The Advocate, Journal of the Nevada Trial Lawyers Association, June 2005 issue.

With the recent changes in our civil procedure rules, more and more cases are being routed into the one-day jury trial program. I would venture to say that, eventually, most automobile soft-tissue injury cases that go to a jury trial will be tried in the one-day jury trial program.

The short trial jury program requires the lawyers to submit an evidentiary notebook, ahead of time. The jurors are given copies of the evidentiary notebook. The exhibits are pre-admitted.

Each side is given, essentially, three hours of time to use as they please.

The particular format of this proceeding requires the attorney to try the case in a manner different than what is used in a "regular" multi-day jury trial.

My friend and past-NTLA president, Tim Williams, is probably the reigning expert on how to try a soft-tissue automobile case in the one-day jury trial program. Tim has presided as a short-trial judge in 21 cases, almost all of them automobile soft-tissue injury trials. He has also tried three of these cases. In all three of his trials he has come out with successful verdicts. All three cases were soft-tissue automobile injury cases. Two of them involved "minor impacts" where the defense had biomechanical experts. Tim was still able to come up with favorable verdicts in these "minor impact" trials.

Tim has seen what works and what does not work. His record speaks for itself. I asked him to give me his five most important "tips" for successfully trying a case, on the plaintiff’s side, in the short jury trial program.

1. MAKE SURE YOU FILE MOTIONS IN LIMINE.

Tim says that in many of the cases he has tried as a short-trial judge, the plaintiff’s attorney fails to submit motions in limine. Typical things that should be the subject of a motion in limine would include: excluding evidence of prior accidents involving different body parts, or incidents that are remote in time; keeping out evidence of collateral sources, in particular, evidence that the doctors are working on attorney liens; preventing biomechanical experts from offering testimony that people cannot be hurt at certain speeds, etcetera, based on the fact that they have not medical training; and arguments or mention of "insurance crisis" or similar.

2. VOIR DIRE.

Since your time as an attorney is limited, you should give the judge trying the case a list of the general type questions that you want asked. That way, you do not have to burn your time asking these question on voir dire; let the judge ask questions about whether the jurors have worked for insurance companies in the past, have had prior claims themselves, etcetera. You can spend your time on voir dire asking questions that may help to diffuse the anticipated defenses. For example, if the defense in using a medical records review, you might ask jurors if they had a car problem, would they be comfortable with a mechanic making a diagnosis based on a phone call, or would they rather have the mechanic plug in the diagnostic machinery and see the engine for himself? Or with a minor impact case, do jurors buy eggs without opening the carton to look to see if any of the eggs are broken inside? Or, if there is a gap in treatment, do these jurors run to a doctor the minute they have a problem, or do they wait to see if it will go away by themselves?

3. USE POWER POINT.

Tim states that it is a mistake, in this day and age, for an attorney not to use power point at all. It is also a mistake to overuse it or use it ineffectively. For example, lawyers who have too many power point slides that are over- filled with words will be ineffective. He states that since the jurors have the evidence notebooks in front of them, it is useful to tie in the power point slides with the evidence notebooks, so that the jurors will look at the slide, then flip open their notebook to look at something that is being highlighted by the slide. Since the exhibits are pre admitted, you can scan them into your slides for opening.

4. TRYING YOUR CASE IN THE OPENING STATEMENT.

Tim says that he will use over an hour of his allotted time for opening statement. In a regular trial, this would be unusual. But, since you have only three hours and are free to use the time as you see fit, why not use most of it for your opening statement? This is particularly true since almost all of the evidence is pre-admitted. Tim likes to go through the important evidence, oftentimes featuring it on a power point slide, and inviting the members of the jury power to look in their evidence notebooks at the pages he wishes to highlight, for example, things in the medical records. He will also use opening statement to explain away the defense attacks. Particularly in a short trial program, where you only have three hours of time, and the evidence is pre-admitted, the distinction between opening statement and closing statement is even more blurry than usual.

Tim will include the CV of his doctor or expert witness in the evidence notebook, and ask the jury to look at it during his opening statement. He will ask the jury to flip to various pages in the evidence notebook during opening statement.

5. USE YOUR EVIDENCE NOTEBOOK DURING DIRECT EXAM.

Since all the records are pre-admitted, you can direct your plaintiff to specific pages of the evidence notebook and ask some questions. For example, you might flip to the history section of the doctor’s record, read aloud certain parts from it, and ask the plaintiff to comment. For example, "it says here that you told the doctor that you had pain in the neck area. Can you describe what was that pain like." This helps to keep the jury focused on the records, and helps to keep the plaintiff focused in his testimony (especially important with the limited time.)

I would like to thank Tim for taking the time to share some of his "secrets" with me. My information is that in the short trial program in Las Vegas, there have been an inordinate number of defense verdicts, particularly in the auto soft tissue case. Perhaps, if we all take a few pages from Tim’s playbook, we can start to level the playing field.