January 17

From Cyberlaw

Contents 1 Vinny 2 Administrative matters 3 Daubert 4 After Daubert: Standard of Review 5 Next Question: Scope 6 Further Discussion 7 Looking at the Studies used in These Cases 8 Hanaford 9 Torts Forray 10 Woburn Case 11 Vinny 12 Judge Byrne 13 Vinny Expert

Vinny

• P’s opening statement is a model of an opening statement. Not great, but has the basic components.
• the idea with an opening, esp from the P side, is to tell the jury what they’re about to experience. A roadmap, like an introduction.
• P’s instruction to the jury that it’s not what he says, but what the witnesses say that counts, that’s completely appropriate.
• Vinny’s opening statement is not as bad as it’s depicted. Defense counsel faces a strategic choice. It’s often the case when the defense lawyer stands up, she doesn’t know what the defense is going to be. She faces big strategic choices as P’s case unfolds. Doesn’t know yet whether she will put D on the stand, or the line of defense; therefore, is wary of making commitments, since P will certainly call her out on it.
  • This led to many years of denfense attorneys postponing their opening statements until the beginning of their cases. But the modern view is that you make one at the opening.
  • But now defense attorneys tend to think it better to given an opening.
• each player in the rhetorical space is competing for rhetorical focus. (Ben Braffman)
• the process is mysterious to the jury in many ways, so there is good opportunity to help orient them.
• the public defender with the stutter; oftentimes, a handicap will allow the atty to show strength of character in dealing with it. Thereby the fact of a handicap often turns out to be an advantage (credibility)

Administrative matters

• N posted the feedback memos online
• will be discussing NSA memos with professor Sunstein on Wednesday

Daubert

• difficult case. When it was decided, there was confusion as to who had won
• this case deals with Bendectin, an FDA approved, widely prescribed medication.
• the case is brought in federal district court in CA, where the judge holds that P’s experts don’t meeet the Frye test, and therefore cannot testify. Without their experts, P’s have no way to prove causation, no other evidence that Bendectin caused defects, so they lose on summary judgment. P’s appeal, on the grounds that the district court shouldn’t have applied the Frye test. They also assert that the district court misapplied the Frye test. The case is affirmed on appeal.
  • argument that the Frye test has been superceded by the federal rules. P’s win on those grounds.
    • winning something in the supreme court is certainly worth something for the value of P’s case for settlement.
  • on the other hand, Daubert was a huge victory for the defense bar, because it addressed this problem that we saw in Agent Orange, of dealing with ‘junk science’ as a basis for judicial opinion. The court said that the federal rules do indeed superceed Frye; they add a responsibility for the judge not only to see that an expert’s methodology is acceptable, but also that it’s applied in a reliable way. This is a huge step.
• Under Frye, you had to have qualified expert and generally accepted methodology, and then you're pretty much home free. The name of the game for P's lawyer was to get to the point in the case where he could stand in front of the jury and ask them for money. The jury doesn't have to figure it out; rather, the jury is like a randomizer (?). on the other hand, as soon as you push judges to look beyond the Frye requirements, you push them past the norm.
• The opinion on remand is a beautiful piece of work. What are they telling us to do? This is crazy. We have no scientific knowledge.

After Daubert: Standard of Review

• a period of confusion in the federal courts, of almost political character. One of driving forces in the judiciary is a belief in the jury system.
• Many states still apply the Frye test, especially those where the plaintiff's bar have the power.
• Cases start coming up, like Joiner, another toxic exposure with causation.
  • The judge excludes the testimony, and the 11th cir. reverses, saying that it reviews the judge's ruling with a bias to the jury being able to review the evidence. On cert, the supreme court looks to the standard of review of the judge who makes that decision.
  • Imagine this in strategic terms: supreme court is running a hierarchical system where judges at the end points are making judgments that protect the system. Once they make a decision, how does the next tier review them?
  • in Joiner, the judge does a good job of gatekeeping
  • the supremes say: the standard of review will be abuse of discretion

Next Question: Scope

• the motivation for creating this change comes from a particular kind of case: Daubert was written for causation in big money tort cases, where the etiology of causation is not well understood.
• The supremes in Kumho say that they aren't going got have a special rule for tort cases. Almost compelled to say this; no mandate to carve out separate cases.
  • Judges are required to make sure that any form of expertise is reliable.

Further Discussion

• If a doctor prescribes you a medication, is he giving you expert advice? Could he testify to that? What if a doctor thought that if a patients leukemia was caused by agent orange, the red pill would cure it, but if it wasn't caused by agent orange, the pill would kill him, and vice versa for a blue pill. The doctor does a bunch of tests, and decides that it's the red pill. That's a clinical judgment. Is that to be unacceptable henceforth as expert testimony? What if doctors disagree on what the studies say? Does the doctor who does something different from the accepted method act unscientifically?
  • The judge asks, do I believe A or B? Under Frye, the experts can't be admitted based on the outcome/reliability of the test, although there is flex for the judge who knows where he wants the case to go.
  • The judges don’t want to be in a position of nose counting, or saying that no dissident has ever gotten it right. On the other hand, the gatekeeping function is strong.

Looking at the Studies used in These Cases

• Statistical conclusions arise from epidemiological studies.
  • Here there's a big distinction between Agent Orange and Bendectin; the former was known to be toxic from the beginning. That means that there were no human studies of Dioxin, although you do get data from studies of accidents. Bendectin, on the other hand, has been given to millions of people, wherein we have a ton of studies where we get to see. The study of the accidental occurrence is much less controlled.
  • Does this lead to conclusions about whehter one of these cases should be harder to prove?
• sorting who has been exposed and who hasn't has a big effect on the outcome.
  • With Agent Orange, the air force had done a ranchhand study, seeing the instance of disease. They looked at everyone around, regardless of actual proximity to the substance. They piled a lot of healthy people into the subset. It's a study designed to protect against the assertion.
  • A field open to Plaintiff's lawyers: reanalysis | meta-analysis. You'd like to have your own study, but don’t have the money. However, you can look to the underlying data sets and reanalyze the data, to see whether the sorting of exposed to unexposed was done correctly.
    • There is even respectable software that you can use to arrange the data to produce a statistically significant outcome.
• Animal studies. Can you draw a conclusion for litigation purposes of causation inn human beings from the fact that giving the stuff to mice has an effect.
• Molecular structure. if the structure looks similar to something that has been shown to be toxic.
• While judges are getting more into these methods, Daubert is still seen as a huge block to the plainitff's bar.

Hanaford

• nuclear downwinders trying to show circumstantial proof of causation
• kazinski is pointing out that non reviewed testimony is a little suspect, but doesn't want to shut it out altogether.
• he deals with the case in front of him by sweeping it out on a burden of proof: P must prove more probable than not that D's action caused his injury.
  • what would statistical evidence be that met this standard? Doubling of background risk.
  • why is this the standard? Because before you have a doubling, it's more likely than not that your background risk caused the injury. Once you have a doubling, you have a 50-50 chance that the defendant was responsible for your injury.
  • Implications. Let's say we start with a 20% background risk, and defendants are demonstrably negligent, increasing the risk to 39%. They have killed 19 out of 100 people. This opinion seems to say that the individual plaintiff in that situation has no recourse, since they can't prove that their individual death was more likely than not caused by D's action.
    • We're not looking for a standard of a proof that's acceptable to the medical community, but rather one that acceptably solves this case.
    • If you require P's atty to prove something that the medical profession is spending billions of dollars to prove, then you might as well throw out all toxic tort cases. There has to be some kind of statistical proof that comes in, that's always going to fall short of medical standards.

Torts Forray

• Summers v. Tice. Two guys simultaneously shoot at a deer. One of them hits a guy, and the other misses. Each guy defends on the grounds that it's impossible to prove that either of them did it. P has been hurt, both shooters were negligent, and one of them hit. P wins.
  • This is a decidedly different case from license plate problem. In that situation, one of them didn't do anything wrong.
  • Carry this over to Daubert: has anything wrong been done? Is Bendectin capable of causing this injury?
    • when you're confronting the question of whether the agent is actually toxic, then it makes sense to use the statistical approach, where you don’t get anything significant until you get a doubling of background. Before you hold someone liable, then show that you have caused some harm.
    • but once you're dealing with wrongdoers, what do you do?
• Hanaford says that there is no doubt about the toxicity of radiation. At that point, where you have a wrongdoer, the question is how much you make them pay.
• negligence and causation are the two issues in the typical negligence case. Imagine a probability of 60% that D was negligent, and that there is a 60% probability that D's action caused the injury. The standard of proof is more probable than not that D is liable. In this case, the probability is 36% of an overlap of the independent factors.
  • conceptual problem in the law: how to deal with successive independent elements of the offense?
  • instructions: to find D liable, you must consider whether D was negligent BRD, and then treat that as closed, and then go on to causation. If found there, we give P 100% of the damages.
    • The fact that we go more probable than not on each separate element means that on each element,, we're offering the best story on each element. And if it's the best story, then we run with it. it might be that the totality of other stories gives you a higher probability, but the best single story carries the day here.
• if we apply that same logic to mass torts, where we have statistical proof, then we get awful results. If you see the expert situation as a failure of the system, then you need also to take the next step and figure out a better way to do it. That means changing the causes of action.
• the way the law stands now heavily favors the corporations. The plaintiff now must prove that your product causes injury. One could imagine the burden being on the other side, or at least shifted the burden to the company putting the stuff out, so that the absence of scientific knowledge doesn't cut in the direction of the potential harm causer. The burden of the corporation should be to clarify scientific knowledge with respect to its products.

Woburn Case

• N was in this case. WR Grace cleans things with solvents, and then they dump the solvents in the ground, where they seep into the aquafer. When breathed in in the shower, it passes the placental barrier and causes leukemia.
• proving that it's the solvents in the water that caused the harm and not any number of other things is phenomenally difficult.
• at the end of the day, P's can't show causation, but everyone is convinced that the company put the stuff in the ground, and everyone thinks that it was coming through the showers. On that evidence alone, can you articulate a cause of action? Has there been a wrong done? There is no way to say so at the moment.
  • they did something wrong, and they can't prove that what they did didn't cause the leukemia.
  • what have we done to you that should entitle you to get money from us? Yes your children are dead, but you can't prove that it's us.
  • can we have damages for putting people at risk of leukemia? Well, there's no tort if you almost hit someone in the road.
  • this is why torts don't solve these questions. You need to have other regulatory measures.
  • burden shifting: once you've shown that it went into the ground, the defendant must show that the chemical did not cause the harm.
• are we going to start proportioning verdicts?
  • this brings us back to the blue bus.
• who is going to do the studies of determining whether the suspected elements are harmful? The corporations, who architect the studies from the beginning. There is now a whole branch of lawyering determining how studies should be conducted to come out in favor of the corporation. The burden of ignorance is still on the plaintiffs, and the incentive on the company is to generate proof that nothing was done wrong, and to hide proof that it did.
  • could a sufficiently well organized plaintiff's bar not also organize studies?

Vinny

• P clandestinely shows the jury the photo of the clients car
• This is a good example of cross examination
• The public defender does the world's worst cross examination. Asking questions without knowing the answer.
• Vinny, on the other hand, does a well structured cross examination. He knows where he's going from the beginning. He figures out that the time is the problem, and figures out how to deal with it. He insists that the witness answer the question, and then has it repeated.

Judge Byrne

• William Matthew Byrne junior, the judge in the Pentegon papers case has died. He got in trouble as a result of this case. Byrne dismissed the case in 1973, saying that the government had been guilty of misconduct.
• This obit is offensive in that Ellsberg gets the last comment.
• Here's what happened: the Pentagon papers = a secret study done under Macnamara for the DOD. They pretty well demonstrated a continuing pattern of perfidy on the part of the administration, lying about Vietnam, starting with Tonkin Gulf and running up through the pentagon papers. The public posture was one of manipulation of the American public. Ellsberg was prosecuted for espionage, tried in LA with Tony Russo. Long, very public trial.
• N had made a contact with someone in the state dept who leaked a bunch of documents to N, having to do with background elements for the case. They asked for those docs in discovery. But one of the early witnesses in the case was the guy who was in control of the office that generated these documents. He was on the stand for other purposes, and N started asking him about documents. The judge perked up, asked about the docs, and ordered them flown out for the case. The military ordered them flown out on a prop plane that took 10 days to get to LA. This began a pattern. At one point, deep in the trial, a friend from DC told him he'd just learned that the plumbers had told the grand jury in DC about breaking into Ellsberg's psychiatrist's office to steal the records. Misconduct? No. They then learned that the judge had been invited by Nixon to come to the summer White House and offered him the job of being director of the FBI, while the case was pending. They brought that to the judge's attention with a motion for mistrial. Misconduct? No. They then learned that Erlichmann had flown to LA and had a meeting with the judge, sitting on a park bench in LA. Again, the attys demanded a mistrial. Then began the pattern of beginning the day by moving for a mistrial with prejudice. The judge would say, you have grounds for mistrial, but you're alleging prejudice. Do you have any authority for the proposition that a district judge can dismiss a case with prejudice? No. Rinse and repeat. After five days of that, Boudin answered, I don’t have any authority for this proposition, but the next time someone asks that question, I'm going to cite your opinion.
• This story has to do with stepping up, with transcending the rhetorical space and the role that you play and making sure that what you're doing is proper. It's about breaking into the reality of the scene and communicating that what you're doing is powerful. His point transcends whatever else is happening there.
• Boudin
  • had probably the best appellate record of his generation. He became the lawyer for the communist party… but he had never tried a case, had no idea about the rules of evidence. But he had the greatest objection ever. "Objection! Too damaging to my client!"
  • He totally destroyed the govt's expert. Asked the general to list the last five books he'd read on strategy. Painful silence. Why that question? You never answer the question when the answer can hurt you.
  • He had a pace maker. He got medical permission from the judge to walk around, because sitting wasn't good for his heart.
  • He trips at some point when getting up to speak. Then starts looking around for a contact lens. This is a winning strategy.
• Best move: Russo is represented by Weinglass, who had been one of N's first clients; Weinglass had been the defense attorney in the Chicago 7 case; the judge held the lawyers in 24 counts of contempt. Dersh and Nesson represented the lawyers on appeal. So Russo always looks a little shaggy, and Weinglass and the Berkeley commune are always in disarray with papers everywhere. In the prosecution's rebuttal case, they brought in a surprise witness, who was a negotiator in the Paris peace talks, who was going to testify that the fact that the Pentagon papers were released made the Paris peace talks much more difficult. N and B were really worried that this witness was going to kill them. So the morning of testimony, they swept the table clean, and every lawyer sat through the testimony with hands folded, totally quiet, and the jurors spent all their time looking at the defense attorneys, wondering what was happening. Later, they couldn't remember anything the witness had said.
  • Darrow had a witness that was going to kill him. He put a wire down his cigar. As the witness was testifying, the ash on his cigar got longer and longer; the jurors could look at nothing else.
• Up till this point, Byrne was a golden character. He would have loved to be head of the FBI. The way this unfolded, he was finished for any job that required hearing and confirmation. Byrne knew that this case woudn't stand up on appeal, and that his misconduct would get splayed out on appeal. So he knew that he had to get rid of this case, and Boudin knew that he knew it.

Vinny Expert

• this is circumstantial evidence. The guy did the tests on the tires himself, so he is the appropriate basis for the opinion.
• note also the similarity between this scene and Lisa on the faucet. She is making it up as she goes along. The question is whether there is any significant difference here between this and what the experts do.
• Remember the Wiki entry on the meta-myth. Vinny is offered as a meta-myth in this class of the trial process. We should be asking ourselves, in the way that Vinny is suggesting, what the basis story lines are of the expert witness, and of the criminal defense as a whole.
• Vinny's objection is proper. And the judge is probably right in overruling it (discretion). He might have given Vinny a short recess, but he's got the jury sitting there. The business of stopping trials is something that has seriously undermined the trial process.