Archive for the ‘Inside The Well’ Category

Professorial Malpractice (Updated)

Professor Franks, via LinkedIn

Professor Franks, via LinkedIn

Monday someone blocked me on Twitter. It’s the first time that has happened to me since I started sporadically using the service in 2009.

Me? Blocked?  What malicious and impertinent crime had I committed?

Apparently, I committed the vulgar, discourteous and insulting crime of asking a law professor for a citation, and then discussing it.  I kid you not.

As I skimmed my Twitter feed upon return back from a delightful vacation, I saw this curious tweet from Professor Mary Anne Franks about the de minimis likelihood of a rape allegation being false:

InfinitesmalNow I’m no student of rape statistics or studies for sure — it isn’t what I do, and it isn’t one of the issues I’ve routinely tackle in the 1,300+ pieces I’ve written here since 2006.

But I was curious about the comment, certainly, since it carried a presumption of guilt, which is deeply at odds with our jurisprudence. And it was also at odds with stories in the popular press about rape accusations that turned out to be either questionable or outright false.

This includes such front page stories as the Duke Lacrosse players scandal, the poorly sourced Rolling Stone article from the University of Virginia for which it apologized (A Rape on Campus), Columbia University student Emma Sulkowicz who carried a mattress around campus after claiming she was raped, and the Central Park Jogger case. And, of course, there is the infamous case of the Scottsboro Boys.

But you know what the problem is with all those reports? They are not empirical evidence. While they discuss the facts of those particular cases, this means nothing for the big picture as to whether the incidence of false rape accusations is “infinitesimal,” or common, or somewhere in the vast gray area between.

While I don’t do criminal defense work, I do try civil cases, and I am aware of how stories in the popular press help to shape societal opinions (and, therefore, the jury pool). A classic example from my field is the McDonalds hot coffee case. I can’t remember the last time I picked a jury without discussing it.

The problem is that such stories are, by definition, outliers. If they weren’t outliers, they wouldn’t be on the front page where they then go on to shape public opinion.

Wanting to know the source of Professor Franks’ conclusion, I inquired with a very simple and benign citation request regarding her claim that false accusations of rape were “infinitesimal.” And with that she directed me to a Washington Post article that cited a variety of statistics, from different studies:


While I won’t summarize the entire article — since as you will see in a moment that is not the point of this post, and you can read it if you want — the author wrote about one significant study stating that there is “a profound disagreement on what counts as a false allegation.”

Due to the problem of shifting definitions (as well as unreported rapes), you can see by the article that it’s difficult to get a real handle on the extent of the problem. In fact, the very story that Professor Franks cited to me had studies showing  false rape accusations varying between a low of 2% to a high of 45%.

The only thing that seemed to be clear about the statistics is that nothing was clear.

So I noted to Professor Franks that not only wasn’t the word “infinitesimal” part of the story, but that the very citation she gave me seemed to demonstrate otherwise:



Two to 45

And she blocked me. For challenging the conclusion she reached from her very own citation. This is academia?

Now where I come from, a lawyer doesn’t make an assertion that can’t be backed up with proof. Evidence is the heart and soul of any case or argument. I get challenged on my proof all the time, and I challenge defendants on theirs. Over the course of the 30 years since I was graduated from law school, I’v become pretty confident that this is the way the system works.

The challenging of proof is what, hopefully, assists the finders of fact (be they juries or judges) to become the proverbial fly on the wall that determines what “actually happened” when one bit of evidence contradicts another.

It’s therefore routine in trials for each side to look at the opening statements of the other, and try to find some fact that they claim wasn’t proved at trial, and then pound away at this, calling it an exaggeration or falsity in an attempt to tarnish the entire case of the other side.

And that is why lawyers speak carefully in making assertions of fact, for otherwise we tarnish not only ourselves, but worse, our clients or causes.

I can’t help but wonder: What happens if a legal adversary challenges an assertion that Professor Franks makes in a motion or appeal? What happens if a judge challenges her cite? Will she stand in the well of the courtroom and try to block the judge?

And what happens when a student challenges a citation that Professor Franks gives in class? Does she block the student? Will she cover her ears and sing?

What kind of lesson does she teach her students by saying that, if a person challenges your citation, you just block them?

This post isn’t about rape. It’s about evidence. And teaching. And lawyering.

I’m reminded by this episode of an experience I had as a newbie blogger, with just months under my belt. Walter Olson at Overlawyered had written something and I posted an opposing view. So what did Olson do? He amended his post to read, And for another view, see Turkewitz. With a link.

This was the exact opposite of blocking. And it brought home to me in a heartbeat what the whole blogging thing was about. It’s about an exchange of ideas, some of which may be critical. Olson and I may butt heads on issues from time to time, but I’m indebted to him for that lesson.

And it was the subject of a post I wrote a few years ago celebrating that very fact (Twittering With the Enemy– A Blogospheric Celebration). Professor Franks would do well to take note.

A last thought. When I was a kid, I remember one of my teachers telling me that the best students were the ones that challenged their teachers with questions. This was the pool of students, he told us, from which he hoped would one day emerge a son-in-law.

Good teachers are happy when students’ minds are buzzing with inquisitiveness.  Good teachers aren’t afraid of the questions. Or the answers. Or of learning something new.

Update (7.16.15) – In exceptionally stark contrast to Professor Franks, 9th Circuit Judge Alex Kozinski had this to say in an article that deals with his ideas (in part) on how to change the jury system:

If my proposals raise controversy and opposition, leading to a spirited debate, I will have achieved my purpose.

Now ain’t that refreshing?


Elsewhere, some on point, some tangential:

Professor Franks and the False Dichotomy (Jay WolmanLegal Satyricon, who was also blocked)

The ITIF’s Confusion on Free Speech and Revenge Porn (Scott Greenfield @ Simple Justice)

Professor Twitter and the Problem of the Low False Rape Narrative (Francis Walker @ Data Gone Wild)



The Fainting Lawyer and the Stress of the Courtroom Well


Hans Poppe, Louisville, KY

Almost two years ago I wrote of the lawyer who fainted dead away on the 10th day of a medical malpractice trial, where he was representing the patient. And the defendant doctor he’d sued then rushed forward to assist him. The story even had video.

The lawyer, Hans Poppe of Louisville, KY, was at the bench discussing the defendant’s motion for a mistrial when it happened. Poppe, it seemed, had inadvertently played an unedited version of a deposition that had a verboten discussion of medical malpractice liability insurance in it, instead of the edited version that excluded those questions.

That technoblunder resulted in a mistrial, and the insurance company, Kentuckiana Medical Reciprocal Risk Retention Group, then went after Poppe for the costs of the mistrial. The insurer sought a whopping 125K in costs and fees.

And now the issue has come to a conclusion, and hence this update.

In a decision dated February 13, 2015, Jefferson Circuit Court Judge Audra J. Eckerle supported Poppe and not the insurance company.

Why? First off, the insurance company provided no evidence that Poppe acted intentionally. How does one prove intent from mouse clicking the wrong file to play in the courtroom? By looking at both the actual evidence and mitigating circumstances.

And the judge saw that, upon realization that the wrong video had been played, and understanding the ramifications of it, she wrote that the Court saw:

“…the color pass from Poppe’s face when he realized what he had done. And, of course, it witnessed him faint when the fully gravity of his malfeasance hit him. His subsequent actions and apology seemed genuine. The Court accepts that, as well as the mitigating circumstances that Poppe has offered.”

What mitigating circumstances? This is the nuts and bolts of what it is to stand in the courtroom well, having waited years to get there, sorted through countless documents and potential exhibits, to walk the proverbial high wire without a net after enduring nights without sleep as you stress about the innumerable details of a trial:

Poppe’s misdeed occurred during the third week of a hotly disputed, highly contentious, multi-million dollar claim. Many lawyers battled. Discovery had consumed several years and several thousand documents. Witnesses and exhibits were legion. One error occurred. While it was colossal, it was singular. The Court cannot conclude, under the totality of the circumstances, that the conduct was anything other than a horrible mistake, brought on by fatigue, weariness, and exhaustion, and not by malice, egregiousness or bad faith.

That was it: one mistake. My reading of that is that Poppe’s own good reputation saved him. The matter had been contentious for sure — this was a trial after all — but he hadn’t done anything else to worry the judge.

Reputations matter. They may act, as they did here, as circumstantial evidence if that reputation was earned in front of the fact-finder.

She concluded:

Without question Poppe’s actions came at a cost to his opponents, and to himself, in a rather public and humiliating fashion. But Poppe did not impugn the integrity of the Court or undermine its authority.

The motion for sanctions was denied. And the case, by the way, settled.


Order in the Court! (And a Judicial Brawl)

Boxing GlovesIt isn’t often you hear about a judge engaging in fisticuffs with a lawyer appearing before him. Fights may happen in the legislatures of other countries, but it just doesn’t happen in an American courtroom with a jurist. Unless, I guess, that courtroom is in Florida where this happened.

As reported in Florida Today, in an incident in Brevard County, Judge John Murphy first said if he had a rock he would throw it at the lawyer and then it went quickly downhill from there, like kids on a playground:

Murphy and assistant public defender Andrew Weinstock exchanged words in a hearing Monday morning. The exchange escalated, and video records Murphy challenging Weinstock: “If you want to fight let’s go out back and I’ll just beat your ass.”

The men disappear off camera, to a hallway behind the judge’s seat, and loud banging and cursing can be heard. The judge emerges, out of breath, but the attorney does not.

The issue was a simple criminal matter where the judge wanted the public defender to waive the right to a speedy trial. He  refused to waive and asked for a trial date.

Tempers flared with that very short interaction, the two of them charged to the back hallway,  you can hear the words “Do you want to fuck with me?”, a scuffle takes place and the web blows up with stories about it. Just Google “Judge John Murphy and Andrew Weinstock.”

Here is the short video — I found a version without commercials:

Most websites that have covered the matter have excoriated Judge Murphy — who has now taken a leave of absence for anger management classes. This is rightfully so, as no judge should be challenging a lawyer to a fight, then leaving the bench with the person challenged, and then engaging in physical contact with him (and I think I’m safe with the pronoun “him.”)

But since Judge Murphy is such easy pickings for criticism, I’d like to focus on the conduct of the lawyer.

The problem isn’t with any legal argument that he made on behalf of his client. The rule of thumb is simple: Make your argument and then listen to the judge’s ruling. If you expect to lose, it is your job to make sure that it’s all on the record for an appellate court later on.

But what you can’t do, as the lawyer did here, is be belligerent and cutting off the judge when he says “sit down.” This doesn’t help the client. Not. One. Bit. And helping the client is the only reason he is standing in the courtroom well in the first place.

One of the first things a lawyer learns about life in the well of the courtroom is that when the judge speaks, you shut your mouth and listen. Because the judge is in charge, whether you like it or not.

What’s more, when the judge uttered the now-(in)famous words, “If you want to fight let’s go out back and I’ll just beat your ass,” the lawyer charges to the door to go “out back” before the judge is even finished with his rhetorical comment. It was like he was eager to go fight with the judge, either with words or otherwise.

Or at least I presume the judge’s comment was mere rhetorical nonsense based on the tone used, and not a real threat. But whether rhetorical or not, the lawyer’s job is to decline the offer, stay put in the courtroom, and protect the record for the client.

I’ve seen plenty of angry judges in the past, though perhaps not as many as my brethren in the criminal defense bar who carry the baggage of bad apples with them. And I’ve seen plenty of angry lawyers yelling at each other in depositions and in courthouses.

My own tactic for screaming lawyers, which I’ve used several times, is to respond by simply saying, “You’re screaming.” This usually pisses them off and they get louder. Eventually they cool down when they realize they are the only ones engaged that way and making asses of themselves.

When threatened, I have simply ignored the threat and continued doing what I was doing as if it never happened. (Unless the threat relates to a response to this blog, in which case I publish it).

If a judge is out of line, it is not the job of the lawyer to fight, but to make sure it is placed on the record.

The lawyer’s job when faced with a difficult circumstance is to hand the other person the rope with which to hang themselves. And protect the record.

This lawyer fouled up. Because it isn’t about him. It’s about the client. And the record. Which most definitely is not  made in the hallway behind the bench.


Judicial thuggery: FL judge assaults public defender (A Public Defender)

The Heat of the Well (Simple Justice)

Florida Judge Allegedly Threatens Public Defender, Challenges Him To A Fight, And Then Attacks Him Outside Courtroom (Jonathan Turley)

Judge Beats Up Public Defender (Above the Law)


But I Didn’t Write That Stuff on My Website!


Have you passed off your ethics and reputation to someone else lately?

The orthopedist was on the witness stand last week. He was well credentialed as defendant’s expert: top schools, top training, top position.

And then came plaintiff’s cross examination. The issue was the relationship between disc bulges and disc herniations. The doctor said there was a difference. And that bulges were the result of degeneration, otherwise known as the aging process.

(Some doctors are (in)famous for calling everything degeneration, because, you know, we start to degenerate when we are born.)

Then plaintiff’s attorney, Harlan Wittenstein, posed a general question to the doctor about bulges and herniations being the same. He denied it.

But Wittenstein, a seasoned trial attorney, just happened to have, oddly enough, a 24 x 36 blow up of the doctor’s web page where that assertion existed.  He got it into evidence as a prior inconsistent statement. This was the website language:

A herniated disc, also called a bulging disc, ruptured disc or slipped disc, occurs when the inner core of the spinal disc pushes out through the outer layer of the disc.

Herniation describes an abnormality of the intervertebral disc that is also known as a “slipped,” “ruptured” or “bulging” disc.

The doctor kept saying, and I paraphrase here since I don’t have the transcript, ‘I see that its in my website, but its not true.  I didn’t write it.  Someone else writes the content.’

You know what happens when you outsource your marketing? Your ethics and reputation get outsourced also. And this applies to everyone, not just lawyers.

When Normal Isn’t Normal (License for Sale?)

DefineNormalThis is the story of a doctor who decided that “normal” isn’t what he learned over decades of practice, but what an insurance carrier tells him is normal. If you earn your bread in the well of the courtroom, this may be something you hadn’t considered before.

What, exactly, is “normal?”  When it comes to medicine and testing someone’s range of motion, there are standards.  If you test 1,000 people who are in the sweet part of life — not an infant or octogenarian — you will come up with numbers.

Some people, of course, are flexible and test higher. Some are not — either naturally or due to injury —  and test lower. But that doesn’t change what normal is, and that is an important metric because, if you want to evaluate an injury, you need a yardstick to measure by.

But what does a doctor do if the insurance carrier that hired him to do a medical legal exam tells him to use different numbers to define a normal range of motion?  You may think the answer is obvious — that the doctor would firmly tell the insurance company to go shit in a hat and that his license to practice medicine isn’t for sale like that.

My experience last month at trial, however, found an altogether different answer.  Now it’s a rare day for me to use one of my own transcripts, but I spent a good part of the summer investigating and ripping into phony testimonyquickie medical exams, and phony signatures. I’ve also covered insurance company directives on how to leave out of the reports things that may be beneficial to the plaintiff.

Today, I explore a completely different method of chicanery.

The case was a multiple vehicle collision and “Krystal Doe” had shoulder, neck and back injuries. The doctor I was examining had done a medical-legal exam for the defense. And he confessed, when confronted, with having used the insurance carrier “normals” instead of his own knowledge, training and experience.

The defense, ironically, was that the plaintiff was exaggerating. There was exaggeration for sure, but it seemed to be coming from the medical expert that the defense had hired.

In order to see if this is a worthwhile course to pursue in other cases, of course, you need to first find a bunch of reports that the doctor has authored in other cases. Pre-trial investigation into the expert, with calls/solicitations to other practitioners in your area, is required, unless your firm is huge. If you have a local listserv, then sharing info on expert docs is a great use of it. Or, if there is a company around that sends representatives to attend these exams as witnesses (such as the ones I used for this investigation), they may be able to help locate reports.

First, the set-up to lock the doctor into his position about the importance of normal (I’ve yanked the names out and cleaned up the text):

Q: I think you testified that you wanted to find out what the patient has and then compare that to whats normal, right?

A: Yes.

Q: Because loss of range of motion of a limb, it’s a relative thing. It’s all relative to what’s normal, right?

A: Yes.

Q: And normal would be, unless  you’re elderly or a small child I guess, normal would be the same for everybody, right? Normal is a standard?

A: No. No. Well, it is a standard, but it’s not the same for everyone.

Q: Would it be the same for a 25-year old and a 35-year old, people who are  right in the sweet  spot of life, so to speak?

 A:  Yes.

 And with that, you can now first establish what his opinion is of “normal” for this individual that happens to be your client:

Q:   What is cervical extension?

A:   Putting your head back.

Q:  Looking up at the ceiling, like that?

A:  Yes.

Q:  And what’s normal?

A:  Thirty-five degrees.

Q:   And what was it for Krystal Doe in this matter?

A:   Twenty.

Q:  So the difference between 20 and 35 degrees, that would be her loss, right?

A:   If it’s valid.

Q:  Now of course if normal was actually higher, then the injury would actually be more extreme. If it was, for example, 60 degrees, the difference between 20 and 60 is a lot more significant than between 20 and 35, right?

A:   Yes.

Then return to reinforce the concept that “normal” doesn’t really change:

Q:    And you as a physician, who does these medical-legal exams, you  always use the same range of motion for all of the people that you’r  examining. Again, assuming they’re within the sweet spot of, you know, in their 20’s  and  30’s, right?

A:   There are standards.

 Q:   And one of the standards is  that — you’re telling the members of the jury — is that 35 degrees is normal; is that right?

A:   It’s one of the accepted norms, yes.

Q.   Now we’re talking about range of motion of the cervical spine, otherwise known as the neck, right?

A:   Yes.

Q:   And extension you say normal is 35 degrees, right?

 A: Yes.

Q:  And you did your examination of this claimant, Krystal Doe, on March 5, 2010?

A:  Yes.

Q:  Okay.   I assume that there hasn’t been a difference  in  what  normal is from 2010 to 2012?

A:  I assume that.

Leaving Normal SignThen confront with his “opinion” in another case that he did a medical-legal exam for:

Q:  Did you examine a patient  known as Thomas Roe, on May 21, 2012?

A:   I  have no recollection.

[Hand him report]

Q:  Was that your opinion, when you examined Thomas Roe, that  normal was 60 degrees?

A:  Yes.

Q: And it’s different for Krystal Doe, correct?

A:   Yes.

Q:  And Thomas Roe, he was only 34 years old at the time,  and  Krystal Doe, she was 26  years  old at  the time, correct?

A:   I don’t know that offhand.

Q:  Please  feel  free to … [gestures to report].

 A:  He was  34.

Now it has often been said that lawyers shouldn’t ask questions at trial that they don’t know the answer to. But that isn’t really true. In this case, the expert was dead in the water. (He was actually dead in the water before we started; he just didn’t yet know it. Now he does.)

So it’s OK to proceed when you don’t know what the answer is, because there isn’t any answer that can help him. So off we go looking for the excuse for why he is exaggerating the loss of range of motion by using different “normals”:

Q:  So there should be no difference in the normal range of motion for an individual who’s 26 and another one who’s 34?

 A:  Actually, that’s not true.  This examination was done for a company that uses a different standard for range of motion testing.

Q: Don’t you use your own opinions as to what normal range of motion is?

 A:  I do, but if I’m employed by them to do an examination, I have  to  use  their  standards.

Q:  So you then will take a standard that you know isn’t accurate, and use it in a medical-legal context?

 A:  No.

Q:  Is that your testimony?

A:     No.   That’s not my testimony. At   the end of my report, all of these reports, I state clearly that the range of motion testing is based on the American Academy of Orthopedic  Surgeon’s standards, but there are differences with body habitus, with age, with activities. I state that clearly, so it’s a very subjective exam, and the 60 degrees here conforms to what this carrier says is normal. That’s not what I think is normal.

Q:    And you used it anyway?

A:   I  did.

Ouch. The insurance carrier is paying for the exam, so he uses the carrier’s definition of normal. The only thing to do now, is bang on the drum a bit so the jury understand what has just happened, and move on to other body parts that might also have differing “normal” ranges of motion:

Q:   You examined the person the way it is that you were told  to examine the person, not the way your medical experience told you to examine the person?

A:    No. They didn’t tell me to examine the patient any differently. They told me what their norms were.

Q:    By the way, for shoulder abduction, that’s where  you  bring the arm up and point up at the sky?

A:    Right.

Q:    For Thomas Roe, it was your opinion  that normal abduction was 180 degrees?

 A:    No.  The norm, yes; 180.

Q:    And was it your opinion that  for Krystal Roe it was 160 degrees, there was a difference?

A:      Yes.

Q:      And when you examined her, you found that she only had 80 degrees, right?

A:      Right.

Q:     And the difference  between  80 and 160, is not as much as the difference between 80 and 180, right?

 A:     Right.

Q:     And this diminished your findings with respect to Krystal Roe in examining her range of motion oandforming your opinion, didn’t it?

A:      It diminished my findings?

Q:      It diminished it because your normal was different,  it was only 160 instead of 180?

A:      I think that is the norm,160.

Q:     Was it your opinion in examining Thomas Roe that it was 180?

A:      That’s what this carrier used as their normal.

So, the long and short of it is, do the ground work before trial by obtaining other reports that the defense medical examiner has done, and you may be surprised that “normal” may be a fluctuating concept based upon what the insurance carrier tells the doctor is normal in order to minimize the actual loss of the claimant.

How such doctors sleep at night is beyond me, though I suppose his $7,000 fee probably helped.

Apple, Expectations and Trial Strategy

Apple 5sA week ago Apple unveiled its new iPhone 5s and some Apple-bashers had a field day criticizing it for only being incrementally better than the one released a year earlier, the iPhone 5.

And this morning Apple released blockbuster sales of over 9 million iPhones sold since the actual release three days ago.

Why the sharp difference between initial reviews and blockbuster sales. And why is this important to jury trials?

Because those that were bashing were comparing it to the model released just one year ago. But most folks buy two-year contracts when they get an iPhone. Thus, the target audience for the phones was those that bought phones two years or more ago, not the few who want to upgrade every year.

And since there is a huge difference between the one two years ago and the just released, it has tapped a substantial market.

This is all about figuring out where to set the comparison bar when deciding if something is good or bad.

If at trial you want to compare an injury to normal, you have to first figure out what that normal is and set that bar firmly in place.

Last week at trial, a defense expert decided to move the “normal” bar on the range of motion, so that when he showed plaintiff’s injuries to the jury, they didn’t look as bad as they actually were. (I hope to blog on that testimony in the future.)

Firmly forcing a witness to declare what normal is, and locking the person in who is going to give that opinion, is a critical and often overlooked piece of the puzzle that constitutes evidence. It is all about expectation and doing a proper comparison.

My two rupees on your trial tip for the day.

Blog Up; Blog Down

This past summer I was particularly active on a long series dealing with phony testimonyquickie 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.


Justice Alito Acting Like Rookie Lawyer

Sonia Sotomayor, Samuel Alito

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.

Should Jurors Be Allowed to Ask Questions at Trial?

Peter DeFilippis

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.

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.

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