Do The Facts Or The Law Still Matter In Mediation?

[This originally appeared in the Los Angeles Daily Journal.]

I was recently vetting some potential mediators with a colleague whose opinion I generally respect. In response to one of his proposals, I said, “yeah, but I’ve heard he doesn’t really know employment law.” My colleague responded, and I’m quoting, “I’ve become increasingly jaded that mediators believe the law and facts are impediments to the process.” This struck me as an interesting remark and I’ve continued to ponder it.

There is good reason for lawyers in the defense bar to be at least occasionally jaded about ADR methodologies. I’ve blogged a fair amount about the frustration we feel in knowing that many neutrals feel no compunction about bypassing or loosely enforcing evidence rules when conducting a binding arbitration. In my view, this undermines predictability and erodes the process. On the other hand, at least in the employment context, it is generally the defense that seeks to compel arbitration.

What about mediation? Are the law and facts of a case a waste of time–not only irrelevant, but actually impediments to the mediation process? There’s no point in fence sitting, so I’m going to commit to the ostensibly untenable view that this is both true, and false.

Yes, it’s true. All those times I diligently pursued discovery, and groomed my case to get it in front of a mediator; all that effort I spent meticulously crafting a brief, with notated exhibits; all that time I spent explaining, trying hard to educate the neutral why we had every right to whatever it was we were looking for–all that time and energy was wasted. Utterly.

This is because, from the mediator’s point of view, the deeper my client and I are entrenched in our position, believing our stance is firmly rooted in favorable law and good facts, the harder and longer she will need to work to get us to contribute, to give, to help her bridge the wide gulf that presently divides the parties.

Sure, she read my brief. She was paid to read it. And she has to know what the dispute is about. She might even be slightly impressed with my evidence gathering and presentation of the law. But beyond that, her focus needs to be much more on the dynamics of the parties. What’s at stake? Is the lawsuit ostensibly about money, but really about jealousy or feeling unappreciated? She knows the quicker she penetrates to the heart of the dispute the better her chances of finding a solution. The law and the facts–those that support a claim or defense–might really be impediments if they’re so good for one side that there’s little fear or risk.

I’m speaking here only of the very best mediators. I’m not talking about carrier pigeons, who simply shuttle demands and offers back and forth until the parties–basically on their own–get close enough that one caves simply to avoid seeing the neutral any more. Neither am I referring to mediators who use the raised-voice-cram-down method, essentially trying to procure settlement through intimidation. Interestingly, there is a place for both styles of mediators; they actually can get some cases resolved, but only certain kinds of cases, and the process can be torturous and messy.

The neutrals truly worth their fees, though, go well beyond shuttling demands and fist pounding. They take the time to get the psychic lay of the land. They determine which of the many impediments to settlement will be the biggest challenge and concentrate their energies there. In many instances, at least in the psychology surrounding what it will take to satisfy, scare or discourage the plaintiff sufficiently to reach a settlement, the admissible facts or applicable law may play only a minor role.

* * *

No, it’s false. I promised an inconsistent, untenable view and I will deliver. From the perspective of any civil defendant, the facts and law cannot be an impediment to settlement. There is nothing more important. Sure, the venue, judge and opposing counsel can play a role in the outcome of a lawsuit, but we rarely, if ever, highlight these inputs in a mediation brief or presentation. They are unspoken intangibles.

When a defendant or its lawyers permit the law and the (likely admissible) facts to take a back seat in the mediation process, it is regrettable. If it happens, the defendant trades its status as an agent, capable of acting, evaluating and defending its actions as appropriate or lawful, for the identity of a faceless, soulless “deep pocket,” nothing more.

It is routine, in cases in which the defendant has both a solid legal defense and good facts, for the mediator to harp away on the exorbitant cost of defending the case through trial and the risk, however small, of an adverse verdict. Of course it is–where else is she going to apply pressure to persuade a confident defendant to fork over what it will take to reach a settlement?

I don’t begrudge any defendant the need to think long and hard about defense costs when engaging in settlement negotiations, even if a case seemed otherwise completely airtight. But I believe a defense lawyer’s role in mediation requires him to continuously redirect the discussion back to the favorable law and facts when the neutral attempts to discount these to bring the parties closer (i.e., get my client to pay more). It is crucial to push back against this tendency to marginalize law and facts. In most instances, they are our only leverage.

This is not to say that, backstage, in confidential communications with our clients, we aren’t completely open and honest about risks and costs, regardless how solid its defense may be. In many instances, a defendant’s blind adherence to some good law and facts would be a recipe for disaster. After all, nobody knows what a jury will think and do. But these words are exchanged in private. At the mediation poker table, the defense lawyer must resist a neutral’s efforts to treat the facts and the law as impediments.

Except, of course, when the facts and the law aren’t so favorable.

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Will You Give These Jurors What They Want?

A couple of weeks ago, I sent fellow blogger and trial consultant Rich Matthews an email asking if he would comment on a post I was thinking about writing. It would be called “Avoid These Five Ways Of Alienating The Jury.” I was expecting him to provide a laundry list of “don’t dos” if you want to stay on a jury’s good side, such as wearing a bow tie,† showing up late, interrupting witnesses, etc.

Instead, Rich offered a much shorter list of ways–just two–to give the jury what they want and expect. On reflection, Rich’s list of “dos” made much more sense than my proposed list of “don’ts”. Here’s what Rich said:

“I think jurors want two and only two things from counsel, and get alienated easily when these are violated: help with understanding the material, and not wasting their time. That’s it. As obvious as that might sound, all courtroom lawyers should do a really honest reflection on their own trials and notice how many times they run afoul of either or both of these unconscious demands jurors have. That third witness you put on to say basically the same thing? Wasting jurors’ time, and they will resent you for it. That technical witness who was not understandable to them? Flunked both. A closing argument that didn’t explain [relevant rules, damages, verdict form, whatever] well enough? Didn’t help them with the material. I suggest that as counsel is planning the trial sequence, run everything through that filter; will it help jurors understand the material, and does it waste their time as THEY will judge it? Unless it’s ‘yes’ to the first AND ‘no’ to the second, leave it out. (Bonus hint: the first place to look is your witness list. Most of the time, lawyers would be better served to use fewer witnesses than they do. Wasting time in this manner just frustrates jurors if they don’t perceive each additional witness is adding new information or understanding.)”

Rich’s suggestion that what the jury wants most is help understanding the material echoes a point Professor McElhaney makes in the opening chapter of Litigation, entitled “The Guide.” He writes:

“You are the guide who knows the territory, the one who can be trusted to steer the jury straight throughout the entire trial.

Does it work? Imagine for a moment: Suddenly you find yourself in the middle of an unknown swamp. You don’t know where you are or how you got there. All you know is that somehow you  have to find your way out. You have no compass. There are no roads or trails, no signs or maps, no shadows or guiding stars. As you look around, you see two people, each saying there is only one way out. The problem is, each one is pointing in a different direction.

Which one do you follow–the one who has the suitcase with the collapsible legs, who wants to sell you one of the watches on his wrist; or the one who is pointing out landmarks and is helping you understand the terrain?” (Litigation (ABA 1995), at 4.)

Rich’s point about not offering duplicative testimony which the jurors judge as a waste of their time brings to mind this comment by another notable trial advocacy guru, Professor Thomas Mauet. In his Fundamentals of Trial Techniques, Professor Mauet points out that:

“Whom you call as witnesses to prove your case is frequently not an issue. You simply must call the witnesses you know of to establish a prima facie case, and there is no room for choices. Most of the time, however, you will have choices. . . In deciding to call certain available witnesses, remember the following considerations:

1.  Do not overprove your case. Many lawyers call far too many witnesses, thereby boring the jury or, even worse, creating the impression that the lawyer doesn’t have confidence in her own witnesses. In general, calling a primary witness and one or two corroboration witnesses on any key point is enough. It’s usually best to make your case in chief simple, fast, and then quit while ahead.” (Fundamentals of Trial Techniques (3rd Ed. 1992), at 388-89.)

I think Rich’s approach to giving the jurors what they want–rather than trying to walk on eggshells not to alienate them–is by far the better approach. Thanks, Rich!

†Truth be told, I have no problem with bow ties, and I expect most jurors don’t, either. A bad, porno movie mustache, on the other hand, will not be tolerated (except by jurors with their own bad, porno movie mustaches).

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Beware The Words That Might Be Stuffed In Your Deponent’s Mouth

Anyone who has taken or even attended a deposition is at least somewhat familiar with the litany of admonitions that are customary before the substantive examination begins. These include explaining to the deponent, and generally asking her to confirm her understanding, how a deposition works, i.e., don’t answer unless you understand the question, use words not gestures when responding, etc.

I attended a deposition last week of two of my client’s experts for an upcoming trial. The questioning attorney, obviously reading from an outline or script that he either drafted or was provided to him, attempted to get both experts to buy into the following:

“Q. If  you answer a question without telling me you didn’t understand it, I’m going to take the position — if you try to later say you didn’t understand the question — that you did and you were trying to get out from under the answer.  Do you understand that?”

In each instance, although I objected, my deponent ultimately agreed with the statement. I expect if my opponent attempts to use the testimony at trial the judge will probably sustain my objections. But he might not. Which leads me to think I should have better prepared both deponents (both of whom, by the way, are seasoned expert witnesses, very familiar with the deposition process). I will certainly prepare future witnesses for this kind of question, particularly by this particular attorney (whom I do generally respect for his frequent creative, outside-the-box thinking and approach to his cases).

What’s the problem?

The question asks the witness, in a complete vacuum, to buy into a set of circumstances and motivations that have no basis. Folks who have spent time in the world of depositions know that this isn’t a perfect science. Questions are only rarely (if ever) perfect. However, even seasoned experts get swept into the unconscious desire to “help out” the examiner, sometimes answering questions that weren’t asked, were very poorly asked, or supplying missing terms that help a problem question make sense. It’s not fair to ask that witness, who later explains a “bad” answer by suggesting she did not fully understand the question when it was originally answered, to agree in advance that any such effort is really “trying to get out from under the answer.” No.

Hearing a witness try to “back pedal” out of a bad deposition response by suggesting she didn’t understand the question when it was first asked is generally going to be viewed with suspicion by the jury. This is particularly true if it happens more than once. So, it is not a huge issue how the deponent answers the question above. However, the admonitions generally occur at the start of the deposition. If an examiner asks questions like that at the outset and the deponent answers without realizing words are being stuffed into her mouth, there is a good chance that questions and testimony are coming later in the deposition that will create a dangerous record.

So be on the lookout!

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Five Ways To Improve Your Client’s Experience At Arbitration

I last wrote, rather flippantly I thought, about why, when given the choice, I generally shun arbitration in favor of mediation. One of the comments I received, from über-neutral Deborah Rothman, suggested that I owed it to my readers to check out the set of Protocols developed by the College of Commercial Arbitrators to address the kinds of issues I raised in my post. Well, I did. And it turns out this user-friendly, publicly available monograph, Protocols For Expeditious, Cost-Effective Commercial Arbitration, has a fair amount to offer on the subject of . . . well . . . making commercial arbitration more expeditious and cost-effective. Thank you, Deborah.†

By way of introduction to the Protocols, I thought it made sense to highlight just a few of the suggestions contained in the Protocols aimed specifically at outside counsel. (There are also separate Protocols for business users and arbitrators.) Here you go:

1.  Know What You’re Doing.

I spent so much of my post bashing arbitrators, that I managed to overlook a very important point: it helps if the lawyer advocates have a clue what they’re doing. We generally assume this means having a grasp of the body of law governing the subject of the dispute. While that’s surely crucial, the Protocols point out that it is equally important that counsel understand the unique rules of arbitration advocacy. As the authors comment:

“Counsel who agree to represent parties in commercial arbitrations need to have a solid understanding of the arbitration rules that will apply, the practices of the provider that is administering the arbitration, and the growing body of state and federal arbitration law. They should know how to navigate the arbitration process in an economical yet effective way.” (Id. at 61.)

2. Select Arbitrators With Proven Management Ability.

I would argue that careful selection of the neutral is the single most important step when engaging in any form of alternative dispute resolution (ADR). This Protocol recommends going even farther. It suggests:

“Counsel should do a thorough ‘due diligence’ of all potential arbitrators under consideration and should, consistent with the Code of Ethics for Arbitrators in Commercial Disputes, interview them concerning their experience, case management practices, availability and amenability to compensation arrangements that would incentivize them to conduct the arbitration efficiently and expeditiously.” (Id. at 62.)

3. Seek to Limit Discovery In A Manner Consistent With Client Goals.

I have mixed feelings about this Protocol. One of the problems I’ve historically had with arbitration involves limitations on scope of discovery. It’s fine for the parties to have a goal at the outset to limit discovery to only what is necessary. But it can become a problem if the parties (or one of them) are too optimistic, leading to an overly restrictive scope of discovery. This is what the drafters of the Protocols have to say:

“Discovery is far and away the greatest driver of cost and delay in litigation and in arbitration. . . Outside  counsel have an obligation to make sure the client understands the limitations inherent in arbitration discovery, to assess how much (if any) discovery is truly needed in the case, and to ascertain how much time and money the client is willing to expend in turning over stones.” (Id. at 64.)

See, it’s this “how much (if any) discovery” nonsense that troubles me. In my experience, a client’s case rarely gets worse by conducting discovery, and generally it gets an awful lot better with sufficient discovery. I do recognize that, at some point–generally earlier than later–discovery begins to yield diminishing returns. But the only time I’ve had a bad outcome at an arbitration was when I inherited a case on the eve of the arbitration hearing from a rather dim-witted colleague and the only discovery permitted and conducted was a set of document demands. It was the very worst experience. I say this: if don’t want to conduct discovery then forget arbitration and forget hiring a lawyer and bring your dispute in small claims court. Seriously.

4.  Periodically Discuss Settlement Opportunities With Your Client.

Being an effective, client-centric litigator, whether in trial court or arbitration, requires us to think simultaneously in two different directions. It can be challenging. Even as our client’s case improves, we need to continue questioning whether their interests would truly be better served by negotiating a settlement. This is one of the reasons I think we should strive to adopt the Mr. Spock way of purely rational, objective thinking.

The Protocols authors say this:

“[P]ropitious opportunities for settlement often appear at multiple points during arbitration, including during discussions with opposing counsel in preparation for the preliminary conference, after briefing or rulings on significant threshold matters, on completion of all or particular discovery, after submission of dispositive motions, during the hearing, and after submissions of post-hearing briefs. At all of these stages, outside counsel should re-evaluate their initial case assessment and discuss with the client the pros and cons of pursuing settlement.” (Id. at 65.)

5. Recognize and Exploit The Differences Between Arbitration And Litigation.

Pretty much consistent with my post, the Protocols dispel any lingering hope we may have for success at summary judgment or rigid adherence to the rules of evidence. The drafters say:

“Counsel should . . . keep in mind that dispositive motions are rarely granted in arbitration, and should employ such motions only where there will be a clear net benefit in terms of time and cost savings. Counsel should be aware that arbitrators tend to employ more relaxed evidentiary standards, and should therefore avoid littering the record with repeated objections to form and hearsay.” (Id.)

Yes, your otherwise valid evidentiary objections in an arbitration hearing may not be worth the cost of your breath. They are, both literally and metaphorically, “litter,” or useless trash. They could actually irritate the arbitrator (not to mention your opponent). While the Protocols topically suggest we should “exploit” these differences between arbitration and litigation, neither the Protocol nor the accompanying comment offer much advice about how to turn the lack of available dispositive motions or rules of evidence to our advantage. I’m unconvinced.

While it’s unlikely to provide any immediate relief, one of the Protocols urges lawyers to “work with providers to improve arbitration processes.” (Id. at 67.) I suspect (but have not yet confirmed) that there may be a corresponding Protocol aimed at arbitrators which suggests they give serious consideration to advocates’ comments and suggestions. At least for now, I will continue to prefer mediation to arbitration as an effective form of ADR. However, the Protocols seem to invite a dialogue, which would seem like a step in the right direction

†Ms. Rothman, along with Curtis von Kann, are Associate Editors of the Protocols. Thomas Stipanowich is the Editor-in-Chief.

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When Judges Play Games To Protect The Record Against Appeal

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.

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Pre-Trial Evidence Exclusion is a Game of Chess, Not Checkers

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.

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Sargon Enterprises: California Judges Are Indeed “Gatekeepers”

Ok, I realize I’m a little late to the party, as Sargon Enterprises, Inc. v. Univ. of Southern Cal. (212 DJDAR 15846) was issued at the end of November, 2012. But, better late than never, right?

Practitioners who try cases in both Federal District courts and California state courts are all too aware of the schism that has existed between the courts for almost two decades on the question of admissibility of expert opinion. California has long adhered to a line of authorities tracing back to 1923, when Frye v. United States (293 F. 1013 (D.C. Cir.)) was decided. The Frye test, also known as the “general acceptance” test held that a new scientific technique or methodology was inadmissible unless and until the proponent of the evidence established that the technique or methodology had attained “general acceptance” in the relevant field. The California Supreme Court adopted the Frye test in 1976. (People v. Kelly, 17 Cal.3d 24, 32.)

Since the 1993 decision of Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579), federal courts have applied a different standard. Under the Daubert rule, the trial court’s role is to act as a “gatekeeper” to ensure expert testimony that is admitted is reliable based on certain factors, including whether the opinion was being developed solely for purposes of litigation, whether the opinion or methodology had been independently tested in the scientific community and the potential for error.

The schism between federal and California courts continued until the California Supreme Court’s recent pronouncement, in Sargon Enterprises, that “the trial court has the duty to act as a gatekeeper to exclude speculative expert testimony.” The evidence at issue in Sargon was proposed testimony of a damages expert on lost profits suffered by a dental implant inventor who claimed the University of Southern California School of Dentistry had botched a clinical trial of its invention. In holding that the trial court had properly excluded the lost profits opinions, the California Supreme Court said:

“Under [California] Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. As we recently explained, [t]he expert’s opinion may not be based on ‘assumptions of fact without evidence support, or on speculative or conjectural matters . . . Exclusion of expert opinions that rest on guess, surmise or conjecture is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide?”

The California Supreme Court did caution trial courts, however, that their analysis must focus on methodology, not on conclusions. It said: “The trial court’s gatekeeping role does not involve choosing between competing expert opinions.” Referring to the U.S. Supreme Court’s opinion in Daubert, it said, “The high court warned that the gatekeeper’s focus must be solely on principles and methodology, not on the conclusions that they generate.”

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The Importance of Being Earnest (When Firing)

 

Not everyone is cut out to play the boss.  While I suspect there are a few sadists who actually enjoy the act of firing an employee, most people hate delivering bad news and learning you’re now jobless usually ranks near the top of the bad news heap.

From the point of view of a lawyer who represents employers in lawsuits, however, I view the process of termination to be extremely important.  It can be tempting, when one is forced to deliver the news, to sugarcoat.  Most sugar-coating doesn’t really make anyone feel better.  For example, “you’ll always be part of the family,” or “you’ll thank me someday for this chance at a fresh start,” might have worked for George Clooney in “Up In The Air,” but it’s a pretty stupid thing to say in the real world.

One brand of sugar-coating that can be really dangerous concerns mischaracterizing a termination for poor work performance as something other than what it is.  In particular, suggesting a sub-par employee is being “laid off” creates substantial risk.  If the “redundant” employee is replaced anytime in the near future, it sets the stage for him or her to argue, in a subsequent discrimination lawsuit, that the lack of work was merely a pretext.  That the actual goal was to eliminate the employee on the basis of some protected characteristic (i.e., race, gender, disability, religion).  This kind of evidence plays well at trial: like all of us, jurors love to hear about conspiracies and cover-ups.

One way for employers to make the act of termination less of a surprise–and therefore less painful for everyone involved–is to make termination the final step in a progressive discipline policy.  Implementing such a policy starts with  a frank discussion with the underperforming employee that is documented by a dated, written record of the discussion.  This type of discussion does not even need to be characterized as discipline, but rather a coaching tool.

If verbal discussions (documented) do not improve performance, the next step should be a written notice that describes the problem, proposes a solution and is provided to the employee concurrently with the verbal discussion.  The employee should be asked to sign this document, and perhaps there will be a space dedicated for any response the employee might have.  lf the problem persists, the possibility of one or more additional written notices/warnings can be provided, but the message communicated should be that, after a defined number of written notices/warnings, termination will result.

A progressive, documented discipline policy serves two really important purposes.  For me–your lawyer–it is important evidence if a wrongful termination or other lawsuit results from the employment relationship or termination.  Perhaps more importantly, though, it gives the employee every chance to succeed.

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What If The Jury Simply Cannot Comprehend The Subject Matter

I cut my teeth as a young lawyer doing almost exclusively automotive product liability defense.  What always amazed me, particularly in cases involving extreme tragedy (death, disfigurement, paralysis), was how the automobile manufacturers took these risky cases to trial–and won!  How was it possible to convince a jury to look beyond the tragedy and extreme suffering, consider the evidence about the design of a crucial component, understand that evidence, and return a verdict for the manufacturer?  Particularly puzzling for me was the fact that, as we neared trial, even I still did not completely understand the technology, and I was a reasonably educated person who had been living with the case for several months.

A very distinguished trial lawyer answered this question during a pretrial presentation to our client of one particularly challenging case.  He said that, in his experience presenting these cases to juries (and mock juries) all across the country, then debriefing the jurors after trial, it is clear that much of the technical nuances escape most jurors.  No amount of careful teaching with brilliant demonstrative exhibits can make a person with a high school education or less, who has never worked in the automotive industry and, frankly, doesn’t care much about cars at all, understand a component, and comprehend why a company chose design A over design B.

What does matter to these jurors, he said, is seeing the lengths to which the manufacturer went to understand what occurred and how the plaintiff suffered her injury.  If something failed, jurors like to understand how and why it failed, and particularly why a safer alternative design wasn’t available or why the design advocated by the plaintiff’s expert wouldn’t work or would have produced the same (or even worse) result.  This is why it’s so extremely expensive to take these kinds of cases to trial, particularly when it takes one or more full-fledged crash tests, using identical automobiles, to understand exactly what happened.

A corollary is that jurors appreciate learning how hard the manufacturer worked, and how carefully the component was tested, to assure that the car was as safe as possible for the driver and her passengers.  To the extent this can be woven into a story, with witnesses who do not drone on for days, the chances of keeping jurors awake to hear the ending improves.  I like to think this principle can be equally applied to any context  in which jurors are going to be asked to evaluate highly technical evidence.  It becomes less about how or why something works, and more about how much the defendant cares about learning what really happened in a given case.

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A Brilliant Suggestion 60 Days Before Trial

A great recent post at What About Clients? highlights a policy that will benefit most trial lawyers.  Basically, no later than 60 days before trial, take a fresh look at everything.  Here’s how  it goes:

“[N]o more than 60 days from trial, read over and take a proverbial bath in all of the written discovery responses and–if time permits–every deposition transcript in the case. Work through the materials relatively quickly but as thoroughly as you can. In particular, do one good read of any deposition you did not take yourself. And of all written and signed discovery responses (you can skip the documents). Go back to the start of the case. Do not rely only on deposition summaries or on outlines of direct or cross examinations prepared by others. The process of “immersing yourself” in all the discovery will suggest new sub-themes, patterns, weak points and even a new fact or two in your opponent’s case that meant little to your side when it was first produced. Now discovery will take on new and instructive meanings. Having gone through that exercise, you will be steeped in the case. You’ll have knowledge that will give your examinations of witnesses credibility, authority and command.”

 This alone is a great idea.  But I think the review could be an even more meaningful exercise if it is informed by what you’re going to do with the evidence you find.  When, for example, does it make the most sense to highlight a piece of particularly powerful evidence?  I like to have copies handy of the most important jury instructions I expect will be given at trial.  This way, as I’m taking a bathin the evidence, I can develop a plan where the evidence will be best presented.   It also gives me a head start on how I’m going to structure my closing argument, where I take the jurors though each element of a claim or defense and show how the evidence proves or disproves a particular element.  I like to think this is a great idea made even better.

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“Officer On Deck!” Great Cross/Great Re-Direct

In this clip from A Few Good Men, two Marines are on trial for a murder on their training base. The Marines’ defense is that they were ordered by officers to give the decedent, a fellow Marine, a “Code Red,” which is a violent training “tool” used to bring errant Marines in line. The decedent was killed during the performance of the Code Red.

The prosecution (played here by Kevin Bacon) wants to poke holes in the whole notion of a Code Red. When another Marine from the same unit is on the stand, Bacon cross-examines him with two books, The Marine Outline for Recruit Training, and the Standard Operating Procedure applicable to his unit. Bacon elicits admissions that the term Code Red does not appear anywhere in either manual, thus making it seem like something the defense has cooked up or exaggerated.

The defense (played by Tom Cruise) deftly resuscitates his witness by using the same Standard Operating Procedure and asking the witness to locate where in the manual it explains where the mess hall is located. Of course the manual makes no reference to the mess hall, either, crisply illustrating the fallacy behind the argument that a Code Red must be a fiction if not officially recognized in the Marine training manuals.

Oh, and sorry if this contained a spoiler. The movie has only been out for like 25 years.

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Don’t Serve Discovery Unless You’re Willing to Go to the Mat For A Response

One of the illusions I harbored as a young defense lawyer was that it was a good idea to “paper” the other side with as much discovery as I could serve.  This derived, I think, from stories I heard and read during law school how the biggest, most powerful litigation firms always practiced this way, which led me to think it must be the right thing to do.  I think also that, as a young associate, I was always looking for ways to maximized billing opportunities.  Actual strategy rarely entered the equation.

I once even made a ridiculous statement to a senior partner, when we were up against a legendary plaintiff’s firm, that we would “serve the other side more discovery than they had ever seen.”  Quite correctly, the partner responded that no, we would not be serving more than the other side had ever seen, and no, we were not going to waste our time, energy and client’s money trying.  He was absolutely right.

My view on written discovery has evolved to where it should be a tool used more like a scalpel than a weapon like shotgun.  As I’ve grown from the associate who has no connection to the bills that go out to a client to the relationship partner who actually sends those bills (and has to manage the client and its expectations when the bill is outrageous), I realize that we don’t (or shouldn’t) do anything just for the same of doing it, or because that’s how it’s done by others (even others at prestigious litigation firms).

I’ve also learned that most clients have a somewhat fixed budget for dealing with a matter.  Whether the budget is hard or soft, it’s not there to be exceeded–unless you want to lose the client.  There is never spare money in any budget to cover tasks that aren’t calculated to lead directly to a better result.  So every task, not just discovery, needs to be calculated to advance the ball.

On the receiving end of written discovery (I’ve been there a lot, too), I’ve never in 20 years been “intimidated” because the other side served an onerous set of discovery.  In fact, quite the opposite is often true.  An opponent who serves 100 “shotgun” questions or requests that are unfocused and a pure waste of time is revealing to me that he/she has not developed their strategy enough to know what they need to find out.

My view has evolved to where I try to limit discovery to information that I believe will directly benefit my effort to win the case for my client.  If I’m on the plaintiff side, I will look for information that will help me establish the elements of my client’s case.  I focus heavily, too, on trying to establish that my opponent does not have any evidence to prove one or more elements of his/her/its defense.  The same holds true, only opposite, if I’m representing a defendant.  This is elementary, but I’ve seen a lot of discovery (and written some  over the years) that strayed pretty far off topic.

If I’ve limited the discovery I’ve served to information I really think is important, I have no problem going to the mat (meaning all the way through motion practice, if necessary) if my opponent gives me BS objections and/or provides an insufficient response.  Back when I was writing loads of unfocused discovery, the other side did the obvious (objected, refused to respond, etc.) and I found myself having to decide if it was worth the time and expense (and risk, if I lost the battle) to go to court over it.  If it wasn’t worth that effort and cost if the opponent balked at responding appropriately, how could I justify having written the discovery in the first place?!?

This is just another example of how we (hopefully) learn and evolve in how we practice our craft as we gain experience.  By making this fundamental shift in my attitude about discovery, I’m not only giving my clients far better value, but I’m also not telegraphing to the other side–with a huge, random set of shotgun discovery questions or requests–that I don’t have a clue what I’m doing.

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