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January 2005
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Trial Practice Tips Courtesy of David Boies

I'm reading Courting Justice, from NY Yankees v. Major League Baseball to Bush v. Gore, by David Boies, and to prove it, here are some nuggets of legal wisdom from the book:

On litigation generally:

Craps and litigation have their similarities.  It is necessary to manage your exposure while taking risks.  It is critical to be patient and not get carried away.  Luck plays a key part.  Every hand, short or long, eventually ends.  And the result of every new roll, like the result of every new case, is independent of the last.

Id., p. 42.

High-stakes litigation is a team sport.

Id., p. 49.

In many ways a trial, like skydiving, is not inherently difficult; however, both can be terribly unforgiving of even the slightest inattention.

Id., p. 305.

On Liars:

The American legal system generally does not deal effectively with litigants who are prepared to lie and fabricate documents.  Lawyers are reluctant to believe that their client is actually lying and are generally prepared to present to a court whatever "evidence" their client gives them.  Judges, often facing busy schedules and almost always loath to believe that litigants and their lawyers will lie and fabricate evidence, are equally reluctant to act; when one side makes a charge of extreme misconduct and the other hotly denies it, courts have a hard time concluding that a party has simply made things up.  As a result, many courts do not like to hear charges of serious misconduct and tend to believe that such charges are more likely false and interposed for tactical reasons.  Charges of misconduct that cannot be clearly proven can end up hurting the litigant making them, even if they are true.

Id., p. 82.

On Trial Management:

As a leadoff witness you need someone who will point some points on the board and do no damage; you do not want to take a risk.  If your first impression with a judge or jury is not good, your case is in trouble.  You also want a witness who can explain the overall case and put matters in context.

Id., p. 176.

In court, as on the radio or television, five seconds  of dead air is a long pause; fifteen seconds can seem like an eternity.

Id., p. 188.

Arguing in the alternative is permissible in a lawsuit, and many defendants do it -- particularly in the early stages of litigation when lawyers are trying to ascertain the facts and determine what their best arguments may be.  However, by trial, especially before a jury, such arguments become difficult.  Juries do not want to hear clever hypotheses about what the facts might be; they want witnesses, and lawyers, to tell them what the facts are.  . . .  Jururs, in general, do understand the burden of proof and will require a plaintiff to prove its case.  However, jurors have little patience with a defenant's trying to use the burden of proof to take inconsistent positions.

On Witness Preparation:

A witness who fights battles he or she cannot win, and who is consequently embarassed, will often end up giving up more than is necessary.

Id., p. 190.

On Risk-taking:

The opportunity to do well by doing good is not that frequent and should be seized -- particularly when the opportunity is presented to an old lawyer with a young firm.

Id., p. 231.

On Settlement:

Many lawyers believe that they should stake out an aggressive position at the outset of a case.  Sometimes that works; more often it does not.  In my experience, lawyers and their clients should be quick to settle early and slow to settle late.  By failing to resolve a case early, litigants often miss an opportunity to settle before they (and their opponents) have run up large costs, and before positions have hardened as a result of the attacks that are inherent in an adversarial legal system.  At the same time, it is dangerous to lose your nerve late in the game when the terms available may be at their worst.  It is rarely possible to know for sure whether a particular case should be tried or settled, and facts discovered and analysis made along the way can certainly change an initial judgment.

Id., p. 238.

[I]f litigation is like bridge, the settlement of litigation is like poker.

Id., p. 345.

On Evidence:

An exception to the hearsay rule allows government reports to be admitted in evidence.  This exception fails to take into account the extent to which such reports reflect the political and policy agendas, and the plausible but by no means unimpeachable points of view, of the people responsible for their preparation.  Jurors tend to give government reports very heavy weight, and without the author present to be cross-examined, there is often little a party can do to counteract them effectively.  It would usually be fairer to allow experts to rely on the reports (as they can rely on anything the expert finds useful) but not to allow the reports themselves to be admitted as exhibits.

Id., p. 291 footnote.

Maryland Court of Appeals Holds That Trial Judge Was Within His Discretion When Refusing To Allow Asbestos Defendant To Withdraw Deemed Admissions

In Wilson v. John Crane, Inc., the Maryland Court of Appeals held that:

"[T]he trial court, in disallowing Garlock leave to withdraw or amend certain admissions deemed to have been conclusively established by default, did not commit an abuse of its discretion. The trial court specifically found that petitioners would suffer prejudice if Garlock was allowed to withdraw or amend its admissions, as Garlock did not bring its motion to withdraw or amend until after discovery was closed and the trial was scheduled to begin within days."

In this case, the motion to withdraw the deemed admissions was made only days before the trial.  The plaintiff argued that withdrawal of the admissions would be unfairly prejudicial, because plaintiff had selected trial witnesses and had prepared experts in reliance on the admissions.

In making this ruling, the Court of Appeals referred to the elephantine mass of asbestos litigation and the case management problems this creates for the Maryland courts.

The Court was also unimpressed with the stated reasons for the defendant's failure to make a timely response to the requests for admissions:

Garlock was unable to provide the trial court with any legitimate excuse as to why it did not answer petitioners’ request for admissions within the temporal confines of Rule 2-424 (b). Affidavits were filed by Garlock’s counsel that suggested that its failure to respond was due to an oversight by both a paralegal who had the task of monitoring new filings in the eFiling system and the supervising attorney of that paralegal. In its memorandum in support of its motion to withdraw or amend its admissions, Garlock further casts some of the blame on the “blizzard of electronic filings” that the eFiling system has effected. We are not prepared at this time to find that a court has committed an abuse of its broad discretion in denying a party’s motion to withdraw or amend its admissions where that party’s only excuse as to why it did not timely respond to a request for admissions amounts to a plea that, because the particular attorney or firm has undertaken a large number of clients or cases, he or it cannot adequately control or oversee the proper responses to pleadings. Attorneys are required not to undertake representations unless they can adequately monitor the pleadings. This is no less so in asbestos litigation.

Comment:  It is certainly true that there is a blizzard of electronic filings in an asbestos case in the Circuit Court for Baltimore City.  There could easily be 3000-4000 electronic filings for any particular trial cluster between the time it becomes active to the date of trial, depending on the number of defendants.  Probably at least half of that email is generated in the last 4 months before trial.  At certain deadlines, there might be a new email every five minutes all day for a particular trial cluster.  A frequently sued defendant like Garlock may be involved in 12 trial clusters per year.  The argument based on the blizzard of electronic filings, in fairness, cannot be dismissed so easily.  There ought to be some sort of electronic coding or flagging of pleadings that are directed to a specific party. 

Another point is that the asbestos litigation in the Circuit Court for Baltimore City is still subject to the venerable "Case Management Order No. 1", which was signed way back in 1987.  Under that Case Management Order,  the time to respond to defendant-specific requests for admissions was enlarged from 30 days to 60 days.  The Court of Appeals doesn't mention the 60 day time period to respond, so maybe that portion of the Case Management Order has been amended at some point over the years (but I don't think so).

Anyway, assuming a 60 day period to respond, plus three extra days for service, here is how the chronology looked:

April 5, 2002 -- Requests for Admissions served.

Friday, June 7, 2002 -- Responses to requests for admissions due.

June 11, 2002 -- A couple of other defendants moved to withdraw or amend their deemed admissions, which motion was later granted by the trial court.

June 17, 2002 -- Garlock's motion to withdraw or amend deemed admissions filed.

June 24, 2003 -- Garlock's motion denied.

June 26, 2002 -- Start of trial.

In sum, the defendant here was only 10 days late in responding to the requests for admissions, which puts the plaintiff's claims of prejudice in a little better perspective. 


More on Medicare Liens

There's a good article in the Jan. 2005 issue of For the Defense, titled "The Revised Medicare Secondary Payer Act", by Thomas C. Regan and Seamus M Morley of Pitney Hardin in New Jersey.  Thanks, guys.

The essence of the article is that since the passage of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-173, 117 Stat. 2066, and particularly Section 301 of that statute, all defendants settling cases in which Medicare has paid any portion of the plaintiff's medical expenses must take steps to protect themselves against the statutory Medicare lien.

Steps that the authors recommend include the following:

1.  Determine through discovery whether or not the plaintiff's medical expenses have been paid by Medicare.

2.  Do not agree to settlement language that purports to establish that the settlement is made for pain and suffering only.  Plaintiff's counsel may be trying to circumvent the Medicare lien, and doing so places the defendant at risk for the reimbursement or double the settlement.   There may also be tax reasons behind plaintiff's counsel's request for such language, but agreeing to such a provision is ill-advised.

3.  Include language in the settlement agreement and release that plaintiff is solely responsible for payment of all outstanding medical liens.

4.  The authors suggest even holding back the amount of the Medicare lien and making the payment directly to Medicare. 

5.   Finally, the authors suggest indemnification language in the settlement agreement so that the defendant is protected from unreimbursed payment of the Medicare lien.  (However, this remedy may not be worth the paper it is written on.)

I am surprised the authors did not recommend including Medicare's Coordination of Benefits Department as a payee on the settlement draft (in whatever language CMS requires).  I'd be interested in hearing from the plaintiff's counsel's perspective why that is unfair, unreasonable, or generally a bad idea.

Perhaps if CMS is named as a payee on the settlement draft, that gives CMS more leverage than usual in negotiations over the settlement of the Medicare lien.  However, it seems to me that as long as the defendant specifies at the outset of negotiations that Medicare has to be named as a co-payee due to its statutory lien, plaintiff's counsel will be in a position to factor the appropriate Medicare reimbursement into his settlement evaluation.   

Continue reading "More on Medicare Liens" »

Overview of Electronic Briefs

Thanks to Appellate Law and Practice for the link to the DRI Technology Newsletter article concerning electronic briefs. I wasn't even aware of that newsletter.

I would be surprised if, three years from now, I have not filed an electronic brief. My firm is not on the cutting edge of technology, but we have high speed scanner/copiers and software that can create pdf documents. We are already doing electronic court filing in the federal district courts in D.C. and Maryland. Most of us are taking digital photographs at home, and are getting familiar with that technology. What else is there to doing an electronic brief other than copying the digital brief and digitized appendix materials into a folder and subfolder, creating the hyperlinks, and then burning the whole thing to a CD? Training. I guess the key will be to be able to do it in a cost-effective way, under the pressure of court deadlines, and for that it is necessary to have trained staff.

Residual Diminution of Value After Repair Held By D.C. Court of Appeals To Be A Recoverable Element of Damages

In American Service Center V. Helton the D.C. Court of Appeals held that remedies for injury to personal property include residual diminution in value after repair. 

In this case, there was an automobile accident involving an Avis rental and a Mercedes Benz owned by a large Mercedes dealership, the American Service Center.  Avis paid for the repairs to the Mercedes, but American Service Center sued to also recover the net residual diminution in value after repair.  The Court held that:

when a plaintiff can prove that the value of an injured chattel after repair is less than the chattel’s worth before the injury, recovery may be had for both the reasonable cost of repair and the residual diminution in value after repair, provided that the award does not exceed the gross diminution in value.