Trial Preparation: Collaborating with Outside Counsel Under Pressure. October 7, 2014

Transcription

1 Trial Preparation: Collaborating with Outside Counsel Under Pressure October 7, 2014

2 Anytime, Anywhere, Any Courthouse 10 offices Nearly 200 lawyers; more than 70 dedicated to drug and device work 850 cases tried in more than 350 courthouses in the U.S., Canada, Puerto Rico, and U.S.V.I.

3 MICHAEL J. HURVITZ, Esq. Serves as National Counsel for drug and medical device manufacturers Tried cases in state and federal courts in California and Pennsylvania Graduate of IADC Trial Academy

4 AILEEN CANDLISH Litigation paralegal for 26 years Assisted at 17 trials throughout Southern California and Alaska, for automobile, watercraft and other product manufacturers Has prepared dozens of cases for trial Part of National Counsel team regarding automobile rollover cases

5 We Work On YOUR Cases The outcome of the case effects you May be one of many cases Bad press Regulatory action It is our job to help you not the other way around

6 Our Goal Win the case Minimize disruption to your business Stay within budget

7 Early Collaboration You can teach us about: The Company The Product The Witnesses The Documents

8 Early Collaboration WE can formulate case strategy and define roles Prepare for early resolution v. work up for trial Create itemized task list and budget Develop methods to minimize interruption of business

9 The Litigation Hold What is a litigation hold? A written directive advising custodians of documents and ESI to preserve potentially relevant evidence Also referred to as "preservation letters" or "stop destruction requests"

10 The Litigation Hold: How Can You Help? Early identification of claims Early collaboration with outside counsel What documents might be relevant? Who might have the documents? How long should the hold last? Periodically reevaluate the hold

11 The Litigation Hold: In Re: Actos Louisiana Federal Court Litigation hold issued in 2002 (same drug different litigation) Never lifted and refreshed several times Court held that the hold created duty to preserve evidence beginning in 2002 Company destroyed some of the evidence Court allowed jury to hear evidence of spoliation and issued instruction allowing jury to infer that destroyed documents would have been helpful to plaintiffs Sanctioned manufacturer Jury awarded plaintiff $1,500,000 in compensatory damages and $9,000,000,000 in punitive damages

12 Witnesses Win Lawsuits

13 Witness Preparation Understanding Juror Orientation Jurors are "cognitive misers" Jurors use "heuristics" to evaluate testimony So What Persuades? Ethos the speaker is a good person Pathos the listener can identify with the speaker Logos the speaker is logical, corroborated

14 Characteristics of Credible Witnesses Competence knowledge, expertise Character trustworthy, honest, non-evasive Composure calm, confident, non-defensive Sociability likeability, vulnerability Extroversion outgoing, open, in control

15 Why do well prepared witnesses crash and burn? Teacher/student paradigm fails Lawyer does all the work Witness/lawyer role mistakes Fear/anger not probed, prepared for No coping strategy themes, home bases Witness doesn t "own it"

16 Witness Prep: How Can You Help? Selection of the witness - 30(b)(6) or PMQ Who would you go to if you had a question about the deposition topic? Who is the best public speaker? Who is the most likeable? Preparation of relevant documents What documents relate to the deposition topics? What documents support our defenses?

17 Witness Prep: How Can You Help? Do some legwork Has the witness been convicted of a felony or crimes of dishonesty Check social media Fact check the witnesses resume!!

18 Company Documents: How Can You Help? Go to the source Point us in the right direction Research the background of documents Prepare timelines

19 Company Documents: Why Do They Matter? They tell the story to the jury They set the stage for the experts' opinions The jury can take them into the deliberation room

20 Trial Coordination Coordinating travel of company witnesses Flights, ground transportation, hotels Translators, trial presentation software, other IT Do they have the documents they need to review? Help selecting and setting up war room What needs to be in the war room?

21 Jury Selection Voir Dire If you are not in court, you may be asked to research potential jurors Google, Twitter, Facebook, LinkedIn etc. Be careful of ethical violations!!! Can the jurors see what you are doing?

22 Jury Selection Voir Dire If you are in court Watch the jurors while they are being questioned by counsel Eye contact, nodding in agreement Identify leaders and followers Take notes the lawyers won't

23 Trial Help coordinate company witnesses Watch the jury closely and take notes Debrief lawyers on what you observed at the end of the day

24 Track exhibits Trial: How Can I Help?

25 Trial: How Can I Help? Collaborate with outside counsel and paralegals Prepare exhibits for direct and cross exams Prepare deposition designations Coordinate witnesses - make sure you think ahead!

26 Post-Trial Are you allowed to interview jurors? If yes, this is a great opportunity to get intel for the company's next case What were plaintiff's strongest arguments? What were your best defenses? Which company witnesses did the jury like or dislike? What evidence helped or hurt the company?

27 QUESTIONS?