What Will I Be Asked At Jury Duty?

“Ryan, I have jury duty coming up, what will the lawyers ask me?” says a friend at a summer picnic.

We just finished 3 days of jury selection on a food safety case in Hartford. The topic of jury selection is at the front of my mind. So here you go.

In Connecticut we have individual jury selection. This means that a juror on a civil case will likely find herself in a room – possibly a court room – with the attorneys on the case and a jury clerk. It may even be in a conference room. 

Attorneys from each side have the right to ask prospective jurors questions.

There’s no quiz. No right or wrong answers. The purpose is to assemble a panel that will give each side a fair chance at trial.

Lawyers often ask questions about professional training. For example, will a nurse or doctor on the panel be able to set aside her medical training for the judgment of another doctor and rely solely on the evidence presented in the case? Will the person who works for an insurance company be fair to a plaintiff?

We also often ask about how sure someone has to be when they make a decision. The standard in a civil case is a preponderance of the evidence. It is ever so slightly more right than wrong. It’s not even 51% it’s more like 50.00000000001%. Some folks need near certainty to make a decision and that may make it hard for them to serve.

Other common questions are about whether or not a prospective juror knows a party, lawyer, or witness.

The last bucket of questions deals with feelings about the parties. Can a juror be fair to a corporate defendant or does the juror see the corporations as evil? Can the jury be fair to the bicyclist who has the same rights to the road as a car or does he see the bicyclist as having less of a right to the road than a car?

These are the common sorts of questions that are asked. There are others too.

And if you’re not picked, it may have nothing to do with your answers. There are many reasons someone may not be picked that have nothing to do with bias. For example, a scheduling conflict or a hardship.

We believe juries are the conscience of our community and are deeply grateful for those who serve. It is truly the most important role in our democracy. The notion that problems that can’t be resolved between parties are resolved by the community has served our country well.

If you’ve served, what have you been asked? Leave your answers in the comments below.

Hillary Clinton Sued For Being A Woman…..Again

Hillary Clinton is being sued for being a woman….again.

Eight years ago, I wrote about an Nevada attorney suing Hillary Clinton to prevent her from becoming president. His theory in a nutshell:

Simply put, he says the document the fathers drafted contains gender-specific language when it comes to the president. He counts no fewer than 19 masculine references to the president. Kolo. 

I predicted his suit would be dismissed for mootness. A prediction that turned out to be true.

I will go out on a limb and again predict the suit will be dismissed.

That’s right, in 2016, a woman running for president is being sued for being a woman. For the second time.

Do I Have To Dress Up For Jury Duty?

One of the questions that I’m asked is “do I have to dress up for jury duty?” The answer is: no.

When we interact with jurors we are completely interested in what a prospective juror is telling us. What someone is wearing never factors into the equation.

Wear jeans. Answer questions honestly.

Here’s the official guidance from the Judicial Branch:
Decorum is maintained in the courthouse and jurors should dress accordingly. Shorts, t-shirts, or clothing containing offensive language or imagery are not permitted.

And whatever you are wearing, understand that the lawyers, judges, and court staff are very grateful for your service.

Very grateful.

The Stress of Practicing Law As Documented By Fitbit

Law is a stressful profession. Lawyers take on the most severe problems of their clients.

The two photos in this post show the strain of practice. They are screen shots from my fitbit. The first picture shows my heart rate at 142 beats per minute when I began my oral argument before the appellate court. I was standing still. A heart rate of 142 beats per minute is one that I acheive while running.

 

My heart rate at the beginning of oral argument.

 

The second picture charts my sleep at night. The fitbit shows that I awoke at 2:18 am. That is wrong. I was up at 1:48 am (the second to last blue line) but was just lying in bed. At 2:18 I decided that going back to sleep was not happening. I couldn’t sleep because I was replaying the argument in my head. Thinking of all of the questions. All of my answers. All I said. And answers that I wish I had thought of standing before the court.

 

 

 

Up early trying to process the argument.

This summer, I ditched my Moto 360 in favor of a fitbit because I needed to prioritize my health over incoming messages. It is a happy change for me. But these two pictures remind me of the physical stress the legal profession puts on me.

Connecticut Personal Injury Lawyer Ryan McKeen Named 40 Under 40 By National Trial Lawyers

Attorney Ryan McKeen has been named 40 under 40 by the National Trial Lawyers for civil plaintiff’s work in Connecticut.

The National Trial Lawyers Top 40 under 40 is a professional organization composed of the top trial lawyers from each state or regions of certain highly-populated states who are younger than the age of 40.

Membership into The National Trial Lawyers: Top 40 under 40 is by invitation only and is extended exclusively to those trial lawyers practicing civil plaintiff and/or criminal defense law. Invitees must exemplify superior qualifications, trial results, and leadership as a young lawyer under the age of 40. Selection is based on a thorough multi-phase process which includes peer nominations combined with third-party research.

Attorney McKeen is honored to be recognized for his commitment to providing justice for those injured by folks and companies choosing to violate safety rules.

If You’ve Been Injured – Please Contact Attorney Ryan McKeen For A No-Fee Consultation. We Can Help. Don’t Wait. Contact Us Below.

 

Connecticut State and Federal Expert Discovery Law

Cases can be won and lost on how counsel and expert witnesses manage communications. Lawyers must know how to guide an expert through litigation. Failing to properly navigate draft reports and communications with experts can result in a damaged witness, preclusion or sanctions.

 CONNECTICUT LAW

 Under Connecticut law, lawyers must assume that every communication with an expert will be the subject of questions at deposition and trial.

Conn. Practice Book § 13-4 sets the parameters for discovery available by a disclosed expert:

 the party disclosing an expert witness shall, upon the request of an opposing party, produce to all other parties all materials obtained, created and/or relied upon by the expert in connection with his or her opinions in the case within fourteen days prior to that expert’s deposition or within such other time frame determined in accordance with the Schedule for Expert Discovery prepared pursuant to subsection (g) of this section.

Nothing contained in this section shall impair the right of any party from exercising that party’s rights under the rules of practice to subpoena or to request production of any materials, to the extent otherwise discoverableConn. Practice Book § 13-4

The purpose of §13-4 which is to assist the opposing party in the preparation of his case, and to eliminate unfair surprise by furnishing the opposing party with the essential elements of a party’s claim and to assist in the preparation of the defendant’s case. Rules of discovery are designed to “make a trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” Wexler v. DeMaio, 280 Conn. 168, 188-90, 905 A.2d 1196 (2006) Grim v. Paggioli, 2011 Conn. Super. LEXIS 2374, 2 (Conn. Super. Ct. Sept. 13, 2011).

In pertinent part, Conn. Prac. Book P.B. § 13-2 provides that the discovery of information, documents, and the like which are “material to the subject matter” and “not privileged” may be obtained “if the disclosure sought would be of assistance in the prosecution or defense of the action” and the information sought “appears reasonably calculated to lead to the discovery of admissible evidence.” Conn. Podiatric Med. Ass’n v. Health Net of Conn., Inc., 2006 Conn. Super. LEXIS 452, 5 (Conn. Super. Ct. Feb. 1, 2006).

The right and opportunity to cross-examine an opposing party’s witness is an important, fundamental, and essential component of the adversarial method of resolving disputes; that right and opportunity should not be abridged or restricted absent clearly irrelevant inquiry or, more to the point, the establishment with specificity of a necessity to do so in order to assure the fairness and integrity of the proceeding. The right to fully and incisively cross-examine an adversary’s expert is particularly important  Chemical v. Executive Management Co., 1995 Conn. Super. LEXIS 3429, 24, 1995 WL 774526 (Conn. Super. Ct. Oct. 20, 1995).

Draft reports, communications with counsel, and engagement letters are all discoverable under Connecticut law.

 Federal Law

Federal Rule 26 applies to expert disclosures in Federal Court. Unlike Connecticut law, Federal Rule 26 provides work product protections to a testifying expert’s communications with counsel. All communications, aside from exceptions outlined in 26(2)(4)(C) (i-iii) between retaining counsel are protected. Draft expert reports are also protected.

Federal Rule 26(2), “Disclosure of Expert Testimony” in relevant part, reads as follows:

 (4) Trial Preparation: Experts.

(A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.

(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i) relate to compensation for the expert’s study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

Federal Rule 26’s provisions regarding experts were enacted to reduce litigation costs, allow experts and retained counsel to communicate freely by avoiding wasteful measures designed to minimize communications.

 Conclusion

In order to ethically handle litigation, counsel must understand both State and Federal rules regarding expert disclosure and discovery. The difference between the State and Federal rules matters in the area of expert witnesses.

Analysis Of TicketNetwork v. Fay Ruling

TicketNetwork is claiming the denial of the motion to dismiss as a victory. The Bushnell was unable to be reached for comment.

“We are pleased with the judge’s decision as this is the victory for the public,” Vaccaro said in a press release. “The outcome of this case demonstrates that truth outweighs fabrication of information in the court of law.“ CT NewsJunkie

In so far as winning a motion is better than losing a motion – Vaccaro should be pleased with Judge Rittenband’s ruling not to dismiss his case against the Bushnell.

A motion to dismiss is the way a party contests the Court’s jurisdiction to hear a matter.  It is a threshold matter that has nothing to do with the merits of a case:

The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.  Conn. Prac., Super. Ct. Civ. Rules § 10-31

In my opinion,  Vaccaro’s claims that “the judge’s decision as this is the victory for the public” and “the outcome of this case demonstrates that truth outweighs fabrication of information in the court of law” make for good copy. His case merely survived the first attack by the defendant.

Given how contentious this case is – it seems likely that the parties are going to take a walk through the practice book. Look for a motion to strike to be filed (to test the legal sufficiency of the claims) and a motion for summary judgment to be filed.  It would be unusual for a case like this to be tossed out of court on a motion (though, I have no opinion on this as I have not read through all of the pleadings nor have I researched all of the relevant law) – generally the superior court errs on giving parties their day in court.

Expect this matter to go to trial or settle before that.

Practical Advice For New Lawyers

Scheduling will consume much of your time. Even in the age of electronic calendars mistakes happen.

For example, this summer, I went to a pretrial conference and opposing counsel was no where to be found. I called his office and they tried to locate him. He ended up arriving an hour and a half later. I wasn’t mad. It happens to the best of us.  But I did waste an hour and a half of my time.

Later this summer, I got a call from another lawyer saying “where are you?” to which my response was “at my desk”.  He politely informed me that I was supposed to be at a pretrial in Bridgeport.  I frantically looked through my file – I did not receive a calendar notice.  When I told this to the clerk he said we sent one and I said “yeah but I don’t have it”.  Maybe the notice got lost in the mail or maybe it was misfiled in my office – I’ve never found it.  Needless to say the pretrial didn’t go forward.  I couldn’t attend an event that I was unaware of.

In practice, your clients will forget court dates. Opposing counsel will forget court dates. Scheduling mishaps happen and they shouldn’t.

The solution is simple – call opposing counsel a day or two before an event be it a court date or a deposition. Otherwise you risk finding yourself with  court reporter sitting in a room and no witness to depose.

Getting Value In A Negotiation

“Ryan, I’m a man of my word. I promise you there’s something fatally wrong with your case. I’m going to win.”

Those were the words of opposing counsel. Hey repeated them to me about a dozen times over the course of about 15 months. When he first made that statement, I immediately looked over the file. When I brought the case, I thought I was on solid ground both legally and factually. I poured over my evidence. I did more research.  No matter what I did, I couldn’t figure out for the life of me what he was talking about.

You may be thinking that this was a bluff by opposing counsel. Knowing counsel, I refuse to believe it. I’m convinced he thought there was something seriously wrong with my case and he was going to wait to trial to sandbag me with it.

Every time he’d say there was something wrong with  my case, my response was “what”. He’d laugh and snicker “that’s for me to know and you to find out”.

I’m a reasonable guy and the last thing I want to do is put a lot of work in on a file and lose for my client. I’d much rather have something pointed out to me, take it to the client, and advise the client that the case isn’t as strong as we thought.  This causes sensible clients to lower or withdraw their demands.

He put on a vigorous defense of his client. He objected to everything. Told me he was going to take me on a walk through the practice book and he did. All the while, he refused to tell me what he believed the defect in my case was. He just kept repeating “trust me, you’ve got major problems”.

After the first review of the file, I ignored his threats. They were wasted on me. If there was a problem with my case (which I didn’t think there was) then I couldn’t see it. I couldn’t advise my client to lower its demands. As a result, the litigation escalated and both clients dug in their feet as costs rose.

The one day, I get a call from another lawyer. He tells me that he is now representing the defendant in my case. In one phone call, we settle the matter.

To this day, I never found out what opposing counsel thought was wrong with my case. If he was right, and I think he believed he was, his client never got any value from me or my client for it.

To get any value in a case a lawyer needs to convince either a judge, a jury, opposing counsel, or an opposing party that there is some risk.  Most cases settle. Sitting on information with modern discovery rules is practically impossible if opposing counsel does his job.

In most cases, if you have the cards, play’em.