When we take on a case against a popular defendant, we always ask ourselves, “What will folks in the community think about this?” The reason is, people in our community have the final say on what is right and what is wrong when a case goes to jury trial. It’s the purest democratic form around. Twelve people in the jury box. They apply the facts to the law and tell us what they think is fair and just when they announce their verdict.
Voire dire is old French and means “to speak the truth.” In a jury trial, we talk to prospective jurors about how they see the world. The goal is to identify people who can’t be fair and unbiased in a particular case. Since we are looking for a fair and just result, we try to make sure that the folks who make the decisions don’t have a personal agenda that will color their decision.
In voire dire, the judge and attorneys ask prospective jurors questions and then listen to their thoughtful responses. Here are some examples from a medical negligence case I handled in 2011. How would you answer these if you were sitting in the jury box at the start of a jury trial?
2. If you were a juror in a case like this and you decided a doctor’s negligence hurt a person, what trouble would you have – even a little – allowing money for the medical costs?
3. Some folks have trouble allowing money for taking care of someone who is hurt if there is family around who might pitch in, while others are okay with fixing the hurt without burdening the family. Which are you closer to?
4. Some folks have trouble allowing money for pain and others are okay with it. Which are you closer to?
5. Rules and standards. Some folks believe that rules and standards need to be followed, others feel that rules can be ignored. Which group are you closer to?
6. Some people believe that they can’t decide whether or not a doctor followed the rules, some believe they can. Which group are you closer to?
7. Some people believe doctors aren’t always right, others believe that doctors are right all the time. Which group are you closer to?
8. Some folks think that it is okay to question what a doctor does, others believe that doctor’s can’t ever be questioned. Which group are you closer to?
9. Some people believe that when a doctor violates a rule and someone is injured, it is okay to hold him responsible. Other people believe that a doctor can’t be responsible for injuring someone no matter what rule he breaks. Which group are you closer to?
10. Some people think that lawsuits against doctors don’t violate any of their religious, philosophical or moral beliefs, others think the opposite. Which group are you closer to?
11. I will tell you right now that [Mom] won’t be here every day, because she is the primary caregiver for her daughter. Some people think it is okay that the mom isn’t here in court every day even though you have to be, others believe she should be here everyday, no excuses. Which group are you closer to?
12. Some people can handle a lot of pain, some folks can’t handle much at all. Which are you closer to?
13. When you first heard about this case, what was your reaction?
14. Some folks feel they’re pretty capable on their own of keeping themselves and their family safe. Others feel they have to depend on others. Which group are you closer to?
I am proud to announce the Inaugural Continuing Legal Education Event (MCLE) event from Encino Lawyers Association:
Preparing the Problem Witness
Practical instruction in the art of preparing for deposition and at trial,
including instruction on the ethical rules regarding witness preparation.*
December 8, 2010, 6:00 p.m. to 7:00 p.m
16133 Ventura Boulevard, Penthouse Suite “A”
Encino, California 91436
William A. Daniels, Esq.
Trial Lawyer, Loyola Law School Advocacy Institute Board of Governors
Molly M. Murphy, MDR
Trial Consultant and Mediator, Providing Trial Strategy, witness Preparation and Litigation Support
* This event provides 1.00 hours of California Mandatory Continuing Legal Education credit, including 0.25 hours of ethics credit.
Encino Lawyers Association
The ELA has a simple purpose: To promote Encino as a center of excellence in legal services. To provide local and low-cost educational opportunities (MCLE) for the local legal community. To facilitate quality cross-referral opportunities along the Ventura Boulevard corridor in the San Fernando Valley.
I was in trial last week, when opposing counsel asked the judge for a side-bar. The judge and I both chuckled, since it was a bench trial, but the sidebar took place, I believe without the court reporter present. I’m not sure the other lawyer understood the chuckles.
Black’s Law Dictionary explains: ”Side-bar. Refers to position at side of the judge’s bench where trial counsel and judge discuss matters out of hearing of jury. It is important that such conferences be recorded if they are to be considered on appeal. New Jersey v. Green and Guida, 129 N.J.Super. 157, 322 A.2d 495, 499.”
So, no need for a side-bar during a bench trial, unless you are trying to avoid cluing in a witness on something. In this case, the lawyer asking for the side-bar had his own witness on the stand and the question had to do with a document that everyone knew about anyhow.
I’m still scratching my head over that one. Don’t think it made the other attorney look very experienced and he’s older than me by almost a decade. Oh well, that’s trial.
I got some nice feedback from my talk on the California Electronic Discovery Act for the Ventura County Bar Association Business Litigation Section last week. Thanks to Hon. Glen Reiser for providing his cogent comments of how ESI discovery is viewed from the bench, and Erik B. Feingold and Charmaine Buehner for setting up to the program (and buying me lunch!).
Usually when I speak to bar groups I do a comprehensive powerpoint presentation detailing lists of rules, citations and all that regular technical stuff that lawyers love.
This time, I thought I would apply a technique that we’ve bandied about at Loyola Law School’s Advanced Trial Skills Institute and use single card key graphics to illustrate my primary points. For fun, I used photos from a recent family trip to Europe. You can view the presentation here.
To take the place of a handout, I uploaded a wiki post on OpenSourceLawForum.com with links to the key source material. After the talk, I added two cases mentioned by Judge Reiser and an article from one of the attendees who was kind enough to send me an email note. Check out the article here.
The feedback I received was positive. Erik wrote: ”I received nothing but rave reviews and I thought the presentation was light but very informative.” Charmaine wrote: ”[T]hank you for a memorable presentation, which one member summed up as being one of the Section’s best.”
I hope they invite me back, a fun group I’d like to get to know better. Also, it is gratifying that the cutting edge communication techniques we are studying are helping us be better legal communicators.
I was putting together an exhibit binder for my co-counsel this morning, and it demonstrated once again how modern tools are making it much simpler for us to get our evidence pulled together as we work up our cases.
In the old days, I would have put yellow stickies on each of the pages I wanted copied, then either photocopied and three-hole punched them myself, or had my assistant do it. Either way, I had to be in the office.
This morning, I sat at my desk at home, located each of the exhibit pages I had premarked in Adobe Acrobat Professional (pdf), printed the pages out and zoom, there was my binder.
My co-counsel was happy, he told me he planned to send me more cases, which made me happy.
Sometimes, it is the simple things and in complicated legal cases, the simpler the better.
Shine your shoes before court. Pressing your jacket is a good thing, too.
If your expert has a favorite book, treatise or article that they are relying on in forming an opinion, ask to borrow it or at least get a name so you can buy your own copy. Know your case.
Preparation is never an afterthought. Your clients need to be comfortable with the process if they are going to testify at their best.
Read the basic jury instructions at the BEGINNING of your case. They will be your road map throughout.
You can pick your friends and you can pick your . . . okay, never mind that.
This column is about picking experts, a topic that makes me grumpy because once I pick them, I have to pay them. Still, no sense being over the top. It’s just, I’ve been okaying invoices today and, ah well, let’s just say it’s put me in a philosophical mood.
We all use experts in our cases. Sometime more, sometimes less. They are a necessary part of what we do and many of them we love.
On the other hand, we all have our “nightmare expert” stories. There’s billing nightmares: like the prominent witness who freely runs up charges at $750 an hour and then doesn’t return phone calls. Or the fellow who charges full rate for packing and unpacking his luggage before and after a trip. It just makes you want to sigh.
Then there’s the testimony nightmares: The experts who show up unprepared, or unstudied, or testify in deposition exactly opposite to what they told you during the prep. We’ve had them forget to put on their false tooth before a video depo, I’ve watched them walk up to the stand with a cane only to leave it behind on the return. Picture me, face down in hands, head shaking.
Now, I’m not knocking the large class of hardworking, professional, knowledgeable expert witnesses who truly do bring a benefit to our cases. My point is, if you aren’t careful in your expert selection process, there’s a real risk that your case and your client can suffer the consequence.
So, where should you be looking? Probably the best way to locate a good expert is by asking your friends and colleagues. The idea is to hunt for referrals from attorneys who you know and trust or, who have litigated a case similar to yours. O’Brien’s Evaluator is a good place to start your search, as is the CAALA Listserv or any of the verdict and settlement reporters published by various commercial outfits. Don’t be afraid to call up other practitioners. One of the great things about plaintiff’s lawyers is: we share. Take advantage of that generosity.
Of course, you can always try a google search to see if you can locate someone who has special expertise or is a recognized leader in their field. Also, make sure you also do a google search on anyone you are seriously thinking of hiring. You can be sure the opposition will and it’s amazing what’s out there on the internet.
Another good source is the community where your case is located. I’m not just talking about physical location here. For example, I have a case against a law enforcement agency involving various allegations of discrimination. One of my consultants is a former command-level officer for that department and, when it comes down to declaring experts, he will likely end up on my list. How’d I find him? He was someone my client knew.
If I am looking for an expert in an unusual area I might also hire a resource person to hunt for me. Gerri Colton springs to mind (www.TechMedAdvisors.com). She charges for her time, but sometimes it’s worth it and she’s been a lifesaver for me and my firm in the past. There are other resource people out there. Ask around.
Don’t be afraid to look closer to home as well. Years back I had an unusual case involving an Achilles tendon injury during a holistic therapeutic dance class in Santa Monica. It was not the kind of case you wanted to try. But it was a case that could (and did) settle.
My kids were taking dance lessons in the Valley from this nice, elderly lady who had been a dancer and dance instructor all her life. I asked her if she’d take on an expert assignment and she was terrified at the idea of having to testify in deposition, let alone court. Still, I knew she’d be a terrific witness if it got that far. She was scared, yes. But she was also clear in her views and spoke about what went wrong in that dance studio from her heart. I wish I could say that about every expert I’ve hired.
Anyhow, I talked her into taking the assignment and send out a small retainer to seal the deal. Armed with my “expert,” I confidently headed for an MSC and got a nice result for the client. My kids’ teacher got to keep the retainer and she didn’t even have to testify, something for which she is grateful to this day. Win, win, all around.
I generally avoid the paid listing services. My experience is it just takes too much time to weed through the candidates and find the person who is really up to your particular challenge. Still, if you get stuck, don’t be afraid to do some exploring.
Also, beware the defense-oriented expert who masquerades as being a balanced analyst in their field. Personally, I like using experts who primarily testify for the defense. It helps drive home the notion that my case is so strong it doesn’t matter who the expert is.
However, there are folks out there for whom the defense bias is so ingrained that they can’t help favoring the defendant’s point of view, even when they’re retained to testify for the plaintiff. It’s not so much that this sort of witness will not tell the truth. It’s more in where their efforts will lie. A defense oriented expert might avoid opening doors to inquiries that would benefit your client simply because they can’t conceive there would be anything useful to learn if those doors were opened. Not necessarily a good thing.
Above all, take care when you hire your experts. Get a complete curriculum vitae and grill them on it. Get references and check them out. Ask for any disclosures they’ve filed in federal court about their past experience. Ask up front if they have ever been disqualified as an expert and if so, what were the circumstances? The bigger the stakes, the more due diligence you need. The worst place to find out about your expert’s weaknesses are in a defense motion to exclude or a motion in limine.
Okay, now that I’ve got all that out of my system I feel a little better. Experts, I love you all, don’t ever change. Now, back to paying bills. And I was in such a good mood there for a minute.
One of the reasons I enjoy class actions and complex litigation is they force you to be disciplined. Take the simple task of organizing and interviewing percipient witnesses.
In individual cases, you have a list of witnesses, you interview or depose them as seems appropriate and it’s pretty much a simple process. In class actions, you need a system or things can get out of hand pretty quick.
One of my favorite parts of prosecuting a class action is getting a contact list for the potential (we call them “putative”) class members and conducting the initial interviews that tell me just what it is that I have on my plate.
Getting the list isn’t always a simple deal. In the wage and hour cases I’ve litigating during the past several years, I’ve seen both
extremes. Sometimes the defense will give up the list almost upon request. Usually this means they are feeling pretty good about their prospects. Sometimes, the defense fights tooth and nail, withholding the list until ordered by the court. Usually this means they are feeling insecure and then prepare for a bloody discovery battle.
We generally ask for a class list as soon as discovery opens and we ask in at least three different ways, which is further explained in this article on my website.
I. In Product Cases, Experts Are Being Challenged Like Never Before.
Product liability cases not only live and die by expert testimony, they often require that the trial attorney introduce cutting edge scientific and engineering testimony to prove liability, damages or both. This is especially true in matters such as defective drug cases, where the evidence that a product is unsafe may lie in the hands of a limited group of specialized researchers.
Yet, where new or emerging scientific evidence is employed in courtrooms, judges are charged by statute and decisional law as the gatekeepers who will determine what expert testimony ultimately reaches the trier of fact. Obviously, being in a position to convince the gatekeeper to open the gate is critical in meeting the plaintiff’s burden at trial.
Most practitioners are familiar with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), in which the U.S. Supreme Court announced tightened standards for District Court judges performing their gatekeeper roles. Most are also aware that early last year, the high court added some flexibility to its Daubert test in Kumho Tire Co., Ltd. v. Patrick Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999), while at the same time affirming that Daubert principles apply to engineering experts as well as scientists. Many also know that in February of this year, the Supreme Court held a federal appeals court may make its own determination that a key expert does not meet the Daubert/Kumho Tire reliability standard and then instruct the trial court to enter judgment against that party without any further proceedings. Weisgram v. Marley Co., ___ U.S. ___, 120 S.Ct. 1011 (2000).
Even so, evaluating applicable gatekeeping rules doesn’t end with acknowledging Daubert/Kumho Tire since, in California, the rules vary depending upon whether you are litigating in state or federal court.
In 1994, our Supreme Court in People v. Leahy, 8 Cal.4th 587, 604, 34 Cal.Rptr.2d 663 (1994) held that the time-honored Kelly/Frye rule 1/ survived Daubert as the standard for “evidence based upon application of a new scientific technique” in state court, then reaffirmed that holding twice in the past two years. People v. Soto, 21 Cal.4th 512, 518, 88 Cal.Rptr.2d 34 (1999); People v. Venegas, 18 Cal.4th 47, 76, 74 Cal.Rptr.2d 262 (1998) (“Venegas”).
Meanwhile, this past February, the Ninth Circuit limited the application of Daubert/Kumho Tire, declining to extend either U.S. Supreme Court gatekeeping case to certain types of expert testimony. U.S. v. Hankey, 203 F.3d 1160, 1167-1168 (9th Cir. 2000) (“The Daubert factors were not intended to be exhaustive nor to apply in every case.”)
The upshot of all this is that for the practitioner pursuing a product liability case, paying attention to precisely what gatekeeping rules apply in which forum becomes critically important. It also means that you can expect your expert technical evidence will be scrutinized at the trial court level like never before.
The rationale for tweaking expert evidence standards is that the system requires some check on reliability of expert testimony. “The objective of [the Daubert requirement] is to ensure the reliability and relevancy of expert testimony.” Kumho Tire, supra, 119 S.Ct. at 1176. “The Kelly test is intended to forestall the jury’s uncritical acceptance of scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate.” Venegas, supra, 18 Cal.4th at 80, 74 Cal.Rptr.2d 262.
It follows that in any product liability action, a consumer lawyer must adopt a sword and shield approach.
Fashioning a shield simply requires anticipating expert challenges and preparing to ward off a Daubert attack from the inception of your case. Wielding a sword, on the other hand, contemplates actively attacking defense expert evidence using the same reliability standards that defense counsel employ.
In other words, a canny consumer attorney forearmed with the right evidence is in a position to not only protect their own experts from exclusion orders, but along the way to educate the court regarding the weaknesses in the defense’s expert case prior to trial. In a highly technical battle, an educated court can make a significant difference in reaching a final, just result.
“Be yourself!” the trial gurus admonish when we ask the best way to present our cases. It’s easily the best advice an advocate can get. It’s also more easily said than done.
Today, being myself means telling you about a book titled Jam Today.
Jam Today has some darned good recipes, but where it connects with this column is in how Tod takes the “be yourself” mantra and translates it into practical terms just about anyone (even lawyers) can comprehend. She explains:
The title (Jam Today) comes from Lewis Carroll’s Alice book, Through the Looking Glass. Maybe you remember Alice’s exchange with the Queen? Where the Queen says, “The rule is, jam tomorrow and jam yesterday – but never jam today.”
And Alice objects, “It must come sometimes to ‘jam today.’”
Well I, along with Alice, object. Why is it always jam yesterday and jam tomorrow, but never jam today?
So the Jam Today cookbook is not really a cookbook, not really a memoir – it’s an answer to the Queen.”
The Queen desperately needs an answer, too. I can’t tell you how many times I’ve listened to lawyers moan about how they’ll never be a Gary Dordick or a Jack Denove or Mark Robinson or Wylie Aitken or whomever in the courtroom. That’s Lewis Carroll’s Queen talking about jam yesterday or tomorrow. It’s lost opportunity and wishful dreaming.
Jam today, Davies argues, is a simpler, happier state of mind: “It’s about cooking with what you’ve got, for pleasure, and for happiness and that of the people around you.”
Jam today, then, is shorthand for practicing living in the present. Living in the present, I would argue, allows us to better connect with those around us. Connecting, of course, is fundamental to the art of advocacy.
Davies spends her book explaining how she connects with herself and her loved ones through cooking. It reminds me a little bit of how two great trial lawyers – Gretchen Nelson and Christine Spagnoli – make an annual tradition of auctioning off their time preparing and serving a gourmet dinner, with the proceeds benefiting the Consumer Attorneys Public Education Fund.
As Davies observes in her book, “Meal preparation is not just a domestic act, but a political act as well. It’s a declaration of the importance of social happiness to the general well being.” If you know Gretchen and Christine even a little bit, you’ll agree that fixing and serving that annual meal is a direct reflection of their own personal commitment to the general well being. Also, there is a pair who knows more than a little about practical politics.
After reading Jam Today, I’ve come to conclude that, just like preparing a meal, preparing a case is a political act. In effect, with each case we file, we are saying, “This is a wrong that needs righting and justice benefits us all, individually and as a community.”
Also, I think reading Tod’s musings about her own struggle to live in the present is helping me begin to understand just why “being yourself” is such a key ingredient in the courtroom.
Trial guru David Ball and trial lawyer Don Keenan write that projecting artifice in court telegraphs you are keeping things hidden and is one of the surest ways of unsettling jurors. As Ball and Keenan point out in their new book, Reptile: The 2009 Manual of the Plaintiff’s Revolution (2009 Ballon Press), jurors distrust anything they sense is hidden, because the controlling portion of their brains, know at the reptilian brain or Reptile, perceives “hidden” as “dangerous.” Likewise, the juror’s reptilian brain distrusts anyone who hides anything.
Of course, actually letting yourself be yourself means uncovering who you really are as a human being and then becoming comfortable with that. It’s a tough thing for many of us to achieve. Some of us never will. All of us must try.