Sunday, February 28, 2010

Getting the defendant to admit his conduct is reckless

Here is a short video clip from a deposition of the owner of a trucking company. We claimed he put an unsafe truck on the road, killing our client. If you set it up right, they will admit their conduct is reckless and an intentional disregard of the rights of others. Pretty good stuff and it gets you to punitive damages.

Saturday, February 20, 2010

Using Standards and Rules

From a participant at the recent AAJ Depositions College:

Wanted to tell you that the miller mousetrap is one of the best things I've learned in the last 30 years.

I used it on a nurse yesterday who was testifying on behalf of her employer, an orthopedist, I had her testify that not following nurses protocols in a hospital (against the hospital nurses) would be below the standard of care, would be careless and would be reckless.

Thanks a lot. I owe you a drink.

In my next post I will post a video of the technique, if I figure out how to do it!

Tuesday, February 16, 2010

Can jurors be interviewed post verdict?

Some judges allow it, some don't. Here is an article that argues that it is a First Amendment right to do post trial interviews of jurors.

Lawyers May Have First Amendment Right to Interview Jurors
Marcia Coyle
The National Law Journal
February 11, 2010

Attorneys may have a First Amendment right to interview jurors in trials in which they did not participate if their purpose is to educate a segment of the bar, according to a federal appellate court.

Calling it a "novel" issue, a panel of the 10th U.S. Circuit Court of Appeals said it was "uncomfortable" addressing the question in the first instance. Instead, the three-judge panel on Feb. 3 ordered a district court to vacate its terse ruling rejecting a request by the Oklahoma Employment Lawyers Association and to reconsider the request in a "meaningful exercise of its discretion."

The employment lawyers' group sought to contact jurors three years after their service in Clyma v. Sunoco Co., a job bias suit brought under the Americans with Disabilities Act. The association told the district court that it wanted access to the jurors "for the purpose of providing educational information to members of the bar regarding jury dynamics in employment law cases." It argued that it had a First Amendment right of access to the jurors.

A rule in the U.S. District Court for the Northern District of Oklahoma states: "At no time, including after a case has been completed, may attorneys approach or speak to jurors regarding the case unless authorized by the Court, upon written motion."

The three-judge panel, led by Senior Judge Bobby Baldock, said the association's alleged First Amendment right "surely does not match the media's right to access information for the purpose of informing the political thought and behavior of the general public."

However, the panel added, "OELA's request for such access in order to prepare a program to educate a segment of the bar, despite countervailing concerns related to juror privacy and the administration of justice, may not be entirely devoid of First Amendment implications."

The panel said this issue of first impression "certainly requires the district court to exercise some discretion in ruling upon OELA's application and therein lies the fundamental problem in this case." By denying the association's request without any substantive explanation, the panel could not find the district court exercised any meaningful discretion and that failure, it said, constituted an abuse of discretion.

Because the underlying job bias case settled after a verdict in favor of the plaintiff, no one opposed the association's request to contact the jurors. The 10th Circuit appointed two lawyers -- former 10th Circuit clerks -- as amicus curiae to address the First Amendment issue and a standing question.

James Lebeck, an associate with Vinson & Elkins in Houston, and John Partridge, an associate with Gibson Dunn & Crutcher in Denver, said the district court's order was "an impermissibly broad prior restraint on protected expressive activity."

The fact that the association was not involved in the underlying litigation was a distinction that mattered under the circuit's precedent, they said, "because it diminishes the government's interest in shielding jurors from contact. Because it had no role in the underlying litigation, OELA has little, if any, incentive to upset the jury's verdict."

Joining Judge Baldock in sending the association's request back to the district court were Judges Jerome Holmes and Eugene Siler of the 6th Circuit, sitting by designation.

Thursday, February 4, 2010

It has been a while.

Sorry about the gap in posts, life is busy. As I write this, I am on the Garden Isle of Maui, just finished attending the AAJ conference here. I spoke on "Storytelling in Opening Statement" and if anyone wants the presentation, just send me an email and I am happy to share it with you.
Surveillance was an issue in a trial I just settled. I am interested in your thoughts on how effective it is. Please add your comments below.

It's Jury expert Time!

There is a new edition of The Jury Expert, check out all the articles, including commentary by yours truly!