The Legal Intelligencer Blog

At Trial, You Are a Reflection of Your Client

The Golden Rule 

With all of the preparations of evidence, witnesses and trial exhibits, some trial teams still forget what I consider to be the golden rule of the jury trials.  It is such a simple rule that is all too often ignored. What is it? It is to never forget the following:

At trial, you are a reflection of your client.  

No exception.

When You Follow the Golden Rule

In a large contract dispute between two companies, it was critical for jurors to believe that our client was an extremely well-run organization. It had to be recognized as organized, concise and knowledgeable about its business. It had to be seen as a company that followed all the rules of fair business dealings. The other side tried hard to present our client as sloppy and disorganized, making up its own rules in its dealings.   We had some documents that were not favorable. We had some witnesses who were not very likable.  

What we also had was a trial team that became the message of the rule-following and well-run organization through its own behavior. The team made a special effort to show absolute respect for the authority of the courtroom, following the rules the judge set forth.  The team made a special effort to be organized. It was prepared. It demonstrated that it was knowledgeable about the case through its presentations. In other words, the team behaved itself as it wanted jurors to perceive its client. And, according to juror feedback after the trial, it worked.

When You Don’t Follow the Golden Rule

In an intellectual property dispute between two companies, the smaller company of the two accused the larger company of being a corporate “bully,” unjustly taking the small company’s ideas simply because it had the power and money to do so.  The defendant larger company had counsel that was aggressive and was not afraid to show that aggression in the courtroom.  During cross-examination of the small company’s witnesses, the defense trial team was on the attack. It had valid information with which to impeach the witnesses and the team attacked those issues using loud voices and intimidating tactics. Tactics similar to that of a … bully.

As a reflection of its client, this trial team behaved in a manner congruent with the plaintiff’s core theme of “bully.” As a result, despite having solid evidence on its side, jurors believed that the defendant must be a bully because that is what they saw in the courtroom. 

The Whole Picture

While it is critical to focus on witnesses and be prepared with the content of your case, it is also important to take a big picture look at the image you want jurors to have of your client. What adjectives do you want jurors to use to describe your client and, more importantly, what adjectives do you not want associated with your client? Then, take a step back and ask yourself which of those good and bad adjectives could be used to describe you as you present yourself in the courtroom?

For example, for counsel who represent individual plaintiffs, you may want jurors to see your client as an “everyday person” and not as someone who is “looking for a payout.” If you present yourself in the courtroom in an expensive suit with a big, shiny, designer watch, you could be doing an injustice to your client. Specifically, as the main voice of your client’s case, presenting yourself with expensive attire and accessories could signal to jurors, “this is not an everyday person who I can relate to, but a person who is looking for a payout.” Presenting yourself as professional without glitz can help jurors relate to you, and your client, much more effectively.

In essence, you don’t just want to present your case, but to be your case.  Remember that when it comes to telling a story in the courtroom, peripheral cues can be just as important as the content of the message.  You are a critical messenger and a reflection of your client. Always.

Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

Melissa M. Gomez, Ph.D.
MMG Jury Consulting, LLC
www.mmgjury.com

Local Firms Win The American Lawyer Awards for Niche Litigation Practices

By Gina Passarella
Of the Legal Staff 

Pennsylvania firms couldn’t be found even among the honorable mentions of  The American Lawyer’s Litigation Department of the Year awards, but when it comes to niche practices, they made their presence  felt.

Reed Smith took the prize for best products liability litigation practice. The award was supported in large part by the team’s work in securing a win for its client in Riegel v. Medtronic. In that case, the U.S. Supreme Court ruled Reed Smith’s client, Medtronic Inc., and similar companies couldn’t be sued for damages over for FDA-approved medical devices.

Reed Smith has also long represented Wyeth, now part of Pfizer, in cases in Philadelphia over claims the company’s hormone replacement therapy drugs caused plaintiffs’ breast cancer.

Morgan Lewis & Bockius was a finalist in the magazine’s award for labor and employment litigation team of the year. The firm has either won that category or was named a runner-up in each of the contests since 2004. The awards are given out biennially.

Morgan Lewis’ team was cited for its successful and “lack of flashiness” representation of clients in difficult ERISA stock-drop suits, wage-and-hour class actions and discrimination suits.

DLA Piper’s products liability team, including Philadelphia-based partner William F. Kiniry Jr., was a finalist in that category. The magazine cited the group’s continued good work even after the departure of rainmaker Amy Schulman to serve as Pfizer’s general counsel.

Gibson Dunn & Crutcher won the overall Litigation Department of the Year award for its work during 2008 and 2009.

A Holiday Gift for Appellate Procedure Wonks

In early December, the Supreme Court issued its first four opinions in cases argued this term.  In reporting on the decisions, Adam Liptak, the New York Times’ Supreme Court correspondent, referred to them as “all minor” cases.  But to appellate procedure wonks (and if you’re reading this blog post, you may be one), the decisions were far from “minor.”  To the contrary, their subject matter — covering principles of mootness, waiver and jurisdiction — was interesting and their results potentially significant.

The first decision (alphabetically) was Alvarez v. Smith.  The issue in Alvarez, at least initially, was “whether Illinois law provides a sufficiently speedy opportunity for an individual, whose car or cash police have seized without a warrant, to contest the lawfulness of the seizure.”  However, the court did not reach this due process question because, at oral argument, the court was informed that each of the underlying property disputes in the case had been resolved.  Thus, the court found the case moot and vacated the judgment of the Court of Appeals, which had ruled in favor of the plaintiffs, and remanded to that court with instructions to dismiss the case.

Interestingly, both sides to the dispute urged the court to reach the merits, but the court held that the plaintiffs had no concrete interest in resolution of the question whether the state’s procedures were lawful.  According to the court, that dispute “is an abstract dispute about the law, unlikely to affect these plaintiffs any more than it affects other Illinois citizens.”  The court then decided what it referred to as the “less easy” issue of what to do with the lower court’s judgment: vacate it or leave it intact.  While the court’s default rule when a case becomes moot is to vacate the lower court judgment, it has applied an exception where mootness results from the parties’ settlement of the case.  Finding the procedural history of this case more consistent with the default situation (i.e., mootness through happenstance) than mootness through settlement, the Court vacated the appeals court’s judgment in favor of the plaintiffs.  Justice John Paul Stevens dissented on this latter point, arguing that the general rule against vacating judgments that become moot due to settlement should apply in this case.

In the second case, Beard v. Kindler, the court addressed the sometimes convoluted and always complex area of habeas law known as “procedural default.”  Under this doctrine, a federal court cannot rule on the merits of a habeas petitioner’s claims if a state court refused to reach the merits of those claims on the ground that the petitioner had not complied with a state procedural rule.  However, for procedural default to apply, the state rule that is invoked to preclude a merits determination must be firmly established and consistently and regularly applied.  In other words, invocation of a state procedural rule that is arbitrarily or unfairly applied is not a sufficient ground to preclude habeas review in federal court.

In Kindler, the 3rd U.S. Circuit Court of Appeals had held that Pennsylvania’s fugitive forfeiture rule, under which fugitives forfeit their right to appeal their convictions, was not consistently and regularly applied, and thus, was not a sufficient ground to preclude consideration of a habeas petitioner’s claims.  The commonwealth petitioned for a writ of certiorari, arguing that the 3rd Circuit had erroneously held that a state procedural rule cannot be the basis for procedural default if the rule is discretionary rather than mandatory.  The habeas petitioner agreed that a discretionary state rule could form the basis for procedural default, but contended that the 3rd Circuit had not held otherwise.  Despite the parties’ agreement on this point, the Supreme Court granted the commonwealth’s petition and, following briefing and argument, held that “a discretionary state procedural rule can serve as an adequate ground to bar federal habeas review.”

The third case generated the most notice in the press, but not for substantive reasons.  Mohawk Industries Inc. v. Carpenter represented new Justice Sonia Sotomayor’s first opinion as a Supreme Court justice.  Substantively, the case is much more significant than the non-legal press reports would indicate.

In general, pretrial decisions of federal district courts are non-appealable.  For the most part, only “final judgments” of the district courts are appealable.  Thus, if a district court orders a party to produce certain documents the party seeks to withhold or orders a witness to answer questions at a deposition that the witness’s attorney has instructed the witness not to answer, those decisions may not be immediately appealed.  Only after a final judgment is entered in the case can the losing party in those situations challenge the court’s pretrial rulings.  And if that party prevails in the case (through, for example, summary judgment or a jury verdict in the party’s favor), the pretrial rulings likely will be insulated from review by the rule that a prevailing party has no standing to appeal from a final judgment in its favor.

Certain exceptions exist to these general principles, largely from statutes or procedural rules, although one — the one at issue in Mohawk — is judge-made.  The collateral order doctrine, first adopted by the Supreme Court 60 years ago, provides that certain interlocutory orders are immediately appealable if they resolve important questions separate from the merits of the case and are effectively unreviewable on appeal from the final judgment.  In the past dozen years, three circuits — including the 3rd Circuit — had held that orders compelling a party to produce materials allegedly protected by the attorney-client privilege fell within the collateral order doctrine.  Six circuits, including the Eleventh Circuit in the decision under review in Mohawk, had ruled to the contrary, finding such orders non-appealable.

In Mohawk, the Supreme Court unanimously sided with the latter group of appeals courts and rejected the minority (and 3rd Circuit) view that such orders were immediately appealable.  In doing so, the court disagreed with the argument by the defendant corporation and its supporters (including the American Bar Association) that an order compelling the production of privileged material is effectively unreviewable after final judgment.  The court found no basis for distinguishing orders requiring the production of attorney-client privileged materials from other pre-trial discovery orders.  The court noted that, as with the latter type of order, if a pretrial ruling on privilege prejudiced a losing party (for example, through the erroneous and prejudicial admission of evidence at trial), effective relief on appeal from a final judgment could be had through a reversal and order of a new trial.

Finally, in Union Pacific Railroad Co. v. Locomotive Engineers & Trainmen General Committee of Adjustment, another unanimous decision, the court addressed five decisions of the National Railroad Adjustment Board in which that agency had refused to reach the merits of disputes between railroads and their unions because of alleged “jurisdictional” defects in the cases.  The Supreme Court reversed the board’s rulings, holding that the board had no authority to decline to exercise the jurisdiction conferred on it by Congress, even where a party failed to comply with a procedural rule established by the board.

None of the Supreme Court’s first four decisions addressed substantive legal issues, such as the constitutionality of a state law, interpretation of a federal statute or a cutting-edge issue such as executive authority to hold enemy combatants.  Yet, each of the cases involved important issues of procedure that, like many rulings regarding procedure and jurisdiction, could potentially affect numerous subsequent cases raising these important substantive issues, not only in the Supreme Court, but in lower state and federal courts and administrative agencies.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP
www.schnader.com

Williams Begins to Assemble Leadership Team at DA's Office

By Amaris Elliott-Engel
Of the Legal Staff

After R. Seth Williams was sworn in today as the first African-American district attorney in Pennsylvania's 300-year history, Williams announced some of the members of his leadership team.

Williams said that Joseph "Joe" McGettigan will be the first assistant district attorney. McGettigan has worked for the Delaware County District Attorney's Office and the Pennsylvania Attorney General's Office.

Williams also announced that two current members of the Philadelphia District Attorney's Office will take on new leadership roles. Edward McCann, the current chief of the homicide unit, will be Williams' deputy of the trial division. 

Ann Ponterio will become chief of the homicide unit. More policy and personnel changes will be announced Tuesday.

City Controller Alan L. Butkovitz and 11 new judges on the Philadelphia Court of Common Pleas and Philadelphia Municipal Court also were sworn in. Seventeen Common Pleas Court, Municipal Court and Traffic Court judges, who won retention elections last fall, were also sworn in.

Williams said that a recent Philadelphia Inquirer series highlighting that Philadelphia has the lowest conviction rate for major felonies among large cities in the United States reflected what he called for in his 2005 and 2009 campaigns. Williams promised that four years from now Philadelphia will no longer have the lowest conviction rate. Williams also promised to implement more preventive measures to try to prevent young offenders from escalating their misbehavior from truancy from school to worse criminal activity. Williams also promised tougher prosecution of municipal corruption. Williams also promised to assign prosecutors geographically. And Williams said he'll be seeking more funds for his office during the upcoming budget season.

But Williams said that he needed allies in the community to change criminal justice.

“True justice is always in the hands of the people. Amen?" Williams said, seeking "Amens" from the audience to affirm his remark. "We will be the agents of change. We will be the ones we're waiting for. We'll take our neighborhoods from the 'hoods and give them back to our neighbors.”

Outgoing District Attorney Lynne Abraham and Williams both avoided making explicit criticisms of each other, despite pressing by the media after Williams' swearing-in and despite Williams' electoral challenge to Abraham in the 2005 election.

Abraham said she is going to be working at a law firm and that she will run for another elected office, But Abraham declined to state which firm she'll work for or which office she'll run for. Abraham said she is not "riding off into the sunset. I'm riding off into the sunrise."

Mayor Michael A. Nutter also used the timing of a new year and the induction of a new district attorney to call for reform to the city's criminal justice system and to "break down the bureaucratic barriers, the silence, the territorialism." Nutter said a new way of dispensing justice is needed when more than 700 black men were killed in the city in 2007, 2008 and 2009, and when homicide is the leading cause of death for young black men.

Nutter also said that some progress has been made to reform the system because a stakeholder group of all the top leaders in the criminal justice system, the Criminal Justice Advisory Board, have been meeting monthly to explore and coordinate policy changes.

Families "are ripped apart by this bloody slaughter," Nutter said. "Now Police Commissioner [Charles] Ramsey, District Attorney Seth Williams and I, three African-American men ... must come to grips with what I have called in the past a black genocide."

Nutter also told the new judges sworn in today that they'll be subject to all kinds of criticism, but they won't be able to publicly respond when their judgments are questioned. But Nutter still said, while he was adding his voice to others that question judges' decisions through "Monday-morning quarterbacking," that there should not be second chances for hardened criminals.

New Special Master In Foxwoods Case

By Leo Strupczewski
Of the Legal Staff

The state Supreme Court has named Philadelphia Common Pleas Court Judge John W. Herron as the new special master in the Foxwoods Casino case.

According to an order from the high court, Herron replaces former Commonwealth Court Judge Joseph F. McCloskey, who retired. McCloskey was serving as a senior judge.

As special master, Herron will have “full authority” to resolve disputes in the case related to permits, approvals, licenses and other city authorizations related to Foxwood’s gaming license.

Herron is also the special master for issues related to the SugarHouse Casino.

The Supreme Court appointed him to that position in March after it ruled Philadelphia had to issue HSP Gaming a foundation permit to begin building the planned SugarHouse Casino.

The justices said that Herron would handle future disputes related to SugarHouse. McCloskey was previously appointed to a similar position for the Foxwoods Casino.

Supreme Court Won’t Hear Workers' Comp Act Exclusivity Case

By Zack Needles
Of the Legal staff

In a per curiam order, the Supreme Court has denied allocator in a case in which a man rendered quadriplegic in an accident while driving his work truck claimed economic damages as a result of his employer allegedly destroying parts of the vehicle and hindering his ability to sue the truck manufacturer.

In April, the state Superior Court reversed a Philadelphia trial court judge, ruling that plaintiff Marton Minto was not barred by the exclusivity provision of the Workers' Compensation Act from suing his employer, J.B. Hunt Transport Inc.

Minto didn't allege damages against his employer for injuries he suffered in the March 2002 accident, but claimed economic damages as a result of J.B. Hunt allegedly destroying evidence he might have used in his case against products liability defendants.

The Superior Court was asked to review the issue of the exclusivity clause after Philadelphia Common Pleas Court Judge Sandra Mazer Moss granted J.B. Hunt's motion for judgment on the pleadings, finding the clause barred Minto's claims.

State Supreme Court Affirms Decision Striking Pa. Mercury Reductions

By Peter Hall
Of the Legal Staff/Law Weekly

The state Supreme Court has affirmed a Commonwealth Court decision that declared invalid a Pennsylvania Department of Environmental Protection rule designed to reduce mercury emissions from coal- and oil-fired power plants.

The decision in PPL Generation v. Commonwealth, handed down late Wednesday, came about a week before the rule was due to take effect Jan. 1.

In a single-judge decision in January, Commonwealth Court Judge Dan Pellegrini found the Pennsylvania mercury rule invalid because federal law precludes state regulation of pollution sources listed in the federal Clean Air Act and regulated by the U.S. Environmental Protection Agency.

Although the federal government shifted responsibility for regulating mercury emissions to the states in 2004, the U.S. Court of Appeals for the D.C. Circuit overturned the regulatory scheme last year in New Jersey v. Environmental Protection Agency, 517 F.3d 574 (D.C. Cir. 2008), a challenge by various environmental groups and state governments.

Because the Pennsylvania rule was created and promulgated as an alternative to the federal regulation’s cap and trade scheme – in which states could trade credit for mercury emissions – it became invalid once the federal regulatory scheme was struck down.

In affirming the Commonwealth Court decision, the Supreme Court, in an opinion by Chief Justice Ronald D. Castille, rejected arguments by the DEP that it is entitled to relief under numerous principles of administrative law and that the appellants waived any challenge to the rule because they failed to object upon its promulgation.

“There is no dispute that mercury is a pernicious pollutant, and limiting and controlling mercury emissions through valid regulation is desirable.  Yet, logically the PA Mercury Rule simply cannot stand following  New Jersey.  The Commonwealth’s arguments, at heart, evince an understandable, but ultimately legally weak, frustration at the bind in which the Commonwealth is placed when a challenge in the federal regulatory system and resulting litigation introduces this kind of uncertainty respecting the role the states may play.  By the same token, however, those subject to a regulatory scheme where federal authorities can and have acted, should not have to choose between two schemes at their peril.  At the end of the day the Commonwealth simply cannot prevail on the arguments forwarded here,” Castille wrote.

 

It’s a Holiday Miracle

Congress has fallen below even the lowest expectations of tax practitioners.  It’s like a (bad) dream come true.

For the past eight years, I’ve been describing our estate tax system to clients: We’ll have gradually lowering rates, and the exemption will eventually rise to $3.5 million.  Then, if you can believe it, there will be one year, 2010, when the tax will disappear.  The next year, the tax will reappear, at the higher rates and lower exemption that existed before the law was changed.  Then, I would explain that Congress would of course have to fix the law because that made no sense.  We would laugh, and I would send them a bill.

But time passed and the law wasn’t fixed.  Congress flirted with repeal of the estate tax, but never reached that point.  It was assumed that they would do something to avoid this strange sequence of tax law changes, which originated in artificial budget constraints.  There was some continued grumbling about repeal, mostly from people trying to get the attention of wealthy donors.  Earlier in this month, it appeared that there would be a one-year extension of the current law ($3.5 million exemption, 45 percent tax rate), then maybe an extension of a few months.  Now, the effort to extend the law has been abandoned for the year, and the estate tax is scheduled to be reduced to zero in 2010. 

Leaders in Congress promise that the law will be changed early in the year.  But that means that the law would have to be amended retroactively to the first of the year.  Otherwise, the lucky people who die in the first week (or actually their families) would have a windfall for no particular reason.  Congress has the power to pass tax laws on a retroactive basis, at least back to the beginning of the year, but every time this happens, there are lawsuits, and we can expect those again, but it’s likely that a retroactive change would be upheld.

The absence of an estate tax in 2010 has another consequence.  Under the current law, when someone dies, his or her assets are stepped up in basis to their date of death value, which is a valuable tax benefit.  Without an estate tax, assets won’t be stepped up.  Instead, those who inherit will carry over the basis the decedent had, which will add to the complexity of the tax law administration and increase tax liabilities on the heirs, in many cases more than the estate tax would have done.  When carryover basis was added to the law in the 1970s, it was so complicated that it had to be repealed.  Let’s hope that a new year will bring a resolution of this problem.

Robert H. Louis

DA's Office Won't Prosecute Berry, Who Will Return to Hear Criminal Cases

By Amaris Elliott-Engel
Of the Legal Staff

The Philadelphia District Attorney's Office will not file criminal charges against Philadelphia Common Pleas Judge Willis W. Berry Jr. for running his real estate business out of his judicial chambers, District Attorney Lynne Abraham announced in a press release Thursday evening.

The announcement clears Berry's return to the criminal division, Trial Division Administrative Judge D. Webster Keogh said.

Berry was suspended from the bench for four months by the Court of Judicial Discipline for bringing the judicial office into disrepute by handing his rental properties out of his chambers, including having his judicial secretary handle the real estate business.

 Berry's attorney, Samuel C. Stretton, said the judge completed his suspension this week and is taking vacation time until Jan. 4. Prior to his suspension, Berry recused himself from hearing criminal cases. The District Attorney's Office asked Berry to recuse himself from hearing criminal cases because the Court of Judicial Discipline's opinion stated Berry had committed a '"crime'" by diverting his secretary's time and the other resources of his public office to a private venture.

Abraham scored the CJD in her press release, saying the punishment meted out to the judge was a mere "slap on the wrist," but said that if there was not clear and convincing evidence to remove Berry from office in the Court of Judicial Discipline, then there is not proof beyond reasonable doubt to convict him of theft of services in a criminal court.

Part of the reason there is not proof beyond reasonable doubt to convict Berry, the release said, is because the investigation proved that Berry compensated his former judicial secretary, Carolyn Fleming, from his personal bank account for her extra work, including paying her gas, electric, water, phone, cable and credit card bills. Berry paid about $25,000 of Fleming's expenses from 2003 to 2007, the release said.

 

7 Ways Lawyers Can Capitalize on Media Coverage

As a public relations practitioner, I am often asked what a firm or attorney should do AFTER they have received media coverage. It is so important to understand that not everyone you want or expect to see the coverage will see it the first time around. So, if there are people who you would like to see the coverage, make sure you share the new with them proactively. Here’s how:

1. If you have advance notice that you (or your firm) are going to be mentioned in a news story or article, let people know. You can send them an e-mail, post a notice on your Web site, update all of your social media statuses (such as LinkedIn, Plaxo, Facebook, MySpace and Twitter), add a note to your e-mail signature or just pick up the telephone and let people know in advance.

2. If you do not have advance notice of the coverage, let people know after the fact. Send them a link using all the same tactics listed in No. one, minus the telephone.

3. If your coverage is from a print publication, you can also purchase reprint rights and share the reprints via e-mail, mail and on your Web Site. They can be used as a direct mail piece, as handouts at events, as inserts in company collateral material, in your front office brag books, in your media kits, shared via Legal Onramp, JD Supra and Martindale Connected, mounted on your office walls and in so many other ways.

4. Include mention of the media coverage in your firm newsletter or e-newsletter with links when possible.

5. If your coverage is from TV news, purchase copies of the clips and add them to your firm’s Web site. Create a channel on YouTube. When adding to YouTube, be sure to include keywords in the description including your firm’s name.

6. Do not forget all the audiences who care about what’s happening at your firm. They include: clients, prospects, vendors, strategic partners, employees, colleagues, alumni offices, boards on which you participate, associations to which you belong, other members of the media, friends and family.

7. If you or others you know maintain relevant blogs, share your media coverage there and ask other bloggers who share relevant content to do the same.

Proactive sharing your media coverage is a great PR tool. It will increase the buzz, generate awareness, build a solid corporate reputation, and assists in communicating your news to your target audiences. The more often these audiences see the great work you and your firm are doing, the more likely it is that they will remember you when searching for legal services.

Gina F. Rubel, Esq., is the owner of Furia Rubel Communications, Inc., a public relations and marketing agency with a niche in legal communications. A former Philadelphia trial attorney and public relations expert, Gina is the author of Everyday Public Relations for Lawyers. Gina and her PR firm have won numerous awards for legal communications, public relations, media relations, strategic planning, corporate philanthropy and leadership. She maintains a blog at www.ThePRLawyer.com and is a regular contributor to The Legal Intelligencer Blog. You can find her on LinkedIn at www.linkedin.com/in/ginafuriarubel or follow her on Twitter at http://twitter.com/ginarubel.  For more information, go to www.FuriaRubel.com.