The decay of occupational exemptions to jury service means that more doctors, nurses and other persons with considerable professional expertise are making it into jury pools and even sometimes being allowed to sit as jurors, at least assuming that lawyers decline to use challenges to exclude them. One Nassau County, N.Y. judge even recalls “presid[ing] over a business dissolution case in which the lawyers allowed an accountant to sit on the jury. ‘Why they left the accountant on I’ll never know, but the lawyers were quite satisfied,” he said. (Imagine — relevant life experience not being screened out in the course of the jury selection process!) Oregon prosecutor Joshua Marquis, an official with the National District Attorneys Association, does harbor a prejudice against one particular kind of professional called to jury service, namely lawyers themselves. “They’re terrible jurors — I should hit myself in the face with a stick if I ever let a lawyer on a jury again.” (Leonard Post, “Dealing With Jurors’ Expertise”, National Law Journal, Dec. 23).
Posts Tagged ‘procedure’
Where are the privacy advocates?
Years worth of an executive’s personal emails, discussing details of his finances and purchases, are obtained and combed over by dozens of people against his will, and some are even posted on the Internet for all to see.
If I relayed that scenario to you, you would probably expect the San Francisco Chronicle and CNN to express outrage and concern, bemoan the lack of privacy in today’s society, and canvas public-interest groups for quotes calling for public and private action; if it turned out it had been done by a member of the executive branch, some would call for impeachment. But when the emails are Larry Ellison’s, they were obtained through civil discovery (Jan. 31) by plaintiffs’ lawyers in a lawsuit rehashing allegations made in two other completed lawsuits, and released to the public by a judge, the Chronicle and CNN shrug their shoulders and print them in a front-page article. (Carrie Kirby, “Inside look at a billionaire’s budget”, San Francisco Chronicle, Jan. 31; CNN, Feb. 1). More on the Ellison litigation at Point of Law Nov. 23 and links therein.
Jury selection, while you wait
The Lay-Skilling Enron criminal trial will be one of the highest-profile Houston trials in many years, but in the courtroom of U.S. District Judge Sim Lake the process of jury selection was over within a day. That should be a lesson to judges elsewhere — especially in state-court proceedings — who allow lawyers to turn voir dire into a manipulative process that can last weeks or even months. Tom Kirkendall and Norm Pattis comment.
P.S. The Wall Street Journal’s news side covers the issue today: Paul Davies and John Emshwiller, “Split Verdict on Selecting Juries Quickly”, Feb. 1 (sub only). Washington U. (St. Louis) law dean Kent Syverud says, “I think Enron ought to be a wake-up call to show everyone that it can be done”. Among those complaining of a too-short process is Christopher Seeger, the attorney for the plaintiff in the New Jersey Vioxx case recently won by Merck, who “said the case was lost in the jury selection. ‘If I had an opportunity to flesh out some of the biases I believe I would’ve been able to talk some of those people off the jury'”. P.P.S. The New Yorker has more about the jury questionnaires and consultants (Mimi Swartz, “Talk of the Town: Enron Multiple Choice”, Jan. 30).
Turning over the e-mail
Under current civil procedure rules, parties, upon request, and with very few limits, must turn over all relevant documents to the opposing party. In the twenty-first century, that includes e-mail. Failure to turn over enough e-mail can cost a company a billion dollars in de facto sanctions (Dec. 17); turning over too much e-mail can waive the attorney-client privilege. Thus, unless parties can come to an agreement otherwise, teams of attorneys have to review every single e-mail, at great expense.
But in a typical tort action, with an individual plaintiff and one or more corporate defendants, there are asymmetric discovery burdens. An individual plaintiff has no incentive to agree with a corporate defendant to limit the corporate defendant’s burden, because (1) increasing the expense to the corporate defendant increases the likelihood of a nuisance settlement and (2) there’s no telling what stray e-mail might be able to be taken out of context to make a case to a jury unfamiliar with corporate communications that a defendant is worthy of punitive damages. (Numerous plaintiffs have successfully used decades-old back-of-the-napkin sloppy cost-benefit analyses by individual Ford and GM engineers to obtain millions of dollars of punitive damages for entirely different vehicle designs; an e-mail by Kay Anderson, a low-level Wyeth administrator who expressed frustration that her career was mired in dealing with complaints from what she called “fat people scared of a silly little lung problem” cost the company tens of millions, if not more, in fen-phen litigation when plaintiffs tarred the whole company with it.) This Wired story (via Bashman) about Enron e-mail made public provides a good reminder that any e-mail you send or receive at work is likely to end up in the hands of multiple lawyers one day.
Madison County judge without a docket
In Madison County, Illinois, all of the circuit judges have been elected to the bench with the significant help of the plaintiffs’ bar, often going straight from a career at a plaintiffs’ firm (and then later retiring to a plaintiffs’ firm). Except one: Judge Don Weber was appointed to replace a retired judge in October 2005, and won’t stand for election until November.
Illinois law permits a party to move once as a matter of right for substitution of a different judge, and plaintiffs in at least thirty-five cases have done so in Weber’s case. “All the stars of the plaintiff’s bar – the Lakin Law Firm, SimmonsCooper, Stephen Tillery and Rex Carr – have joined the substitution blitz.” The Madison County Record quotes Jack Joseph of Chicago, a member of the civil practice committee of the Chicago Bar Association, as finding the practice “unfair to Judge Weber without giving him a chance to see if he is going to violate his oath in some way.” (Steve Korris, “Weber’s caseload yanked by plaintiff’s attorneys”, Jan. 25). But one might be suspicious that the true fear motivating the motions to substitute other judges is that Weber will uphold his oath.
Update: Belleville News-Democrat counts 53 plaintiffs and two defendants who’ve asked for substitution.
Vexatious litigant jailed for contempt
“Former Steamboat Springs [Colo.] resident Kay Sieverding, who has been in jail since September, was released Wednesday after she agreed to dismiss her numerous federal lawsuits.” U.S. District Judge Edward Nottingham had ordered Sieverding committed to jail for contempt of court after she continued to file lawsuits he described as “frivolous”, “abusive” and “gibberish”, including refilings of lawsuits she had already lost. “Sieverding has filed lawsuits against not only her former neighbors but also Steamboat Springs officials, the local newspaper, several individual lawyers and the entire Colorado and American Bar Associations, among others. She has filed the lawsuits in Colorado U.S. District Court, and also in federal courts in Illinois, Minnesota, Kansas and the District of Columbia.. …The judge said he will issue an additional order prohibiting Kay Sieverding from filing any more lawsuits, anywhere in the United States, without an attorney or his permission.” (Karen Abbott, “Pledge gets woman out of jail”, Rocky Mountain News, Jan. 5; Alicia Caldwell, “Woman Held Over Lawsuits”, Denver Post, Dec. 19)(via Jonathan B. Wilson, here and here).
Little white lies — to protect the bar’s image
The Texas Young Lawyers Association has published one of those “Fact/Fiction” guides to the jury selection process. Among its assertions: “Fiction: Lawyers ask questions designed to figure out who will help reach a verdict in their client’s favor.” And, by contrast, “Fact: The main thing we’re looking for from potential jurors is the ability to be open to both sides of a debate.”
Clay Conrad at JuryGeek (Dec. 18) finds this a good example of “Why People Think Lawyers Are Liars” and explains:
Let me make it clear: any associate with my law firm who looks mainly for jurors to be open to both sides of a debate will be unemployed before Voir Dire is over. We want jurors who will NEVER, EVER under ANY CIRCUMSTANCES, WHATEVER THE EVIDENCE consider the other side of the debate. We want jurors who are 100% biased towards our side, 100% hostile to the other side, and if we can get 12 of them, we want them.
We will settle for a fair and impartial jury, as a bare minimum. We assume, and have never seen this assumption proven wrong, that the other side is also seeking jurors who will be committed to their case, and biased against ours. That’s the way the game is played – and shame on TYLA for lying to the public and prospective jurors about it….
Any lawyer who says he wants a fair and impartial jury is either incompetent (being deluded by bar association PR) or is simply lying, lying, lying. The public knows that. I’ve spoken to many high school classes. I ask them what they think a lawyer wants out of a jury, and they tell me a jury that will vote for their client. We know they know. Yet we strangely persist in lying to them when we know we’ll be caught. That’s either insane or stupid.
What is weird is that bar associations lie, to people who they know will KNOW they are lying, in a vain attempt to improve the public image of the bar. What they are in fact doing is proving to the general public that lawyers are liars and manipulators who cannot be trusted – because they lie when, if they gave any thought to it, they’d know they’d be caught by anyone with two brain cells to rub together.
Restraining David Letterman
Colleen Nestler, a resident of Santa Fe, N.M., alleges that late night TV host David Letterman has communicated with her in coded words in his broadcasts, has tormented her and driven her into bankruptcy, and has promised to marry her. So far, nothing terribly unusual as regards the problems celebrities face from fixated fans; Letterman himself long endured the attentions of a female stalker suffering from mental illness, Margaret Mary Ray, who repeatedly was arrested for entering Letterman’s property. This time, however, the law has taken a different attitude: according to the Santa Fe New Mexican, Judge Daniel Sanchez of the district court in Santa Fe late last week granted Ms. Nestler a temporary restraining order against Letterman, which the entertainer’s lawyers are now attempting to get lifted. Ms. Nestler’s application for the order
requested that Letterman, who tapes his show in New York, stay at least 3 yards from her and that he not “think of me, and release me from his mental harassment and hammering,” according to the application.
Nestler’s application was accompanied by a typed, six-page, double-spaced letter in which she said Letterman used code words, gestures and “eye expressions” to convey his desire to marry her and train her as his co-host. Her story also involves Regis Philbin, Kathie Lee Gifford and Kelsey Grammer, whom Nestler says either supported or attempted to thwart her “relationship” with Letterman, according to the letter….
When asked if he might have made a mistake, Sanchez said no. He also said he had read Nestler’s application.
(Jason Auslander, “Letterman lawyers: End Santa Fe claim”, Santa Fe New Mexican, Dec. 21) Discussion: Volokh, TalkLeft, and a hundred others. On judges’ over-readiness to grant restraining orders in cases of alleged domestic violence and its threat, see this set of links. Updates Dec. 23 (discussion); Jan. 2 (judge lifts order).
Update: Morgan Stanley $1.5 billion verdict
The financial services firm has now filed its appeal of the mega-verdict (see May 18) awarded in a Florida court to billionaire financier Ron Perelman, who sued Morgan over its role in a 1998 deal involving Sunbeam Corp.’s acquisition of the Coleman camping equipment firm. “Before trial, Judge Maass issued an order for partial summary judgment based on a violation of her discovery order. Her ruling prevented Morgan Stanley from disputing any of the facts alleged by Perelman.” (Carl Jones, “Morgan Stanley: ‘Record Is Clear’ That Florida Judge Erred”, Miami Daily Business Review, Dec. 14). Update Mar. 22, 2007: appeals court overturns verdict.
“Grinch, Esq.”
Let’s face it, Dahlia Lithwick points out: “the law offers a whole host of opportunities for wrecking the lives of others”. In fact, lawyers have been known to boast about the way they’ve spoiled the other side’s holidays:
Consider the perfectly timed restraining order, or the spontaneous motion for an order to show cause — or in fact anything that could bury the other side in research and paperwork the day before Christmas. Think about the possibilities for 11th-hour changes in the visitation schedule for the children — requiring canceled plane tickets and Christmas Eve court appearances. Or the last-minute effort to have a local crèche or tree deemed unconstitutional.
So Slate, for which Ms. Lithwick writes, is holding a contest in which lawyer-readers can submit “the meanest thing you’ve ever done to an opponent on the holidays”:
The best stories will be reprinted here shortly, and the Most Evil Attorney in the World will be showered with Slate paraphernalia. This contest is also open to anyone, anywhere with stories of hideous pre-holiday lawyer shenanigans, whether they were perpetrated upon you by counsel on the other side, by bosses in your law firm, or you merely heard about them from some sad-sack lawyer in a bar on Christmas morning.
All forced jollity aside, doesn’t this present bar authorities — forever fretting about the profession’s image — with a goal worth working toward, namely, find ways to revamp the practice of litigation to make such “hideous…shenanigans” rarer? (“Billable Horrors”, Slate, Dec. 13).