GPSolo Magazine - April/May 2006
Courtroom As Classroom
Being a teacher is probably one of the last things on most lawyers’ minds. Instead, we fantasize ourselves as avenging angels or defenders of the downtrodden who single-handedly solve problems using the sheer force of our superior intellect. How ironic that, in reality, it’s not the lawyer’s own mental firepower that resolves a given case, but rather her skill in educating the other players—clients, judges, experts, witnesses, and the jury. If the judge is baffled and the jury lost, it will make no difference how smart the lawyer may be or how well she understands the case.
In the following example, we take a peek at a product liability case that has been through discovery and pretrial motions and is ready for trial. The plaintiff claims injury by chemical poisoning and has convinced herself her case is worth millions. The case is good, but the defense has enough ammunition to poke plenty of holes in it. It’s impossible to predict a result. Whenever the plaintiff’s lawyer tries to explain the risks of trial, the client bristles and says, “I feel like you’re not on my side when you talk so negatively about the case.”
Yesterday the court ruled on motions in limine. Plaintiff’s counsel had hoped to keep out much of the inflammatory matter relating to her expert witness, but the judge ruled that it all can come in, and the witness will be allowed to explain it away as best she can. Not a good ruling for plaintiff.
With that background, let’s see how important it can be for plaintiff’s lawyer to function not only as an advocate for her client, but also as a teacher.
Three men in dark suits hover around a large wooden table laden with cables and electronic devices. Documents, photographs, diagrams, X-rays, CT scans, MRIs, CDs, and videotapes surround them, waiting to be displayed. Forty minutes later, after having assembled the equipment and organized the exhibits, the men are in their seats. The projection gear, laptops, and flat panel monitors glow blue as the anticipation builds.
A woman with a rolling oxygen tank connected to a plastic tube that delivers the gas into her nostrils watches from across the aisle. For years, she has been dizzy all the time—so dizzy, in fact, that she was fired from her job and can no longer drive. She has been diagnosed with desi-acrilube poisoning, a rare condition caused by chemical exposure and leading to chronic dizziness in susceptible individuals.
She was never able to pinpoint exactly when she first became sick or what she was doing when it happened. Some of the doctors doubted she was sick at all. There was no X-ray or blood test that could objectively confirm her dizziness. After years of going from doctor to doctor, she finally found one who determined that her exposure to mold killer spray while cleaning her bathroom years ago is causing her dizziness. Treatment with the doctor’s own natural supplements works as long as she is taking them, but they are expensive, and the dizziness returns if she stops.
This doctor, now the plaintiff’s expert witness, is an outspoken opponent of the pharmaceutical industry and refuses to prescribe synthetic, manufactured pharmaceuticals when natural alternatives can do the job better. Despite the doctor’s high cure rate, license revocation proceedings have been brought against her—she believes because the pharmaceutical industry and some mainstream regulators feel threatened. The medical establishment has enjoyed some success in its campaign to paint her as a quack practicing “junk science.” She has chosen to ignore the license revocation proceedings.
Before the plaintiff’s chemical exposure, a handful of other people had complained about dizziness after using the same spray, but the manufacturer ignored them and failed to produce records of these complaints in response to plaintiff’s request for production. Regrettably for the defense, however, the fact of their existence came out at a corporate designee deposition. When asked why the chemical company did nothing in response to the complaints, the exasperated witness quipped, “it wasn’t worth the time or the money—it was just a couple of people who got dizzy.” This unfortunate choice of words, coupled with the failure to produce the records, made the chemical company look bad.
If defense counsel had taken time to educate this witness on how his words might eventually come back to haunt the company, we might not even be sitting here today, the plaintiff’s lawyer thinks. This case would have been dismissed in a heartbeat. But now, evidence that the company not only had knowledge of the problem but chose to do nothing gives me a chance to argue for punitive damages.
The defense lawyers know that this gaffe, coupled with the plaintiff-friendly venue, could spell trouble. They have already offered the woman a six-figure settlement, which she has rejected as not even in the ballpark, in part because of what she reads in the papers. (Why, just last week, a Texas jury awarded the children of a man who inhaled asbestos $210 million!) Despite plaintiff’s rejection of their offer, the defendants made it clear the money will remain on the table for a while yet. They are hoping she will change her mind.
I wish the newspapers wrote up all the defense verdicts, too, the plaintiff’s lawyer thought when her client showed her the article. I’ve told her a dozen times, but how can I make her understand that those huge verdicts are the exception and not the rule? I will be sick if we try this case and she gets nothing after turning down such a substantial offer.
The lawyer makes a mental note to show the client an opinion she has in her briefcase. She’s tried before to burst her client’s bubble of unrealistic expectations. So far it’s been as futile as telling people in line at the Lotto ticket counter that they are quite unlikely to recoup the price of the ticket. She feels lucky to have made it to a jury in the first place, and she wonders if her client appreciates how close the case was to being dismissed on limitations.
In this state, lawsuits must be filed within three years of the last to occur of the injury or the discovery that a product defect caused the injury. This suit was filed five years after the exposure but within three of the diagnosis. She narrowly defeated the defense’s summary judgment motion by arguing that the date of diagnosis was the date of discovery, and that suit was therefore timely filed. With the help of some nifty legal software, she created on her own computer a color-coded timeline of her client’s 63 doctor visits over the five years leading to her diagnosis. The plaintiff’s lawyer is certain that without that timeline showing all the doctor visits mounted on a 60-inch-wide foam core board and displayed during oral argument, the judge would not have been convinced the plaintiff was justified in taking so long to figure out the cause of her injury and to hire a lawyer to file suit. Thank goodness I was able to explain that to the judge, she muses. If only I could educate my client as effectively about the risks she runs by not accepting the settlement offer.
The plaintiff’s lawyer rises and begins her opening statement. She explains about her client’s debilitating dizziness and the chemical exposure that caused it. She touches on how her client’s damaged equilibrium needs to be supported indefinitely with supplements and other treatments lest she relapse. The folks in the jury box sit expressionless. She goes on to describe how other users of the mold killer had complained to the manufacturers about dizziness, but the defendants tried to sweep those complaints under the rug. I hope what I’m saying makes sense to them, she thinks as she takes her Sharpie marker and approaches the large paper tablet balanced on a rickety easel—the display leaves a lot to be desired compared to the electronic finery on the table belonging to the suits. She gives her “chalk talk,” adding up all her client’s bills, lost wages, and other damages, concluding with a request for a seven-figure amount she hopes the jurors will find appropriate, and emphatically circling it in green before sitting down.
Did I make the connection between the illness and the monetary loss clear enough? she asks herself. I could have spent double the time going over all this, but maybe I droned on too long already, she rationalizes, scanning the faces in front of her before looking to see her client’s reaction.
The plaintiff is wearing a brown suit, and her hair is gathered in a bun. Her eyeglasses partially obscure her eyes. She appears pale but otherwise normal, and the oxygen paraphernalia adds a note of gravity. The plaintiff’s lawyer is pleased with how she looks, but she could not have said that two weeks ago. There had been something about her image that didn’t sit right. After trying several times over the last few months to brainstorm with her about appearance, demeanor, and attire, the plaintiff’s lawyer realized her client was becoming defensive. Nothing was getting through. I’m trying to help and she thinks I’m criticizing her. How can I get the message across that she needs to appear softer and more vulnerable? And even if I can convince her, how can we accomplish it?
A professional image consultant provided the common-sense but not-so-obvious answers. The plaintiff’s white and pastel clothes gave her an ice-maiden appearance. Change to warm colors. Her unruly hair and fast-blinking eyes made her look a little disturbed. Tame the hair and camouflage the blinking with glasses. Her instantaneous change in affect from teary-eyed to aggressive and back again when questioned on videotape seemed contrived. The consultant admonished, “Don’t be emotional, don’t get defensive, and don’t attack the questioner. See how bad that looks on tape? Try NOT to draw attention to yourself by gesticulating or making faces.” When she finally heard it from the consultant instead of her lawyer, the client embraced the advice rather than becoming defensive, and the result was well worth the $500 fee. Now she sits poker-faced, having successfully resisted the urge to nod vigorously in agreement as her lawyer made her opening statement.
All eyes are now on the table where the dark-suited men sit. One of them stands. He is tall and tan, and his thick, bright white hair is perfectly coiffed. The other two flank his empty seat, expensive pens poised above fresh legal pads. He begins with a rundown of the career of the plaintiff’s expert. He explains to the jury how her license is being revoked in several states, which is why she has no admitting privileges at any hospital. She routinely diagnoses all patients who walk through her door with weird diseases like desi-acrilube poisoning that no one in the medical establishment has ever heard of and that cannot be diagnosed using any objective tests. He also slips in that she ranks as “highly suspicious” on a website called “QuackDocs.org.” By the time he is finished, no one on the jury would send his worst enemy to this doctor.
How can I ever rehabilitate my star witness after that kind of trashing? the plaintiff’s lawyer groans silently. She knew this expert would be trouble because of her refusal to confront the medical establishment’s accusations of junk science. The expert considered that battle an unnecessary distraction from her life’s work. Plaintiff’s counsel had to spend days educating the expert about the legal standard for admissibility of scientific evidence and exactly how to justify and explain her sophisticated (but not commonly accepted or understood) methodology to meet it. Had she not done the hard work of educating the doctor about the law, the expert would have come to last month’s Daubert hearing totally unprepared, and her testimony would have been summarily rejected. Fortunately, after the plaintiff’s lawyer’s crash course, the doctor passed scientific muster, and now, here they were, delving into other problem areas.
The white-haired man looks straight at the plaintiff and acknowledges her illness. He sympathizes briefly with her, stating how awful it must be to be dizzy all the time. Then, with the ease of a TV weatherman, he manipulates the remote as he narrates a slick PowerPoint presentation that displays larger-than-life, enhanced versions of the plaintiff’s medical records with salient portions highlighted in yellow, the doctor’s scrawl neatly translated to Times New Roman. The jurors’ eyes are riveted to the screen as they watch brightly colored slides showing three instances from 25 years ago documenting plaintiff’s repeated complaints to her obstetrician of dizziness.
The plaintiff looks like a deer in headlights. She passes a note to her lawyer. “I didn’t know they had those records!”
Next, a page from plaintiff’s 1974 high school yearbook flashes on the screen, and below her picture, someone has drawn a little heart and written, “Dizzy Debby.” The plaintiff’s lawyer starts to object, then sinks back in her chair, realizing it’s pointless. The white-haired man’s voice booms confidently and condescendingly, “The plaintiff is dizzy, ladies and gentlemen, but what she does not want you to know is that she was already dizzy in high school, and she’s been dizzy ever since. Her quack doctor is making her think our product caused it, but as you can see, that’s just plain wrong,” he concludes triumphantly. With nary a glance at the plaintiff, he tosses the remote on the table and folds himself back into his seat.
I can’t believe this, the plaintiff thinks as she holds her head in her hands. I thought my case was so good! I remember now that I did get dizzy a few times when I was pregnant 25 years ago. But that had nothing to do with this! The doctor said the spray caused my problems, but now I wonder what the jury will think. That lawyer makes her sound like a lunatic. I’ll be lucky if the jury gives me anything. Maybe the spray wasn’t what made me sick after all. I almost wish I’d accepted their offer. It seems like a lot of money now that I think about it again.
Plaintiff’s counsel reaches into her briefcase, retrieves a recent opinion from a Texas trial judge, and hands it to her client. “I pulled this off Lexis this morning. That $210 million case? The judge granted a judgment in favor of the defendants notwithstanding the verdict. The jury verdict is gone. The kids get nothing. I thought you should know. Take a few minutes to read it.”
The plaintiff’s lawyer walks over to the men in suits. She met them several years ago at Leisuretime Village, a retirement community where her parents live. The men are members of the drama club and always jump at her invitations to play the parts of three experienced defense lawyers in her mock trials. Each time, she pays them $50 apiece and provides a catered meal and the opportunity to mingle with the mock jurors afterward. “That was an incredible job, guys. I can’t believe you’ve only had the script since yesterday. You almost had me believing you were real lawyers. Thank you again for helping us out.”
And to the people in the jury box, a random sampling of her secretary’s friends and relatives: “Thank you for your time as well, ladies and gentlemen, we really appreciate it. It’s very valuable to us to do a dry run on opening statements. I’ll e-mail each of you the questionnaire about how you thought I did. Don’t spare my feelings when you write back; it’s the only way I’ll know what I need to change. When we receive your comments, we’ll mail you your checks.” With that, everyone bustles out of the mock courtroom, leaving the plaintiff alone to read the Texas judge’s opinion vaporizing the $210 million asbestos verdict.When her lawyer reappears in the doorway 15 minutes later, the plaintiff looks up from her reading and says, “You finally taught me. Now I understand. The pigs get fat and the hogs get slaughtered. I’ll take the offer.”
Robin Page West is a principal in Cohan & West, P.C., in Baltimore, Maryland, where she maintains a complex civil litigation practice. She is also the author of Advising the Qui Tam Whistleblower and co-author of Letters for Litigators , both of which are published by the ABA. She can be reached at firstname.lastname@example.org.