article, "Starting Off with a Bang: Voir Dire and Opening Statement" at the State Bar of Texas -CLE Superstore Seminar at the 1996 State Bar Convention, Dallas, Texas Tab A.
Cone & Lawyer, Prentice-Hall, Inc- for the information taken from Chapter 8 of the "Personal Injury Practice Manual,"
DrRobert Gordon and The Wilmington Institute of Dallas, Texas and - for the information taken from the "Trial Science Reporter."
Randy Johnson, Dallas lawyer - for the points made by him as an outstanding substitute speaker at the 1996 State Bar of Texas - CLE Superstore Seminar in Dallas, Texas.
John ACall - for the ideas and information gathered from his article, AMaking the Research Work for You.@
Amy Singer - for the ideas and information gathered from her article, ASelecting Jurrors: What to Do About Bias.@
Patricia McEvoy - for the ideas and information gathered from her article, AWhat Jurrors Really Want.@
Michael CMaher - for the ideas and information gathered from his article, ADeveloping a Winning Case Strategy.@

Special thanks to John ABo@ Nichols, Jr., for his tremendous work on this article.

WESTLAW KEY NUMBER SERVICE - TOPIC/REFERENCE NUMBERS

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GENDER REFERENCES

Gender references to "he" throughout were used instead of "he/she" and no slight is meant by such use.

TABLE OF CONTENTS

INTRODUCTION

GENERALLY LITIGATED CAUSES OF ACTION

I BREACH OF CONTRACT	1
A Common Law Breach of Contract	1
1 Have the Parties Entered into a Contract?	1
2 Do the Representatives of the Parties Entering into the Contract Have the Authority to Bind the Parties?	1
3 Is the Contract Enforceable?	2
4 Has the Conduct of Either Party to the Contract Ratified the Contract?	2
5 Have Conditions Precedent to an Obligation of a Party to the Contract to Perform Duties Set Forth Therein Occurred?	3
6 Does the Contract Contain Ambiguous Terms?	3
B Damages	3
1 Direct Damages	3
2 Consequential Damages	3
3 Loss of Contractual Profit	4
4 Lost Profits Plus Capital Expenditures	4
5 Reliance Damages	4
6 Mitigation Damages	4
II FRAUD AND NEGLIGENT MISREPRESENTATION	4
A Common Law Fraud-Intentional Misrepresentation	4
1 Elements	4
2 What Constitutes a AMisrepresentation@	5
3 Damages	5
B Common Law Fraud-Concealment or Failure to Disclose	6
III INTENTIONAL INTERFERENCE WITH EXISTING CONTRACTS	6
A Elements	6
1 Existing Contract	7
2 Willful and Intentional Act of Interference	8
3 Interference Must Be Proximate Cause of Damage or Harm	8
4 Plaintiff Must Sustain Actual Damage or Loss	8
B Damages	9
IV MISUSE OF CONFIDENTIAL INFORMATION OR TRADE SECRETS	9
A Introduction	9
B Elements and Definitions	9
1 Trade Secret Defined	9
2 Discovery of Secret by Improper Means	10
3 Breach of Confidence by Disclosure or Use	10
C Appropriate Relief	10
1 Injunctive Relief	10
2 Actual Damages	11
3 Punitive Damages	11
V LIBEL OF A BUSINESS OWNER AND COMMERCIAL DISPARAGEMENT.	11
A Introduction .	11
B Libel of a Business Owner	11
1 Elements	12
2 Publication by Defendant	11
3 Negligence or Malice	11
4 Falsity of Statements	12
5 Damages	12
C Commercial Disparagement	12
1 Introduction	12
2 Definitions and Elements	12
3 Damages	13
VI CIVIL CONSPIRACY	13
A Introduction	13
1 Elements	13
2 Two or More Persons	13
3 Object to be Accomplished	13
4 Proof of Participation in the Conspiracy	14
5 Acts in Furtherance of the Conspiracy	14
B Damages	14
VII BREACH OF EMPLOYMENT AGREEMENTS	15
A Introduction	15
B Elements	15
1 Limitation on Employer's Right to Terminate	15
2 Requirement of Contract to be in Writing	15
3 Damages	16
VIII USURPATION OF CORPORATE OPPORTUNITY	16
A Background	16
B Elements	16
C Affirmative Defenses	17
D Damages	17
IX ECONOMIC DURESS	17
A Background	17
B Elements 17
C Damages 18
THE JURY
X LITTLE THINGS MEAN A LOT	18
A Juror Impressions Immediately After Trial	18
B The Top 10 Pieces of Advice Jurors Would Give Attorneys .	19
C The Top 10 Things Juries Most Enjoy	20
XI GOLDEN RULES OF THE COURTROOM	20
THE PLAYERS
XII THE TRIAL LAWYER	22
A The Closers	22
B Types of Trial Lawyers	22
C The Styles and Mannerisms of Trial Lawyers	23
D The Different Make-ups of Trial Lawyers	25
E The Characteristics of Trial Lawyers	26
F Dos and Don'ts for Trial Lawyers	27
G The Trial Lawyer's Attitude	27
XIII THE JURORS	28
A The Ethnic Posture of Jurors	28
B The Professions, Businesses and Trades of Jurors	28
XIV THE JUDGE	33
A The AJurist@ Judge	33
B The APrincipled@ Judge	33
C The AIntellectual@ Judge	34
D The AIndependent@ Judge	34
E The ALost@ Judge	34
F The AInterrupter@ Judge	34
SELLING & PERSUADING
XV ASELLING@ YOUR CASE TO THE JURY	34
A You as the Salesperson	34
B Basic Theory of Sales for Trial Lawyers	35
C Presenting the Product [Show-and-Tell Time]	35
XVI PRINCIPLES OF JURY PERSUASION	36
A Making the Research Work for You	36
B Selecting Jurors: What to Do about Bias	38
C What Jurors Really Want	40
D Developing a Winning Case Strategy	42
E Closing Arguments: Persuasive Endings	44
XVII READING THE BODY LANGUAGE OF JURORS AND WITNESSES	44
A Introduction .	44
B Use of Body Language in Jury Selection	45
C Witness Qualities of the Self-defeating Witness	49
D Traits vsLitigation	49
E Witness Preparation - Your Job	49
F Use of Psychotherapist	49
G Information Needed in Witness Preparation	50
H The Experience of the Witness	50
I ALie Signals@	57
J Conclusion	62
VOIR DIRE
XVIII THE LAW	62
A Purpose	62
B Trial Court Discretion	62
C Record	63
D Excusing Jurors	63
E Shuffle	63
F Failure to Meet Statutory Qualifications .	63
G Statutory Disqualification for Cause	63
H Bias or Prejudice Disqualification For Cause	64
I Preserving Error on Challenges for Cause	66
J Appropriate and Inappropriate Questions	66
K Peremptory Challenges	69
L ABatson@ Challenges	70
XIX VOIR DIRE STRATEGY	74
A Goals of Voir Dire	74
B Rules of Voir Dire	75
XX CHECKLIST: PLANNING VOIR DIRE	75
XXI SELECTING AND MOTIVATING A JURY	77
A Four Functions of Voir Dire	77
B Emotional Susceptibility and Prejudices	77
C Selecting Favorable Jurors	77
D Eliminating Biased Jurors
E Eliminating the Unpredictable Juror	77
F Selecting a Jury That Favors Your Case	77
G Personality Types of Jurors	78
XXII THE GOLDEN RULES OF JURY SELECTION	78
A Rule #1	78
B Rule #2	78
C Rule #3	78
D Rule #4	78
E Rule #5	78
F Rule #6	79
G Rule #7	79
H Rule #8	79
I Rule #9	79
XXIII THE JURY QUESTIONNAIRE	79
A The Oral Q & A Format Possesses Inherent Flaws	79
B What To Do	79
C What Is Achieved	80
D Despite the Advantages	80
E Knowing the Ropes	80
F Conclusion	80
XXIV THE ART OF JURY SELECTION: PLAINTIFF=S TECHNIQUES CHECKLIST .	80
A Purpose and Importance of Jury Selection	80
B Deciding What Kind of Jury You Want	80
C Educating Jurors About Your Case and Establishing Rapport	81
D Structuring the Voir Dire	81
E Handling Challenges for Cause	81
F Body Language in Non-Verbal Communications .	81
XXV POTPOURRI IN JURY PERSUASION	81
OPENING A STATEMENT
XXVI OPENING STATEMENT	82
A Introduction/Reframing	82
B Correcting Injustice	83
C Taking Sides	83
D Storytelling	83
5 Reference Material	84
6 Statutory and Case Law	84
7 Importance	85
8 Opening Statement Checklist	85
9 Framework	86
10 Test of Effectiveness	86
11 Do's & Don't's	86
12 Primacy and Recency	88

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