At the Fulton County Daily Report:
For $95, plaintiffs lawyers can buy a book that teaches them how to appeal to jurors’ basic survival instincts, those that emanate from humans’ “Reptilian” brains. …
But in a DeKalb County wrongful death trial last month, [Plaintiffs lawyer Don] Keenan found that defense lawyers will also buy the book, “Reptile: The 2009 Manual of the Plaintiff’s Revolution” — and use it against him.
Representing a movie theater and a security company accused of not doing enough to prevent a fatal gang shooting in the theater parking lot, W. Winston Briggs and Matthew G. Moffett read from the book and referred to it during closing arguments.
One of their PowerPoint slides read, “Let’s see if we can scare them/It could have been anyone killed out there … because it’s a public danger there … but if you give us $ that will somehow eliminate this danger/They call this their ‘reptile’ strategy.”
The jury rendered a defense verdict.
Here’s what I don’t understand: how is a book written by the plaintiff’s lawyer relevant to the facts of the case?
The Georgia Rules of Evidence provide:
Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.
The jury wasn’t asked their thoughts and feelings about Mr. Keenan’s advocacy methods. They weren’t compelled, by force of the state, to leave their work and their families to render a verdict on the Reptile book. They were there because, as the article says, “21-year-old Jesus Silencio was shot to death in the parking lot of the Regal Hollywood 24 movie theater on Interstate 85” and his father, on Mr. Silencio’s behalf, brought suit against the theater and its security company.
Reptile has nothing to do with those facts. If the book suggests lawyers do anything inappropriate, that, too, is irrelevant: if a lawyer uses improper advocacy methods at trial, the judge will give corrective instructions to the jury or, if need be, declare a mistrial.
The case was about, and should have remained about, Mr. Sliencio’s claims against the theater. Somehow, it became a referendum on Mr. Keenan, and an unfair one at that. Was Mr. Keenan allowed to show the jury how many times the defense lawyers have been threatened with sanctions for spoliating evidence? Could he have copies of all the seminars at the Defense Research Institute that the defense lawyers attended? Was he allowed to introduce evidence establishing how insurance companies — including the Defendants’ insurer, the real party at interest — spend millions every year on propaganda to taint juror’s perceptions of the civil justice system?
Or were the defense lawyers allowed to cast stones from their glass houses?
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I wrote the above before seeing Mark Bennett’s post on the case. Bennett’s right that, for lawyers representing clients, “the principle of putting a name on the adversary’s strategy—pulling back the curtain and naming the little man pulling the levers—is a sound one.” But that doesn’t mean the Court should allow a case about the parties to be transformed into a case about the lawyers.
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