The Importance of Trial by Jury

Posted on September 13, 2007 by Dwayne Newton

I recently read a speech given by Federal Judge William Young on the importance of our country's jury system.  No where in the world does the citizenry  have the right to play such a vital role in government.  Unfortunately, our jury system is under attack from many different directions.  It is often widely criticized by those who have no experience or familiarity with it.  Even worse it is attacked by those special interests who seek to take advantage of those who most need the protections of it.  The jury has always been the protector of the weak from being overrun by the strong.   Judge Young's speech should be a must read for every adult and high school student in this country.  Here is an excerpt from his speech:

Yet the American jury system is dying. It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than that on the criminal side, but it is dying. It will never go entirely, but it is already marginalized. It is not at the center of our political discourse. How is this possible, with our Constitution and every one of the 50 state constitutions guaranteeing the right to trial by jury? The general answer is that we do not care.  

The entire speech can be downloaded here.  Download file

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Victory for the Construction Industry

Posted on September 3, 2007 by Dwayne Newton

Pending for almost two years, the Texas Supreme Court has finally issued an opinion in Lamar Homes v. Mid-Continent Insurance.  A copy of the opinion can be found here.  This case involves two important questions to the construction and insurance industries. The first is whether a construction defect can be an “occurrence” within the terms of a CGL policy when the only damage is to the building itself. The second question is whether a claim for a defense under an insurance policy is a “first party” claim sufficient to trigger the prompt payment provisions under former Article 21.55 (now codified as sections 542.051-.061) of the Texas Insurance Code. 

In a somewhat surprising opinion, the Court answered “yes” to both questions. As it relates to construction defects, the Court held these can be an “occurrence” or “accident” under the terms of the policy. This is quite a victory for the construction industry and a significant blow to the insurance industry. The trend in the insurance industry had been to resist defend many construction defect cases on the basis that there was no occurrence. With this opinion, insurers will find it difficult to deny defense obligations in most construction defect cases.

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Are Doctors Really Mistreated by Juries?

Posted on July 26, 2007 by Dwayne Newton

Here is a link to an interesting article published by the Michigan Law Review. www.michiganlawreview.org/archive/105/7/peters.pdf   This article explores the widely held public view that jury verdicts in medical malpractice cases are unfair to doctors.  Interestingly, research conducted over the last three decades indicates that just the opposite is true, juries tend to side with doctors even when the Plaintiff should win.

This article discusses in depth research conducted over the last 30 years in malpractice litigation.  What is interesting is that even when a panel of medical experts agrees that malpractice has been committed and that the Plaintiff should prevail, juries tend to find in favor of the doctors about 50% of the time.  In those cases that the panel of medical experts determines that no malpractice was committed, the research show the jury virtually always finds in favor of the doctor.

This article confirms what trial lawyers have known intuitively for years, ie. that juries in medical malpractice cases tend to bend over backwards to find in favor of the doctor.  The popular idea that doctors are somehow being mistreated by runaway juries is not supported by the research. 

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Dwayne Newton is Elected to Membership in ABOTA

Posted on July 25, 2007 by Dwayne Newton

We are pleased and proud to announce that Dwayne Newton has been elected to membership in the American Board of Trial Advocates.  Membership in ABOTA is extended by invitation only in recognition of an individuals high personal character, honorable reputation and proficiency as a trial lawyer.  After meeting stringent practice requirements, an invitation to membership requires a nomination from an ABOTA member along with an affirmative vote of 75% of the membership of the local chapter.

The mission of ABOTA is the preservation of the 7th Amendment right to trial by jury and to foster improvement in the ethical and technical standards of practice in the field of advocacy to the end that individual litigants may receive more effective representation and the general public be benefited by more efficient administration of justice consistent with time-tested and traditional principles of litigation.  For more information on the purpose and missions of ABOTA go to www.abota.org.

Congratulations, Dwayne

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Witness Preparation from Another Perspective

Posted on June 14, 2007 by Dwayne Newton
The importance of witness preparation applies whether you are the Defendant in the litigation or the Plaintiff.  Here is a link to a good article on witness preparation from the perspective of the Plaintiff. www.tlrcblog.com/2007/06/articles/-case-work-up/tips-on-defending-personal-injury-depositions/ In his post, Tips on Defending Personal Injury Deposition, Ron Miller provides 6 tips on how to prepare a Plaintiff for his deposition.  From my experience, his advice for Plaintiffs is right on target.  When I take a Plaintiff's deposition, the main piece of information I am looking for is what type of impression this individual will have on a jury.  To me, this is even more important than what the Plaintiff says about the accident or his injuries.  As a defense lawyer, I can always deal with his testimony regarding the facts.  What can be much more difficult to deal with is how he will present as a witness.  A Plaintiff that makes a good witness in his deposition will enhance the value of his case and make it more likely to settle.  The converse is also true.  A Plaintiff who makes a poor witness will decrease the chances that his case will settle.  Fortunately, for me, most lawyers do not spend much time preparing their clients to be good witnesses.  This is a universal problem on both sides of the docket.
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The Continuing Saga of Lord Browne's Deposition

Posted on February 24, 2007 by Dwayne Newton

This week, the Texas Supreme Court issued a stay order, staying the deposition of Lord Browne, the former CEO of British Petroleum. This was issued in response to the February 9, 2007 order of a lower appellate court that denied BP’s Petition for Writ of Mandamus to Quash the deposition.  This is an issue I wrote about when it first arose last fall.  See Taking the CEO's Deposition.   This has been an on again – off again issue.  The Supreme Court has asked for briefing and will likely entertain oral arguments on this issue. I will be surprised if the Supreme Court orders the deposition to go forward.  This is a very pro-business Supreme Court. In addition, current authority strongly supports the BP position on this issue.

 

From my observations, I don’t think the Plaintiffs really care whether they get Lord Browne’s deposition or not.  BP has already stipulated to liability for the explosion and any potential punitive damages are subject to a very strict cap.  The real strategy here is to make life as uncomfortable as possible for BP and its lawyers to drive a better bargain in settlement.  So far this strategy has been very effective. Every time this issue comes up, more cases are settled.  The two cases that were set for trial on Monday were just settled.  Although the settlements are confidential, I am sure they were very favorable for the Plaintiffs.

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More on Preparing Witnesses for Depositions

Posted on February 21, 2007 by Dwayne Newton
My recent post on Presenting Witnesses for their Deposition has been one of the more popular posts on this blog.  From the looks of the hits to this post, there are a lot of people out there looking for information on how to get ready for depositions.  Here is a link to a video that I think you will find entertaining if not educational.  This clip falls under the category of making sure the witness is ready to answer the hard questions that the other lawyer may ask without losing his cool. www.youtube.com/watch
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What Should You Do If You Are Sued?

Posted on January 13, 2007 by Dwayne Newton

I was recently asked by a business acquaintance what he should do in the event he is sued.  I gave him a copy of our firm's pamphlet called The Legal Survival Guide which answers a number of basic legal questions  If you would like a copy of this pamphlet send me an e-mail with your name and address and I will drop one into the mail for you.

Here is what I told him about the steps that should be taken in the event he was sued:

1.     Don’t ignore the suit! Once you have been served there is a specific time period in which the suit must be answered. In some cases it is as short as 10 days. If a timely answer is not filed, you may lose by default.

2.     Don’t call the other lawyer or person who has sued you without consulting your own attorney.  Statements you make to the lawyer or other party can be used against you.

3.     If the suit is covered by insurance, call your insurance agent or carrier immediately. Most auto accidents are covered under automobile insurance.  Other personal injury suits may be covered by your homeowner’s policy. If covered, your insurance company will hire a lawyer for you.

4.     If the suit is not covered by insurance, consult with an attorney immediately. In choosing your attorney, you should consult with one experienced in the handling of civil lawsuits.  Ask the attorney about his/her experience.

5.     Turn over all of the papers served on you to your insurance carrier or attorney.

6.     Follow up with your insurance carrier or attorney to make sure that a timely answer has been filed.

7.     Cooperate fully with your attorney or insurance carrier in the defense of the suit.

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Victory in the Tort Reform War

Posted on December 28, 2006 by Dwayne Newton

The tort reform war is over and business has won. Here is a link to an article from Business Week on-line declaring victory in the tort reform movement.  www.businessweek.com/magazine/content/07_02/b4016001.htm The article is an interesting read.  It is consistent with my post from September about  a jury climate that greatly favors Defendants. www.houstonlitigationblog.com/2006/09/articles/jury-trials/for-defendants-now-is-the-time-to-go-to-trial-in-texas/ Jurors have become so inundated with lawsuit phobia that it is next to impossible for a Plaintiff to get a favorable jury verdict.   

In the 20 years that I have practiced law, I have seen the judicial makeup of Texas change from virtually all Democrat judge to virtually all Republican judges. During this same time period, I have seen juror attitudes change from favoring the Plaintiff to now favoring the Defendant.  As a result, those companies and individuals who find themselves being sued should take advantage of this trend. Ultimately, I tend to think the current trend will eventually shift back, the only question is when...........

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Presenting Witnesses for Deposition

Posted on December 22, 2006 by Dwayne Newton

I continue to be amazed at the number of lawyers who fail to properly prepare their witnesses to give a deposition.  Over the last 20 years, I have frequently seen large settlements generated in otherwise defensible cases because a lawyer failed to properly prepare his corporate witness to give a deposition.  No other aspect of the defense of a lawsuit is as important as preparing the witness to face the opposing lawyer during the discovery phase of the case.  

While it is common for lawyers to spend days preparing themselves to take an effective deposition, these same lawyers mistakenly think they can spend an hour or so immediately prior to the deposition preparing their own witness to be deposed.  This can have disastrous results on the defense of a case.   A number of years ago, I was involved in the defense of a very complex multi-party explosion that resulted in a number of burn deaths. The deposition testimony of our co-defendant’s employee witnesses was some of the most damaging I have ever seen in a personal injury case.  As it turns out, co-defendant’s counsel spent only a very short time on the day before the deposition preparing the witness. The witnesses were grossly under prepared for the subsequent examinations. Because of the poor showing by its witnesses, the co-defendant was forced to enter into settlements that exceed $100,000,000.00.  In contrast, our trial team approached witness preparation in a much more strategic manner.  We put serious thought into which witnesses we wanted to produce and in what order.  We began preparing our witnesses to be deposed weeks before their deposition dates.  We assigned one member of the trial team to be primarily responsible for the preparation of all of our witnesses. We also made sure that the witnesses were thoroughly familiar with not only the facts, but also the questioning style and expected strategy of the lawyers that would be deposing them.  As a direct result of our witness preparation, the case developed in such a way that we were able to successfully defend the case that no one else thought could be defended.  

Here are my thoughts on successfully producing witnesses to be deposed in a catastrophic case.

Control the order and timing of when your witnesses are deposed.  

If at all possible, your best witness should be offered for deposition first.  This is not always your most knowledgeable witness. Instead, your best witness is the one you have determined to be best equipped to handle questions under pressure, particularly ones that you may not have thought of prior to the deposition.   By the time this deposition is finished, you as the lawyer should know 95% of your opponent’s case and be in a good position to prepare the rest of your witnesses.

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