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Sifting the issues with stipulations: you don't need to fight over every point at trial - just the important ones. Use stipulations to streamline your case and focus the jury's attention on the issues that really matter.

You've been living with the case for ears. During that time, you've taken hundreds of depositions, digested countless pages of documents, and learned more about the defendant than you know about your spouse. Negotiations have failed, and now there is no doubt: This case is going to trial.

As your trial date approaches, one of the issues you'll address is, "Should I stipulate to anything with opposing counsel?"

Your initial reaction may be, "Of course not." After all, as a trial lawyer, you've been trained to think that every issue should be contested, every witness attacked, and every opponent destroyed. You may believe that if you agree about anything with your opponent, you'll seem weak.

But rather than adopt a "give no quarter" approach to trial, you should consider this classic military strategy about engaging in battle: Avoid what is strong and strike at what is weak. In other words, if you want to win your case, don't pick every fight. Focus on the weak parts of your opponent's case, and stipulate to the rest.

Ironically, the more complicated your case, the more important it is for you to reach agreements. Stipulating establishes your credibility with the jury, streamlines your case, and focuses the jurors' attention on the issues that really matter.

The importance of stipulations was driven home for me during a criminal case. The defendant, who was accused of shooting the victim in the head, was charged with attempted murder with a firearm and faced a potential sentence of life in prison. You might think that in such a serious case, my opponent and I would be fighting over every single issue, but nothing could be further from the truth.

Instead, a few days before trial, we found ourselves standing in the hallway behind the courtroom, telling the judge that we were stipulating to nearly every material fact in the case. We also told him that we were streamlining the introduction of the exhibits, that we had agreed to significantly reduce the number of witnesses who would testify, and that we could shorten the length of the trial from more than a week to a single afternoon.

Why would two experienced attorneys, who were hoping for completely opposite outcomes, agree to stipulate to so much? Because we knew the strengths and weaknesses of our cases, we were able to identify the true issues that we needed to focus on. In short, we knew what mattered and, more important, what didn't matter.

Typically, the attorneys who are most reluctant to stipulate are also the ones who either don't understand their cases very well or don't know how to try cases.

In my experience, the attorneys who stipulate are usually the best attorneys in the courthouse. They have evaluated their cases from the inside out, and they can readily identify which issues are important to fight over and which are not.

What to include

Remember the value of streamlining your case when reviewing whether an issue is appropriate for stipulations. You and your opposing counsel should consider several aspects of the case.

Prior deposition testimony. You're litigating the sixth lead paint case that's been brought against the Acme Lead Paint Co., and you plan to use the favorable deposition testimony from one of the earlier cases. But what if opposing counsel successfully challenges its admissibility during trial?

Will you still be able to prove your case? By securing a stipulation to the admissibility of prior depositions, you'll ensure that the jury hears the deposition testimony, while also allowing the defendant's employees to avoid the hassle of repetitive depositions.

Authenticity of documents or business records. Are you really questioning whether the manufacturer kept its payroll records in the normal course of business, 07- whether loan paperwork was created "at or near the time" of a transaction? If there's no legitimate issue regarding the authenticity of the records, don't waste the jury's time talking-stipulate to the uncontested foundational predicates.

Evidentiary foundations. Suppose you have 25 photos and a "walk-through" videotape of the crash site, while opposing counsel has 18 more photos showing different views of the same intersection. If there's no question about their reliability, why not stipulate to all of them? You'll not only streamline your case, your witnesses will be able to concentrate on telling their stories rather than answering awkward evidentiary questions.

Use of stock photos or diagrams. Do your experts need customized medical visuals to illustrate their points? Both parties could probably save significant expense if you agree to allow the experts to explain medical conditions or procedures using stock illustrations instead.

Introducing sworn statements in lieu of live testimony. Suppose that you're suing a manufacturer because its product malfunctioned and ignited a fire, burning down a house and resulting in the death of an infant. It's undisputed that Dr. Jones was the medical examiner who performed the autopsy of the infant and that the baby (lied from smoke inhalation. So is there any need to depose Dr. Jones or have him testify at trial? Stipulate to the admissibility of his report. Better vet, stipulate to an easy-to-understand summary of his report in lieu of his testimony.

Percentages of fault or loss. In the right case, consider whether it would make sense to agree that your client was 35 percent responsible for the crash and that the defendant was 65 percent responsible, so that the jurors can focus their attention on the issue of damages. You might agree to put floor and ceiling caps on the damages, or agree on a specific figure for economic damages and then ask the jurors to determine what percentage of blame should be assigned to each party.

Witness credentials. Sometimes the issue isn't whether the witness is an expert, it's whether the procedure the expert used in reaching his or her opinion was scientifically reliable 07 properly conducted. If that's the case, tell the court, "No question, she's an expert," and jump straight into the methodology issue VOIA really care about.

Admissibility of demonstrative exhibits. Often, there's a quid pro quo when stipulating to demonstrative exhibits, such as "If you'll let me use these economic summary charts, I won't object to your PowerPoint slides." The advantage to stipulating about demonstrative exhibits is that if both parties agree that the exhibits are fair, they can be admitted into evidence as actual exhibits rather than as demonstrative aids. Then they can go back with the jury during deliberations.

Allowing witnesses to testify by alternative means. What if a witness who plays a small--but important--role in the case relocated to Alaska before she could be deposed? Do you need to force her to fly across the country for her two minutes of testimony, or can you agree that she can testify via telephone or video linkup instead?

Allowing witnesses to testify out of order. Halfway through one of nay trials, a witness for the defendant had a family emergency. I agreed to let her testify out of turn so that she could fly home that evening. Normally, you wouldn't allow the defendant to present any of its witnesses during your case-in-chief, but in this situation, it didn't hurt my case and the witness was deeply grateful. (And a grateful witness may he less likely to go out of his or her way to hurt your case.)

Technical literature or scientific literature. If both parties agree that Dr. Robert Bruce Banner's Banner on Gamma is the authoritative text in the field of gamma radiation exposure, then you both could admit portions of the text into evidence without calling additional experts.

If you and opposing counsel agree that the Federal Highway Administration's Manual on Uniform Traffic Control Devices is the applicable standard for determining when a stop sign is required, the relevant portion of the manual could be admitted into evidence before you even present your opening statement.

Suspending standard testimony requirements. Normally, you're not supposed to ask leading questions during direct examination. But, by mutual agreement, you and your opponent could each ask leading questions to expedite undisputed testimony, to avoid "danger zones" such as suppressed evidence or inadmissible testimony, or to help keep unfocused witnesses under control.

Indisputable facts. One of the easiest ways to streamline a case is by stipulating to the undisputed facts. This type of stipulation is governed by Rule 36 of the Federal Rules of Civil Procedure, which addresses the scope, use, and enforcement of requests for admission. There may be significant cost savings when the defendant stipulates to simple facts that would otherwise be expensive to prove, such as establishing that delivery was made in several states.

Why would opposing counsel stipulate? Because Rule 37 (c) provides that if the defendant fails to admit to what you've requested, and you later prove the document you're relying on to be genuine or the matter to be true, you may ask the court to order the defendant to pay the reasonable expenses, including attorney fees, that were incurred in making that proof. If the defendant doesn't admit to obvious facts, it's going to bear the burden of paying the travel expenses of your witnesses.

Maximize impact

Now that you're going to increase your use of stipulations during trial, make sure the jury actually pays attention to them and gives them the appropriate weight. Here are three quick and easy tips for maximizing the impact of your stipulations:

Don't call them "stipulations." Are you confident that each of your jurors knows what "stipulation" means? Don't risk any confusion. Give your document a simple title, such as "Agreed-Upon Facts," "Agreement Between the Parties," or "Undisputed Facts." Also, consider writing an introductory paragraph like this: "Both sides have agreed to the following facts. There's no need for any further proof of these facts--they are no longer in dispute, and you may accept them as true."

Get everyone to sign the document. All the parties--not just the lawyers--should sign the document. That way, none of the jurors will get the mistaken impression that only the lawyers agreed to the stipulations. To add extra weight to the agreement, ask the judge to formalize it by signing the document as well.

Introduce stipulations at the most effective time. Many lawyers fall into the trap of waiting until the end of their case before publishing all of their stipulations. The judge says, "Call your next witness, counselor," and the lawyer responds, "No more witnesses, your honor--but I do have 40 minutes' worth of stipulations to read into the record."

If that's how you introduce your stipulations, the court reporter will be the only person in the courtroom paying any attention to them, because the jurors will fall asleep before you finish reading the third page. It's worse, however, to fail to read the stipulations aloud at all. Don't just introduce the agreements into evidence and then expect the jurors to read them in the deliberation room.

For the best result, publish your stipulations when the evidence they relate to is presented. For example, if you and your opponent have agreed that a gun recovered from a house was loaded and operational, you'll want to present that stipulation when the gun becomes important. After the witness testifies, "I saw a gun next to the baby's crib," read the stipulation to the jury: "Both parties have agreed that the firearm was loaded and fully operational." If you wait until the end of the trial to read the stipulation, the jurors will have forgotten all about the gun.

Once you start making stipulations an integral part of your trial practice, you'll streamline your case presentations, improve your credibility with jurors, and reduce the length of your trials. With practice, you'll soon be focusing your attacks on the weakest points in your opponents' cases and stipulating to everything else, freeing your jurors to focus on the only issue that matters: Why your client deserves to win.

ELLIOTT WILCOX, based in Orlando, Florida, is an attorney and the editor of Trial Tips Newsletter, a free weekly e-zine for trial lawyers. He can be reached at
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Author:Wilcox, Elliott
Date:Jul 1, 2008
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