Ciceronian Review

Expert Reports

In MArch, the Utah Supreme Court handed down a case on the rules regarding designation of experts, in particular when a physician needs to be designated and provide a report.  In Drew v. Lee (2011UT 15), the ultimate decision was that a treating physician who will testify does not need to provide a written report, because the doctor is not "retained or specially employed" for trial.

The case arose from an automobile/motorcycle accident.  The plaintiff listed his treating physicians as witnesses who testify under 702 (i.e, as experts), but he did not submit reports by any of them.  The defendant filed a motion in limine to bar testimony because no reports had been provided, and the trial court granted the motion, effectively ending the case.  The issue here is the difference between Rule 26(a)(3)(A) which requires disclosure of any witnesses who will testify under 702, 703, or 705 and Rule 26(a)(3)(B) which requires a report from any "retained or specially employed" expert.  Treating physicians do not have to provide reports if they are testifying about diagnosis and treatment - that is established law.  What was unclear was how to treat the physicians if they also testify as to cause of the injuries and offer prognoses.  Trail court grants the motion in limine and interlocutory appeal follows.

The tricky piece is that, under existing law (the Youngblood case) failure to timely designate witnesses giving expert testimony is good grounds for exclusion of such testimony.  In Youngblood, the plaintiff did not timely designate anyone as providing expert testimony, and the later added a declaration from one of her treating physicians, but that was not enough.  For the present case, however, Youngblood is not all that helpful because Youngblood dealt with failure to designate, not failure to provide a report.  In this case, the designation was done, but there was no report.  (It is nice when the cases squarely address and solve a puzzle like this.)

Most jurisdictions address this issue (in connection with treting physicians) by looking at the substance of the proposed testimony -- if it goes beyond treatment, then it probably is testimony requiring a report, i.e., specially retained.  Utah decided to go a different way.  Once again, thsi court went for a more formal rule: a treating physician does not need to provide a report, but physicians seen for other reasons do need to provide a report.  The court offers some questions to help with sorting the physicians.  But it does seem that focus on whether the physician is a treating physician testifying about diagnosis and treatment makes for an easier determination of whether a report will be required.

The court ends with some bromides about Rules 37 and 11 providing assurance of limits on efforts to abuse the announced rule.  There have been a lot of comments from the Supreme Court and the Court of Appeals in the last year about possible sanctions as a way to blunt abuses.  Here, Rules 37 and 11.  In cases about indictments reporting of ethics violations.  I am not sure what is motivating the frequency -- I have serious doubts that there is any ethics reporting going on about prosecutors or that the trial courts are doing much to enforce Rules 37 or 11 or 26. 

 

Hot Coffee

In a recent case (Boyle v. Christensen, 2011 UT 20), the Utah Supreme Court faced the infamous 'McDonald's Coffee case' used in a closing argument.  The case concerned a trial on damages, liability having been admitted.  Here is paragraph 21 of the opinion:

¶21 Although the public view of the case is understandable when limited to a superficial view of its facts, a deeper look at the details and issues in the case may dramatically alter one’s perspective. Among the many relevant facts generally missing from the public consciousness are the following:
    (1) The temperature of the spilled coffee was so
    hot—180 to 190 degrees—that within seconds it caused
    third-degree burns that extended through the skin to
    the fat, muscle or bone on Ms. Liebeck’s thighs,
    buttocks and groin area. She was hospitalized for eight
    days, underwent skin grafts, was disabled for two
    years following the accident, and was permanently
    disfigured with scars on over 16 percent of her body.
    See Greenlee, supra, at 718–19; see also Angelos, supra, at
    21; Brian Timothy Beasley, North Carolina’s New
    Punitive Damages Statute: Who’s Being Punished,
    Anyway?, 74 N.C. L. REV. 2174, 2190 (1996).

    2) The jury heard evidence that McDonald’s had
    received approximately 700 other complaints about
    coffee-burn injuries in the previous decade (some of
    which were settled for a total outlay of over $500,000),
    but considered the number of injuries statistically
    insignificant and therefore did not lower the
    temperature of its coffee. See Marc Galanter, An Oil
    Strike in Hell: Contemporary Legends About the Civil
    Justice System, 40 ARIZ. L. REV. 717, 732 (1998);
    Greenlee, supra, at 719–22.

    (3) The jury awarded $2.7 million in punitive damages
    because it believed the extreme temperature of the
    coffee was unreasonably dangerous and that
    McDonald’s had callously disregarded the danger
    even after hundreds of injuries. The $2.7 million figure

    was based on the approximate revenues from just two
    days of McDonald’s coffee sales. Shari Seidman
    Diamond, Truth, Justice, and the Jury, 26 HARV. J.L. &
    PUB. POL’Y 143, 146–47 (2003).

The Court found the reference prejudicial, both because the case was irrelevant and intended to show plaintiffs' as greedy and undeserving.  Also helped that the defense lawyer misrepresented the nature of the case and the damages.

Interesting that this seems to be the first time the issue has come up.  By the by, the Court of Appeals so not wrong in it. 

Hadfield's Price of Law

I read the first of the Hadfield pieces ("The Price of Law"), which is to say the earliest of the article cited.  It is interesting and clearly written.  (That surprised me a little because the summary for the third of the articles is not easy to decipher; I was expecting an essay hidden under economic talk.)  The basic message of Hadfield’s first article is that the market for legal services, at least on the provider side, manages both high prices and oversupply because of structural features of the market.  Entrance barriers – licensing and law schools – play a relatively minor role in pricing.  More important are features which lead to a kind of segmentation in the provider market – the concentration of prestige and pay in larger law firms serving large institutional or corporate clients, concentration work with a small number of lawyers, irrational firm structures, and so on.  I found the paper convincing, although I admit I did not study it.  Admittedly, the views are close to what I believed before reading the paper, so convincing me was not all that hard to start with. 

It is interesting that it does not really support the view that licensing and law schools are the major source for high prices or the limited services to middle class consumers.  Perhaps the idea is that the ABA standards force law schools to spend more on capital improvements and salaries and so drive up tuition costs.  The debt loads of new lawyers are far too high and are part of the explanation for driving new lawyers towards larger firms.  But then they stay, or try to.  Moreover Hadfield recognizes that there are increasingly larger portions of the provider market who are underemployed.  That is something that will only get worse.

 

Blackwater Circus

Blackwater employees turned themselves in today here in Zion.  Covered the local paper's front page, for the last two days.  Lots of photographs, including of course picture of the defendants in uniform from when they did serve in the military.  It is a little circus, and curious in a number of respects.  First, who is paying for the defense?  These five guys have lots of attorneys, and none on the cheap end as far as I can tell.  More importantly, they have good lawyers -- Hatch and Cassell are quite good at what they do.  But it seems a stretch to think these fellows are or could pay for the services of so many lawyers.  Is it the company?  It has reason to.  Unfortunately, none of the stories explain the payment arrangements.  A second thing that is curious is Cassell.  He left the bench, to make money obviously, and to devote time to vindication of victim rights.  I am mystified by his role here, if it is not just collecting dollars.  The victims are not the defendants.  (Pace TalkLeft, Cassell was a good judge for criminal defendants; he led on the issue of getting rid of mandatory sentencing, and discharged his duties with real attention to his duties as a judge.  Not an ideologue at all, and his departure was a loss.  Which surprised me, as prior to appointment there was little doubt he is career was basically ideology over all else.)  This defense does not fit the tale.  Finally, why the circus at all?  No doubt, plenty of very favorable coverage here in Zion, and almost no critical examination of the story.  The guilty plea barely registered.  But, why bother?  Surely none of the lawyers really thought they could get venue here.  There is no connection at all to Utah; and it surely could not help for the lawyers' story about venue to be in the first article, even before the first appearance.  I am not sure it is even possible to get venue change on an indictment at this point in the case.  There were some oddities, I am told, about the argument given the fact of indictment, but I do not understand criminal procedure enough to more than pass on the thought.

Not prejudge more than the defendants sought: their stories is a might ripe.  First of all, of course, they have the problem that they were in it for the money, not defending the country.  Second, their colleague in crime has rolled over on them.  But then, the officers in the Rodney King trial got off, as did OJ.  (I wish the Goldmans would focus a bit more ont he prosecutorial incompetence in that case.  The prosecutors made a good deal of money for doing a poor job of it.)  One never knows in advance what will touch the jurors.

Luttig Lost

Yesterday the Wall Street Journal had a long article about the resignation of Judge Luttig from the Fourth Circuit and his decision to become General Counsel for Boeing.  The latter is likely a very interesting job.  The discussion of Judge Luttig's reasons for departure from the bench was a little curious.  Towards the end of the article, there is a 10 paragraph section on the Padilla case, over half of which recounts how Luttig reached out to help the government, all but directing their arguments.  As the article puts it: "Judge Luttig, according to a person familiar with the court proceedings, put his own credibility on the line, drawing on his own experience in national security law and confidence in the Bush administration official he knew." 

The section on the Padilla case is followed by this:  "People familiar with Judge Luttig's thinking say he knew his condemnation o the administration would bring personal cost but he believes that judges must apply the law regardless of its political implications. These people say he has been disillusioned by the encroachment of politics on the judiciary-- and the view that judges are on 'our team' or 'their team.'"

I wonder if the contrast was intentional.  A 10 paragraph discussion of Luttig doing exactly what is suggested as the source of disillusionment -- engaging in the political use of his office.  Applying the law regardless of political consequences does not describe a judge who tells the government how to argue its case to win, and it does not describe a judge who makes (and persuades his colleagues) based on his views of the Bush administration.  That is playing for a team.  That the Bush administration played him a bit seems more plausible.  Realizing that may be what is being driven at in the "disillusionment" paragraph.

You Rascal You

There is a lovely Louis Prima song I thought about today -- "(I Wish You Were Dead) You Rascal You".  The title conveys the theme.  It comes to mind in responding to motions sometimes.  The difficult motions are not what I have in mind.  It is the stuff that flirts with and sometimes sleeps with Rule 11.  The latter sort of motion is hard to respond to precisely because it is so ridiculous, so far from anything that matters in the case.  The urge to express outrage is very hard to resist, but should be.  Right now we have a motion to disqualify founded in -- made up fact claims.  Not just wrong, but completely made up!  I suppose an aim may be to smoke out some things without bothering with discovery (oh, yeah, initial disclosures have not even been made yet).  The facts relevant to the motion, however, don't much matter and don't matter at all to the case (because the case is about something else entirely).  But how to tell a court that opposing counsel is not just wrong, but more or less lying to the court?  A problem of diplomacy. 

Must be tiring to be a judge with such motions to decide.  Lots of dudgeon, high and low.  (What is low dudgeon anyway?)  No one is going to stand up and say 'oh! I am a fuck up.  Other guy is right.'  And so credibility of counsel gets put in front of the judge.  Any decision has the potential for problems down the road.

Of course, one never files such things one's self.  Drafting the response to such motions does always (yes, not the first time I've faced a motion that seems to have been written by a martian) leads me to think about how well-founded the motions we file have been.  So far, I think we are above the line.  But I, unlike the world at large, never suffer from self-delusion.

State Action

It has been a week of minor fires that consume the day.  One of the periods everyone in litigation has, and most hate.  Hours gone and very little to show for it, aside from general crankiness.  But then one thinks of paradise, and all is back in its place.

Delay

After an hiatus from intense activity, my cases are on the move again.  It brings back to the fore questions of gamesmanship and tactics.  In the current most active case, my team faces one of the politically well-connected (which means well-connected with the church, which in turns in Utah means LDS) lawyers.  Always a gentlemen in person.  His team, however, shows the beginnings of a practice of somewhat abusive gamesmanship.  In response to requests for documents, we get almost nothing.  Ask for the documents related to purchase of land, all that is turned over are deeds.  The tactic they seem to have adopted is to delay responses, provide little or nothing until the meet and confer process is exhausted.  In other words, variants on classic defense tactics.  Most of the time my practice is for the defense, so I understand the inclination to be less than fully cooperative.  Most defense attorneys have the inclination, from time to time, to make the entire discovery process painful and expensive and slow.  I admit that there have been times when my first inclination in discovery was to do exactly that.  But between first inclination and actually drafting a response, there has been reconsideration.  Obstructing discovery does not help the defense, except in very unusual circumstances (or if the plaintiff's attorneys don't know what they are doing).  The plaintiff will get the discovery.  You will have lost the incentives to cooperate, so when you need agreements on scheduling and other matters, they will be hard to come by.  But wait, there's more!  The bigger problems with obstructive tactics is that they (1) cost your client more to get things done and (2) quite often end up poisoning the judge.  Sometimes losing the judge does not matter, and it is always a mistake to change your case to cater to the judge.  Losing the judge is something else.  Very often the attorneys need credibility with the judge, because you need to have the judge accept your representations.  Staying with discovery.  If you lose credibility with the judge, you will be in a much worse position to obtain discovery orders.  The judge will not take your concerns seriously, whether it is a complaint about the other side's failure to produce or your claim to have made a thorough search for responsive documents.  That you can live with, but all the judges I have appeared in front do not compartmentalize their assessments of counsel and parties.  It can be an important strategic victory to get a judge to see the opposition as over-reaching in discovery, as lazy in responding to discovery, as as engaged in gamesmanship with respect to discovery issues.  When I have achieved that, it has also been the case that the judge takes their legal arguments less seriously, takes them less seriously.  That has gotten me victories in limiting discovery and in obtaining favorable orders on substantive issues.  So after the first inclination to pretend to hopeless stupidity and illiteracy, I try to give the other side a fair and full response to discovery requests.  They will get the information or documents eventually.  There are almost always better and more important things to do than fight over whether they get documents clearly relevant to the case now or in four weeks after spending $6,000 in meetings and letters and motions.  (Sometimes clients see things differently.  A subject for another day.)  So, back to the annoyance of the day, the opposing team seems to have a different view about responding to discovery; for them, it is delay and obstruction.  That will certainly increase their fees (and ours, as it turns out), but it won't improve the position of their client, and it won't achieve any strategic advantage for them. 

I expect that the next step  will be for the other side to send  attorneys to the meetings someone without authority to make any decisions.  Another tactic that seems common in Utah.   It does raise costs and it does delay resolution of disputes.  But it a bit short-sighted.  It will be a part of the coming argument to the judge for sanctions,, and it will be contrasted with what we do.

What I have been finding over the years here in Zion is that the quality of litigators is not in the end very high.  The field is dominated by men who have been practicing for thirty or forty years and who have not read the rules of procedure in about twenty years, and who think that the only practice is sharp practice.  So far I have not lost to any of them.  Maybe there is proof of god.

Adventure With Borborygmous

The hearing is done. Three days on summary judgment, which by any account is a long hearing, is all the longer when spent with Borborygmous. Among the great many useful things law schools don't teach is how to deal with judges and opposing counsel in hearings. I don't know that a law school really could address the issue, or even do much to make it clear what the issues are. Borborygmous is a good place to start a conversation about styles of argument (and briefing, for that matter) and styles of interacting with judges. Over the course of the hearing, Borborygmous accused everyone of the adverse attorneys who argued of lying to the court. No, I don't mean that he said that had some point of law wrong, or mischaracterized a document. He said they intentionally misled the court or did not tell the truth. It is not the first time I've faced that approach to argument, either from Borborygmous's office or from other attorneys. Two obvious lines of response - challenge the accusation in some direct way or ignore it. What we did this time was to address it head on and put the case law in front of the judge. I used to ignore such accusations, return to argument as though there had not been such an accusation, that instead there was a disagreement on the interpretation of the text, and I laid out my position again. I am inclining away from that approach and more toward what we did today: X says I lied to the Court. That is not so; here is what I said, here is the basis for what I said. Maybe I misheard, but the charge, if made, is wrong.
What is bothersome about the tactic is that I have never come across a judge who responds at all to such charges. (That would suggest there is no point in counsel responding.) But that is not only disappointing, but wrong on the part of the judge. A judge should not have to decide on credibility of counsel in the normal course, and part of that is that the judge ought to see to it that there are rarely grounds for the question to arise. In other words, I think a judge ought not tolerate the initial charge. There is nothing wrong, I think, in a judge stopping an attorney who charges another with lying, and noting that the charge should not be made. On the other hand (how convenient there are other hands), it would be as easy -- easier -- to simply ignore such talk as rhetoric. But toleration of such talk encourages the view that nothing a lawyer says in court can be taken seriously. It degrades the process. Advocacy should not be a cover for ad hominem commentary.