E-Discovery: A Public Service Announcement From Your Friendly Neighborhood Litigator

From time to time I am responsible for reviewing documents produced in discovery, either by my client or another party. More often than not, the material comes to me in electronic format and includes emails and attachments to emails. It’s my job to review all of it, and in the case of my client’s documents to ensure that any non-responsive or privileged materials don’t get turned over to the other side. In the case of my opponent’s documents, I read them to see what will be helpful or hurtful to my client.

And I would like to take this opportunity now to beg you, all of you out there, who use computers at work: please, think of me every time you hit send on an email.

Why? Why should you think of some occasionally snarky lawyer you’ve never met before you send out an email?

Because someday, I may see it. What you’re emailing, I mean. Or someone like me, maybe some youngster fresh out of law school even. Someone whose innocence is still relatively unsullied. And really, we don’t want to see that racist joke about the President. Or the animated picture of the jump roping Hooters girl.

I’m specifically talking about all the politically incorrect, soft core pornographic, maybe hardcore pornographic, overtly racist, sexist, or generally icky jokes, comments, or commentary you’ve received and/or “passed along” to a select group of friends and coworkers. You probably know them well and figure they won’t rat you out to human resources (although you can never really be sure of that. Something to think about.)

I’ve had the pleasure of reading jokes about anal sex and Democrats; birther rants; some relatively creepy Communist conspiracy stuff; and a You Tube video involving a Great Dane and a midget that I will never be able to unsee, despite best efforts and maybe therapy. And keep in mind, the writers of these emails are not strangers to me. At some point I usually have to sit at a conference room table and struggle to keep a straight face while I depose them or defend them. It is awkward. For me, anyway.

So one more time, with feeling: Don’t send or receive this stuff on your computer at work. Not just because sending it might get you fired. Not just because sending it might get you sued. Refrain, please, because sending it means a lawyer may have to see it, someday. Spare us.

Spare me.

 

When Juries Make Wrong Calls

Some cases are real nailbiters.  They may turn on an undecided point of law, or there may be conflicting factual testimony, and when that happens, you can’t really fault the jury for getting it wrong.  It might not even be possible to get it wrong under circumstances like those.  There may only be one perspective, and another perspective, with one winning and one, well, not. 

Cases like that don’t happen all that often, though, at least not in my experience.  I’d say it’s usually pretty obvious, certainly by the time that discovery’s been completed, who will be wearing the roses at the end of the track.  For the less advantageously situated party, the focus shifts to damage control and possibly spreading the pain around by way of third-party claims.  Which is why it is so weird when, from time to time, these cases go to trial and the jury calls it 100% dead wrong. 

Maybe five years ago or so, I was asked to cover a trial for one of my partners.  My partner (from my former, not current, firm) was to be on vacation that week and didn’t want to return to town to try the case, which was admittedly a simple one.  The case involved a chain reaction automobile accident.  My partner represented a young guy who had most likely caused the whole thing when he attempted to change lanes on a busy highway.   This client was a scruffy looking blue-collar type and the case was pending in a very upscale jurisdiction.  The plaintiffs and several of the defendants were doctors/lawyers/engineers/spies (you know we’re near the Agency).  That our client would lose was a foregone conclusion, but the case couldn’t be settled for various reasons and we were going to try it.  In fact, I suspect my partner was all the more comfortable turning it over to someone else to try because the case looked like such a clear loser.

And I won it.  Outright.  I would love to say that the victory was due to my outstanding advocacy (and I will say it – ta da!), but I am sure that something else was going on in the jury room. 

Issue No. 1:  One of the plaintiffs was a real windbag.  Just a real nasty piece of work.  The jury probably hated him.

Issue No. 2: The lawyer for one of my co-defendants fell all over himself throwing my client under the bus.  It came across like a personal, obsessive hatred for my client, who was not a bad guy.  During his closing he suggested that my client was a horrific liar (which gave me the opportunity to gleefully use one of my favorite words – mendacity – in my own closing, BTW).  The jury probably spotted the hyperbole and was none too impressed with it.

Issue No. 3:  There wasn’t much at issue in terms of damages.  The plaintiffs had your basic soft tissue aches and pains, nothing people over forty don’t deal with on a daily basis, and here they were, using two days of valuable court time to complain about it.      

Issue No. 4:  One of the plaintiffs excused herself from trial because, she told the court, she was a small business owner and couldn’t afford to spend another day away from work.  This was probably the straw that broke the llama’s back.  (I’d say camel, but this case didn’t even merit a camel.)

Was a defense verdict a bad call under these circumstances?  Probably.  Did I appreciate it?  Sure. 

Of course I’ve been on the other side of the equation too.  I tried a coverage case to a jury that involved an alter ego problem.  My client issued a policy to a corporation.  The two owners of this corporation also ran an unincorporated side business that did business under a trade name.  The unincorporated business was sued, and then when the plaintiff got wise to the problem, the case was amended to name the incorporated named insured as well. 

It was a fact case.  The simple question was whether the unincorporated business was an alter ego of the incorporated business such that it was entitled to insurance coverage under my client’s policy.  I presented all sorts of evidence that it was not.  There were statements under oath that were favorable to me, and frankly, the two men who ran these concerns were kind of oily.  Yes, let’s say oily.  There were documents.  The case was being tried in a very conservative, mostly rural county.  I thought for sure the jury would see right through the huckster tactics.  But it didn’t.  I lost. 

It used to be that members of the plaintiff’s bar were eager to get their cases before a jury.  I see that changing some, now.  During the last election in Maryland, the plaintiff’s bar supported a constitutional amendment to lift the jury trial threshold from $ 10,000 to $ 15,000.   The amendment was approved by the voters.   This means that if a plaintiff seeks under $ 15,000 in damages, the defendant cannot demand a jury trial and the case will be tried to the bench, in district court, where discovery is limited and the evidentiary rules are relaxed.  Judges are now the more sympathetic arbiters, in some cases, and the cases are cheaper for plaintiffs to try.   Times have changed.