According to Christian Searcy Sr., who has won $900 million in verdicts and settlements during his 30-year career, the order in which you present witnesses can have a profound effect on how jurors perceive competing versions of a particular event.

"The order of witnesses is important on a day-to-day, week-to-week basis, because there are certain times of the day and certain times of the week where a jury's attention is heightened," said Searcy, head of a 19-lawyer firm in West Palm Beach, Fla. "The first witness in the morning is generally better than the middle of afternoon. The beginning and end of the week tend to be more memorable than the middle of the week. So there are prime times for witnesses. I like to pay attention to."

The formula has clearly worked for Searcy, 55, who has won seven-figure verdicts in a variety of areas including medical malpractice, nursing home litigation and airline disasters.

Of course, the progress of a trial rarely goes exactly as planned.

"For the plaintiff's lawyer, one of the biggest nightmares is the scheduling of witnesses," Searcy said.

Some are available whenever you need them, but others - especially experts, whom you have to pay and who have busy schedules - are not.

"Let's say you want to start your case with a dynamic expert witness, to make a memorable impression. You expect voir dire to take a day, and then opening statements to take half a day. But it turns into one of those voir dires where two days later, you still haven't finished picking the jury. So you've paid the expert witness to sit around for two days, and then he can't come at the beginning of the next week for some reason. So it's a big headache. You just try to let experts know it doesn't always go as you planned."

Weekend Strategy: Leave 'Em Thinking
One of Searcy's favorite strategies, one that is especially useful in a longer trial, is to order your evidence in a way that you present a revelatory or provocative piece of your case on Friday afternoon.

Searcy recalled a 2001 auto accident trial that involved a woman who was broadsided while going through an intersection that was under construction. The woman's daughter was killed and her two sons severely brain damaged.

Searcy saved his most powerful witness, the mother, until the third week of trial - and timed her testimony to take place on a Friday afternoon.

"The jury had been waiting a long time to hear her testimony," he said. "It was very powerful, as you might imagine. The jurors were left to let that percolate over the weekend."

The trial ended in a $256 million verdict.

Searcy used this same strategy in a med mal quadriplegia case he tried 20 years ago, when day-in-in-the-life videos were still controversial. To minimize objections to its admissibility, Searcy kept the film silent, with no sound track. And he decided to present it on a Friday afternoon.

"There hadn't been a moment of silence in that courtroom for two weeks, and then all of a sudden, everyone is in a darkened room in that silence. It was very powerful," he said.

The jury watched the silent film and saw someone tying a bag to the plaintiff's leg, saw something being wrapped to his abdomen, and watched as the plaintiff's sister struggled to put him and then his wheelchair into a car.

"I'm sure the jury had tremendous questions regarding what was going on in the video," said Searcy. "And they got to wonder about it all weekend. Then at the beginning of the next week, we put on witnesses to explain it."

On Monday, a doctor told the jurors that the bag was a urinary catheter bag, because the plaintiff's paralysis extended to his kidneys and bowels. The doctor also explained that the plaintiff needed an abdominal binder to hold his guts in, since his abdominal muscles were paralyzed.

Then the plaintiff's sister testified that the family could not afford a wheelchair-accessible van, so she had to carry him into the car and load the wheelchair in, too.

"It ended up being very powerful, in part because they'd had to wait to understand it. We wanted them to leave the courtroom with something that was stimulating and provocative that they'd think about all weekend," he said. "It was fascinating because the jury saw something quite unusual, which is a person paralyzed from the neck down. When you see that, there are more questions than answers. I think the anticipation made them much more attentive jurors to the witnesses that followed."

Leading With An Adverse Witness
Another strategy Searcy likes to use from time to time is to lead off his case with an adverse witness.

This strategy clearly runs counter to the primacy theory, the widely accepted belief that the first version of the story a jury hears becomes the prism through which they will assess all other information. Searcy agrees primacy can be a powerful advantage, but he said when it's done right, a trial lawyers can deflate their opponents' case without sacrificing the opportunity to tell their version of the story first.

"The question is: When you have two conflicting witnesses - one that helps you and one that hurts - do you want to just call the one that helps, and leave the defendant to call the one that hurts? Or do you want to call the one that doesn't help much first, as an adverse witness - and then call the other one to rebut the adverse witness?"

Searcy prefers the second approach.

He begins by alerting the jury to what he's going to do. In his opening statement, he explains that there is a conflict of testimony between two witnesses, and that the second witness is the one telling the truth. Searcy calls the first witness, elicits his story, and then puts on the second one to refute the first.

His belief is that by controlling the testimony of the adverse witness - and by alerting the jury that this testimony is suspect - a lawyer can neutralize much of the potentially damaging testimony.

But Searcy also cautions that this can be a high-risk strategy and that lawyers should not give up the advantage of primacy without clearly weighing what's lost against what's gained.

Maintaining Focus On The Defendant
In the 2001 auto accident case - which Searcy tried along with his associates Darryl L. Lewis and Harry A. Shevin - the order of witnesses became critical to the outcome.

The young mother was broadsided at high speed by a Riviera Beach police officer, killing the plaintiff's 6-year-old daughter and leaving her 3-year-old twin sons brain damaged and paralyzed.

The accident occurred at night at an intersection under construction. Searcy contended that the temporary turn-lanes set up during the construction obstructed the views of both the plaintiff and the police officer. He deposed nationally recognized highway construction and traffic safety engineers, as well as accident reconstruction experts, on the issue of the negligent design of the temporary lanes.

Searcy, who sued the police officer, Palm Beach County, and Ranger Construction Company, worried that the jury would attribute most of the liability to the cop, who had no insurance and was not covered by the police department policy since he was on his way to work at the time.

But focus groups and mock trials revealed a more serious problem.

"One of the things we learned was, as soon as you started talking about what the drivers did, you could never get the jury's attention focused back onto the defective nature of the intersection," Searcy said. "They'd be following all the things that were wrong at the intersection and how they created a trap for motorists, but as soon as we started talking about what the two drivers did, their attention immediately shifted to figuring out which driver was wrong."

Armed with that knowledge, Searcy spent the first two and a half weeks of trial with the expert witnesses and accident reconstructionists, before he called the plaintiff or the police officer.

"Once that was thoroughly explained, the jury understood that the motorists were to be protected," he said, instead of culpable for the accident.

In returning the verdict, the jury found the construction company and the county 93 percent fault and the police officer just 7 percent at fault. (The construction company and the county settled for $57 million days before the trial was to begin.)

"Because we'd learned ahead of time [that the jury would get distracted by the drivers' testimony], we didn't fall into that trap," said Searcy. "That's a good example of the importance of the order of your witnesses."

Graphic Evidence
Searcy also urged lawyers to be very careful when presenting extremely graphic photographs and other evidence to jurors.

"When you have evidence that's particularly graphic, something that will really grab somebody's attention, perhaps shock somebody, I think it's important the way you use that. Because I think human beings have the ability to become desensitized to almost anything," he said.

A desensitized jury is less likely to be sympathetic toward the plaintiff.

Searcy tried a case with partner Lance J. Block Jr., on behalf of a woman whose 3-year-old daughter was killed when an interstate sign blew off its mounts, helicoptered down through the air, and cut through her windshield, slicing the girl's head in half.

"There were photos of the child's head split in half taken at the scene, and they were admissible to the mother's mental pain and suffering," said Searcy. But he only presented the photos twice - and did not use them when the mother was on the stand.

First, Searcy showed the photos to the police officer who responded to the scene and asked him whether the photos accurately reflected what the mother witnessed. Once that foundation was laid, Searcy turned to the jury.

"I said to them, 'All right, I apologize for having to show this to you. I'm going to pass it in an envelope so you can look for as long or as short as you want to and then pass them to the juror next to you," recalled Searcy. "Some took a peek and shoved it right back in."

The second time was during his closing argument. Searcy had noted at trial that the plaintiff, who sustained a head injury, was forced to remember her daughter's gruesome death every time she looked in the mirror and saw the scar on her own head.

"I got the envelope, and I said, 'It's been four years now, but every time she sees that scar or feels that scar, it's like somebody pulls this photo out.' I pulled it out and showed it to them. I said, 'It's like somebody shoves this in her face.'

"Those were the only two times the jury saw it," Searcy said. "Because it was not overused, it has its maximum power." Had it been on display throughout the trial, "by the time they made their decision, they would have been desensitized."

Searcy in his closing had requested a verdict of $8 million. The jury returned an award of $9 million.

This article has been reprinted with the permission of Lawyers Weekly USA, the national newspaper for small law firms. To subscribe, please visit www.lawyersweeklyusa.com or call (800) 451-9998.

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