Law And More

Pohl's 14 Items - RI Lead Paint 8/30-31 Hearing

I felt that as Paul Michael Pohl took the podium this afternoon in the hearing on the defense motions for a new trial, he embraced the reformer spirit of Martin Luther. Luther, you might recall, went up to the church door, attached his concerns about religion, and set off a revolution.  Pohl told Judge Michael Silverstein that he was going to cover 14 items which could lead to dismissal or a new trial in the Rhode Island (RI) lead paint trial.  Yeah, like Luther, Pohl had guts.

The 14 items came as the last thing up in an exhaustive two-day hearing.  Also, some of the items such as the Lead Industries Association (LIA) and the overhang of a product-liability case had been discussed seemingly forever.  But Pohl plowed on.

The one issue that was naturally engaging, at least to anyone who was obsessed with RI lead paint II, was Pohl's deconstruction of how the state had allegedly appealed to the jurors' financial self-interest.  The state, Pohl, contended did this through the "burden to the taxpayer" theme. 

According to Pohl, there were 11 references to "direct harm to the taxpayers of RI."  He was right on the money.  I vividly remember that theme because it hit home for me during those four months of the trial.  No way, Jose, did I want to be assuming the financial burden of screening and treating children for lead poisoning. 

Pohl emphasized that this was a "drumbeat" theme that was hammered through "frequency and directness."  Since the nation was just coming out of a global recession, I saw that theme as very powerful.  I had no legal notion that rolling it out and reinforcing it could be grounds for a new trial.

After Pohl's 14 items, Judge Michael Silverstein told the court room that he couldn't predict when he would have a ruling on the defense motions. 

We who had spent so much time together in this courthouse lingered for a few minutes talking, then packed up our attache cases and headed off to do assignments that had nothing whatsoever to do with lead pigments.  I had to get back pronto to central Connecticut to research and create a column for GREENTREE GAZETTE - a print publication focused on the business of higher education - on marketing communications.   Don Scott, who represents NL Industries, already had left yesterday after for a different kind of jury trial. 

Yeah, hard to change gears, but necessary, I guess.

Those Infamous Jury Instructions - RI Lead Paint Hearing 8/30-31

In this P.M. session of the hearing about the defense motions for a new trial in Rhode Island (RI) lead paint trial II, Michael Nilan was the point man for arguments about one aspect of the infamous jury instructions. (Copy of jury instructions available free from Mgenova981@aol.com).

Nilan, who represents Millennium, was also speaking for the other two defendants, NL Industries and Sherwin-Williams.  It was smart strategy to focus in this hearing on only one part of the instructions.  Also, it was smart for Nilan to thread lightly since Judge Michael Silverstein, who presided over the RI lead paint II and over this two-day hearing, created those instructions.

Nilan argued that the instructions directed the jurors to consider only one source of lead - lead pigments - in deciding if there was a public nuisance in RI and if that public nuisance had been created by companies that had at one time produced or sold lead pigments. This was problematic, contended Nilan, because the jurors were explicitly told not to take into account other sources of lead that might have caused cases of lead poisoning in RI.

Those other sources, as plaintiff witness Dr. Shannon said in court and published in articles, include lead from drinking water, soil, and gasoline emissions. The head of the RI program on lead prevention and treatment Dr. Simon had also published articles indicating there were other causes of lead poisoning in RI in addition to the lead from paint in RI residences.  In fact, Dr. Simon indicated that in cases of elevated levels of lead in the blood falling into the 10-19 category, the causal agent often wasn't clear. 

Given the multiple possible causes for lead poisoning, it should have been difficult for the jurors to determine if the defendants had substantially contributed to a public nuisance. Lead pipes are a prime cause of lead poisoning in a number of cities.  But this big-picture approach was excluded from their consideration by the instructions.

As Nilan noted, the jurors took those instructions very seriously.  In interviews with PROVIDENCE JOURNAL's reporter Peter Lord and myself, the jurors described how they went line-by-line through Judge Silverstein's instructions to try to find their way to a verdict. 

Nilan classified this particular instruction as a material error and grounds for a new trial.  He, of course, cited some relevant cases on the matter.  Fidelma Fitzpatrick, attorney representing the state, made no response. 

No Ruling on Motions - RI Lead Paint 8/30-31 Hearing

Since Rhode Island (RI) Superior Court Justice Michael Silverstein is cautious and fair to all parties, it was no surprise that he did not make a ruling on the defense motions for a new trial in the landmark RI lead paint trial. 

After the two-day hearing on the motions and with opportunities for the state to respond to each item, Judge Silverstein said that he "can't predict when he will have a decision."  There were so many motions and so much rebuttal from the state.  Judge Silverstein joked that this hearing was "ending the destruction of all the forests that exist."  My H-P laser printer needs a new cartridge after providing me with hard copy of just some of the paper that flowed since the February 22nd verdict.

Judge Silverstein explicitly asked Paul Michael Pohl, lead attorney for Sherwin-Williams, if the Court rules on RI Rule 50, should he continue and rule on the other parts of the motions.  Initially Pohl answered that he would research this and provide the Court with what he found.  Then, an informal consensus seemed to spring up among the defense attorneys that there would have to be rulings on all aspects of the motions.  The reason seemed to be the possibility that the case would be brought to the RI Supreme Court.

Judge Silverstein speculated out loud if there would be a need for a separate trial on the abatement issue.

My hunch is that most of us will be dead before the RI lead paint follies are resolved in RI and nationally.

Rule 60B - "Misleading" Ain't the Issue - RI Lead Paint Hearing

This A.M. in the Rhode Island (RI) lead paint trial motions' hearing there was plenty of rhetoric about "misleading."  The issue was the LESS Database, which seems to be the defense's strongest ground for getting a new trial.  But all that melodrama shouldn't distract RI lead paint II watchers and investors in the defendant companies' stock from the legal reality of Rule 60B.

As Scott Smith, representing Millennium Holdings, emphasized over and over, the intentions of the state have nothing to do with applying Rule 60B to get a new trial.  The language of Rule 60B and case law clearly show that new trials can and have been granted even when evidence wasn't disclosed in all innocence or through human error. 

All the heat in the court room about the so-called integrity of the state attorneys is irrelevant.  Yes, Judge Michael Silverstein said in court this morning that, no, the state hadn't misled.  But, so what.  Rule 60B could still win the defense a new trial.

Other observers in the peanut gallery today agree with me that this RI lead paint follies will be running in Providence or maybe in Washington D.C. (U.S. Supreme Court) for a long time to come.  Clearly, the defense has gone on the offense post-verdict (e.g. read their motions.)

Gloves Off - LESS Database Arguments on Day 2 of RI Lead Paint Hearings

Maybe the LESS Database arguments won't be a slam-dunk for a new trial, as I had thought. But, on the other hand, maybe they will be.  I'm not a lawyer.  All I know is what I picked up in this morning's session in the 2nd day of hearings about the defense's motions in the Rhode Island (RI) lead paint trial.  The session was completely devoted to the issue of whether Rule 60B can be applied regarding the 621 number.

Paul Michael Pohl, representing Sherwin-Williams, Scott Smith, representing Millennium Holdings, and Fidelma Fitzpatrick, representing that state, went at it. The gloves were off. In all the times I had observed Fitzpatrick in court, this was probably her best presentation of self and of the legal issues.  Pohl and Smith were also strong.

The two defense attorneys argued that Rule 60B should be applied and a new trial permitted.  Essentially Rule 60B ignores intentionality.  It can be invoked whenever the data introduced during a trial was materially different from the actual data.  It's irrelevant if the oversight was planned or innocent. 

Among the case law presented by both was the recent Merck verdict which was overturned because of undisclosed evidence.  Pohl also reiterated "why [the 621 number] was such a big deal at trial." 

Some of that is familiar to us: The jury was led to believe that a plateau had been reached in RI in preventing new cases of lead poisoning among children under 6 and extraordinary measures had to be taken.  The verdict form had question 1 about if there was a public nuisance in RI and question 3 about the need to abate the public nuisance.  Smith hammered how much out-of-date numbers might have influenced the jury to answer questions 1 and 3 in the affirmative.

A new twist was the introduction of the national market share piece.  The defense contended that the state used national market share numbers to imply what the defendants might have been up to in RI.  At the same time, the defense contended, the state also used the national numbers which Dr. Shannon supplied about a plateau in lead-poisoning prevention to support the implication that there was also a plateau in RI.  Smith pointed out the state can't have it both ways. 

Of course, both highlighted the "magnitude" of the Rule 60B matter.  As well they should.  Billions in possible abatement money are riding on the defense's ability to get a new trial.  However, legal experts inform me that if the defense can't get a trial, there are other ways to seek a remedy to the verdict.  Those include going all the way to the U.S. Supreme Court, which is possible but not probably.

Fitzpatrick used every trial-lawyer tool available, ranging from carefully-cited details from official court documents to impassioned rhetoric.  Essentially her argument was that the defense was aware that there was no plateau and they chose not to present this information during the trial.  Fitzpatrick was shrewd to remind the court, yet again, that the defense had chosen to rest its case and not call witnesses.

How the defense knew this, might have known this, or could have known this, contended Fitzpatrick, was through depositions with Philip O'Dowd and Dr. Simon (M.D.).  In those depositions there were indications that maybe the numbers available on new cases of elevated levels of lead in the blood in RI should not be relied on. The depositions also dealt with the matter of how new cases were being counted by the RI Department of Health.  If there was going to be a change in how new cases were determined, then the defense had to anticipate that the numbers could change radically.

A major issue embedded here was that statistics on new cases have to viewed on an annual basis.  The statistics available only pertained to the first three quarters of 2005.  The defense, Fitzpatrick stated, should have followed this up in order to get a more accurate read on in what directions the numbers were moving or not moving. 

In addition, while Fitzpatrick admitted that the state refused to turn over new data to the defense (the so-called smoking gun since it contained 4th quarter numbers), the defense could have filed a motion to attempt to get them by appealing to the court. Again, the implication here was that the defense wasn't pushing back hard enough, as when it passed up the opportunity to present its case. 

The elephant in the court room, of course, was the issue of the defense's not calling witnesses.  Fitzpatrick would sometimes make this explicit by opining that the defense lost its chance to present its evidence and point of view and now it's using RI Rules 50/59 and the LESS Database as a way of getting a second shot at this.  When law journals start deconstructing the RI lead paint saga, the defense's not calling witnesses in RI lead paint II will be endlessly discussed.

Fitzpatrick also got appropriately worked up about the defense's contention that the state had "mislead" the jury.  Fitzpatrick reframed the issue as one of the defense's failure to file a motion to get the fourth-quarter data.  Interestingly, Judge Michael Silverstein explicitly said, "The state did not mislead."

A transcipt of the LESS Database hearing from July 12, 2006 is available at no charge from mgenova981@aol.com.

Judge Silverstein recessed court for lunch with the hope that the rest of the defense's issues could be wrapped up today.

Law Vs. Media

Sure, we professionals with even a touch of narcissism (which we need just to get by in this dogfight of a marketplace) assume our line of work is very important and comes with great power. Since I've been blogging, I assume that more and more.  At least until I was in Superior Court Room 16 yesterday for a hearing in the Rhode Island (RI) lead paint trial. 

The room was electric with importance and power.  And those volts weren't coming from us media.  They were coming from the lawyers.  And after giving this considerable thought, I have decided this just wasn't a question of setting: Courthouses are about lawyers.  No, this reflects the realities of America's litigious society.  When a lawyer in my condo objected to my barking dog, you bet I was the one to move, not him. (No, I wouldn't give up Fido.)  If a letter comes to me from a law firm, I almost faint and have to have a significant other open it.  And, yes, even at my age I still have the fantasy of returning to law school and getting that wonderful ticket.

Reflection: There was the crack from Judge Michael Silverstein about media in the P.M. session in Court Room 16.  As the LESS Database issue was being discussed by Scott Smith, who represents Millennium, it came up that the jury for RI lead paint II had supposedly been deadlocked the third day of deliberations, 4 to 2, in favor of the defendants.  Judge Silverstein piped up and said that's what the media claimed.  I guess I was included in that "media claimed" because I had interviewed four jurors and, yup, that's what they said.  Well, Don Scott, the lead attorney for NL Industries, jumped into the conversation and claimed that he had talked in person to the jurors and the deadlock, 4 to 2, had happened.  That settled it: A lawyer had spoken.

Channeling David Ogily's Ghost - RI Lead Paint Follies

I could sense that the ghost of ad legend David Ogilvy was hovering over the hearing in the Rhode Island (RI) lead paint saga today.  The spirit floated in to help Don Scott, lead attorney for NL Industries, explain why the lead-industry advertisements had no relevance to anything, at least in the trial. 

During RI lead paint II, the state had trotted a whole bunch of Norman Rockwellish ads from yesteryear.  The ads depicted happy families becoming ever happier after applying a coat of Dutch Boy paint.  Those ads were so old that they probably could fetch a nice sum on eBay.  The purpose of showing the ads was for the state to build an argument that the evil lead-paint industry was using cute ads to lure consumers to purchase more and more of this harmful product.

Scott, of course, made the point that none of the ads could be linked to RI.  But, he was also struggling to get across the reality that there's no proof that those ads, even on a national level outside RI, were effective.  As an attorney, Scott isn't steeped in communications lore. Otherwise he would have been familiar with Ogilvy's famous adage: I know that half my advertising works, I just don't know which half.

Had Scott known and borrowed Ogilvy's words, he could have easily and wryly noted: Hey folks, advertising often doesn't work and when it does  the experts rarely know why, even now.

If the defense gets a new trial, I strongly recommend it puts on the stand an expert witness in advertising.  Maybe Scott et al. can channel the ghost of Ogilvy.

You Can't Go Home Again - RI Lead Paint Saga

Even the room had changed.  The hearing for the defense motions in the Rhode Island (RI) lead paint trial was in Court Room 16 on the 4th floor of the Courthouse.  Most of us went to Court Room 11 on the 5th floor.  It was not only shut down but Judge Michael Silverstein's name was not posted by the door.  So, for me, who gets attached all too much all too easily, the day began with a seismic shock.  Had I known then that everything else had also changed ...

Among those which did are:

• The peanut gallery was filled with chairs, not benches shaped like church pews.  This wasn't the way it used to be.

• Judge Silverstein had a George Hamilton-type tan.  I remembered how my classmate in high school used ManTan and came into homeroom not only tan in a Jersey City, New Jersey winter but with toast-colored hands.  After that, I've been suspicious of all tans.

• The courthouse library on the 8th floor had new PCs with what seem to be high-speed Internet connections.  Not a posting got lost the way they used to November-February when the dial-up connections sometimes worked, more often didn't.  It was all too easy.  Blogging about such complex matters as the RI lead paint follies shouldn't be easy.

• John Tarantino, it turned out, was there as an observer, not a presenter.  I anticipated he would be the point man for the LESS Database arguments.  He wasn't.  Court isn't court without Tarantino's impassioned orations.

• Fidelma Fitzpatrick wore open-heeled shoes.  What a walk on the wild side.  Also, she, of course, was no longer pregnant and no longer appeared tired.  Don't know if there's a cause-effect relationship but her performance seemed improved.  Maybe those were her lucky shoes. (My executive coach made me dump my lucky suede shoes.)

• A figure right out of a southern Gothic novel came in with a straw hat and cane.  Then he vanished.  This is not the place for characters, only capitalists.  Wall Street was present, as usual, and that business-as-usual made me feel safe again. 

TIME Magazine says that the cool thing to do now when you feel the shock of the present is to eat cupcakes.  That comfort food goes for 3 bucks a pop and they are only sold in boutiques.  Don't even try to find them in a bakery, which is so yesterday.  Fortunately, I located two chocolate cupcakes with chocolate frosting and chocolate sprinkles.  That did the trick.  I can return to Court Room 16 feeling, well, okay.

Pohl Slams National Market Share Argument - 8/30 RI Lead Paint Hearing

"You can't say that they [Sherwin-Williams] were big players nationally" and then on that basis construct a scenario on what they might have done in Rhode Island.  Essentially that was Paul Michael Pohl's point today at the hearing on the defense's motions for a new trial in the Rhode Island (RI) lead paint trial. His presentation on behalf of his client Sherwin-Williams reinforced those of NL Industries and Millennium Holdings about the pyramiding of inference upon inference built on national market share numbers, with no numbers for RI per se.

If you read law blogs such as Overlawyered.com or Pointoflaw.com, you know that this controversy about using national market share numbers is not just part of the RI lead paint saga.  Clearly, and Pohl called the state on it in his arguments today, the plaintiff applied the strategy of large national market share to position the defendant as a big - code word perhaps for "bad - company.  In fact, Pohl closed his presentation by noting that in its opening arguments, the state flashed the logo of Sherwin-Williams.  The message, opined Pohl, was: Sherwin-Williams is a big company.  Therefore, and the jury could fill in the rest.

If you want to talk influence, this tactic of mentioning how big companies are often assumed to be guilty simply because of their size was effective.  Also, Pohl was highly specific in citing the state's failure to nail down what in the world Sherwin-Williams was doing or not doing in RI.  But, Judge Michael Silverstein is the one in charge and he will decide on the legal aspects of Pohl's arguments.

Fitzpatrick On Message, Off Point - 8/30 RI Lead Paint Hearing

Observing Fidelma Fitzpatrick this afternoon at the Rhode Island (RI) lead paint hearing on defense motions I thought I was witnessing a political figure dance around an issue.  Fitzpatrick, who represents the state in this trial, was sure on message, but not on legal point.  And that legal point were RI Rules 50/59.  She waxed poetic about the "will of the jury," "wealth of knowledge" represented by Professor Rosner, and "evidence in a vacuum."  But as the defense pointed out after she finished, she hadn't focused on RI Rules 50/59.  That's what the first part of the hearing was about.

She also brought up that issue which had been tossed: Lead Industries Association (LIA) as agent of the defendants.  Bringing it up weakened any position of strength she did have.  And the position of strength she did have was her reference to the the defense's resting its case without calling witnesses.  Had she stayed with that issue, she might have been more persuasive, at least to us in the peanut gallery.  How did Judge Michael Silverstein perceive Fitzpatrick's performance?  We will know that when he issues his ruling.