For The Defense, October 2010 - DRI Today

Carefully Craft Jury InstructionsDon’t forget the jury instructions. Thewords in your closing argument are notthe final words. Jury instructions are thefinal words. While most trial lawyers havemixed feelings at best about jury instructions,these instructions have the potentialto play a key role in the deliberationprocess. For that reason, it is importantto insist that the instructions include languageto mitigate potential hindsight bias.An obvious example is an explicit instructionthat acknowledges the potential forhindsight bias and advises jurors that theymay not rely on information developedafter the fact to judge a company’s conductat a particular point in the past. A lessdirect approach is to ask that the instructionsrefer to the point in time that is relthattarget the banks and lending institutions.The government is calling for aggressiveand well coordinated law enforcementresponse to the financial crisis, includingthorough investigation and prosecutionof all instances of mortgage fraud by anyindividual or corporation engaged in activityto defraud customers. These mortgagefraud schemes not only prey upon unsuspectingand innocent homeowners, theseschemes prey upon lenders and jeopardizeproperty values and billions of dollars ofprivate and public money. If you find thatone of your clients is the subject of a criminalmortgage fraud investigation, the bestadvice is to quickly investigate the case andbe prepared to provide your client withadvice that will help your client maneuverthrough difficult decisions and develop thebest defense strategy for facing a criminalmortgage fraud case.Criminal, from page 54As a general rule, you should understandthoroughly the joint defense doctrine ofthe state where your litigation is pendingso that you understand whether and howcommunications between the company’scounsel and an employee’s counsel can beprotected. Furthermore, evaluate whetherto communicate regarding defenses at all,especially if you think that the governmentwill indict low-level sales representativeswith incentive to provide information togovernment investigators. It is always bestto maintain client confidences because thelegal landscape can easily change.Request a Stay of Civil ProceedingsConsider filing a motion to stay civil proceedingsduring the pendency of criminalactions. When criminal proceedings haveactually been instituted, in some casescourts will view a stay of civil proceedingsas eminently reasonable and persuasive,and you will have good arguments to makea court. For example, if the governmenthas seized key evidence from a companyor individuals and your client or key individualswill plead the Fifth Amendment,you should strongly consider a motion tostay the action. The grounds for a stay ofan action vary in different states. In California,there is no absolute right to a stayof the civil action, but a court may grant astay in the interests of justice.Explore Settlement OptionsIn appropriate cases, explore settlements.When you know that the governmentintends to issue subpoenas or has intensifieda criminal investigation, settling apending civil matter before a plaintiff’scounsel learns of those circumstance couldoffer advantages to your client.On the other hand, concluding a largescalesettlement at the first hint of potentialtrouble can invite a rash of lawsuits. Beforesettling, find out about possible insurancecoverage issues. Exclusions to insurancecoverage or pay-back provisions for settlementsmay apply if criminal behavior, convictions,admissions, final adjudications,or decisions establishing criminal conductare involved in a case. You will need to beaware of these issues because they mayaffect a settlement decision. Deciding tosettle a case is highly fact- specific, but youshould explore it.Conclusion: CriminalEnforcement Is Here to StayWith the FDA promising to increase criminalprosecutions of pharmaceutical andmedical device companies and recentexamples of the FDA pursuing companyexecutives, it is wise to become aware ofthe potential or actual criminal aspects ofcivil litigation. While the fact patterns willvary, consider the general practices outlinedabove in all cases.Hindsight Bias, from page 19capable of discussing in detail the decisionsthat a company made and the basis for thosedecisions at the time. Effective live witnesseswho are able to tell a story can assistin breaking down prematurely constructedcausal links between a plaintiff’s injuryand the product and can help jurors judgethe case from the perspective of foresight,as opposed to hindsight. Philip G. Peters,Hindsight Bias and Tort Liability: AvoidingPremature Conclusions, 31 Ariz. St. L.J.1277, 1287 (1999). These witnesses can contributeto your attempts to recreate the atmosphereand conditions of a company’sdecision- making process before a plaintiffwas injured. Research has shown that placingjurors in the situation of a company canmitigate hindsight bias, as discussed above.Expert witness testimony can also helpmitigate hindsight bias. Choosing theright expert—both in terms of credentials86 n For The Defense n October 2010and the ability to connect with jurors andtransport them back in time—is important.A good teacher is far more compellingthan the smartest guy in the room. Becausethey do not work for a company, expert witnessescan furnish the perspective of outsideobservers, commenting on the stateof knowledge at the time of a particularcompany decision. If the issue is whethera company “should have known” of a possibleside effect of a drug, an expert cancontrast what is known today with whatwas known at the time that the drug wasdeveloped, even highlighting the eventsthat led to improved knowledge. In thisrole, experts can emphasize that scientificknowledge is constantly advancing andthat it is unfair to judge yesterday’s decisionsbased on today’s knowledge.A closing argument then presents yetanother opportunity to communicate thedefendant’s story and to emphasize thefacts and themes developed to mitigatepotential hindsight bias.