An HB Conference Report
By Tom Hagy
“Ultimate success at trial starts on the day you understand yourself as a lawyer.” That was the opening piece of wisdom attorney Frank D. Pond shared at an HB seminar earlier this year for attorneys new to trying mass tort cases. With trial experience that began in the 1980s while working in the Los Angeles County District Attorney’s Office, Pond said trials really began to click for him when he stopped trying to channel archetypes and heroes. At first he tried to be Perry Mason or another experienced trial attorney in his office which, he said, was a losing approach. “Then I decided to be me and I started winning trials,” Pond said. “Things that work for one lawyer may not work for you.”
Founding partner of Pond North LLP, Pond shared practical advice to budding trial attorneys, particularly those on the defense side.
(Note: Pond is co-chair of HB’s “Asbestos Litigation West Coast Crash Course Conference & Webcast,” a one-day immersion for all experience levels taking place on Dec. 7 in Los Angeles. He will be joined by plaintiff attorney Martha A.H. Berman of Levin Simes Kaiser & Gornick.)
Here is just some of what Pond had to say.
Look for the facts. “Sometimes cases pick you,” he said, “but look for facts. I win cases on facts, not science and medicine. Plaintiffs can win on science and medicine, but defense attorneys need to get facts and commonsense on their side.”
Understand and inform jurors. Pond said picking a jury is the most important part of an injury trial, particularly from the defense point of view, and he does it himself. “I don’t use jury consultants. I don’t recommend them to most of the defense,” he said.
Off to the left politically – “I belong to the Democratic wing of the Democratic Party” – Pond says that doesn’t mean he shares the automatic disdain for the Fortune 500 displayed by many on the left. But in the urban centers where he tries cases, Pond said “it’s helpful to know jurors will have a bias against corporations in cases involving an injured person.”
“Any juror who tells you that they see a dying person at the starting line the same as a corporation is lying to themselves and to you, so don’t buy into that,” he warned. “The natural sympathy of the juror is toward the plaintiff, and the natural antipathy is towards corporations. You need to understand that, so you are working with the jury, not against them.”
It is important to bond with the jury during selection, but you have ask hard questions that force them to consider the feelings they have about companies at the subconscious level.
As for presenting yourself as the defender of a big company, he said, “You need to explain it’s a serious case. You need to say the plaintiff doesn’t deserve this disease – and you need to mean it. Show that viscerally, that you are feeling the same thing they are.”
Craft a trial theme. “Know what you’re going to say in trial before you start,” Pond advised his audience. Combine preparation and planning with being nimble and you will be able to put together your trial in an effective manner, he said. “You see a lot of trial lawyers on the defense side not paying as much attention to the trial until they get to the courthouse. You see massive motions in limine and verdict forms cobbled together . . . You need to know your case from the beginning and frame everything. After jury selection, the biggest part of winning comes from knowing your case and having a theme,” he said.
The trial lawyer should also be the settlement lawyer. “You need a stake in the game in order to really effectuate a settlement properly. You can best do that when you best understand every aspect of the case and you’re seasoned enough so you’re not going to let your emotions get the best of you.”
Shoot for short trials with few defense experts. “The shorter the trial the better,” Pond said. “I don’t think defense lawyers win on science and I don’t think experts help us. I try to call as few experts as I possibly can. Ideally I want plaintiffs to call lots of experts. Let them flood the world with knowledge and let me be focused on whatever factual contradictions or conundrums exist in the case. Let them bore the jury to tears with science and medicine. I will do the three or four things I need to do with the experts and let them sit down. I will let the experts say controversial things that, frankly, I could have three transcripts and impeach them with – I don’t find any of that effective. Those Perry Mason gotcha moments don’t help the defense at all. What helps are the facts. A place where the plaintiff contradicts himself or herself, or a witness comes in and contradicts himself – there’s nothing better. You need to be alert and alive to those facts. If your whole case hinges on your impeaching an expert, then you probably shouldn’t try that case.”
Polling the jury? “Don’t do it if you’ve won! Don’t invite errors!” Pond warned. “If you lose, definitely [take a poll] and point out any errors. No matter how much ego we bring to the game, every trial tells me how to present myself better.”
Wake up and smell the hubris. “Hubris is your biggest enemy,” Pond said. “Treat jurors and your opponent with the utmost respect. And the court, not just the judge, but the staff.” They are not your subordinates and you should know their names, he advised.
Don’t trip over basic courtroom functions. Know the rules of the courtroom. Who pays the fees? How do you deal with the clerk? How do you get daily transcripts? If you don’t have these things down pat, he said, you will spend your time paying attention to them and not the trial itself. “Ask the judge what he or she likes. Where do you stand? How do you handle jury instructions? Ask intelligent questions so the court knows you want to treat it with the respect it deserves.”
Gain experience wherever possible. Some firms send lawyers to the D.A.’s office or to trial advocacy programs. “There is nothing like trying cases to get great experience,” he said. And knowing the facts does not excuse you from understanding the science and medicine. In that arena, “throw yourself into depositions with experts. Be fearless and learn on your feet that way.”
Kill PowerPoints! “If you can get PowerPoints and demonstratives excluded from openings, you have already scored a point as the defense attorney, as the plaintiffs have a lot more to prove,” he said.
On openings . . . . “As defense lawyer, I want you to know my company. I want you to know that I care about this trial, and I feel for what the plaintiff is going through, and the very basic theme of whatever my theme is on the facts.”
On closings . . . . Try to make them 20 to 30 minutes max,” he said. “If you can’t say it in 20 to 30 minutes then you’ve lost the case.” Pond said that daily reports to clients is a great asset in this regard, because it provides the discipline to frame what happened each day, and that distillation process creates the elements of your closing statement. And give it to them straight. “Don’t sugar coat and over coat. If you have something discordant, that’s something you need to play in your head for your closing. Take the day and re-frame it.”
Pond has trial, arbitration, and mediation experience in the defense of asbestos personal injury, wrongful death and property damages, products liability, and toxic torts with special reference to the respiratory, central nervous, and immune systems; accident injury claims; environmental law (including State, Federal, CERCLA, traditional tort, and Proposition 65 claims); medical malpractice; unfair business competition; construction; bankruptcy; and employment law. HB is proud to have Pond as co-chair of its Dec. 7, 2010, “Asbestos Litigation West Coast Crash Course Conference & Webcast.”
Tom Hagy is CEO of HB Litigation Conferences. He is former editor and publisher of Mealey Publications and vice president at LexisNexis.