Volume MMXVII No. 2 Summer 2017 Lawyers Beware: Deciding How to Pick a Jury Your Adversary’s Privilege in 30 minutes Issue is Risky Business By Mark Mazarella By Kenneth M. Fitzgerald I have many fond Fitzgerald Knaier LLP memories of my youth. Among them are: play- A potential gift from ing sports as hard as I the litigation Gods falls could without getting into your lap. Your cli- hurt; closing down local ent provides you with drinking establishments an email that appears and feeling just fine in to contain an attorney- the morning; and actually client communication having the opportunity between your client’s liti- Mark Mazarella to ask every single one of gation adversary and the my prospective jurors as Kenneth M. Fitzgerald adversary’s lawyer. While many questions as I wanted. I’ve had to adjust obviously privileged, the with the passage of time. Sports are now best email is helpful to your case. Moreover, the watched from a comfortable chair. Lights are out email shows third parties were copied on the by 11:00 p.m.. And I’m lucky if I get to ask ev- communication between your opposing counsel ery one of my prospective jurors even one ques- and his client. It seems likely to you that the tion. As jury selection has gone the way of the privilege was waived, because the adverse party ice caps, I’ve been given 30 minutes to examine disclosed the communication to third parties, not just the 12 jurors seated “in the box,“ or one of whom eventually provided it to your cli- even the usual 18 that are examined initially, ent. but as many as 35 jurors—in 30 minutes. Do What do you do? Option 1: Make use of the the math, that’s not even a minute a juror. I’ve email in the litigation? Option 2: Promptly alert had jurors seated to whom I did not ask a single your opposing counsel that you received what question. Now that is scary! appears to be a privileged communication, so that you can discuss it, and seek the court’s (continued on page 5) guidance in the event you cannot agree as to whether there was a privilege waiver? Inside The Fourth District Court of Appeal recently made it clear that Option 2 is your only sensible April 4th dinner program recap: TrialPad vs. Trial Director vs. Butcher Paper option, at least if you don’t want to be disquali- By Sara A. McClain, Esq. ........ p. 03 fied in the event you are wrong about whether the privilege remains intact. The California Supreme Court Rules That Public Injunctive Relief Cannot Be Waived In Consumer Arbitration Agreements In McDermott Will & Emery LLP, et al. v. Su- By Courtney L. Baird and Elizabeth R. Favret ........ p. 12 perior Court, et al., 2017 WL 1382132 (Cal. Ct. Nuts & Bolts Recap: App. Apr. 18, 2017), the Court of Appeal up- An Ounce of Preparation: How Due Diligence at the Outset held the trial court’s disqualification of Gibson of a Case Can Help Avoid Common Pitfalls By Alejandra Mendez ........ p. 14 Appellate Tips: (continued on page 10) Moment of Truth: Objections to Statements of Decision in California Rupa G. Singh ........ p. 16 Solutions Beyond Litigation 1010 Second Avenue | Suite 2400 San Diego | CA | 92101 619.992.2163 WWW.POKORNYMEDIATIONS.COM 2 April 4th dinner program recap: TrialPad vs. Trial Director vs. Butcher Paper By Sara A. McClain, Esq., Shoecraft Burton, LLP There’s no question that today’s world of advanced technology and fast-paced information sharing is changing courtroom landscapes. But is faster always better? To help answer that question, the ABTL’s April 4th dinner program put three common methods of trial presentation to the test: Trial Director, Trial Pad, and Butcher Paper. All three had pros and cons but which won out? The answer might surprise you. Butcher Paper: Bob Shoecraft of Shoe- screen function which allows you to display a craft Burton, LLP was tasked with making the witness’ videotaped deposition concurrent with paper method of trial presentation relevant in another piece of evidence, such as a document today’s modern courtroom. The most obvi- prepared by the witness. This is particularly ous advantage of using butcher paper is cost. useful when the witness’ testimony contradicts For less than $100, Shoecraft was able to pur- the content of the document. The feature allows chase all the necessary equipment, including for extremely effective use of evidence to point multi-color pleasant smelling markers. And out contradictions and holes in the opposing like technology, butcher paper has also made party’s case. This feature is best used when at- its own advancements as it now comes with ad- tempting to impeach a witness or in closing ar- hesive backing similar to a giant post-it note. gument. Similarly, the “call out” feature allows This makes it easier to post your images and for you to highlight portions of an exhibit, either use multiple pages at one time, giving you lon- literally, with a highlight tool, or many other gevity and staying power in the presentation of tools, such as enlarging particular text. This evidence. It also gives you significant mobility feature directs focuses the audience attention and allows you to display the information where to where you want it. This too is quite useful you want to, rather than where the monitors during closing. The most obvious drawback to are. Butcher paper can be particularly effec- Trial Director is the cost. It requires a $700 up- tive for presenting chronologies, timelines and front licensing fee per computer, and an annual sequences. And it allows your witness to per- maintenance fee. However, for trials where im- sonally interact with an exhibit, One of the cons ages and custom graphics are an integral part is the requisite good penmanship, because what of your case, the $700 may not be a con when good is it if the jury can’t read it. Similarly, ty- you consider the cost of foam board blow-ups. pos and mistakes can only be fixed by starting Additionally, using any computer-based trial over with a new page. As such, it is better to presentation method requires a mastery of the have your presentation prepared in advance to program so unless you are sufficiently comfort- ensure smooth transition between pages and able with the software, you might want to con- minimize the inherent distractions of human sider butcher paper. error. Trial Pad: Michael McCloskey of Wilson, Trial Director: Rebecca Fortune of Kim- Elser, Moskowitz, Edelman & Dicker, LLP, made ball, Tirey & St. John, LLP used Trial Director a valiant effort to highlight the advantages of like a pro because when it comes to Trial Direc- Trial Pad, a less expensive program similar to tor, she is one. Rebecca is an expert when it Trial Director. For those who already have an comes to Trial Director and it showed as she iPad, Trial Pad may be your go-to trial software. kept pace with her witness and kept the au- Available as an “app” in the iTunes store, it can dience’s attention without any hiccups. One be downloaded for $130 and tends to be more of Trial Director’s many features is the split- (continued on page 4) 3 TrialPad vs. Trial Director vs. Butcher Paper (continued from page 3) user-friendly than Trial Director, especially for The Verdict: After each panel member pre- those already familiar with Apple’s interface. It sented their opening statement, witness exami- has many of the same popular features as Trial nation, and closing argument, the audience was Director, including the “call out” feature. An- polled to determine which method was the fa- other desirable feature is mobility. Because you vorite. At the end of the evening, one thing was are not tied to a laptop, you are free to move clear: our panel members each did a fantastic around the courtroom which allows for more job as there was no clear winner. Team Butcher personal interaction with the jury and witness- Paper achieved just a slight edge over Trial Di- es. This can be particularly important when rector and Trial Pad. The best trial presentation gaining a rapport with your jury. The Trial Pad method depends on a variety of factors includ- presentation also highlighted the drawback of ing the litigation budget, the central disputed any computer-based trial presentation method: issues in the case, the number and nature of technical difficulties. Fortunately, being the tri- exhibits you intend to use, and your own famil- al pro that he is, McCloskey was able to adapt iarity with the presentation method. and keep moving. The lesson to be learned there is not to become so dependent on courtroom technology that your case falls apart without it. 4 How to Pick a Jury in 30 minutes (continued from cover) I could whine and complain about it, and sometimes do. But, it rarely does me any good. These days I usually only get 30 minutes for voir dire, 45 if the judge is feeling generous, or just wants me to quit whining. Of course the judge asks each juror the 6 to 8 questions on the cards left on each juror’s seat. “What part of the city do you live in?” “Are you married?” “What do you and your spouse do for a living?” “Have you ever been a juror?” “Did the jury reach a verdict?” That helps. But usually it is more impor- tant to know how jurors feel about what they do than it is to know what they do.