Breakthroughs, Insights and Strategic Thinking in Trial Practice

Trial Masters: Breakthroughs, Insights and Strategic Thinking in Trial Practice

October 17, 2017 Hilton Garden Inn, Freeport

CLE Credits: 5.0, including 1.0 ethics

This program has been approved for practice and procedure credit under Maine’s reciprocal admission rule. ------Maine State Bar Association Continuing Legal Education

Disclaimer

This CLE material is presented for educational purposes only. It is not and does not take the place of legal advice in any specific situation nor is it offered as such by the authors, speakers, the Maine State Bar Association (MSBA), or the MSBA CLE Committee. The material is intended to be timely as of the date written and/or originally presented. Due to the rapidly changing nature of the law, information contained in these materials or presented by the speakers may become outdated. It is the responsibility of any individual using or relying on these materials to confirm their timeliness. Finally, these materials are not intended to establish practice standards or standards of care applicable to an attorney’s performance.

8:50 WELCOME & INTRODUCTIONS Benjamin R. Gideon, Esq., Berman & Simmons PA, Lewiston 9:00 SUMMARY JUDGMENT ALERT: HOW TO LOSE A CASE WITH A STATEMENT OF MATERIAL FACTS (AND HOW NOT TO) Nolan Reichl, Esq., Pierce Atwood LLP, Portland 9:30 ART OF THE OPENING: WHAT TRIAL LAWYERS CAN LEARN FROM THEIR CLIENTS Karen Frink Wolf, Esq., Verrill Dana LLP, Portland 10:00 BREAK 10:15 THE POWER OF VISUAL COMMUNICATION: DON’T JUST TELL THE STORY—SHOW THE STORY Benjamin R. Gideon, Esq., Berman & Simmons PA, Lewiston

10:45 CONFRONTING COMMON JUROR MYTHS: INSURANCE, COLLATERAL SOURCES, AND OTHERS Hon. M. Michaela Murphy, Capital Judicial Center, Augusta

11:15 THE HUMAN ELEMENT OF TRIAL WORK, OR EVERYTHING I KNOW ABOUT BEING A TRIAL LAWYER I LEARNED AT SUMMER CAMP Daniel Rapaport, Esq., PretiFlaherty, Portland 11:45 LUNCH (INCLUDED)

12:30 YOU DON’T GET BONUS POINTS FOR REPETITION: HOW TO EFFECTIVELY ARGUE PRE-TRIAL MOTIONS Jennifer A.W. Rush, Esq., Norman Hanson & DeTroy LLC, Portland

1:00 CASE DEVELOPMENT: FINDING THE CORE TRUTH AT THE HEART OF EVERY CASE Travis M. Brennan, Esq., Berman & Simmons PA, Lewiston

1:30 BREAKING WITH CONVENTIONAL WISDOM OF CLOSINGS: DON’TS THAT WORK AND DO’S THAT DON’T Melissa A. Hewey, Esq., Drummond Woodsum, Portland 2:00 ETHICAL ISSUES CONFRONTING ATTORNEYS IN MODERN AMERICA: SOCIAL MEDIA AND BEYOND • Social Media • Client-related matters • Juror-related matters • Judicial Contact • Communication with unrepresented persons—criminal and civil • Personal opinions in opening and closing statements • Taping phone calls • Representing clients in the marijuana business Hon. Joseph M. Jabar, Capital Judicial Center, Augusta

3:00 PROGRAM ADJOURNS

3:30 - 4:30 NETWORKING RECEPTION Join your colleagues after the program for a networking reception at Benjamin Gideon’s home at 37 South Freeport Rd. Mr. Gideon’s home is approximately five minutes from the Hilton Garden Inn. TABLE OF CONTENTS ------CHAPTER ONE: SUMMARY JUDGMENT ALERT: HOW TO LOSE A CASE WITH A STATEMENT OF MATERIAL FACTS (AND HOW NOT TO) Powerpoint Presentation...... 1-2 Note Pages...... 1-10 Nolan Reichl, Esq.

CHAPTER TWO: SUMMARY JUDGMENT ALERT: HOW TO LOSE A CASE WITH A STATEMENT OF MATERIAL FACTS (AND HOW NOT TO) Overview...... 2-1 Powerpoint Presentation...... 2-2 Note Pages...... 2-7 Karen Frink Wolf, Esq.

CHAPTER THREE: THE POWER OF VISUAL COMMUNICATION: DON’T JUST TELL THE STORY—SHOW THE STORY No written materials for this chapter. Note Pages...... 3-2 Benjamin R. Gideon, Esq.

CHAPTER FOUR: CONFRONTING COMMON JUROR MYTHS: INSURANCE, COLLATERAL SOURCES, AND OTHER Reinvigorating and Enhancing Jury Trials Through and Overdue Juror Bill of Rights: A Federal Trial Judge’s View...... 4-2 A Fresh Look at Jurors Questioning Witnesses: A Review of Eighth Circuit and Iowa Appellate Precedents and an Empirical Analysis of Federal and State Trial Judges and Trial Lawyers...... 4-46 Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions...... 4-95 Note Pages...... 4-119 Hon. M. Michaela Murphy

CHAPTER FIVE: THE HUMAN ELEMENT OF TRIAL WORK, OR EVERYTHING I KNOW ABOUT BEING A TRIAL LAWYER I LEARNED AT SUMMER CAMP No written materials for this chapter. Note Pages...... 5-2 Daniel Rapaport, Esq.

CHAPTER SIX: YOU DON’T GET BONUS POINTS FOR REPETITION: HOW TO EFFECTIVELY ARGUE PRE-TRIAL MOTIONS Powerpoint Presentation...... 6-2 Note Pages...... 6-8 Jennifer A.W. Rush, Esq.

CHAPTER SEVEN: CASE DEVELOPMENT: FINDING THE CORE TRUTH AT THE HEART OF EVERY CASE Core Truths Overview...... 7-1 Core Truths: Lessons Learned in the Blueberry Fields Down East...... 7-2 Note Pages...... 7-4 Travis M. Brennan, Esq. CHAPTER EIGHT: CLOSING ARGUMENTS: DON’TS THAT WORK AND DO’S THAT DON’T Introduction...... 8-1 The Speaker...... 8-1 The Audience...... 8-2 The Message...... 8-3 Conclusion...... 8-3 Note Pages...... 8-4 Melissa A. Hewey, Esq.

CHAPTER NINE: ETHICAL ISSUES CONFRONTING ATTORNEYS IN MODERN AMERICA: SOCIAL MEDIA AND BEYOND No written materials for this chapter. Note Pages...... 9-2 Hon. Joseph M. Jabar FACULTY------BIOGRAPHICAL INFORMATION - Benjamin R. Gideon, Esq. Benjamin R. Gideon, School Law Yale The of graduate a is He Simmons. & Berman of firm law trial the in partner a is Gideon Attorney state-wide a has He Circuit. First Appeals, of Court U.S. Lipez, V. Kermit Honorable the to clerk law former a and trial practice representing plaintiffs in nursing home negligence, product civil liability, rights Ben and 2014, In personal Courts. injury Federal and State both in juries and judges before cases tried successfully has He matters. - amputa on behalf of the a utility lineman State Court who suffered obtained a $22.5 million verdict in Vermont tions of both of his legs following a high-voltage power accident. At the time, this was the second highest jury verdict in Ben Vermont history. has successfully represented clients against nursing homes, major automobile and other product manufacturers, utility companies, hospitals and other corporate and insurance company de- in Maine and around the country on trial practice. fendants. He is a frequent speaker Esq. A. Hewey, Melissa on practice her focuses She Woodsum. Drummond at Group, Services Trial the of member a is Hewey Attorney insurance defense, school law, higher education law, employment matters, and general commercial litigation. She appears regularly before state and federal courts in Maine and New Hampshire as well as administrative agencies such as the Maine Human Rights Commission and New provides Hampshire training to Department public and of private entities Labor. Melissa throughout Maine and New Hampshire on a wide range ics of including - top sexual harassment, affirmative action, diversity and investigation technologies.selected Melissabeen has She has been Society. Honorary Lawyer Trial America’s of Counsel Litigation the in Fellow a as elected for inclusion in Best America Lawyers for in over ten years in the categories of Employment Law-Management, Labor Education and Law, Employment Litigation, Municipal Litigation and Commercial Litigation. In 2014, Me- the of Lawyer Best Maine’s named was she 2012 in and Year the of Lawyer Education Maine’s named was lissa in the category of Employment Law-Management. Melissa has also been selected by New England Super Year Lawyers as one of the top 100 lawyers and Benchmark Litigation has recognized Melissa as a Litigation Star in in inclusion for selected been also has She nationwide. Litigation in Women 250 Top the of one as well as Maine listed is she addition, In category. Law Employment and Labor the in Edition Counsel Corporate Lawyers Super in Chambers USA, an independent guide to the top lawyers in the U.S., under the categories Defense of and Employment Commercial Litigation. She is also the first woman in the State of Lawyers. MaineTrial American College of to be inducted into the Honorable Joseph M. Jabar Hon. Joseph Jabar is a graduate of Colby College and the University Following of gradu Maine School of Law. Travis M. Brennan, Esq. Brennan, M. Travis Attorney Brennan practices at the firm of BermanBowdoin College and his law Simmons. & degree from the University of Maine received He School of Following Law. law school, Travis his undergraduate cases handling on focuses practice Travis’ Court. degree from Judicial Supreme Maine the on Levy D. Jon Judge for clerked complex with clients represented has He products. defective and injury, personal malpractice, medical involving medical malpractice claims involving surgical errors, worker farm misdiagnosis, a of and behalf on delayed court in diagnosis, prevailed recently as He collisions. vehicle well motor involving as claims injury serious personal The verdict working who nearly died from conditions that caused him to develop of 108. a core body temperature exceeded $729,000. Honorable M. Michaela Murphy County Kennebec in primarily presides She 2007. since justice Court Superior a been has Murphy Michaela Hon. but is also assigned to the Business and Consumer Court, which handles graduate complex of A civil litigation. Justice Murphy began practicing University of California at Berkeley and the University of Maine School of Law, law in 1983 as a public defender in Montana. She has also prosecuted criminal cases Augusta. in In 1991 she joined a general practice in Waterville, where she specialized in criminal (primarily homicide) defense. Justice Murphy is a former president of the Maine Association of Criminal Defense Committee. Maine Board of Bar Overseers, and is the Co-Chair of the Judicial Education Lawyers, and has served on the ation Justice Jabar served as a federal prosecutor for the Criminal Division Attorney for Kennebec-Somerset coun- Tax DC. He returned to Maine and served four years as District of Washington the Justice Department in years these During Murphy. and Ringer Batten Jabar, of firm the of member a was he years twenty-five For ties. he served two Governors as Chair of the Executive Clemency Board, he served as a Workers Compensation and served Commissioner, two terms as a State Representative. He was Chairman of the Juvenile Code Revi- Lawyers Trial sion Commission in 1977 and 1978. He has also served on the Board of Governors for the Maine Association. He was appointed to the bench State in the and Committee, 2001 Courts the and and Media has Commission, Advisory served Law on Criminal Commission, Advisory several committees Law including Family Sentencing and Corrections Council. He was appointed to the Superior Court in 2001 Angus by King Governor Gover- by Court Supreme Maine the to appointed was He 2008. in Baldacci John Governor by reappointed and nor Baldacci on September 1, 2009. RED = OK’D = RED Justice Murphy Daniel Rapaport, Esq. Attorney Rapaport is an experienced litigator with substantial trial experience. He practices primarily in the areas of personal injury, medical malpractice defense, and insurance defense. Dan is from Sharon, MA, and graduated Phi Beta Kappa from Colby College. He earned his J.D. at Cornell University in 1978 and joined Preti Flaherty the same year. He is a member of the Maine, Massachusetts and American bar associations and the Maine State Bar Asso- ciation’s Insurance Section. He is a member of the Defense Research and Trial Lawyers Association. Dan is listed in Woodward/White’s The Best Lawyers in America in three practice areas: Medical Malpractice Law, Personal In- jury Law and Antitrust Dispute Resolution. Dan has represented hospitals, nursing homes and other long-term care facilities for almost 30 years and has tried many cases for these entities. Dan is also recognized in the Chambers USA Guide to America’s Leading Business Lawyers and in the New England Super Lawyers Magazine.

Nolan Reichl, Esq. Attorney Reichl is a partner in Pierce Atwood’s Litigation Practice Group, where he focuses his practice on civil litigation and appellate matters, including commercial disputes and challenges to administrative actions. Nolan repre- sents institutional clients in a range of industries, and has represented some of the largest institutions in the United States and Maine, including Central Maine Power Company, J.P. Morgan, Verso Corporation, Bank of America, and Eli Lilly and Company. As part of his practice, Nolan focuses on e-discovery law and technology, and has as- sisted numerous clients with matters that have posed significant legal and technological challenges with respect to document collection, review, and production. Nolan regularly appears in state and federal trial courts, and also has argued and won cases before the Maine Supreme Judicial Court and the United States Court of Appeals for the First Circuit. Nolan is admitted to practice before the United States Supreme Court, where he co-authored an amicus brief for the landmark case of United States v. Windsor. Nolan is a member of Pierce Atwood’s Pro Bono Commit- tee, and is dedicated to providing legal work for the public good. Nolan joined Pierce Atwood in 2011 after working for several years as a litigator in the New York office of the multinational law firm Covington & Burling. There, Nolan represented Fortune 500 and other institutional clients in securities actions and other complex matters. Before joining Covington, Nolan served as a law clerk to Marjorie O. Rendell of the United States Court of Appeals for the Third Circuit. Prior to his legal career, Nolan served as a member of the senior staff of Pennsylvania Governor Edward G. Rendell and as a staff person for the Democratic National Committee and the 2000 Gore campaign.

Jennifer A.W. Rush, Esq. Attorney Rush has been with Norman Handson DeTroy since 2004, her practice focuses on the defense of medical malpractice claims, licensure complaints, and personal injury cases. Jennifer’s medical and legal research and writ- ing skills have enabled her to successfully defend hard-to-win cases litigated before Maine’s medical malpractice Prelitigation Screening Panel, various Boards of Licensure, and in Maine’s Superior Court. She has obtained im- pressive results for Norman Hanson DeTroy’s clients in difficult cases pending in the Law Court, the United States District Court of Maine, and the First Circuit Court of Appeals. Following graduation with high honors from the Uni- versity of Maine School of Law, Jennifer served as Law Clerk to Justice Clifford of the Maine Supreme Judicial Court for one year prior to joining Norman Hanson Detroy.

Karen Frink Wolf, Esquire Attorney Wolf is the chair of the Professional Liability Practice Group at Verrill Dana, LLP. Ms. Wolf is chairperson of the First Circuit Advisory Committee on Rules, chairperson of the Federal Practice Section of the Maine State Bar Association, and is a member of the Maine Civil Rules Advisory Committee. Karen was inducted as a fellow of the American College of Trial Lawyers in 2012, has been honored in Chambers, America’s Leading Lawyers in the litigation category since 2007, is recognized in Best Lawyers and is the 2014 Portland Malpractice Defense Lawyer of the Year, is a Litigation Star in the Benchmark Litigation Guide to America’s Leading Litigation Firms and Attorneys, is one of Benchmark’s “Top 250 Women in Litigation,” is listed among the Top 50 Women in New England Super Lawyers, and was a 2010 finalist for Lawdragon’s 500 Leading Lawyers in America. She is a 1982 Phi Beta Kappa graduate of the University of New Hampshire and a 1985 graduate of Syracuse University College of Law. Prior to her law career, she was a legislative intern for the late U.S. Senator Warren Rudman. Ms. Wolf is a four-time recipient of the Pro Bono Publico Award for her representation of low-income family law litigants through the Volunteer Lawyers Project.