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Pick your battles: sometimes lawyers have to concede small matters to win a larger victory. In this symposium, three attorneys tell how they surrendered a battle to win a war.

Article Excerpt
Choosing the right story

DAVID M. KOPSTEIN

There is an old adage among trial lawyers: Every plaintiff, in the course of a trial, is allowed one "story"--an element of the case that seems unlikely or, at least, contrary to what one would expect.

The story may be related to liability issues, causation, or damages. It may come from the plaintiff, an expert witness, or even a fact witness. No matter what kind of story it is or who the story comes from, there must not be more than one. Asking a jury to believe more than one story will nearly always render the plaintiff's entire case unbelievable.

To make your client's case credible, you may need to jettison parts of it--even if the claims you abandon are perfectly meritorious.

I recently confronted this dilemma while I was preparing to try a case in Arlington, Virginia, a venue not known for the generosity of its juries. My client was a 74-year-old gentleman from Florida who had suffered serious injuries when his parked car was struck in front of the terminal at a local airport. The impact was so minor that photographs of the rear of the car showed no discernable damage. Nevertheless, my client claimed that he had suffered serious, life-altering injuries, including a low back injury and carpal tunnel syndrome.

My client was a highly accomplished musician. He had played the clarinet and saxophone for the U.S. Army Band for many years and, subsequently, with some of the great "big bands" of old. I listened to CDs of some of his performances and he was, indeed, amazingly talented. After the accident, however, he had been unable to play due to...

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