Trials and Tribulations

Spring 2009

TM The newsletter of the DRI Trial Tactics Committee

In This Issue…

Asserting Contrary Policy Argu- Asserting Contrary Policy ments in “Public Policy” Liti- gation...... 1 Arguments in “Public Poli- Trial Tactics Committee Leader- ship...... 2 From the Chair and Vice Chair: cy” Litigation Helping the Defense Lawyer Michael J. Mazzone and Kelli Ste- public policies contrary to the plaintiffs’ Explore and Perfect Skills...... 6 phenson views. In others, defendants have failed From the Publications Vice to assert truly contrary policy argu- Chair: In the last decade or so, lawyers and ments. In still other cases, the plaintiffs’ Fresh and Helpful Topics...... 6 others have tried to make public policy public policy agenda is not always clear. Innovative Voir Dire Techniques through litigation. With tort lawsuits Although asserting a contrary policy for Defense Counsel...... 10 about tobacco, guns, fast food, and argument is not without risk, defense Handling Witnesses with Prior carbon dioxide emissions, among other lawyers should, in every case in which Convictions for Crimen Falsi.....15 things, many are using the courtroom they suspect a policy agenda, identify Preparing Your Client for a De- in an attempt to create rules that these the particular public policy trying to position: Practical Tips and self-appointed policymakers have deter- be created and then consult with their Essential Rules ...... 19 mined are good and necessary. Defense clients about identifying and asserting The Emergency Room Doctor lawyers representing industry in these contrary policy arguments – in addition Witness...... 23 cases are faced with a somewhat dif- to asserting the relevant legal arguments. The Top Ten Ways to Ruin Your ficult choice: to assert, or not, a public This may take the moral “high ground” Closing Argument...... 25 policy argument that is contrary to the from plaintiffs and help persuade courts plaintiff’s policy agenda. In some cases, that the creation of public policy is for defendants have succeeded by asserting the legislative branch of government, not the judicial branch. Michael J. Mazzone ([email protected]) is a partner in Haynes & Boone, L.L.P. (www.haynesboone.com). Mr. Mazzone is in the firm’s Houston, Tex- as office. He represents energy companies in contamination, toxic tort, and indemnity cases. He also represents parties in construction litigation and arbitration. Kelli Stephenson ([email protected]) is a third-year law student at the American University Washington College of Law. She will join the Houston office of Haynes and Boone, L.L.P. as an Associate in the Fall of 2009. She is currently the Asso- ciate Executive Editor of the American University International Law Review. ©2009 DRI. All rights reserved. continued on page 7 Trial Tactics Committee Leadership

Chair Program Chairs (317) 567-2222 West Sidney Kanazawa (317) 567-2220 – fax Sidney Kanazawa Complex Medicine McGuire Woods [email protected] McGuire Woods TBD 1800 Century Park E 1800 Century Park E Web Page Chair 8th Floor 8th Floor Vice Chair Jonathan Judge Los Angeles, CA 90067 Los Angeles, CA 90067 Denise M. Smith Schiff Hardin (310) 315-8238 (310) 315-8238 Ulmer & Berne LLP 6600 Sears Tower (310) 315-8210 – fax (310) 315-8210 – fax 600 Vine Street, Suite 2800 Chicago, IL 60606-6473 skanazawa@mcguirewoods. skanazawa@mcguirewoods. Cincinnati, OH 45202-2409 (312) 258-5500 com com (513) 698-5054 (312) 258-5600 [fax] Vice Chair (513) 698-5055 – fax [email protected] Commmittee Liasion to Tammy J. Meyer [email protected] Young Lawyer Committee Vice Chair Lewis, Wagner LLP James L. Pattillo Chair Damages 2009 Fred Goldsmith 501 Indiana Avenue, Suite 200 Norman, Wood, Kendrick Chris Bottcher Goldsmith & Ogrodowski Indianapolis, IN 46202 505 20th Street North, Suite Sirote & Permutt, P.C. 247 Fort Pitt Blvd., 4th Fl. (317) 237-0500 1600 2311 Highland Avenue Pittsburgh, PA 15222 (317) 630-2790 – fax Birmingham, AL 35203 Birmingham, AL 35205 (412) 281-4340 [email protected] (205) 328-6643 (205) 930-5100 (412) 281-4347 [fax] (205) 251-5479 – fax Membership/ Marketing (205) 930-5101 [email protected] [email protected] Chair [email protected] E-Discovery Liaison Chris Bottcher Vice Chair Vice-Chair Damages 2009 Lee A. Ayres Sirote & Permutt, P.C. Kyle Lansbury Robin Pittman Cook, Yancey, King & Gal- 2311 Highland Avenue Lewis Wagner, LLP Baldwin Haspel Burke loway Birmingham, AL 35205 501 Indiana Avenue, Suite 1100 Poydras St., Ste. 2200 333 Texas St, Ste 1700 (205) 930-5100 200 New Orleans, LA 70163- Shreveport, LA 71120-2260 (205) 930-5101 – fax Indianapolis, IN 46202 2200 (318) 227-7733 [email protected] (317) 237-0500 (504) 585-7711 (318) 227-7850 – fax (317) 630-2790 – fax Publications Chair (504) 585-7751 [fax] [email protected] [email protected] John C.S. Pierce pittman@baldwinhaspel. Vice Chair Butler Pappas, P.C. com Young Lawyer Liaison Michelle Cauley Post Office Box 16328 Robert B. Stock State Liaison Chair Mitchell Williams Mobile, Alabama 36616 Vogel Law Firm Lee Ayres 425 West Capitol, Suite 1800 (251) 338-3801 218 NP Avenue Ayres Warren Shelton Little Rock, AR 72201 (251) 338-3805 PO Box 1389 333 Texas St., Ste. 1400 (501) 688-8800 [email protected] Fargo, ND 58107-1389 Shreveport, LA 71101 (501) 688-8807 – fax (701) 356-6316 (318) 227-3500 [email protected] (701) 237-0847 [fax] Vice Chair (318) 673-8462 [fax] Public Relations Contacts [email protected] Jonathan S. Hickey [email protected] Burden Gulisano & Hickey East Vice Liaison 403 Main St., Ste. 320 Diversity Liaison Maria Ruiz Jeffrey D. Bradford Buffalo, NY 14203 Renee Little Clarke Silverglate & Campbell, P.A. Ellis & Winters LLP (716) 849-6800 Carlock Copeland & Stair 799 Brickell Plaza, Suite 900 1100 Crescent Green Dr., (716) 849-6806 [fax] 285 Peachtree Ctr. Ave., Ste. Miami, FL 33131 Ste. 200 [email protected] 2600 (305) 347-3120 Cary, NC 27518 Atlanta, GA 30303-1235 (305) 377-3001 [fax] (919) 865-7092 (404) 221-2235 [email protected] (919) 865-7010 [fax] (404) 523-2345 [fax] jeff.bradford@elliswinters. Central [email protected] com Tammy J. Meyer Vice Chair Lewis, Wagner LLP Doris L. Sweetin 501 Indiana Avenue, Suite 200 Tyra Sweetin & Bleeke, P.C. Indianapolis, IN 46202 8470 Allison Pointe Boule- (317) 237-0500 vard, Suite 420 (317) 630-2790 – fax Indianapolis, IN 46250-4365 [email protected]  Trials and Tribulations Spring 2009 Electronic Discovery / Technology Steering Committee Esther Holm Liaison Chair Margaret Fonshell Ward (Peggy) Lewis Brisbois Bisgaard Esther Holm Moore & Jackson 650 Town Center Drive Lewis Brisbois Bisgaard & Smith LLP 305 Washington Avenue, Suite 401 Suite 1400 650 Town Center Drive Baltimore, MD 21204 Costa Mesa, CA 92626-1925 Suite 1400 (410) 583-5241 (714) 668-5510 Costa Mesa, CA 92626-1925 (410) 583-7519 – fax (714) 850-1030 – fax (714) 668-5510 [email protected] [email protected] (714) 850-1030 [fax] [email protected] Lynn M. Roberson Kevin C. Schiferl Swift, Currie, McGhee Vice Chair Locke Reynolds 1355 Peachtree St. N.E., Suite 300 Esther Holm 201 N Illinois St. Atlanta, GA 30309-3238 Lewis Brisbois Bisgaard & Smith LLP Indianapolis, IN 46204 (404) 888-6146 650 Town Center Drive (317) 237-3819 (404) 888-6199 – fax Suite 1400 (317) 237-3900 – fax [email protected] Costa Mesa, CA 92626-1925 [email protected] (714) 668-5510 Rodney L. Umberger, Jr. (714) 850-1030 [fax] Thomas R. Schultz Williams, Kastner & Gibbs [email protected] Schultz & Pogue 601 Union Street, Suite 4100 520 Indiana Avenue Expert Witness Database Liaison Seattle, WA 98101 Indianapolis, IN 46202 Evan Nelson (206) 628-2421 (317) 569-2570 Tucker Ellis & West (206) 628-6611 – fax (317) 262-9000 – fax 135 Main St., Ste. 700 [email protected] [email protected] San Francisco, CA 94105 (415) 617-2400 Fredrick Baer. Goldsmith Kerry P. McInerney (415) 617-2409 [fax] Goldsmith & Ogrodowski, LLC Sirote & Permutt evancnelson@comcast.net 247 Fort Pitt Boulevard, 45h Floor 2311 Highland Avenue South Pittsburgh, PA 15222 Legislative/Rulemaking Liaison Birmingham, AL 35205 (412) 281-4340 TBD (205) 930-5388 (412) 281-4347 – fax (205) 930-5101 – fax [email protected] Annual Meeting Chair 2009 [email protected] Guy E. Hughes Sherri K. McElroy Woodward, Hobson & Fulton, LLP Daniel J. Arnett Sedgwick, Detert, Moran & Arnold 200 West Vine Street, Fifth Floor Tribler Orpett Meyer One Embarcadero Ctr., 16th Floor PO Box 1720 225 W. Washington St. Ste 1300 San Francisco, CA 94111-3765 Lexington, KY 40588-1720 Chicago, IL 60606 (415) 781-7900 (859) 244-7117 (312) 201-6446 (415) 781-2635 – fax (859) 244-7111 [fax] (312) 201-6401 – fax [email protected] [email protected] [email protected] Vice Chairs Roy A. Nowell, Jr. Richard B. Collins Maria Ruiz Copeland, Cook, Taylor & Bush, P.A. The Collins Firm Clarke Silverglate & Campbell, P.A. 1062 Highland Colony Parkway, Ste 200 2804 Remington Green Circle, Suite. 799 Brickell Plaza, Suite 900 PO Box 6020 4 Miami, FL 33131 Ridgeland, MS 39158 Tallahasse, FL 32309 (305) 347-3120 (601) 856-7200 (850) 386-8160 (305) 377-3001 [fax] (610) 856-7626 – fax (850) 386-6062 – fax [email protected] [email protected] [email protected] John Morrow Burr & Forman George E. Lieberman Robert T. Veon 420 N. 20th St., Ste. 3400 Vetter & White Veon & England Birmingham, AL 35203-5206 20 Washington Place 117 East Broad Street (205) 251-3000 Providence, RI 02903 Texarkana, AR 71854 (205) 244-5740 [fax] (401) 421-3060, ext. 112 (870) 774-7390 [email protected] (401) 272-6803 – fax (870) 773-3690 – fax [email protected] [email protected]

Spring 2009 Trials and Tribulations  Larry D. Langley Tiffany Reece Clark Board Liaison Law Offices of Larry D. Langley Ulmer & Berne LLP Patrick J. Sweeney 8170 North 86th Place, Suite 202 600 Vine Street, Suite 2800 Sweeney & Sheehan Scottsdale, AZ 85258 Cincinnati, OH 45202-2409 1515 Market St., 19th Fl. (480) 609-9616 (513) 698-5028 Philadelphia, PA 19102-1983 (480) 609-9620 – fax (513) 698-5029 – fax Tel: (215) 563-9811 [email protected] [email protected] Fax: (215) 557-0999 [email protected] Clarence T. Gutherie, III Guy E. Hughes Phelps Dunbar Woodward, Hobson & Fulton, LLP 111 E. Capitol St. Ste 600 200 West Vine Street, Fifth Floor Chair Preeminent Trial Lawyers Jackson, MS 39225 P.O. Box 1720 TBD (601) 360-9743 Lexington, KY 40588-1720 (601) 360-9777 – fax (859) 244-7117 Planning Committee, Preeminent [email protected] (859) 244-7111 – fax Trial Lawyers 2009 [email protected] State Liaison Chair TBD Lee H. Ayers Monte Williams Cook, Yancey, King & Galloway, Steptoe & Johnson APLC 1085 Van Voorhis Road, Ste 400 333 Texas Street, Suite 1700 Morgantown, WV 26507-1616 Post Office Box 22260 (304) 598-8000 Shreveport, LA 71120-2260 (304) 598-8142 – fax (318) 227-7733 [email protected] (318) 227-7850 [fax] [email protected] Emily Turner Landry Baker, Donelson, Bearman, Charles H. Abbott 165 Madison Avenue, Ste 2000 Abbott, Simses & Kuchler Memphis, TN 38103 400 Lafayette Street (901) 577-2261 Suite 200 (901) 577-0849 – fax New Orleans, LA 70130 [email protected] (504) 568-9393 (504) 524-1933-fax David J. Williams [email protected] Stoel Rives 201 South Main Street, Suite 1100 Rick D. Norris Salt Lake City, UT 84111 Lamar Miller 501 Riverchase (801) 578-6963 Parkway E.,Suite 100 [email protected] Birmingham, AL 35244 (205) 326-0000 (205) 323-2945 – fax Law Institute Liaisons- Damages [email protected] Seminar Mark A Solheim Jonathan Judge Larson King, LLP Schiff Hardin LLP 30 East Seventh St., Ste. 2800 6600 Sears Tower St. Paul, MN 55101 Chicago, IL 60606 (651) 312-6503 (312) 258-5500 (651) 312-6618 [fax] (312) 258-5600 – fax [email protected] [email protected]

Stephen L. Titzer Pyatt Silvestri Hanlon 701 Bridger Av. Ste 600 Las Vegas, NV 89101 (702) 383-6000 (702) 383-0088 – fax [email protected]  Trials and Tribulations Spring 2009 Europe Liaison Santiago Nadal Socoro & Auto Muntaner 454 Barcelona 08006 SPAIN 34 93 209-0765 34 93 414-4450 [email protected] Rod Freeman Lovells LLP 50 Holborn Viaduct London EC1A 2FG ENGLAND 44 207 296-5256 44 207 296-2001 [email protected]

Committe members are encouraged to submit articles for future issues of Trials and Tribulations. For more information, please contact Publications Chair John C.S. Pierce, (251) 338-3801 [email protected].

Spring 2009 Trials and Tribulations  From the Chair and Vice Chair Helping the Defense Lawyer Explore Sidney S. and Perfect Skills Kanazawa

lic Relations Chair - MidWest), Chris Liaison). Bottcher (Program Chair Damages There are many opportunities for mem- The Trial Tactics Committee is one of 2009, Webinar Chair), Robin Pittman bers to speak and write through our pro- DRI’s largest committees. This commit- (Program Vice Chair Damages 2009), grams and publications and we welcome tee is dedicated to helping the defense Doris Sweetin (Program Vice Chair everyone, from all diverse backgrounds, lawyer explore and perfect the skills Damages 2009, Membership Chair), to get involved with our committee, for required to excel as a trial lawyer, advo- Guy E. Hughes (Annual Meeting Chair example: cate, speaker and writer. The committee 2009), Maria Ruiz (Annual Meeting For The Defense September 2009 focuses on the critical tools you need to Vice Chair 2009, Public Relations Newsletter Trials and Tribula- sharpen your skills as an advocate, nego- Chair - East), John Pierce (Publications tions (monthly) tiator and communicator in all settings, Chair), Jonathan Hickey (Publications Seminars Damages, Belagio, Las whether at deposition, trial, mediation Vice Chair), Jonathan Judge (Web Page Vegas, Nevada, March 18-20, 2009 or oral argument. Chair), Frederick Goldsmith (Web Page The focus of the committee is to Vice Chair), Steve Pasarow (Webinar Chair reach out to all substantive areas of Vice Chair), Kyle Lansberry (Mem- Sidney K. Kanazawa DRI’s membership, to transfer those bership Vice Chair), Lee Ayers (State McGuireWoods LLP skills and knowledge that work well in Liaison Chair), Todd Millar (State Li- Los Angeles, California the courtroom to the myriad other areas aison Vice Chair), Eric J. Renee Little of defense law where the arts of effective (Diversity Liaison Chair), Abbey Scholl Vice Chair communication and persuasion can lead (Young Lawyer Committee Liaison Tammy J. Meyer to the successful resolution of disputes. Chair), Esther Holm (Electronic Dis- Lewis Wagner, LLP The efforts of the committee will be led covery/Technology Liaison Chair), and Indianapolis, Indiana by Tammy J. Meyer (Vice Chair, Pub- Evan Nelson (Expert Witness Database

From the Publications Vice Chair Fresh and Helpful Topics

There was no Holiday break for the lowing deadline for submission of our plan to attend The DRI Annual Meet- many active members of the Trial Tactics next newsletter: August 3, 2009 (Sum- ing in Chicago on October 7-11 and the Committee, that’s for sure! Opening mer edition). Also, July 20, 2009 is the Trial Tactics Committee meeting from 2009 with authority, this issue of Trial deadline for you to submit an article 3:30 to 5:30 on Thursday, October 8. and Tribulations is filled with fresh and for our dedicated For The Defense issue. Hope to see you all there! helpful topics that are well worth your With a readership and committee that Jonathan S. Hickey time. We cannot thank our authors is growing by the day, having an article enough for helping us assemble such a published is a wonderful way to meet strong and useful first edition this year. new folks and broaden your network. Of course, there is always more work Your work should be rewarded, of to do. With that, please note the fol- course! Please mark your calenders and

 Trials and Tribulations Spring 2009 Asserting Contrary Policy, from page 1

Hand Gun Litigation products. In the consolidated New cases were further complicated by state One of the best examples of identify- Jersey lead paint cases, the defendant statutes that eliminated the defenses of ing and asserting contrary policy argu- paint manufacturers argued that lead comparative fault and assumption of ments occurred in the litigation brought paint is only injurious in dwellings that risk, and the tobacco companies usually by several cities nationwide against have been poorly maintained by their fought these statutes rather than assert- gun manufacturers. The public policy owners and that lead paint, in and of ing that people should be free to use to- the cities sought to create: ban hand itself, is not harmful. (In re Lead Paint bacco. (See Defendants’ Memorandum guns. The most obvious policy argu- Litigation, No. MID-L-2754-01, 2002 in Opposition to Plaintiffs’ Motion for ment against this policy agenda is that WL 31474528, at *6 (N.J. Super. Ct. Judgment on the Pleadings, Minnesota people have an individual right to own Law Div. Nov. 4, 2002), rev’d, 2005 v. Philip Morris, 1995 WL 1937124 guns, which is enshrined in the Second WL 1994172 (N.J. Super. Ct. App. (Minn. Dist. Ct. May 19, 1995) (No. Amendment of the U.S. Constitution Div. Aug. 17,2005), rev’d, 924 A.2d 484 C1-94-8565), available at http://www. as the U. S. Supreme Court recently (N.J. 2007).) The trial court agreed library.ucsf.edu/tobacco/litigation/mn/ confirmed inDistrict of Columbia v. with the paint manufacturers, and al- 2mndefop.html). The tobacco litigation Heller, (128 S. Ct., 2783 (2008). In the though an appellate court reversed the brought by state governments ended Indiana “gun” case, that public policy decision, the New Jersey Supreme Court when the states and the tobacco com- argument was made. In City of Gary v. ultimately vindicated the paint manu- panies reached the Master Settlement Smith & Wesson Corp. (No. 45D05-005- facturers, finding that “plaintiffs ignore Agreement in 1998. (See National As- CT-243, 2001 WL 333111 (Ind. Super. the fact that the conduct that created sociation of Attorneys General, Master Jan. 11, 2001)), the gun manufacturers the health crisis is the conduct of the Settlement Agreement, http://www. asserted that “Indiana public policy sup- premises owner.” (924 A.2d at 501.) naag.org/backpages/naag/tobacco/ ports the lawful ownership and distribu- Similarly, the Rhode Island Supreme msa/msa-pdf/ (last visited October 11, tion of firearms.” (Memorandum in Court, in reversing the trial court’s order 2008).) Support of Manufacturer Defendants’ imposing abatement on lead paint man- New York’s highest court recently Motion to Dismiss, City of Gary, 2001 ufacturers, explained that expanding the identified – and rejected – plaintiffs’ WL 333111, 2000 WL 34017055.) law of public nuisance to product-based efforts to obtain a “judicial ban” on The Indiana Superior Court agreed and claims would allow a flood of claims for tobacco. In Adamo v. Brown & William- dismissed the case. (City of Gary, 2001 alleged harms of otherwise legal prod- son Tobacco Corp. (http://www.courts. WL 333111, at *5.) ucts. (State v. Lead Indus. Ass’n, 951 state.ny.us/ctapps/decisions/dec08/ A.2d 428, 454-55 (R.I. 2008) (quoting 205opn08.pdf), plaintiffs claimed that City of Chicago v. Beretta U.S.A.Corp., cigarette companies should have used Lead Paint Litigation 821 N.E.2d 1099 (Ill. 2005)).) lower levels of tar and nicotine in their In the lead paint cases, plaintiffs sought regular cigarettes, because lower levels to punish paint manufacturers for prod- Tobacco Litigation would make a “safer” cigarette. The ucts that they had placed into the stream court rejected the claim stating that “the Defendants do not always assert con- of commerce which, many years later, function of a cigarette is to give pleasure trary public policy arguments. For ex- were deemed to be harmful if misused. to a smoker. . . . Plaintiffs made no at- ample, in the tort cases against tobacco The policy sought to be created: “cradle tempt to prove that smokers find light companies, in which the plaintiffs ulti- to grave” responsibility for products. cigarettes as satisfying as regular ciga- mately wanted to make selling tobacco The contrary policy argument would rettes”. The court read plaintiffs’ claim illegal, the tobacco companies did not be that manufacturers of products that as a claim that all cigarettes should be assert the most obvious contrary policy are properly made and sold (at the time “light” cigarettes and an attempt to ban argument: that people should be free they are made and sold) should not be regular cigarettes. The court concluded, to use tobacco if they so choose. The punished for another’s misuse of those “it is still lawful for people to buy and

Spring 2009 Trials and Tribulations  smoke regular cigarettes. To hold . . . automobile manufacturers, coal com- ally make in “public policy” litigation. that every sale of regular cigarettes ex- panies, and others to eliminate carbon But, it leaves plaintiffs’ proposed public poses the manufacturer to tort liability dioxide emissions (which result from policy unchallenged. would amount to a judicial ban on the burning carbon). So far in these cases product. If regular cigarettes are to be defendants have not attempted to assert “Privacy” Litigation banned, that should be done by legisla- the contrary public policy: that indus- Plaintiff’s policy agenda may not always tive bodies, not by courts.” trialization is fueled by carbon, that be completely clear. Several privacy industrialization is the reason for our groups have sued telecoms like Verizon current high standard of living including Fast Food Litigation and AT&T for their cooperation with longer life spans, low infant mortality, In the obesity lawsuit against McDon- government officials requesting call and all of the other objective measures ald’s, where the policy agenda was to records to monitor terrorism suspects. of a healthy, wealthy society, and that, ban the sale of fast foods, McDonald’s In a recently passed amendment to the therefore, any policy that attempts to failed to fully assert a contrary public Foreign Intelligence Surveillance Act undermine our way of life should be policy argument. McDonald’s could (“FISA”), telecoms have been granted rejected. Moreover, the defendants in have asserted the argument that people immunity from such suits (FISA these “global warming policy” cases have are free to eat whatever they choose. Amendments Act of 2008, Pub. L. not even challenged the theory that hu- Instead, McDonald’s asserted a narrower No. 110-261, § 201, 122 Stat. 2436, man action is causing “global warming”. argument that it had no duty to warn 2467-70 (to be codified at 50 U.S.C. In Massachusetts v. EPA, for example, consumers about matters of common § 1855)). This has created a firestorm the EPA did not argue that the theory knowledge, such as eating too much can of protest among commentators on the of human-caused global warming was make you fat and be bad for your health. political Left who have reserved their without merit. Instead, it argued that it (Defendants’ Consolidated Opposition harshest commentary for the immunity was uncertain. (Brief for the Federal Re- to Plaintiffs’ Motion to Remand and to telecoms rather that the underlying spondent, Massachusetts v. EPA, 127 S. Reply in Support of Defendants’ Mo- conduct with which they disagree – al- Ct. 1438 (2007), 2006 WL 3043970.). tion to Dismiss, Pelman v. McDonald’s leged invasions of privacy. However, In fact, EPA virtually admitted that the Corp., 452 F. Supp. 2d 320 (S.D.N.Y. it is unclear what specific public policy theory was sound by not controverting 2006) (No. 02 Civ. 7821 (RWS)).) Al- activists seek to advance in this litiga- the affidavits given in support of Mas- though the court initially agreed with tion (is it to protect privacy? to protest sachusetts and its allies in the litigation. McDonald’s that it had no duty to warn the so-called “war on terror”? to indi- (127 S. Ct. at 1463). In California v. consumers (Pelman, 237 F. Supp. 2d rectly attack the Bush Administration?). General Motors, General Motors has 512), the case nevertheless went forward Verizon has aggressively asserted the argued simply that the issue of respon- on issues of deceptive advertising. (Pel- contrary public policy argument that its sibility for global warming is a nonjus- man, 452 F. Supp. 2d 320.) Of course, disclosure of call records was to protect ticiable political question best left to arguing that people should be free to eat Americans from harm, which it has the political branches of government to what they want will not help against any explicitly reserved the right to do in its answer. (Defendants’ Notice of Motion misrepresentations about the product. agreements with its customers. (Memo- and Motion to Dismiss Second Amend- randum in Support of Verizon’s Motion ed Complaint for Lack of Subject Mat- to Dismiss Plaintiffs’ Master Consoli- “Global Warming” Litigation ter Jurisdiction and for Failure to State dated Complaint, In re National Security Another example of defendants’ fail- a Claim Upon which Relief may be Agency Telecommunications Records Liti- ure to assert contrary public policy Granted, California v. General Motors, gation, 2007 WL 2127345 (N.D. Cal. arguments in the face of a clear policy 2007 WL 2726871 (N.D. Cal. Sept. Jul. 24, 2007) (No. 06-1791 VRW), agenda is the global warming litigation. 17, 2007) (No. C06-05755 MJJ), 2006 available at http://www.eff.org/files/file- Plaintiffs in these cases are, essentially, WL 3747438. This is a fine argument node/att/verizonmemmtd.pdf.) More- trying to ban fire by forcing oil and gas that should be made, and it is typical of over, throughout its brief, Verizon gave producers, electric power providers, the kind of arguments defendants usu-

 Trials and Tribulations Spring 2009 a narrative of the events of September lawyers should work with their clients to 11 and continually emphasized the need identify possible contrary policy argu- for the government to protect Ameri- ments. The identification of contrary cans from terrorism. As noted, the public policies may take the moral “high telecom cases are likely to be cut off by ground” away from plaintiffs and help the amendment to FISA, which grants persuade the court that the creation of retroactive immunity to the telephone public policy is for the legislature, not companies for their cooperation in the the courts. government’s wiretapping program. (Eric Lichtblau, Congress Strikes Deal to Overhaul Wiretap Law, N.Y. Times, June 20, 2008, http://www.nytimes. com/2008/06/20/washington/20fisa. html?hp.)

Conclusion If a party decides to assert a contrary policy, it needs to identify the correct contrary policy. How to do that is be- yond the scope of this paper. Do policy arguments really belong in cases? Policy arguments do not belong in cases, but without question plaintiffs are trying to create public policy with litigation. At the very least, the defense should suggest to the court that plaintiff’s policy ought not be adopted because there are con- trary policies that may be better public policies than the one plaintiff is trying to impose through litigation. The point is not: in policy cases, let’s get the court to make policy – a policy suggested by the defense. Instead, the point is: the defense needs to persuade the court not to make policy, and suggesting other policies that may be better than the one plaintiff seeks to impose may be reason enough to not adopt plaintiff’s public policy. The increasing use of litigation to create public policy poses challenges to industries sued in these cases. Defense lawyers should recognize these cases and identify the public policies sought to be created by them. Additionally, defense

Spring 2009 Trials and Tribulations  Innovative Voir Dire Techniques for De- fense Counsel Kevin M. Reynolds allows you to “bank” your peremptory seemingly “defensible” cases that, for “As long as I’m counting the votes, what challenges that you may to use later to some reason, “went south” and result in are you going to do about it?” strike “borderline” jurors. a tremendously surprising large adverse William M. “Boss” verdict. I would posit that in more cases Tweed, Tammany Hall FORM OVER SUBSTANCE? than not, the cause of such a surprise was inadequate or ineffective jury selec- Although the substantive purpose for tion, which allowed a “poison apple” INTRODUCTION voir dire is important, defense counsel juror to get onto the jury by “stealth” With the advent of ADR, mediations must not lose sight of the “form” ele- and push that decision-making body and arbitrations, and relatively few ment of jury selection. In valid scien- forcefully in the wrong direction. numbers of cases going to jury trial, it tific studies going back to at least 1966, is easy for defense counsel to fall out when Kalven and Zeisel’s seminal work, of practice with good, solid jury selec- The American Jury was published, and BASIC TECHNIQUES tion techniques. This article will touch perhaps even earlier, we have known The time-honored techniques used upon some traditional methods, but will that juries tend to make up their minds by successful defense lawyers are well emphasize some innovative approaches very early on in the trial of a case; if not known and beyond the central theme that may seem counterintuitive yet can in voir dire, then by opening statement. of this article. One of my personal fa- be extremely effective in an appropriate Voir dire is the opening stage of the case. vorites is called “the Rule of P: If you case. This is the only time you will be per- are defending a personal injury case, mitted to speak with the jurors directly then no priests, plumbers, prostitutes THE PURPOSE OF VOIR DIRE during the entire trial. How many times or postal workers.” Most courts will al- have we heard the old adage “you have low juror questionnaires to be obtained Contrary to law school teachings, the only one chance to make a good first a few days before trial. Particular issues purpose of voir dire is not to select a impression.” The effects of primacy and of interest are: prior jury duty; prior “fair and impartial jury.” That goal is recency are important. Take advantage service as a jury foreperson; any claims impossible to achieve. Instead, defense of these studies and carefully choreo- or lawsuits filed by that person; their counsel should focus the voir dire ef- graph and plan your voir dire in every age; education; and occupation. If fort on de-selecting any and all “poison case. The time immediately before the questionnaires can be obtained a apple” jurors from the panel. In every trial is typically marked by a flurry of few days before, you can review these trial you will identify jurors that would activity: Daubert motions, motions in in detail and separate them into three make excellent defense jurors. The only limine, detailed and extensive proposed groups: “the good, the bad and the problem is, those “dream” defense jurors final pretrial orders, exhibit lists, witness ugly.” Sometimes it helps to formulate will be the first peremptory challenges lists, subpoenas and the like. It is easy a “model juror” for your case. During made by plaintiff. And this assumes to overlook your preparation for voir voir dire, make sure you pay attention that plaintiff’s counsel cannot artfully dire, but you should not to do so. You to plaintiff’s counsel’s questions, as she exclude those “defense” jurors from the are engaged in the critical enterprise of will ask many of yours and you can cross panel on a challenge for cause. The ad- selecting the judges that will hear and those off. In the author’s experience, vantage to striking a juror for cause is it decide your case. We have all heard of brevity at this stage is welcome, both by

Kevin M. Reynolds is a member of Whitfield & Eddy in Des Moines. His practice areas include product liability, aviation and insur- ance litigation and appellate practice. He is a former chair of the DRI Product Liability Committee. He can be reached at reynolds@ whitfieldlaw.com.

10 Trials and Tribulations Spring 2009 the jurors and the Court. “Good morn- Defense question (“tat”): “It is my Could you find a substantial verdict in ing, ladies and gentlemen, my name is pleasure and honor to represent the my client’s favor, even though the scales Mr. Reynolds. I represent the Defen- good folks, the women and men of ABC of justice were tipped ever so slightly in dant. By my watch we’ve been here Corp. We have come to Court this day favor of my client?” discussing things for over two hours. In because we honestly believe that we did Defense counsel’s questions (the ‘par- my book, that’s about an hour and 45 nothing wrong to cause this accident. ry’):’ “Plaintiff’s counsel talked with you minutes too long. So let’s get right to Let me ask you this: if, at the end of day, a little bit about the burden of proof. it.” Then spend 15 minutes on good, you believed that Plaintiffs did not meet The burden of proof is critical in a court solid questions and sit down. I even their burden of proof under the law, of law; otherwise, cases would be decid- heard of one case where the plaintiff’s would any one here, have any hesitation ed by speculation and conjecture. Plain- attorney took so ridiculously long in at all, to find in favor of ABC Corp. tiffs are required under the law to prove voir dire, that defense counsel stood up And send this Plaintiff home with a $0 their case to a legal certainty. Opposing and said “Your Honor, we’ve been here verdict? If that gives anyone substantial counsel used an example of the scale of a long time. I’ve paid attention to this heartburn, please speak up and let’s dis- justice. I’d like to use the same example. and these folks look just fine and dandy cuss that, everyone here will respect your Picture in your mind’s eye the scales of to me. We pass these jurors for causes” forthrightness.” justice being in exactly an even balance. whereupon he sat down. Although it “Okay, let me ask the question this Picture in your mind the scales perfectly was pretty “gutsy,”judicial observers felt way. Suppose you are in the delibera- even, perfectly horizontal. If, at the end that the defense attorney “won” that case tions room. Assume further that the of this case and at the end of all the evi- at that precise moment in time. discussion reveals that everyone thinks dence, those scales of justice are evenly Here is a sampling of some basic the Plaintiffs have not met their burden balanced, then under the law as it will techniques that can be used effectively of proof. But suppose one juror says be instructed to you by this Honorable by defense counsel in trying a personal “heh, this guy was injured, he deserves Court, that your verdict must be for the injury or product liability case. something.” If that happened, would Defendant. Why is this? It is simply you have the constitution to speak up because this means that Plaintiffs have A. “Tit for tat” and say “but that’s not what we are sup- not carried their burden of proof as posed to do, according to the instruc- required by law. They have not proven For every “thrust” of the plaintiff, there tions. The instructions say that if he their claims to a legal certainty. Is there should be a consequent “parry.” A de- doesn’t meet the burden of proof, then anyone on the panel that, for whatever fendant must keep the case on an even Defendant wins.” reason, believes that they could not fol- “keel” throughout the first several days low to the letter this aspect of the jury of trial when plaintiff is presenting their 2. The “scales of justice.” instructions? case. “Steam-rolling” or “freight-train- Plaintiff’s question (the ‘thrust’): “The ing” by the plaintiff, where the case burden of proof in this case is by a builds so much momentum that it is INNOVATIVE TECHNIQUES “preponderance of the evidence.” It is difficult if not impossible to arrest, must Plaintiff’s counsel are constantly not ‘guilt beyond a reasonable doubt.’ be avoided at all costs. implementing new and innovative trial That standard is for criminal cases. The Here are two examples: techniques. But there is no reason why standard in this civil case is much, much plaintiffs should have a “monopoly” on lower. To illustrate, consider the scales 1. The “million dollar verdict.” innovation. One purpose of this article of justice. If those scales of justice are Plaintiff’s question (“tit”): “Is there is to highlight some more innovative ap- tipped ever so slightly in favor of the anyone on the panel that, for whatever proaches to voir dire that the Defendant Plaintiff, then under the law your ver- reason, believes they could not return can use. Just because time-honored dict must be in favor of the Plaintiff. Is a verdict in seven figures, i.e., over one techniques have worked over the years there any one on this jury panel that, million dollars, if the evidence in fact for defendants, does not mean that for whatever reason, feels that they supported that result?” defendants should cease thinking of could not follow the law in this respect?

Spring 2009 Trials and Tribulations 11 new and unusual ways to gain a tactical in cases with solid liability defenses, left nostril. I apologize for going into advantage early-on in the case. In some the bloody photographs may give the this specific detail, but I feel that I respects it is “high time” that defense plaintiff an unfair emotional appeal that have to represent the legal interests of counsel consider thinking “outside the can seem nearly impossible to overcome. my client. Now, having heard about box” during voir dire. The undersigned Unbridled, raw emotion by a lay person this, is there anyone on the jury pan- has employed some of these techniques jury is likely one component of a “run el, that, for whatever reason, believes over the past several years. It has been away” adverse verdict. Although Rule that they could not be fair to my cli- observed that these techniques can be 403 and pretrial motions in limine will ent given that this type of evidence very effective at: 1) locating the “poison be filed in an attempt to exclude this un- may be presented in this case? If so, apple” juror(s); and 2) in keeping the fairly prejudicial evidence with minimal- please speak up and we’ll discuss it a case on an even keel during its early ly probative value, more often than not little further.” days, so that when it is time to present at least some of the gory, bloody, trauma During these questions, defense counsel the defense case, the defense witnesses injury photographs will find their way (and the client representative) should will “clean up” and the trial will be best into evidence. monitor the jury closely for non-verbal postured for entry of a defense verdict. Here is suggested line of inquiry cues. Follow-up questions may be di- during voir dire which has proven to be rected to jurors who appear to be “both- A. “Stealing Plaintiff’s Thunder” effective: ered” by this type of evidence. Persons It has long been known that an effective Defense counsel questioning:“Does who might have trouble with this type way in which to “blunt” a potentially- anyone on the jury panel have any of evidence will have: flushed red face; effective cross examination of your wit- medical education, experience, back- on the contrary, white or pasty complex- ness by your opponent, is to cover those ground or training? On a related ion; rubbing their head or chin; or look- areas that are problematic first, before issue, does anyone here get a little bit ing around nervously, or putting their your opponent, and therefore “steal the ‘queasy’ or lightheaded at the sight head down, as if they are light-headed or thunder” of the opponent’s anticipated of blood? I wanted to ask you these going to faint. Be aware of these non- cross. The undersigned has also found questions for a specific reason. In verbal cues. But if this line of question- this tactic to be effective in voir dire to this case, the Plaintiff’s have listed as ing is carried out effectively, is serves two the extent that the potential harmful exhibits some blow-ups and enlarge- purposes: 1) it steal’s Plaintiff’s thunder; information was not even discussed by ments of trauma injury photographs and 2) it renders their “smoking gun” the other side!. If you know there will that were taken by the EMTs who emotional evidence less impactful. At be a particularly damaging piece of evi- responded to the accident scene. the very least a powerful, emotional is- dence proffered by the other side, this Other operative photographs were sue has been identified and its ability to matter can be broached in jury selection taken later by the surgeons. Some push the jury to a certain result (in favor in attempt to “steal plaintiff’s thunder” of them show the decedent’s body at or plaintiff, based on emotion) has been and de-sensitize the potential jurors with the scene. I did not want you to be reduced. regard to that piece of evidence. frightened or become sick at the sight Let’s take a common example. Most of this evidence. The decedent, Mr. B. Dealing with “sympathy” personal injury or product liability cases Johnson, died of mechanical asphyxi- Virtually every civil jury case involving involve severe and grievous injury to ation. His body was crushed between a personal injury carries with it a signifi- bones, tissues and flesh. Treating sur- the front body of the machine and cant sympathy component. The issue of geons often take graphic pre- and post- cross member for the lift arms. One sympathy must be confronted forcefully operative photographs of the injury for such photograph is a close up of dece- and artfully in voir dire. purposes of medical student training. dent’s face. His face and entire head One way in which this can be done, Lay person jurors are not use to such are bright bluish purple, and that is is by: 1) highlighting for the jury the graphic presentations. As a result, they because he had a lack of oxygen in his sympathetic issues in the case; and 2) can have an emotional impact that is blood. The same photograph depicts comparing to this “evidence” the “law,” very harmful to the defense case. Even a bloody mucosal discharge from his i.e., the jury instruction that will be

12 Trials and Tribulations Spring 2009 given by the Court that states in clear They are beautiful girls. You will love For example, suppose your product terms that “sympathy cannot be con- them. You will feel sorry for them. is an electrical toy that is subject to a sidered This kind of questioning is Your heart will go out to them. And CPSC-ordered recall. The recall was totally counterintuitive. “Conventional you know what, there’s nothing at instituted because the toy had been wisdom” dictates that defense counsel all wrong with those feelings That’s implicated in causing fires while it was is to avoid, at all costs, talking about or human nature. But, you know what? plugged into a re-charger. The recall addressing plaintiff’s injury. Using this This case is not about that. Instead, itself was designed to address the pos- counterintuitive approach requires that this case is about two things: 1) what sibility of frayed wiring or bad fuses. All defense counsel actually spend a portion happened at the time of this unfor- pre-trial efforts by the defense on mo- of the limited time allotted for voir dire tunate accident; and 2) who is legally tions in limine and under rule 403 to actually “highlighting” the sympathy responsible for this accident. Now, keep this recall out evidence have failed. aspects of the case. However, in the having heard this, is there anyone A fire has occurred and your toy is being author’s view it is more effective for de- on the panel that, given what I’ve blamed in a fire and property damage, fense counsel to explain and discuss this outlined here, could not follow the product-liability subrogation action aspect of the case, in lieu of leaving it Court’s instruction that “you are not by the homeowner’s fire insurance car- totally up to Plaintiff’s counsel alone to to decide this case based on bias, sympa- rier. Your defense to the case is that the talk about damages with no meaningful thy, passion or prejudice? Please raise fire’s cause and origin was somewhere rebuttal from the defendants. your hand if you have a concern with else in the home, and that the problems This can be done as illustrated below: that, and we’ll discuss it a little bit intended to be fixed by the recall were Defense counsel questioning: “At the further. Everyone here will respect never seen in this toy. Defense counsel end of this case, the Court will give you for your candor.” might ask some questions generally you the instructions. The instruc- In a recent trial in which this strategy regarding “recalls” in the following fash- tions are the law that you are duty- was employed, counsel for co-defendant ion, during voir dire: bound as jurors, under your oath, remarked later to the manufacturer’s de- Defense counsel’s questions: “Does to follow in reaching your verdict fense counsel that: “the issue of emotion everyone on the panel drive a car? in this case. All of the instructions and sympathy has just been taken right Does anyone own a car? As an owner are equally important, but I want to out of this case.” Despite the significant of a car, have you ever received, take a moment to speak with you sympathy aspects involved in the case, through the mail, a recall notice? about a very important jury instruc- the jury assessed 100% of the causative What did you do? Did you imme- tion and aspect of Iowa law. You will fault to Plaintiff’s decedent, and a de- diately make an appointment with be instructed as follows: “You are fense verdict was entered. There were a dealer to get the recall work done? the judges of the facts. The Court no post trial motions and there was no Has there ever been a situation when is the judge of the law. You are not appeal. you may have waited some period of to decide this case based on bias, sym- time before getting that work done? pathy, passion or prejudice.” In this C. Recalls. For example, just wait until the next case you will hear evidence that will Some products cases involve recall evi- scheduled service date or oil change? tug on your heart strings. Plaintiff’s dence that may, at first blush, appear to What if your car, although it was decedent, Mr. Johnson, was survived be impossible to overcome. After all, if subject to a recall, did not actually by two daughters, Mary and Su- the product was not initially “defective,” have that problem? Do you think san. Mary is 14 years old and Susan then why would the manufacturer recall that, in general terms, it is the good, is 21. Both Mary and Susan have it? In the right kind of case, it may be responsible thing for manufacturer to “special needs,” and are considered wise to broach this subject in jury selec- do, and that is, to do a recall if they to be mentally retarded. I believe tion, in order to see whether this kind of think there may be a problem? To that you will meet both of them, and evidence is so overwhelming as to pre- err on the conservative side? Ladies they will either testify rather briefly vent a putative juror from being selected and gentlemen, we don’t come into or be introduced to you in person. to fairly hear and decide the case. court and spend a bunch of money

Spring 2009 Trials and Tribulations 13 to defend a case, without having a this information may be missed, to the defense to present to you. In this case, potential detriment of your case. although the product that was involved in the accident was technically subject CONCLUSION to a recall, it is our position that the There are as many ways to select a jury subject product did not show the signs and conduct voir dire from the defense or symptoms of a product that actually side of the table as there are defense law- had the problem covered by the recall or yers. Carefully planning and strategiz- “fix.” Although the recall was designed ing your defense voir dire will get you to fix frayed wiring and bad fuses, we off to a fast start and give you the best believe that the evidence will show that chance of choosing those jurors who will the wiring on this toy was not frayed be at least amenable to a defense verdict and there was no problem with the fus- in the case. es. We are not looking for any com- mitment on any issue that would be involved in this case. That would not be proper. However, would all of you pledge to do your level best to listen to the evidence on this recall issue?”

D. A Good Closing Question in Voir Dire. At the end of your voir dire, on more than one occasion I have seen this gener- al question yield truly fruitful informa- tion. Thus, it is advisable to ask the jury panel a question similar to this: Defense counsel questioning: “Both parties and the Court have asked a great many questions of you this morning. Nevertheless, it may not be possible to ask every single question that should be asked. So please al- low me to ask one final question:does anyone on the jury panel know of any reason why it would not be proper, or why they should not be selected to sit as a juror in this case?” In over 27 years of practice, it is amaz- ing as to how many times this “generic” question raises a hand or two, identify- ing issues and concerns that had not been previously identified. On even a few occasions, grounds for challenges for cause have been revealed. Quite obvi- ously, if this question is not asked, then

14 Trials and Tribulations Spring 2009 Handling Witnesses with Prior Convic- tions for Crimen Falsi Robert T. Horst & Christopher Di- crimes involving fraud or dishonesty committed, arguing that any crime pur- Ienno were absolutely prohibited from tes- posely creating deception or a mislead- The Federal Rules of Evidence allow for tifying, deemed unreliable as a matter ing result, should be admissible. Theft the impeachment of any witness by the of law. 2 Wigmore, Evidence § 520 crimes, in particular, provided fertile introduction of evidence of prior con- (3d ed. 1940). In the latter half of the ground for admissibility contests. In victions for crimes involving dishonesty nineteenth century, this prohibition U.S. v. Del Toro Soto, the First Circuit or false statement, referred to as crimen gave way to the practice of allowing tes- held that a grand larceny conviction falsi. In an effort to clarify the convic- timony from these witnesses, but only if “could certainly have been introduced tions included in F.R.E. 609(a)(2)’s term the prior conviction was admitted into under F.R.E. 609(a)(2).” U.S. v. Del “dishonesty or false statement,” Con- evidence, thereby allowing a fact-finder Toro Soto, 676 F.2d 13 (1st Cir. 1982). gress amended the rule in 2006, which to determine the overall credibility of However, the consensus among the now provides “(a) For the purpose of at- the testimony. Against this backdrop, courts is that “generally, theft crimes do tacking the character for truthfulness of Congress enacted Federal Rule of Evi- not involve dishonesty or false statement a witness, (2) evidence that any witness dence 609(a)(2). within the meaning of Rule 609(a)(2).” has been convicted of a crime shall be After debate in both the House and U.S. v. Givens, 767 F.2d 574, 579 (9th admitted regardless of the punishment, Senate, Rule 609 was ultimately crafted Cir. 1985)(additional citations omitted). if it readily can be determined that for its enactment In 1974, the Confer- In Cree v. Hatcher, the Third Circuit establishing the elements of the crime ence Committee stated that “[b]y the stated that the rule “focuses on the wit- required proof or admission of an act phrase ‘dishonesty and false statement’ ness’s propensity for falsehood, deceit, of dishonesty or false statement by the the Conference means crimes such as or deception” and explained that “what witness.” F.R.E. 609(a)(2). While there perjury or subornation of perjury, false matters is whether dishonesty or false have been no significant published deci- statement, criminal fraud, embezzle- statement is an element of the statutory sions based on this latest amendment, ment, or false pretense, or any other offense.” Cree v. Hatcher, 969 F.2d 34 the likely tendency of the amendment to offense in the nature of crimen falsi, the (3rd Cir.1992), cert. dismissed, 506 U.S. narrow the range of admissible convic- commission of which involves some 1017 (1992). When deciding whether tions may alter the practice surrounding element of deceit, untruthfulness, or the admission of a particular conviction this impeachment tool. The purpose of falsification bearing on the accused’s will benefit the fact finder in weighing this brief article will be to address the propensity to testify truthfully.” H.R. the veracity of testimony, the courts that historical use of this Rule in litigation Conf. Rpt. No. 1597, 93d Cong., 2d seem to understand Congress’ original and trial practice, and to consider the Sess. 9, (1974). The text of the rule intent behind F.R.E. 609(a)(2) first look future of that practice. prior to the 2006 amendment simply to the specific elements of the offense, provided that “evidence that any wit- and then to the necessity of dishonesty What is Crimen Falsi? ness has been convicted of a crime shall or false statement in the perpetration of be admitted if it involved dishonesty or the offense. For example, when decid- The historical context out of which false statement.” Litigators and courts ing that drug smuggling was not crimen the rule emerged shows that it was in- extended the limits of this language falsi, the Ninth Circuit noted that the troduced not to discourage testimony, beyond the elements of an offense to statute only required proof that the but to facilitate it. At common law, the manner in which the crime was perpetrator introduces the drugs sur- witnesses with prior convictions for

Robert T. Horst is a parter and Christopher J. DiIenno an associate with Nelson Levine deLuca & Horst in Blue Bell, Pennsylvania. They con- centrate their practices in complex insurance coverage disputes, bad faith litigation and investigation of suspected fraud.

Spring 2009 Trials and Tribulations 15 reptitiously. They stated that “surrepti- outweighs its prejudicial impact on the confinement play a role in determining tious activity, not necessarily involving accused.” F.R.E. 609(a)(1). So for prior whether the later release date is a final misrepresentations or falsification, does felony convictions that are not crimen release date on the original crimen falsi not bear directly on the likelihood that falsi, despite impeachment value, the conviction. If reconfinement is imposed the defendant will testify truthfully.” court may exclude the evidence against for some technical breach of the condi- U.S. v. Mehrmanesh, 689 F.2d 822 (9th any witness if there is a danger of unfair tions of parole, or for the commission Cir. 1982). prejudice to the defendant, confusion of of some other offense unrelated to the Presumably, this type of strict and issues, a danger of misleading the jury, crimen falsi offense, then the reconfine- narrow application of the rule and the or undue delay. None of these concerns ment is not part of the punishment for meaning of crimen falsi is what prompt- or limitations may enter into an analysis that offense and the prior release date ed Congress to enact the 2006 amend- of whether to include convictions for must be used. See U.S. v. Wallace, 848 ment. Convictions that once may have crimen falsi. F.2d 1464 (9th Cir. 1988). been admissible if they “involved […] However, the rule does place a ten- The end of the ten-year period has dishonesty or false statement” may now year time limit on whether crimen falsi most often been found to be the date be admitted only “if it readily can be de- convictions may be admitted. The ten- the action is instituted, the date the termined that establishing the elements year time period begins running “the trial begins, or the date the witness is of the crime required proof or admission date of the conviction or […] the release to testify. Only the Third Circuit and of an act of dishonesty or false state- of the witness from the confinement im- the Eighth Circuit have definitively ad- ment.” Moreover, the introduction of posed for that conviction, whichever is dressed this issue and both have stated the term “ready determination” should the later date.” F.R.E. 609(b). The con- that the date of trial should be used. See limit the degree to which crimes on the viction is obviously the later date in cas- U.S. v. Williams, 892 F.2d 296, 301, border of crimen falsi are even given es where the witness is sentenced to time (3rd Cir. 1989); U.S. v. Watler, 461 F.3d consideration. served, or no time at all. If there are 1005, 1008, (8th Cir. 2006). post-trial motions, the date judgment A conviction older than ten years Limitations in F.R.E. 609 is entered should still be used. The rule may still be brought in if “the propo- also provides that “[t]he pendency of nent gives to the adverse party sufficient The reason the courts have come to be an appeal does not render evidence of a advance written notice of intent to use more restrained when defining crimes conviction inadmissible.” F.R.E. 609(e). such evidence to provide the adverse as crimen falsi for purposes of the rule However, “[e]vidence of the pendency party with a fair opportunity to con- is that such crimes “shall be admitted” of an appeal is admissible.” test the use of such evidence.” F.R.E. without any balancing of probative When a prison term is imposed, the 609(b). In such cases, the court must value against the harm to the opponent’s date of release from confinement begins balance probative value against preju- case. Further, the rule does not treat the running of the ten-year period. In dicial impact. The record must reflect a defendant witness any differently cases where a witness is released on pa- the court’s thoughtful analysis, since the than other witnesses. And further still, role for the crimen falsi conviction, and admission of the prior conviction is no the conviction must be admitted re- then reconfined for a parole violation, longer automatic. In U.S. v. Beahm, the gardless of whether it was a felony or the final release date may be used. (See Fourth Circuit found an abuse of discre- misdemeanor. If a prior conviction U.S. v. McClintock, 748 F.2d 1278, tion and reversed the admission of an requires proof or admission of an act of 1288 (9th Cir. 1984) where the court eleven-year old conviction because they dishonesty or false statement, it must be stated that the witness’ “probation was were unsatisfied by the record that the allowed in. These permissive provisions revoked for violation of a substantive district court had thoroughly considered are in contrast with the first prong of the condition [of his parole] that directly the issue. U.S. v. Beahm, 664 F.2d 414 Rule 609 which provides for the admis- paralleled his original crime-engaging (4th Cir. 1981). sion of prior felony convictions only “if professionally in fraudulent charitable However, the admission of prior the court determines that the proba- fund raising.”) However, the type of pa- convictions is not always so difficult tive value of admitting this evidence role violation and the reason for the re- to obtain. In U.S. v. Sloman, the Sixth

16 Trials and Tribulations Spring 2009 Circuit upheld the admission of a prior the character of the witness’ testimony, for impeachment purposes on cross-ex- conviction for knowingly transporting and therefore, such convictions may not amination. However, the courts often stolen vehicles (an offense that since the be automatically admitted without con- found this limitation inapplicable, and 2006 amendment would not likely be sideration by the court. in 1990 Congress removed the limita- considered crimen falsi), despite the fact The rule also prohibits the intro- tion allowing the prior conviction to that the government did not provide no- duction of a prior conviction when be introduced at any time. In 1977, tice of its intention to use the prior con- “the conviction has been the subject the Eighth Circuit stated in U.S. v. Bad viction. U.S. v. Sloman, 909 F.2d 176, of a pardon, annulment, certificate Cobb that “[t]he introduction by a wit- 180 (6th Cir. 1990). The court stated of rehabilitation, or other equivalent ness himself, on his direct, of a prior that “[t]he purpose of the notice provi- procedure.” F.R.E. 609(c). In the case conviction is a common trial tactic, sion is to prevent surprise. Since defense of a pardon issued because of a find- recommended by textwriters on trial counsel was aware of the conviction ing of innocence, this limitation makes practice. There is a paucity of authority and knew that Sloman would be subject perfect sense. However, because of the justifying in theory this well accepted to cross-examination if he waived his automatic admissibility of crimen falsi practice, but it has been justified on the constitutional right to not testify, the convictions and the extremely damaging ground that it serves a twofold purpose: defendant was not prejudiced by the late nature of such evidence, the rule extends (a) to bring out the witness’ ‘real char- notice.” this protection to cases where the par- acter,’ the whole person, particularly his In cases where the prior conviction is don is issued based on a certificate of credibility, and (b) to draw the teeth out older than ten years, the proponent has rehabilitation. The reason for this is that of the adversary’s probable use of the the burden of proving that the probative the rehabilitation obviates the tendency same evidence on cross-examination.” value of the conviction outweighs its of the prior conviction evidence to re- 560 F.2d 877 (8th Cir. 1977). prejudicial effect. U.S. v. Cavender, 578 veal the witness’ present character for Cross-examiners should consider F.2d 528 (4th Cir. 1978). In all cases, truthfulness. whether introduction of the prior cri- whether older than ten years or not, the For policy reasons similar to those men falsi conviction is actually going to proponent must be prepared to authen- which require the exclusion of adult assist them in their attempts to impeach ticate the conviction. In Commonwealth convictions after rehabilitation, crimen witnesses. There will be circumstances of Pennsylvania v. Boyd, the Pennsylvania falsi convictions against juveniles may in which the prior crimen falsi convic- Supreme Court stated that “the Com- not be admitted. F.R.E. 609(d). In tion may prove of little value, or actually monwealth failed to carry its burden addition to such policy considerations, harm the proponent’s position in the of establishing identity and thus, the juvenile adjudications often lack the for- eyes of the jury. For instance, knowl- criminal record was erroneously admit- mality or the higher standards of proof edge that a witness while working as a ted” because the identity of the witness normally required in criminal trials, and bus boy nine years prior was caught eat- testifying and the identity of the person so the majority view has been to exclude ing his employer’s food leading to a con- named in the prior conviction were all such prior convictions. viction for petty embezzlement, though only linked by sharing the same name. likely admissible under the Rule, could Commonwealth of Pennsylvania v. Boyd, In Practice mean nothing to a jury regarding the 463 Pa. 343, 344 A.2d 864 (Pa. 1975). witness’ reliability today. Although the In 1974, when the original federal rule The identity of the witness must also be courts may not have to weigh the value was enacted, evidence of prior convic- directly connected to the prior convic- of the prior conviction evidence against tions could only be introduced on tion. A corporate conviction may not its prejudicial effect, examiners are well- cross-examination, thus showing the be used to impeach the credibility of an advised to practice this balancing test. historical prejudice against such wit- employee witness who was not directly Similarly, direct-examiners should ness testimony. The intent behind this connected to the offense. Walden v. not assume evidence of the prior convic- limitation was to balance the admission Georgia-Pacific Corp., 126 F.3d 506 (3rd tion can always best be controlled and of the witness testimony on direct, with Cir. 1997). It is the specific act of dis- the harm limited by introduction on the admission of the prior conviction honesty or false statement that bears on direct. If the prior conviction is clearly

Spring 2009 Trials and Tribulations 17 something that will damage the witness’ to the underlying facts and the possible automatically brought in for any pur- reliability, such as a prior conviction for implication that the witness is less than pose, and now specifically, may only be perjury, then it may make sense to take honest as he testifies. The prior convic- brought in to show the witness’ propen- the shock-value away from the cross- tion, that may have had little impact if sity to give truthful testimony. There- examiner and introduce the conviction introduced on cross, may be exaggerated fore, proponents of the prior conviction on direct. However, offering such evi- and a focal point of the testimony. evidence must frame (and limit) the of- dence may be fraught with peril, and As with the admission of any prior fer of proof carefully. Trial lawyers must may prove to be an open door for an bad acts, the substance of the act may likewise specifically examine the witness, able cross examiner. Any sort of denial not be made known to the jury in order utilizing the conviction with attention of the offense, or its elements, on direct to show a propensity to commit the to this purpose. In short, despite Con- may allow the cross-examiner to rebut offense. Another change to Rule 609 gress’ recent limitation of F.R.E. 609(a), with more than the prior conviction. brought about by the recent amendment the rule remains a powerful litigation For instance, in the petty embezzle- is the substitution of “credibility” with tool. ment example above, by downplaying the term “character for truthfulness.” his intent the witness may open a door Prior convictions for crimen falsi are not

18 Trials and Tribulations Spring 2009 Preparing Your Client for a Deposition: Practical Tips and Essential Rules June M. Sullivan tive. Is this your client’s first deposition but oftentimes this is intentional to or has your client testified several times gain the deponent’s trust. Although the Defending a deposition is more than before? Most clients are in unchartered attorneys may engage in an amicable just a four hour nap. It takes prepara- territory when it comes to depositions. conversation and exchange welcoming tion to have the deposition go smoothly. After all, this is generally not what they gestures, the client should not be lulled Have you ever defended a deposition do for a living. The deposition will into engaging in conversations, jokes, during which you learn certain facts not be easy or pleasant for your client, or any other type of casual or everyday from your client for the very first time? but knowing what to expect during the expressions on the record. In the same For instance, he or she testifies about deposition will decrease your client’s respect, the client should not allow an the surveillance camera that recorded anxiety. The first time your client is aggressive attorney to trap the client the entire incident that is the basis for deposed, he or she will need to know into an argument or fluster the client’s the lawsuit, but your client forgot to step-by-step what to anticipate during composure. It can be unnerving for the tell you about it beforehand? Or how the deposition. A client who has been client to sit through a hostile deposition about a client who feels that he or she deposed several times may already know session, but your client should maintain can say just about anything at a deposi- the basics, but may need to be reminded his or her composure, respond profes- tion? For example, when asked by the of them as well as the impact the testi- sionally and with respect. Your client’s opposing attorney how decisions are mony will make on the outcome of the performance as a witness is being evalu- made in health plans, your client (the case. ated by the opposing party to determine medical director) testifies that “We use Second, remind your client that your how effective he or she will be in court. the golden Rule; he who has the gold, discussion during deposition prepara- Your client should dress neatly and wear rules.” Ouch. That is going to hurt the tion is privileged and confidential. Re- what he or she would normally wear. defense of the case. assure your client that any information Remind your client that there is a court Preparing your witness to testify at a or documents that could potentially reporter taking down a word-for-word deposition is one of the most important surface during the deposition should transcript of what is said, which may tasks you do before trial. One of the big- be discussed now, not later when you later be used during trial or in a court gest mistakes a defense counsel makes is not will have little or no control over its document. Pauses are not usually re- properly preparing the client to testify at disclosure during the deposition. Also, flected in the deposition transcript, so a deposition. There is a list of things that inform your client that you will have a your client should take as much time as you can do to make your client’s deposition limited role during the deposition. The he or she feels necessary to think care- more effective – things you never learned purpose of the deposition is for the op- fully about the response. in law school or from your senior partner. posing counsel to discover information, Fourth, your client should not bring Whether you are a seasoned litigator or a not for you to divulge all aspects of your anything into the deposition that you first year associate, these practical tips and side of the case. Because of this, you do not approve of beforehand. If the essential rules are invaluable for witness will have little or no questions for your opposing party questions your client preparation. client. with regard to any documents, your cli- Third, tell your client that the op- ent should review the document silently posing counsel is not a friend. He or and completely before answering the Practical Tips she may appear cordial and friendly, questions. Your client should have the First, understand your client’s perspec- document in front of him or her while June M. Sullivan practices with Halloran & Sage in Hartford. She practices health care law, including medical malpractice litigation. She can be reached at [email protected].

Spring 2009 Trials and Tribulations 19 responding. In the same respect, if the you understand the question. If the or speculate. Attorneys do not expect client believes that he or she needs to re- attorney asks more than one ques- that you will remember every detail view a document before responding to a tion at a time or if the question seems of what happened. Your memory is specific question, your client should ask ambiguous as to time, place, person, the only reliable source of what you to look at the document to refresh his or or event, do not feel embarrassed observed and witnessed. Let your her recollection. to tell the attorney that you do not memory be your guide. If you feel Fifth, you and our client should not understand the question. To be sure that you made an error during the be eager to leave the deposition. If the that you are clear as to what is being deposition, tell the attorney taking defense team, including your client, is asked, tell the attorney to rephrase the deposition and ask that you be al- relaxed and not in a rush to leave, you the question before responding to it. lowed to clarify your statement. both will send a message that you and 3. Answer only the question 5. Tell the truth. At the begin- your client are sure and definite of your that is being asked. Listen to the ning of the deposition, the court position and are willing to participate as question carefully and only provide reporter will swear you in and your long as necessary. It gives an air of con- the information required to answer testimony will be under an oath to fidence. If the opposing counsel senses the question. If the question can tell the truth. It is absolutely vital for that there is hidden information that be answered as “yes” or “no”, then you to tell the truth about what you needs to be dug-up, he or she is likely to answer either “yes” or “no”. If the know and to the best of your ability. prolong the deposition. question does not call for a narra- However, always remember that the The following Essential Rules should tive response, do not give one. If a truth is never based on speculation, be reviewed with the client well before narrative response is necessary, keep surmise, or guessing. the deposition: your answer as short as possible and 6. Maintain your composure. 1. Listen to the question. Do limit your answer to only the ques- The record will reflect all of the not anticipate what the question will tion that is asked. If the question is words being exchanged during the be. Oftentimes, the question will be “Do you know what time it is?” the deposition. Your demeanor should different from what you think will be answer should be “yes” or “no”. The be polite, respectful, and courte- asked. Listen to the entire question question did not call for the time, ous. Even if the opposing attorney before responding to it. Be patient but whether the deponent was aware is aggressive or arrogant, there is no and wait until the attorney is done of the time. Do not volunteer other reason to taint your testimony with asking the entire question without information. Do not get ahead of the words said in the heat of the moment interrupting the attorney. Do not be- attorney or give the attorney other that may come back to haunt you. gin to formulate your response until avenues to explore by trying to guess Some lawyers intentionally use these you have heard the entire question. as to the line of questioning. There tactics to provoke the deponent into 2. Understand the question. may be times when a longer response a combative mood or to lose compo- This is not as easy as it sounds. Of- may prove beneficial, but in general, sure. Do not take the bait. Do not tentimes people feel compelled to use common sense and limit your lose your temper or argue with the provide an answer, even if the depo- response to only the question being opposing counsel. As much as you nent does not understand the ques- asked. may be tempted to do so, it will only tion. Do not attempt to answer a 4. Do not guess. Do not feel hurt your case. The opposing coun- question that you do not understand. that you need to provide a factual sel will know what your weakness is Do not answer a compound ques- response to every question. If you do and will use this tactic again at trial. tion unless you are sure that your not know or cannot recall the answer, 7. Ask to take a break when response properly addresses all parts then that is the answer. You are un- needed. Always ask to take a break of the question. Pause before you der an oath to tell the truth and there when you feel tired, overwhelmed begin your response in order to allow is nothing wrong with saying “I don’t or need to speak with your attorney. yourself time to think about what know” or “I don’t remember”. You The opposing counsel should accom- question is being asked and whether are not telling the truth if you guess modate your request as often as nec-

20 Trials and Tribulations Spring 2009 essary. However, if there is a question the deposition, you should stop talk- tion recommenced. pending, you may be asked to answer ing immediately and listen. What 12. Speak loudly and clearly. the question before taking the break. your attorney says may have a direct The court reporter is taking down The break serves many purposes: it impact on whether you will respond everything that you say in a transcript will give you time to think; it will to the question. Your attorney may that will later be used for various give you time to discuss things with also object as to the “form” of the purposes. To be sure that she cor- your attorney; and it interrupts the question on the basis that the ques- rectly records all of your testimony, opposing counsel’s train of thought, tion is ambiguous, unclear, or vague. she needs to hear it accurately. Your pace, and momentum. Oftentimes, If your attorney does not understand testimony is not gestures. The court your responses will be better after a the question, it is likely that you do reporter is not able to record a nod of break because when a person is tired, not understand the question. Take the head, a shrug of the shoulders, or the responses tend to be careless. the lead from your attorney and ask an “uh-huh”. Respond with words 8. Do not answer a question the opposing counsel to rephrase the and speak loudly and clearly so that that calls for you to state facts that question. Occasionally, your attorney the court reporter will not have dif- support your defense. If the at- may object as to the form of the ques- ficulty recording your response. torney asks you to state facts that tion, but instruct you to answer the 13. Do not go off point or go support your answer to the complaint question if you understand it. Listen on a tangent. This cannot be em- or your defenses, you should simply and follow your attorney’s instruc- phasized enough: when you have state that you discussed the infor- tions. finished answering the question, stop mation with your attorney. What 10. Pause before you respond talking. Be concise, brief and to the you discussed is protected under the to a question. You should wait a point with your response. Do not attorney / client privilege. More couple of moments after the question give additional information. Answer importantly, no one expects you is asked in order to: a) be sure the only the question that was asked. In to know the factual basis for your opposing counsel has finished asking the same respect, do not feel obligat- response to the complaint or the the question; b) give yourself time to ed to fill awkward moments of silence defenses. That is your attorney’s re- be sure that you understand the ques- in the examination with additional sponsibility. Along this same line of tion; and c) give your attorney time details and an elaboration of your questioning, if the attorney asks you to object to the question, if necessary. answers. Give a short, concise an- to elaborate on your written inter- This will also demonstrate to the op- swer to the question and then remain rogatory responses, you may simply posing counsel that you are providing silent for however long it takes until state that those responses were pre- a thoughtful, reflective response. the next question. pared during discussions with your 11. Be mindful of your public 14. Do not over-exaggerate. Of- attorney. conversations during a break. If tentimes, the deponent will be asked 9. Listen to any objections or there is a break in the deposition, to estimate speed, length, time, etc. statements your attorney makes do not discuss any information with It is rare for a witness to accurately and follow your attorney’s instruc- anyone other than your attorney. estimate time, speed, distance, etc. tions. Unless waived beforehand, Any information that is divulged is for an event that happened briefly. If your attorney will object and instruct fair game to inquiry by the opposing you are able to estimate, your esti- you not to respond to any questions counsel when the deposition resumes. mate should be reasonable. An over- that seek responses that are protected I recall one deposition I conducted exaggerated estimate will derail your under privileges such as attorney/cli- during which there was a fire drill. credibility. If you cannot make an ent; doctor/patient; psychotherapist/ As we stood outside, the deponent estimate, say so. A bad estimate will patient; husband/wife; clergy/peni- struck up a conversation with the work against you. tent; and Constitutional grounds person next to her about her time in 15. Unless you are quoting ex- such as self-incrimination. If your prison. This topic became my next actly, indicate that you are para- attorney speaks at any time during line of questioning when the deposi- phrasing. Unless you know the exact

Spring 2009 Trials and Tribulations 21 words someone used, do not put for deposition preparation. You making corrections, and signing the words in the other person’s mouth. should know when to supplement transcript. Be sure to have the wit- You should indicate that “the gist of this information with case-specific ness return the jurat and errata sheets the conversation was …” instead of details. Practice these techniques to you within the appropriate time saying that it is a direct quote. Bear with your witness to ensure a positive frame. The time and effort that you in mind that other people may have experience. Remember to protect spend preparing your witness is well been privy to the same conversation. your witness from opposing counsel’s worth it. Your credibility will be blemished if misleading questions and bullying you provide self-serving statements tactics by raising objections during from others. the examination. After the deposi- 16. Reread these Essential Rules. tion, promptly provide a copy of These practical tips and essential the transcript to your witness with rules provide the basic groundwork instructions on reading the transcript,

22 Trials and Tribulations Spring 2009 The Emergency Room Doctor Witness James H. Milstone case was the doctor who treated her at doctor was. As it turned out, the doc- the emergency room. Plaintiffs’ counsel tor initially recounted that he did not Several years ago, I tried a case in which was being difficult at trial, and refused have any knowledge of what occurred at I cross-examined a treating emergency to identify, even for the judge, what wit- the scene, so could not identify whether room doctor. I share this experience nesses he would call and in what order. the claimant’s condition was serious at because after this time, I recognize the Thus, on the third morning of trial, that time. He also volunteered that just impact that this experience has had on despite indications by Plaintiffs’ counsel because the claimant was airlifted to the my trials going forward. that he would be calling his clients as hospital was not a sign of serious injury, Our local practice sometimes involves witnesses, he instead called the emer- but rather was a rule that was required cases where witnesses too numerous to gency room doctor. when a person was trapped within a properly depose are listed as potential On direct exam by a very experienced vehicle for more than thirty minutes. witnesses at trial. Thus, frequently at plaintiff’s counsel, this doctor clearly (This turned out to be very helpful, as trial the defense counsel is unaware of testified to recount the significant fac- the claimant was trapped not so much which doctors will actually be called at tors of the daughter being air-lifted to because of her condition but because of trial. That is what happened in my case. the hospital, to the eight to ten sets of x- her obesity). The case involved three claimants rays that were taken while the claimant As we reviewed his treatment at the (all family members) who were in a dra- was in the emergency room, and then hospital, he confirmed that his initial matic rollover accident on an interstate her admission into the hospital where evaluations were very positive. He went highway in Northern Indiana. Each of she spent two days. through the “ABC” assessment that the claimants asserted serious and grave At this point, I turned to an associate hospital personnel generally go through, injuries and each was seeking more than who was trying the case with me and and found that she was not in major a million dollars in compensation. identified two things for her benefit: (1) distress. He then proceeded, in light One of the three claimants, the that I thought this witness was going to of her complaints, to run x-rays upon daughter, who was a passenger in the be key to the entire trial and recounted every significant portion of her body. rear seat, told a dramatic story about that we had not deposed him; and (2) We examined the x-ray results, which all how, after the vehicle rolled over eight that she should never do what I was go- showed no fracture or other deformity. times, she was trapped in the vehicle ing to be doing with my cross-examina- Then, we proceeded to review a second by a seatbelt, hanging upside down. tion. set of x-rays which were taken which She was substantially overweight, and I had a sense that this doctor was not only re-confirmed that there were no maintained that this condition and her happy about being called to trial. His fractures or deformity. The second set injuries did not allow her to remove her demeanor during direct exam as well was a precaution which he took when he seatbelt to get out of the vehicle. When as some of his responses to Plaintiffs’ began to question whether the patient’s rescuers were ultimately able to remove counsel’s questions led me to conclude complaints were justified. When asked her by using the “Jaws of Life”, she was that he was not particularly sympathetic why he ultimately admitted her to the transported by helicopter to a hospital to the Plaintiff. hospital, the doctor clarified that he did where she was seen at an emergency I proceeded by asking some leading not admit her but simply kept her in the room. She maintained numerous or- questions as well as some open-ended hospital for observation for two days. thopedic injuries, head trauma, vision questions and, as I progressed, to wade By the conclusion of the testimony, it trouble and psychological issues. out into what I recognized could be a was generally agreed that: (1) there was At trial, one of the 40 medical pro- very dangerous situation. However, the no indication of any serious injury; (2) viders listed as a potential witness in the further I went, the more cooperative the that she did not require hospitalization;

James H. Milstone is a member of Kopka Pinkus Dolan & Eads in its Mishawaka, Indiana office. His primary focus is in civil litiga- tion and appellate advocacy. He can be reached at [email protected].

Spring 2009 Trials and Tribulations 23 and (3) that she had no fractured bones. that emergency room doctors are used remain an emergency room doctor in a In fact, he was wondering why she was to dealing with very serious and difficult busy hospital where you had deep sym- making the complaints that she was as injuries in the emergency room. They pathy for each and every patient. there was no objective basis for the com- are used to talking about even graphic Defense lawyers should not overlook plaints. injuries in a clear calm manner. Thus, the value they may gain from cross-ex- At the conclusion of trial, a very their demeanor generally is to handle amining emergency room doctors. successful verdict was entered for the these things without drama, and not to defense. unduly sympathize with their patients. In thinking about it since, it is clear I imagine it would be very difficult to

24 Trials and Tribulations Spring 2009 The Top Ten Ways to Ruin Your Closing Argument Bradley C. Nahrstadt ference between success and failure, or evidence. However, when doing so, the The closing argument is the only real between spectacular success and partial defense attorney must avoid the mis- opportunity a defense lawyer gets to success. Remember, the jury is more statement of evidence. That line can speak to the jury using his or her own likely to care about your case, and about never be crossed. When you cross that terms and style. The facts come from your client, if they see that you care. line and misstate the evidence, you will the witnesses, but the closing argument Ask yourself, would you rather be like have destroyed your credibility with the belongs entirely to the lawyer. It is the Demosthenes, of whom people said, jury and, along with it, any chance you time to summarize the case and explain “How well he speaks,” or would you may have had to win over the jury to to the jury in carefully selected words rather be like Cicero, who when people your side. As one pair of commenta- precisely why the defendant deserves heard him said, “Let us march!” tors has noted, “[m]ost jurors will give to win the case. A lot is riding on the you a great deal of leeway in arguing closing argument and, for that reason, 2. Fail to Deal with the Facts Thor- the conclusions and implications from defense counsel will want to make sure oughly and Methodically the evidence. However, most jurors in- that he or she avoids some of the more tuitively know when you cross the line You have to give the jury a solid basis common pitfalls that undermine a good and misstate the evidence. Certainly, at for accepting your case or doubting the closing argument. With all due respect least some jurors will have a clear recol- other side’s case. Many trial lawyers to David Letterman, what follows, in lection of what the witness actually said build a good case by means of thor- no particular order, is my list of the Top and that you have stated it wrongly. At ough direct examinations of their own Ten Ways to Ruin Your Closing Argu- that point, you likely have lost the case, witnesses or killer cross-examinations ment. because your credibility will have been of the opponent’s witnesses, but then seriously damaged.” Andrew D. Ness fail to remind the jury of exactly what and Louis Bagwell, Closing Arguments: 1. Refuse to Share Your Passion they accomplished. The principle of The Law and Practical Considerations, 24 About the Case with the Jury restraint on cross-examination (be brief Construction Lawyer 29, 34 (Summer You must share your own passion for and avoid that one question too many) 2004). the case with the jury. If you are not is premised on the fact that you will engaged in the case, then you cannot drive the important points home during expect the jury to be moved to decide closing argument. Do not forget to do 4. Refuse to be Brief the case in your favor. You cannot fake so when the closing argument finally ar- When asked for his advice about what passion—it has to come from the heart. rives! makes a good speech, Franklin D. Recognize what drew you to the case, Roosevelt had the following to say: “Be to the client, or to the issues in the first 3. Misstate the Evidence brief; be sincere; be seated.” Roosevelt, place and turn that recognition into pas- himself a lawyer, could just as easily have In order to win, you must maintain your sion for the client and the cause. When been talking about a closing argument. credibility—with the witnesses and the jurors see, hear and feel passion, they At the beginning of the closing ar- client, to be sure, but most importantly cannot help but be moved, impressed gument, the jury will be completely with the jury. A big part of the trial and excited—reaching the jury on an focused on you. However, this total lawyer’s job is to argue the implications emotional level can make all the dif- concentration and attention does not and conclusions to be drawn from the last very long. As a result, using those Bradley C. Nahrstadt is a partner with Williams Montgomery & John Ltd. in Chicago. His areas of practice include product liability, insurance coverage, labor and employment, class action and MDL litigation. He can be reached at [email protected].

Spring 2009 Trials and Tribulations 25 precious early moments effectively is ex- plaintiff’s attorney. To those who say 6. Don’t Give the Jury a Suggested tremely important. Structure your clos- that defense counsel’s figures will serve Damages Figure ing argument to ensure that your most as a floor for the damages to be awarded, persuasive points are made as quickly as There are those who suggest that the I say it is much better to concede a floor possible. You cannot do this if your ar- defense attorney should never address than to be at the mercy of the jury who gument is lengthy and complicated. Ac- the issue of damages in the closing argu- has only the plaintiff’s numbers for con- cordingly, your closing argument needs ment, especially in a case where it seems sideration. to be short, simple and logical. Striv- apparent that the defense is going to win on the issue of liability. This author is ing for the goal of brevity should and 7. Don’t Take Care to Explain and not one of those people. The case books will lead to simplicity, and simplicity is Support the Recommended Verdict much to be desired when it comes to abound with examples of cases where Defense counsel’s closing argument closing arguments. Ness and Bagwell, the defense was murdered because no should tie together the defendant’s li- supra, p. 35. effort was made to address the issue of damages in the closing argument. ability and damages theories in a coher- Take the case of Pennzoil v. Texaco, ent, persuasive manner that supports the 5. Refuse to Face Bad Evidence which involved a claim by Pennzoil that recommended verdict. The defendant’s Head On Texaco interfered with an agreement liability and damages theories should be You cannot afford to ignore bad evi- that Pennzoil had to acquire Getty Oil. stated early in the closing argument and dence in your closing argument. The Texaco’s counsel did not argue damages repeated as often as possible throughout jury knows what that evidence is, will in the closing argument; Pennzoil’s at- it. The liability and damages themes certainly hear about it from your oppo- torney devoted a substantial portion of should be phrased (and reiterated) so nent, and will certainly notice if you fail his summation arguing for an award of that they are the most memorable sen- to address it. Undoubtedly, your oppo- significant damages. The jury returned tences of defense counsel’s address to nent will bring your failure to deal with a verdict of $10 billion dollars. the jury. If the jury is to retain only one bad evidence to the front and center In some surveys, one of the most kernel of information from the closing during his or her rebuttal, so you need frequent complaints registered by ju- argument, that kernel must be the de- to face any bad evidence head on and rors was the insufficient guidance they fense theory of liability and damages. explain to the jury why this evidence received regarding the awarding of dam- does not militate in favor of a finding ages. See, Green & Bornstein, Precious 8. Fail to Use Demonstrative Aids for the plaintiff. Little Guidance: Jury Instruction on Dam- Study after study has confirmed that Address any bad facts or evidence in the ages Awards, 6 Psychology, Public Policy people process visually presented infor- middle of the closing argument, when & Law 743 (2000); Vidmar, The Per- mation very effectively and a combina- the attention level of the jury tends to be formance of the American Civil Jury, 40 tion of orally and visually presented at its lowest. You do not want to address Ariz. L. Rev. 849 (1998). Researchers information works best of all. Although troublesome evidence at the beginning have noted that jurors seek anchors, i.e., “a picture is worth a thousand words” is of the closing argument since that is amounts or information they can use as an overworked cliché, in this television when you want to lay out the strength reference points in determining an ap- age, it remains an important truth. You of your case. Likewise, you do not want propriate amount for damages awards. used visual aids and graphic exhibits to wait until the end of your closing Dorothy K. Kagehiro, Factors Affecting during the course of trial-- don’t forget argument to address bad facts, since you Jury Damages Awards Decisions, 45 For to use them during the closing argu- want to close on a strong and positive the Defense 18, 19 (Aug. 2003). As a ment. Demonstrative exhibits can con- note, returning to your themes one last result, defense counsel must confront vey considerable information or a big time. the damages aspect of the case head on concept in a very efficient and simple and provide the jurors with a figure. way. Directing the jury to a few chosen The anchor provided to the jury simply words from a vital document that has cannot be the figure suggested by the been highlighted and enlarged or show-

26 Trials and Tribulations Spring 2009 ing a computer animation about how in the place of an injured party and or an instruction to the jury to disregard the accident likely occurred can have a award an amount commensurate with the statement. See, e.g., Houston Light- tremendous impact on the jury. Devel- what they would charge to undergo ing & Power Co. v. Fisher, 559 S.W.2d op at least one good exhibit to illustrate the disability, pain and suffering expe- 689 (1977); Azile v. King Motor Center, the central theme of your case and use it rienced by the plaintiff, also known as Inc., 407 So.2d 1096 (1982); Quick throughout the closing argument. the “Golden Rule” argument, is im- v. Crane, 111 Idaho 759, 727 P.2d 1187 proper and should draw an objection. (1986). 9. Don’t Personalize Your Client See, e.g., Brant v. Wabash R. Co., 31 Ill. Closing argument is a skill that th lawyers do not use every day. In this In order to find in favor of a particular App.2d 337, 176 N.E.2d 13 (4 Dist. respect, it is much like the police officer defendant, the jury must relate to that 1961); Brokopp v. Ford Motor Co., 71 who fires his gun: it’s not done much, defendant; the jurors must believe that Cal.App.3d 841, 139 Cal. Rptr. 888 but, when needed, it had better be done the defendant is in the right. In order to (1977); Cox v. Valley Fair Corp., 83 N.J. right! Following this Top Ten list will help the jurors reach that decision, you 381, 416 A.2d 809 (1980); World Wide hopefully allow defense counsel to craft have to personalize the defendant. This Tire Co. v. Brown, 644 S.W.2d 144 and present a closing argument that will is especially true in the case of a corpo- (1982). “Per diem” arguments—asking serve the client well and result in a fa- rate defendant. Explain to the jurors the jury to use a mathematical formula vorable verdict. that the corporate defendant is com- to calculate an amount for each day of posed of people just like them—people pain and suffering—are likewise inap- who are trying to do the right thing. propriate. Per diem arguments are Have a personable corporate representa- objectionable because of the speculative tive sit with you at counsel table. Stand nature of such mathematical formulas next to this person as you begin your and because they are not based on facts closing argument, reintroduce him to presented in evidence. See, e.g., Caley the jurors and thank the jury for their v. Manicke, 24 Ill.2d 390, 182 N.E.2d service on behalf of that individual and 206 (1962); Boop v. Baltimore and Ohio the company that he or she represents. R. Co., 118 Ohio App. 171, 193 N.E.2d When making your closing argument, 714 (1963); Grossnickle v. Germantown, identify with the client by saying “we” 3 Ohio St. 2d 96, 209 N.E.2d 442 and “us” throughout the course of your (1965). summation. And remember, as a general rule, when opposing counsel makes an im- proper argument, an objection must be 10. Don’t Pay Attention to the Ar- made at the time of the improper state- guments Made by the Plaintiff’s ment in order to preserve the issue for Counsel appeal. In addition, making a timely Don’t use the plaintiff’s closing argu- objection provides the attorney who ment as the time for a mental break. made the statement and the court an Pay careful attention to what plaintiff’s opportunity to rectify the damage, ei- counsel says during his or her closing ther through an admonition to counsel argument. Asking the jury to put itself

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