“It is all Greek to me.”
Advocacy in Presenting
Damages Evidence
2 September 2011
Derrick Carson
Locke Lord Bissell & Liddell
600 Travis St., Suite 2800
Houston, TX 77002
713-226-1356
Atlanta, Austin, Chicago, Dallas, Hong Kong, Houston, London, Los Angeles, New Orleans, New York, Sacramento, San Francisco, Washington DC
Some things never change . . .
Aristotle: “To be willing to go to arbitration
rather than to a diskasterion; because the
arbitrator looks to equity but the dikast to the
legal rule. It was for this reason that an
arbitrator was chosen, so that equity would
prevail.”
Some things never change . . .
Even the Romans agreed . . .
Cicero: “We come before the court with the
expectation that we shall either win or lose
the whole case; but we submit to an
arbitrator on the understanding that we shall
end up neither with nothing nor as much as
we asked for.”
Modes of Persuasion
Aristotle’s On Rhetoric describes persuasion
occurring in three ways:
•by the speaker's personal character when the
speech is so spoken as to make the listeners
think him credible (ethos)
•by the listeners when the speech stirs their
emotions (pathos)
•by the speech itself when its logic is irrefutable
(logos)
Practical Applications for Presenting
Damages Evidence
Damages are the case. Every aspect of the
case must be leading toward the damages.
•The theory of the case
•The claims asserted
•The witnesses chosen to give evidence
•The manner in which the evidence is selected
and presented
•Demonstrative exhibits
Examples of Practical Applications
Pathos – Not just emotion, but an appeal to
sympathies, sense of fairness, and
imagination
•The theory of the case
•The position of your client in the narrative
•Story telling in the presentation of evidence
Examples of Practical Applications
Ethos – Not just moral, but knowledgeable and
experienced as well
•The Theory of the Case
•Selection of witnesses
•What evidence you want various witnesses to
give
Examples of Practical Applications
Logos – Well reasoned argument is the
foundation of a damages case.
•Theory of the case
•Order of presenting evidence
•Selection of evidence
Theory of the Case
Basic narrative around which everything else
in the case revolve.
• Legal claims advance the theory
• Theory fits the factual background
• Evidence presented is consistent with the
theory
• The theory leads to the damages claimed
Theory of the Case
• Ethos: Why is your client’s story credible?
– Source / identity
– Content
• Pathos: Is it consistent with the overriding
values?
– Community
– Industry
• Logos: Does the theory make sense?
– Internally consistent
Aristotle on Damages Experts
Ethos
• Qualified, respected
• Renders only (1) necessary and (2)
supportable opinions
“like the 13th stroke of a clock, not only wrong in itself but
casting doubt on all that preceded it.” (Scalia & Garner)
Aristotle on Damages Experts
Pathos
• Descriptive, illustrative language
• Consistent with the pathos of the theory of
the case
Aristotle on Damages Experts
Logos
• Internally consistent
• Supported by the evidence
• Consistent with the theory of the case
Qualities of a Good Damages Expert
• Qualified, knowledgeable, experienced in the
subject matter
• Able to assume a “teacher” persona
• Understands your theory of the case (or can
help you shape a new one)
• Independent, will “push-back”
• Able to commit adequate time to your case
• Willing to provide and hold to a budget
Choosing a Damages Expert
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Know your audience
Require the expert to make a self-disclosure
Thoroughly research your expert
In-person interviews are a must
Prior experience as an expert – necessarily
a good thing?
• Use of in-house expertise?
Preparing the expert
The Woodshed
Preparing the expert
Mock Cross-Examination
•Purpose is not to change the witness’s
testimony, but to ensure she is prepared to
delivery her testimony effectively
•Have a colleague conduct the cross-x
•Be unfair (practice harder than the game)
•Cover all points of likely examination
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Preparing the expert
How to prepare for “Hot Tubbing”?
•Witness must remain calm, professional
•Witness must be comfortable with what he
should concede
•Witness should be prepared with clear
speaking points to likely questions
•Witness should be armed with questions for
the opposing expert
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Presenting the expert
Six S’s for Effective Expert Presentation:
1.Sequence
2.Speak in plain terms
3.Share the burden
4.Simplify
5.Storytelling
6.Show, don’t just tell
Presenting the expert
Sequence – CARS
•Conclusion
•Analysis / Support
•Refutation
“[I]n court one must begin by giving one’s own
proofs, and then meet those of the opposition by
dissolving them and tearing them up before they
are made.” Aristotle
•Summation
Cross-Examining the Expert
• Challenge the expert’s “facts”
– “Experts are professional explainers. Their
opinions are no more reliable than the facts their
based on.” James McEllaney
• Challenge methodology/assumptions
• Change the question the witness answers
• Use the opposing expert to bolster your own
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