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Publications Committee (2024-2025)
Co-chairs:
Taylor Chaney
Alan LeVar
George Wise
Chris Heil
Carter Stein
Sarah Jewell
Geoff Hamby
Corey McGaha
Jim Lyons
Brian Brooks
Drake Mann
Brett McDaniel
Tim Watson
Lyndsey Dilks
Geoffrey Kearney
Whitney Cossio
Daniel Holland
ATLA Docket is published quarterly by the Arkansas Trial Lawyers Association, PO Box 3486, Little Rock, AR 72203. Telephone (501) 376-ATLA. All rights reserved. Statements or expressions of opinions are those of contributors and are not necessarily those of the Arkansas Trial Lawyers Association or the editor of ATLA Docket. The editor of ATLA Docket reserves the right to edit and condense all materials herein. All advertising copy is the sole responsibility of the advertisers.
ATLA's Finest
Rob
Jess
Geoff Hamby & Ryan Scott
By BW Walas, Esquire
When I was in college,
I once had a professor say that “change is the only constant.” He went on to say that no matter where you work, things will change as technology changes. Ultimately his advice was, each of you will have a choice to embrace the change or fight against it, and in an almost pleading voice he encouraged us to be a cheerleader for the change. This is our first electronic version of The Docket. I must admit that the idea of moving to an electronic version did not excite me when the discussions began, and I was not a cheerleader for the change. I can only imagine the faces of some of our younger members scoffing as they read this and think “get with the times old, man.” However, the idea of sending something that would work its way to each member’s desk appealed to me. We were putting something on their desk they could hold in their hands. However, I have been more than thoroughly convinced that this is the right move, at the right time, and is a positive move for ATLA. My hope is that those of you that are reluctant, like I used to be, will at the very least be more open to this new technology after reading this.
While this may be better for our environment and provide substantial savings for printing and postage, those are not the things that won me over. First, as with all new technology (I realize this may not be new to everyone, but it is new to ATLA), we get new functions. We get the ability to provide direct links. This means we can provide links to significant case citations or other references in our articles. Additionally, our partners will be able to have direct links in their advertisements, which should make those advertisements more valuable to them. If you would like to share an article with someone, it will be an easy click and send. When it comes to archiving, this process will also be more simple. We are working towards an archiving system that will be easier to search.
Remember this is our first issue, and I am sure that like all new things, we will have some growing pains. We want your input. We are eager to help. We believe that
By Rob Beard, Esquire, ATLA President & Justice PAC Chair
with a little patience, this will be a positive experience for all of our members. We will be tracking the pros and cons of this change. In other words, we will actually be able to stay in touch with our members more through the new electronic version of The Docket than we could with the “hold in their hands” version. Thank you to all of those who have worked so hard to make this happen and to all of you who are willing to be patient and not only embrace the change but become our change cheerleaders.
Monday.
January 13, 2025. The start of the 2025 95th Arkansas General Assembly.
Are we ready? As ready as we can be. We’ve been out there, talking to legislators from around the state. And the best part? Thanks to everyone who contributed to Justice PAC we have raised more money than ever before. This is quite an accomplishment, and I commend you all.
The hard part, however, is still to come. Teddy Roosevelt said, “Nothing in the world is worth having or worth doing unless it means effort, pain, difficulty… I have never in my life envied a human being who led an easy life. I have envied a great many people who led difficult lives and led them well.”
Don’t get me wrong, I’m not saying my life is generally hard. I am incredibly lucky to be who I am, to be surrounded by amazing people, and to be able to do what I do. I think our chosen profession can be hard. We have chosen to represent people going through what may be the hardest time in their life. They have been injured, or maybe even killed, because of someone else. Their lives are often irrevocably altered through no fault of their own. There are probably lawyers out there with psychology training. I’m not one of them. Our clients are going through great trauma, and we are trying to make it better. We have the legal training, but I often feel emotionally unequipped to handle what they are going through. We absorb their stories. It’s up to us to tell them in a way that a jury can understand what has been lost, and in doing so, we must be able to feel their loss. To empathize with them. It’s not easy. I admire each and every one of you who choose to bear this responsibility.
If our jobs weren’t hard enough, we are also continuously having to fight to just DO our jobs. I became a lawyer in April 2011. Since then, special interest groups have been constantly trying to limit our clients’ rights, to limit how we can help our clients. They try to take away our clients’ right to be made whole. They try to do away with the collateral source rule, which effectively means the careless party does not have to take full responsibility for his actions. The rights of injured workers in Arkansas are consistently being chipped away, including trying to take away their right to be paid for their injury before their employer’s insurance company. They want to limit what our clients can pay us without putting any limit on how much they can pay their lawyers. Perhaps the most unconscionable, however, is how these special interest groups are constantly trying to put a price tag on a human life. They give it an innocuous name, “caps on damages,” but it is a price on life. They are continuously trying to make our hard job even harder. Every. Single. Session.
By Jess Virden Mallett, Esquire, ATLA President-Elect
While I was googling Teddy’s quote to make sure I got it right, I came across an explanation that I really liked. Doing difficult things makes life easier in the long run. It’s one of life’s greatest paradoxes but also one of the most important. This is due to the law of compounding which states that small efforts repeated over time add up to something greater than the sum of their parts. So whatever you can do to help, do it.
Every time you talk to your Representative or Senator, you’re building a relationship. Every time you answer the call to make a contribution, you’re helping keep the lines of communication open. Every PAC check that gets handed out, every hand that is shaken, every event that is attended all are the small efforts that are going to make a difference in this session and the next. If we keep putting in the effort, I hope our law makers will come to understand that special interests and corporations don’t have individual people’s best interests in mind. We’re not there yet, so we’re going to have to keep up the hard work.
We have a difficult fight coming in the next few months. It’s going to take effort on everyone’s part. We need you to be ready to make phone calls or to go to the Capitol or talk to people in your communities. It’s not going to be easy. I guess that means we’re doing something worth doing.
Intro Into The Articles:
ATLA's Finest with
A few months ago, &
when the Publications Committee was brainstorming ideas during a meeting, they came up with the idea that younger lawyers could ask questions, and the “more experienced” lawyers would answer them. That’s where this issue was born.
Maybe you have these same questions. Or maybe you know someone who has asked them. If so, this issue is for you.
These articles may read a little different than normal. Some of them may feel more like a casual Q & A session than an article. We wanted this to feel like an open conversation between different facets of the ATLA membership.
Not surprisingly, the ATLA New Lawyers Network came up with some great questions. In fact, we didn’t even have room to answer them all here. But we do promise to answer them all – either in upcoming CLE’s or future issues.
Enjoy the questions – and the answers!
QUESTION 1
How do you Overcome a Motion for Summary Judgment?
By BW Walas
CHECKMATE:
A Practical Guide to Using Motions to Win at Trial
By BW Walas1
Motions Practice:
An Overview of the Game
Motions practice is nothing more than a game of chess. In chess, the goal is to eliminate your opponent’s king from the board. To do so, you must maneuver pieces around the board in both offensive and defensive postures. The most powerful piece on the board is the queen. The queen can move in all directions, as many or as little spaces as she wants, to either take out an opponent’s piece or to protect the king. The queen is only restricted by the dimensions of the board and any pieces that may stand in her path. Every other piece on the board—the rooks, bishops, knights, and pawns—has a limited role. The king can only move one space in any direction. The same is true in our cases.
1 BW is licensed to practice law in Arkansas and Illinois, and is admitted to practice in the Supreme Court of the United States, the Eighth and Ninth Circuit Court of Appeals, and the District Courts for the Eastern and Western Districts of Arkansas, the Northern and Southern Districts of Illinois, and the Judicial Panel on Multidistrict Litigation.
In practice, plaintiffs and defendants are just like the white and black pieces are governed by the same rules that the player must follow as they seek to defeat their opponent. And like the player controlling the white pieces, as plaintiffs we get to go first. Yet, for the longest time instead of making a strong opening move, I’ve watched trial lawyers take a defensive posture—reacting to the opponent’s moves while trying to maneuver each piece into the perfect attack to achieve checkmate. Such strategies often involve smoking gun documents, great deposition excerpts, and a focused trial theme. This sort of gameplay is successful and results in verdicts for our clients. But for all the wins (and losses), it is the lead up to trial—each player’s moves throughout the match that set the stage for the final outcome. In my opinion, plaintiffs have the advantage. Our opponent’s moves are predictable regardless of whether our client was injured in a car wreck, by defective tires,
TRUST SERVICES
by untrained employees, etc. We all know that the plaintiff is usually on the receiving end of endless attempts by the defendant to have the case dismissed before we even see the jury. It is this knowledge that must be used to our advantage if we ever want to get close to the jury.
II. Motions Practice: The Pieces in Play
For trial lawyers, our chess pieces are better known as motions to dismiss, mo-
tions for protective orders, motions to exclude expert(s), motions for summary judgment, evidentiary motions in limine, and motions for judgment as a matter of law. Both side’s moves are governed by court rules, dictating what motion or piece of evidence can be used—with each side working to eliminate the other’s defense and expose the king to defeat. Like a good chess player, defense counsel will use all the pieces—the knights, the bishops, the rooks, the pawns, and the Queen in the hopes of dismissal. It will rarely, if ever, move its king—and only as a last-
ditch effort to avoid defeat after a plaintiff’s verdict through a renewed motion for judgment as a matter of law under Ark r. Civ. P. 50(b). We know this because, unlike chess, our opponent must move each piece in a specific order under the Arkansas Rules of Civil Procedure. It is this pre-determined gameplay that we can use to our advantage.
How do we do this? Elbow grease and planning. Each motion can be defeated before it is filed through well-researched pleading, motions to compel discovery,
strategic deposition questioning of our own experts, and strategic use of the jury instructions. This paper focuses on three pretrial motions almost certain to be filed by the defendant in each case – a Rule 12(b)(6) motion to dismiss, a Rule 702 motion to exclude plaintiff’s experts, and a Rule 56 motion for summary judgment—along with the inevitable Rule 50 motion for judgment as a matter of law. I aim to give you a brief overview of how you can use the defendant’s motion practice against them and “get defense counsel to move themselves into checkmate.” In other words, I hope to offer a way to organize your motions practice in a way that puts you in the best position to get your case in front of the jury.
III.Motions Practice:
Using Your Opponent’s Moves to Win at Trial
[Editor’s Note: The following is an excerpt from the full article, which will be presented in conjunction with ATLA’s 2025 Annual Convention _______ CLE Panel, and provided in full to attendees thereof.]
How to Deal with a Rule 56 Motion for Summary Judgment
The summary judgment motion is the last dispositive motion a defendant can file before trial. We do not have
to wait until the motion is filed to be ready for it. How we must defend the motion is, in large part, governed by Arkansas Rule of Civil Procedure 56. Rule 56 provides, in pertinent part, as follows:
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. Absent leave of court for good cause shown, the party must file any such motion no later than 45 days before any scheduled trial date.
(c) Motion and Proceedings Thereon (1) The motion shall specify the issue or issues on which summary judgment is sought and may be supported by pleadings, depositions, answers to interrogatories and admissions on file, and affidavits. The adverse party shall serve a response and supporting materials, if any, within 21 days after the motion is served. The moving party may serve a reply and supporting materials within 14 days after the response is served. For good cause shown, the court may by order reduce or enlarge the foregoing time periods. No party shall submit supplemental supporting materials after the time for serving a reply, unless the court orders otherwise. The court , on its own motion or good cause shown, the court may by order reduce the foregoing time period.
Tschiemer Legal Briefing
(2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law on the issues specifically set forth in the motion. A partial summary judgment, interlocutory in character, may be rendered on any issue in the case including liability.
(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits, presented pursuant to this rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavit caused him to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.
This rule tells us that we must meet “proof with proof” and demonstrate that the case should proceed to trial. The best way to do this is my clearly demonstrating what the material facts are and why those facts support the plaintiff’s case, i.e., why reasonable jurors could review the evidence and find for the plaintiff. While the rule does not require parties to present a “Statement of Material Facts” this is a common requirement in federal court and, in my opinion, is good practice because it provides the court with a clear list of facts to rely upon when ruling on the motion. The best way to do this is to create an exhibit entitled “Plaintiff’s Statement of Material Facts” that includes a list of all facts, supported by the requisite documentary evidence (see Ark r. Civ. P. 56(c)). This list of facts can and should be used to create your “Statement of Material Facts” or “Factual Background” section of your opposition briefing. You also should adopt and incorporate the full “Statement of Material Facts” by reference into your opposition pursuant to Ark r. Civ. P. 10(c). This statement of facts will be the backbone of the opposition to summary judgment. It provides a clear list of the facts and materials the plaintiff has to support their position. It provides a clear reference point for establishing the elements of each claim. In other words, the plaintiff’s statement of disputed and undisputed facts should be what the court relies upon when “stat[ing] on the record the reasons for … denying the motion.”2
2 Fed. R. Civ. P. 56(a).
You will not be starting this Statement of Material Facts or your Opposition argument from scratch if you’ve followed the previous steps in preparing your case. This is because the work product generated in connection with each of the prior motions and through your discovery plan plays a role in opposing the sum -
allegations were developed (or disproved) through the discovery obtained with the Rule 37 motion to compel (and subsequent discovery). The expert testimony supporting each of those claims has been shown in the opposition to the Rule 702 motion. All of this work product, along with other information gath -
We are especially grateful this holiday season for the opportunities we have had to work with so many fantastic clients and attorneys all over the great state of Arkansas. For 2025, we are looking forward to continuing to help injured and wronged Arkansans achieve the justice they deserve.
QUESTION 2
How do you use demonstrative evidence at trial?
By Geoff Hamby & Ryan Scott
picture is worth a thousand words.” What about a video? What about a diorama of the scene? What about a timeline handmade from 2x4’s and handcrafted flags? In this world, in this time, we take our information in short, interesting, and informative bursts. Demonstrative aids are how we meet jurors where they are when it comes to taking in information. Used effectively, they can ensure the jury remembers your case, uses your language in de liberations, and returns your verdict.
Make it “allowable”
The best demonstrative aid is useless if you aren’t al lowed to use it. So, first things first, make sure your de monstrative aids are allowed by the court. Thankfully, demonstrative aids in trial are more commonplace than ever before. However, there still exists pushback from defense counsel and some judges. Generally, the more creative and powerful… the more pushback. Fortunate ly, case law from around the country leans in favor of allowing demonstrative aids.
In Arkansas, the trial court is given broad discretion in whether to allow demonstrative aids with some broad guidance from case law. 1 The Eighth Circuit gives broad discretion as well… with case law that leans toward al lowing demonstrative aids as long as they can assist the jury in understanding factual issues. 2 Experience has shown that a simple bench brief, normally no more than a page long, does wonders to guide the court and op posing counsel on what is allowed. It is our practice to bring a bench brief with us to trial and present it to the court and counsel on the first objection to the use of a particular demonstrative aid. When armed with case law that allows for something more interesting than a lawyer droning on about the facts and simple “yes” or “no” questions to witnesses, the courts are more likely to allow demonstrative aids. The court wants the jury to be engaged and educated… and the court wants to be educated in an interesting manner too!
The sooner the demonstrative aid issue is addressed as a legal matter, the more likely it is to be allowed. The most successful objection we receive to demonstrative aids is defense counsel, at trial, telling the court “I’ve never seen this.” As Sach Oliver points out in Depositions are Trial , this is the tactic that the late, great trial attorney Walter
1 Hamilton v. State, 348 Ark. 532, 540, 74 S.W.3d 615, 619 (2002); Berry v. St. Paul Fire and Marine Ins. Co., 328 Ark. 553, 563, 944 S.W.2d 838, 845 (1997); Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995)
2 United States v. Caswell, 825 F.2d 1228, 1235 (8th Cir. 1987); see also Bradshaw v. FFE Transp. Servs., Inc., 715 F.3d 1104, 1109 (8th Cir. 2013)
A note from the President
Fellow ATLA Members,
As a valued member of the Arkansas Trial Lawyers Association, we deeply appreciate your ongoing support and commitment to our association and its advocacy for the practice of Trial Law. This is to inform you of upcoming changes to the structure of our membership fees.
After careful consideration and a thorough review of our financial health and the services we provide, the Board of Directors has decided to increase the annual dues. In this current inflationary environment, which has seen our fixed cost of doing business increase across the board, we believe an adjustment is needed to ensure that ATLA continues to deliver the high-quality programs, advocacy and the resources our members expect and deserve.
Effective Date: January 1, 2025
New Annual Dues Amount:
0-1 Years = $125
8-9 Years= $395
2-4 Years= $150
10+ Years= $650
5-7 Years= $285
We are very sensitive to the fact that any increase in dues is a concern and we want to assure you that this decision was not made lightly. Our goal is to provide exceptional value for your membership and we believe that the additional resources will significantly benefit our membership and our mission.
Additionally, our staff will work with you as we navigate through this change. if you have any questions please feel free to contact Stephanie, Katie or Jennifer.
-Rob Beard, ATLA President
Cox used to completely derail a trial strategy build around some amazing visual aids. 3 This procedural argument tends to be the strongest. Thankfully, given the broad discretion afforded the court and the inclination of case law to allow demonstrative aids, early disclosure is an effective antidote to this poison.
If you are following the “speed trial” method, you know that part of the process is to use your demonstrative aids at deposition, at hearings, at pre-trial – as soon and as often as possible. Disclose them with the witness at deposition. Attach them as exhibits. Use them with argument to the court at motion hearings. Establish a culture in the case where visual aids are a primary medium for telling the client’s story. We start every case with a Complaint that is full of pictures, charts, and other visual aids to help establish this culture from the outset. When the court is told that this demonstrative aid was part of the Complaint, a witness’s deposition testimony, and that the court has seen it in hearings throughout the litigation … the objection is nearly always overruled. Now that we are confident, we are going to be able to use the demonstrative aid in trial, it’s time to discuss how to make it the most effective.
Make it “clean”
Probably the most common mistake made with visual aids is including too much information. Sometimes, WAY too much. It is a natural tendency, especially for lawyers. We spend all this time gathering all the hits that bury our opponents that we want to share it all. But, sharing it all, improperly, is counterproductive. Jury’s want simple. They appreciate it. They absorb it. Here are some simple tips to keep in mind whether your visual aid is a board, a PowerPoint slide, or something tangible:
• Make sure every word serves a specific purpose.
Visual aids should tell the story through something other than the words that you are saying. Visual aids should complement what you’re saying during your argument, not repeat it. It is fine to use labels, descriptions, etc., but make sure that every word on the page is needed and serves a specific purpose.
3 Sach Oliver, Depositions are Trial, Chapter 4.
• Try to highlight one key fact with every visual aid.
The most common visual aid mistake is when someone tries to put too much information on a visual aid. For example, a “summary of injuries” visual aid using medical terminology and lines pointing to every part of the client’s body is something that almost every visual aid vendor will create – but is not something that should ever be used. Break down visual aids into their simplest form by thinking of them the same way that you should a deposition question. One fact – one visual.
• Visibility is key.
Just as bad as having too much information on a visual is for it to not be easily legible by a jury member with poor vision. Use dark fonts on light backgrounds, don’t blow up pictures to the point of pixelation, and always have someone without 20/20 vision stand 15-20 feet away from your board and make sure they can see it.
Here are some examples of a visual aid used in a recent trial. In this case, a 20-year-old firefighter was killed when he was struck on the side of the road by a trucker driver with vision so poor that, just days prior, his doctor said he was “disqualified from driving”: 4
Simple. Clean. Clear. When thinking about the design of demonstrative aids, nothing is an accident. The font is tested as being the easiest for a jury to read. The colors (background and text) are tested too. If it is testimony, a carefully selected picture of the witness is included. All planned and all tested for maximum clarity.
Make it “fun”
Clean and clear is always best. However, this does not mean all the same. How many times have you gone to trial to see opposing counsel has hired a tech expert who sets up in some corner of the courtroom with a motherboard and nest of wires? “John, bring up page 53, line 4.” A deposition page pops up, the testimony is enlarged (white background, black text), the attorney reads the testimony. “John bring up page 110, line 5.” A deposition page pops up, the testimony is enlarged (white background, black text), the attorney reads the testimony. Clean? Yes. Clear? Yes. Boring? Absolutely.
Being clean and clear does not mean to be monotonous. Demonstrative aids can follow the basics and still be captivating. Here are some tips to keep it interesting and keep the jury engaged:
• For boards, use different colors for different themes
• Use pictures when possible
• Use different modalities throughout (boards, slides, video, toy models)
In a recent trial, we made it “fun” with what can sometimes be the driest of witnesses – a crash reconstructionist engineer. Not to say that extremely bright, well-educated, and math-oriented engineers can’t be charismatic, but well, let’s just say that sometimes we can all use a little help. In this case, a prior one-vehicle wreck left a trailer partially blocking the road. Twenty-six vehicles, including seventeen tractor-trailers, were able to safely drive around the hazard. To demonstrate how many attentive and visually capable drivers avoided crashing into the obstruction, the reconstructionist was invited to use toy cars on a board of the road to show-and-tell his opinions (just as he did in his deposition).
4 Lang v. Kroger Dedicated Logistics, et al., St. Francis County Circuit Court (62CV-23-11).
The jury literally leaned in. It was different than having a talking head discuss conspicuity and reaction times; and “oh by the way, lots of others were able to avoid the trailer in that lane.” The number of toy cars safely at the end of the aid was more powerful than any calculations or testimony the witness could have offered. Here are some other ideas to keep the jury interested and informed:
• Incorporate video as a visual aid.
Some of the most attention-grabbing visual aids that we have used are videos. These could be as simple as deposition clips used in cross-examination or as complicated as fully produced 3D recreations of a wreck. Some other common examples are bodycam footage, family home movies, and damages example videos. Any time that you can incorporate video into a live examination you’ll grab the jury’s attention.
• Let the jury absorb at their own pace.
The old-school way of using visual aids (particularly digital visual aids) was to reveal them incrementally so that the attorney could control the focus of the jury and have them pay attention to what he/she wants. Newer jury research supports an approach where the entire visual aid is shown to the jury at once and they are allowed to process it and digest it at their own speed while the attorney pres -
ents. This allows jury members to focus on what they feel is important and allows them to arm themselves to go to battle for your client.
Positive repetition is a must. 5 Positive repetition can include using your demonstrative aids to keep it different, a fresh perspective, a new format. Keep it “fun” and the jury will not punish you for repeating what needs to be repeated.
Make it “memorable”
When our jury consultant did his follow-up interviews with the jury observers from our last trial, every single one of them talked about a visual aid that they remembered. Some remembered the 2x4 timelines, some remembered the pile of toy trucks, some remembered the summary slides showing the Kroger driver’s horrible history, but they all mentioned the visual aids over anything that was actually said.
That is the impact that visual aids can have on your trial presentation. Studies regarding information retention have reported that we remember up to 80% of what we see compared to only 10% of what we hear and 20% of what we read. 6 By creating a case that is a visual presentation, you can make a lasting impact on what the jury remembers and ultimately how they rule.
Keep it clean. Keep it clear. Focus on positive repetition. That’s all it takes. █
5 Sach Oliver, Depositions are Trial, Chapter 5.
6 https://now.uiowa.edu/ news/2014/02/one-ear-and-outother#:~:text=Psychology%20 study%20examines%20how%20 brains,Psychology%20faculty%20 and%20students%20here.
QUESTION 3
When, if ever, is it ethical and appropriate to welcome the media to your case?
Q: When, if ever, is it ethical and appropriate to welcome the media to your case?
A: Regarding when it is ethical, please refer to Rule 3.6 of the Rules of Professional Conduct, but, generally, attorneys in civil actions have more leeway in speaking to the media than those in criminal cases. As to when it's appropriate, it is never appropriate unless both you and your client have a complete understanding of the tremendous risk that comes with doing so. And I do not mean the risk of violating a rule of ethics, but rather the risk of unwittingly damaging your case. I would strongly encourage any young attorney thinking of doing this to first speak to a colleague with media experience before taking this plunge.
-Josh Gillispie
A: For me, I want to engage the media when there is a public safety concern. When I have cases where the public at large does not know that an institution is corrupt or unsafe, I think we have a duty to tell the public about that.
-Joseph Gates
A: I engage the media when I have a client that has given me consent to do so and the media will shine a (hopefully) unfavorable light on the unconscionable actions (whether it be safety, shadiness, etc) of the Defendant. All while following the ethical rules Josh so eloquently laid out above, of course...
-Andrew Norwood
QUESTION 4
What are the pros and cons of offering, or not offering, medical bills at trial?
By Alan Levar
Pros & Cons?
This is a trial strategy question more than a legal question so the answers depend heavily on your individual preferences and strengths. There are, in my opinion, certain principles about human nature and jurors that apply to all cases. There is also a significant amount of jury and focus group research that helps us understand how juries view evidence and how they reach conclusions. My ideas on this topic come from my understanding of this data.
Based on that data, and my experience, I introduce medical expenses in virtually every case I try. However, there have been cases that I tried to a jury where I didn’t introduce the medical expenses. I have been practicing since 1996 and have tried somewhere between 40-50 cases to a jury, of which probably 20-30 were civil jury trials where I represented a plaintiff injured because of the actions of the defendant. I can recall 2 cases when I decided not to introduce the medical expenses. So I have offered medical bills in 90-95% of my injury cases. If my memory serves me correctly, one of those 2 cases I lost on liability, so I don’t know if the decision to not introduce medical expenses made a positive or negative difference. In the other case, I got a verdict that was
in excess of the policy limits of the defendant and was about 4x the amount of the last offer from the defense counsel. The verdict was also around 5x the amount of my client’s medical expenses. I considered that a good result and feel that the decision to leave medical expenses out was beneficial to my client.
Before getting into the reasons not to offer medical bills at trial, I first wish to articulate a few of the reasons why you should introduce medical bills at trial. I start with one assumption that I bring to every trial. I assume
that most jurors do not trust me, or my client at the beginning of the trial. We know how low attorneys, and especially plaintiff injury attorneys, rank on the hierarchy of public trust and unfortunately, injured plaintiffs do not typically rank much higher. Many jurors assume injury attorneys embellish and that our words are calculated to simply get the most money we can. They often assume, since we are in court, that we are asking for an exorbitant amount and are the unreasonable party. They often assume the same of our clients.
Overcoming these preconceived biases is the first hurdle I try to clear. Juror trust must be earned and the best way to earn it is to present them first with evidence that is uncontroverted. I try to use neutral language in opening statements and stick with those uncontroverted facts. While jurors tend to mistrust us and our clients, they are much more likely to implicitly trust doctors and medical providers. There-
fore, those uncontroverted facts I want to present to the jury early in the trial are often delivered by the medical providers. When medical records and bills are presented to the jury they enhance the credibility of the plaintiff’s claims about their injuries. Medical providers are disinterested participants whose testimony and records explain our damages to the jury.
Certainly the benefits from medical records and medical testimony about the injuries and treatment can be realized without the actual medical bills. However the bills also serve as tangible proof of the extent of the plaintiff’s injuries and can help jurors visualize the severity of the injuries. The medical bills are also difficult for the defense to successfully contest. And finally, the medical bills establish a baseline dollar amount from which jurors can calculate the total compensation award. They provide concrete
and almost incontrovertible dollar amounts that represent the harms your client suffered.
There are times, however, when the benefits they provide are outweighed by other factors. In my two cases, I did not introduce the medical expenses because I felt that the amount of total medical expenses was not proportional to the extent of my clients injuries. In other words, my clients injuries were rather severe, but the total of the medical bills was rather low. I feared that the small medical bill total would anchor the jury’s damages awards and my client would not get the fair value of their injuries. One of these cases was a dog bite case where the client was left with a very visible and permanent scar as a result of the attack. The medical bills incurred were minimal compared to the amount I felt they were entitled to for the permanent scarring. In the other case, a motor vehicle collision,
my client significantly under treated, ignoring the symptoms and hoping her back injuries would resolve over time. Again, the total amount of the medical expenses was significantly lower than what we felt she was entitled to for her injuries.
There are other risks associated with this approach. You are giving up your clients ability to recover their medical expenses so a low award for intangible damages could result in your client receiving award that is less than their medical expenses, even if the jury finds in their favor. There is the risk that a juror will
wonder why medical expenses were not presented or assume they have already been paid, which could allow them to argue to the other jurors that your client has already been made whole.
In my cases, we discussed the decision with the client before trial. We wanted to make sure the client understood what they were giving up and why we felt it was a good trade off. We conducted a focus group on the issue in one of the cases before talking with the client, so they could see the data and understand better why we were recommending that
course of action. And while I was pleased with the results, my sample size is quite small.
Generally, I believe that the benefits of introducing your clients medical expenses outweigh the negative impacts. I think they add value and legitimacy to the damages you seek. I think they serve as another impartial witness and as a concrete example of the dollar amounts your client should receive to correct the harms they suffered. But when they don’t accurately reflect the harms your client suffered, you may be better served leaving them out. █
BLOCK WRITER’S The
“Just
the Facts, Ma’am”
The dead-pan 1960s television detective Joe Friday would encounter a citizen, often a witness, who wanted to ramble on about inconsequential thoughts and opinions about something under investigation. Invariably, Sgt. Friday would halt the witness’s digression and say, “just the facts, ma’am.” He wasn’t interested in what the witness thought or felt. All that mattered was what actually happened.
In the weeks preceding “court week,” the law clerks for Judge Richard Arnold would divvy up the briefs and appendices and prepare to present them to the judge. At random times, he would hale the clerks into his chambers to gather round his oval desk to discuss them and what the cases were about. Often, after the discussion with the clerks were complete, the Judge would only ask for copies of the statements of the facts by each
party and the district court’s opinion, if there was one, and that was it. The facts were what mattered the most to deciding the case. The law was what it was. The facts were what might vary.
All too often we spend hours and hours researching the applicable law and setting it out in our briefs, then toss in the facts almost as an afterthought. But as Joe Friday and Judge Arnold knew all too well, the facts matter. Sometimes, well most of the time, they’re really all that matters. Telling the brief’s readers what the facts are deserves at least as much diligence as those eloquent renditions of the applicable law do. Thus, the brief writer should keep in mind some basic guiding thoughts about “just the facts, ma’am.”
First, every case is about human beings and controversies that impact their lives. Even cases dealing with securities, or contracts between businesses,
or a broken product are ultimately about people. The portion of the brief in which the facts are set out are the opportunity to tell a story, a narrative, about a human drama with real consequences. The narrative of the facts is a time when the brief writer can lay out a story, not unlike a short story or a television drama, telling the client’s story in an interesting and entertaining manner that keeps the reader’s attention. Tell a story with the facts, rather than just the 1,2,3 and A,B,C of what happened.
Second, the narrative, while told in an interesting and even entertaining manner, must be accurate. The facts cannot be stretched to support the unsupportable or to convey what cannot be sustained by the evidence or the procedural posture of the case. This means that if a jury has found the facts to be against your client (he ran the red light), the narrative cannot simply ignore the jury finding and set out the
By Brian G. Brooks
facts as if the jury didn’t exist (Client didn’t run the red light because he said so). Rather, the writer must own the jury finding and set out the facts with it in mind. The task then is to explain, with law and other facts, why we prevail even with that finding, perhaps because of an evidentiary error, which our narrative explains, or some other legal error. But we cannot pretend the facts are not as the jury found them just because we don’t like the finding. And the narrative must tell the story of the case with the findings in mind.
Third, and as a corollary of second point, the narrative must be supported by the record. Every item of fact must be supported by some item in the record of the case to which citation is made. You may or may not know that those (RP) and (RT) citations to pages of the clerk’s record and the court reporter’s record in an Arkansas appellate brief are converted by an application to links that allow the judges and their law clerks to jump directly to that page in the record filed with the court and confirm it is accurate. Other courts have similar applications. But even courts that don’t are going to check the record. They’re going to look to where we cite to confirm evidence supports the citation. And they’re going to notice when a proposition of fact is not supported by any citation. So, make sure what you say is a “fact” has some support. If it is not a direct record fact
but an inference that is allowed by other facts, say so and say why that inference is allowed.
That does not mean that facts must be set out in a dry and mundane fashion. Far from it. An interesting narrative can be woven in story-teller fashion with citations to the record to support each fact. If you wonder how that can be so, I encourage you to read any of the many historical books by Erik Larson, a writer who tells stories about historical events like the sinking of the Lusitania or the fall of Fort Sumpter in a narrative and entertaining form all the while citing to record evidence for everything he writes. “Just the facts, ma’am” can be immensely entertaining.
Fourth, coordinate your facts and the narrative telling of them with the analogous facts of the cases you will later say control the outcome of your case. The way the story is told, the way the narrative is set out, should, whenever possible, foreshadow the legal principles and cases to come later in the brief that resolve the case in your favor. The facts in your narrative should be the facts that matter with no wasted effort. The facts that matter are the ones the law says are dispositive. A brief should not be a disjointed work with parts that don’t coordinate with one another. It should be just the opposite. A fit, a link, a joining, should exist between the story being told and the law governing the outcome.
Joe Friday and Judge Arnold knew all too well that “just the facts, ma’am” means everything. Spend time and effort with the factual narrative. Make it drive the brief and link it to the controlling law. Your briefs will sing if you do.
I’ll see you next time from the Writer’s Block. █
1This informal conversation with the judge was, for the clerks, the most beneficial form of training for presenting oral arguments to judges later in their careers. They were a conversation with the court about the facts and law of the case. Isn’t that what oral argument should be? I think so. But I digress myself. This topic is for another day.
BOOK REVIEW
LITIGATION OBSTRUCTION: BREAKING THROUGH BY
MARK KOSIERADZKI
Review by Jim Lyons of Lyons & Cone, PLC Jonesboro, AR
Who among us has seen litigation obstruction? It is anticipated that virtually everyone who reads this is engaged in litigation ranging from a small car wreck case to very high stakes trucking or medical malpractice cases where the outcome can affect your client’s life and their family’s lives. Even if you are not involved in any of these type cases but want to become a litigator who knows how to deal with these issues when they arise, then for all of these attorneys, I highly recommend this book. If you have not seen litigation obstruction in a case yet, then you will soon if you continue your career in litigation, especially in cases involving insurance companies who hire the defense attorneys for the defendant(s). One the state’s top litigators, Bobby McDaniel, says that he sees litigation obstruction in the “vast, vast majority” of his cases. In fact, at least one, if not more, defense firms in the State of Arkansas lost an insurance company as a client because a defense attorney refused to file specious objections despite the rules prohibiting them and despite the fact that the Model Rules of Professional Conduct are violated by obstructionist tactics.
Nick Rowley states that “Litigation Obstruction is a must read, not only due to its unprecedented thorough content, direction, and mentorship, but also because it teaches us how to do things the right way while kindly calling us back to our oaths, integrity, and standards of professionalism.” (See endnote for the website to purchase this book). The two quotes above tell us that you are probably already seeing this regularly and that you need to learn how to deal with it. Kosieradzki’s book will tell you how. In my opinion and in the opinion of many others that litigate across the state as well as fellow litigators across the nation will tell you that obstruction is one of the most common defense tactics. To learn how to deal with them, read Litigation Obstruction: Breaking Through. Even if you choose not to read the entire book because it is long with over 1,750 footnotes that primarily cite federal cases, then you should have this book available in your library because when you get the typical, specious objections in a case, then you can refer to the applicable sections of the book.
This book is of the same caliber as Kosieradzki’s other book 30(b)(6): Deposing Corporations, Organizations & the Government , now in its Second Edition. (See endnote for the website to purchase this book). Although both of these books are excellent they do require an extended amount of time to read. However, if you want to be the David taking on Goliath who wins and want to show the defense that you are serious, both books are a necessity for your library. Both of these books are written based upon the Federal Rules of Civil Procedure (“FRCP”). As you know, the Arkansas Rules of Civil Procedure (“ARCP”) are based upon the federal rules and the case of City of Fort Smith v. Carter, 216 S.W.3d 594, 598–99, 364 Ark. 100, 107 (Ark., 2005) provides that “[b]ased upon the similarities of our rules with the Federal Rules of Civil Procedure, we consider the interpretation of these rules by federal courts to be of a significant precedential value. Smith v. Washington, 340 Ark. 460, 10 S.W.3d 877 (2000). Thus, in most cases, these federal cases clearly provide important guidance.
Sach Oliver tells us that “Mark’s genius has done it again.” Sach is correct. Both of these books on my desk are highlighted, marked up, dog eared, with notes in the margin and are a constant companion in preparation for
depositions, fighting over discovery and preparing for trial. Litigation Obstruction: Breaking Through begins with a discussion of the purpose of the Federal Rules of Civil Procedure (“FRCP”), followed by litigation ethics, and continues through the heart of the book with sections on each type of discovery. It also contains over 300 pages of appendices covering topics including those that compare each state’s rules and law to the FRCP. Most importantly, you will learn that FRCP Rule 26(g) requires the requesting attorney to sign the requests which certify that the requests are necessary for the legitimate needs of the litigation. Further, FRCP Rule 26(g) requires that all responses be signed by the attorney and requires that the attorney has made a reasonable inquiry, determined that the response is complete and that any objections asserted have a legitimate basis. This is extremely important if you are in federal court because most defense attorneys either do not understand this or simply disregard it. Thus, if your judge (or magistrate) is assuring that discovery is being conducted properly (when it is not), this certification and FRCP Rule 26(g) subjects any attorney who is not complying with the requirements of Rule 26(g) to mandatory sanctions if the certification [made by the requesting attorney or by the responding attorney] violates this rule without substantial justification. Unfortunately, Rule 26 of the ARCP does not contain the Rule 26(g) certification. Thus, the obstructing attorney has more leeway in the state courts in Arkansas as she or he is not making this certification. But, any attorney trying a case in federal court must know and understand this important distinction as explained in the book with numerous citations to cases imposing sanctions on an attorney who does not comply with this certification.
In addition to the discussion of the types of discovery sought, the book also provides a lot of practice pointers and examples so that the book can be
read and understood both by new attorneys as well as seasoned litigators who have often seen and dealt with the various types of obstruction. Thus, the book is written for anyone interested in litigation and not only simplifies the topics, but also provides some very sophisticated examples along with many of the applicable cases as authority for the issues that arise in federal court with this certification.
Finally, the book closes with numerous appendices that include many sample forms ranging from requests for production of electronically stored information (“ESI”), confidentiality agreements that are properly limited or blanket examples for cases involving many confidential matters. In addition, Litigation Obstruction provides sample ESI 30(b) (6) notices, conferral letters, sample briefs and numerous other useful tools. As many of these items include an obligation to meet and confer regarding discovery disputes or Rule 30(b)(6) notices, you can also purchase from AAJ a group of materials called “The Stonewall Solution Litigation Obstruction Management Tools”. These tools include preprinted and formatted excel spreadsheets that allow the attorney to easily keep up with the meet and confer issues and notes from each meet and confer session in a meaningful spreadsheet that provides the Judge with a “scorecard” that allows the court to easily deal with the objections, the responses to them and the actions in the meet and confer conferences. All of us know well that Judges do not like discovery disputes so anything that an attorney can do to make the discovery dispute decision easier on the Judge will improve your chances of success in obtaining improperly withheld information and materials. Finally, the book will assist in dealing with numerous other topics regarding discovery disputes and how to be successful in obtaining the information, proper answers, proper
documents and obtaining sanctions from a recalcitrant attorney.
This book (along with The Stonewall Solution Litigations Management Tools) is a book with computerized forms that have the ability to aid you in discovery disputes and can change your practice, your case outcome and how defense attorneys deal with you in the future. Gaining a reputation that you are always well prepared and will fight to obtain all pertinent information improves your ability to prepare for and resolve your cases favorably regardless whether this is in settlement or at trial. Phillip Miller (who works with Sach Oliver on Sach’s cases) says that “[i]f you expect to litigate at any point in your career and can only choose one book to keep on hand, this is the one.” Actually, it appears that Phillip’s advice can be improved a bit by stating “[i]f you expect to litigate at any point in your career and can only choose” two books to keep on hand, both of Kosieradzki’s books are the books for you.
One final note, if the Publications Committee believes that it will benefit our readers, then we can publish another article on this book that can give the novice litigator a general idea of the rules and how best to use this book to get the information needed for her or his case and can also give a very seasoned litigator some additional knowledge, citations, forms and subtle information contained in the rules and the case law interpreting the FRCP and teach him or her how to deal with the many obstructionists practicing in today’s litigation world. █
Endnotes
1Trial Guides website - https://www.trialguides.com/products/30b6-second-edition
2AAJ website -https://www.justice.org/resources/publications/aaj-press/litigationobstruction-breaking-through
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