A Trial Lawyer’s Reflections on His Calling

jpegMark N. Stageberg, a Minnesota civil trial lawyer with over 40 years of experience, has written a fascinating review of his career in Win Some Lose Some: The Trials and Tribulations of a Trial Lawyer.

I am amazed by the broad variety of his experience–insurance defense work in personal injury cases as he was starting out and then plaintiff’s personal injury and other types of cases over the rest of his career. Most were in state and federal courts in his home state of Minnesota, but he also has handled cases in the courts in 14 other states. Moreover, he has been a lawyer in over 175 completed jury trials or an average of about four per year.

In an era when most civil cases are settled, that is a truly remarkable accomplishment. This is shown by the statistics for all civil cases for all the federal district courts for Fiscal 2013 (10/01/12–09/30/13):

 

Civil Cases Number
Pending at 09/30/12 271,141
Filed FY 2013 284,604
Terminated by trials FY 2013 (11,036)
Terminated by other means FY 2013 (244,224)
Terminated subtotal FY 2013 (255,260)
Pending at 09/30/13 300,485

In other words, only 4.3% (11,306/255,260) of all the federal court civil cases that were terminated in FY 2013 were terminated by trial. I believe similar statistics exist for other years for the federal courts. The same is true, I believe, for most state courts.

Becoming a Capable Trial Lawyer

Stageberg starts by saying that finishing law school and passing a bar exam do not by themselves make anyone ready to conduct a civil trial (p. 20-21). Instead, it takes actually trying cases and learning from experience. This would be aided by having an experienced mentor, something he did not have (p. 27).

As a retired lawyer reflecting on my first years of practice nearly 50 years ago, I wholeheartedly agree.

Like almost all law students in my first year I had civil procedure, an essential tool of a trial lawyer and litigator, but it was book-learning, and it seemed like ancient history three years later when I was starting to practice and trying to learn how civil procedure worked in the “real world.”

Moreover, there is not a general overarching set of procedural rules that apply in all courts in the U.S. There is the Federal Rules of Civil Procedure that govern all civil cases in all the federal district courts plus local rules for each of the 94 such courts. The local rules with which I am most familiar is the set for the District of Minnesota. In addition, each federal district judge often has his or her own additional rules or practices.

Each state in turn has its own set of civil procedural rules. Thankfully for the trial lawyer, most states have adopted rules modeled on the Federal Rules of Civil Procedure, but there are usually some differences between the two. Here I reference the Minnesota Rules of Civil Procedure. The states also frequently have an additional set of rules; in Minnesota it is called the General Rules of Practice. Again the lawyer also needs to be aware if the individual trial court judge has other rules or practices.

Trial lawyers also need to be intimately familiar with the jurisdiction’s law of evidence. Now there is the Federal Rules of Evidence for trials in the federal district courts, and there are separate evidentiary rules in each state. Again the trial lawyer is thankful that today they are modeled on the Federal Rules of Evidence; an example is the Minnesota Rules of Evidence.

Another body of law needs to be in the trial lawyer’s tool kit: conflict of laws. Because many cases involve facts in different states or different countries, there has to be a set of rules or principles to determine which jurisdiction’s substantive law applies. Each state has its own body of such law, and the rules applicable in federal court cases are even more complex.

All of these areas of law—procedure, evidence and conflicts—are in addition to the substantive law that determines whether or not there is liability and the appropriate remedy. Frequently the trial lawyer will look for guidance on these substantive issues to other lawyers in his or her law firm with appropriate expertise. For example, I handled a case raising issues under the complex federal Employee Retirement Income Security Act (ERISA), for which other lawyers in the firm who specialized in that area provided the substantive legal analysis.

For all of these areas of law the trial lawyer needs to keep abreast of any amendments to the rules and statutes and their interpretations by the courts.

As a result, if the lawyer is handling or trying a case outside his or her home state, the lawyer is required by court rule to associate with an attorney of the bar of that jurisdiction, and such co-counsel needs to be knowledgeable about all these issues in that jurisdiction. Stageberg learned this lesson when his local counsel was not so qualified (p. 188).

Another requirement for the trial lawyer is developing the skills of using the courts’ discovery rules plus independent investigations to discover the facts relevant to the case and to assemble the evidence for the case, including the retention of expert witnesses when appropriate.

All of the foregoing knowledge is necessary before you enter the more complex and challenging trial courtroom. There the lawyer needs to develop the skills of oral advocacy, of asking non-objectionable questions, of making appropriate objections, and of making tactical and strategic decisions, all in the pressure cooker of a trial courtroom when there is an opposing lawyer who is trying to counter whatever you do and defeat you in the courtroom battle.

Yes, indeed, learning how to be an effective trial lawyer takes a lot of learning by doing.

The Stress of Being a Trial Lawyer

Stageberg tells us, “Trying lawsuits is very strenuous, high-pressure occupation. Working thirteen or fourteen hour days for the duration of the trial is . . . very hard work” (p. 382).

Amen! From my much more limited experience of actually trying cases, I concur, and a prior post discussed some of the aspects of this stress.

Indeed, the mere foregoing recital of the things that have to be learned by a trial lawyer should make it self-evident that trial work is very stressful and very hard work. But wait, there is more.

When you are in the courtroom itself, even though that may “only” be three or so hours in the morning and another three or so in the afternoon, your mind is continuously multitasking. Here are a few of the questions that are running through your mind when you are examining your own witnesses. What did the witness say? How do you respond to any objection? What is the next question? Are you covering the essential points for the plaintiff’s claim or the defendant’s defense? Have you covered all you wanted to do with this witness? Have you introduced and offered into evidence all the exhibits you planned? How is the judge reacting to the testimony? The jury? Who is the next witness? Do your plans for that witness have to be changed in light of what this witness is saying?

The opposing lawyer has all these questions running through his or her mind plus others. Is the question objectionable, based upon the law of evidence? If so, what objection and whether and how to state it? Is the witness’ testimony consistent with what he or she said in a deposition or an affidavit, both under oath, or in a letter, memo or email or other document? How should I cross-examine this witness? Then conducting the cross-examination puts you in the shoes of the lawyer described in the prior paragraph.

Moreover, before you start in the courtroom in the morning, you are also multitasking. Preparing the witnesses who will be testifying that day. Anticipating what the opposing counsel will do or say. Changing and adjusting the plans you had made before the trial started. Checking in with your assistants on current and new assignments. This process continues during any breaks during the day in court and after you leave the court to prepare for the next day. Thus, it is easy to have 14 or more billable hours for each day of trial. (This shows why trial is so expensive and why the cost of continuing litigation is a frequent factor in settling cases, before, during or after trial.)

You also have to find time during trial for bathroom breaks, meals and sleep. Sleep does not come easily as your mind races over all of the decisions you made that day and those you will have to make the next day. As a result, your sleep suffers and you get exhausted. You need to eliminate all other demands on your time, including commuting. For example, in my last trial in state court in downtown Minneapolis in January 2001, I stayed in a hotel close to the courthouse in order to eliminate the daily seven-mile commute from my home and the risk of winter storms and traffic making such commutes even more difficult and time-consuming.

Practical Tips for the Trial Lawyer

Stageberg emphasizes that the attorney should never believe everything a prospective or actual client says and that a new client should not be accepted before the attorney has done some independent research about the prospective client (p. 327). I recall a case for a regular client of the law firm when I should have followed this precept. The client’s distributorship had been terminated by the manufacturer, and after obtaining the client’s file for the distributorship, I commenced a lawsuit for breach of contract and other alleged wrongs only to have the manufacturer’s lawyer provide me with a copy of the written contract (which I had never seen) that torpedoed the lawsuit.

Stageberg frequently tells us of lessons learned about trial practice as he tried more and more civil cases. Here are some of them:

  • “Don’t take loser cases to trial. Settle them.” (p. 23)
  • Evaluating pre-trial settlement offers is difficult. It requires evaluation of the strength of all the witnesses and other evidence as well as the lawyers involved. (p. 43)
  • Juries can go off on tangents so try to provide careful explanations of photographs and other exhibits (pp. 21-22). Be honest with the jury. Do not downplay the problems with your case (p. 306).
  • Trying to “read” a jury’s reaction to the testimony and to you as attorney is very difficult and easy to mistake (p. 23). Also avoid prejudging a jury based on stereotypes (p. 45).
  • An expert’s testimony about his or her opinions requires the prior establishment of foundation for that testimony (P. 22).
  • The lawyer needs to know how to pronounce the unusual names of witnesses and places (p. 51). The lawyer should also be careful about what vehicle he or she drives to court, not wanting to offend U.S. workers by driving a foreign vehicle (p. 50).
  • The lawyer needs to make a trial court record for anything that might become an appellate issue, including the judge’s inattentiveness (pp. 91-92).
  • Always try to anticipate the unexpected and maximize your control of the situation (p. 126).
  • Eyewitness testimony is not always reliable (p. 129). In certain cases, the lawyer should make his or her own inspection of the accident or other important scene in the case (p. 133). Having a jury inspect such scenes can also be a very effective tool for the lawyer (p. 210).
  • Especially in personal injury cases, the plaintiff and his or her attorney needs to be aware that insurance companies frequently conduct surveillance of the plaintiff (p.142).
  • The attorney’s presentation of the essentials of a case to a focus group or mock jury can greatly assist the attorney in revising the case to make it more effective in the court (150-57).
  • The attorney needs to counsel the client to be careful on what he or she says and their appearance in the presence of the jury or individual jurors in and out of court (p. 214).

Stageberg has harsh words about some lawyers from large law firms who represented clients in litigation, but did not have much actual trial experience (pp. 245-50). In at least one instance Mark, known as an experienced trial lawyer, bluffed about his eagerness to go to trial and thereby induced the defense counsel to make a substantially better settlement offer (248-50).

When I encountered Stageberg in a case, I was a “litigator” from a large law firm with much less actual trial experience than him. I do not recall if he tried this “trick” with me, but I know we did not accept any of his pretrial settlement demands or substantially change our counteroffers. As a result, we went to trial and only settled after the trial of the liability issues and before the damage phase of the trial. Moreover, although Mark is critical of pretrial motions (p. 245), the dismissal and summary judgment motions that I made were granted and his motion to add punitive damages was denied, all substantially reducing the ad terrorem nature of his case. (A prior post discussed my disagreement with some of the things Stageberg said about this case.)

Trials by the Court

Trial by jury, or course, is not the only way U.S. courts try civil cases. In the federal system, parties may waive their constitutional right to jury trial under the Seventh Amendment and have a single judge hear all the evidence and render a decision in that case.

This is another tactical and strategic decision for the client with the lawyer’s advice. For a lawyer like Stageberg with extensive jury trial experience facing other lawyers who probably have less jury experience, Stageberg would favor trial by jury.

I, however, tended to favor trial by the judge unless there was some reason to doubt the ability or fairness of the judge. In addition, the lawyer usually knows a lot about the judge’s record and manner whereas nothing is known about the abilities and skills of an unknown jury. Finally I often believed that a judge can better understand the complexities of a case than a jury.

In 2013 (long after my retirement from lawyering), I was called for jury duty in Minneapolis and was on two panels of prospective juries, but as anticipated, I was stricken from both by preemptory challenges. Trial lawyers generally do not want other lawyers to serve as jurors on suspicion that they will be too dominating in the jury’s deliberations. But it was an educational experience to see the process from a different angle and to appreciate and respect the seriousness of the prospective jurors and the trial judges.

I did not find a discussion of this issue for the trial lawyer in the Stageberg book. This is merely an observation, not a criticism.

Alternative Dispute Resolution (ADR)

The foregoing discussion by itself should demonstrate the high cost of litigation through trial. Given the legitimate public interest in resolving disputes as quickly and as cheaply as possible, many of our courts have adopted what is often called court-annexed ADR (Alternative Dispute Resolution).

For example, in Minnesota state court cases, pursuant to General Rules of Practice 114.04, the parties are required to confer promptly after the commencement of a case on various matters, including “the selection and timing of the ADR process,” and if the parties do not so agree, “the court, at its discretion, may order the parties to utilize one of the non-binding processes, or may find that ADR is not appropriate.”

A similar rule exists in Minnesota’s federal district court. Its Local Rule 16.5(b) provides that with certain stated exceptions, “the court must schedule a mediated settlement conference before a magistrate judge. The court, at a party’s request or on its own, may require additional mediated settlement conferences. Each party’s trial counsel, as well as a party representative having full settlement authority, must attend each mediated settlement conference. If insurance coverage may be applicable, an insurer’s representative having full settlement authority must also attend.” In addition, Local Rule 16.5(c) states that the court may order the parties to participate in other ADR procedures.

Independent of these court measures, the parties to contracts often agree to submit their disputes to arbitration or another form of ADR under the rules of a private agency that will administer the process such as the American Arbitration Association. These rules are similar in many ways, but not identical, to the relevant court rules of civil procedure, so the lawyer needs to be knowledgeable about these rules too. These proceedings are private and hopefully shorter than court trials. But the arbitrators or other neutrals are paid by the parties, which adds another expense to the cost of dispute resolution.

I spent a lot of time promoting ADR in the Minnesota State Bar Association and elsewhere. One of my motivations was to reduce the estrangement of parties that is often a by-product of litigation. I also acted as an arbitrator, drafted contractual arbitration and other dispute resolution provisions for other lawyers in the firm and was a lawyer for parties in arbitration.

I did not see a discussion of this aspect of the life of a trial lawyer in Stageberg’s book. Again, this is merely an observation.

Conclusion

This book is entertaining and educational for anyone interested in the contemporary American civil justice system. It also is most useful for someone who is thinking about becoming a trial lawyer or just starting down that long winding road. I thank Mark for sharing his career with the rest of us.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Litigation Over an Early Compact Fluorescent Lamp

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In 1988 the Faegre & Benson law firm of Minneapolis was retained to defend the Phillips Lighting Company [1] in a civil lawsuit brought in U.S. District Court for the District of Minnesota, and I was assigned as the lead attorney for the case.[2]

The plaintiff was Ibac Industries, Inc. of Princeton, Minnesota, a small town about 50 miles north of Minneapolis. It had been working at manufacturing a plastic cover for an early Compact Fluorescent Lamp (CFL) designed by Phillips.[3]

The complaint asserted claims for alleged breach of a joint venture agreement; violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), which if successful entitled the plaintiff to treble the amount of actual damages plus attorneys’ fees; fraud; negligent misrepresentation; and four other theories. I do not recall what the alleged damages were except that they were significant.

Before trial on behalf of Phillips I successfully moved to dismiss the RICO and joint venture claims for failure to state a claim on which relief could be granted and for summary judgment on another claim. I also was successful in resisting the plaintiff’s motion for leave to amend the complaint to add a claim for punitive damages.

As a result, we went to trial in December 1989 on the fraud, negligent misrepresentation and three other claims. At the end of the evidence, the court granted Philips’ motion for directed verdict on the three other claims, leaving only two for the jury to decide.

The jury returned a special verdict for Phillips on the fraud claim. Thus, the only remaining claim for resolution by the jury’s special verdict was negligent misrepresentation.

Under the Minnesota common law of negligent misrepresentation, at the time, as I recall, a person who, through his or her profession, business, or employment, or in any transaction in which he or she has a pecuniary interest, fails to exercise reasonable care or competence in obtaining or communicating information and thereby supplies false information while guiding others in their business transactions, is liable for any pecuniary loss caused by the claimant’s justifiable reliance on the information. However, such a claim is subject to the comparative fault doctrine, whereby the plaintiff can recover only the percentage of fault attributable to the defendant, and if the plaintiff’s fault exceeds the defendant’s, the plaintiff can recover nothing.

To prevail on a negligent misrepresentation claim under Minnesota law at the time, as I recall, a plaintiff must establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant supplied false information to the plaintiff; (3) the plaintiff justifiably relied upon the information; and (4) the defendant failed to exercise reasonable care in communicating the information; and (5) damages.

Even though, as I recall, Phillips contested all of these elements, the jury’s special verdict found such negligent misrepresentation and assigned slightly greater responsibility to Phillips (something like 60%) than to Ibac (something like 40%). This was good news for Phillips in that Ibac’s recovery of its damages would be reduced by the percentage of responsibility assigned to Ibac. This was bad news for Phillips, on the other hand, in that Ibac was not shut out from recovering anything. At the time I was disappointed after coming so close to “zeroing out” the plaintiff.

The trail was bifurcated between liability and damages, and after the above jury determinations on liability and before a trial before the same jury on damages, there was a settlement in January 1990 with Phillips paying Ibac a sum of money, the amount of which I do not recall.

The bifurcation of the trial provides insights about the life of the litigator/trial lawyer and being subject to the demands or whims of the court.

Judge Edward J. Devitt
Judge                Edward J. Devitt

As I recall, U.S. Senior District Court Judge Edward J. Devitt, the presiding judge,[4] called a pretrial conference in early December 1989 and much to my surprise and consternation and without any prior notice, set the trial to commence just before Christmas, only a few weeks away. Perhaps this was the Judge’s stratagem to try to force a settlement because of all the difficulties this short notice would present to the parties and their attorneys.

Unfortunately my wife and I already had paid for a vacation to Costa Rica for later that month. When I objected to this date for the trial on that basis and on the difficulties of having my client’s witnesses come from Boston on short notice during the holiday season, Judge Devitt accommodated me by bifurcating the trial between liability and damages and only conducting the liability trial before I was scheduled to go on vacation.

While I was in Costa Rica, I received news from my law firm that the plaintiff was increasing its alleged damages. This forced me to leave Costa Rica early when I was not feeling well. I well remember leaving La Selva Research Station in the rain forest where we were staying to catch a local bus on a country road for a long ride to the capital city of San Jose. When the bus came over the mountain, I saw the widespread lights of the city looking as large as Los Angeles. That really impressed upon me the lure of cities across the world to people living in the countryside.

The opposing counsel for Ibac was Mark N. Stageberg, an able, very experienced civil trial lawyer. He discusses this very case, I assume based on recollection, in his memoir, Win Some Lose Some: The Trials and Tribulations of a Trail Lawyer (pp. 94-96). [5]

I have no disagreements with what Stageberg said about this case, except for the following:

  • First, he did not mention his losses on the previously mentioned pretrial motions that significantly reduced the potential of his case.
  • Second, he says his client had “developed and sold a new prototype fluorescent lightbulb to . . . Phillips.” According to my firm recollection, that is absolutely erroneous because the bulb, to my recollection, was designed by Phillips, especially its crucial electronics parts, and Ibac was only retained to manufacture the plastic cover according to Phillips’ specifications
  • Third, I do not recall Stageberg’s account of the so-called “smoking gun” document from Phillips’ files, and I certainly do not believe that this document or any other evidence proved that the Phillips’ witnesses were lying, as Stageberg claims. Indeed, the jury’s rejection of the fraud claim undercuts Stageberg’s interpretation or recollection of this point.
  • Fourth, contrary to what Stageberg said, the jury did not determine that Phillips had “breached its contract and had committed fraudulent misrepresentations” with Ibac. As previously stated, the breach of contract claim was dismissed on motion or on directed verdict, and the jury determined that there was no fraudulent misrepresentation.
  • Fifth, we will never know that would have happened if Ibac had started the whole process with a more reasonable demand.

Nevertheless, I have to admit that after all of the skirmishing, his client walked away with a substantial settlement amount (minus attorneys’ contingent fee).

I also note that Stageberg expressed his consternation in another case when he was subjected to a trial court’s unexpectedly setting a trial date that interfered with his plans to do other things. (Win Some Lose Some at 189-192).

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[1] Phillips was part of Koninklijke Philips N.V. (Royal Philips, commonly known as Philips), a Dutch diversified technology company headquartered in Amstrerdam and one of the largest companies in the world.

[2] This post is based upon my personal recollection and on my December 1989 and 1990 descriptions of the status of this case in my annual reports to the partner in charge of my group at Faegre & Benson, which I am confident accurately reflected what had happened in the case. I do not have any documents from the case. I am confident that Faegre’s files for a 24-year-old closed case were destroyed a long time ago under regular document-retention guidelines. Finally the court’s files for the case (# 3:88cv-00482-EJD) have been sent to storage in a remote federal facility.

[3] In 1980 Phillips introduced its model SL, which was a screw-in lamp with integral magnetic ballast. The lamp used a folded T4 tube, stable tri-color phosphors, and a mercury amalgam. This was the first successful screw-in replacement for an incandescent lamp. All of this, as I recall, was before any involvement of Ibac with respect to the plastic cover.

[4] In 1989 Judge Devitt at age 78 was a very eminent federal jurist. He had served as one of Minnesota’s federal District Judges, 1954-1958, as its Chief Judge, 1959-1981, and as one of its Senior Judges since 1982. He continued in that capacity until his death in 1992. Before his federal judicial career, he served one term in the U.S. House of Representatives.

[5] I plan to write a general review of the memoir after I finish reading it.