(323) 652-9451(805) 845-1752
(323) 652-9451The ABA Journal reported on Friday that a Pennsylvania judge held a lawyer in contempt and increased the bond for his client when they were late for a jury trial. “We were all here at 9 a.m. for a jury trial and the defense table was empty,” said the judge, who had dismissed the prospects not long before the two arrived. “We wasted a jury panel.” The lawyer later claimed that personal problems kept him up late and the hotel failed to give him a wake-up call.
Readers can receive this in many ways. Some will say, good for the judge, he did the right thing. Others will think it’s over the top and the judge was out of line. After all, everyone has been late at one time or another. Is contempt and a $1,000 fine (which the judge ordered later) really appropriate?
I don’t know. I suspect if I was the judge the outcome would have depended on whether I was particularly irritable that morning. Not very even-handed, I know. But whether a lawyer is held in contempt for being late, or simply slapped on the wrist, the lesson we should learn from this particular Pennsylvania judge is the same: don’t be late for a jury trial. Ever. Period.
I’ll confess I’m sometimes challenged when it comes to getting somewhere on time. I make this confession so you won’t mistake me for someone who is self-righteous about his meticulous habits. But there are two events for which I take great pains to be on time. One is to catch an airplane and the other is for trial.
It’s been my experience that most judges presiding over a jury trial tend to put the interests and needs of those serving jury duty at or above his/her own. If you are before one of these judges, the quickest way to earn the judge’s scorn is to keep an impaneled jury waiting. (It doesn’t help that, when you keep the jury waiting, you’re also keeping His/Her Honor waiting as well.) In case it’s not obvious: the judge’s scorn often translates to the jury’s scorn, which you don’t want.
My mentor has always had a rule that the hotel where he stays and sets up his war room during trial must be the very closest possible hotel to the courthouse. It doesn’t matter if this is a den of filth, replete with vermin and cockroaches. He knows when he’s in trial he’s at war. There’s no time to be tied up in one of those unpredictable traffic jams. If you know you can walk to the courthouse in a reasonable amount of time, rain or shine, it’s one less thing to worry about. Worry = wasted mental energy, and mental energy is precious during trial.
If you don’t believe me, just ask Berks County, Pennsylvania Judge Stephen B. Lieberman. But leave my name out of it.
“Us lawyers spend a lot of time preparing for cross, thinking about cross, going to classes to learn about cross, and basically obsessing about cross and scaring ourselves to death over the prospect. But here is the truth. There is no one perfect way to do cross that works on all expert witnesses. There is no magic bullet that will work every time. Did I read his report in advance – yes. Did I read a few depositions he had given before yes (thanks Ben Wells). Did I make some notes – yes. Do I know the chapter approach – yes. Do I know the rules approach – yes. Have I gone to reptile – yes.
But in truth, I do not know what I’m going to do in cross until Jodi sits down and it is my turn. Being able to be in the moment. Not focusing on obscure minutiae. Being able to figure out how the message can be conveyed to the jury as quickly and powerfully as possible. This is what is needed in cross. At least for me.” (Emphasis added.)
In Cross-Examination: The Mosaic Art, John Nicholas Iannuzzi discusses this intersection between preparation and spontaneity. He says:
“[A]s you cross-examine on your feet, even if you have a full-blown cross-examination script in hand, you are not hide-bound by that script, but are continually revising and adjusting the cross-examination to accommodate the twists and turns that inevitably arise as the witness twists and turns to elude the thrusts of your questions. Therefore, that capacity and flexibility to improvise and formulate cross-examination quickly, while on your feet, is the same capacity which permits you to formulate your attack well, quickly, and professionally, despite the shortness of preparation time.” (p.127)
The key element here would seem to be confidence. Solid preparation builds confidence. This also holds true when taking depositions. If I am for some reason ill prepared, I remain glued to whatever outline I’ve created. When extremely well prepared, I feel far more comfortable drifting from my script, comforted by the knowledge it is available for me to retreat to, if necessary.
It would seem, then, that preparation and spontaneity do not play equal roles, since spontaneity thrives on preparation. For most of us (who are not Robin Williams) the converse is probably not true.
The statute sounds ominous, doesn’t it? I remember being a new defense lawyer in the early 1990s opposing motions to exempt a case from the Five Year Rule for some reason or another. I was awed by the relative calm with which plaintiff lawyers argued these motions, on the very eve of expiration, as though they had nothing at all to worry about. I knew that I would be an absolute wreck if I thought there was even the smallest chance my client’s case would be dismissed. But, I never had a case get dismissed for failure to start trial in five years. It seemed like the statute had more bark than bite.
The Five Year rule never went anywhere. Instead, the California courts changed, rendering the Rule completely irrelevant. Around my third or fourth year, the state courts initiated the Delay Reduction Act, or “fast track” rules. When the fast track rules (majority of cases to be tried within one year) were first implemented, I remember judges were really difficult if you wanted to exempt a particular case from the fast track. God forbid a case might legitimately take 18 months or, gasp, 2 years to be ready for trial. Certain judges were so committed to the new rules that they would set a trial date within 12 months even if it fell on Christmas eve or interfered with someone’s wedding or honeymoon. I suppose it seemed particularly draconian because I hadn’t yet realized that, regardless when they’re set, most civil cases never actually start trial.
While it’s mostly dinosaurs like me who remember the Five Year Rule, it now seems that, with the massive changes to California’s courts occasioned by the budget crisis, the Rule could become relevant again. If we do see a resurgence of motions to dismiss under the Five Year Rule, here are a couple of things to keep in mind:
However, even armed with dicta from Bruns, lawyers representing plaintiffs must be able to show they’ve been diligent in moving the case along. Otherwise, mandatory dismissal is technically possible.
Ever found yourself in that situation where you are not only losing an argument or motion, but it seems mysteriously like the judge is bent on preventing you from making a decent record of your position?
In Litigation, the wise Professor McElhaney identifies games judges commonly play with attorneys in the interest of preventing them from making a record which can be used to challenge the ruling on appeal. He writes, “If [the judge] can force lawyers to waive objections or forget to make offers of proof . . . it will improve [the judge’s] batting average with the court of appeals.” (p.294) Here are a few such games:
1. Cutting off, under the guise of preventing speaking objections, any argument or objection.
2. Refusing to permit offers of proof at the time an objection is sustained; requiring counsel to wait until the next recess or next day of trial, when they’re likely to forget.
3. Insisting that exhibits be offered and admitted only at the end of the entire trial. This “forces lawyers to waive most of their evidentiary objections about exhibits. At the end of trial they are thinking about their final arguments, not about foundations or rulings.” (p.295)
4. Making “weasel” rulings on evidentiary objections: “I’ll let it in for what it’s worth.”
5. Making noncommittal rulings. “I’ve heard enough, let’s proceed.” Or, “All right, I understand your positions; let’s move along.” These aren’t rulings and, regardless what happens next (i.e., the objected-to question is answered and/or the jury hears the evidence), it will be all but impossible for an appellate court to identify an error, since the judge shirked her responsibility to make a ruling.
Recognizing your judge is playing one of these games will help you to maintain your resolve to make an effective record. Oh, and if you’re in a California state court, be sure to order and pay for that court reporter, otherwise you’re not going to be making a “record” at all.
There is the temptation, it’s almost primal, to be derisive, if not outright mean, when cross-examining a witness who has lied in the past or is lying on the stand. Even if it’s only theatrical, to provide an example to the jury how they should regard the witness with suspicion or contempt, it seems almost natural to treat her with disgust.
But it’s important to bear in mind that, even if the substance of the cross-examination establishes the witness is a liar or unsavory individual, the jury might not reward an examining lawyer–or his client–if he crosses the line. The real challenge, however, comes when litigating a case on the road, in a venue whose culture draws “the line” of civility differently than an attorney’s home court. I’m thinking here about an experience my colleague had some years back when he (a Los Angeles lawyer) tried a civil case in Hawaii.
I’ve visited Hawaii a few times, but never had an opportunity to conduct business of any kind beyond securing a reservation for dinner or a scuba dive. Frankly, I’ve never given a thought about how Hawaiian citizens would receive a cross-examination of a witness differently than someone from Los Angeles. But it turns out that they don’t cotton well to a lawyer who takes a harsh tone to a witness during examination. This became clear to my colleague (this is hearsay, of course, I wasn’t there) after he cross-examined an important witness using a less-than-gentle tone. Apparently it was clear to everyone in the courtroom that the jurors did not react well as the witness was being subjected to a tone of questioning we Californians might consider perfectly appropriate.
That night, in preparation for the following day of testimony, it was decided that our local counsel, a native Hawaiian, would handle the cross-examination of the next adverse witness. I am told the contrast between the his tone during cross-examination, gentle, less confrontational, like “a knife cutting through heated butter,” and my colleague’s examination the previous day, was palpable. Let me make clear that my colleague’s cross was not over the top at all,† just consistent with how we would take such a witness here in Los Angeles. The difference was simply that the Hawaiian jurors do not appreciate the kind of confrontational tone we might employ when addressing a witness in cross-examination.
This highlights a concern we should always have when litigating, or even transacting any king of business, in a venue that is culturally different from our own. When faced with a trial in a culturally unfamiliar venue, I would always recommend involving local counsel, if only to advise about these kinds of cultural differences.
†In fact, it was not a “temper” or anger issue, at all. The title of this post is probably an unfair misnomer.
A couple of posts back, I tried to address the difficulty of getting jurors to apply commonly used, but inherently ambiguous, legal terms and principles, such as “reasonable” to the facts of a particular case. For example, when the jury is instructed that a defendant is liable if he/she/it acted “unreasonably” under a set of circumstances, what are jurors supposed to do with that term?
A solution proposed by Rick Friedman and Patrick Malone, in their popular book, Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability,† involved developing a set of rules or principles or standards which, when applied to the evidence of what occurred in the case, yield the conclusion that the defendant did not act reasonably (or indeed acted reasonably, depending on whether you represent the plaintiff or the defendant). In that post, I promised to follow up with some guidelines, or rules of the rules of the road. Here we go.
Rule No. 1: A rule of the road should be a requirement that the defendant do, or not do something. (22) The authors describe the basic structure as follows:
“A [type of defendant] should (or should not . . .) do [fill in relevant conduct sought to be enforced by plaintiff].” (23)
Here’s an example: “A surgeon should carefully identify what it is he/she is supposed to be cutting before commencing surgery.” Or, “An insurance claims examiner should fully, fairly and promptly evaluate and adjust a claim for coverage.”
Rule No. 2: A rule of the road should be easy for the jury to understand. (22) After all, the whole point of having rules of the road is to aid the jury in understanding an already ambiguous word or concept in a way that is favorable to your client. To illustrate this point, the authors suggest that, in the context of a physician’s alleged failure to diagnose a disease, a rule of the road can be gleaned from an internal-medicine textbook. However, the language from the textbook may be unnecessarily arcane, and a principle that jurors can easily understand may need to be refined into more accessible wording. (I realize my own wording is often inaccessible and arcane and my blog posts should probably be re-written to be easier for readers to understand. Blame all those philosophy books I read in college.)
Rule No. 3: A rule of the road should be a requirement that the defendant (or, if your client is the defendant, then the plaintiff) cannot credibly dispute. (22) Your opponent may not easily buy into the rule but, as the authors point out, “[d]isagreeing with the Rule should hurt the defense as much as or more than agreeing with it. If a doctor endorses a text as authoritative . . . he is going to look bad disagreeing with a simple, straightforward principle stated in that text.” (25-26)
Rule No. 4: A rule of the road should be a requirement the defendant has violated (or, if you represent the defendant, one he has not violated). (22) Otherwise, why would that principle or standard matter?
Rule No. 5: A rule of the road should be important enough in the context of the case that proof of its violation will significantly increase the chance of a favorable verdict. (22) “This is not like issue-spotting in law school. Your case does not get better in proportion to the number of Rules you add to your list.” (30)
The Rules of the Road approach offers a strategy to bridge the chasm that inevitably exists between broad, ambiguous legal terms and principles and the concrete evidence received by the jury during trial. As the authors note, “[w]e cannot let jurors make up their own definitions.” (15) And you certainly shouldn’t let your opponent do the defining. Developing a set of rules that adheres to the requirements above should help you avoid getting broadsided at trial.
†Citations are to the second edition.
One of my great pleasures in raising my daughter is watching her encounter and struggle to make sense of the inherent ambiguities of our language. Puns are a particular favorite. She first learns to draw a picture. Then her mother suggests she’s going to draw her a bath. She gets into bed and draws up the covers. We have yet to draw a conclusion, but that’s coming. Whenever we encounter a word with multiple meanings, it is a simple matter to draw her attention back (pun intended) to the d-word.
I am not a poet, but I do delight in the elusive, liquid ambiguity inherent in language. Except, that is, when drafting (and hoping a jury will understand and follow) jury instructions. Then the indeterminate nature of our language can become an obstacle. An obstacle to understanding. An obstacle to winning.
A great example occurs when we ask jurors to apply a “reasonableness” standard. Was a driver’s operation of his vehicle reasonable? Did the doctor act reasonably when he did not order a particular diagnostic procedure? Was it reasonable for the insurance carrier to deny coverage based on the information available to it?
Whatever issues scholars raise about the “reasonableness” standard, I’m speaking now only about the difficulty in getting jurors to understand and apply such a term in deciding the outcome of my client’s case. And, because I am, yes, a lawyer, by “understand” I mean to know and use the term in a way that guarantees a verdict in my client’s favor.†
Rick Friedman and Patrick Malone, have dealt with precisely this challenge in their popular book, Rules of the Road. Of course they describe the problem far better than I do:
“For the jury, we need to define ‘reasonably prudent doctor’ and ‘reasonable basis’ . . . and all other ‘reasonables’ . . . too. We cannot let jurors make up their own definitions.” (p.15)*
But, without guidance, we know jurors will absolutely make up their own definitions. And, as Messrs. Friedman and Malone point out, they’re not likely to get this guidance from the judge or other jury instructions. It’s up to the trial lawyers to teach the jury about the meaning of reasonableness, so they’re prepared to apply the otherwise nebulous standard to the evidence of the case.
How to do this? As you can imagine from a book subtitled, “A Plaintiff Lawyer’s Guide to Proving Liability,” their methodology is presented 100% from the plaintiff’s perspective. But that doesn’t dilute the quality of their solution to the problem for a lawyer representing either a plaintiff or a defendant. Essentially, the lawyer formulates a set of “rules of the road” which are guiding principles for the conduct of a reasonable actor (i.e., doctor, insurance company, driver). By developing these “rules,” and then establishing that the defendant did not do some or all of them, it becomes possible to educate and persuade the jury to find in the plaintiff’s favor on the ultimate question whether the defendant was unreasonable and, thus, liable.
As the authors point out, the “rules of the road” for a particular case can derive from several sources, including statutes, case-law, textbooks, industry standards, articles, expert opinion and contract provisions. The most comprehensive example given in the book of a set of “rules of the road” involves the standards and principles an insurance company should adhere to when handling a claim. Here are some they list:
“4. Company must conduct a full, fair, and prompt investigation of the claim at its own expense.
5. Company must fully, fairly, and promptly evaluate and adjust the claim.
* * *
7. Company may not deny a claim or any part of a claim based upon insufficient information, speculation or biased information.
* * *
11. Company must give claimant written update on status of claim every thirty days, including a description of what is needed to finalize the claim.” (pp.16-17)
During opening statement and expert testimony, the jury learns that these principles are valid and accepted standards for an insurance company to follow when handling a claim presented by an insured. The evidence is then framed so that it is easy for jurors to see how the standards were not met. (Conversely, for the defendant, that the standard was met.) If, for example, a claims adjuster is not prompt in evaluating a claim, and does not provide regularly written updates on the status of the claim, he has violated two of the “rules of the road” for insurance claims handling. If the evidence establishes the insurer did not have sufficient information on which to base its denial of coverage, there’s another rule broken.
In closing argument, in discussing the ultimate question, i.e., whether the insurance carrier was reasonable in its handling of the plaintiff’s claim, it becomes much easier to educate the jury how, given the accepted claims handling standards they’ve heard so much about, the carrier was most certainly not reasonable and a verdict in plaintiff’s favor against the company is appropriate.
I recognize this is unfairly reductive. It is not reasonable or even possible in a 900 word blog post to do justice to a 300+ page book. But this is the goal of the book, providing a framework for trial lawyers to break down complex or undefined terms, like “reasonable” into concepts that readily guide a trier of fact into returning a favorable verdict. I plan to do a follow-up post in the future which discusses the authors’ criteria for developing “rules of the road” which apply to a particular defendant or case. Until then, stay in your lane!
†Yes, I do know there are no guarantees.
*All citations are to the second edition.
One of the earliest motions I learned to write while working as a law clerk was a motion in limine. Perhaps because of the brevity and intentionally narrow scope of these motions, the job of preparing and opposing them seems to regularly fall on young associates.
(For the benefit of readers who are unfamiliar, a motion in limine is a document which asks the court to rule on the admissibility of an item of evidence in advance of, trial and outside the presence of, the jury. One example might be a motion in limine asking the judge in an automotive product liability case to issue an order evidence that a driver was intoxicated on the grounds that the driver’s intoxication is not relevant to whether there was a defect in the vehicle that caused injury.)
The relegation of these motions to clerks or younger lawyers suggests to me that lead trial lawyers believe such motions are simple, should be straightforward or have only a minor impact on the trial. I want to argue this thinking is as mistaken as the assumption that a novelist’s craft is more complex than that of a short story writer.
Even if trial lawyers don’t see it this way (at least at first), I’ve heard many judges confirm the notion that prevailing in most trials comes down to one or two issues, or facts, or items of evidence. We’re often stuck with our good or bad facts. But to the extent one side can identify those one or two issues or facts, and devote resources to capitalizing or eliminating them from the jury’s “universe,” this can strongly impact the outcome.
Consider a couple of examples, starting with the intoxicated driver above. The defendant will want to apportion fault to a driver for causing a crash to occur in the first place. That one of the drivers was drunk makes this much easier (even if the forensic evidence suggests the driver did not cause the crash, the jury will automatically assume he did regardless of the evidence). The plaintiff, then, might want to move to exclude this evidence on relevance grounds (and potentially because it could distract the jury from the product manufacturer’s alleged fault). Success on this motion could be a game-changer for the outcome of the trial.
Another example. What if the defendant in a sexual harassment case had a history of prior complaints against him with the same employer by other women. The plaintiff will obviously view such evidence as crucial to winning her case. However, if the defendant employer, through a well-crafted motion in limine was able to keep the prior complaints out of evidence because they were factually dissimilar from the plaintiff’s complaint, this could literally “gut” the plaintiff’s case against both the alleged harasser and the employer (who could be held liable for continuing to employ the harasser following the prior complaints).
I hold the view that many lawyers do not effectively use motions in limine. They are often superficial, or thrown together and filed as an after-thought. They often file too many, diluting the importance of any individual motion in the eyes of the court. So I offer the following thoughts on how to more effectively seek (or oppose) pretrial evidentiary rulings.
Think of A Motion in Limine As A Knight, Not A Pawn. My biggest beef with the way most lawyers–on both sides of the table–use pretrial motions is the sheer volume of motions they file. In a not especially complex wrongful death case, I once had to oppose 29 separate motions in limine. And these came from the plaintiff’s firm. A really good plaintiff’s firm.
What’s wrong with too many in limine motions? The biggest problem is the burden on the court, the judge and her clerks. We all know the lawyers have to work day, night and weekends preparing for trial, but do you really want to be the one unnecessarily causing the judge and court staff to be pulling all-nighters? I don’t.
A subtly related reason not to over-file pretrial motions is that the judge and her clerks will quickly realize you’re unfocused and may (correctly?) conclude you don’t know what you’re doing. At the very least, after reading 3 or 4 frivolous in limine motions, there’s a good chance the court will give your arguments in all of the remaining motions short shrift.
Avoid the trap of viewing motions in limine as Pawns on the chess board of trial; see them instead as the Knights. This piece is the surgical bad-ass who silently eviscerates your opponent’s key pieces. In other words, leave out the true no-brainer motions, like excluding reference to insurance or settlement discussions. Look instead for opportunities to creatively shape the evidence that gets in front of the jury.
Don’t Just Crank Them Out. A major upside of being selective about pretrial motions and leaving out the kitchen sink is that it frees you, your associate and/or clerk up to prepare a real motion. You know, with citations to authorities, and even excerpts of deposition transcripts that support your position. It also frees up the judge and her staff to read and take seriously just a few well-written, properly supported arguments. They won’t be so pissed off with having to read 14 separate motions (just from one party) that they deny or put off considering the issues until they come up during the trial (which is exactly what they will do–trust me).
Meet and Confer. Regardless whether the rules of court or standing order require it, you should meet and confer, preferably in writing, before filing any motions. And be sincere in this effort, even if you believe it will be fruitless. As recently as three weeks ago my opposing counsel, in a case in which we were electronically filing documents, sent me an email inviting me to meet and confer on his anticipated pretrial motions. The problem was he sent this email quite literally 8 minutes before his office began the process of electronically filing 17 different motions in limine. It’s like a waitress who sets down a plate of bacon and eggs and asks what you’d like to order for breakfast. Don’t think I didn’t highlight this to the court. (I mean the weak meet and confer effort, not the bacon and eggs analogy.)
It Shouldn’t Be A Last Minute Exercise. I think about evidence exclusion from day one, and particularly during depositions. If I hear something in a deposition that I know I’m ultimately not going to want the jury to hear, I’ll make a note of it and go back and consult these notes when it comes time to think about pretrial evidence exclusion. While I had been, up until recently, an enemy of the dreaded deposition summary, I’ve come around and believe that preliminary thoughts about how to exclude a problem witness or keep out harmful testimony should be included in my new-and-improved deposition summary.
Again, well-planned and well-crafted motions in limine can be game-changing if they win. Hopefully, these suggestions will improve your chances of success.
This originally appeared in the Los Angeles Daily Journal.
At the risk of ridiculous understatement, all is not well in the California state court system. Last week it was reported that, over the last five years, about $1.2 billion has been taken away from our state judiciary, leading to the closure of 164 courtrooms and roughly 2,000 layoffs. In Los Angeles courts, the situation is just going to get worse. Another round of cuts are slated for June, meaning 25 percent fewer courtrooms, and the 16,000 pending personal injury cases will be divided among just three judges.
For those of us who cannot just “pack it in,” but must continue to ply our trade in this challenging environment, the question becomes how to effectively cope with these developments. The most natural response would be to choose a different forum. But federal district court is only an option when it is an option. And, while binding arbitration gives clients the chance to have their disputes heard where, when and by whom they chose, I argue this is rarely a reasonable alternative for at least two reasons. First, arbitration costs an arm and a leg, and these costs are frequently borne at the outset by just one party — usually the defendant. Second, putting one’s fate in the hands of a single decision-maker, with no possibility for review, is a bold step not to be taken lightly.
So, assuming federal court and arbitration are not viable alternatives, what can litigators do? Here are some suggestions:
Take control. The days of state court judges with the time or inclination to micromanage a case are behind us. This creates both a burden and an opportunity. If it furthers your client’s interests to take the helm and control the course of the litigation (and it usually does) and you package your plan in a way that is easy for the judge to adopt, it is possible to gain a tactical advantage.
Consider the Case Management Conference, which is often the first chance to meet the judge. Increasingly, it may be your only time with the judge before trial. Make the most of it. I’m not suggesting judges will begin to show interest in those vanilla Case Management Statement forms. But that doesn’t mean you can’t come to the conference prepared to get something done. Have an agenda and be specific. Want staggered expert disclosure deadlines? Raise it at the conference. Already having problems getting the other side to agree to deposition dates? Ask the judge to schedule them, making the dates part of the minute order. Many judges will appreciate having at least one attorney in the case who is awake at the wheel and ready to advance the ball. You will both curry favor with your judge and advance your client’s interests.
Look for early exit opportunities. This isn’t new or revolutionary. But fewer available courtrooms means it will take longer for your client’s case to reach trial. There was a period when judges aimed to push cases through within a year. This just isn’t going to be viable going forward. If an early exit by summary judgment or settlement is a possibility, pursue it earlier and save your clients the inevitable costs of languishing. Perhaps formulate a reasonable estimate of how early a summary judgment motion could be heard and reserve the hearing date right away. If you don’t, you may learn (as I did) that the court can’t hear your motion until about a week before your trial date (if then), which pretty much defeats the purpose of seeking summary judgment.
Be proactive in simplifying the case. Historically, it was not uncommon for a plaintiff to pursue every theory and keep every party initially sued in the case until the bitter end. This is not an indictment, but an observation. While ancillary theories are ultimately abandoned and unnecessary parties inevitably dismissed, the truth is they probably didn’t belong in the case to begin with and should have been omitted or “cut loose” much sooner. Simplifying the case sooner is not only the right thing to do; it will help reduce the judicial logjam.
Learn to meet and confer. We know the rules of civil procedure require us to demonstrate a good faith effort to meet and confer with opponents before filing discovery motions. Regardless whether we took that obligation seriously in the past, there is no question we must be sincere in our efforts to informally resolve discovery disputes now, since we’re unlikely to get rapid, if any, relief through judicial intervention. Meeting and conferring means earnestly trying to solve a problem, not just posturing.
Manage client expectations. Clients may have wildly different expectations about how a case will progress toward trial. To the extent these expectations may be unreasonable, based on another venue or a different era, take steps to ensure they are in line with the current environment. It is our court system, and not your practice, that is in crisis. Make sure your clients understand this.
Keep abreast. One major complaint cited in a recent Law360 article was the situation of showing up for a firm trial date only to learn it has been continued for weeks or months. We all know how disruptive trial preparation can be, not only for businesses, but also for individual clients. Contacting the clerk as a trial date approaches can often (though not always) yield information that helps reduce the surprise and attendant costs when the trial has been continued.
Is a court action really necessary? Pre-suit settlement has always been an option, but not always one taken seriously by lawyers or their clients. The current judicial budget crisis should change that. Not only will it take longer to get a case to trial, but the costs of getting there — from rising routine filing fees to optional, party-funded court reporters — are rapidly increasing. Where parties might have historically elected to proceed straight to litigation solely to enhance bargaining power or demonstrate resolve, it makes much more sense in the current environment for every party to thoroughly explore settlement before filing a complaint or refusing to further negotiate.
It is not inconceivable that more state general fund money will be allocated to the judiciary to alleviate the courtroom closures and staff layoffs. Until then, however, it falls on practitioners to do what we can to protect our clients during this challenging time. Hopefully these suggestions will help.
In his chapter on Jury Selection, Thomas Mauet suggests we put ourselves in the shoes of the prospective jurors in order to identify with them and maximize the opportunities that come from voir dire. This is what he says:
“Put yourself in the shoes of a prospective juror. You recently received your notice to appear for jury duty. This morning you arrived at the courthouse, waited in the jury room most of the morning, read a pamphlet about jury service, and were finally called, with about 30 other persons, and brought to a courtroom. You just entered the courtroom and sat down. You can see the judge on the bench, and various other persons in the front of the courtroom. And then you wait some more.”(Fundamentals of Trial Techniques, (3d. ed.) p.23.)
Sadly, during all of the years I have reported for jury duty, I’ve never even made it into a courtroom as a prospective juror. So for now I have to try to imagine what goes through the minds of prospective jurors as they get seated and are questioned by the judge and the attorneys. Mauet helps us along:
“Most jurors have little or no experience in the courtroom. They are in the midst of strangers. They are apprehensive and intimidated. They are worried that their ignorance about the jury trial system will show. They are concerned about their life’s secrets being exposed.” (Id.)
It would never have occurred to me that prospective jurors worry about secrets being exposed. If I reflect on it, though, some people are very uncomfortable revealing, even to one other person, the most basic information, such as their occupation, education level, etc. Of course, voir dire questions often get more personal, including your past experience with the civil or criminal justice system, whether you’ve been a victim or sued. Knowing most of the jurors are uncomfortable, and some even petrified, what’s a trial lawyer to do? Mauet suggests we “turn it around.”
“Change from being a stranger to being the jurors’ friend. If they feel intimidated, reassure them. If they are among strangers, make them feel comfortable. If they are worried about their ignorance, help them become informed. If they are concerned that secrets in their past will be exposed, reassure them. In short, the jury selection process is an opportunity for a trial lawyer to become the jurors’ friend and guide by helping them understand the trial system, by reassuring that they do belong here, and by letting hem know that their participation is important to you and your party.” (Id.)
Making strangers feel comfortable, reassuring them that publicly sharing their personal and family history is necessary and appropriate, is a pretty tall order. Is it possible? In some cases probably not. But Mauet’s point is well-taken. Recognizing the feelings and emotions of potential jurors, and attempting to connect with them in a way that is both human and humane, is surely the first step toward gaining their trust.
Law360 reported Wednesday that budget cuts are crippling the California state court system. Not that this is really news. Between court closures, job cuts, “no-host” court reporters, furloughs, getting regular, reasonable and reliable access to justice has become very difficult in California state court. And, it’s only anticipated to get worse. The article suggests that, in June, the Los Angeles Superior Court will experience a reduction to 25% fewer courtrooms. Apparently “all of the 16,000 personal injury cases are going to be divided among three judges.”
Really? How can any judge manage a docket of over 5,000 cases?
“Experts,” the article says, believe that plaintiffs will increasingly resort (gasp!) to filing their cases in federal district court. I know this is possible with employment actions where there are both state and federal remedies. But will this become a more appealing alternative to filing in state court and waiting as the case winds through that crumbling court system? I’m not so sure.
I’ve encountered a lot of practitioners on the plaintiff side who will do almost anything to stay out of federal court. I’m not suggesting that this is because these lawyers can’t, by putting in the effort, get up to speed and comply with the stringent federal procedural requirements. It’s more circular. Lawyers who have historically shied away from a federal practice seem less comfortable with the Federal Rules of Evidence or Civil Procedure, which leads them to choose state court, which perpetuates their discomfort with the federal rules and procedures, and on and on, ad infinitum. Could the clogged California state system get so bad that these lawyers overcome this bias against federal court?
There are at least two other reasons I don’t expect plaintiffs to rush into the federal courthouse. First, unanimous agreement among the jurors is required for a verdict in federal court. (FRCP 48) In California state court, only 9 of 12, or three-quarters of the jury, must agree to reach a verdict for the plaintiff. (CCP §613) This means a lot of wiggle room in the state system and absolutely no wiggle room in the federal system.
As I’ve noted, there’s also the question of where jurors are drawn from. In the Los Angeles Superior Court, the jurors will come from Los Angeles county, and typically a smaller judicial district closer to the courthouse. Thus, a case in the Santa Monica courthouse will get jurors with different socioeconomic, ethnic and educational backgrounds from a case pending in the downtown LA courthouse. The federal district courts, however, draw from the entire Northern, Southern, Eastern or Central districts, each of which is a broader conglomeration of separate communities. On the defense side, we often believe this tends to dull the anti-corporate bias which might be prevalent in any one community.
Finally, I cannot attest to the accuracy of this premise–but it has been my experience with federal district court judges that they at least seem more conservative and less pro-plaintiff. At the very least, they pay closer attention to the procedural rules and have less tolerance for blatantly sloppy lawyering. While I can’t control much once a case or issue is in the hands of a judge or jury, I can ABSOLUTELY control whether the lawyering is sloppy. Not everyone is so eager to please.
So, while I’m confident the crisis in the California state court system will have repercussions and practice-changing consequences (such as reserving a date for summary judgment when you answer the complaint!), I’m not inclined to think there will be any kind of stampede to the federal courthouse. Just a hunch.
It is no exaggeration to say that I learn something (or many things) from every mediation or settlement conference I attend. I recently traveled to Fresno to attend a settlement conference before a talented and hard-working USDC magistrate judge. During the conference he made a point that had escaped me before, but hopefully never will again.
First some background. This was an employment discrimination case in which the plaintiff alleged harassment, retaliation and constructive discharge, which would require her to prove that her working conditions were so intolerable that a reasonable person in the plaintiff’s position would literally have had no choice but to quit.
Early in the settlement conference, the judge met briefly with the lawyers and parties altogether. He employed an interesting, but effective approach. He spent a bit of time talking about the parties’ respective cases, focusing on each side’s weaknesses. After a few minutes of this, he said “here’s where I see the range,” and proceeded to give us a bracket.* The bottom of the bracket was well above where my client, the defendant, was prepared to negotiate so early in the settlement conference. However, the top of the bracket was well below where we knew (from prior discussions with her counsel) plaintiff was interested in beginning negotiations. Thus, both sides were equally unhappy. The judge concluded this introductory session by excusing us to meet separately with our clients. If both parties were interested in negotiating within the judge’s bracket, we should return after lunch and continue the settlement conference. If either party was not willing to begin in the bracket, we were instructed to so advise the judge’s clerk and we would be excused for the day.
What I liked about this approach was how it cut through a lot of preliminary posturing. While I would not recommend it for a paid mediator, it was effective coming from a USDC magistrate judge. Both parties reluctantly agreed to negotiate within the bracket and, several hours later, we settled the case.
One of the things the judge pointed out when he was apprising plaintiff and her lawyer of weaknesses he perceived in her case related to where the jury venire would be drawn from if we did not settle. Had the case been pending in state court, jurors would have been drawn solely from Fresno county, which apparently enjoys a healthy mixture of middle and lower middle class jurors owing to a university and, if not thriving, at least sustaining local agriculture-based economy.
But, because we were in the Eastern District federal court, our jurors would be drawn, not only from Fresno county, but also from several surrounding counties. The judge pointed out that jurors from many of these surrounding counties will have been struggling financially since before the recession. Jobs are scarce. Many of these jurors, the judge said, will not be particularly sympathetic to the notion that any person who was lucky enough to have a job would voluntarily chose to leave, regardless how bad the conditions were.
Whether this hit home for plaintiff or her lawyer I don’t know. But I thought it was a pretty powerful point. Forum shopping is nothing new and our opponent had unsuccessfully fought pretty hard against our removal of the case from state to federal court. But, if you find you’re in a venue in which the jurors are not going to easily receive your client’s theory or conduct, it’s important to factor this into your strategy and presentation.
How do you figure out if you’re up against this kind of “region bias” on any particular issue? I had spent some time looking at census statistics for Fresno, thinking I was gaining some understanding about our potential jurors, completely overlooking the fact that a district court draws from outside the county. There’s your answer, though. Find out definitively where jurors for your courthouse will be drawn from and analyze that entire region. A better approach, though, might be to retain local counsel (always a good idea, in my view, if the case warrants the cost and you can find reliable local counsel).
Whatever you do, it’s critical to find out where your jurors will hail from, and be perceptive to possible “region bias” issues that could impact your client’s success at trial.
*Of his “throw out a bracket” approach the judge said he would normally never “just put a number out there,” but he was pressed for time that day, as he had meetings and a hearing he had to fit in around our settlement conference. Ironically, throwing out the bracket was probably the most intelligent thing the judge did all day.
