RI SC - The Stagecraft as Strategy, May 15

We lead paint watchers now know the presenters for both the defendants and the plaintiff at the Rhode Island Supreme Court oral arguments on May 15th.  Who presents is as important as what they present.  Or, as we say in communications, stagecraft is strategy.

For those who want to drill deeper into this notion of presentation as theatre and theatre as the power of persuasion, a useful read is the 1999 book "The Experience Economy: Work Is Theatre & Every Business a Stage."  The two authors B. Joseph Pine II and James H. Gilmore deconstructed how winners know exactly how to set the stage.

The Defendants

The defendants, as I see it, have to accomplish two key objectives in their presentations.  [Here is a copy of the list of presenters, the issues, and the timeframes Download zpfile000.pdf] 

For one thing, they have to make a connection with the RI Justices.  Those attorneys who represented defendants Sherwin-Williams, NL Industries and Millennium Holdings in the lead paint public nuisance trial II were all from out-of-town.  Clearly, what's needed is more local flavor.  Otherwise there's the appearance of carpetbaggers who have no roots or interest in the state of RI.

Therefore, along with the usual suspects, we have presentations by four local attorneys. 

One of them is John Tarantino who we already know from the actual trial.  He represented Atlantic Richfield.  On May 15th, he has two roles. 

One is to rebut the plaintiff's request for an overturn of the acquittal and a new trial on the successorship liability issue [10 minutes].  The other is to be the pointman for all four original defendants on the contingency agreement issue [10 minutes]. 

It was Tarantino who was the pointman on this very issue when the defendants brought it to the RI Supreme Court back in 2006.  He made the oral arguments - successfully.  The RI SC didn't toss the motion but put it on hold until other substantive matters relating to the case had been resolved. Tarantino is well-known in the state and had won RI Lawyer of the Year. In addition, his working-class roots seem apparent.  That's a plus for this particular context.  The jurors, when I interviewed them, sang his praises.

The other local attorneys are:

• John A. MacFayden - to address the issue of liability, more specifically the public nuisance matter.  He will have 15 minutes vs. out-of-state attorney Don Scott who has 5 minutes.  MacFayden also will handle the rebuttal part on the public nuisance matter.

• Joseph V. Cavanagh - to address the issues of separation of powers - Legislative Deference, Constitutional, and Trial error.  In this segment, Cavanagh is only alloted 5 mintues vs. out-of-town Mickey Pohl's 15 minutes.  Pohl will also handle the rebuttal.

• Thomas R. Bender - to address the contempt convictions of the RI Attorney General Patrick Lynch.  The latter requests those convictions and the fines be overturned.  Bender will argue that they be maintained.

The second necessary piece of stagecraft is to have a female presenter.  We know her from the trial - Laura E. Ellsworth.  She will address the important matter of compensatory damages [10 minutes].  The plaintiff is introducing another financial matter here in requesting compensatory damages.  For this, the state of RI wants a new trial and is talking in the ballpark of more than $26 million.

Ellsworth is from out of town.  But she brings the traditional female touch into a case all about the welfare of children.  In this she balances out the presence of the two female plaintiff presenters Genevieve Allaire-Johnson and Fidelma Fitzpatrick. The latter argued passionately during the trial about protecting the children of RI from the hazards of lead paint.  At the trial Ellsworth made only one presentation, that was on the controversial issue of IQ.

The Plaintiff

The state of RI has to communicate that this case is theirs, not that of the private law firm Motley Rice which has been hired on a contingency basis. Therefore, the presenters should be primarily from the office of the Attorney General, which filed the lawsuit.  And that's exactly what's staged.

The two attorneys from Motley Rice - Jack McConnell and Fidelma Fitzpatrick - have a major role only in the liability segment.  Even there they share the stage with Assistant Attorney General Neil F.X. Kelly.  McConnell also has full responsibility for addressing the Atlantic Richfield matter, which of all five matters for argument, is probably the least important to the state.

The other presenters from the AG office include:

• Genevieve Allaire-Johnson, Special Assistant Attorney General - will address compensatory damages.  This pits a female against another female [Ellsworth] on the "fairness" issue of compensating the state for the costs incurred by its three agencies in preventing, diagnosing and treating lead paint among RI children.

• James R. Lee, Assistant Attorney General - will address the contempt charges.

• Neil F.X. Kelly, Assistant Attorney General - will address the key issue of the contingency fee agreement.  If contingency is not permitted, then another trial probably is not possible.  Both the defendant and plaintiff are requesting new trials, for different reasons.

[Here is a copy of the Plaintiff's Notice of Counsel and Issues Download NoticeofCounsel.pdf].

Clearly, both the defendants and the plaintiff recognize that perception can be reality, even in as august a legal proceeding as an appeal before a state Supreme Court.