August 5th, 2022

The Alex Jones Bar Exam Trial

Some trials have simple legal questions. Some have complex ones. And then there’s the Alex Jones defamation trial winding up in Austin, TX, regarding his claims that the Sandy Hook massacre was a hoax. He’s been sued by parents of the kids.

Bar exams are an exercise in issue spotting. Issue determination is nice, but you can’t determine an issue unless you first recognize it is one. And Alex Jones, it seems, is a one-man bar exam with the explosion of issues surrounding this lawsuit. Some of the questions below may be easy; some not.

Were his statements about the massacre protected opinions or assertions of fact? If fact, were they reliably sourced? If defamatory, what standard would be used? Were the parents public figures?

Does the statute of limitations preclude suing on the statements? If some statements were made before after a statutory deadline lapsed, and related ones that are within the statute of limitations, can all of them be used in the suit or only the recent ones?

Was the judge correct in granting a default judgment in favor of the plaintiffs due to the failure by Jones to turn over discovery?

If there is a default judgment against Jones, to what extent can he still claim his statements were reliably sourced? If the plaintiff uses the poor sourcing of statements against Jones in pursuit of punitive damages, can Jones use the same statements in defense?

When Jones’ counsel inadvertently turned over the entire contents of Jones’ cell phone two weeks ago, was there an obligation by plaintiff’s counsel to alert Jones that there was privileged information on it? Did defense counsel properly object that the “oops discovery” should not be viewed when he emailed “please disregard”?

Did defense counsel commit legal malpractice in turning over the data? All of it or some of it? Does it depend on when he obtained it? Did he commit malpractice in failing to “snap-back” the privileged information within 10 days under TX procedural law? Can he snap back the non-privileged, yet irrelevant, parts? Did he commit malpractice in failing to object when some of it was used at trial? Could any of this be a proximate cause of injury to Alex Jones?

What happens to material on the phone that is not protected by a privilege, but is also wholly irrelevant to this case? Can the January 6th Committee obtain copies of inadvertently released “intimate messages” between Jones and Roger Stone?

Was any of Jones’ testimony perjury? Will the judge refer the matter to the DA? Will she level a contempt citation? If so, would it be redundant of any civil penalty that may come in the form of punitive damages?

When some of the information was used during trial, and Jones’ counsel failed to object, did Jones lose his right to appeal that particular issue?

When the judge found that plaintiff’s counsel acted properly by waiting 10 days under TX procedural law before using it, did that mean unrestricted use? Can he share any of it with others?

If some of the contents of the phone should have been previously disclosed, but weren’t, is there any additional sanction to levy against Jones on top of the default judgment against him?

When did defense counsel obtain the contents of the phone and what representation did he make to opposing counsel and the court about it? Could that subject counsel to a sanction on top of the default judgment sanction against the client? If so, will it come from the judge or a disciplinary committee?

Since some of the inadvertently disclosed material contained medical records for other Sandy Hook parents that are not involved in this suit, was there an ethical violation in defense counsel turning them over and then not properly retrieving them? Is it an ethical violation if the attorney was simply negligent in following procedure?

If the records were subject to a patient-doctor privilege, how did Jones’ counsel get them? Who sent them to Jones’s counsel? Was a confidentiality provision in another lawsuit violated? Or if the release came from a medical provider, a HIPAA violation?

What are the ramifications for the person that sent them? Is there a private right of action for the release of the privileged information? If so, would it fall under Texas law or Connecticut law, or the law of some other state where the records may have been conveyed from? Does HIPAA have a private right of action if errantly sent from a health provider?

What effect will the filing for bankruptcy by a Jones entity play in any verdict?

If the jury reaches a punitive damages verdict, what are the limits to it? Will it be state law or federal law that will be used to determine the limits? If federal law, how will the court apply the confusing determination in State Farm v. Campbell? Will the court use a ratio of 4:1 punitive:compensatory? A ratio of 9:1? The “no rigid benchmarks” standard? A ratio of 100:1?

How many other issues are there? And how many more are to come?

November 15th, 2019

Impeachment and the Art of Direct Exam

I caught a few minutes of the the impeachment proceedings and wanted to discuss one small point, because it relates to trial practice for a personal injury case.

OK, maybe you didn’t see that coming. But here I am.

Since this isn’t a political blog (except insofar as it takes on personal injury issues) I won’t get into the details of the inquiry, as I would likely never emerge from them.

No, instead I wanted to focus — for just a moment — on a trial tactic. And it came in the form of a direct exam of Ambassador Yovanovitch by Democratic counsel Daniel Goldman.

Direct exam. Few talk about it. It seems so boring. Cross is where it’s at! And summation! That’t the kind of exciting stuff that Hollywood likes and that law students dream of.

But in direct, the questions are short and simple, and designed to draw out two different things from a fact witness: Tell us the facts of what happened, and (sometimes) tell us how you felt about it.

Goldman shows the art of the direct in particular when asking Ambassador Yovanovitch about how she felt about intimidated and the smear campaign against her.

Forget the answers that she gave, for the purposes of this piece, and listen to the questions.

The idea is to get her to talk about an uncomfortable topic. Kinda, sorta, what personal injury lawyers do when they try to get their own clients to talk about how injury x affected their lives. (Because mental anguish is part of the damages.)

The questions are understated. There is no legalese. The questioner virtually disappears with the type of simple questions that it seems like an inquisitive and uninhibited middle school kid might ask.

On the tape, starting at 2:27, are these questions regarding the ambassador’s physical safety, that start with Goldman trying to pull out facts:

What did the Director General tell you? What happened next? Did she explain in any more detail what she meant about concerns for your security? Did she explain what the urgency was for you to come home on the next flight?

Then later on he tries to pull emotional testimony from her:

At 8:45 — So, just like that, you had to leave Ukraine as soon as possible? How did that make you feel?

13:37 — What was your reaction when you heard the President of the United States refer to you as “bad news?”

14:24 — What did you think when you heard President Trump had told President Zelensky that you were “going to go through some things.” What were you concerned about? Did you feel threatened? How so?

One might easily argue that if this was an actual trial these questions about her emotions would be objectionable since they don’t go to the facts of Trump asking a foreign government to interfere in our elections for his personal benefit, or using official acts to “persuade” that foreign government to do it.

But the comparison to a personal injury trial were unmistakable to my ear. Because the emotional fallout does matter. And therefore the questions were, in their essence, simplistically superb.

Make no mistake about this: This might look easy but it is hard work since it requires a mastery of the facts and hard preparation to gently guide witnesses along the path that you want them to go, without making it look like you are guiding the witness down any particular path. That work wouldn’t be obvious (and shouldn’t be obvious).

And if all goes according to plan, the witness is the star and the jury forgets the questioner is even there. There’s no posturing, or preening, or emotion, or speechifying.

It just sounds like you’re asking the same questions that any curious individual would ask: …And how did you feel about that? If this was a courtroom, Goldman would probably be standing behind the jury, out of their sight, so that the jurors could focus only on the witness.

Any trial advocacy class could use this footage as a demonstration on how to do a direct exam for a witness where such impressions and effects are relevant. It was a delight to watch.

The footage is below:

December 29th, 2018

Google Maps Comes to New York – and other legislative stuff

People love to yell and scream about those damn politicians, don’t they? Well, since fair is fair they should get a solid pat on the back for getting stuff right, shouldn’t they?

New York’s Gov. Andrew Cuomo signed a bill Friday that allows satellite-mapping services, such as Google Maps, to be admitted into evidence at trial. It was passed in the waning days of the last legislative session ending in June, and Cuomo just inked it. (Part of CPLR 4511)

I know, that’s a little thing, isn’t it? Especially since federal courts are already doing it.

But it’s one of those little things that oils the wheels of justice so that they creak along just a little bit more efficiently.

The bill summary is here:

“Allows judicial notice of an image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool, when requested by a party to the action, subject to a rebuttable presumption.”

And, of course, there isn’t anything even remotely partisan about it. It just makes it a little bit easier to move things along when you stand in the well of the courtroom.

Last year, for those that remember back that far, there had been several new laws regarding civil justice that improved things in New York, including a terrific change in Supplementary Uninsured/Underinsured Motorist (SUM) insurance, a change in the statute of limitations in medical malpractice cases to add a date of discovery rule for cancer cases, and a modest change in the venue law.

With the both legislative houses now in the hands of one party due to the Blue Wave that swept the country as backlash to Trump there is the opportunity for more progress (and yes, more mischief).

Maybe we will finally see the Grieving Families Act pass for the families of wrongful death victims?

Perhaps we can finally stop the judicially-created law that allows defense lawyers to interview a plaintiff’s doctors — off the record and without plaintiff’s counsel even being notified.

Maybe we will see some anti-SLAPP legislation?

(Hey, maybe, maybe we will even see my pet project, Eric’s Law, move forward to wipe out some of the last vestiges of the idiotic ad damnum clause?)

I’ll be watching, as the coming session has the opportunity to be one of he most significant in many, many years.

February 15th, 2017

Trials, Trump and Betrayal

The feeling of betrayal is, perhaps, one of the most powerful of emotions. It comes up in law all the time, and now it comes up in politics with the Flynn-Russia scandal and Trump’s demonstration that making America great is not exactly his first priority.

Before getting to the significance in politics, a quickie look at how often it comes up in the law, always starting with the premise that two people trusted each other. Without trust, of course, there can be no betrayal.

Betrayal appears with regularity in matrimonial actions, in contract disputes between business partners, and in criminal law with snitches.

Betrayal, in the form of treason, is the only crime defined in our Constitution. Yeah, it’s that strong, since it goes to our own sense of morality.

From my practice area, betrayal probably forms the single most common reason that patients contact lawyers about potential medical malpractice actions. People entrust their lives and health to others, and those others don’t do what was expected of them.

That betrayal forms the basis of an anger that results in the phone being picked up to see how, if at all, someone can get their pound of flesh. And it’s the reason some doctors are counseled to say “I’m sorry” rather than covering up errors.

And because of this very human emotion, it comes up in literature with great frequency.

Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned. — William Cosgrove

Betrayal is the only truth that sticks. — William Miller

Though those that are betrayed Do feel the treason sharply, yet the traitor Stands in worse case of woe — William Shakespeare

And more, from John Lennon’s son Sean, since it cuts to the heart of what makes for a good story:

There are only really a few stories to tell in the end, and betrayal and the failure of love is one of those good stories to tell.

Since betrayal cuts to the soul, it’s a common theme among trial lawyers that, if used properly, can captivate an audience. It’s a story every judge and juror can relate to. If, at trial, it’s possible to show that one person betrayed the trust of another, you can be 100% certain that a competent trial lawyer will use that theme.

So now we turn to politics and Donald Trump, and bring those trial tactics to a different arena.

It is a given that those who despise Trump will never, ever be disappointed in him. Such people are incapable of being betrayed.

But what of those that believed in him? What of those that bought his hats and shouted his name? Are these not the only ones who can be disappointed, the only ones who can be betrayed?

As the weeks roll on, look to see this concept of betrayal used over and again in the political arena, with the Flynn-Russia scandal, and likely elsewhere. It is one thing for a voter to excuse the conduct of a politician by simply ignoring the boastfulness and hyperbole, but it is altogether different when the hyperbole is supported by conspiring with a foreign power.

Especially when this was the stance of the Trump-Pence administration on February 2nd during a CBS Face the Nation interview:

Look in the future for Trump opponents, be they Democrat or Republican, to pick up this theme, by going directly to Trump’s base of support.

Hell may have no greater fury like a Trump supporter scorned.

July 28th, 2016

Trial Lawyer Tips From Politicians

Watergate jury, by John Hart. The original hangs in my office.

I’ve been watching the political conventions off and on these past two weeks, and it occurs to me that there are a couple good tips in there for trial lawyers.

Two speeches stood out to me as good lessons.

The first was Bill Clinton. Why? Because he is a master story-teller. This isn’t about whether you agree or disagree with his politics, but the manner in which he engaged listeners with stories. He wasted no time in starting with a good old-fashioned boy-meets-girl story and kept coming back to it.

Once upon a time — September 2007, which is 63 years ago in dog years and 200 years ago in internet years — I quoted Mark Twain on this subject, in discussing the need for the trial lawyer to engage the jurors and tell a story. And the most important thing to do is make sure the listener doesn’t fall asleep. You need to engage the listeners.

The second was that of Mike Bloomberg, who I think gave the best speech so far. How can that be when he stands where Bill Clinton just stood as well as both Obamas?

Because he bluntly stated that he wasn’t speaking to the people in the hall and that he often disagreed with Hillary Clinton. That is enough to make any viewer sit up and take notice (and to get many boos from those in attendance).

The fact that he wasn’t a typical cheerleader, and has supported both Republican and Democratic candidates, gave him credibility to address Trump supporters. He wasn’t there to simply yell Rah, Rah, Hillary. He audience was, perhaps, the most important one of all: The undecideds. That meant there was no reason at all to pander to those seated in front of him.

There is a powerful point here for those that stand in the well of the courtroom. When you give up issues to the other side (that you know you will likely lose anyway) your other arguments gain credibility with judges and juries. If you are respected, your arguments are more likely to find a receptive ear.

But not everything works. Because, for many parts of many speeches, people were merely preaching to the choir. Rousing up the folks in the convention halls. While this may be good to motivate those in attendance to work hard over the next few months, they do little to reach the critical undecided vote.

Tim Kaine was also important, but for altogether different reasons. He started out waving his hands around over his head and wasted all of his initial time with shout outs to his friends.

And that is an awful idea. The moments that people are most likely to listen to you, and most likely to remember, are the opening couple minutes of your remarks. And the closing ones. This is the concept of primacy and recency. The most important moments that should never be wasted are the very start and the very end.

After a few minutes of listening, he lost me, and I went upstairs to write this post. I heard later that the middle of the speech was amusing with his parody of Donald Trump, but I never heard it live.

Given that so much time, money and effort is put forward for these conventions to communicate, it’s worth sitting up to take notice of not just what they say, but how they say it. And to remember that when trying to persuade a judge or jury.