Carefully Craft Jury InstructionsDon’t forget the jury instructions. <strong>The</strong>words 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. <strong>For</strong> 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.<strong>The</strong> 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. <strong>The</strong>se 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. <strong>For</strong> 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. <strong>The</strong> 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). <strong>The</strong>se 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 <strong>For</strong> <strong>The</strong> <strong>Defense</strong> n <strong>October</strong> <strong>2010</strong>and 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.
evant to a case. To maximize the effect ofcarefully crafting instructions, you mightalso consider requesting that jurors receivepreliminary instructions before a trialbegins, which provides yet another opportunityto mitigate potential hindsight bias.ConclusionSacking the Monday morning quarterbackis no easy task. Whether predicting the successof Nixon’s trip to China or sitting on ajury in a pharmaceutical failure- to- warncase, the potential for hindsight bias existsin all of us. As defense attorneys, it is crucialto recognize hindsight bias from thestart and to formulate a strategy that placesa company’s decisions and actions in theappropriate historical context to mitigatethe bias as much as possible.FCPA Compliance, from page 64• A payment request that is excessivegiven past payments for similar servicesNew Whistleblower ProtectionsA new law raises the specter of increasedenforcement litigation against public companiesbased on alleged violations of the<strong>For</strong>eign Corrupt Practices Act. Under section922 of the recently passed Dodd-FrankWall Street Reform and Consumer ProtectionAct of <strong>2010</strong>, Pub. L. 111-203, H.R. 4173,signed into law by President Obama, whistleblowerswho provide information leadingto recovery of $1 million or more arenow entitled to receive a bounty of 10 to 30percent of the total fines collected by theSEC and DOJ for FCPA violations.<strong>The</strong> whistleblower provisions only applyto tips providing “original information,”that is, information “derived from theindependent knowledge or analysis of thewhistleblower” and not already known bythe government or derived from informationfrom existing government investigations.To receive an award, a tip must resultin (1) a successful enforcement action bythe SEC or a “related action” by the DOJ orother appropriate state or federal agency,and (2) monetary sanctions in excess of $1million. “Monetary sanctions” is broadlydefined to include “penalties, disgorgement,and interest.” Importantly, the newlaw protects employees who report wrongdoingfrom retaliation and affords employeesthe private right of action in federalcourt to obtain compensation for litigationcosts, reinstatement and double back pay.<strong>The</strong> government has never before had awhistleblower program to assist with enforcingthe FCPA. Given the dramatic increase inpenalties for FCPA violations, the new whistleblowerprovisions will incentivize companyemployees and other agents who mayhave previously paid scant attention to FCPAissues. Now foreign tipsters and companyemployees, along with their counsel, may beginto submit potentially exaggerated allegationshoping to achieve massive recoveries.ConclusionIn today’s global marketplace, businessleaders face a Herculean task in managingpotential FCPA- related risks due to theirforeign business operations. <strong>The</strong> governmentexpects that a corporation will conductthe appropriate due diligence andimplement the necessary internal controlsto identify problematic areas and remedythem to prevent FCPA violations. Giventhe dramatic increase in FCPA enforcementagainst both companies and senior corporateexecutives, business leaders must educatethemselves and their employees on theindustry- specific FCPA risks attendant totheir foreign business operations.Writers’ Corner, from page 78guage to active voice. Those changes alonewill go a long way toward making the briefclearer, more concise, and more persuasivethan if you had let the passive voice stand.Pay Attention to StyleAt the 2008 <strong>DRI</strong> Appellate Advocacy Seminar,Ruth Anne Robbins presented aprogram titled, “<strong>The</strong> Beautiful Brief—Persuasionthrough Appearance.” It was a fantasticpresentation, and emphasized thatthe way your brief looks is, in fact, important.If it looks organized, coherent, andhas a layout that makes it easy to read, youwill better help yourself to get your pointsacross to a reader.Read Local RulesMany local rules contain specific requirementsfor font, margins, page limits, andbinding, which, if disregarded, can resultin a court tossing your brief. No matter howbeautiful, how persuasive, how interesting,or how free of error, your brief will remainunread, at the bottom of a trashcan. 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