September 2 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

In May 2001, Cheryl Jane Hale was driving four children to a sleepover in her 1987 Ford Bronco. She didn’t bother to have the children wear their seat belts, so, when she took her eyes off the road to argue with the backseat passengers, and thus drove off the road and flipped the car, 12-year-old Jesse Branham was thrown from the car and suffered brain damage. A jury in Hampton County, South Carolina (the second jury to be impaneled—the first one was dismissed in a mistrial when it was discovered after two weeks of trial that five of the jurors were former clients of Branham’s lawyers) decided that this was only 45% Hale’s fault, held Ford 55% responsible, which puts Ford entirely on the hook for $31 million in damages.

On Monday, the South Carolina Supreme Court reversed because of prejudicial closing arguments that relied heavily on inadmissible evidence. More importantly for lawyers practicing in South Carolina, the Court adopted “the risk-utility test with its requirement of showing a feasible alternative design.”

How bad of a judicial hellhole is Hampton County? Though Hale was a co-defendant, she cooperated with the plaintiffs throughout the trial in their case against Ford, even sitting at the plaintiffs’ table; but because the judge classified Hale as a co-defendant, it meant that Hale got half of the peremptory challenges of the “defense.” More from Comer; no press coverage that I’ve seen yet. (cross-posted from Point of Law)

Update: Branham v. Ford is a post from Overlawyered - Chronicling the high cost of our legal system

July 22 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Since we’re talking about the case, you can guess that the three blamed everyone except the underage drunk drivers: in this case, the car seller, the tire installer, and the tire manufacturer, Goodyear Tires. The car seller settled for about half a million dollars; a Copiah County jury found the other defendants liable for an additional $2.1 million. Goodyear appealed, complaining about various prejudicial statements made by the plaintiffs’ attorneys, such as introducing evidence from other lawsuits about other types of tires, but the Mississippi state appellate court affirmed. (Holbrook Mohr, “Miss. court agrees tire, not alcohol caused crash”, AP/Washington Post, Apr. 22; Goodyear Tire & Rubber Co. v. Kirby (Miss. App. 2009)).

Goodyear v. Kirby is a post from Overlawyered - Chronicling the high cost of our legal system

In one trick, [Steven] Leventhal [of Philadelphia’s Reger Rizzo & Darnall], who works exclusively for defendants, said he slowly folds a $1 bill while explaining to the jury that the parts of the plaintiff’s case just don’t tie together. When he unfolds the bill, he said, the astonished jury sees a bizarre bill that appears to have been cut apart and pasted together the wrong way, with the corners in the middle.

In another trick, Leventhal said, the slowly folded $1 bill is revealed to be a $100 bill and then, to the jury’s collective amazement, changes back to a $1 bill.

Lots of lawyers are good at making money vanish, of course, but this goes further (via the Law and Magic Blog — yes, it exists). Max Kennerly quotes Leventhal’s response when opposing counsel objected to the tricks as prejudicial:

“That the undersigned counsel opted to travel the globe to learn a special set of performance skills rather than wasting his brain cells drinking his summers away at the Jersey Shore should not be held against him,” Leventhal wrote.

Should judges let lawyers perform magic tricks in closing argument? is a post from Overlawyered - Chronicling the high cost of our legal system

This was, said Villareal’s family, the hospital’s fault; since it’s South Texas, a Hildalgo County jury, after a three-week trial, awarded $9 million in March (which looks to be reduced at least to $1.64 million under Texas law capping damages). Ironically, the opening line of the Texas Lawyer story says “It was a suicide no one saw coming,” but doesn’t question the resulting jury verdict.

Somehow, the trial lawyer, Raymond L. Thomas, a close friend of Villarreal’s, interjected himself into the closing argument, telling an emotional story of a Rolex Villarreal had given him as a gift that left the jury in tears; the press coverage doesn’t acknowledge the blatant violation of ethical rules (see also Texas Rule 3.04(c)(3)), much less indicate whether he got away with it because of the failure of the defense to object or a judge’s failure to oversee her courtroom. (Jenny B. Davis, “Attorney, Interrupted: Seeking Meaning, Recovery for a Legal Life Lost,” May 5 via ABA Journal).

Villarreal v. Rio Grande Regional Hospital Inc. is a post from Overlawyered - Chronicling the high cost of our legal system

From the decision (Medtronic Navigation, Inc. v. BrainLAB Medizinische, 2008 WL 410413):

In essence, the response from the plaintiff and MWE, through new counsel, is that the Court had the obligation to stop any trial conduct that stepped over the line of zealous advocacy. In short, they argue that they should not be held responsible for what they were able to get away with during the trial presentation. The adamant denial that there was any abuse of advocacy in this case is in disregard of what this Court has already concluded and displays the same arrogance that has colored this case almost from its inception. Throughout these proceedings Medtronic and the MWE lawyers have demonstrated that when they are faced with adverse court rulings, they proceed undeterred, with only superficial observance of the court’s determinations. Such conduct supports the conclusion that after the Markman rulings, Medtronic’s primary objective in pursuing this litigation was to put economic pressure on its competitor in the market.

Medtronic’s counsel proceeded cavalierly, with reckless indifference to the merits of Medtronic’s infringement claims. The continued prosecution of a claim after its lack of merit has become apparent warrants sanctions under § 1927. At trial, MWE’s conduct was in disregard for the duty of candor, reflecting an attitude of “what can I get away with?” Throughout the trial, the MWE lawyers artfully avoided the limitations of the patent claims and created an illusion of infringement. They did so with full awareness that their case was without merit.

Judge Holds Trial Firm Liable for Fees is a post from Overlawyered - Chronicling the high cost of our legal system

“She speaks to you through me,” the lawyer went on in his closing argument. “And I have to tell you right now — I didn’t plan to talk about this — right now I feel her. I feel her presence. She’s inside me, and she’s talking to you.”

In other jurisdictions, such unfairly prejudicial theatrics asking the jury to decide on passion are grounds for mistrial. (Well, they’re supposed to be, anyway.)

We’ve had lots of coverage of Edwards’s trial career: Jan. 12; Oct. 20, 2005; Aug. 17, 2004; Jul. 28, 2004; Feb. 2, 2004. And we’ve noted others’ comments, too: Jan. 5; Jul. 16, 2004; Feb. 26, 2004; Jan. 31, 2004; Sep. 16, 2003.

What do John Edward and John Edwards have in common? is a post from Overlawyered - Chronicling the high cost of our legal system