Ethically Preparing Witnesses to Testify against Plaintiffs Reptile Theory

Transcription

1 Ethically Preparing Witnesses to Testify against Plaintiffs Reptile Theory HENNELLY & GROSSFELD LLP 4640 ADMIRALTY WAY, SUITE 850 MARINA DEL REY, CA (310)

2 To Prepare or Not to Prepare 2

3 Have to Prepare? Have to Refresh a Witness s Memory? No obligation to review documents No obligation to refresh memory Just answer based on current, distant memory If not sure, just say I don t know or I don t remember 99% of cases settle anyway 3

4 Sgt. Schultz School Video Placeholder 4

5 Review documents & Refresh Memory Tell the Company s (non-fictional) Story As if Testifying at Trial Takes Time & Money 5

6 What Is the Reptile? 6

7 Plaintiff s Litigation Strategy Approach to Trial Preparation and Presentation Outline for Every Part of the Case Discovery Depositions Opening Statements Witness Examinations Closing Arguments Outline for Every Part of the Case Primarily Based on Cross-Examination of Defense Witnesses Securing Rules Admissions or Unreasonable Testimony 7

8 Why Is It Called the Reptile? 3 Parts of Brain Reptilian, Caveman, Rational Our Triune Brain NEOCORTEX The Thinking Brain Left Words Patterns Sequences Analysis Right Creativity Imagination Whole Picture LIMBIC BRAIN The Testing Brain 1. Five senses 2. Emotional Memory 3. Context REPTILIAN BRAIN The Survival Brain Basic body systems Desire to avoid harm 8

9 Theory -- Rational Brain Just Rationalizes Reptile s Decisions Is the Theory Neuroscientifically Sound? No, But Who Cares? 9

10 Fear/Danger-Based Strategy Rules of the Road Defendants Rules Violations Not on a Single Past Injury to Plaintiff Ongoing Dangers to Entire Community Asks Jury Not to Redress One Past Wrong Reach Verdict to Make Community Safer from Many Ongoing Risks 10

11 Traditional Product Liability Theme Company Put Profits Ahead of Safety Liability Defective Product Damages Caused Plaintiff s Injuries Jury Request Make Company Pay Plaintiff s Damages Reptile Argument Rules Manufacturers Must Identify, Design, Guard, and Warn Against Every Identifiable Product Hazard Using All Available Information - Product Safety Not Optional Rules Violated Defective Products All Over Country Danger Caused Many Injuries & Threatens Many More & Worse Jury Request Large Verdict to Change Behavior & Make Community Safer 11

12 Problem - Vague Liability Standards Solution Rules of the Road Traditional Negligence How would a reasonably careful person have acted in this situation? Reptile Negligence Take every reasonable precaution to make and keep the location safe, including regular, recorded inspections Anticipate, and guard against, foreseeable dangers, including criminal misconduct, by using reasonable lighting, gating, and patrolling security guards 12

13 Traditional Product Liability Did the manufacturer use the amount of care that a reasonably careful manufacturer would use in similar circumstances to avoid exposing others to a foreseeable risk of harm? Reptile Product Liability Manufacturers must: Follow written safety procedures & record compliance Identify potential hazards and as much as possible eliminate, guard, or warn against them Conduct pre- and post-production tests to monitor product safety using all available data (returns, incidents, industry, and government data) & re-design to eliminate hazards 13

14 Traditional Insurance Bad Faith Did the insurer unreasonably or without proper cause act or fail to act in a manner that deprives the insured of the benefits of the policy? Reptile Insurance Bad Faith Insurers must: Fully, fairly, and promptly investigate and evaluate each claim Look for evidence supporting coverage, disclose benefits and coverage that may apply, and give the insured s interests the same regard as the insurer s interests Communicate and explain coverage decisions promptly and honestly, and fully pay covered claims 14

15 Plain & Simple Rules Difficult or Impossible to Disagree With Multiple Rules - General to Specific Why do We Have Rules? Protect the Community, including Jurors 15

16 Maximizes Juror Focus on Defendants Minimizes Juror Focus on Plaintiffs Focus Away from Any Comparative Fault Not Depend on Severity of Injury to Garner Sympathy Trial Is NOT about Single Past Event About Many Present and Future Risks Jury Asked NOT to Compensate Plaintiff for Single Past Event Asked to Punish Defendant to Protect Community More $ Awarded More Likely Rules Followed & Community Safer 16

17 How to Defend Against the Reptile? Objections Not Enough Reptile Depends upon Little or No Witness Preparation Prepare Witnesses for Deposition Would You Prepare Witnesses to Testify at Trial? Deposition is Trial Party-Opponent s Video Testimony can be Played at Trial 17

18 Deposition Testimony = Trial Testimony Admissible Against Company Play Video at Trial Juror Perceptions of Corporations & Witnesses Distrust of Corporations Distrust of Defendants If Meritless Would Have Been Dismissed Corporate Witnesses Perceived Bias in Favor of Company Education, Experience, and Success Higher Standard Should Know What s Going on at Company Credibility Often Deciding Factor in Case 18

19 Distrust of Corporations 19

20 Distrust of Corporations 20

21 Deposition Testimony = Trial Testimony Admissible Against Company Play Video at Trial Juror Perceptions of Corporations & Witnesses Distrust of Corporations Distrust of Defendants If Meritless Would Have Been Dismissed Corporate Witnesses Perceived Bias in Favor of Company Education, Experience, and Success Higher Standard Should Know What s Going on at Company Credibility Often Deciding Factor in Case 21

22 - Robert M. Calica, When Your Client s the Boss, American Bar Association Journal, June 1,

23 How to Ethically Prepare Witnesses Have to Do? Cannot Do? Should Do? Should Do to Defend Against the Reptile? 23

24 Tell Truth Explain Why It s the Truth Underlying Thoughts/Feelings/Motivations Easier for Jury to Understand/Remember/Believe 24

25 Yes Reimburse Expenses Yes Compensate for Time Yes NOT pay for the fact of testifying (or not) NOT pay for the substance of the testimony See ABA Ethics Opinion (1996) California Ethics Opinion (1997) Rule 3.4(b) of the Model Rules Comments Should You Pay Witnesses? When You Need Lot of Time/Cooperation See ABA Ethics Opinion (1996) Draft One-Page Consulting Agreement 25

26 Ask Witness to Change Testimony? Yes Ask to Reconsider Testimony in Light of Other Testimony/Evidence? Yes 26

27 Video Placeholder 27

28 Yes May suggest words to improve clarity or accuracy 28

29 NOT suggest words calculated to convey a misleading impressions Restatement (Third) of Law Governing Lawyers Sec. 116 cmt. b (2000) Horse-shedding" Wood-shedding The central question is how to determine the ethical line between developing testimony so it will be effective and suborning perjury by telling the witness what to say. - James W. McElhaney, McElhaney's Trial Notebook, at p. 108 (4th Ed. 2005). 29

30 Horse-shedding" Wood-shedding Video Placeholder 30

31 An attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line when she influences the witness to alter testimony in a false or misleading way. - Ibarra v. Baker, 338 F. App x. 457, 465 (5th Cir. 2009). [T]he line between permissible conduct and impermissible coaching can be like the difference between dusk and twilight. - Adam Liptak, Crossing a Fine Line on Witness Coaching, New York Times, Mar. 16, [T]he lawyer s duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not teach him what he ought to know. - In re Eldridge, 82 N.Y. 161, 171 (1880). 31

32 What s Too Far? The 20-page script memo, entitled "Preparing for Your Deposition," instructs all clients (without regard to truth): You will be asked if you ever saw any WARNING labels on containers of asbestos. It is important to maintain that you NEVER saw any labels on asbestos products that said WARNING or DANGER.... Do NOT mention product names that are not listed on your Work History Sheets. The defense attorneys will jump at a chance to blame your asbestos exposure on companies that were not sued in your case. Do NOT say you saw more of one brand than another, or that one brand was more commonly used than another.... Keep in mind that these [defense] attorneys are very young and WERE NOT PRESENT at the jobsites you worked at. They have NO RECORDS to tell them what products were used on a particular job, even if they act like they do.... The only documents you should ever refer to in your deposition are your Social Security Print Out, your Work History Sheets and photographs of products you were shown, but ONLY IF YOU ARE ASKED ABOUT THEM AND ONLY IF YOUR BARON & BUDD ATTORNEY INSTRUCTS YOU TO ANSWER! Any other notes, such as what you are reading right now, are privileged and should never be mentioned. S. Rep. No (July 21, 2003), Fairness in Asbestos Injury Resolution Act, at (Script Memo reprinted at ). 32

33 What Should Be Done to Prepare a Witness? Witnesses Should Meet with Attorney(s) & Understand: Plaintiff s Claims Defendants Defenses & Trial Themes Where They Fit In Review Documents Witness Received/Authored Understand Deposition/Trial Practice Testifying Mock Direct & Cross It is cruel to subject anyone to cross-examination without preparation. The unrehearsed witness can deal a lethal blow to an otherwise winnable case. Lawyers who fail to prepare witness for cross-examination most often refer to their clients as appellants. Houston trial lawyer David Berg, Litigation (1987) The thorough and proper preparation of a witness to testify under oath is the most important task a lawyer will undertake in the development of a case for trial. Kerrigan, Witness Preparation, 30 Tex. Tech. L. Rev. 1367, at 1367 (1999). 33

34 Prepare Witnesses for Rules Questions Don t Agree with Use of Word Rules Reptile uses cognitive momentum and the brain s preprogrammed acceptance that safety is good and danger is bad. - Bill Kanasky, Debunking and Redefining the Plaintiff Reptile Theory, For The Defense, p. 21, April Don t Agree to Vague, Overbroad Rules Company Must Not Needlessly Endanger People Admit What You Have to Admit Agree to Correct Statements of Law / Duty / Responsibility / Intention Statements Drawn from Jury Instructions, Cases, Regulations, Company Websites, Contracts, etc. Don t Just Disagree Prepare Accurate, Positive, Qualified Statements ( Talking Points ) Focused on Facts of Case 34

35 Reptile depends on unprepared company witnesses at deposition Prepare witness with facts, documents and other witness testimony Practice answering safety and danger rule questions as if at trial Refresh knowledge so witness comfortable explaining company s non-fictional story 35