Courts Address Extrajudicial Expert Interference

Plaintiffs' attorneys have long alleged a "conspiracy of silence" among physicians and health care institutions to discourage and punish doctors who serve as plaintiff's experts in medical malpractice cases. Two recent cases suggest that there are extrajudicial efforts to discourage and punish doctors who testify against other doctors; and courts and juries have responded to this alleged conspiracy to silence plaintiff's experts.

In Sutch v. Roxborough Memorial Hospital,http://www.messalaw.com/wp-content/themes/messalaw-theme/docs/051712-sanctions-decisions.pdf, the plaintiff retained an emergency room physician from the Hospital of the University of Pennsylvania ("HUP") to testify about the standard of care in area emergency rooms with respect to follow-up after diagnostic testing. Apparently, an emergency room test, presumably a chest x-ray, suggested lung cancer but the patient was never advised of the findings. Due to the delay in diagnosis, the plaintiff died from late stage lung cancer.

During the discovery phase, plaintiff's counsel learned that the defense wrote a letter to HUP's General Counsel complaining about the plaintiff's expert's opinion.  The letter advised: "the plaintiff has retained one of [HUP's] emergency room physicians ... who has offered the untenable opinion that because [the Defendant Doctor at Roxborough]ordered the test, it was his responsibility to follow through on obtaining the results and advising the patient of them."Indeed, defense counsel stated further:"[Plaintiff's expert] has clearly overlooked the well-established concept of hand-off to an accepting inpatient team and I thought you might want to know that, if this is her position and plaintiff's attorneys become aware of it, it could expose [HUP] to significant liability." Clearly the intent of this letter was to encourage HUP's General Counsel to reach out to the plaintiff's expert and discourage her from testifying.

The plaintiff's counsel filed a motion for sanctions against defense counsel "for violation of ethical rules, improper conduct and obstruction of justice." During the hearing on the motion for sanctions, defense counsel said that it is common practice for medical malpractice defense lawyers to be in touch with counsel for local health care institutions about any of their affiliated physicians who would testify as experts in local malpractice cases. Because most physicians and surgeons are affiliated with local health care institutions, this means that in virtually every malpractice case, it is common practice to advise a plaintiff's expert's employer (or affiliated hospital) that the doctor testifies against other doctors.  If this in fact is the case, then valid concerns about a "white coat conspiracy of silence" exists. Clearly, physicians who are already reluctant to testify against a local colleague, could be made even more reluctant if they are aware that serving as an expert exposes them to further scrutiny from their employer.

Following a hearing on the motion for sanctions, the trial court entered an order against defense counsel advising her to refrain from contacting the plaintiff's experts or their employers. The trial court left upon the possibility of further sanctions post-trial if she found that the conduct affected the outcome of the trial.

In most cases, the plaintiff's counsel does not learn about any letter directed to plaintiff's expert's employer. He or she may be suspicious if the expert withdraws or advises that she is no longer willing to testify, but she has no proof of overt interference. If this is a widespread practice, then it should be clarified within the rules of professional conduct. Attorneys certainly have an obligation of zealous advocacy. Generally this does not include contact through third parties that would be prohibited if done directly. For example, an attorney is not generally permitted to contact an adversary's expert and attempt to persuade him to withdraw or not testify. Contacting the General Counsel for the expert's employer to discourage the expert seems to be an indirect attempt to do what the attorney cannot do directly.

In Graboff v. The Colleran Firm http://www.mmdnewswire.com/dr-steven-graboff-md-wins-lawsuit-aaos-and-colleran-firm-108119.html an Orthopedic Surgeon sued a plaintiff's law firm and the American Academy of Orthopaedic Surgeons ("AAOS") arising from his participation as an expert in a medical malpractice case. Dr. Graboff, authored a draft expert report that criticized Dr. Meller, another Orthopedic Surgeon, for failing to prevent an infection during surgery. The plaintiff's firm (Colleran) utilized Dr. Graboff's draft report to secure a settlement for their client. After the settlement, Dr. Meller initiated proceedings against Dr. Graboff with the AAOS for violations of its "standards of professionalism." The AAOS suspended Dr. Graboff for 2 years and publicized the disciplinary action. Having been ousted from the leading professional certifying board for Orthopedic Surgeons, Dr. Graboff's credibility as an expert was effectively destroyed. Accordingly, Dr. Graboff sued the Colleran firm and the AAOS claiming that their joint conduct damaged his reputation and caused economic harm. The jury agreed and found the AAOS acted improperly for disciplining him for authoring a draft report.  He was awarded $380,000 in damages and can now accurately state that he won a lawsuit against the AAOS for improperly suspending him.

Both of these cases demonstrate that there is a great deal of "behind the scenes" activity going on to persuade or discourage potential experts from participating in medical negligence matters. Given Newton's Third Law of Motion, which applies with equal force in litigation, every action creates an opposite and equal reaction. Therefore, as extrajudicial efforts increase to discourage medical experts from testifying in certain cases, we can expect equal efforts to respond to that conduct. These instances suggest that this conduct will not go unanswered.

Philly Priest Abuse Trial--Shifting Narratives

 I have linked to two interesting pieces about the priest abuse trial taking place in Philadelphia. A former Philadelphia Inquirer reporter, Ralph Cipriani is blogging about the trial daily and his coverage is excellent. Philadelphia Priest Abuse Trial Blog    The Philadelphia Inquirer's coverage is more perfunctory.  Philadelphia Inquirer    

What is interesting about this case from a trial strategy perspective is the narrative of the various parties. The Philadelphia District Attorney's Office is currently prosecuting Monsignor William J. Lynn, the Secretary for Clergy for the Archdiocese of Philadelphia under Cardinal Anthony Bevilacqua, with two counts of endangering the welfare of a child and conspiracy.  Father James Brennan was also charged and is being tried for attempted rape of a 14 year old boy in 1996; and another priest,  Edward V. Avery, pleaded  guilty pre-trial to multiple counts of child abuse and conspiring with Lynn.

The trial arises from two lengthy Grand Jury investigations that began in 2002. The first Grand Jury released its report in 2003 and documented more than 100 victims of child sexual abuse by at least 63 priests. Because of Pennsylvania's then-existing statute of limitations, the terrible crimes outlined in the report could not be prosecuted.  In January 2011, a second Grand Jury indicted Lynn, Brennan and Avery (along with two other lay teachers) following a lengthy investigation. 2011 Grand Jury Report    During the Grand Jury investigations, Cardinal Bevilacqua, Lynn, and other priests testified about the church's practices for investigating and reporting credible allegations of sexual abuse involving minors. Cardinal Bevilacqua testified that he delegated the issue of clergy abuse investigation almost completely to Lynn and had no real day-to-day knowledge of the specifics aside from what Lynn advised him; he also claimed poor memory and denied any direct knowledge of Avery or Brennan's abuse of children.  During his grand jury testimony, Lynn explained  that he was exercising his own discretion as to how he addressed problem priests; and did not implicate the Cardinal in the decision making process.

The Archdiocese's strategy during the Grand Jury phase attempted to insulate Cardinal Bevilacqua from any liability or responsibility for abusive priests. Instead, Lynn, retained executive control over the investigation and discipline of problem priests without the need to consult the Cardinal. The Archdiocesan presented the narrative that Lynn had ultimate authority over such personnel decisions subject only to the duty to report his final decisions to the Cardinal. In other words, "don't blame the Cardinal, if only Lynn had told him everything, he would have promptly acted."  Or, the poor Cardinal was betrayed by the inaction of his subordinates. Lynn was indicted; and the Cardinal merely chastised in the report.

Several weeks before the trial, the Cardinal died. After the Cardinal's death, and burial with full accolades of the Vatican and catholic community,the Archdiocese suddenly discovered a 1994 memorandum Lynn authored for the Cardinal in an old safe. The memorandum identified 34 problem priests with histories of abusing children. Cardinal Bevilacqua, himself a lawyer, responded to the memorandum with an order to shred the original and and destroy all copies. Despite the Cardinal's order, a copy of the memorandum escaped the shredder and found its way into the personal safe of Lynn's predecessor.

The trial evidence against Monsignor Lynn has largely consisted of blood curdling stories of now-adult males coming forward to tell their tale of horrid abuse at the hands of trusted priests while they were children.  Some of these victims have grown up to be doctors and priests themselves; other have led very troubled and difficult lives. According to courtroom observers, these stories have brought tears to the eyes of many of the jurors.  In addition to victim testimony, damaging documents have been introduced from Lynn's own and Archdiocesan files that corroborated the abuse; and demonstrated the church's priority to prevent disclosure and avoid any scandal. Lynn's grand jury testimony has also been presented by prosecutors reading from transcripts.

After the death of Bevilacqua and the "discovery" of the "shredded" memorandum, Lynn's attorneys changed the narrative from the Grand Jury strategy of "if only the Cardinal had known" to "Cardinal Bevilacqua stopped Lynn from doing the right thing." Instead of Grand Jury Lynn, an empowered executive with control over the lives and careers of hundreds of Archdiocesan priests, his lawyers have attempted to portray him as really only a toothless toady of the Cardinal. According to the new narrative, the Cardinal's response to Lynn's 1994 "shredded" memorandum showed that Lynn was powerless to discipline or report problem priests; he was merely acting as a puppet to the whims and desires of his Cardinal-Archbishop who intentionally ignored Lynn's pleas to take care of the problem priests. Essentially, Lynn's attorneys have raised the Nuremberg defense, i.e. "I was just following orders."Nuremberg Superior Order Defense

The prosecution's narrative presents Lynn as a knowing accomplice and enabler of priests who were abusing children. According to prosecutors, Lynn was merely following a long-existing institutional practice of ignoring credible allegations of abuse to avoid scandal to the church; and minimize civil liability arising from victim lawsuits. At trial, the prosecutors have introduced a broad spectrum of evidence against Lynn that spans many years and multiple abusers. Lynn himself has no history of abusing anyone. Accordingly, the concern of the prosecution must be creating a compelling coherent narrative that explains the connection of these various criminal acts committed by multiple abusers decades ago to the child endangerment and conspiracy charges against Lynn.  Based upon courtroom accounts, the prosecution appears to be using Lynn's new narrative to weave a very compelling story of an institution more concerned with dissent from authority than child abuse; and Lynn as the chief enforcer of conformity.

As described by former Philadelphia Reporter Ralph Cipriani:

If you're a priest in the archdiocese of Philadelphia, you can "act out sexually" all you want. You can get away with it for years, even decades at a time, while they transfer you from parish to parish, in between recuperative stays at St. John Vianney's, the friendly archdiocese clinic for sex abusers. Just make sure that you don't disobey an order from the archbishop. Because in the archdiocese of Philadelphia, that's the one unpardonable sin for which there is zero tolerance.

The prosecution narrative about a church more interested in punishing dissent than child abusers is particularly powerful because it is consistent with Lynn's defense team's central narrative. In both narratives, Cardinal Bevilacqua is a strict authoritarian figure who tolerates no disobedience from his subordinates. Yesterday's prosecution witness was a well-respected  pastor who was disciplined and "sent to the woodshed" for years because he questioned the Cardinal's decision to transfer a problem priest to his parish. Specifically, the priest told Lynn that the archdiocese had to stop its "practice of transferring problem priests around." As explained by the church's archives and the testimony of Father Michael C. Picard,  merely questioning the Cardinal's decision brought down a total "s@#$storm" on Picard's head. According to Cipriani who was present during the trial testimony: 

A meeting of the priest personnel board was convened by Msgr. Lynn and Cardinal Bevilacqua. All 15 board members unanimously agreed that Father Picard had disobeyed the archbishop. Father Picard had now landed somewhere in between double secret probation and the Inquisition.

Bishop Joseph R. Cistone, then assistant vicar for administration, wrote the cardinal, saying that Picard had committed a grave offense. "He did disobey the archbishop, and this is what's out on the street," Cistone warned. And worse, Father Picard "denied being disobedient."

In the secret archive files, Cardinal Bevilacqua stated, "He will not tolerate even the appearance of disobedience by any priest." Father Picard's act of disobedience was exacerbated because "He made public what should have be kept private ... If he had any concerns about a priest, he should not say anything."

The cardinal's men discussed having Father Picard write a letter of apology to Father Mills, another letter of apology to Cardinal Bevilacqua, and finally a third letter of apology to every priest in the archdiocese. At the end of the meeting, the records noted, the cardinal thanked the members of the priest personnel board for their "wisdom and support."

To support the prosecution narrative, this testimony establishes, without a doubt, that the Cardinal and Lynn were eminently capable of swiftly and fiercely disciplining priests when the issue is important to them personally. In a situation of perceived insubordination, the full weight of Archdiocesan discipline is brought down to bear. But child abuse,. . . that is a matter that can wait or even be ignored. The wheels of accountability and discipline appear to move much more slowly to punish abusers, if at all; than dissenters.

Equally as important for the prosecution's narrative is the fact that at least one priest, Fr. Picard, had the fortitude to question the Cardinal's decision making; and in fact, the problem priest was not transferred to his parish. Accordingly, the Picard example demonstrates that Lynn was not powerless to to say "No" to the Cardinal, it's just that he lacked the courage to accept the career consequences of questioning the Cardinal.This is fundamentally different than what was at stake for the "Superior Order" defense in Nuremberg. There, the military officers at least could assert that they themselves would have met the same fate as the death camp victims, death,  had they disobeyed orders from a superior.  It will be interesting if the jury views  the possibility that Lynn would have had his career stalled any more sympathetically than the Nuremberg Tribunals viewed the Superior Order defense. Despite the possibility of execution  for military insubordination, the Tribunal explicitly rejected the idea that an unlawful superior order relived the executor of the order from legal responsibility.  Nuremberg Principle IV

The defense is attempting to establish the narrative that Lynn merely followed a sacred vow of obedience to follow the Cardinal's directives. The Picard example is equally supportive of this particular narrative. From the Lynn defense team's perspective, the disciplining of Picard illustrates the primacy of a priest's duty to be obedient to his bishops and superiors even in the face of competing moral or civil responsibilities. In order for this narrative to be palatable, the defense must establish that a cleric's duty of obedience is every bit as significant as a human's moral responsibility to another person. In my opinion, this is a difficult narrative to sell to a jury comprised of lay people. More importantly, the prosecution may present the earlier narrative presented during the Grand Jury investigation of Lynn, the empowered executive, to impeach the new narrative of Lynn, the powerless subordinate who was simply following orders.

As described in my earlier focus group post, my opinion about the palatability of the  "Superior Orders" defense to a lay juror is ultimately irrelevant. As the comments to the Priest Abuse stories in the Philadelphia Inquirer and on Cipriani's blog make clear, this is not a story where individuals are particularly persuadable. To folks who believe that the catholic church is a benevolent organization under siege by secular forces that are using the abuse crisis to attack the church's moral authority, Lynn's defense may indeed fall on sympathetic ears. To folks who believe that the church is a hypocritical organization that harbored pedophiles for decades, the prosecution's narrative is completely consistent with their own perception and will be readily accepted. In other words, both sides will pluck nuggets from the evidence that support their competing views.

The same principle is equally as true with respect to the DA's case against Fr. Brennan. The prosecution's narrative is one where a trusted family friend ingratiated himself with an overwhelmed mother struggling to raise her troubled teenaged son in order to satisfy his own unnatural urges. In this case, Brennan's accuser has been consistently inconsistent in his various retelling of what happened during a sleep over at the priest's house in 1996. To the Grand Jury, the victim apparently testified about forced anal penetration; at the trial, he testified about being fondled while wearing gym shorts. Brennan's victim maintained contact for years with his alleged abuser and offered inconsistent testimony at a church hearing about the events. The victim has had a troubled life of petty criminal convictions, desertion from the military, and substance abuse. But Brennan's story is equally odd. He testified that the then-14 year old boy coerced him into allowing him to use his laptop to view pornography, engaged him in explicit sexual conversations; and shared his king-sized bed. And the victim's mother testified that both Brennan and her son reported soon after that the night did not go well; that the boy viewed pornography on the Brennan's computer; but that she did not know what precisely happened that evening. She also testified about Brennan's alcohol abuse and  troubled family life. (Apparently, evidence of Brennan's inappropriate relationships with teenagers at a local high school reported in the 2011 Grand Jury report will not be presented to this criminal jury.)  The prosecution's narrative is that a victim of childhood sexual attempts to suppress his own memory and details of that event; and that early abuse results in a lifetime of effects and problems. Under that narrative, the victim's troubled history and inconsistencies are consistent; and the alleged abuse is completely corroborated by Brennan's details of a night where an adult priest appeared to abdicate his role as an adult. A victim orientated juror is likely to pick out the portions of evidence favorable to the preferred narrative and even view the inconsistencies and criminal background as being totally consistent with a history of childhood abuse. They will also have a problem with Brennan's own admission of a sleepover with a teen involving porn and bed-sharing. A defense orientated juror will seize on the victim's inconsistencies under oath and criminal background as being evidence that the claims against the church are largely false and exaggerated.

Absent a device to read the narrative playing in the juror's heads, it is impossible to predict how the jury will ultimately decide. Presumably, the Lynn defense team has selected the jury carefully and perhaps conducted a focus group to determine whether the "Superior Order" defense has narrative appeal. Likewise, Brennan's defense team has calculated the risk of relying upon a defense that places huge reliance on jurors simply not believing the victim despite some corroboration that the night went terribly wrong. Given Brennan's past, it is extremely unlikely that he will take the stand to offer his version of that night's events. By the time of deliberations, the jury will have been overwhelmed by story after story of priests taking advantage of young males. It is difficult to predict the effect of that evidence on the jury's perception of priests generally; or priests that take an interest in young boys specifically. What is true is that both sides have presented ripe low hanging fruit to construct opposing narratives; and often the same fruit will be used in different ways to complete their preferred narrative.

Focus Groups

"Is this going to be on the test?" Much to the chagrin of pedantic professors, shrewd students from time immemorial have asked this simple question. And trial attorneys need to ask it themselves when preparing their case. Like the student faced with a complex body of materials before an exam, an attorney's file contains hundreds of factual and legal issues. Knowing what is going to be on the test is as helpful to the trial lawyer as it is to the shrewd law student.

The "test" for a trial lawyer is the verdict form.  And the answers are the jury's completed responses. One of the best tools an attorney can use to learn the likely answers are focus groups. Our firm uses focus groups to learn the answers to the test before trial. By presenting the case first for a focus group, an attorney learns what facts and arguments are truly important to the verdict. More importantly, presenting a case for a focus group provides invaluable information about jury deliberations, a part of the case that even seasoned attorneys have little insight.

Watching a focus group deliberate is truly a life changing experience for an attorney who is used to standing outside the deliberation room pacing to await the verdict. The first lesson learned is how few jurors are truly persuadable. Instead, most jurors build their own narrative very early in the presentation and maintain it to the ultimate verdict. In focus group exercises where the jurors are polled about their likely decision at the various stages of the presentation; very few of them actually move or change their decision. What is most surprising is how little deviation occurs from the first poll conducted after a brief summary statement of the case.  Defense orientated jurors tend to assemble facts and arguments selectively from both presentations that support the defense perspective; and plaintiff orientated jurors do the same. In most exercises, there is only a very small minority of jurors that actually change sides after hearing the more detailed presentations from both sides. In other words, while jurors state and represent that they will keep an open mind about the evidence throughout the case, very few of them actually do. This suggests that jury selection is the most important stage of the trial; followed in importance by a strong coherent opening statement. Even the most effective advocates with compelling presentations fail to sway jurors orientated to their own particular narrative. The key is selecting the jurors who are likely to be most receptive to the narrative favoring your client; and tailoring the presentation to the arguments that are consistent with that narrative.

Intuitively, we know the same principle from US politics. A candidate debate rarely sways a significant percentage of voters, and national elections are decided by a small slice of undecided voters. What a debate can do is affect the voters that are in play, or sway the tiny percentage of voters that are persuadable.  The same principle becomes apparent through a focus group exercise.

In other words, careful trial preparation requires more listening than preparing for advocacy. It is critical to discover the prevailing narrative of sample jurors to the dispositive questions in this case. The strength of the arguments often bear little relationship to how the jurors will answer the questions. Many focus groups use instant feedback meters that provide information about arguments that individual jurors find helpful or persuasive. It is very disconcerting to watch a juror whose meter consistently finds your presentation and particular arguments "helpful," but answers the questions adverse to your client. Indeed, the juror may find the argument helpful, but he or she will make it fit their narrative.

Trials are not attorney competitions where the jury is being asked to vote on who was the most effective advocate. Success depends upon how the jury answers the actual verdict questions. After observing several focus group exercises, and evaluating the data, it is clear that the shrewd student has the correct approach to trial advocacy. Its all about the answers to the test. And the only way to get true insight into the answers is to find out how your likely jurors are going to answer those questions. Absent a focus group, it is very easy for an advocate to mislead him or herself into what arguments are likely to be persuasive and win the day. We need to start advising our clients that what the attorneys and clients think are important to the case are necessarily secondary to what likely jurors think is important. Conducting a focus group is an important tool to educate yourself and your client

Jury Awards $1 Million in Politically Motivated Employment Discrimination Case

NY Discrimination Verdict This is just a brief news report of the verdict but I believe that this case is part of an increased trend in employment cases against public employers, which is politically motivated job decisions where race is also a factor. The Plaintiff alleged discrimination based upon both his politics (Democrat) and race/national origin.(South Asian/India).  The jury apparently found that race discrimination played a role in the plaintiff's demotion. It is unclear from the article as to how the jury found with respect to the political claims. Given the unfortunate history of race and politics in public housing, it is probably difficult to separate one from the other.  In that regard, many Housing Authorities have been subject to litigation over historical practices involving race-based housing placements and discrimination; and race based employment.  Typically, these lawsuits were brought by African-Americans against Caucasians to secure greater access to public housing and employment opportunities.  As this country becomes more multicultural and diverse, it appears as though we will see more claims brought by other ethnic group members who believe that they have been discriminated against in housing or employment. In some cases, they may involve claims brought by one minority group against another.  In other situations, they will involve claims of "reverse" discrimination. Most likely, politics will continue to play some role.

Fla Jury Awards $100M in Sexual Abuse Cases-Symbolic Awards.

http://www.washingtonpost.com/national/on-faith/fla-jury-awards-100m-against-roman-catholic-priest-in-sex-abuse-case/2011/11/10/gIQA64YW9M_story.html
Here is a great example of what I would like to call "symbolic" jury verdicts.  I say "symbolic" because they are completely uncollectible and the chief purpose seems to be to generate news coverage and publicity for the plaintiff's attorney.  In this Florida case, the trial was essentially undefended by any solvent party.  It basically involved standing in front of a jury and telling them about horrible crimes and then asking them how much should be awarded to deter that type of crime. The facts are heinous and there is really no limit or guideline as to how much is appropriate to award.  I mean, why not $1Billion or $2Billion? Why not $5Million or $20Million.You see these verdicts against drunk drivers, rapists; and other criminals who rarely show up at trial to defend the case.  One of the more infamous verdict of this type is one a Pennsylvania attorney had entered against Iraq, the Taliban and Osama Bin Laden in the amount of $104 Million. Not surprisingly, neither Bin Laden, Saddam Hussein, nor the Taliban appeared to defend the case; and not one dollar has ever been collected from any of them. 

In fact this Florida trial was a complete defeat for the actual plaintiff.  Here is the pertinent part:

A separate lawsuit filed on Susana’s behalf against the archdiocese was dismissed because it came after the statute of limitations had passed, but Herman is appealing that ruling.

You see, the Archdiocese has the money--not the priest.  He lost the real case and is hoping to have that judgment reversed on appeal. Although the attorney in a self congratulatory fashion suggests that the symbolic award is helpful:

“It sets a standard,” said attorney Jeff Herman, who represented Andres Susana in the case against the priest, Neil Doherty. “Now we know what a jury thinks about these cases. No. 2, it sends a message that we hope will protect other children.”

In actuality, awards like this set false expectations and create impediments to realistic evaluations of these cases.  As terrible as the facts of these cases are, they can be very difficult to win or even move forward against the parties who can actually pay.  As disclosed in the article, the statute of limitations is a very formidable barrier to any suit at all.  But even assuming that the litigant can get around the statute of limitations, a jury is unlikely to award such extravagant sums.  Even angry jurors may not want to award an amount that effectively transfers the wealth of an entire solvent organization  to an individual and it's attorney. Furthermore, these cases are often brought in magnet jurisdictions like Miami (Dade County) or Philadelphia where jurors historically do award amounts that are well above the mean of other jurisdictions.  After publicizing a $100 Million award for your own personal gratification and ego, how does an attorney then realistically counsel an individual client about the actual worth of his or her case if brought against a solvent party?A verdict against a serial rapist in Miami-Dade County sets no standard for the amount a jury is likely to award against a solvent party in a moderate to conservative jurisdiction.  There are many counties in the United States where the record jury verdict ever is less than $1Million.

These "symbolic" verdicts are not uncommon.  In many situations, the actual amount recovered is subject to a separate "high-low" agreement; or an agreement to proceed against the carrier only for the amount of the defendant's insurance coverage. In those cases, the plaintiff's attorneys often publicize the higher jury award, without really disclosing that their client's recovered nothing or only a fraction of the actual amount.  At least with respect to this Florida article, the body of the story accurately reports that the judgment will never be collected.  But realistically, assuming that there are hundreds of victims of sexual abuse in Miami; and this is the "going rate" for an individual case of abuse; it would not take many of these types of verdicts, if collectible, for the entire wealth and assets of the Archdiocese of Miami to be transferred to a few abuse victims and their attorneys. So, if this is the "standard," innocent catholic school teachers, janitors, and social workers--with no involvement at all in the scandal-- will lose their jobs and means of earning a living.  This is putting to one side, the opportunity for appellate courts to set aside a verdict that is the product of prejudice and passion or to reduce the punitive damage award it it bears no relation to the compensatory damages or wealth of the defendant.

But most people will not bother to read the whole article so the verdict will have it's desired effect.  The media will record the record setting verdict in the headline, and most folks will not read further. The plaintiff's attorney will be invited on talk shows, his web site and promotional materials will list the record setting amount as a "representative award."

I leave it to your own good judgment to decide whether symbolic uncollectible jury awards are a proper use of judicial resources or nothing more than a cheap cruel publicity stunt. There will likely be litigation involving the Jerry Sandusky victims against Penn State, the Second Mile Charity, and other individuals who could have and should have prevented the assaults. Like it or not, there will be a fixed "pie" of money to pay off all these potential victims as defined by the collectible assets of the solvent parties.  Sandusky likely holds all of his personal assets in common with his wife, which are largely safe from execution; and he can be expected to file bankruptcy.  Joe Paterno and the other individual defendants likely have similar arrangements that effectively protect their assets.  Institutions like Penn State and Second Mile may also also have defenses and impediments to collecting large judgments. Neither Centre nor Dauphin County, where cases may be brought against Penn State, bear any relation to Dade County, FL. As a Commonwealth University, cases against Penn State may very well have to brought in Centre County, the location of the university or Dauphin County, a venue designated by statute where cases against the Commonwealth may be brought. It is unlikely that residents of those areas will have any incentive to render awards likely to bankrupt one of the area's principal employers.

As an aside, I have participated in cases where graphic horrific sexual abuse has been admitted and established by the insolvent perpetrator; and the issue has been the responsibility of a solvent institution to protect or guard against such abuse from occurring.  In my experience, prospective jurors very quickly separate themselves from the victim, and look for reasons why the victim's misfortune would not occur to them.  In other words, as strange and bizarre as it seems for the 200 plus pound assistant coach (Penn State's McQuearey) to walk away from the actual sodomy and rape of a 10 year old; the same thing happens to jurors psychologically in cases that involve suits against persons other than the actual perpetrator; they walk away from the situation psychologically.  They look for reasons why the victim is not like them; and that they would have made different choices than the victim so the abuse would have never occurred.  They effectively walk away from the horror experienced by the victim; minimize the institutional responsibility of the institution; make the case about the victim's choices to associate with the perpetrator; and shockingly, look for character flaws that suggest that the victim brought it upon him or herself.

Again, I leave it to you to decide whether there is any purpose to these symbolic awards other than attorney advertising and promotion.

War Story No. 1

Every trial attorney has war stories.  Some of them are even true.  Many defense clients do not want attorneys to publicize even favorable results; and they certainly don't want their defense attorney commenting on a bad result.  Unfortunately, this means that most legal orientated stories about trials in the press are usually one sided press releases from the Plaintiff's attorney followed by the standard: "Defense counsel ........... was unavailable to or (unwilling) to comment on the outcome of the trial."  This is a disservice to folks that actually would like to learn about the defense perspective. Here is a true story from an old trial; names and identifying features have been deleted to spare the actual clients and participants.

Once upon a time, I tried a case where the plaintiff claimed that he was struck by Styrofoam coolers that had fallen on his shoulder and caused an aggravation of a rare skin condition.  I was defending the property owner that set up the display of coolers in an archway over an aisle.  The coolers fell from a height of about 8 feet. The impact allegedly caused a preexisting skin condition to fester resulting in deep black necrotic sores all across his upper arm and collar bone area. The plaintiff was attempting to avail himself of the "eggshell skull" legal doctrine which holds that a defendant tortfeasor takes its victim as it finds him.  In other words, if the plaintiff is unusually susceptible to injury or harm; or suffers greater harm than one would anticipate; then the defendant is still responsible for all the harm suffered--even if a normal person would have sustained no harm. The plaintiff's injuries were documented with graphic photographs that showed deep ugly bruises, scabs, and scarring over the entire affected area.

The plaintiff claimed that he contracted the skin condition through exposure to "Agent Orange" while serving in Vietnam.  His voluminous medical records from the Veterans Administration repeated that history, or story, as to how he developed the condition.  One medical doctor from the local VA actually published a journal article about this plaintiff; and what he believed was the development of "Bechet's Disease" from chemical exposure.  Bechet's Disease, like Tay-Sachs or Sickle Cell, typically affects a particular ethnic group; in this case, people of Turkish or Middle Eastern descent. The plaintiff, however, traced no descendants to the Middle East.  He did have a history of multiple civil claims where minor injuries allegedly caused widespread aggravation of this condition.  Furthermore, the VA had approved a full disability status that included the use of a motorized wheelchair and handicapped modified van. He had produced various documents reflecting attempts to recover compensation through a trust established for Vietnam Veterans exposed to Agent Orange. His civilian dermatologist diagnosed him with Pyroderma Gangrenosum and treated his various flare ups.  He also treated with a civilian internist for his other medical issues.

I retained an expert dermopathologist who reviewed the skin photographs and records.  The expert opined that he was suffering from cutaneous artifactual disease, a form of Munchhausen's Disease, where the patient causes the lesions himself for secondary gain or psychological reasons. He believed the sore pattern shown in the photographs was consistent with some form of intentional acid burning using a gloved hand. Although the expert was confident in his opinion, defending the case on this basis was very risky.  We were essentially calling an injured  Vietnam Veteran a liar; and if the jury believed the plaintiff, then they were likely to award a huge verdict to compensate him not only for the injury, but also for the insult upon his honor.  Suffice it to say, that I was very concerned about this defense strategy.  It was the proverbial home run swing; either we won the case outright; or the verdict would be very large.

We tried the case before a judge who was generally very sympathetic towards personal injury plaintiff's. He was very skeptical of our defense strategy; and indicated that he would give the plaintiff wide leeway to go into the specifics of his military experience in order to establish the credibility of his condition and causation. The plaintiff had been convicted of certain crimes outside (before) the ten (10) year period when they were generally admissible under the rules of evidence; and the judge already ruled that the convictions were inadmissible.  One of the convictions was a minor drug offense in the early 70's, but the other was a conviction for statutory rape for which he did real prison time until the early 80s. the judge was clear that I was not to reference them or mention them even though the plaintiff would be able to testify about his heroic activities from this time. During direct, the plaintiff spent a great deal of time explaining his military service in Vietnam.  He testified that he served as an infantry man "in country;" was wounded by stepping on a "Punji Stick;" treated at a "China Beach" hospital facility; and that he was exposed to both "Agent White" and "Agent Orange" during his service, which he explained were defoliants used on rice paddies and jungle cover respectively.  His testimony was quite colorful: he referenced fire fights with "Charlie;" buddies that never came home; his time in a military hospital recovering from his wounds; and the disdain of his own countrymen when he returned stateside.  At one point, he became quite emotional and teary eyed in discussing his service and the terrible things he saw "over there."

In preparation for trial, things you looked at over and over again can suddenly become frighteningly significant.  During his pretrial deposition, he testified that he graduated High School and gave his date of birth.  As I prepared my cross examination and read his deposition, I did the math.  He was born in 1954 and would have been 18 at the time of his High School graduation in 1972.  Given my knowledge of history and the timing of the Paris Peace Agreement's end of hostilities in January, 1973, I was skeptical that a person could graduate High School in June,1972 complete basic training, complete infantry training or specialized training, and then ship off to Vietnam to participate in active combat. Significantly, his drug arrest in the fall of 1972 and conviction in early 1973 would have placed him in the United States during the only real time he would have had an opportunity to gain any combat experience. But there was always the possibility that he skipped a year of high school, or that he was simply lying about graduating high school which would have been far less significant than lying about combat experience while chemicals rained down on his head. I also could not preclude the possibility that he served in some capacity before Saigon actually fell in 1975; and even troops assigned to the US embassy abandoned Vietnam.  Absent actual military records that proved he was a liar, I was very concerned about cross examining him about his alleged combat career.

We had requested actual service records from the plaintiff but and were advised that they were unavailable.  We also sent a request to the DOD's record repository but did not received a timely response before the short discovery time allowed in this jurisdiction.  However, within the VA records we did receive, the physicians noted a history of service in Vietnam, even though the service was never confirmed. This trial took place during the infancy of the internet and Veterans Groups were not as aggressive as they are today in  rooting out false heroes through checks that allow verification of certain awards or commendations that would prove service overseas or in combat. Accordingly, I decided to obtain other records that showed that he was in the United States during the relevant time.

Through a conversation with plaintiff's High School's registrar, my paralegal obtained high school records that confirmed a graduation date in June 1972; and service on the newspaper during the Spring of 1972.  (The registrar actually faxed us the yearbook page). I did have the county criminal records confirming that he was "stateside"  in late 1972 and early 1973.  I also contacted the local Vietnam Veterans Group who confirmed that he was not active or even eligible (according to their records) to be a member of their organization because he has not earned the Vietnam Service Medal ("VSM") which was awarded to all service members who had served in the Vietnam conflict. This effectively precluded the possibility that he served in Vietnam in some other capacity between 1973-75. The President of the local Vietnam Veteran's organization was so outraged by the story that he indicated that he would be willing to testify that the plaintiff was not a Vietnam- era veteran according to the records provided by the DOD of eligible members. 

Unfortunately, we had a number of admissibility and disclosure issues with some of this material.  Generally, an attorney is not permitted to introduce extrinsic evidence solely to impeach a witness on a collateral issue.  In our case, whether plaintiff was or was not a combat veteran was arguably collateral to the issues in the case.  Presumably, the plaintiff could recover for an aggravation of a skin condition whether he contracted it in combat or by some other manner. Although the plaintiff had certainly "opened the door" to much of this evidence by voluntarily testifying about his combat experience, I was fairly confident that this particular trial judge was not going to allow a mini-trial within our trial about whether plaintiff actually served in Vietnam.  Given that the VA records on their face appeared to confirm "Agent Orange" exposure, we had not filed a specific motion before trial disclosures were due to compel production of plaintiff's actual military or school records.  We certainly had not identified the High School Registrar or County Vietnam Veteran's President in pretrial disclosures as trial witnesses. Accordingly, there was a distinct possibility that the trial judge would not allow us to introduce these recently acquired documents or witnesses to impeach plaintiff on his claim of combat experience or "Agent Orange" exposure. In practical terms, the court could decide that I was stuck with the plaintiff's answer to any of my questions on these subjects and that I could not confront him with or introduce documents that tended to show that he was lying; introducing witnesses would even be more of a long shot. From the jury's perspective, cross examining about these issues could seem like I was just casting unwarranted aspersions on a war hero's character.

I have always had confidence that the truth ultimately comes out in a trial whether the parties like it or not.  I was very confident from our own investigation that the plaintiff had never served in combat in Vietnam.  Accordingly, I took a calculated risk to cross-examine him on the subject.  To minimize the risk, I first asked him questions in the hope he would dig himself in deeper.

Here is the cross examination as best as I can remember it:

Me: Sir, I believe you testified that you completed a full combat tour in Vietnam?

Plaintiff: That's correct, I completed one full tour, but was injured during the second, so technically I never completed that tour?

Me: So, if I understand how tours worked, you would have been "in-country" for at least a full year; and part of a second? 

Plaintiff: That is more or less true, but there were 30 day extensions and leave. . . it was basically a full year from "boots down" in Vietnam to "wheels up" when the plane took you off to go back home.

Me: So just to get the dates right, you were definitely in Vietnam at least a year before the January 23, 1973 ceasefire that ended combat operations by US troops according to the Paris Peace accords--because if I understood your testimony, you were definitely serving in a direct combat role as opposed to support operations for the South Vietnam Army. .

Plaintiff: Well the war didn't end completely until 1975, but my first tour definitely started more than a year before combat operations ended in 1973; and we were definitely working on our own and not supporting ARVN.

Me: So your "boots down" date was sometime before January of 1972?

Plaintiff: I don't have great memories of that date so I can't give you the specific date, but it was definitely before January of 1972; maybe even 1971.

Me: In any event, you were certainly in Vietnam in June, 1972; and this was part of the period of time that you were exposed to Agent Orange?

Plaintiff: Yes, they were spraying it all the time over there

Me: Would you agree that they did not spray Agent Orange in Holidaysburg PA on June 17, 1972 which was the date of your high school graduation?

Plaintiff: . . . . [indignantly] I don't know what you are trying to imply, but I would be happy to go home during a break to grab my service records and give you dates and times when I was over there

Me: Well in your deposition, you gave your birthday as 5/16/54 correct?

Plaintiff: Yes

Me: And you testified that you graduated high school at Hollidaysburg?

Plaintiff: yes

Me: Would you agree with your graduation date, according to Hollidaysburg High School, was June 17, 1972--and I even checked with the school to make sure that you didn't graduate early?

[Remarkably and luckily, the Plaintiff's lawyer was so shocked that he didn't even object]

Plaintiff: Well, I could have been "boots down" a little later than I thought?

Me: Well, you had to complete basic training sometime in the summer of 1972, so even if you left right after graduation, you couldn't have even completed it before August, right; then with specialty infantry training, it would really be stretching to think you were "boots down" before September of 1972?

Plaintiff: Well, you've challenged me, so I will go home and get my records to confirm the specific dates.  I think you will be surprised how little you know your real history of what went on there and how long it went on.

[At this point, I was very nervous, because he seemed so convinced himself in his own story.  I was terrified that he was going to come back with, but I figured I already crossed the threshold]

Me: And will you agree that their are other records that I won't go into that confirm that you were actually in Pennsylvania on October 15, 1972 and February 1973, so any service started after that time?

Plaintiff's Attorney: Objection. Your honor may I approach side bar? 

Judge: Yes, both of you approach, I am concerned that counsel is going way astray of the relevant issues in this case.
[at sidebar]: Didn't I already rule that the criminal records were inadmissible?

[Me:] I am not going to introduce the records, just have the Plaintiff confirm that he was in Pennsylvania during those dates.

[Plaintiff's Attorney:] Judge this is in direct violation of your ruling, he should be held in contempt

[Me:] Judge, you ruled that the convictions were inadmissible and that I should not mention convictions; I haven't mentioned convictions.  I just asked him whether he was in Pennsylvania during a time court records say he was.  The records are just my good faith basis for asking him whether he was in Pennsylvania during the relevant time rather than in Vietnam as he claims.

[Judge:] No, the relevant time is the date of the accident at your client's property not a date he may or may not have been in Vietnam.  This evidence is very collateral.  Unless you have evidence that nothing fell on him that day, then dates from 1972 and 1973 are irrelevant and I am ordering you to move on.

[Me:] I understand your ruling, but the Plaintiff opened the door to these issues.  You let him testify for hours about minute activities he did while he was allegedly in Vietnam.  I should be entitled to cross examine him with records that show he was actually thousands of miles away.

[Judge:] I made my ruling, we will have no more testimony about Vietnam, no more statements from you about American history or when the Vietnam War ended or what was happening over there; and if you bring up the issue again; I am going to hold you in contempt and instruct the jury to disregard your entire cross examination; are we clear?

[Me:] Crystal clear

[back questioning in front of jury]

Me: Sir, taking you to the time of the accident at [my client's property]. . . .

Plaintiff: Does this mean that I am not going to be able to bring in my military records? Judge, he has questioned my honor, I would like a break to go home and bring in my records to clear this up.

Judge; That won't be necessary, the court has made a legal ruling and [Me] won't be asking you any more questions on this issue; I have ordered him to move on and focus on the accident which brings us all here.

Plaintiff: Well, that's not fair, judge. He has asked me these questions and questioned my honor, I should be able to bring my records in to respond.

Judge: Well, it is a good time to take a lunch break.  If Plaintiff wishes to open his direct and return to the stand with certain records, I will permit it. [looking at plaintiff's counsel] Show any records to defense counsel that you are going to use before the plaintiff takes the stand. Court stands in recess. We will take an extended lunch break of 2 and 1/2 hours.

Now, during the lunch break I was nervous as hell.  I had no idea of what he had at home and was worried that he might return with some forged papers; or evidence that he was sent over there later.   I was on the payphone (again this was before cell phones were even widely available), begging her to get a hold of the county Vietnam Veteran's President to come to court to examine the plaintiff's documents and tell me whether they were legitimate.  Clearly, the judge would not be impressed with me arguing that his records were inadmissible because he did not disclose them before trial.  I was very concerned that this cross examination was going to backfire quickly.  And I thought, clearly this guy has been conning the VA and others, he has to have some records or evidence that he was actually over there.  It was one of the longest lunch breaks of my life.

After about 2 hours, the Plaintiff's attorney approached me outside the courtroom holding a folder.  I was extremely nervous about what the folder contained.  Without showing me the folder contents, he told me that the plaintiff had actually been in the army twice.  He said that the plaintiff's papers indicated a discharge from the Army in late 1973, which he said was for medical reasons; and then another General Discharge paper from 1975.  I asked him whether the Plaintiff had a DD 214, which would be the transcript of his military service and commendations every soldier is provided with on discharge. Plaintiff's counsel said that his client did not the "original" of that particular document and that he was a bit troubled by copied portions his client did have which indicated service in the United States in 1973 and Korea in 1974.  He indicated that the Plaintiff wanted to testify about these documents and why they do not reflect his actual service; but that there was a "philosophical dispute" between attorney and client about the wisdom of this testimony.  He asked me whether I would be willing to resume my questioning on other topics subject to his right to revisit this issue in plaintiff's rebuttal case. With great relief I said "yes," but that I wanted him to agree that I could have the documents at least 24 hours before any proposed rebuttal testimony and that the defense could present evidence from the local Vietnam Veterans Association in sur-rebuttal if there appeared to be any irregularities or possible forgeries.  To my surprise and relief, he agreed.  From my perspective, this meant that I could present the VVA President to testify that the plaintiff was not eligible for membership and that the absence of the VSM in his discharge documents was definitive on the question of whether he served in Vietnam.

When the judge returned to the bench, both counsel requested a sidebar to memorialize our agreement.  The judge looked at plaintiff's counsel as though he had two heads. The judge clearly thought that unless the documents confirmed service in Vietnam, any testimony about gaps in plaintiff's military paperwork would only discredit him further.  He indicated that he understood that counsel had reached an agreement but that it was his courtroom and that he would decide when and how evidence would be submitted.  He stated that from his perspective, he had already ruled that the matter was closed, the plaintiff had not shown the documents to defense counsel at lunch time as ordered, and that he would rule on rebuttal at the time of rebuttal.  He stated that the only issue before him that afternoon was the defense counsel resuming his cross examination about the accident itself; and that he did not intend to tell the jury anything other than the court had ruled that the defendant would continue with his questioning.

When I started my questioning about the alleged incident involving falling Styrofoam coolers in front of the jury, the plaintiff again protested that he was not being given an opportunity to explain his military career.  The judge stopped the plaintiff and told him in open court that he had already ruled that the issue was fully explored at this stage of the case by both sides; and that he might revisit the issue at another stage.  The judge advised the plaintiff to just answer the questions about the incident.  The plaintiff was so preoccupied with his inability to provide his explanation that he essentially conceded most of the facts related to the accident that were favorable to the defendant.  I also fully explored all his other civil claims where he had sought money for similar events.  Significantly, I pointed out the inconsistency that other types of minor contact apparently did not cause the formation of sores, but that minor contact by third parties resulted in serious sores and litigation.  For example, he conceded that he did not spontaneously develop bedsores, or other lesions from the use of crutches or wheelchairs.  There was also evidence in medical records where health care providers witnessed him walking on his own but sores did not develop on his feet or legs. By the time I was finished with cross examination, I could tell that the jury had serious doubts about everything related to the plaintiff and this case; and that his credibility was suspect.

The Plaintiff also presented the expert testimony of an architect who opined that the defendant had failed to construct a temporary Styrofoam cooler archway in accordance with professional standards.  He conceded that no such standards actually existed, but stated that if an architect had constructed the archway, it would have been braced or fastened in such a way that it did not collapse. The only question I believe I asked him was whether he actually attempted to construct the type of archway that he contended was a superior design.

Interestingly, the plaintiff next presented the evidence of his treating internist.  This doctor was notorious in the community because it was suspected that he killed his wife with an overdose of Xanax.  Furthermore, he claimed that he had lots of patients with Bechet's syndrome, which itself would be remarkable outside Turkey; and that plaintiff clearly suffered an aggravation of Bechet's from the coolers.The internist was a terrible witness and clearly knew nothing about Bechet's disease.  What he did know was how to prescribe the plaintiff significant amounts of narcotic pain medication.

Plaintiff's dermatologist testified that he did not believe that he suffered from Bechet's; and that the plaintiff likely suffered from  a rare form of Pyroderma Gangrenosum, provided all other causes could be excluded.  On direct, he testified that the plaintiff appeared to suffer an aggravation of his skin condition after he was struck by the coolers.  On cross examination, I made him confirm that he had not excluded all other causes and merely treated the symptoms when they arose.  I then had him agree that it was difficult to exclude self-harm or artifactual disease even under the best of circumstances.  After these questions, I got the distinct feeling from his manner of answering that the dermatologist had serious doubts about the plaintiff's condition. Accordingly, I took another chance and asked him:  "Given the difficulty in excluding self-harm, can you please tell me how you excluded that as a cause?"  The dermatologist took off his reading glasses, looked directly at the jury, and said: "I haven't excluded it as a cause."  I said: "no further questions."  Plaintiff's counsel asked no redirect; and rested his case.

I presented the defense's expert dermapathologist. He testified that the skin lesions were consistent with self-induced injury;  and specifically felt that it was the result of a glove dipped in some form of acid.  He explained that artifactual disease was actually much more common that either Bechet's Disease or Pyroderma Gangrenosum; and was the most likely diagnosis.  He also explained that patients with systemic skin diseases irritated by contact got sores all over their body; and that it would be likely he would have sores on contact areas from his wheelchair or bed.  He testified generally that plaintiff's background made him a likely candidate for the development of artifactual disease.  Because the court had ruled that plaintiff's prior conviction and incarceration for statutory rape was too remote and therefore inadmissible, I could not ask him to elaborate further that medical research showed that it was common for incarcerated prisoners to inflict skin injuries on themselves because sick bay was often more pleasant than being in the general prison population, particularly if the inmate was  incarcerated for an undesirable crime like child molestation or rape. I was certainly hoping that plaintiff's counsel would open the door to such a response if he asked my expert about the background of patients diagnosed with artifactual disease. Plaintiff's counsel did not take the bait, more because he was a bit shell shocked over the earlier meltdown of his client's military record (and problems with his own dermatologist); than any calculated strategy to limit his cross examination. In any event, plaintiff's counsel did not lay a glove on my expert, acid dipped or otherwise.

I then presented testimony from the defendant's manager who built the Styrofoam archway.  He explained that he simply stacked the coolers in the shape of an arch and braced it with masking tape.  He said that he shook and rocked it after it was built and that it stayed stable. He said that he had no idea how the archway had become dislodged; and that it looked to him like someone had intentionally pulled it down.  After that testimony the defense rested its case.

Plaintiff's counsel asked for a brief recess.  From my table inside the courtroom, I could clearly hear a disagreement between plaintiff and his counsel outside in the hall. Plaintiff presented me with the contents of the folder and stated that his client wanted to present rebuttal testimony. The folder contained a few copied excerpts of a DD-214 that indicated service in Korea in 1974 and two separate discharge dates.  From the excerpts, it appeared as though plaintiff went into the Army briefly in late 1973 and served briefly in the United States before he received a medical discharge; and then there another enlistment for service in Korea as a military policeman before a notation that he received a "general" or less than honorable discharge in 1974.  Conspicuously absent was any indication that plaintiff served in Vietnam.  Plaintiff's counsel asked me whether I needed 24 hours to conduct further examination of the documents; and stated that his client intended to testify that he believes that he was subject to Army experiments that altered his memory.  I clearly looked at him with a look of total disbelief and said that if that was his proffer, I probably would not object to the documents or that testimony.

When the judge took the bench, the plaintiff's counsel explained his rebuttal and made a proffer.  The judge looked at the plaintiff with complete disbelief that he intended to testify in that manner.  I explained that I had no objection if that was his intended rebuttal, but that I expected the testimony to be limited in that fashion.  The judge looked at the actual plaintiff and stated that he did not believe that the rebuttal would be helpful to his case, but that he would not preclude him from offering that testimony. The judge them called the jury back into the room; and the plaintiff testified.  On direct, the Plaintiff tearfully testified about unexplained gaps in his memory and his belief that Army experiments had made him believe things that might not have occurred and wiped away things that might have occurred.  He conceded that he was no longer positive that he ever served in Vietnam.  The jury was riveted in complete and total disbelief.  On cross, I asked no questions.

We both delivered our closing statements.  Plaintiff's counsel argued that his client was entitled to compensation for an aggravation of his skin condition regardless of the cause of the underlying condition.  I figured less is more; and argued that the only two dermatological experts in the case had serious doubts and concerns about the condition and what was aggravating it.  I argued further that there was nothing that occurred during the trial to resolve those doubts and concerns. After a lengthy charge by the judge, the jury was released for deliberations.  I gathered my papers, boxed up my documents and went out to the hallway to call my client with an update.  Before I was able to even input my calling card code on the payphone, the marshal advised that the jury had reached a verdict.  They were out less than ten minutes total.  We returned to the courtroom and the foreperson announced that the jury had found no negligence.  My client was obviously pleased.

After I received permission from the judge to speak to the jurors, I learned that they were all pretty shocked by the mendacity of the plaintiff.  They all felt strongly that the VA should be advised that he was a con artist.  I explained that it was not our job to decide whether his VA claim was valid, but that the judge could certainly advise the US Attorney if he felt that perjury occurred; or other criminal conduct needed to be investigated.  The plaintiff's lawyer joined the conversation with the jurors and advised them that he had been kept in the dark by his client.  He explained that voluminous VA records seemed to substantiate his Vietnam era service; and that he was fairly well known and recognized by his neighbors and friends as being an injured war hero.  More than one of the jurors felt that his birth date warranted additional investigation and scrutiny.  he explained that he generally trusts his clients and had learned his lesson.  I thanked the jury and went home.

As I drove home, I realized that the bigger issue to plaintiff was that he had built his whole support system and family around this big lie.  By the end of the trial, he was far more interested in defending that lie to his wife and family in the courtroom than to the jury.  I believe that is why he insisted on offering that crazy testimony about the mind experiments. it was more for his wife's benefit than the jury's. As an aside, his wife was much younger than the plaintiff which also freaked me out a bit in light of his statutory rape conviction.  I got the sense that they began their relationship when she was a bit too young.  When I unpacked my trial materials at home, I glanced at the plaintiff's yearbook picture.  At the time of the picture, he looked like a typical teenager. His picture even resembled my old yearbook picture. I wondered how he got from that kid in the picture to an adult who created a whole existence trying to convince people that he was a crippled war hero.  I was happy to win the case, but the whole situation just seemed incredibly sad. The file included at least 8 prior injury claims that this person had made, piles of medical records where doctors attempted to treat a completely bogus condition, and VA claims for expensive wheelchairs and a handicapped van.   

What this Blog is About-Civil Jury Trials and Life

The title of the blog is an oxymoron.  In every civil case, there is always tribulation--even when you win.  Our law firm has tried more than 100 civil cases to verdict; and we have participated in many more that resulted in summary disposition or settlement. Those cases represent hours of work and distress for the participants and attorneys.  The reward has been hard-earned experience that allows us to minimize the tribulation imposed upon our clients; and great stories. I hope to use this blog to share some of those stories and comment upon relevant civil trials from the perspective of folks who have done it themselves.  Trying cases also presents interesting challenges into trying to live a normal happy life.  I also hope to share some of the lessons learned from trying to balance the challenges and demands of a career as a trial lawyer with family, friends, and outside interests.