A Trial Lawyer in Search of a Theme and Other Musings

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1 A Trial Lawyer in Search of a Theme and Other Musings by Dennis R. Suplee * Litigation, Vol. 30, No. 3, Spring 2004 In my first jury trial, I represented a Mr. Robinson, who had sustained personal injuries in a right-angle collision at 46 th and Market Streets in Philadelphia. It was the classic red light/green light swearing match. After a day and a half of presenting witnesses, I rested my case. On counsel for defendant s motion, the trial judge granted a compulsory nonsuit (our state court equivalent of a directed verdict), meaning that I had failed to make a case sufficient to go to the jury. I walked directly from City Hall back to the office of the partner who had assigned Robinson s case to me, to tell him what had happened. He took in the bad news, told me to tell him witness by witness what the testimony had been, leaned back in his chair, and closed his eyes. When I finished my report, he opened his eyes, moved to an upright position, and said, Remarkable! You are the first lawyer in the history of the Commonwealth of Pennsylvania to put on seven witnesses on liability and end up nonsuited. Things changed with my second jury trial. This time, the plaintiff s liability case went in as smooth as silk. This time, there was not the slightest risk of a nonsuit. This time, the case on damages went in so well that it appeared that the case, which I had evaluated before trial as having a maximum jury verdict potential of $7,500, might well come in a lot higher. In fact, the jury returned a verdict of $50,000, which was a very substantial verdict in 1968 and, in this case, well in excess of the defendant s liability insurance policy of $10,000. Word of the verdict spread through much of the trial bar. Lawyers I didn t know stopped me on the street to ask about the case. It was in all respects a stunning verdict for the plaintiff. As luck would have it, I represented the defendant. There are some bloody noses on the road to becoming a trial lawyer. When I hear the standard advice about how to prepare a case for trial decide from the start what the case is all about, do your research at the beginning (not somewhere down the line), settle upon a theme, organize your case preparation to support your theme, and methodically put your case together I find myself whispering a silent amen. * Dennis R. Suplee is a partner in the Philadelphia office of Schnader Harrison Segal & Lewis LLP. This article is based upon the keynote address the author gave in Toronto on May 2, 2003, at a program sponsored by the American College of Trial Lawyers and the Advocates Society. Copyright 2004 The Reproduced with permission. All rights reserved. This information or any portion thereof may not be

2 The problem is that sometimes indeed, too often the theme of your case or the theory of your case (to use a more cerebral term) remains elusive. And you find yourself searching for your theme as the case moves toward trial. Though some trial lawyers see theme and theory as quite distinct, they are used interchangeably here. Rather than speaking in the abstract, I figured it would be more useful to take a couple of cases, one for the plaintiff and the other for the defendant, in which my partners and I struggled to find the theory of the case, and then to discuss what general principles might be extracted from these experiences. The first was an insurance coverage case in which we represented a local company called Gold, the plaintiff. Gold had acquired another company that for many years had operated a secondary lead smelter in Philadelphia. In the best of circumstances, operating a secondary lead smelter is a very dirty business. It involves smelting used lead, such as the plates from spent batteries, to produce a purer lead that can be recycled into new batteries. Inevitably, large quantities of lead dust are generated during that process. As a result of a long-time exposure to such lead dust, many of the employees at the smelter in question developed serious health problems; some suffered premature deaths. Lawsuits were filed by or on behalf of 80 of these employees against Gold. Personal injury suits against an employer normally would be barred by the Pennsylvania Workers Compensation Act. The employees, however, contended that Gold s predecessor had run the plant in such a reckless and indifferent way (with few measures being taken to reduce the volume of fumes or otherwise safeguard the health of the workers, even as their blood lead levels rose precipitously) that the jury was entitled to find the predecessor had intended to injure the employees, knowing that serious injuries to their health were likely to result. At that time the case law suggested that a claim based upon such intentional misconduct was not barred by the Workers Compensation Act, and so these cases were allowed to proceed. After being on trial for more than six months, Gold settled all 80 cases for a lot of money. Against that background, my firm was retained to bring suit against Gold s insurance company, which had denied coverage and refused to pay the settlement. The insurance company had an appealing legal position: The conduct of Gold s predecessor was either unintentional or intentional. If unintentional, Gold had a perfect defense under the act and should not have paid anything to settle the cases; if intentional, the insurance policy did not cover such conduct And so our first task was to convince the trial judge that there was a difference between intentional and intentional, (You see the problem.) That is, there was a higher level of intentionality required to forfeit insurance coverage than to get around the workers compensation bar. The trial judge ruled in our favor on that issue, and our case was allowed to go forward. Even so, the case was a hard one. The facts, including a number of photographs, tended to show that the smelter was a modern-day version of Dante s Inferno. I began nearly every meeting with my partner Diana Donaldson with the same question: Is there a way to win this case? Copyright 2004 The Reproduced with permission. All rights reserved. This information or any portion thereof may not be

3 As time went on, we developed what we thought were two respectable themes: first, over the years a representative of the insurance company had visited the smelter from time to time, inspected things, and recommended various safety improvements to Gold s predecessor all while the insurance company continued to renew the insurance policy to the company and so the insurance company should be estopped to deny coverage; and second, OSHA, the federal agency in charge of workplace safety, had inspected the smelter periodically and although it recommended a number of safety improvements, never had threatened to close the smelter. Exercise Yields Results About six weeks before trial, both themes were blown out of the water. First, the trial judge ruled that insurance coverage could not be proven through estoppel. Around the same time, a jury focus exercise that we did on the cheap (by recruiting our own employees to serve as jurors and without the help of an outside expert) revealed that they were utterly unimpressed by OSHA s visits. They were convinced that OSHA and the company were in bed together even though nothing was said during the presentations to them to suggest that was the case. So we had a case without a theme, without a theory. But the jury exercise did produce one germ of an idea. In setting forth the chronology of events for our inhouse jury exercise, I noted the dates of visits by the insurance company s representatives but, having in mind the court s ruling on estoppel, did not argue that such visits were relevant to the coverage issue. In the debriefing that followed, our jurors pressed for more information about such visits. What did the insurance company representatives see? What did they recommend? Why did the insurance company continue to renew the insurance policy to Gold s predecessor if conditions at the plant were so bad? So we took a new look at things. How could we argue these facts? Finally, Donaldson asked the obvious question: To what issue was the evidence relevant? (It is obvious questions that are most often overlooked.) From the ensuing discussion, the idea emerged that such visits were relevant to determining Gold s predecessor s state of mind or intent, that is, whether it believed that the way it ran the smelter was likely to cause personal injuries to the employees. More specifically, wouldn t the fact that the insurance company had visited the site, seen conditions there, recommended certain safety improvements, yet continued to renew the insurance policy tend to lead the smelter operator to believe there was nothing fundamentally unsafe about the plant s operations? The trial judge ruled that the evidence was admissible for that limited purpose but cautioned that we were not to argue estoppel. So once again, though the case was still a hard one, we had a theory. Two weeks before trial, another theme appeared, this time from an unexpected source. At the final pretrial conference, lead counsel for the insurance company, who was reluctant to agree to anything that would make our lives easier, advised that he would not stipulate to the authenticity or admissibility of the applicable insurance policy though there was no question about either. The trial judge shrugged his shoulders and told us, You ll just have to call a witness to prove it. Because that meant bringing a Gold employee from Chicago to give what we knew would be undisputed testimony, our first reaction was annoyance. Copyright 2004 The Reproduced with permission. All rights reserved. This information or any portion thereof may not be

4 But then we saw an opportunity. Since the insurance company was disputing (or at least not admitting) that it had issued the insurance policy marked as Exhibit 1, we decided to tell the jury in the opening statement that the first issue they would have to decide was whether we had the right insurance policy and the right insurance company. The insurance company s intransigence allowed us to develop the theme that the insurance company was acting like, well, the worst of insurance companies. It allowed me to argue this way in my closing speech: Why won t the insurance company admit that it sold this insurance policy, Exhibit 1, to Gold s predecessor? It has the insurance company s name at the top, and Gold s predecessor is named as the insured. The policy number is the same as the one noted on the cancelled check sent to the insurance company in payment. What does it tell you about the insurance company that it won t admit that this is its insurance policy? None of this could have been said if the insurance company had stipulated to the insurance policy. More importantly, the weakness of the insurance company s position on what should have been a nonissue detracted from the force of its argument on the intent issue. After a nine-week trial that lasted all summer, from the fourth of July to Labor Day, the jury returned a verdict in Gold s favor. The second case was one brought in the name of Dr. Doe against a local hospital, which we represented. Dr. Doe was an orthopedic doctor on the hospital s staff who, the hospital learned, had become HIV-positive. After considerable investigation and deliberation, the hospital followed applicable CDC guidelines and advised the doctor that he could continue to operate but had to obtain informed consent in advance: He had to tell the patient that he was HIV-positive and secure the patient s consent for him to operate. Dr. Doe responded that, for all practical purposes, such a requirement put him out of business; fear of the virus ran so high that no patient would grant such consent. The doctor brought suit under the Rehabilitation Act and the Americans with Disabilities Act. There was an effort in some quarters to convert this dispute into a cause. My opponent and I were interviewed by ABC s 20/20, which, in the ensuing documentary, presented the case as the medical equivalent of Philadelphia, the Tom Hanks movie about a young lawyer fired by his firm after its senior partners learn that he is HIV-positive. From our point of view, the dispute was not a cause, it was a case, albeit a serious one (with damages approaching $10 million) that had been entrusted to us to defend. Our defense was the obvious one: There is a risk of transmission of the virus if the doctor were to cut his own hand during an operation and bleed into the patient. The difficulty with our position, as our investigation and research revealed, was that the risk appeared to be more theoretical than real. Indeed, Dr. Doe s counsel argued that the risk was purely theoretical. At that time 60 or 70 cases had been reported of the virus being transmitted from patient to healthcare worker remember, there is a lot more of the patient s blood than the doctor s in the operating room but only one Copyright 2004 The Reproduced with permission. All rights reserved. This information or any portion thereof may not be

5 case in which it was clear that the virus had been transmitted the other way, from healthcare worker to patient. However, that was the highly controversial case of the Florida dentist who infected six patients, where there was some argument that he had purposely done so. There was a report a couple of years ago of a documented case in which a French orthopedic surgeon had infected a patient, but that came after our case was over. How could we make the risk of transmitting the virus real to the court or the jury (if summary judgment was not granted), particularly since the consequence of the hospital s decision was to take a well-educated, highly trained surgeon out of action? As my partner Nick Price and I continued to read the medical literature, including a number of articles by medical ethicists, and talk things through, a theme gradually surfaced, this time in the form of single critical question that we first put to the plaintiff s key expert at his deposition. The questioning went something like this: Q: In the course of operating, do surgeons sometimes suffer needle sticks? A: Yes. Q: What is a needle stick? A: It s a term used to describe a doctor nicking his own hand with a surgical instrument or on a sharp shard of broken bone. Q: On any given day, orthopedic surgeons all across America suffer some number of needle sticks? A: Yes. Q: When that happens, is there the risk that the doctor s glove may be cut and that he may bleed into the open cavity of the patient s body where he is operating? A: Yes. Then came the key question: Q: Let s suppose that we do things your way, and Dr. Doe is not obliged to tell the patient on whom he will be operating that he is HIV-positive. Suppose that, during the course of an operation, Dr. Doe suffers a needle stick and bleeds into the patient. When the patient recovers consciousness, under your system, does the doctor tell the patient what happened? Copyright 2004 The Reproduced with permission. All rights reserved. This information or any portion thereof may not be

6 It is a question to which there is no satisfactory answer. If the answer is yes, then why not tell the patient beforehand, since the risk of a needle stick is not a remote one. If the answer is no, the patient is not alerted to monitor her health or to the risk of resuming relations with her spouse. We had our theme for the court and for the jury. The court granted summary judgment in our favor on the core issue, and the parties then settled certain ancillary claims. The theme or theory of the case is the product of hard work and concentration though it rarely presents itself when you are working hard or concentrating intently. It is more likely to emerge, seemingly from nowhere, when you are walking along the street, having dinner with friends, or the like. To find the theme, you must listen intently, one of the hardest things in the world to do. Listen to the client, listen to your partners and associates, listen to your secretary, listen to your opponent, listen to your inner voice. Are there things in common in the themes of these seemingly disparate cases, Gold and Dr. Doe? Two similarities come to mind. First, in each case, the theme is simple, easy to understand, and persuasive. We had, as one experienced trial lawyer has put it, given them a tune they can whistle. The second similarity is that there was no serious dispute about the factual elements of either theory. In the Gold case there was no dispute about the insurance company s visits to the smelter or its refusal to concede that we had the right insurance policy. Nor was there any dispute in the Dr. Doe case about the needle-stick facts. The advantage of such a theme or theory is that it does not depend upon your winning disputed issues of fact. You would be surprised how often you can develop such a theme if you truly dedicate yourself to the client s cause. Or you can come close. For example, your theory may depend upon only a single issue of fact that is likely to be resolved in your favor. Once you ve decided upon your theme, how do you sell it? Often I see lawyers wince when I use the word sell because, after all, we are professionals, not salespeople. I use the word not because I have a low opinion of trial lawyers but because I have a high opinion of good salespeople, which is what my father was. I learned from him that good salesmen do not sell by being deceptive or misleading. Lawyers sell effectively by talking straight to judges and juries. From carrying the bags of senior trial lawyers at the beginning of my career, I learned the importance of talking straight to judges. One of those lawyers, Buddy Segal, had a wonderfully flamboyant way of establishing his credibility with the court at the very beginning of his presentation. For example, in a case in which he was drafted at the last minute to make an argument in the Court of Appeals for the Third Circuit (and that ultimately went to the U.S. Supreme Court), Buddy started this way: I d like to withdraw the argument made in section III A of our brief. That argument was persuasive to my partners who wrote the brief, but it doesn t persuade me. And I m not going to try to convince you of something that doesn t convince me. Copyright 2004 The Reproduced with permission. All rights reserved. This information or any portion thereof may not be

7 In another case, Buddy was asking the Iowa Supreme Court to reverse the action of an administrative agency on a ruling within its discretion an almost impossible task. Buddy began his argument by saying to the justices of that court, Let s start with the recognition that everybody in this courtroom knows that I have only one chance in ten to win this appeal but let me tell you why I should. I would like to tell you he won that argument. He didn t. But they listened. They listened because he was talking straight to them. It was harder to learn to talk straight to juries because I always wanted to pretend that the other side had never laid a glove on me. I learned my lesson in a case assigned to me one Saturday morning, with the trial set to start on Monday. It was a good old-fashioned civil assault and battery case. Two drivers were cutting each other off as they drove through the streets of Northeast Philadelphia. When they arrived at a red light, the occupants poured out of both cars to settle things through Philadelphia s version of ADR: a fistfight. Plaintiff John McGraw and his friends were in one car; the three defendants in the other. Unfortunately, one of the defendants removed a baseball bat from the back of his car and, in the course of the free-for-all that followed, swung it into McGraw s face, causing very serious injuries. The dispute was about which of the three defendants swung the bat. Indeed, the question was, literally, Who struck John? (Because my client s last name was Lesser, one of my partners suggested an alternative formulation: Is the Lesser the evil? ) A number of facts and circumstances supported Lesser s insistence that he had not swung the bat. The problem, and it was a big one, was that McGraw had testified with certainty that it was Lesser who swung the bat at him. When I got to the point in my closing of dealing with that testimony, I found myself blurting, Now, that s troubling, isn t it? All eight jurors moved forward in their seats. I can remember thinking to myself, This better be good, Suplee. In truth, it wasn t bad, and the jury came back in Lesser s favor. That s when I learned that jurors, too, want straight talk. Another lesson learned along the way: There is nothing wrong with being nervous. If you find yourself nervous at the start of a trial or an oral argument, don t worry about it. You will work through it. The point was brought home to me some years ago when I was swapping lies with Tom Carroll, a college classmate who became one of the leading criminal defense trial lawyers in Philadelphia, about cases we had tried at the beginning of our careers. Tom remarked that when it came time to give his closing speech in his first jury trial, he could not stand up. I replied that I knew what he meant, I had felt exactly the same way, etc. To which Tom responded, You don t understand. I could not stand up. I tried, but I could not stand up. After blinking a couple times, I asked what he did. I gave the speech sitting down. The truth is that even very experienced trial lawyers are sometimes so keyed up to perform well that, yes, they are nervous. Some years ago, I argued an appeal in the Second Circuit before a panel consisting of Henry Friendly, one of the great judges in American history; Amalya Kearse, a splendid judge with a well-earned reputation for excellence; and Chief Judge Mansfield, another outstanding judge. Was I nervous? Yes, of course. But, as I sat next to my opponent, waiting for our case to be reached, I became aware that he was much more so. His hands were trembling, and he made a clicking sound as he tried without success to clear his throat. Copyright 2004 The Reproduced with permission. All rights reserved. This information or any portion thereof may not be

8 My opponent was Joseph L. Alioto, a great trial lawyer and appellate advocate who served as mayor of San Francisco and was seriously considered for the vice-presidential slot on the Democratic ticket. In spite of his prodigious abilities and dazzling credentials, he had a serious case of the jitters. When our case was called, Alioto stood and fought for his clients. I was close enough to see that his hands were still shaking, and I could detect a slight quaver in his voice. It didn t matter. He did his job and did it exceedingly well. So if you find yourself nervous, don t fret about it. Like Tom Carroll and Joe Alioto and countless other trial lawyers, you will fight for your client and fight your way through it. Postscript. To follow up on a couple of the cases I ve mentioned: As to Mr. Robinson s case, the partner who assigned the case to me said something else after I completed my report of the trial testimony: The judge is wrong. We re going to get him reversed. We did. At the second trial, the jury returned a full and fair verdict in Mr. Robinson s favor: $7,000. And there was a sequel to the $50,000 verdict that was five times the insurance policy limits. Once the verdict was announced, the trial judge, who had served as co-counsel for the plaintiff during the trial, switched sides and, with threats of granting a new trial, hammered counsel for the plaintiff into accepting a $15,000 settlement. I don t know what the lesson is here maybe just that more often than not, the system achieves a rough justice. Copyright 2004 The Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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