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Spring 2010 .Pub Newsletter Published Quarterly By The Defense Trial Counsel of West Virginia Spring 2010 Highlights President’s Column By Lee Murray Hall Howard Zinn writes that an optimist is a person who embraces the fact that the future is uncertain. The practice of law in West Virginia is filled with uncertainty, which tends to have a paralytic effect on many, if not most, defense attorneys. We see change in the growth of regional firms, the emergence of more boutique firms, the rebirth of the solo practitioner, new forms of mass litigation, increased appellate practice, Employment Law and a dynamic 2012 Supreme Court race. How do we translate the pa- Update ralysis that so often accompanies uncertainty into optimism? The optimism, teaches Zinn, lies in the promise that we can shape and design the future. DTCWV offers many opportunities to play a role Cross Examination in shaping defense practice in West Virginia. Are you interested in studying and commenting on West Virginia’s new appellate rules? DTCWV has formed a committee to dissect, com- pare and comment on the proposed rules and encourages you to join in our discussion. Would DRI Update you like to play a role in shaping jurisprudence at an appellate level? Call Jeff Holmstrand and help him draft an amicus brief on behalf of the Amicus Committee. Do you want to be the first to know about informational letters from our Insurance Commissioner? Join the In- Insurance Law Update surance Committee and you will receive an email about developments and rulings within the day, and sometimes within the hour, of their issuance. And perhaps no group takes as ener- getic a role in shaping our future as Erin Stankewicz and the Young Lawyers Committee. If ADA Amendments Act their energy is a barometer of their optimism, the future is very bright. Another bright spot is the record turnout at the Defense Trial Counsel Annual Meet- Tech Tip ing. Oglebay proved a terrific venue with lots of activities, but still plenty of opportunities to socialize (always a DTCWV priority). Our speakers were entertaining and informative. Our very own Steve Crislip talked with us about practical ethics from his perspective as general Young Lawyer Update counsel of Jackson Kelly, PLLC. Steve and I worked together on a bizarre legal professional case 16 years ago and I recall him saying then, “an attorney who is afraid to ask for help will do no end of harm.” This is just another reason to become active in DTCWV. Our substan- Calendar tive committees serve as a ready helpline. Where else can you find a group of people inter- ested in and ready to discuss your legal issues in your substantive area all the time? . President’s Column - cont’d. Speaker Stephen Morrison was a stroke of serendipity. Thank you to Marc Williams and Bob Massie for helping secure him as a last minute replacement. Morrison made me rethink my lifelong aversion to poetry as he taught us how to arm the “for you” juror with the facts they need to argue the case to the rest of the panel because “jurors like their own arguments best.” Geoffrey Oberhaus from Dinsmore & Shohl, LLP taught us that social media is the “go to” tool for most in-house counsel, which can be a good thing – or not so good….. We closed the program with a legend – a man whose Trial Notebook articles in Litigation Magazine have guided us through every aspect of trial practice for 35 years. We are so glad that we could offer a new generation of attorneys the opportu- nity see James McElhaney. We thank David Wyant, our past President, and Peggy Schultz for their excellent work in planning and executing a seam- less annual meeting. Dave Wyant has stepped down as the 28th president of DTCWV. His quiet leadership has earned the respect and admiration of the Board for ten years. We will build on his progress and look forward to his continued involvement as we grow our organization. We will also miss Lucien Lewin and Don Parker and as they rotate off of the Board. We thank them for their ser- vice and hope to see them return to the Board in the future. We have an active and expanding group of leaders as we welcome Teresa Dumire, Susan Snowden, and Mark Hayes to the Board. In addition, we are thrilled that Laurie Barbe has agreed to serve as secretary to the organization, making our current officers Gerry Stowers as Vice President, Mike Cimino as Treasurer, and Laurie Barbe as Secretary. I am honored to serve as the President for the 2010-2011 year. At the DTCWV Board meeting last week, we heard reports from our substantive committee chairs and look forward to their leadership in their committees. Rachel Moore, Brian Moore, Charlotte Hoffman Norris, Bernard Vallejos, Eric Hulett, Gerry Stowers and Jill McIntyre all gave detailed reports of their committee’s activities. We thank them for their attendance and involve- ment. I thank you for the opportunity to serve this organization and encourage you to join a committee, write an article, tell us about a victory, or let us learn from your defeat. We look forward to working with you as we shape a bright future for West Virginia attorneys and clients. Sincerely, Lee M. Hall Lee Murray Hall President Employment Law Update By Brian Moore, Dinsmore & Shohl, LLP The Employment Law Committee held its Spring meeting on April 15, 2010. Members attending in person and by video or telephone conference enjoyed a CLE program presented by members Susan Snowden and Carolyn Wade. Ms. Snowden presented on the Worker Adjustment Retraining Notification Act (WARN) and Ms. Wade presented a legislative update. Several committee members attended the DTCWV Annual Meeting at Oglebay. The Committee is a great way to interact with your fellow employment law practitioners. If you would like to become a member of the committee, please send an e-mail to our new Chairperson Charlotte Hoffman Norris at cah@farrell3.com.. I am sure that Charlotte will continue to lead the group through an active and beneficial year. P. O. Box 527, Charleston, WV 25322-0527 304-344-1611 304-344-4711 fax www.dtcwv.org Editor: Robert L. Massie Publisher: Peggy L. Schultz Page 2 Cross Examination of An Expert Witness - From a Defense Perspective By Gerard R. Stowers, Bowles Rice McDavid Graff & Love LLP From a defense perspective, the techniques and tips listed below may assist you in avoiding some of the common mistakes made by attorneys in cross-examining expert witnesses. While there is “some” dif- ference in how “defense” lawyers may conduct such an examination, as contrasted with a “plaintiff’s lawyer,” the difference is largely dependent upon: (1) personal preference, (2) style; and, (3) the circumstances of the individual case. As a general matter, a plaintiff’s lawyer may be expected to be more aggressive in the cross-examination than a defense lawyer, but hazards remain for any lawyer who is too aggressive with any witness, including ex- perts. Always Proceed With Caution Proceed with caution regarding the cross-examination of any expert. The expert is probably operating within his/her substantive field of expertise, while you are not. You are an expert in “cross-examination,” not the subject matter of the testimony. Therefore the “techniques” of “cross-examination” are your trump card, not the “substance” of the testimony. Ignore Rule Number One Simply because the expert is an expert in a “substantive” area, does not mean that you cannot become knowledgeable about the same subject matter. Whether the case involves a defective product, the appraisal of a piece of property, or the future value of a stream of future earnings, most of the substantive areas we encounter in trials do not involve rocket science. With Enough “preparation” you too can be conversant and knowledgeable about the subject matter. Prepare Preparation for your cross-examination should be your number one priority. You simply cannot prepare enough. I know that the economics of every case might limit this preparation. However, this is not to encourage you to take a hundred pages of notes to the lectern at the beginning of the cross, but you should be sufficiently prepared that you speak knowledgeably about the subject matter and the specific opinions that are being advanced by the expert. For example, Newton’s Third Law holds that “every action has a reaction equal in magnitude and opposite in direction.” Ask an accident reconstruction expert some time on cross if he can tell the jury Newton’s Third Law. This is a universal rule of physics. An expert cannot deny it, and you can be safe in stating it in open court, as if you know it to be true as well. It might also help your case. Speaking of Notes, Remember the Surgeon Would you be nervous, if right before the anesthesia, the surgeon was reading his notes, or placing the pages of notes about, at the foot of the operating table? While it is true that a surgeon should check his notes or chart before the surgery, during the surgery the surgeon is operating, not reading. You too should be “operating” but not from notes. You should know exactly where you are going with the cross-examination and not take your eyes away from the expert except for effect. Let the expert know, from your absence of notes, that you are prepared and know where you are going. Read Irving Younger’s Ten Commandments of Cross-Examination In 1975 Irving Younger recorded his famous set of cassette tapes about the Ten Commandments of Cross-Examination.
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