Category: Our Experiences

Tales of my life as told by me.

Jury Selection

I learned about a new reality show today in Civil Procedure called “jury selection.” It’s kind of like that old show, Survivor, where they vote people off the island except the elimination of contestants (potential jurors) is based on stereotypes and perceived biases that pertain mostly to race, religion, wealth, and employment. God bless zealous […]

Update 2009: It cuts off.

My Torts Exam Question

Chris has an 8am meeting with new clients at Pebble Beach, but he’s new in town and completely lost on the Monterey Peninsula. In the midst of his cursing and thrashing about within the cockpit of his car, he turned on the built in emergency phone system called OnStar. A woman’s voice came from nowhere, which startled Chris and caused him to veer off the road and into a mailbox.

“My name is Linda. Are you OK, Mr. Rogers??
Chris, mistaking Linda for the voice of God reprimanding him for all of the sex, drugs, and rock ’n’ roll he experimented with in college, started to cry.

“Please, Linda-God. Have mercy on my soul. I promise I’ll be good.?

“Mr. Rogers, this is OnStar. Look at your dashboard. See the OnStar button??

“Oh, hah. Yeah. While you’re on the phone, can you give me directions from wherever I am to the nearest hospital and then to Pebble Beach??

Inevitably, as often happens with these new fangled OnStar devices, Chris, despite following the directions exactly and making u-turns as instructed, found himself completely lost. In fact, he wasn’t just lost. He had come to rest in the Monterey Peninsula ghetto. Yes, there is such a thing.

So, no hospital. No golf. Probably, no new clients. And now he’s lost in the ghetto. Worse yet is that he just noticed that the no-flat tires on his Cadillac didn’t make it their guaranteed 50 miles.

I think it’s quite obvious what happens next. His car breaks down. He is forced to strip from his golf clothes and is beaten with his driver by a 12 year old.

Alternative Liability

Torts was interesting today. We are covering “causation,” which is one of the elements of a negligence claim that the plaintiff has to prove to win a case – kinda. Anyway, to make a longer story short, we were specifically talking about “alternative liability,” which is employed when there are two defendants that are equally liable for a single claim brought by a plaintiff. There are loose restrictions that must be present when using alternative liability, which are:

1. Each defendant must be negligent
2. Proper parties. Generally, there can’t be too many defendants.
3. Harm to the plaintiff.
4. Simultaneous actions by the defendants.
5. Plaintiff can’t prove which defendant is negligent.
6. Defendant has superior knowledge of negligence.

If the plaintiff can show 1-6, or the court finds 1-6 present, then the burden of proof shifts from the plaintiff to the defendant. At this point, if the jury finds for the plaintiff, then both defendants are equally fully liable. That is, if the jury determines that the plaintiff is to be awarded $1,000,000 then the plaintiff can select one of the defendants to pay the full amount. It is up to the defendants to sort out the costs on their own, in a separate matter.

My question is, can the defendants, who are both equally liable, but only one of which will be selected by the plaintiff to pay the damages, attempt to persuade the plaintiff to chose the other defendant?

Zealous Representation

Excerpt from my Civil Procedure book:

The means employed by litigators to achieve victory for their clients regularly involve manipulating people and the flow of information in order to present their client’s positions as persuasively and favorably as possible. This manipulation may involve any or all of the following general techniques:

  • not disclosing evidence that could be damaging to the client or helpful to an opposing party
  • not disclosing persuasive legal precedents that could be damaging to the client
  • undermining or deflating persuasive evidence and precedents that are damaging to the client and are introduced by opposing counsel, by such means as upsetting or discrediting honest and reliable witnesses or by burying adverse evidence under mounds of obfuscating evidentiary debris
  • overemphasizing and present out of context evidence and precedents that appear favorable to the client
  • pressuring or cajoling witnesses, jurors, and judges into adoption views that support the client’s position
  • deceiving opposing counsel and parties about the weaknesses of the client’s case and the vulnerabilities of the opposing party and counsel that have nothing to do with the merits of a given dispute by such means as intimidating an anxious opponent, spending a poor opponent into submission, or “soaking” in settlement an opponent who has public image problems or who for other reasons cannot endure the risk and public exposure of a trial.

None of these techniques is illegal or violates the letter of the ethical rules of the profession. Indeed, the refusal to resort to at least some of these devices may be construed as a breach of an attorney’s obligation “to represent his client zealously within the bounds of the law.”