Kissner v. Polk Hospital

[BSBeane]

Kissner v. Polk Hospital

This great case really needed a place in this forum. It had subtlety, law, experts, balance, and really cool, useful evidence.

Ok, maybe I'm exaggarating a bit. But frankly, as only a second year mocker, Kissner is by far my favorite case. A lot of people said last year that they wished the case were better, and that they were nostaligic for older cases, such as Thornhill. What makes a great case? And what made Kissner a good/not so great case?

And finally, tell any and all fun stories from '04-'05.

[TheTiger]

This may be old school, but I prefer cases where someone is dead.  It heightens the emotional impact of the trial, for both sides in a criminal case.  

Kissner was sort of "eh."  I prefer Thornhill due to the story and the witnesses; you had Terry Gerch, the hard-nosed cop who jumped the gun searching everywhere, Ashley Thornhill, the aggressive accounting associate on his/her way up and who could very easily have shot her boss, and my favorite piece of physical evidence in a trial, the Secure-A-Card log and all the wonderful hearsay battles it inspired.

[UMCane*GWB]

Thornhill was definitely a great one.... The secure a card log made it so you actually had to look hard at the case to see some of its key evidence. They didnt just give it to you...

[andrewbaker]

Kissner was an absolutely terrible case.

[CrowleyM]

Kissner was my least favorite case.

State of Midlands vs. JJ Thompson is my favorite. Perhaps that's just the nostalgia of it being my first college case, or because I haven't liked the other cases too much.

The Harmon case was mildly entertaining, though it was like a bad rehash of Thompson with the head injury and alternative causation.

I hated not having a bifurcated trial in the Kissner case. Listening to Gerkins was horrible.

[RadicallyLiberal]

As far as what makes a great case, I'd have to say I grow more nostalgic for Harmon each day.  On Harmon, the State could sit down feeling like the burden was met, like summary judgment would be inappropriate.  The defense could stand up and meet their own burden or raise reasonable doubt.  Each side could end their case in chief with success which made it a great case.

I've never seen anyone sit down in Perry after the P Case in Chief having met their burden.

[FundamentalPrecepts]

I agree with TheTiger and Don regarding Thornhill. There were some great characters in that case, and I don't mean those of the Francis Leo variety. They were just high-powered and ambitious people, some of whom would stab anyone in the back to get a client or promotion. I don't condone such behavior, of course, but it was a damn fun case.

Thornhill was arguably just an evil person, which is why my team had so much fun with that witness. But there was so much evidence suggesting that he didn't do it, and so much over which to be righteously indignant as the defense.

EDIT: Everest Experience was also a great case. It had a great storyline, and there were so many viable witness combos for both sides. I rarely saw the same case presented in any trial.

[Scooby Doo]

I've never seen anyone sit down in Perry after the P Case in Chief having met their burden.

yeah especially after walsh gets crossed... yeesh...


i have to disagree with some of y'all. i really liked the kissner case, as well as arguing for damages. i thought by nationals we were trying the hell out of that lawsuit...

[Big Dave]

Kissner was alright, but Harmon was my favorite, by far.  Maybe it's just because I got to play a big, dumb, loud, sarcastic, (sometimes) angry defendant and still look credible, or maybe it's because I got to give a big, loud, sarcastic and (sometimes) angry closing.  But it was a fun case.

[JayZ]

I can honestly say I've liked the case less and less every year.  Thompshon was the first case I tried and it was a solid, interesting case with  several theories and witness line-ups to use.

Harmon was good soap opera with fun characters, even if the underlying case was weaker.

Kissner lacked any compelling characters or particularly interesting arguments.

Perry is dull as sin, and started with ridiculous imbalance issues that have only been resolved by stripping more and more meaningful argument from the case.  I mean, granted, I've only observed a half dozen scrimmages and six rounds this year but, lord, every single round seems identical right down to the themes teams are using.

[felixfuissem]

having been to three tournaments so far, it's just really sort of depressing... Kissner had an extremely limited lineup, but at the same time you could do a lot of different things with it; I saw really interesting uses of Leos throughout the year (even beyond character points), and the fact that every team could define IED slightly different forced teams to improvise...

But even ignoring the sameness issue, what's killing me about these trials is how much is totally extraneous. Honestly, P's case is almost entirely the Walsh direct, and D's case is almost entirely the Walsh cross, with maybe some Gustavo thrown in. What was great about Kissner was that every witness provided a piece of the puzzle, and you really needed all of them to build your theory. This case really doesn't have that, which makes most of the case in chief feel a little meaningless.

[DrCornelius]

Listening to Gerkins was horrible.

To the contrary, I think that Girken was one of the best witnesses to come out of recent AMTA cases.  There was such a clear delineation between witnesses who were portraying the character well and those who were portraying it poorly.  It came down to two questions: did the witness explain the economics such that an observer unfamiliar with the case could follow?  and does it sound like the witness's analysis make sense (rather than appearing straight out of his ass)?  Girken was very easy to screw up hardcore, but had incredible potential for an expert direct.

The other reason Girken was so great is that it took a legitimately great crossing attorney to give a legitimately great cross.  Girken crosses were an exercise in unpredictability and mastering them required asking tight, precise questions and adapting to the unexpected.  There was no "silver bullet" such as a memo about the witness's alcoholism, or him not being certified in forensic economics, or such nonsense--Girken crosses were simply a matter of an arrogant attorney matching wits with an equally arrogant professor.  It was spectacular.

[Quotequeen]

I can honestly say I've liked the case less and less every year.

Agreed, going back to Everest.

[Arpan]

Listening to Gerkins was horrible.

To the contrary, I think that Girken was one of the best witnesses to come out of recent AMTA cases.  There was such a clear delineation between witnesses who were portraying the character well and those who were portraying it poorly.  It came down to two questions: did the witness explain the economics such that an observer unfamiliar with the case could follow?  and does it sound like the witness's analysis make sense (rather than appearing straight out of his ass)?  Girken was very easy to screw up hardcore, but had incredible potential for an expert direct.

The other reason Girken was so great is that it took a legitimately great crossing attorney to give a legitimately great cross.  Girken crosses were an exercise in unpredictability and mastering them required asking tight, precise questions and adapting to the unexpected.  There was no "silver bullet" such as a memo about the witness's alcoholism, or him not being certified in forensic economics, or such nonsense--Girken crosses were simply a matter of an arrogant attorney matching wits with an equally arrogant professor.  It was spectacular.

You speak truth. I should add that a well played Girken was the only witness under whom you could make a legit damages claim in real court. Girken not only challenged your ability to write a clear direct and concise cross, it was essential in presenting a persuasive damages case.

[FundamentalPrecepts]

Agreed, going back to Everest.

I also agree, though I'll say that Everest wasn't a lot better than Thornhill. I also have friends who loved the case before Everest (Ellis, I believe), but I have only faint memories of it, as that was the year before my program existed.

[felixfuissem]

...do you think we could just bring back Thornhill for next year? Honestly, I'm beginning to think I missed out.

[Quotequeen]

Thornhill was pretty fun, but it had all that nonsense with Gerch and sewer rats that was just completely unnecessary.  All the witnesses in Everest were competent (except for Denman shotting a rocket into the eye of a hurricane, but whatever) and there was stuff to cross them on anyway!  I miss that most.

[JACGW]

EDIT: Everest Experience was also a great case. It had a great storyline, and there were so many viable witness combos for both sides. I rarely saw the same case presented in any trial.

Here here. Cases have been going downhill since Everest Experience.  There's something about leaving someone to die on a mountain that makes you look at the world differently.

I did hear great things about State v. Ellis, but I missed out on any personal experience with that one.

Wow, welcome to a thread that totally shows my old age.[/i]

[FundamentalPrecepts]

Yes, we are aging ourselves here.

Sadly, I look back with great fondness on the JJ Thompson case. That wasn't a bad case, but I felt it was a substantial step down from Everest and Thornhill. Now, though, I feel like it's the best case of the last four years by a substantial margin.

There seems to be lots of agreement about a downward trend in case quality. Does anyone have any theories about this trend? Or are we just remembering things as better than they actually were?

[JACGW]

Yes, we are aging ourselves here.

Sadly, I look back with great fondness on the JJ Thompson case. That wasn't a bad case, but I felt it was a substantial step down from Everest and Thornhill. Now, though, I feel like it's the best case of the last four years by a substantial margin.

Thompson was certainly a decent case, though no Everest.  I agree it is probably the best of the last four years and certainly offered opportunities for great rhetoric. My partner had a wonderful opening line about Thompson having "drink after drink after drink after drink" quickly followed by "got behind the wheel of her Jeep Grand Cherokee, license plate STR 4..."

There seems to be lots of agreement about a downward trend in case quality. Does anyone have any theories about this trend? Or are we just remembering things as better than they actually were?

Without addressing the text of the actual cases, which will take some time to think about, a disturbing trend I noticed is the over-stipulation and hyper-rule making that seems to be taking a lot out of what was offered way back when.

I certainly mean no disrecept to the Rules Committee, headed by a woman who taught me a lot about mock trial and for whom I have great affection, or the AMTA Board itself, which is staffed by devoted volunteers.  And certain rule additions were especially helpful (more hearsay exceptions, prohibition on denying evidence in the case packet, constructive exclusion of witnesses, etc).  

But the general trend seems to be towards reducing legal arguments, reducing attorney/team back-and-forth, and minimizing conflicts of evidence and law....It seems to push every team towards a mediocre middle regarding legal theory and denies teams the opportunity to showcase what they know and learn.  

I fear mock trial is turning less into legal-minded competition and more into a dramatic interp round...just with teams.

[JayZ]

I concur with everything JACGW just said.  I just... I mean, I know the board is comprised of good, hardworking people.  But I can't escape the feeling that more and more it seems like the cases are being selected and reworked in a way that almost seems like we're being talked down to.

I dunno, it just seems like there's less law and substance every year.

[JayZ]

Also, what's with the board being so gung ho about having a live victim lately? I mean, yeah, sure, it's good to spice up the ol' steady homicide/wrongful-death diet, but it's also the rbead and butter of MT cases the world over.

[Yang]

You speak truth. I should add that a well played Girken was the only witness under whom you could make a legit damages claim in real court. Girken not only challenged your ability to write a clear direct and concise cross, it was essential in presenting a persuasive damages case.

Finally, a moment to describe my greatest beef with last year's case.  If you wanted to do future earnings, you essentially had two potential witness calls.  The first was Kissner, Girken, Dehnert.  But that line-up is inherently silly, because regardless of what Girken tells you about economics the only person who has offered testimony that Kissner is talented is . . . wait for it . . . Kissner herself.  The alternative, of course, was a Kissner, Trienen, Dehnert line-up, but then you run into massive improper opinion and hearsay objections when trying to put a number on Kissner's talent.  Future earnings was this horrific black hole that I always felt was impossible to prove with just three witnesses.  

Hence our decision at DM to run a recklessness case and throw future earnings out the window.  

That said, I do believe that out of the Harmon, Kissner, and Perry cases, Kissner is the best by far.  Mental patients are inherently interesting; the back-and-forth between Dehnert and Kaplan could be very good, and Kaplan was actually one of my favorite witnesses of all time insofar as a good Kaplan could construct a theory of seratonin and aggression that actually mattered.  Compare the cross of Kaplan (which a good Kaplan could legitimately box with you on) to the cross of Walsh, who has to just lay down and admit he didn't do jack.  Ugh.

[felixfuissem]

if you're the Kaplan I saw last year at Des Moines (I sat in on a UVA v. Yale round), I know what you mean about Kaplans constructing theories, but I felt like that was a very risky strategy, and whoever wrote Kissner was very smart about forestalling it...

trouble is, the battling experts were kind of in bed together; defense needs Dehnert to be at least borderline competent or else there are problems. If Kaplan got too novel, while it could work for their character (I thought the UVA idea of IED being a RESPONSE to elevated seratonin was brilliant), the crosser could force him to admit that Dehnert has no idea what IED is, essentially (assuming Dehnert used a different definition), and that Martin Dutcher only had a competent primary physician for three weeks. I was D Leo that year, and I had to remember to be very careful about bashing Dehnert too hard, eventually you start proving negligence yourself.

[crialkilru]

In response to Yang's post--I pretty much agree with everything he said.  I liked the interplay of theories on Kaplan v. Dehnert, the funny portrayals of Leo, the fact that the case was a diversion from the usual murder/wrongful death (in a good way) and that there were meaty crosses all around.  I miss Dehnert and Kaplan.

I do have one beef with his beef--I don't think it was impossible to do a future earnings case.  Granted, in real trial you could just call a Trienen-type witness along with a Girken type and tie things together.  That said, we called Trienen on Plaintiff in every round of every tournament post-Rhodes and did pretty well with it.  Given the tendency of most mock trial judges to let everything in that's remotely relevant ("for what it's worth" of course   "), it never caused any real problems.

And yes, Walsh is a doormat.

[JusticeSeeker]

I actually think the bigger problem with future earnings was how it limited witness calls, when the plaintiff used the classic Kissner-Dehnert-Cotone lineup and didn't go for the $.

Before the nationals changes, if the plaintiff didn't go for future earnings, the defense was forced to call at least one witness that was there for future earnings purposes (Girken, Siegfried, Trienen).

Of course, that problem came from having only 3 truly up-for-grabs witnesses -- which was pretty silly.

It actually highlights one of the biggest strengths of this year's case -- the realatively large number of potential witness combinations for each side.

[Jaggers27]

The other reason Girken was so great is that it took a legitimately great crossing attorney to give a legitimately great cross.  Girken crosses were an exercise in unpredictability and mastering them required asking tight, precise questions and adapting to the unexpected.  There was no "silver bullet" such as a memo about the witness's alcoholism, or him not being certified in forensic economics, or such nonsense--Girken crosses were simply a matter of an arrogant attorney matching wits with an equally arrogant professor.  It was spectacular.

As someone who played, directed, and crossed Girken in competition at some point of the year, I'm going to agree with everything Dr. C said about him being a great witness, except for the crossing part.  It might just have been my experience, but that Girken cross wrote itself, and there were few things as satisfying as slashing down his economic loss figure to 0 as the assumptions went tumbling out the window.

Girken was good, but my vote for the best witness ever was Jean Marie Baptiste.  He was an expert upon whose expertise rested the whole trial.  He was a witness with wonderful options for a dynamic character.  He was a witness that was perfectly spinnable for either side, and an asset to either side's case.  And, in terms of pure fun, I enjoyed portraying that lovable, folksy Canadian more than any of the many interesting characters I've been able to play.

[ucats]

I miss playing Gerkin last year.  I really enjoyed it, and was constantly receiving comments from judges about how I was the first one they had seen that clearly broke down all the expert gobbledeygook (technical term!) into something they could easily understand.  I had such an airtight direct, and when I could piss off someone the caliber of Lee Greenwood when getting crossed, I must have been doing something right.  Bringing home some hardware from EKU Nationals helped too!

I kinda wish Nathansons this year had the relevance and respect of the judges the way a well done Gerkin did last year as far as proving or disproving elements of one side's case.

[DrCornelius]

The other reason Girken was so great is that it took a legitimately great crossing attorney to give a legitimately great cross.  Girken crosses were an exercise in unpredictability and mastering them required asking tight, precise questions and adapting to the unexpected.  There was no "silver bullet" such as a memo about the witness's alcoholism, or him not being certified in forensic economics, or such nonsense--Girken crosses were simply a matter of an arrogant attorney matching wits with an equally arrogant professor.  It was spectacular.

As someone who played, directed, and crossed Girken in competition at some point of the year, I'm going to agree with everything Dr. C said about him being a great witness, except for the crossing part.  It might just have been my experience, but that Girken cross wrote itself, and there were few things as satisfying as slashing down his economic loss figure to 0 as the assumptions went tumbling out the window.

Girken was good, but my vote for the best witness ever was Jean Marie Baptiste.  He was an expert upon whose expertise rested the whole trial.  He was a witness with wonderful options for a dynamic character.  He was a witness that was perfectly spinnable for either side, and an asset to either side's case.  And, in terms of pure fun, I enjoyed portraying that lovable, folksy Canadian more than any of the many interesting characters I've been able to play.

Seconded on Baptiste.  Also a spectacular witness.

As for the Girken cross, do you think it went so well for you because of the way the witness was written, or (more likely, imo) because of your skill as a crossing attorney--precise questions, adaptability on the fly, and whatnot?

[Jaggers27]

I suppose either could be likely, but I think the point of your post - which I'm only now getting - is that you had to truly get into Girken's process to effectively cross him.  You had to understand his procedure inside and out.  It required a level of understanding of the witness' testimony that is rare, because as you mentioned, most witnesses just have something thrown in like a ridiculous statement or debilitating alcoholism.  So, upon further reflection, three cheers for J. Whitney Girken!

[ucats]

I was actually playing Gerkin, so no, it wasn't because I was a good crossing attorney...it was because I knew how to screw with good crossing attorneys

[maxus]

See I loved this case. Even though I had tons of drama on my squad at the time, getting the chance of firmly putting my foot in somebody's Gerkin or getting that sham of a family practitioner to admit that the injuries the attending physician saw were worse than what he had previous to use in close was fun. That and when we ended up out of the possibility of qualifying for a ton of reasons having the most ridiculous, "serious" round at Washburn's qualifying with Creighton.

Bombastic Decay anyone?

[Herb]

I hated the Kissner case with every fiber of my being but that was largely do to the fact that both myself and my team were terrible at presenting it.

[maxus]

I was a rough one to pull from the out set but with all the changes then it got ridiculous. Plus I think AMTA secretly got pissed at us for starting the, "Your honor, we the plantiff hereby drop the portion of the suit relating to future earnings and wish to continue asking only for the coverage of Ms. Kissner's(cause our Tony was a girl) medical expenses. Somebody(I plead the fifth) must have used that trick to much and pissed off too many teams before they finally required that damages form to decide what your going for. That same somebody(FIF) probably also had too much fun making relevance objects to Sandy Trienen testimony under those conditions. Or any mention of it by Siegfried.(There are......some many amendments to the constitution of the United States.......Of America. I can only chose one....I can only chose ooooonnnnnneeee. I plead the fif. *BAM BAM* I plead the fif. One, two, three, four, FIF! )

[RadicallyLiberal]

I have mixed feelings about Kissner.  There was a lot of really compelling medical evidence, but there was never anywhere near enough time to present it.  My ideal Dehnert direct would have taken the full 25 minutes easily and included a detailed discussion of each letter to Dr. Kaplan.  Some witnesses were nigh uncrossable and others were a slam dunk.

Although this case could go either way, it was hard to meet the Plaintiff's burden without a 15 minute direct of Dehnert.  I feel like the numbers in that case were a bit skewed toward the defense when looking at w/l records.