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Posted under Completely Different

The FDA has announced a new initiative to start a long overdue overhaul of the nation’s food safety system, while in the meantime, one infant has died and another was hospitalized from a rare infection that authorities are blaming on contaminated powdered food products.  Personal injuries from food are a growing problem in the U.S. if media reports are to be believed.

This sort of thing used to be the province of lesser developed nations.  But with the underfunding of FDA food safety regulators coupled with anti-safety tort reform laws that close the courthouse doors to families suffering personal injury from contaminated foods, we’ve seen more frequent reports of contaminated products finding their way onto store shelves.

The FDA announcement described a campaign to reshape its food inspection arm by increasing the number of inspectors in the field and updating software tools.  Still, the government is going to be hampered from any increased effort by the very real budget problems that exist at both state and federal levels.

So, in response to the nationwide problem of increased food contamination risk, the FDA has committed to hiring an additional 130 employees to conduct inspections and collect samples.  While this is a good start, clearly the tort system needs to find its own increased role in policing food safety, since a private sector solution isn’t hampered by governmental funding shortfalls or transient political priorities.

An example of the high stakes in food safety is found in a report that two New Mexico infants contracted rare infections that the Center for Disease Control and prevention said are associated with contaminated powdered formula products.  On infant died, the other remains hospitalized.

While the CDC says other environmental sources of the infection are possible, without a robust public and private safety sytem in place — meaning government inspectors on the public side and private investigators working in the tort system on the private side — we may never know the actual source of the infection.

Time to get prosafety in this country.  The stakes are high.

Posted under Personal Injury, Safety

You recall all the horror stories of late where children’s toys from offshore — usually China — have unsafe levels of lead or other defects that threaten children with harm.

This past summer, Congress passed the Consumer Product Safety Improvement Act of 2008 to try to remedy some of these problems.  The new law bans lead and other harmful substances from toys, creates a publically accessible consumer complaint database, increases civil penalties for violators and protects whistleblowers who report safety defects.

The law didn’t come into full effect in time for this holiday season, but it ups the ante for those who manufacture and distribute unsafe toys because it creates higher standards they will face should their products cause injuries that wind up in court.

Toy-related accidents are a big problem in the United States.  The Consumer Product Safety Commission estimates there were 220,500 toy-related injuries treated in hospital emergency rooms in 2006, with some 165,100 injuries involving children younger than 15.  Twenty two of the later group, died, with the leading causes of death being airway obstruction from small toys and injuries sustained from riding toys.

When purchasing toys for your own children, be aware that you are your family’s first line of defense.  Read the labels on the toys you buy and purchase age appropriate products.  

Holidays should be happy times.  By paying attention to the toys your children play with, you can make sure the holidays are filled with nothing but fun.

Posted under Personal Injury, Safety

Whether you are a judge on the bench, a juror in the jury box or an attorney arguing the case, a personal injury trial takes a lot out of you.

What none of us usually take into account is, the human body has natural rythms and patterns that affect our ability to absorb and process information that the courtroom process rarely take into account.

For example, it is well documented that stress causes the body to produce the hormone, cortisol, and that excess cortisol can interfere with the brain’s ability to create new memories.  (See this article on the Diurnal Cortisol Cycle.) At the same time, when the body produces increased amounts of the hormone dopamine, concentration levels rise.

When I’m training for a marathon, I make sure to wear a fuel belt with water, little carbohydrate gel paks and gatorade to replenish minerals and electrolytes that my body uses while running, because everyone understands that the human system, like a machine, needs replenishment to function in top form.

So, I’m always amazed that during trial, the jury usually isn’t provided much more in the way of fuel than the bailiff or courtroom attendant pointing out where the drinking fountain can be found and how snacks can be purchased on the second floor and in the rooftop cafeteria.

This is downright weird, when you think of it.  After all, trial is stressful on all the participants.  The jury especially is empowered as a democratic body to weigh facts and decide on a verdict, which is hands down the most important job in the process.  So, why don’t we take better care of our decision makers?

In the courtrooms where I practice, attorneys are usually permitted to bring in water bottles and can stash snacks in their bags if they are so inclined.  It’s always felt awkward to me to sip my cool water when I know the jury in the box isn’t provided with the same opportunity.

Note to self:  Propose that courtroom judges be asked to instruct jurors that they may bring food and drink, reasonably, into the box so they can help themselves stay alert.  Appropriate limits need to be set, say water or soft drinks for consumption during testimony, snacks available in the jury room during breaks.  Perhaps the attorneys can be asked to equally contribute to a fuel fund to save the state some financial burden.

Not all judges will allow for providing fuel for jurors, but some may.  I think most would be willing to let the jurors know they are in a stressful job and let them know, just like my marathon trainers tell their runners, that getting the most from the experience requires proper fuel.

Posted under Courtroom Technique, Personal Injury

I’ve been working with two tools that I believe all trial lawyers need to master to improve how they organize their arguments in briefs and in the courtroom.

The first tool is Mind Mapping using the Mindjet MindManager Pro software.  The second is rule based organization, as taught in Rick Friedman’s book, Rules of the Road.

My first example is a mind map outline of a conventional negligence analysis.  You’ll notice the map documents negligence in the same way it is taught to law school first years in their torts class, that is, duty, breach, causation and damages.

This analysis technique works adequaely when the fact pattern is simple, such as a traffic accident or an uncomplicated slip and fall.  But, I think we can improve on it.

Now, see how the analysis looks when you apply the rule-based approach in a mind map:

You can see that the rule-based analysis is simpler and more direct.  I think it puts the advocate in a better position to communicate their case clearly, because it forces the story into a simpler framework that is easier to understand. 

Detailed legal analysis is great for attorneys thinking through their cases.  But when we try to force a trier of fact, particularly a lay jury, to follow a complex thought process, we are raising barriers to understanding rather than building bridges.

Posted under Courtroom Technique, Personal Injury, Reading List

I’m investigating how to deal with bad neighbors in foreclosed houses, something that I suspect is interesting more and more of us as this housing market continues to get worse.

The situation I’m looking at is a house in pre-foreclosure (meaning the owner hasn’t paid the mortgage for some time) with tenants that are causing problems in the neighborhood. 

Here is a Cadillac that one neighbor saw dragging a garbage pile from the problem house out onto the city street, where it blocked traffic.

The next day, the trash pile triggered an accident.  Seems like someone should be responsible, doesn’t it?

The problems range from dumping abandoned cars on the street to excessive noice, commercial activities not consistent with the residential character of the neighborhood, etc., etc.

The local authorities (this is in Los Angeles) are sympathetic but don’t seem to be able to take any action.  In the meantime, the neighbors (incuding myself) are getting fed up.

So, what can we do, if anything?

Well, I’m looking at nuisance law as a start.  Civil Code section  3479 defines nuisnace as anything which is injurious to health, including but not limited to, the illegal sale of controlled substances, or is indecent of offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.

A public nuisance is one which affects the entire community or any considerable numbe rof persons.  Every nuisance that isn’t public is a private nuisance.  A civil action, meaning a lawsuit by private individuals, is available for either.

Violations of the planning code constitute a public nuisance.  City & County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388, 401.

Posted under Nuisance

MIT Media Lab Alex “Sandy” Pentland is mentioned in today’s Wall Street Journal for his work on nonverbal communications and there is some potential application of his work in the courtroom.

Prof. Pentland believes that most of the really important communication that takes place in organizations is face-to-face, meaning that the key interactions never make it into the written record or the organizational chart.  So, interactions in the hall and around the water cooler have high value yet can’t be measured for management purposes.  Prof. Pentland has invented a “sociometer” to try to measure nonverbal aspects of communications to try to get a better grasp on how all this works.  His work is discussed in a new book, “Honest Signals,” which I’m adding to my reading list.

Trial lawyers know that nonverbal communication is important, we worry about it constantly in the courtroom.  Nonverbal communication also is absent from our written record, the court reporter can’t transcribe information that isn’t spoken.

At the Loyola Advanced Trial Institute seminar, I offered some remarks on how different trial lawyers have differing views on what to wear in the courtroom so as to least offend or distract jurors.  The same concept applies to everything about a lawyer’s appearance at trial, those nonverbal messages are playing a role that (so far) we can’t measure and so can impact our cases in unpredicatable ways.

I was explaining to my wife the other day how the kind of car a juror sees me driving will impact their perception of who I am and color their decision making process.  She told me she didn’t think it was that important (she thinks I’m just angling for new wheels, which is probably partly true).  I think the work being done on nonverbal research would bear me out.

Posted under Courtroom Technique, Reading List

Rex Parris is the afternoon speaker for the Second Annual Loyola Advanced Trial Institute program.  His talk is focusing on cognitive science and what it teaches us about how people communicate in the courtroom.

Rex tells the story about Howard Moscovitz, who was asked by a coffee company to find them the perfect coffee.

What Moscovitz discovered was, by embracing the variability in human beings, we can find true happiness.  In other words, people are all different, so there is no single perfect product.  Instead, different people are made deliriously happy by different products.  It’s called, horizontal segmentation.

So, in court, Rex says what he wants to know from the jury, is about them.  Because by listening to jurors and paying attention to them at the start of the case, they understand a jury trial is a common effort to reach an important, just result. The way to understanding the variability in juror perceptions is to listen to them.

He cautions lawyers against trying to impress.  Rather, lawyers should share and teach in order to communicate more effectively.

Trial, Rex is teaching, is a search, not a game.  The search is for the truth, leading to a just result.

Posted under Civil Justice Attorneys, Courtroom Technique

Today I’m at Loyola Law School in Los Angeles for the Second Annual Advance Trial Institute program with David Ball and R. Rex Parris speaking.  The program  (which I’m happy to say was my idea) is part of Loyola’s Civil Justice Program, which you can learn more about here.

David Ball starts his talk by saying “Welcome to the Revolution!”  That should give you an idea of what we’re doing here today.  we’re working on revolutionizing the civil justice system so it better serves the American people.  What better goal for all of us trial lawyers?

Mr. Ball’s work is in the personal injury field, all for the plaintiff, so he is focused on the problems that tort reform has caused in polluting the jury pools in the U.S.  He says in any venue, about a third of the jurors despise attorneys.  “You disgust them.”  They call us “terrorists in suits” and think we are dangerous to them.

The corporations, he points out, know that they can control the government and they are focused on destroying our civil justice system for ordinary citizens within the next twenty five years.

As I look around the room, I see people from both sides of the aisle, plaintiff lawyers and defense lawyers alike, listening intently.  After all, we all have a stake in preserving the civil justice system for the good of the country.  Only, as Mr. Ball is pointing out, we have an uphill battle in these troubled times.

“The dynamic we need to change is that the lawyer is a public menace,” Ball says.

So, how is that done?

The thought is, trial lawyers should be giving back to their communities without regard to their own economic interests.

The concept is simple, but it’s powerful.  After all, lawyers are Americans, too.  If we as a profession can provide better information and assistance regarding matters of safety and social concern, then everyone benefits.

More later . . .

Posted under Civil Justice Attorneys

One of the things I’ve seen in my practice is how lawyers in general have a certain disdain for all but the traditional tools of the trade.  Words on paper and live argument in court are accepted, some feel comfortable with a flip chart or chalkboard, the cutting edge practitioners may even go in for powerpoint or electronic evidence presentation and feel they are state of the art.

Yet, perhaps because of a my communications training before law school, or maybe because of my career as a journalist, I’ve always felt that this regimented, almost inflexible way of pursuing advocacy leaves much to be desired.

On one hand, I understand how attorneys are loath to try anything too new, too quickly.  After all, our legal training tells us not to stray too far from precedent and our conservative natures argue against risk taking in courtroom technique, lest an experiment fail with disasterous consequences for both client and malpractice insurance carrier.

On the other hand, there’s the judge and the jury. 

The judge is likely drowning in paper and buried in cases.  In Los Angeles County, where I practice, I’ve listened to more than one presiding judge recite the litany of shortages:  not enough resources, not enough judges, not enough money, not enough of anything.

The juries, for there part, don’t come to court to listen to oration.  They are sitting there because they must, having been summoned, and as soon as they can will power up their cell phones, blackberries, video players and computers and get back to communicating with the world the way they are used to.

And we lawyers still bow, mutter aged incantations such as “May it please the court,” as if the jurist were glaring down from the bench under a powdered wig.

So, given all this, why are we prejudiced against modern communications in a modern courtroom?  I could argue we are bound by tradition.  Some might also argue we are chained by laziness.   Whatever the reason, doesn’t it make good sense to break free from our traditions and study modern communications techniques with the same intensity that our forefathers (and mothers) studied the written word?

I would argue, it not only makes good sense, but rather, it is critical if our profession is to remain relevant in advocacy.  We should be testing the legality of new techniques, prodding the court system into adapting to the communications habits of our current population.

There is no question that this movement is encountering resistance, not just among the bar, but also members of the bench.  I had an experience in federal court recently where it was impossible to find out in advance if I would be allowed to present evidence by video, even though what I was offering was clearly within the federal rules and the courtroom had the proper equipment pre-installed and available. 

Obviously, the judge must maintain control over the proceedings and rule on the admissibility of evidence.  But the court must also have clear guidelines in place so that counsel can plan their case according to modern methods.  After all, isn’t this all about orderly administration of justice?

Posted under Courtroom Technique