Effective Use Of Rhetorical Questions In Jury Summation

The art of persuasion comes in many forms. Recently, we wrote an article about the plaintiff bar’s embrace of Reptile theory. The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors’ brains. However, good trial counsel can effectively utilize more traditional forms of persuasion in their summations. Trial counsel do not need to bring reptilian logic into the courtroom when they can rely on oratorical techniques that have effectively swayed audiences for centuries. Just consider Shakespeare's use of rhetorical questions in Marc Anthony's funeral oration in Julius Caesar, which turned mourners into an angry mob.

In an excellent article titled, “Case for the Rhetorical Question as a Summation Technique,” which appeared in the New York Law Journal on February 26, 2014, plaintiff lawyers Ben Rubinowitz and Evan Torgan demonstrate how the use of rhetorical questions can be effectively used during jury summation to reiterate and reinforce important parts of the plaintiff’s case. As the authors discuss, the use of rhetorical questions can be used with equal effectiveness by the defense, which of course is the raison d’être of this blog.

Rubinowitz and Torgan emphasize that trial counsel should always consider the language in the New York Pattern Jury Instructions before devising a rhetorical line of questions for use in summation. These instructions not only serve as a guide for the jury, but allows trial attorneys to create powerful arguments that fit neatly into those instructions.

In their article, the authors demonstrate the use of rhetorical questions: (1) when the defendant fails to call its expert examining physician to the witness stand; (2) when a party fails to call an important witness; or (3) in the case of spoliation of evidence.

For example,  following is an illustation of their use of rhetorical questions during summation where key evidence has been lost or destroyed:

Ladies and gentlemen, there is one piece of evidence that is more important than any other piece of evidence in this case. You heard about that piece of evidence from the beginning of this case – from the opening statements forward. And you now know how important that piece of evidence is. You know that it would answer the most important question in this case.  So ask yourselves, why wasn't it produced? Why haven't you been allowed to see that [piece of evidence]?  Where is it? And why has it been kept from you? The answer is clear. It wasn't produced for one reason and only one reason. If it was produced it would have made plaintiff’s claims meaningless. If it was produced it would have destroyed plaintiff’s arguments. And if it was produced it would have destroyed his case!

The hallmark of Rubinowitz/Torgan articles on trial practice is their effectiveness in providing the “buildup” or “setup” that practitioners can use in various phases of trial practice. Rubinowitz and Torgan teach us that it is not only springing the trap that matters, but the patient preparation that makes springing the trap all the more delicious!  Shakespeare would be proud.

Adding Primary Jurisdiction To The Defense Lawyer's Toolbox

When the preemption defense is not available, it may still be possible to effectively dismiss a plaintiff's claim by arguing that the court should consider primary jurisdiction. Primary jurisdiction is a judicially created doctrine that addresses the proper relationship between court and administrative agencies. 

Raising primary jurisdiction may be particularly helpful to food and cosmetics manufacturers where a plaintiff's particular deceptive trade practice allegations may not be specifically addressed by FDA (or Nutrition Labeling and Education Act , "NLEA" ) regulation. A case in point is Astiana v. Hain Celestial Group, Inc., a putative class action in which plaintiffs alleged that the defendant's claims of "all natural" and "pure, natural & organic" were false and misleading under California law.  In dismissing the case, the California court agreed that the FDA, rather than the court, should evaluate plaintiffs' claims in an administrative setting in light of the complexity of the issues presented and the agency's expertise in the subject matter. 

An excellent explanation of primary jurisdiction is found in a decision by U.S. District Court Judge Susan R. Nelson in Taradejna v. General Mills, Inc., 909 F.Supp.2d 1128 (D.Minn. 2012):

Primary jurisdiction is a common-law doctrine that is utilized to coordinate judicial and administrative decision making. Although there is no fixed formula for deciding whether to apply the doctrine, the doctrine applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. Agency expertise is the most common reason that courts apply the doctrine of primary jurisdiction. In addition, courts apply the doctrine to promote uniformity and consistency within the particular field of regulation. . . . When the primary jurisdiction doctrine applies, the district court has discretion either to stay the case and retain jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice. Id. at 1134

In Taradejna, the Minnesota court applied primary jurisdiction to dismiss a plaintiff's case relating to the advertising and selling of "Yoplait Greek" yogurt.  As discussed in the Product Liability Monitor, Lisa Sokolowski of Weil, Gotshal & Manges LLP concludes her thoughtful discussion of the decision commenting that "Judge Nelson ultimately found that the ambiguity and murky regulatory history surrounding the FDA’s “standard of identity” for yogurt meant that the U.S. Food and Drug Administration (“FDA”) should decide whether defendants’ actions violated the law."

In addition to Ms. Sokolowski, some astute commentators have weighed in on the preemption/primary jurisdiction distinction in recent months.  James A. Becker of Reed Smith authored a well-written discussion in Drug and Device Law (11/28/12) titled "Primary Jurisdiction: A Natural Alternative to Preemption".  Glenn Pogust and Michael Gruver at Kaye Scholer authored an article titled "Preemption and Jurisdiction Defenses in Caffeine Litigation", which appeared in the New York Law Journal on July 11, 2013.  Reading these authors should provide defense counsel with a road map concerning the kinds of cases in which primary jurisdiction arguments may succeed.

Defense Lawyers: Keep This Decision In Your Back Hip Pocket

Having now completed discovery, you have provided the client with a thorough assessment of its potential liability exposure in the case. You are set for trial. 

On the eve of trial, plaintiff’s counsel serves notice that it plans to call four eyewitnesses and an expert, and introduce 18 photos and a video, none of which were provided pursuant to your earlier discovery demand or a subsequent Preliminary Conference Order. As any trial lawyer who practices in the Second Department can attest, this is not an unfamiliar scenario. But what is exasperating is the trial judge’s denial of defendant’s motion to preclude the untimely evidence from coming in at trial and effectively places the court’s imprimatur on plaintiff’s bad behavior.

Given the widespread tendency by some Second Department trial judges to “cut  slack” for those who repeatedly flaunt the court's rules regarding timely disclosure, it was refreshing to review the decision of the Appellate Division, Second Department, in Arpino v. F.J.F. & Sons Electric, 2012 NY Slip Op 08271, 201-02636 (12/5/12) which held a Long Island law firm responsible for its “intentionally false and misleading” responses to discovery demands, which the Court held could not be cured by belated disclosure. 

In the interest of full disclosure, it was the defendant who committed the wrongful conduct in Aprino, not the plaintiff. However, because this is a “defense blog”, we will discuss the importance of the Court’s holding from a defense perspective. Needless to say, the conduct at issue is reprehensible and sanctionable no matter which side commits it. 

As reported by the New York Law Journal on December 6, 2012, the Second Department cited Court of Appeals case law to the basis for its ruling.  The Court stated:  “As the Court of Appeals has noted, the failure of attorneys to comply with court-ordered deadlines has increasingly become a problem in our court system.”  Further, the appellate panel stressed that the Court of Appeals had previously found  that “chronic and incompliance with deadlines breeds disrespect to the dictates of Civil Practice Law and Rules” and stressed that court orders cannot be ignored with impunity. On the strength of these admonitions from the the state's highest court, the Second Department ruled that Suffolk County Supreme Court Justice Paul Baisley, Jr. had improvidently exercised his discretion in declining to sanction the defendant’s law firm.

The underlying facts of this auto accident case are fairly straight forward.  In June 2008, the defendants’ Ford Explorer collided with the plaintiff motorcyclist, who alleges that he sustained serious injuries in the accident.  Shortly after commencing an action against the Ford Explorer’s driver and his employer, plaintiff served a discovery demand seeking production of information and accident photos. Thereafter, this discovery was further directed in a Preliminary Conference Order. After missing the deadline for disclosure, a paralegal at the defendants’ firm advised by letter that defendants neither processed photos nor were aware of additional witnesses. This turned out to false.

In its decision, the Second Department rejected the defendant law firm’s claim that it was merely careless. To the contrary, it held that the firm’s responses were “intentionally false and misleading, and were interposed for the purpose of avoiding the defendants’ obligation to provide timely and meaningful discovery responses. The defendants neglected a court-ordered deadline and misrepresentation of the knowledge of possession of clearly discoverable material and information, without providing any excuse for doing so must be deemed willful and contumacious.”

Significantly, the Second Department held that the failure to comply with “basic rules governing compliance with disclosure orders cannot and will not be tolerated in our courts.” Unfortunately, all too often, trial courts not only tolerate and excuse this behavior to the extent that it has become almost accepted practice to “hide the ball” until immediately prior to trial. As a result of limitations placed on the defendants by the appellate court’s modification of the trial court’s order, substantial prejudice to plaintiff was prevented and appropriate sanctions imposed.

It is worth noting that plaintiff's counsel was diligent in pursuing discovery throughout.  This is not a case where plaintiff arguably could have been more diligent in pursuing disclosure.

Therefore, printout a copy of Aprino, slip it into your back hip pocket, and pull it out in court the next time you find yourself in this situation.

Plaintiff Spoliates Self And Her Case Dismissed

On August 7, 2012, the New York Law Journal reported that the lawsuit of a woman, who disobeyed three court orders directing her to undergo a physical examination by a defense medical expert in a personal injury lawsuit before she underwent spinal surgery, was dismissed due to spoliation of evidence.  The evidence that was spoliated was plaintiff's pre-surgery physical condition!  The decision in Mangione v. Jacobs (2012 NY Slip Op 22211) is attached.

In a case of first impression in New York, the Hon. Charles Markey, Queens Supreme Court, held that the plaintiff’s failure to submit to a medical exam by her adversary’s examining physician could be found to be spoliation of evidence because the alleged damage resulting from her automobile accident was surgically corrected before the defendants' examining physician could see her. 
The court distinguished the case at bar from a situation where a plaintiff needs to have life-saving surgery or any operation that would cure intense pain and alleviate injury. Under those circumstances, no spoliation would attach. That was hardly the case here, the court  ruled, where there was no medical reason why plaintiff could not have waited one more  week before having surgery to comply with the most recent of several court orders to submit to a physical examination. 

Although there were no New York cases directly on point, Judge Markey referenced a 2001 ruling in the Superior Court in Delaware in Clark v. E.I. DuPont de Nemours, WL 1482831, in which the court dismissed a suit brought by a plaintiff who underwent hip replacement surgery before defendants were allowed to conduct an independent medical examination. The Delaware Supreme Court affirmed the ruling in Clark and the U.S. Supreme Court denied a writ of certiorari in 2002 (537 U.S. 941). 

The court found that a jury instruction would not be sufficient to remedy what Judge Markey described as the “irreparable prejudice to defendants of the spoliation, where Mangione’s surgery has eviscerated the means of defense doctors and lawyers of tracing the causal connection of Mangione’s ailments to the most recent accident….” Contributing to the adverse outcome for the plaintiff was the court’s determination that plaintiff had intentionally thwarted three prior court orders. Plaintiff advised the New York Law Journal that they intend to appeal.  We do not predict success for plaintiffs in the Second Department on appeal.

Litigation Tip: In personal injury actions where it is likely that the claimant will undergo surgery to correct the condition alleged in the complaint, it is good practice to place plaintiff on notice as soon as possible of defendants'  intention to perform a physical examination of the plaintiff. However, in Mangione, it is likely that the defendants would not have obtained so successful an outcome if plaintiffs had not flouted three court orders. In the absence of a violation of a court order, it is likely that the most relief the aggrieved defendant can obtain is an adverse inference. How effective would an adverse inference be, however, when plaintiff’s treating physician is still permitted to testify at trial concerning the plaintiff’s grievous physical condition prior to surgery?  Better to get a court order and hope the plaintiff ignores it and undergoes surgery instead.

This is not really a spoliation of evidence case in the traditional sense. Rather, it is a plaintiff's effort to play fast and loose with her personal injury claims without providing the defendant a fair chance to independently evaluate those claims by a doctor of their choice. 
 

Lawyers' Use Of Internet To Influence Jurors

In an earlier article, we discussed the danger posed to an impartial jury system by the “Googling Juror.” In his article titled “Lawyers’ Use of Internet to Influence Jurors” (New York Law Journal, 6/12/12), Michael Hoenig cautions that “the danger to fair trials posed by Internet-surfing jurors is exacerbated by lawyer ‘advertising’ of their prowess or success on websites, by publishing case-specific information on firm sites or blogs or other Internet outlets, and by skillfully weaving inaccurate, misleading or self-serving messages, and ‘depositing’ them where straying jurors can ‘find’ them.” 

Hoenig concludes that these can be purposeful stratagems or innocent puffing. He points out that despite First Amendment protections, courts can and should restrict prejudicial speech by attorneys. He cautions that lawyers must be diligent in reviewing whether their adversaries (or agents) might be depositing messages about case facts or party litigants, or extraneous, non-admissible information on websites, blogs or other internet locations with the expectation that a straying juror would find the information. Even if the specific facts of a case at trial are not discussed, prospective or sitting jurors can still peruse the attorney’s website, noting biographical information, the firm’s specialties, featured clients and the “war stories,” crusades or victories many firms describe. Hoenig believes that this information likely will be passed to other jurors.

Lawyers do have First Amendment rights to a wide range of speech but they are also subject to reasonable restrictions as officers of the court. Further, lawyers are bound by ethical rules. Rule 3.6 of the Model Rules of Professional Conduct prohibits an attorney from making an “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Rule 8.4 prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation” and also states, “a lawyer or law firm shall not: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce to do so, or do so through the acts of another.”   The article discusses the facts of some of the cases that are emerging in this important area of the law

Thus, it is essential that trial counsel perform their own internet investigation concerning both the subject matter of their upcoming trials, and their adversaries' internet materials, to determine whether prejudicial information available to prospective jurors has been posted.

 

Remedies For Spoliation Of Evidence

New York state courts are increasingly turning to federal Zubulake standards when confronted with spoliation of electronic evidence issues. However, in dealing with garden variety spoliation of evidence scenarios, not involving ESI, New York courts have generally engineered their own solutions without turning to federal common law for guidance. We previously addressed how New York courts address ESI spoliation.

Pursuant to the common law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned. There may be circumstances where the destruction is so egregious that the offending party’s pleading may be stricken where no other remedy will achieve a fundamentally fair outcome.

In their article, “Remedies for Spoliation of Evidence,” published in the New York Law Journal on March 27, 2012, Plaintiff lawyers Robert S. Kelner and Gail S. Kelner provide a good overview of how state courts address spoliation of evidence and the circumstances under which a court will impose the “ultimate sanction.”

Unlike some states, New York does not recognize an independent tort claim for third-party negligent spoliation of evidence. In a 2007 Court of Appeals case, Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773 (2007), the City of New York was under a court order to preserve an impounded vehicle so that the cause of a vehicular fire could be determined by forensic analysis. Due to negligence, the City of New York failed to preserve the vehicle. Despite this negligent destruction, the court declined to establish an independent tort of spoliation of evidence, pursuant to which a tort action against the City of New York might have been pursued. In declining to establish a spoliation tort, the court explained that there was “no way of ascertaining to what extent the proof would have benefited either the plaintiff or defendant in the underlying lawsuit and it is therefore impossible to identify which party, if any, was actually harmed.” Applying this logic, the Ortega court stated that an independent cause of action was not viable because it would recognize a claim that, by definition, could not be proved without resort to speculation. However, speculative the damages that might have resulted from spoliation in Ortega,  New York courts have not hesitated to levy sanctions when a party has destroyed evidence.

New York courts have been willing to strike an offending party’s pleading when it can be shown that a party destroyed key evidence which deprived the adversary of its ability to prove its claim or defense. The court may also, in its discretion, apply any number of remedies short of striking the pleading. These remedies include an “adverse inference” (where the jury is instructed that it may infer that the missing evidence, if available, would tend to inculpate the spoliating party), or preclusion of testimony at trial. Generally, in crafting an appropriate sanction, the trial court will consider two factors first and foremost: (1) whether the destruction was willful; and (2) the resultant prejudice.  Prior to bringing a spoliation issue to the court's attention, the practitioner should document by every means possible the intentional nature, if appropriate, of the spoliation at issue through investigation and discovery. 
 

A Primer On New York Product Liability Law

Michael Hoenig’s Product Liability column in The New York Law Journal, “Complexities Abound In Product Design Claims” (January 11, 2010), provides an excellent primer  on the law of product liability in New York state and a good discussion of the leading cases. (NYLJ.com requires a subscription to access. If you cannot download the article, Mr. Hoenig  will post the article within a couple of weeks on his law firm's web site).   Mr. Hoenig devotes the body of his article to a recent Appellate Division, First Department decision, Chow v. Reckitt & Colman Inc., 2010 NY Slip Op 00013 (App. Div., 1st Dept., Jan. 5, 2010).  There, a split First Department upheld the trial court's grant of summary judgment to the defendant manufacturer of of a drain cleaner called "Lewis Red Devil Lye", which blinded the plaintiff during an attempt to unclog a floor drain in the kitchen of the restaurant where he worked.  Applying the Court of Appeals standard in Voss v. Black & Decker Manufacturing Co, the court examined the 'risk-utility balancing' calculus, which often lies at the heart of a defective design product liability inquiry. In addition to Mr. Hoenig’s “refresher” survey of the law of product design liability, he directs his readers to the commentary issued by the Committee on Pattern Jury Instructions of the Association of Justices of the Supreme Court of the State of New York, particularly PJI 2:120. For further reading, a thoughtful discussion of PJI 2:120 appears in a 2008 article "New  Design-Defect Jury Instructions: Catching 'Denny' " by Stephen R. Blacklocks, a partner in Hunton & Wiliams'  New York office.  As Mr. Hoenig states in the conclusion of NYLJ article, “Mastery of the legal principles – our survey merely scratches the surface – is indispensable in perfecting one’s advocacy.”  When your client next assigns you a new case for  you to defend, take a few minutes to review Mr. Hoenig's primer to remind yourself just how many hurdles plaintiff's counsel needs to overcome to make out a prima facie case of design defect. 

Expert Reports Ghostwritten By Counsel

Over the years, I have become an enormous fan of Michael Hoenig, a partner at Herzfeld & Rubin, who writes the Products Liability column in The New York Law Journal. More than any other product liability commentator, Mr. Hoenig has served as a muse and inspiration. His columns are thoughtful and well-written. 

Mr. Hoenig’s column titled, “When Attorneys Ghostwrite Experts’ Reports,” published December 14, 2009, is a case in point. Shortly after the column appeared, I prepared a motion for filing in the EDNY to disqualify an adversary’s expert after he confessed in deposition to not preparing his own expert report. In his article,  Mr. Hoenig poses the following questions: How much attorney involvement in the drafting of experts’ reports is permissible? Must the entire work product be that of the expert? Or, at the other extreme, would it be acceptable for an attorney to draft the entire expert’s report with the expert “adopting” it? And, if at least some lawyer input is tolerable, then what is the boundary line between permission and perdition? Federal Rule of Civil Procedure 26(a)(2)(B) calls for disclosure of experts retained or specially employed to provide expert testimony and which “must be accompanied by a written report prepared and signed by the witness.” Mr. Hoenig discusses the federal district court case law discussing the circumstances under which an expert’s failure to prepare his own report might lead to his being barred from testifying at trial. In evaluating the individual facts presented to determine Rule 26 compliance, courts will most likely base their decisions not on who actually penned the report but, rather, whose opinions and analysis the report contains. One federal district court has held that “substantial participation” by the expert in the preparation of the report is required. Even if your motion to disqualify the expert altogether does not succeed, if you can demonstrate to the trial court that much of the expert’s report was ghostwritten by your adversary, the court may be more kindly disposed to your Daubert arguments. After all, if the expert cannot be bothered to write his own report, how painstaking can his methodology be?