September 19th, 2013

Blog Up; Blog Down

This past summer I was particularly active on a long series dealing with phony testimony, quickie medical exams, and phony signatures.

But almost nothing from me recently.

So goes the cycle of blogging (and twittering). As I may have mentioned before, I don’t like to blog while on trial, and I’ve been on trial. I appeared on September 3rd to pick a jury and that was it for me, even though we didn’t open until a week later.

There are two reasons to stop blogging. First, when I get home from court I’m obsessed about the next day (and the day after that…) and catching up on office stuff. Also, I have a family I’d like to at least kiss hello. So lack of time comes home to roost, and blogging is the lowest of my priorities.

But more importantly, I don’t want to give even the appearance of impropriety to my jurors. Even if I write about things other than the trial they could still be related. Like writing about dishonest experts, for instance, a subject that came up a few times on my recent visit inside the courtroom well.

No matter how many times a judge may warn jurors not to look stuff up, they still might. Some lawyers might see this as a sly way to influence a juror with subtle messages. I see it as a danger zone where a juror might be offended.

Criminal defense lawyers, perhaps, have an easier go at this. They don’t have the burden of proof. The risk of me offending one out of six jurors when I need a 5/6 verdict is more significant than the risk of offending one juror when the other side needs a 12/12 verdict. Such is life.

I’m here and I’m back, But I never really left.

June 25th, 2013

Justice Alito Acting Like Rookie Lawyer

Samuel Alito at 2010 State of the Union. Photo by Charles Dharapak/AP, via The Atlantic

It’s one of those things that lawyers learn early on: keep a professional demeanor in court. You will get your chance to argue. Making faces while your opponent argues exposes a childish temperament.

But someone forgot to teach that to United States Supreme Court Justice Samuel Alito, or he failed to learn the lesson. According to this piece in the Washington Post today by Dana Milbank, Alito has been acting like a middle schooler with his facial expressions when others dare to disagree with him.

I won’t steal all of Milbank’s words, but here are a select few as he describes Alito’s facial expressions when a judge 17 years his senior dares to have a different opinion than he does:

When Justice Ruth Bader Ginsburg read her dissent from the bench, Alito visibly mocked his colleague.

Ginsburg, the second woman to serve on the high court, was making her argument about how the majority opinion made it easier for sexual harassment to occur in the workplace when Alito, seated immediately to Ginsburg’s left, shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling.

If this happened as Milbank describes, there is frankly no excuse for it. I’ve seen judges admonish counsel who did this during oral arguments.

But it wasn’t the only time Milbank saw this:

Days earlier, I watched as he demonstrated his disdain for Elena Kagan and Sonia Sotomayor, the two other women on the court. Kagan, the newest justice, prefaced her reading of an opinion in a low-profile case by joking that it was “possibly not” the case the audience had come to hear. The audience responded with laughter, a few justices smiled — and Alito, seated at Kagan’s right elbow, glowered.

And the country as a whole watched this during the 2010 State of the Union when President Obama criticized the court for allowing unfettered corporate spending in political campaigns with its Citizens United decision, with Alito shaking his heads and mouthing a protest. The other justices kept their poker faces intact.

The eye-rolling behavior witnessed yesterday by Milbank, by the way, was also noted by Garrett Epps writing for The Atlantic. He noted about the inexcusable rudeness:

I suspect that the cause of cameras in the Supreme Court suffered a blow on Monday. I am glad the nation did not see first-hand Justice Samuel Alito’s display of rudeness to his senior colleague, Justice Ruth Bader Ginsburg. Because Alito’s mini-tantrum was silent, it will not be recorded in transcript or audio; but it was clear to all with eyes, and brought gasps from more than one person in the audience.

Once upon a time Alito was a federal prosecutor. Did he roll his eyes and make faces to the jury back then when defense counsel spoke? Or was he able to refrain because, as a prosecutor, he could pick the cases the wanted — ones that, perhaps, had overwhelming evidence in his favor — and was never seriously challenged by an equal?

If I were a judge and saw that type of disrespectful conduct from counsel, I would think in terms of admonishment. Repeat conduct could be subject to sanctions.

Notwithstanding this, I’d love to meet him. With all his facial tells, perhaps I can persuade him to come by for a poker game.

March 8th, 2013

Should Jurors Be Allowed to Ask Questions at Trial?

Peter DeFilippis

Out in Arizona, Jodi Arias is on trial in a high profile case in which she is charged with the murder of her lover, Travis Alexander, after a day of rough sex. He’d been, according to news accounts, “shot in the head, stabbed and slashed nearly 30 times and had his throat slit.” She claims self-defense.

But what jumped off the page for one of my brethren of the New York bar, Peter DeFilippis, is that jurors were allowed to ask questions. That isn’t something we see too often around these parts.

Without further ado, I turn my blog over to the talented DeFilippis as a guest blogger, who after 24 years of practice, has something to say on the matter….
——————–

The jurors in the highly publicized Jodi Arias case recently submitted to the court over 100 questions for the defendant to answer even after the prosecutor spent days grilling her over every last detail in connection with her self-defense argument. Arizona is one of just three states that allow jurors to pose questions to witnesses after prosecution and defense lawyers have finished their questioning. From the perspective of someone who’s spent some time in the well of the courtroom, I wish New York judges would in the interest of justice, allow jurors to pose additional questions of the witnesses in civil cases even if one side objects to the practice.

A universally frustrating aspect to civil trials is that once jury selection concludes the lawyers can’t communicate with the jurors. Generally speaking, jurors sit quietly during the trial presentation, they are expected not to ask questions, and perceive their role during the trial presentation as receptive rather than actively inquisitorial. If counsel were to so much as say hello to the selected juror in the elevator it may land the lawyer and juror in hot water.

During the trial the silence between the attorneys and jurors can be deafening: jurors yearn to ask the lawyers questions and lawyers would love to know more about what the jurors are thinking about their cases. When we interview jurors after a case has ended they sometimes wonder why we did not ask witnesses certain questions or probe specific areas. They are surprised to learn that we are often prohibited by the rules from discussing or presenting many seemingly relevant facts or issues. For example, we cannot divulge to jurors whether or not a defendant has insurance coverage applicable to the claims of injury. Disclosure of this to the jury may potentially result in an instant mistrial.

One way to alleviate this tension is to allow jurors to pose and submit their own written questions to the judge after the attorneys have finished their direct and cross-examination questioning of a witness. This would allow attorneys to clear up any issues, misconceptions or concerns BEFORE jury deliberations begin.

There is no New York rule prohibiting this practice. Rather, the case law says it is a matter left to the discretion of the trial court. Some judges will advise at the outset if they permit jurors to take notes and/or ask questions. In my trial experience, note taking is fairly frequently allowed, however juror questions of witnesses are rarely sanctioned unless all sides consent. I have made the request on several occasions, but when defense counsel balks, judges will usually not initiate the process though they may properly do so.

If allowed at trial, essential to the process is for the judge to ask jurors if there are any questions and explain the mechanism whereby they could ask questions, i.e., whether it be during direct or cross examination or when the witness is about to leave the stand or at some other time. I think informally allowing jurors to raise their hands and orally ask questions, without judicial screening or consultation with counsels, could be highly problematic. Our high courts have held this is not the best practice. Conversely, utilizing written questions lends itself to an orderly function as opposed to a hand rising session which might invite a cacophony, confusion or other courtroom chaos. Also, forcing one side or the other to publicly object to a juror’s question would strike me as highly prejudicial.

Well thought out and manageable procedures exist and are codified in other jurisdictions, such as New Jersey, where juror questions are allowed (See, NJ R GEN APPLICATION R. 1:8-8) even if all sides do not consent. The court makes its determination after all parties have been given an opportunity to address the issue, but they need not fully consent for juror questions to be implemented. The questions are first written down by the jurors and then presented to the judge.

The judge then takes the attorneys into chambers for a conference about those questions. Argument and clarification are held beforehand between the court and attorneys outside the presence of the jurors. The judge tries to work out an agreement by the attorneys as to which questions should be asked, and whether the form of the question proposed by the jury should be altered or modified at all. If there is not agreement, the court decides the issue on its own. If allowed, the judge reads the question, in original form or as modified, to the witness. Since the judge is screening the questions, clearly improper ones are not asked. Attorneys shall then, if desired, be permitted to reopen direct and cross-examination to respond to the jurors’ questions and the witness’s answers.

I think this process insures that the jury is better informed and makes its decisions based more likely on facts gleaned from testimony under an oath than on conjecture. The individual juror is presumably happier and more satisfied if inquiries are answered via live testimony as opposed to not at all or by speculation in the deliberation room (which is frowned upon by the court). Keeping jurors interested and engaged through this active participation in the legal process is of paramount benefit to the litigants and jurists. Perhaps it might increase attentiveness and help to mitigate the tedium and boredom often complained of in connection with serving as a juror on a trial (especially a lengthy one).

Hearing from the jurors in this manner also helps the attorneys to gain some insight into the jurors’ thoughts and hints of major concerns with the case. Savvy lawyers may alter the presentation of their side based on the questions they are receiving and cover missing areas. This may also head off jury confusion which often leads to unnecessarily lengthy deliberations or inconsistent verdicts. A definite plus is the insight gained by everyone involved from learning some of what is in the jurors’ minds before they make their ultimate decision.

Based on the above points, I would urge New York State judges to consider allowing our jurors to pen and submit written questions of witnesses during civil trials, as codified in other neighboring jurisdictions. Further, they should promote this open, interesting and interactive procedure during their trials even without the consent of all sides, as defense counsel may oppose juror questions strictly as a display of caution or matter of custom. I feel increased juror participation will aid our judicial system in achieving its stated, well known, goal which is to seek to provide justice for all.

October 27th, 2012

Hurricanes, Adjournments and Experts

There is one thing every trial lawyer can agree on: Scheduling physician experts for trial is a bitch. It is, without question, the most difficult and stressful of trial practices. Doctors, unless they are retired, need a lot of advance notice so that patients and surgeries can be rescheduled.

Both the looming of Hurricane Sandy, and a decision from the Appellate Division (Second Department) three days ago come together to highlight the issue.

First, civil practice as it exists in New York, to set the framework: Cases in New York City, when they are ready for trial, get sent to a trial scheduling part, where you sit with a jillion other lawyers with cases that are trial ready. But your case may get adjourned, even when marked “Final” for a multitude of reasons. There are older cases on the calendar ahead of you. A witness is on vacation. One of the lawyers is actually engaged in trial elsewhere. One of the lawyers begs for more time because the dog ate his cross-exam outline.

Some judges easily (or begrudgingly, depending on how old the case is) grant the application; others scream (or laugh) at you and say Dismissed! Or if the doctor isn’t available, “Subpoena him and we’ll bring him here in chains.” And these judges have broad discretion on how to organize and maintain those trial calendars.

Then the judge that schedules the trial — again, not the judge that will actually try the case — finally sends you to the jury clerk. And you may be told to come back another day because there are no jurors. You may pick a jury, and then be told there are no judges available. Or, you can be assigned to a judge and told to start right away.

You simply cannot control the situation, and the old metaphor of herding cats springs easily to mind. Trying a case is like that.

All the while the lawyers are busy giving updates to clients and witnesses, popping antacids, trying mightily to keep everyone in the loop and praying they can all make it to the courthouse.

Now toss in the concept of a hurricane and the possibility of the courts closing and all (tentative) schedules go kablooie. The Yiddish expression “Oy vey!” will likely now spring to mind.

Enter, stage right, the Appellate Division, in Vera v. Soohoo. On the day the trial was scheduled, the plaintiff’s lawyer informed the court that the indispensable expert was out of town. He had conferred with his adversary, and they agreed to a trial date one month later if the court would agree. But the court would not agree.

The court insisted on a new date, 10 days later, and one day after the expert returned. But the lawyer had another (older) case that was ready to go just a few days later. Too bad, said the court, and the action was dismissed.

Such are the uncertainties of the court system that keep trial lawyers up and night. It is one thing to try a case, but a whole different thing to actually line all the ducks up in a row to get there.

Was this dismissal unfair to the injured plaintiff? You bet it was, said the appellate court, and reinstated the action. While it is true that “a court may dismiss an action when a plaintiff is unprepared to proceed to trial at the call of the calendar,” it was a perfectly reasonable excuse that the plaintiff’s attorney was simply trying to avoid the “overbooking of cases.”

Given that the defendants would not be prejudiced by the short adjournment — they had agreed to a new date the following month — the appellate court said that “The plaintiff should not be deprived of her day in court because of some difficulty in rescheduling a trial date that was convenient for all the parties. We recognize that the Supreme Court has broad discretion in controlling its trial calendar, but that discretion must be exercised in a judicious manner, particularly when an improvident exercise of that discretion will result in the dismissal of a potentially meritorious cause of action.”

Vera v. Soohoo is a pretty good case to keep in your trial bag for when the unexpected pops up and messes with your schedule and you have an unsympathetic judge.

And if you know people who say they never want to try another case, you will understand why.

September 5th, 2012

Bill Clinton as Trial Lawyer

I’m sitting here watching Pres. Bill Clinton speak at the Democratic Convention and one thing leaps out at me: he would be a masterful trial lawyer.

Why? Because he doesn’t just stand there and make assertions. Rather, he makes his assertions and then backs them up with facts. If you have the burden of proof, that is what you must do. I saw him speak once five years ago, and it was just the same. Everything backed by facts.

Most politicians, of course, don’t have that kind of mastery of facts. Or lack the confidence to use them. Or don’t trust the intelligence of their audience.

But Clinton does. Time and again returning to the theme of ‘Don’t take my word for it, this is what the actual facts are.’

If you want to convince people of something, you have to be prepared with your material and lay bare the facts, pure and simple. And no one does it better than Clinton.

Update: I’m obviously not the only one to come to this conclusion. Fox analyst Brit Hume said after the speech:

“I’ve always said if I were ever in trouble and if I were guilty, especially if I were guilty, I would want Bill Clinton there to defend me. Nobody does it better.”

Hat tip on the back-handed compliment from Hume to Kashmir Hill.