What We Can Learn from Our OTLA Peers by Chris Thomas, OTLA Guardian As I considered this article, I reviewed the last issue of Memorable Cases, published by OTLA in the fall of 2016. Michael Kesten, previous Trial Lawyer editor, wrote an article that included the transcript of a closing argument from attorney Dan Dziuba in a heartbreaking case from Tillamook County where Dziuba’s young client had his arm ripped off by the propeller of a dory boat. Dziuba’s closing, delivered without notes due to having lived and breathed the case for years, is a treasure trove of trial advocacy techniques. He began as follows: May it please the court, Cole Ortega counsel and may it please you, ladies and gentlemen of the jury. The United States is the only traditionally Englishspeaking country in which we’re still entitled to jury trials as a matter of right in civil cases and I hope it never changes. The Declaration of Independence cited as one of the abuses of the King of Great Britain for depriving us, in many cases, of the benefits of trial by jury. Kesten’s article is a powerful reminder of the many ways we, as OTLA members, benefit from watching our peers in action. In it, Dziuba attributes many of his techniques to his OTLA colleagues and predecessors. Here, I’d like to share a few helpful lessons I’ve learned from my own cases and from watching others in action. Attempts at humor The deposition was going so well. The witness, a former employee of our defendant’s scrap metal company, was volunteering his ex-employer’s awful safety history regarding its 20 cubic yard metal collection dumpsters, including the one that snapped shut and seriously injured my client. Hoping to get a sense of the value of the metal such a dumpster could hold, I asked the following questions: Q. What’s the current market price for stainless steel? A. Current market price for stainless steel. Well, let me put it this way, typically, if I remember correctly, [plaintiff’s employer] would have a drop box around 20,000 pounds of metal inside and right now that value is worth about 70 to 75 cents a pound, so $15,000 roughly. Q. Sure. A. Now, two years ago or two and a half years ago I believe that value was down in the 40-cent-per- pound range. Now, hoping to lighten the mood and comment on the recent surge in metal prices, I offered the following question, jokingly: Q. Was that why my catalytic converter got stolen? Well, apparently some folks in the scrap metal business do not appreciate the insinuation, even as a joke, that they have any involvement with stolen items. “That’s not funny to me,” he responded, before asking for a break. From that point forward, the witness’ mood shifted from friendly and open to distrustful and reserved. Fortunately, by then I amassed significant evidence to support our liability case but had apparently done some damage to my rapport with this particular witness. Lesson learned: When a joke has even a remote chance of offending someone in this context, probably best to steer clear. Of course, sometimes jokes are okay. I once had a cyclist client who thoroughly documented things. She rode with a camera CHRIS THOMAS practices plaintiff’s personal injury law, frequently representing bicyclists and pedestrians. An OTLA Guardian at the Stalwart level, Thomas is a partner at Thomas, Coon, Newton & Frost, 820 SW 2nd Ave, Ste. 200, Portland, OR 97209. You can reach him at [email protected] or 503-228-5222. 38 Trial Lawyer | Fall 2024
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