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In response to Murigi’s death, Councilman Kevin McCarty has asked police and traffic engineers for a report on whether the intersection needs security upgrades.  City transportation officials said they are also expecting a police report on the collision and would investigate if new safety tools should be employed.

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As printed in Plaintiff Magazine, January 2012

A friend of ours, in the not too distant past, put out a job offer. He narrowed it down to the final two, after interviews. His first pick? A young woman, we’ll call her Ms. Smith, whose legal experience put her in the lead. He then did what many people these days do. He plugged the names of the final two into a search engine. Within the first few hits? A publicly accessible MySpace page. Now for some, having a desperately unhip MySpace page—this was before Justin Timberlake’s group bought it—would have been enough. But there was more. Pictures of her—that she had posted—in various states of excessive inebriation, large bottles of hard alcohol in hand. The other applicant? References to a few classes in college, a paper and an updated LinkedIn profile.

Everybody’s doing it

Google stalking is not just the bastion of jilted lovers. Jurors do it. Prospective clients do it. The media does it. Opposing counsel and adjusters do it. The worry? What are they going to find? The only way to tell is to do it, too.

Google thyself

Most of us are so busy worrying about our clients, our opposing counsel and our experts that we forget there’s another web presence out there. Yours. And if you think jurors aren’t doing searches on you, you’re either not reading the news or failing to follow your firm’s website analytics. I’m illustrating this with jurors but it is true across the board.

There’s the panel in Florida, where ten of twelve jurors conducted independent Internet research despite instructions not to. Our firm’s website analytics regularly demonstrate that our website traffic increases during jury selection. The information is detailed enough to show that the increase is from a particular region and focused on particular lawyers. It is not detailed enough to tell us precisely who it is.

An aside—have your website professional install Analytics and learn how to log on to view it or receive weekly email updates. Review the results. You’ll be surprised what you can learn about who comes to your site and what draws them there.

You are your brand

So what does all this mean to you? That you are your brand. And the way most people correlate your brand to real life is by checking your web presence. That presence—their perception of it—becomes their reality for you. So you must zealously protect that brand. This includes protective measures, i.e. keeping information that clashes with your brand out of the public eye. And it also includes making sure you update your web presence to make the right information easy to find.

Protective measures

Keeping the wrong information out of the public domain requires a few simple rules. Assume anything you post may be seen by a juror or client. I don’t care how you set your privacy restrictions on Facebook. Stuff just has a tendency to seep out. And it is not just you. When your friend tags the photo you really did not want taken from that bacchanal? Untag it immediately. Another simple rule—don’t post, email or tweet after having a drink or taking medication—prescription or otherwise. This is Brian Garner’s Rule 1.19 (Garner, Ethical Communications for Lawyers (2009) pp. 33–34.) There’s a reason those politicians’ crotch shots are sent in the wee hours—it is not sobriety.

Influence your top 10 results

Internet searches can yield all sorts of information. Your goal is to make sure your footprint is uniform, positive and consistent with how you present in real life. Uniformity means you take the time to update information across the various platforms out there. Your firm bio, LinkedIn profile, Avvo information, Martindale, Facebook and Google Profiles, to name a few, should all have the same information. The more common or infamous your name, the more important it is to post in as many places as possible and update. When you have a major change, you need to take the time to change the information everywhere. Keep a profiles checklist. Once a quarter, take an hour or two to update the various sites. Too busy, too important, or not technically savvy? Work with a trusted admin, a social-media savvy associate or the person in your household who has mastered your iPad (you know exactly who I mean, just look it over to make sure your offspring spells everything right and have a deadline calendared to make sure the updating occurs.

Typically, people’s searches bob along, finding consistent information that reassures them that what they initially believed is true. Good bio. Avvo score of 10. AV rating. Good comments on Yelp. But all it takes is one hiccup for them to dig down and decide you are not trustworthy. That hiccup loses potential clients and can turn off potential jurors.

So who got the job?

Do you really have to ask? Our friend is no prude. But he also runs a professional office. When faced with someone who had no qualms posting party pictures for all to see versus someone whose web presence conveyed stability, he took the conservative route. As any employer, potential client or jury instruction-violating juror is wont to do.

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Pedestrian rates have also increased in Marin. Weekday pedestrian rates increased 33%, while weekend walking rates increased 39 percent between 2007 and 2011.  Marin has been part of the federally-funded Non-motorized Transportation Pilot Program. The Program has provided more than $25 million to Marin to promote bicycling and walking as an alternative to driving.

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In a statement, Harley-Davidson said that it first became aware of the problem in June 2010 when a Trike motorcycle lost its rear braking system because of the brake light problem.  Again, in July 2010, Harley sent investigators to Louisiana after another bike was involved in collision. One person was injured in that accident. Harley-Davidson maintains that it has not yet determined whether the brake light defect caused that crash.

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As printed in Plaintiff Magazine, December 2011

Thunk! It arrived on my desk with the kind of weight that said, “I am a substantial pleading.” I looked up at my assistant, whose eyebrows and shoulders rose in a vaguely pitying, vaguely supportive way to remind me she was only the messenger. I looked down, flipped it open to the introduction and read the first sentence.

Or more specifically, tried to read it. Eight lines, multiple semicolons and more than a few hereins later, I stopped. And started again. And then again. While I could blame it on post-prandial lethargy, I was not that tired. The writing was simply terrible. It was one of those pleadings where half the battle was going to be articulating, in a simple fashion, what opposing counsel was asking for, before we ever got to why the argument was flawed.

Hemingway versus Faulkner

I’ve got nothing against Faulkner. He was a prolific writer who employed a stream of consciousness style, combined with complex and lengthy sentences. He received the Nobel Prize, which last time I looked was notably absent from my trophy case. But his style is not an easy read. It involves frequent stopping and returning to the beginning of a section to re-read it. Contrast that to Hemingway. Short sentences. Minimalist approach. Direct. A seasoned reader can devour more than a couple Hemingway novels in the same time it takes to take on one Faulkner. So what makes them different and how can we use the differences to draft convincing legal writing?

Keep it short

By this, I mean the sentence and the pleading. A short sentence is easy to digest. It has punch. And it keeps the reader moving forward. A short pleading is a blessing to the research attorney and the judge. By way of example, no-one reads as much as the judge and research attorneys working the law and motion department. If you take the time to simplify your argument—shrink it without losing the message—you will win over a fan. It is not as difficult as you think. It involves writing, setting aside and then taking the time to edit. Here editing means refining, not adding more.

Make it interesting

Face it, a lot of what we’ve got to address is not riveting stuff. Throw the reader a bone. Drop in something unexpected that clarifies the issue in a novel way and captures the imagination. Readers of past columns may remember historical notes about a battle tactic or the origins of the term sub rosa. We’ve reference everything from Sun Tzu to movie quotes in our pleadings. My personal favorite? Robert De Niro’s quote from Ronin,[1] “The map is not the terrain,” to support an argument for why we were entitled to a site inspection instead of just photos and a diagram. Yes, that sounds like we’d be entitled to it without a problem. But the inspection involved shutting down production for a section of a plant to the tune of $60,000 and the defendant was fighting tooth and nail. Sometimes a graphic is warranted—there is no rule against using them in pleadings. And today’s document presentation is limited only by your imagination. Those pearls make an otherwise boring pleading stand out from the crowd.

But not too interesting

Everyone knows the person who always goes too far for a joke. There’s a judicial opinion out there about a tree’s lack of standing to file an environmental suit. Very clever. But for every successful A Modest Proposal, there’s fifty poorly executed pieces. If you’re going to try to shoot the moon with your pleading, run it by a few people before you submit it. And not just the yes folks but the ones willing to question you.

A plug

Writing is as important to our craft as presenting at trial or mediation. An 800-word column  is not enough to ingrain a quantum shift in writing. If you have not taken the time to attend a Brian Garner session on writing, do yourself a favor. Sign up for the next time he is in town. Your writing will improve dramatically. He’s amusing. And not only will your judges appreciate it but your clients will thank you for the resulting rulings.

Writ large

We took opposing counsel’s argument and explained to the judge the issue and the remedy sought. Substantially under the page count, including a full page taken up by a diagram. The most time-consuming piece? The introduction. Re-written by our crew multiple times. In fact, that 200-word intro took more time than the rest of the pleading. A couple years later, when the judge was no longer on the bench, we were able to talk with him about his decision. We learned our succinctness, and the decision to use a diagram to explain the issue, carried the day.

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According to the U.S. Department of Transportation, distracted driving is a growing factor in fatal vehicle crashes. Drivers under 20-years-old represent the greatest percentage of distracted drivers involved in collisions with pedestrians and cyclists.

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Presented as part of the American Board of Trial Advocates‘ Masters in Trial on Jury Selection, September 23, 2011

In 1899 the Supreme Court of California, in Lombardi v. California Street Railway Company, 124 Cal.311, held:

The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right of trial by jury, guaranteed by the constitution. The common law excludes jurors upon the ground of actual bias, and the only important statutory exception to that rule relates to opinions based on pubic rumor, published statements, or common notoriety, in which case the juror may show that he can and will, notwithstanding such opinion, act impartially and fairly on matters submitted to him.

The prospective juror had been asked: “Do you know of any reason why you cannot give a fair and impartial trial in this case”? The prospective juror replied that he knew the plaintiff and his family, and had dealings with them for years. The juror was candid, honest and sincere in his statement, and the Supreme Court quoted Sir Edward Coke, discussing the right to trial by jury: “For all which the rule of law is that he must stand indifferent as he stands unsworn.

Wainwright v. Witt (1985) 496 U.S. 412 held: “If a juror cannot follow or is even substantially impaired from following the law, that is a cause challenge.”

California Code of Civil Procedure Section 229, Implied Bias: “The law presumes a prospective juror is biased and therefore disqualified if any of the following conditions exist: related by blood or marriage to a party or witness; had a relationship (fiduciary, domestic or business); was a prior juror or witness in litigation involving a party; has an interest in the litigation; has an unqualified opinion as to the merits based on knowledge of material facts; has an enmity or bias toward a party.”

Voir dire may influence the outcome of a trial by allowing counsel to identify and remove potentially dangerous jurors.

Keep in mind that the sole purpose of voir dire is to identify and deselect unfavorable jurors, and to arm other jurors to deal with unfavorable jurors you cannot deselect.

Jurors are disqualified from a trial if they cannot act with entire impartiality. The grounds for proper cause challenges established by actual bias include:

• Strong belief (dislike for landlord) Lawlor v. Linforth (1887) 72 Cal. 205, 206.

• Long-held belief (regarding divorce and remarriage) Smith v. Smith (1935) 7 Cal. App. 2d 271, 273-274.

• Belief not easily set aside (preconceived ideas about certain injuries) Liebman v. Curtis (1955) 138 Cal. App. 2d 222, 226.

• Party starts at disadvantage (railroad sued, prospective juror felt suits against railroads the fault of the injured parties) Fitts v. Southern Pac. Co. (1906) 149 Cal. 310, 313.

• Once a juror has admitted bias, the prospective juror cannot be rehabilitated simply by stating, “I can be fair”, or “I will follow the law”. Lombardi v. California Street Ry.Co. (1899) 124 Cal 311, 314.

• Enmity and bias are established if the prospective juror confirms that he or she will not follow the jury instructions if the law went against their conscience. Merced v. McGrath (2005) 426 F.3d 1076, 1078-1082; Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2006) Section 5:465-5:465.1).

The California Code of Civil Procedure Sections 190-237, known and cited as the Trial Jury Selection and Management Act, recognizes that trial by jury is a cherished constitutional right, and that jury service is an obligation of citizenship. It is the policy of the State of California that all persons selected for jury services shall be selected at random from the population of the area served by the court. The court may require a prospective juror to complete such questionnaires as may be deemed relevant and necessary for assisting in the voir dire process. To select a fair and impartial jury in civil jury trials, the trial judge shall examine the prospective jurors. Upon completion of the judge’s initial examination, counsel for each party shall have the right to examine by oral and direct questioning, any of the prospective jurors, in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause. The trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case. Code of Civil Procedure Section 222.5 requires the judge to allow counsel for each party to examine, by oral and direct questioning, any of the prospective jurors.

Jury Questionnaires may be used to obtain information from the jurors to enable the judge and the lawyers to select jurors that are qualified and suitable to decide the issues of fact presented in the trial. Questionnaires save time and avoid boredom listening to the same tiresome questions being repeated over and over again in court. The answers to the questionnaire must be individual, honest and complete answers. The personal information will allow the selection of those without experiences that may compromise their ability to fairly decide certain issues in the case.

Jury Questionnaires may ask if the prospective juror reads certain newspapers or magazines, listens to talk radio, or watches television, what the juror likes to do best in his spare time, whether the prospective juror considers himself liberal or conservative on social or economic issues; which organizations the prospective juror belongs to, and whether the prospective juror belongs to any organizations which support changing the civil justice system; whether the prospective juror has been employed in any law enforcement capacity, or as an investigator; whether they work in the medical industry in any capacity; whether they have relatives or close friends who are judges or attorneys, or school teachers; whether anyone in their family has been seriously injured or killed in an accident, abused alcohol, been arrested for a crime, had an on-the-job injury or served on a jury before.  The questionnaire may seek to determine if the prospective juror feels that money damages in lawsuits are excessive, or if they have beliefs about lawyers, lawsuits and the legal system which would affect their ability to be fair and impartial? Do they have any negative feelings about people who file lawsuits for money damages? Any hardship if they are selected to serve as jurors? Do they know any of the individuals who may be called to testify at the trial?

Consider whether the prospective juror is “traditional”, a boomer, generation x, or generation y?

What is the prospective juror’s opinion about large corporations changing for the better or worse?

What are the prospective juror’s opinions about the underlying cause of current economic problems in our economy today?

Does the prospective juror feel that the little guy has little chance of prevailing against powerful people, organizations or corporations?

Does the prospective juror feel that product manufactures should make their products safer?

Does the prospective juror feel that safety is a very important factor in making any decision?

Pre-voir dire investigation explores local customs and attitudes in the community. Visit the courthouse. See where jurors park their cars; visit the assembly room; become familiar with your surroundings in court before the trial commences. Talk with local counsel about the community, and look out for issues that may influence your jury pool in the community.

Become familiar with the locale where your client was injured or harmed. Learn to pronounce jurors’ names correctly. When in doubt, ask. Review as much material about your own witnesses’ backgrounds as you can. Consider a community survey for your trial strategy. Become aware of local values.

Use open ended questions:

• What do you think about …
• How do you feel about …
• Please share your feelings about …
• Please give me an example of …
• Who has had experience with …
• Who is familiar with …
• What are your thoughts?
• How does that affect your attitude towards this case?
• Can you explain how you feel about a case like this?
• Why is that important to you?

Develop your case themes:

• This was a recipe for disaster.
• This was an accident waiting to happen.
• It was only a matter of time.
• Corporate profit over safety.

Compare the McDonald’s coffee verdict to Erin Brockovich.

Question by attorney: I need to know if punitive damages are your broccoli.

Fundamentals for every voir dire examination:

• Get the jury talking … 80% juror, 20% attorney.
• Ask open ended questions.
• Pay attention to the juror’s responses to the question (A jury consultant or associate should be writing down the prospective juror’s responses).
• Ask about the critical issues in the case … for example, how do you feel about a lawsuit against a corporation which provides services to the disabled?
• How do you feel about rules governing the safety of others?

Consider using a focus group, to listen and learn from the mock jury panel’s deliberation.

Consider a mediator convening a full day focus group in which the trial lawyers present abbreviated versions of their case to a small panel of people, the panel then retires to deliberate while the trial lawyers and mediator will be able to view their discussions, and then return to the caucus based mediation.

Tips you already know:

• Be courteous;
• Be respectful;
• Be attentive;
• Be fair;
• Listen.

It is very important that you pronounce the prospective jurors’ names correctly.

Explain what you are doing undertaking voir dire.

Acknowledge that the prospective juror’s views may differ from your own views.

Ask how the prospective jurors feel about personal accountability and responsibility for their own actions.

How does the prospective juror feel about holding the plaintiff responsible for his or her choices?

How does the prospective juror feel about someone who brings a frivolous lawsuit?

How does the prospective juror feel about someone who makes a frivolous defense to a meritorious lawsuit?

Does anyone have a strongly held belief that only one person can ever be the cause of an injury event?

Does anyone have a problem with the concept in the law that the acts or omissions of more than one party can combine bringing about an injurious event?

If part of your job was to assign percentages of accountability and responsibility for those whose actions contributed or caused plaintiff’s injuries, could you do that job?

Distinguish Burden of Proof: Preponderance of the evidence versus beyond a reasonable doubt?

Distinguish between damages to the pocket book and damages to a person.

Damages to the pocket book are as if a person were a damaged machine.

Human losses are in addition to damages to the pocket book;

Do you have any problem with the concept in the law allowing damages for human losses in addition to damages to the pocket book?

Identify and beware of the defense juror who thinks:

• Lawyers and their clients are greedy;
• There must be something wrong with the plaintiff’s case if the insurance company has not settled the case;
• People should not blame others for their misfortune;
• Stuff happens;
• Loss of consortium claims demonstrate overreaching;
• People should be responsible for their unfortunate injuries;
• Verdicts in personal injury and wrongful death cases are too high;
• There are too many frivolous lawsuits;
• There are too many greedy lawyers.

Ask about pain and suffering:

• If plaintiff cannot prove damages, can you be counted on to give plaintiff nothing for the damages he or she cannot prove?
• If plaintiff has proved substantial damages, can you be counted on to award substantial damages?
• Do any of you have a set floor of damages that you would not go below in this kind of case?
• Do any of you have a set ceiling of damages that you would not go above in this kind of case?

Ask about attitudes:

• Do you think that most cases involving personal injury claims are unjust, unfair or frivolous?
• Do you feel that people are too ready to sue for personal injuries?
• Do you believe that lawsuits are costing us all too much for what they provide to society?
• Do you believe corporations get some kind of special benefit simply because they are corporations?
• Have you seen newspaper ads in newspapers or magazines, or television, or the internet put out by certain groups against jury awards in personal injury cases?
• Do you subscribe to any group that wants to change the jury system, or believe that the jury system should be changed?
• What do you think of the ads?
• What are your feelings about these kinds of cases?

SUMMARY

Objectively, voir dire is undertaken to deselect unfavorable jurors.

During voir dire it is desirable to subtly get jurors to be thinking favorably to your position. The reality is that the best you might be able to do is get prospective jurors to confront their own feelings, attitudes and biases, the limits of their experience, and challenge them to overcome their feelings, attitudes and biases in deciding the case before them.

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Heard, who was arrested at the scene on suspicion of driving under the influence, suffered major injuries including a broken jaw. Police released him to San Francisco General Hospital.  Johnson sustained a fractured lower leg. Gaines, 19, the youngest of the group, suffered multiple skull fractures and remains on life support.

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31-year-old Jason McClanahan,  a resident of Talent, CA, was rushed to the hospital in critical condition after he was hit by a car at the intersection of Garfield Street and Highway 99. The driver of the vehicle, Robert Montgomery of Danville, was travelling southbound on the highway when the collision occurred. Montgomery stopped at the scene of the accident and police are investigating the crash.

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FDA Safety Announcement here: http://1.usa.gov/vcL0qW

As printed in Plaintiff Magazine, November 2011

My partner and I were sitting in the hotel the night before trial. Across from us sat the defense lawyers for the forklift manufacturer and the company’s general counsel. Our client’s injuries stemmed from an incident where an Albertson’s employee, operating the manufacturer’s forklift, struck our client. The employee and Albertson’s said brake failure. The manufacturer said operator error. Because of Albertson’s allegations, we sued the manufacturer in order to avoid an empty chair argument.

It was bad enough that the forklift had a whip-smart local products defense lawyer. When it became clear the case would try, they added a second, a pro hac vice lawyer whose bread and butter was travelling around the country defending this manufacturer against products liability claims. To say the forklift team was a tad more sophisticated than our Albertson’s opponents at defeating liability and damage claims was an understatement.

An opening.

We had come to a grudging understanding that our case against the manufacturer was not great. But the manufacturer knew we stood a better chance of tagging the manufacturer than the Albertson’s team did with Albertson’s cross-complaint. We also knew the manufacturer’s lawyers had the capacity to slice away at our damages in a way the Albertson’s team could not. The last three weeks we had danced around the issue, neither side being able to put their finger precisely on how we might be able to ally ourselves.

The enemy of my enemy is my friend.

Until finally it clicked. Clicked in a way so obvious that we wondered why we did not figure it out before. In part, the issue was that the solution required trust—a rare and delicate commodity in today’s practice. But there it was—a classic pincer move. For those whose military history is rusty, the pincer involves sending troops around both sides of an enemy, encircling them. A variant, the buffalo horns formation, was developed and employed to devastating effect by Shaka Zulu, the 18th century Zulu leader. The descriptive name provides a good visual—the horns portions of the formation come up and around the enemy’s sides, forcing a multi-front battle, encirclement and the inability to retreat.

We realized we had the ability and common interests to place Albertson’s in a pincer with us on one side and the manufacturer on the other.

“We’ll dismiss our case against you. We’ll present a case at trial where we state that we proceeded to trial against the entity who we feel is responsible—Albertson’s—and who is trying to avoid responsibility by claiming a defect in the forklift. In exchange, you’ll tell the jury that our client suffered a horrible and gruesome injury and that he is entitled to every penny he is asking for. We think if we do this, you will not get hit with any percentage fault. But if you do, you agree to pay that percentage.”

The forklift defense team and its general counsel huddled for a few minutes. They came back.

“Done.” A handshake sealed the deal.

On the record.

The next day, before the jury panel was called up, we informed the court that we were dismissing the case against the manufacturer. You could see the surprise in the eyes of Albertson’s lawyers. They were not sure where this was headed. But they could tell it was not good.

Credibility in front of the jury.

A plaintiff and a plaintiff’s lawyer stand before a jury at the beginning of trial with a credibility deficit. Jurors come in with the McDonald’s case in their conscious, the recent and well-done Hot Coffee documentary notwithstanding. The panel arrives, tilted ever so slightly (or perhaps even more), with a belief that the injured person is there for jackpot justice. And that the plaintiff’s lawyer knows how to work the system to make it happen. If you’re very good, you don’t oversell yourself and you keep your word with the jury you’ll overcome this by the end of trial.

But when a defense lawyer says, in opening statement, that your client’s case is worth every penny you are asking for, it provides instant credibility. Which is exactly what happened in our case.

Winning.

The jury came back in an hour and a half. When you’re asking for mid-seven figures with an eight-page verdict form, a quick return causes a bit of stress. We sat on pins and needles as the clerk read the verdict. For our plaintiff, every penny we asked for. For the manufacturer, zero liability. We spoke to the jurors after. The fact that we did not hold the manufacturer responsible and the fact that the manufacturer said our client was entitled to every penny guided the jury to their quick decisions favoring both of us.

Application.

Creative approaches to resolution can have dramatic effects on your client’s recovery. In any case with more than one defendant, consider whether there might be an opening that could be mutually beneficial. And remember that the enemy of your enemy might be your friend.

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This legislative push comes amidst patient advocates and some doctors calling for increased FDA oversight. They point, for example,  to the recent recall of all-metal hip replacement devices marketed by DePuy.  The DePuy recall came too late for the thousands of patients worldwide who were seriously injured by the device.  The devices had an alarming rate of failures and many patients had to undergo costly and painful surgery to remove the devices shortly after having them implanted. Between 2008 and 2010 when the device was recalled, the FDA received over 300 complaints from the patients in the United States regarding the hip device. 

Still, F.D.A. officials have tried to address investors’ concerns about the approval process.  The head of the agency’s device division has noted that the dialogue between investors, device companies and the federal safety agency has become increasingly politicized. This further complicates any real discussion on how to make the process industry-friendly without compromising patient safety.

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