Thanks to Trial Ad Notes for telling me about the American Society of Trial Consultants website and, more importantly, about their electronic newsletter, The Jury Expert. The newsletter is published bimonthly. A subscription is free.
You can download past issues here.
The Knowledge That You Are Only as Good as Your Next Verdict.
I stole this idea from a friend in Atlanta who told me about it over a decade ago. While I disagree with the notion some might take from this statement (that a lawyer has to win or has done a poor job), I wholeheartedly agree with what I know was intended by the statement: great trial lawyers do not rest on their laurels.
There is no doubt that some percentage of lawyers who have had a few victories start to believe their own press. These people come to believe that they are better than their opponents and that they can win by the sheer force of their past successes. They believe that yesterday’s victories will carry the day and that they can cut corners in preparation with no adverse effect.
I have been in Washington, D.C. since Sunday attending the 85th Annual Meeting of the American Law Institute. Thanks to Howard Vogel, Judge Cissy Daughtrey, Chief Justice Mickey Barker, Bill Wagner, and Lucian Pera I was elected to membership in the ALI in the Fall of 2006.
We heard from Justice Ginsberg Monday morning; the rest of the day was left to a debate on a tentative draft of certain aspects of the law of aggregate litigation. On Tuesday we dealt with the law of nonprofit organizations and unjust enrichment.
There were no pure tort projects on the agenda for this meeting. I belong to the Members Consultative Group for two projects, Liability for Physical and Emotional Harm and Economic Torts and Related Wrongs. Here is a description of the drafting process.
The General Assembly has ratified changes to the Tennessee Rules of Evidence, Civil Procedure, and Appellate Procedure.
Here is the Order setting forth the rules changes for the TRE, TRCP, and TRAP.
The most significant change for tort law practitioners is the change to TRCP 59.07. This language will be added to the end of the current language: "A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury for any of the reasons for which new trials have heretofore been granted." The new comment provides that "[m]otion for new trial grounds have been governed by case law. A helpful list can be found
in Professor Larry A. Pivnick’s treatise, Tennessee Circuit Court Practice §28:1 (Thomson West)."
The Paces, through their lawyer, hired Dr. Swerdlow to testify in a wrongful death case they filed on behalf of their daughter. Allegedly, Dr. Swerdlow changed his testimony on the eve of trial and caused the court to dismiss their case.
The Paces sued their former expert, alleging that he lied about his credentials, was ill-prepared and changed his testimony because he was concerned that his peers would think badly of him. They alleged "allege that Defendant committed (1) professional malpractice, (2) fraud, (3) negligent misrepresentation, (4) breach of fiduciary duty, (5) breach of contract, (6) breach of the implied covenant of good faith and fair dealing, and (7) negligent infliction of emotional distress." The doctor maintained he changed his opinion because of new information he learned about the case in a deposition taken by the defense.
The District Court dismissed the case on a causation issue, and the 10th Circuit Court of Appeals reversed in this opinion. The case has been remanded to determine, inter alia, whether the expert is entitled to a privilege under Utah law. The concurring and dissent judge goes into on the non-causation issues and argues that the case should be dismissed on other grounds. His opinion starts on page 18 of the hyperlinked opinion. A snippet: "Allowing this claim to march along sends the message to would-be expert witnesses: Be wary – very wary – of changing your mind, even when doing so might be consistent with, or compelled by, the standards of your profession."
The Willingness and Ability To Delegate.
It is not impossible to be a great trial lawyer on your own, with no help from anyone. But I don’t know one.
At a minimum a great trial lawyer needs an extremely competent secretary, one who can think for the lawyer and keep that plates spinning when the lawyer is otherwise occupied.
A story that is of no surprise to anyone who knows anything about human beings … except a decreasing number of doctors and hospitals.
This article by Judge Richard Posner (7th Circuit Court of Appeals) does a fine job discussing appellate briefs and oral arguments.
A sample:
"The second biggest mistake that appellate advocates make—after exaggerating how much the judges know about or are willing to devote time to learning about a given appeal—is to think that they can win by rubbing the judges’ noses in the precedents. In an argued civil case, as I have just been emphasizing, there probably is no dispositive precedent—otherwise the case would probably not have gotten to the point of an orally argued appeal. And if there is no dispositive precedent, then unless the appellate judges are very gullible, it is futile to argue the case as if there were.
An Appreciation for the Discretion Vested in the Trial Judge
Trial judges are human. Each of them have certain strengths and weaknesses. Some may not have been at the top of their class in law school but know how to preside over the trial of a lawsuit. Others are very bright but struggle with the challenges of a jury trial. Some naturally favor the defense, and some favor the plaintiff. Some believe that summary judgment gives them the power to weigh evidence, and others believe that Rule 56 should not exist. Some believe that jurors can weigh expert testimony, while others believe that jurors must be protected from any expert who has not personally tested every premise of her position and had the results of those efforts peer reviewed by the top authorities in the field. Some rule on objections, and others just waive a hand and say "move on." And so on.
Great trial lawyers know that the judge (whether she is the trier of fact or is presiding over a jury trial) is accorded great deference by the appellate courts on evidentiary and procedural rulings. These lawyers adjust their game plan to meet the needs and wants of that judge, whether they agree or disagree with how the judge runs the courtroom. Why? Because they understand that, at the end of the day, the judge’s rulings on discretionary items will probably be upheld, and the failure to plan accordingly will harm the case,
Here is an interesting post from Torts Prof Blog:
"After all the time and money spent, aren’t the results of medical malpractice litigation extremely accurate? Although perhaps better than earlier studies indicated, malpractice results are imprecise. The Harvard School of Public Health study, in assessing how often medical error occurred in a random sample of closed claims, found that, "73 percent of all claims for which determinations of merit were made had outcomes concordant with their merit." Studdert et al., 354 New Eng. J. Med. at 2028. That figure would likely be reduced somewhat further if the technical requirements of medical malpractice were applied to the concept of medical error. In sum, after all these resources are expended, more than one in four cases is decided incorrectly.
Data is mixed regarding the distribution of the errors (whether errors generally favor plaintiffs or health care providers). The Harvard School of Public Health study finds a fairly even distribution. On the other hand, Professor Philip G. Peters, Jr. analyzed all seven studies that have compared verdicts rendered in individual malpractice cases with independent evaluations of each claim by medical or legal experts. Philip G. Peters, Jr., Doctors & Juries, 105 Mich. L. Rev. 1453 (2007). According to Peters, the studies demonstrate that plaintiffs win about 10% to 20% of cases with weak evidence of negligence and 50% of the cases with strong evidence thereof. In other words, plaintiffs win between 10% and 20% of cases they should likely lose, but lose one-half of cases they should likely win. Id. at 1464. If that’s true, plaintiffs’ lawyers, who tend to support the current malpractice regime, take a big risk with each individual client with a strong case that goes before a jury."
