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The Finder of Fact

In the late 1990’s, Vice President Al Gore was being interviewed on CNN by Wolf Blitzer. In responding to a question about his qualifications in running for office; he replied,

“During my service in the United States Congress, I took the initiative in creating the Internet. I took the initiative in moving forward a whole range of initiatives that have proven to be important to our country’s economic growth and environmental protection, improvements in our educational system”.

Gore was criticized and even ridiculed for claiming to have “invented” the Internet. He and his supporters quickly defended him by saying that he never claimed to “having invented the Internet”. He was just discussing how supportive he was personally and through legislation in technology advancement.

When I looked at Sunday’s Richmond Times-Dispatch, I saw a link to, which analyzes statements by politicians and rates them on being true or false. The most aggregious statements are rated as “pants on fire”. The little graphic even has fake flames.

One of the political statements is a quote from U.S Representative Eric Cantor. In budget discussion he is credited with saying that, “ The National Science Foundation spent $1.2 million paying seniors to play World of Warcraft to study the impact it had on their brain.” Right next to that statement is a big “pants on fire” graphic.

I did not do any research on why or where Representative Cantor said that. Plus, maybe he was given faulty research or simply misstated what he meant to say. Maybe PolitiFact misstated their facts.

In the trial of a civil matter, juries receive instructions from the judge that is considered as the law of the case to be applied to the evidence. In many cases, plaintiff and defendant will call expert witnesses who give completely different opinions on the exact same piece of evidence.

As to expert witnesses, this is the jury instruction that is usually read to the jury,”In considering the weight to be given to the testimony of an expert witness, you should consider the basis for his/her opinion and the manner by which he/she arrived at it and the underlying facts and data upon which he/she relied.”

In law, a jury is known as the trier of fact. In our own lives, it is up to us to determine truth or fiction. We have learned that we have to do our own research before just accepting what we hear or read.

When I think of truth, I am reminded of my grandfather’s quote that I probably have written in a previous blog. Still, when I think about it it brings back a good memory.

Before bedtime, he would always insist on making sure that I brushed my teeth. Plus, he did not want me to shortcut it and miss a tooth. He would look me in the eye and say, “be true to your teeth or they will be false to you”. Good motiviation!

Tomorrow’s blog will be a follow-up on this when I discuss a trial from last week.

For pic o’ day, some truth:

Admit it

When the Defense Says “Sorry”.

     In a written morning devotional, Joe Stowell recently recounted a Paul Harvey “rest of the story“. I am crediting both because it almost sounds like one of those urban legends, but it still makes for a good story.

     The Italian national sailing team had traveled to Australia,  to compete in the race for the America’s Cup. The team had several sponsors, but their primary outfitter sponsor was Gucci.

     Days before the sailing race began, they found themselves with some free time and decided to see some of the Australian Outback. So, they ventured out into the bush in their Gucci jackets, Gucci watches, Gucci warmups and they carried their Gucci bags.

     Because they knew that they might encounter some rough terrain, they rented a Land Rover. As they rounded a curve, a kangaroo bounded out in front of their vehicle. It happened so fast that the Italian driver was unable to stop in time and they crashed into the poor animal.

     Stunned, they climbed out of their vehicle to inspect the damage to Rover and kangaroo. Because there was nothing that really could be done, they decided to make the best of this sad situation by getting close to the kangaroo and inspecting it. None of them had been this close to one before.

     The driver had the “brilliant” idea of putting his Gucci jacket on the kangaroo, so that they could take some pictures of this critter in their team jacket.

     Just as they got the jacket on the kangaroo, it became immediately apparent that the animal wasn’t dead, after all. It revived; jumped up with the jacket on and bolted into the bush before any of them could react. It was then that the driver also realized that the kangaroo now had his jacket, wallet and the keys to the Land Rover.

     This is the kind of story that you could take in many directions. I immediately thought about the defense that I usually hear in jury trials.

     The defense attorney will get up and tell the jury that the defendant is at fault for the crash,  the subject matter of the trial. Then, they will spend the rest of the trial attacking the plaintiff; the injuries and that the defendant could not be responsible for the injuries and resulting medical bills.

     I learned a long time ago that when a defense attorney says that their client is at fault, it doesn’t mean that they are admitting responsibility. When the defendant says “I’m sorry”, I now believe that they are sorry for being in the crash and sorry for being in trial; they just can’t bring themselves to go the next step and accept responsibility for the injuries to my client. 

     There may be a kangaroo still out there, hopping about in the Outback with that Gucci coat. It doesn’t know why those keys are rattling and it really has no use for the wallet. It’s not going to stop at the Outback for “some shrimp on the barbie”.

     Putting a coat on a kangaroo doesn’t mean it can sail or that it meets some need for the kangaroo. For a defendant to say that they are sorry or that they are the cause of the crash is useless to the plaintiff. Until one defense attorney or defendant gets up and says that “I’m sorry that I caused the crash and all these injuries”, then “Sorry” has no meaning, no matter how it is dressed up. 

     If “Sorry” ever does mean “Responsibility”; I suspect that I would resemble that Italian sailing team;  A real look of shock.

Fosamax Verdict and Your Checkbook

     The Judge basically told the plaintiff’s lawyer that he needed to make a choice and also bring his checkbook. A Federal Court Judge in New York, Judge Keenan, had just presided over the first bellwether Fosamax trial. The jury returned a verdict of 8 million dollars against Merck.

     Fosamax is an osteoporosis drug that is supposed to help users fight bone density problems. Instead, the side effects are allegedly causing severe jaw fractures. This New York jury obviously connected this drug to that symptom.

     The defense moved to have the verdict set aside. One of the primary arguments related to remarks that the plaintiff’s attorney made in closing arguments. The Judge had previously stated that in 80 years of living, he had never seen more outrageous behaviour in his life.

     After considering the motion to set aside the verdict, the Judge decided that even though he agreed that the plaintiff’s “conduct fell far shy of professional conduct”, that he did not believe that it impacted the jury verdict.

     After considering all the evidence and the resulting verdict, the Judge did feel that the verdict was too large and offered the plaintiff a choice. Either accept a reduction (remittitur) to a 1.5 million verdict, or choose a mistrial and retry the case. The first time that the case was tried, it was declared a mistrial.      

     In addition, as to the conduct of the plaintiff’s lawyer, the Judge sanctioned him $2500. However he did not forward a complaint to the Committee on Lawyer discipline; So apparently, the Judge did not think that it warranted a professional sanction. Now, plaintiff has to decide whether to spend the money to try it again or accept the Judges reduction. That obviously would not preclude Merck from appealing anyway.

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