The Law Blog of Plaintiff's Attorney Max Kennerly
Trial lawyers — both defense-side and plaintiff’s-side — are always looking for an edge.
Every aspect of the trial has to be planned in advance, with multiple levels of contingency planning for when testimony, rulings or evidence goes awry. That’s a given, but it’s not enough.
There’s a whole cottage industry of jury consultants…
Christianity, Islam, Hinduism, and Buddhism all agree: it’s easy to miss the details when you’re focusing on something important.
That’s why they all have their own form of prayer beads so the faithful don’t lose count of their mantras.
Science and medicine agree: you can save lives with checklists. You can even land airplanes on water.
Trial is theater. (Trial is not theatre, at least not in America.)
A trial lawyer is thus the producer, director, screenwriter and narrator of her case. She is not the protagonist: that is the client.
She is responsible for the budgeting, scheduling, and presentation of her case, which must:
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Via Sports Law Blog, I saw a new paper: Aaron Zelinsky, The Justice as Commissioner: Benching the Judge-Umpire Analogy, 119 Yale L.J. Online 113. [After writing this post, I saw the WSJ Law Blog covered it, too.]
Here’s the abstract:
The judge-umpire analogy has become “accepted as a kind of shorthand for judicial ‘best practices’”
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Via Overlawyered, Eric Goldman and others favor HR 4364, the “Citizen Participation Act of 2009,” which would establish a federal anti-SLAPP law.
Around half the States have anti-SLAPP (i.e., Anti-"Strategic Lawsuit Against Public Participation") statutes which make it easier to dismiss suits allegedly filed to chill freedom of speech. If the lawsuit arises from the Defendants’ exercise of their rights to free speech — which in the post-Citizens United era means virtually every time a corporation advances an agenda — then the Defendant can file, at the very beginning of the lawsuit, a "special motion" that requires the Plaintiff show concrete evidence proving each element of their claims.
The laws make sense, in theory. “The hallmark of a SLAPP suit is that it lacks merit, and is brought with the goals of obtaining an economic advantage over a citizen party by increasing the cost of litigation to the point that the citizen party’s case will be weakened or abandoned, and of deterring future litigation.” United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972-73 (9th Cir.1999). The purpose of anti-SLAPP laws is to ensure the prompt dismissal of “legally meritless suits filed in order to obtain a political or economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff.” Condit v. Nat’l Enquirer, Inc., 248 F. Supp. 2d 945, 952 (E.D. Cal. 2002)(internal quotation omitted). “The paradigm SLAPP suit is an action filed by a land developer against environmental activists or objecting neighbors of the proposed development.” Id.
All well and good. Indeed, anti-SLAPP Acts are sometimes used to dismiss bogus suits in which one side really was trying "to obtain a political or economic advantage" over someone with inadequate resources to defend themselves. See Melius v. Keiffer, 980 So. 2d 167, 170 (La. Ct. App. 2008)(granting motion to strike complaint brought by owners of a bar against area resident who had opposed an expansion of the bar); Lamz v. Wells, 938 So. 2d 792, 794 (La. Ct. App. 2006)(dismissing case filed one week before election by one judicial candidate against another); Darden v. Smith, 879 So. 2d 390, 393 (La. Ct. App. 2004)(dismissing case filed by public official against individual who filed a complaint with the Louisiana Board of Ethics).
Goldman gives his own example where an anti-SLAPP motion allowed a party with limited legal resources to avoid the cost and burden of full-fledged litigation:
All too often, vendors use actual or threatened litigation to take down content that criticizes their offerings. The proposed federal anti-SLAPP law applies to those lawsuits. Thus, if enacted, the federal anti-SLAPP law will help consumers share their true feeling about marketplace offerings with less fear of meritless lawsuits from vendors who would rather fight in court than compete.
BoingBoing’s recent resolution of a lawsuit brought by MagicJack nicely illustrates the virtues of anti-SLAPP laws. BoingBoing blogged some criticisms of MagicJack’s offerings, and MagicJack unwisely responded to that post with a lawsuit. Fortunately for BoingBoing, MagicJack sued it in California, which has a robust anti-SLAPP law. As a result, BoingBoing was able to end the lawsuit early (BoingBoing won its anti-SLAPP motion less than 3 months from complaint filing) and get the court to order MagicJack to pay its attorneys’ fees of over $50k.
But it’s not always David using anti-SLAPP laws against Goliath; it’s often the other way around.
Consider the BoingBoing case. Let’s assume that, instead of suing BoingBoing, MagicJack retaliated by secretly hiring a spam company to inundate BoingBoing and other widely-read blogs with hostile comments questioning BoingBoing’s motives and favorably referring to MagicJack.
BoingBoing, having no other options, sues MagicJack.
Would those allegations show MagicJack’s "acts" were "in furtherance of the right of free speech?" Sure; MagicJack has just as much a right as BoingBoing to talk about other companies. So the anti-SLAPP Act would be available.*
At the beginning of the case, then, BoingBoing would be required to prove — prior to conducting any discovery, since HR 4364 automatically stays all discovery — that MagicJack was behind the posts, that the posts were false, that the posts were capable of a defamatory meaning, and that MagicJack was at "fault" in publishing the comments (defined in many states as "acting with malice or reckless intent").
How could BoingBoing prove all that immediately after filing suit? Most of that information would be in MagicJack’s possession.
Odds are, BoingBoing wouldn’t be able to do it. Their case would be dismissed, and MagicJack could continue to harass BoingBoing at will.
The law of unintended consequences, as they say.
Put simply, the problem with HR 4364 is that it’s an extraordinarily powerful device — one that substantially increases the costs of bringing meritorious cases and will undoubtedly result in the inadvertent dismissal of many meritorious cases — with few limitations on its use.
Often the only means that "David" has to challenge "Goliath" is through a lawsuit, like when ordinary individuals are powerless to repair the damage caused by sloppy or sensationalized journalism. Yet, if Goliath wants to use the Act to dismiss David’s lawsuit, he can and will.Continue Reading The Problem With HR 4364, The Proposed Federal Anti-SLAPP Law
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?Continue Reading Why Was The “Reptile” Trial Advocacy Book Admitted Into A Wrongful Death Trial?
Felix Salmon at Reuters caught something interesting:
[T]he facts of the case are pretty clear. The relationship between JP Morgan and Televisa goes back decades, and so JP Morgan was the natural choice for Televisa to turn to when it decided to buy a fiber-optic cable company called Bestel for $325 million, $225 million
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The Racketeer Influenced and Corrupt Organizations Act ("RICO") is not all that complicated.
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such
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I was going to write about how the Securities Industry and Financial Markets Association (SIFMA) had hired Carter Phillips of Sidley Austin — perhaps the most experienced Supreme Court advocate in the country — to "study" the constitutionality of President Obama’s proposed tax on the big banks, which is really just code for "SIFMA hired Phillips to create…
Fred Wilson links to his partner Brad Burnham’s post, "We need an independent invention defense to minimize the damage of aggressive patent trolls:"
I know of no case where the engineers in one of our companies were aware of the patents that are now being used to attack them. The moral rightness of this
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