For The Defense, October 2010 - DRI Today

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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.
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 theForeign Corrupt Practices Act. Under section922 of the recently passed Dodd-FrankWall Street Reform and Consumer ProtectionAct of 2010, 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.The 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.The 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. The 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 DRI Appellate Advocacy Seminar,Ruth Anne Robbins presented aprogram titled, “The 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. ReadStatement of Ownership, Management, and Circulation(All Periodicals Publications Except Requester Publications)2. Publication Number 3. Filing Date1. Publication TitleFor The Defense 0 0 1 5 _ 6 8 8 4 10-1-104. Issue Frequency 5. Number of Issues Published Annually 6. Annual Subscription Price$65 included inMonthly 12membership dues7. Complete Mailing Address of Known Office of Publication (Not printer) (Street, city, county, state, and ZIP+4®) Contact PersonDefense Research Institute, Inc.Julia Bergerud55 West Monroe Street, Suite 2000Telephone (Include area code)Chicago, IL 60603-5121312-698-62168. Complete Mailing Address of Headquarters or General Business Office of Publisher (Not printer)Defense Research Institute, Inc.55 West Monroe Street, Suite 2000Chicago, IL 60603-51219. Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor (Do not leave blank)Publisher (Name and complete mailing address)Defense Research Institute, Inc.55 West Monroe Street, Suite 2000Chicago, IL 60603-5121Editor (Name and complete mailing address)Jay Ludlam, Defense Research Institute, Inc.55 West Monroe Street, Suite 2000Chicago, IL 60603-5121Managing Editor (Name and complete mailing address)Jay Ludlam, Defense Research Institute, Inc.55 West Monroe Street, Suite 2000Chicago, IL 60603-512110. Owner (Do not leave blank. If the publication is owned by a corporation, give the name and address of the corporation immediately followed by thenames and addresses of all stockholders owning or holding 1 percent or more of the total amount of stock. If not owned by a corporation, give thenames and addresses of the individual owners. If owned by a partnership or other unincorporated firm, give its name and address as well as those ofeach individual owner. If the publication is published by a nonprofit organization, give its name and address.)Full NameDefense Research Institute, Inc.11. Known Bondholders, Mortgagees, and Other Security Holders Owning orHolding 1 Percent or More of Total Amount of Bonds, Mortgages, orOther Securities. If none, check boxFull NameComplete Mailing Address55 West Monroe Street, Suite 2000Chicago, IL 60603-5121x NoneComplete Mailing Address12. Tax Status (For completion by nonprofit organizations authorized to mail at nonprofit rates) (Check one)The purpose, function, and nonprofit status of this organization and the exempt status for federal income tax purposes:x Has Not Changed During Preceding 12 MonthsHas Changed During Preceding 12 Months (Publisher must submit explanation of change with this statement)PS Form 3526, September 2007 (Page 1 of 3 (Instructions Page 3)) PSN 7530-01-000-9931 PRIVACY NOTICE: See our privacy policy on www.usps.comyour local rules, and make sure that yourbrief complies.13. Publication Title14. Issue Date for Circulation Data BelowFor The Defense September 201015.Extent and Nature of Circulationa. Total Number of Copies (Net press run)b. PaidCirculation(By MailandOutsidethe Mail)Mailed In-County Paid Subscriptions Stated on PS(2) Form 3541 (Include paid distribution above nominalrate, advertiser's proof copies, and exchange copies)c. Total Paid Distribution (Sum of 15b (1), (2), (3), and (4))d. Free orNominalRateDistribution(By MailandOutsidethe Mail)e. Total Free or Nominal Rate Distribution (Sum of 15d (1), (2), (3) and (4))h. Total (Sum of 15f and g)Mailed Outside-County Paid Subscriptions Stated onPS Form 3541(Include paid distribution above nominalrate, advertiser's proof copies, and exchange(1)copies)Paid Distribution Outside the Mails Including Sales(3) Through Dealers and Carriers, Street Vendors, CounterSales, and Other Paid Distribution Outside USPS®(4) Paid Distribution by Other Classes of Mail Throughthe USPS (e.g. First-Class Mail®)Free or Nominal Rate Outside-County(1)Copies included on PS Form 3541Free or Nominal Rate In-County Copies Included(2)on PS Form 3541(3) Free or Nominal Rate Copies Mailed at OtherClasses Through the USPS (e.g. First-Class Mail)(4)Free or Nominal Rate Distribution Outside the Mail(Carriers or other means)f. Total Distribution (Sum of 15c and 15e)g. Copies not Distributed (See Instructions to Publishers #4 (page #3))i.Percent Paid(15c divided by 15f times 100)16. Publication of Statement of Ownershipx If the publication is a general publication, publication of this statement is required. Will be printedin the ________________________ October 2010issue of this publication.17. Signature and Title of Editor, Publisher, Business Manager, or OwnerPS Form 3526, September 2007 (Page 2 of 3)Average No. Copies Each IssueDuring Preceding 12 MonthsNo. Copies of Single IssuePublished Nearest toFiling Date27,509 23,25925,627 21,4600 00 0698 64526,325 22,1050 00 0Publication not required.I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on thisform or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civilsanctions (including civil penalties).For The Defense n October 2010 n 872785333126,65685327,509Date2724531722,42283723,25999 99Managing Editor October 1, 2010
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