THE VERDICT
A Publication of GAPTA, Inc. (Georgia Association of Plaintiff's Trial Attorneys)
Vol. 4, No.6 August 1962

NEW MEMBERS
We have five new members and welcome them.

AREA SEMINARS
The one planned for Cartersville will probably be held between now and Christmas.

ADJUSTERS???--AFTER DEFENSIVE PLEADINGS FILED??????
The Georgia Bar Association Unauthorized Practice of Law Committee has asked our Board of Governors for an expression of opinion on this subject (raised with them by the Savannah Bar Association). They sent us a copy of a letter from a Savannah “State Farm" man urgently requesting a plaintiff's attorney to discuss compromise with him as follows:

"I would like to reiterate my position as a Claim Representative for the insurance carrier involved in this matter in that all negotiations are conducted by me and the trial work is conducted by our trial attorneys. It is my understanding that you did not desire to discuss settlement negotiations with me in my capacity.

"I again offer to discuss settlement of the file with you in order that an amicable adjustment of this law suit might be affected. "
While we have not yet had a meeting where this question might be considered some of us feel that this activity on the part of adjusters is in fact unauthorized practice of law and some also feel that the adjusters had a try at it before suit was filed, so why continue negotiating with them. Any thoughts on this subject will be appreciated.

PRESIDENT'S COLUMN
Re: Compromise Settlements-
The "DID YOU EVER HEAR FROM YOUR PEOPLE?" problem.

One of the most common problems in the field of compromise and settlement seems to be the failure to get a routine reply from an adjuster or a defense attorney. Some (1) overlook giving a reply, while some (2) fail to reply by reason of the pressure of other work and (3) still others deliberately fail to do so in order to make the plaintiff's attorney beg hem for a reply for trading purposes.
Now while the following is by no means fool proof it has been found to be helpful and it might be worthwhile trying if you don't already use it.

1. Be certain that your file is complete before giving a figure.
2. Be certain that defendant's file is complete, that is, do they have their investigation completed including all medical information. Ask the question: "Is your file complete because we prefer not to give a figure until both of us are in a position to act? IJ-and if he says "Yes" don't accept that reply if you know it is not correct because sometimes defense counsel mean that their file is complete enough if your figure is very low.
3. Then ask the adjuster or defense counsel: “when may we expect a response?" If he is evasive tell him, "Well, we would have to know that first, of course." He will usually say "a few days", "a week or ten days", or a "couple of weeks”. Rarely will it go over two weeks and if it does he is pulling our leg (remember-the files are complete) unless he gives a specific reason such as "home office review" and more than two week s is still a rarity.

4. Now we get to the real point - -Never -- Not ever - Never call the defense adjuster or attorney and meekly ask, "Did you ever hear from your people?" Remember he is under obligation to you because you gave him a figure on condition that he would give you a reply –not his client. He is committed. He owes you a reply. Some people don't live up to an obligation unless they are called on to do so. So it is here, therefore, if the agreement is one week, on the eighth or ninth day call the gentleman and tell him "I believe you were due us a reply in the Blank case yesterday. " This will usually cause him to recall his obligation and live up to it by telling you what he heard from his client a few days before. If it does not you are in a position to tell him that he will recall that you gave him a figure on the condition that you have a reply in a week and "Will you please follow up on it?" and press him for a time limit. He will frequently blame it on the client if he hasn't heard from them and will possibly say he will call them, (but this request to call should not be made by the plaintiff) except in unusual circumstances. ) The main point is to create the obligation to reply and then simply ask him by implication to please meet his obligation.

There is usually no excuse for a defendant failing to give a reply in the above circumstances. ---Some of the old-line defense people used failure of their client to reply as a strategy. I think it is our duty to our clients and ourselves to prevent it if we can. The plan just reviewed usually works and it is no imposition on anyone.
S. GUS JONES, President
COMMITTEE APPOINTMENTS
JUDICIARY:
Marcus Calhoun, Chairman
Thomasville, Georgia
Joseph B. Kilbride
Atlanta, Georgia
Asa D. Kelley
Albany, Georgia

SEMINAR (AREA):
Ross Arnold, Chairman
Atlanta, Georgia
Carey Carter, Jr.
Hartwell, Georgia
David H. Fritts
Savannah, Georgia

LEGISLATIVE:
Cullen M. Ward, Chairman
Atlanta, Georgia
J. Taylor Phillips
Macon, Georgia
J. R. Cullens
Cartersville, Georgia

ADMISSION: (The Officers)
S. Gus Jones, President
Macon, Georgia
James H. Fort, Executive Vice-Pres
Columbus, Georgia
Charles H. Hyatt, Vice-President
Decatur, Georgia
Asa D. Kelley, Jr., Vice-President
Albany, Georgia
Henry T. Chance, Vice-President
Augusta, Georgia
David H. Fritts, Vice-President
Savannah, Georgia
J. R. Cullens, Vice-President
Cartersville, Georgia
William W. Daniel, Secry.
Atlanta, Georgia
Cullen M. Ward, Treasurer
Atlanta, Georgia

MEMBERSHIP:
Gerald Kunes, Chairman
Tifton, Georgia
Clifford Seay
Barnesville, Georgia
A. Newell NeSmith
Cochran,. Georgia

SEMINAR: (ANNUAL):
Hugh G. Head, Jr., Chairman
Atlanta, Georgia
Randall Evans, Jr.
Thompson, Georgia
E. J. Clower
Rome, Georgia

SAY!!!! LOOK HERE A MINUTE!!!!!! (What About the "Medical"????)

Do you have a good "DOCTOR'S" MEDICAL DICTIONARY in your office? -- If not -- get one -- one of the best standard works is "The American Illustrated Medical Dictionary", (Dorland), W. B. Saunders Company, Philadelphia and London. It can be purchased through]. A. Major': s Book Company, 108 Edgewood Ave., N. E., Atlanta, Ga.

MISPRONUNCIATION OF MEDICAL TERMS in talking with doctors and examining witnesses in their presence, while possibly forgivable, certainly doesn’t to any degree enhance our position with the physician, ---and a good medical dictionary makes the words almost self-pronouncing. --- And incidentally, if we err in pronouncing a medical term in talking with an adjuster or defense counsel and he knows the correct pronunciation our case drops a few notches in value. ---------- For instance SPON"-DIL-OLIS-THE’-SIS ---it can be erroneously pronounced forty different ways -and SUBARACHNOID (sub-ar-ak’-noid) is not the simplest word, either.

Some people consistently refer to the “LUMBAR SPINE" as the entire spinal column. - - Not so - - the top 7 vertebrae are the cervical spine -- the next 12 the thoracic (or dorsal) spine (the ribs are attached to it) -- the next 5 are the lumbar spine -- and the next, which is a large triangular bone, is the sacrum, with the extreme lower tip being referred to as the coccyx -- LEARN IT BY HEART.

A DOCTOR APPRECIATES YOUR BEING FAMILIAR WITH THE ANATOMY.. --You discuss problems (WITHOUT PRETENSE) in a manner from which he knows that you are asking him -not trying to tell him.

A medical doctor doesn't care a whit about a “MEDICO-LEGAL" book -(good for informational purposes to keep up with him -- he will deny that it is authoritative). One should study MEDICAL BOOK S as well as Medico-Legal Books_ Some medical books are:

Cecil & Loeb, Textbook of Medicine French's Differential Diagnosis May on Eye Diseases
Gray's Anatomy Conroe on Arthritis

These and similar books are expensive but worthwhile. --An EXACT COPY of the X-RAY AND HOSPITAL RECORD with some study in medical books enables us to, in some measure, discuss a problem with a doctor intelligently. For instance: --"asymptomatic" means "without symptoms" --some adjusters construe it as being with symptoms. For further example, It atypical" ailments in medical usage are those that are not typical.. - not a typical ailment.

There would seem to be no obligation to explain any medical report to an adjuster -- you are dealing at arms length..- still, we have the all time duty NOT TO MISREPRESENT any point either directly or indirectly.'

OPENING STATEMENT TO JURY
Remarks Delivered by MARCUS B. CALHOUN GAPTA, Savannah, Georgia, March, 1962

The value of the opening statement has probably been unestimated by the average Georgia lawyer. At least I believe this was true until the advent of such organizations as NAACA and GAPTA.

The most recent and \1Tidely accepted work on Georgia practice and procedure - published in 1957 - contains 847 pages exclusive of the index. Less than one page is devoted to the opening statement and with no citations or footnotes. This work states and I quote: "In large number of cases lawyers do not open up a case to the jury before the introduction of evidence." The author goes on to say that when an attorney elects to open his case, all he can do is to state the issues arising in the pleadings and to state what facts his side expects to prove.

Generally speaking, this is the law in Georgia.

In thinking about the subject of opening statements to juries, two questions present themselves:

1. What can you say in your opening statement?

2. What should you say in your opening statement?

The Georgia law is succinctly stated in a recent decision of our Supreme Court. The citation is Waites vs. Hardy, 214 Ga., page 41. This case was decided in 1958 and holds:

"Counsel for both parties in either a civil or a criminal case preliminary to the introduction of evidence may state to the jury what each expects to prove on the trial, and should be confined to a summary or recital of such matters of proof only as are admissible under the rules of evidence. "

An ancient case decided in 1892, which of Metropolitan Railroad Co. vs. Johnson, 90 Ga. App., page 500, says that counsel may make a "full statement”.

In Green vs. The State, 172 Ga., page 635, the Court held that in his opening statement counsel should not refer to anything that might tend to arouse feelings or prejudice the cause of the opposite party in the eyes of the jury.

In spite of this decision, a recent advance sheet contains a decision of the Court of Appeals which holds that it is alright for the defense attorney to tell the jury in his opening statement: "We expect to show you, and I'm going to put it on the line, that the claims of damages in this case are preposterous and absurd". This is from Beecher vs. Parley, 10:4 Ga. App., page 785.

Another matter for consideration is the use of photographs, charts, models and so forth as aids in making the opening statement.

Although I have used these aids in opening statements on several occasions and have had them used against - me, I know of no Georgia case directly on the subject. No one has ever questioned my right to use photographs and other demonstrative aids in making an opening statement. I had never looked for authority until I started working on this program, and I must admit that my research has not been exhaustive, but I have been unable to find any case in Georgia directly in point.

Of course there is outside authority. You will find an annotation on this subject at 44 ALR 2nd 1191. This is a case decided by the Mississippi Supreme Court. Counsel for the plaintiff used charts in his opening statement and in his closing argument, but never did actually introduce the charts as evidence. The case resulted in a verdict for $75,000.00 for the plaintiff and the defendant appealed. The Court held that the use of these charts in the opening statement and in the closing argument was proper, even though they were not introduced in evidence because of the fact that evidence was introduced to support the matters which appeared on the charts.

As you all know, the 1960 General Assembly, because of the efforts of Cullen Ward, Wilson Brooks, Sam Hewlett and many others, passed acts which specifically authorized you to use blackboards, models and similar devices in connection with your argument to the jury to illustrate your contentions and also to allow you to argue the monetary value of pain and suffering. These are Georgia laws 1960 pages 1037 and 175, respectively.

Both acts mentioned argument. Neither mentions opening statements. However, the Supreme Court in Waites vs. Hardy, cited above, apparently lumps opening statements and arguments together, for they say: "The language used in the argument may be extravagant but figurative speech is a legitimate weapon in forensic war fare if there are facts admissible in evidence upon which it may be founded. " In this case the Court was dealing with an objection to an opening statement by the defense attorney that this was it a trumped up law suit". I believe that it is significant that the Court held figurative speech to be alright if there are facts admissible in evidence and did not say facts in evidence but facts admissible in evidence.

It appears to me that this decision, coupled with the laws passed in 1960, gives us ample authority to say what we want to and to use what models and other aids are available in our opening statements, as long as we have evidence to be introduced to back up our statements. And we all know that it would be the height of folly to make an opening statement and then not be able to back it up with competent proof.

This brings us to the second question posed at the beginning of this talk and that is, what should you say in your opening statement.

In every endeavor we should always keep the ultimate objective in mind. In it football game you are trying to get the ball across the goal line. Bill Braziel and Al Wall are young enough to remember chasing women - and why tl1ey chased them - I know that they always keep that purpose and objective in mind.

In a lawsuit we also have an objective, what is it - simply stated, I believe that it is to influence the jury to accept our version of the event and give us a good verdict. This is our objective. To influence the jury in our favor,. We should never lose sight of this objective at any stage of the trial.

The opening statement is our first big chance to make an impression. To start our task of impressing and influence the jury. Well, of course we have to get their attention before we can influence them. I am sure all of you have heard the old joke about the mule. It seems that this farmer was interested in buying a mule who was easy to handle and obeyed instructions and the mule dealer told him he had just the mule for him. The farmer bought him, carried him home and when he first started to work him, he hitched him to the plow and then couldn’t get the mule to move at all. He tried every way he knew, but just couldn't get him to do it, so he got in touch with the mule dealer, told him that he had been sold a bill of goods, that the mule would not follow even the simplest instructions to get up. The mule dealer came out, saw the mule hitched to the plow, went over and got a big stick, hit the mule across the head as hard as he could, told him to get up and the mule moved right off. The new owner of the mule said, "Well, I was still right, you said this mule would obey instructions easily and yet you have to knock him in the head to make him move." The seller said, "No, he moved when I told him to, I had to hit him in the head to get his attention. "

Well, we can't use this method on juries to get their attention, even though we may sometimes feel like it after the verdict is rendered. We have to use some other method.

We can learn a great deal from other vocations or callings. Take the newspapers for instance. How do they get attention? By headlines Pick up any newspaper, see how any event is described. Take your lawsuit. Suppose you file a suit for $200, 000 and it is written up in the newspaper. The headline would probably read "$200,000 suit filed".

I have heard Murray Sams advocate beginning an opening statement in the same way, by saying, "Gentlemen, this is a suit for $200,000." He says you should keep the amount of your suit uppermost in the jury's mind at all times. From this point on, you could do well to follow the newspaper outline.

The first paragraph of a newspaper story usually tells you who committed an act, when, where, and how it was committed, and sometimes the why. And it is presented in an interesting and eye-catching way.
An opening statement should be the same way. It should be an interesting and informative statement and should catch hold immediately. It should give the jury who, what, when, where, how and why, in some form of a prearranged manner, so as to make the opening statement easily under stood and to compel the attention of the jury panel.

Getting off on the right foot is very important, and I cannot over emphasize the seriousness of telling the whole story to the jury as quickly as possible. Give the jury the meat the case just as quickly and clearly in as few a number of words as you can.

Naturally, the opening statement should acquaint the jury with all of the material facts and factors involved. An opening statement that does less than this will confuse the jury and leave their minds in a state of doubt.

The important thing to do is to let the jury know in a definite and positive' clear and simple language exactly what type of verdict you are looking for and what you want the jury to do for your client.

It is well to acquaint the jury as to who the parties are. Tell them who the plaintiff is, have him stand and be identified. Point out the defendant if he is in the courtroom.

Some trial lawyers advocate introducing themselves and the opposing counsel. Others state that it is a 'better practice to whet the curiosity of the jury as to their identity when trying cases in new locations.

The opening statement should be made step-by-step and point-by-point, and should be consistent, clear and done in a continuous logical sequence.

I believe that it is safe to say that the consensus of opinion of an opening statement is that it should not be long, but at the same time should cover all of the important elements of the lawsuit. One attorney made the distinction by saying it was like giving the person the time of day. You tell him what time it is but you don't tell him how to make a watch.

It is always good practice to disclose in your opening statement any weakness which might exist in your case. It is certainly better coming from you than from your opposition. When you tell the jury of your opposition’s strong points and your weak points, quite naturally you have diminished quite a bit of the effectiveness" of the defense.

All agree that it is very unwise to tell the jury panel in an opening statement that you intend to prove various items of evidence which you don't prove or cannot prove. In this connection, many trial lawyers have the court reporter take down the opposing counsel t s opening statements and remarks, so that in their arguments to the jury they will be able to point out discrepancies between the opening statement and the proof actually introduced by the opposing counsel.

I personally do not believe that an opening staten1ent should be given in an argumentative manner. It seems to me that they are more effective if given in a logical, well modulated voice, with direct statements of what the evidence will show. I also think that it is bad to tell the jury that if we (show you this, we will expect you to do so' and so.

It is much better to tell the jury we will show you these things, than to say if we show you these things.
Another value of the opening statements which we sometimes overlook is the fact that it can be used to refresh the witness's recollection about what he has told you his testimony will be. He will be much more greatly impressed of what he will testify to if he hears it coming from the lawyer in the courtroom than he will be by telling the lawyer about it on the street or on the lawyer's office. This will place an indelible impression upon his memory. For this reason it is well to have the witnesses remain in the courtroom until after the opening statements are made.

If you are going to invoke the rule, you should wait until you actually start introducing evidence so your witnesses could hear the opening statement.

Finally, we must always remember that the trial lawyer is on trial along with hi s case, and when he first addresses the jury they then have their first impression of him. They have their first impression of his case. A jury sees and hears at first-hand what your contentions are. You must make the picture you draw an interesting one. Your behavior must be good. In all phases of the case, and especially in the opening statement, humility, sincerity, reasonableness, plausibility, and naturalness will go a long way toward convincing the jury that your are on the right side, and will help you accomplish your objective, which is to influence the jury to accept your version of the event and give you a good verdict.

Thank you.

Marcus Calhoun
Thomasville, Georgia