Persuasive Litigator

By Dr. Ken Broda-Bahm: 

This past Tuesday President Obama delivered the first State of the Union Address of his second term. It's been traditional for the party on the other side to give a response, and in what is becoming a pattern, there was a response from both the Republican Party as well as the Tea Party movement. So, if the President was like a a plaintiff putting forth his case, then Senators Marco Rubio and Rand Paul (responding for the Republicans and the Tea Party respectively) were like two imperfectly aligned co-defendants: agreeing on nearly everything (e.g., smaller government, spending cuts), yet still divided by a few key issues (e.g., immigration reform, and the culpability of both parties). Coming in the context of a widely reported "civil war" within the Republican Party following the election, the situation put Rubio and Paul on the tricky path of finding ways to advance a common case, while still noting some critical distinctions. That is a situation not unlike that of co-defendants in civil litigation: the product manufacturer and the product distributor who stand as co-defendants in a products liability suit, or the doctors and hospital who are named in a medical malpractice suit. 

The situation reminds us that any tripartite structure is inherently unstable, given to the chance that any two could find common interest against the third. In the case of a multi-defendant scenario, the best outcome from a defense perspective is for the defendants to maintain a united front against the plaintiff, because once the finger-pointing starts among the defendants, the plaintiff starts to feel that it is just a matter of "How much, and from whom?" After all, fingers wouldn't be pointed if nothing had gone wrong, and it is only natural for skepticism to attach to the party who says, "look at them, not me." Ultimately, everyone suffers but the plaintiff. Defendants tend to get this, of course, and when they find themselves in complex multiparty situations, experienced litigators will usually strive mightily to prevent a blame-fest from breaking out at the defense tables. At the same time, this accurate perception of common interest can have difficulty finding its way into the preparation process and the message itself. This post shares a few thoughts on how to improve that alignment at a communication level. 

Alignment Is Common Practice for a Reason

"The only thing worse than having to fight off a plaintiff's attorney at trial," Horstman & Iwan (2000) wrote, "is to have to watch your back from co-defendant's counsel in complex multiparty litigation." Preferring not to do that, most multiparty defendants are quick to find common ground. Focusing on alignment even where there are fairly strong reasons to point fingers has become the preferred option for a simple reason: It works. Or, more specifically, we know the alternative doesn't work. When defendants are busy casting stones at each other's houses, the same authors note, "The plaintiff sits back and waits for a large verdict."  

The situation is different when you're blaming others who are absent. "Empty  chairing," or as I like to say, "Eastwooding" has its own challenges, but at least it leads jurors away from the conclusion that one of the parties here in the courtroom must be at fault. When there is finger-pointing, however, jurors readily conclude that someone is to blame and their job is just to determine who, in what proportion, and for how much. In a recent post in the Toxic Tort Litigation Blog, William Ruskin writes that it "may be preferable for co-defendants to settle any differences they may have in private and present a unified front in the courtroom. This is a particularly helpful strategy when plaintiff is expected to have difficulty proving causation. Why make the plaintiff’s job any easier?" It reminds me of one case where we assisted the products plaintiff and an incredibly complex scientific causation case was made all the easier by the fact that the two defendants engaged in a full-out blame offensive against each other. While they also engaged in a full-out attack on the causation, jurors were less attuned to that: From the attempts to distribute blame, it was easy for them to infer that the product indeed caused the harm. 

Even as defendants understand the interests at stake, it can be difficult to resist the siren song of a good potential argument. Beyond the pragmatic considerations in exploring and defining the exact form of a joint defense (covered well by Horstman & Iwan and by Manne & Harris), there are some practical considerations to making sure that you are not only singing from the same hymnal, but singing in tune as well. 

Get Your Messages in Alignment

Once you get through the practicalities of finding common ground and the legalities of a good JDA, here are the general communication principles that apply:

1. Focus on Agreement More than Disagreement

That is what Marco Rubio and Ron Paul did in response to the State of the Union. It sounds simple, but even as there are specific issues, claims, and facts that separate the defendants' interests, you are generally far better off focusing on where you agree. Part of being able to tell the difference comes down to the ability to build trust. "While communication and building a trust relationship may take more time than the preparation of the ordinary case," Horstman & Iwan suggest, "in the long run it may be the single most significant activity undertaken on behalf of the client." 

That can also include clarifying and "bracketing" the disagreement. That is, instead of glossing over the real differences in interest that exist between you and a co-defendant, do the opposite: Put it on the table, and make sure everyone knows, "This is the disagreement, this is where it starts, this is where it ends...and that is it." Where you disagree, it should be acknowledged that each party is going their own way, and may the best defendant win. But on everything else, we form a united front. 

2. Consider Joint Research

One way to give life to the broad areas of common interest, while also exploring the limits of that alignment, is to conduct pretrial research together. Instead of each defendant conducting its own confidential focus group or mock trial for example, where your alignment is strong you should be conducting the research together. Even where there are still likely to be areas of difference and divided interest in trial, there is often more to gain than to lose. I see several advantages to conducting the pretrial work together:

• Enhanced trust and familiarity
• Coordinated messaging: more chance of a single harmonious trial strategy and less chance of unintended conflict
• Less expense: a greater chance of being able to do the research in the first place

And often the only disadvantage is realizing, "hey, something they said could hurt us," which, chances are, you already knew. 

3. Take a Complementary Approach in Trial

Of course, the good side of being in trial with co-defendants is that you'll often have two bites at the apple in the form of separate voir dire, witness examination, openings, and closings. What should be a boon to your strategy, however, is in my experience too often an irritant to jurors. When an aligned party gets up and covers much of the same ground in voir dire, jurors can feel their time is being wasted. Certainly counsel's responsibility to serve their own client is stronger than the responsibility to avoid overlap with a co-defendant, and naturally every lawyer worth her salt will have her own way of asking the critical questions. But many of those nuances will be lost on the fact finders. Instead of covering the same ground, coordinate. Divide up the topics based on what is expedient and what seems most natural for each party to cover. Do the same for the witness examinations, and for opening and closing. This is another reason for conducting joint mock trials and other work: It allows you to flesh out who should do what. Ultimately, it will help to think of it not as two defenses, but as (mostly) one defense being delivered by two parties. 

Getting back to the State of the Union Address and its two mostly complementary responses (Rand Paul couldn't resist getting a dig or two in on mainstream Republicans: for example, noting the "sacred cows" and "backroom deals" that make up the real "bipartisan consensus" in Washington). I have to admit that after a barnburner of a campaign, the State of the Union Address and its responses amount to a very conventional ritual without a lot of drama. Perhaps it is telling that much of the discussion the following day has been about the moment Marco Rubio paused to take a drink of water during his presentation.

Perhaps it is exactly that lack of drama that defendants in multiparty litigation should be aspiring to as well. 

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Other Posts on Defense Strategy:  

• Take a Lesson from the Conrad Murray Defense: Don't Make Promises in Opening that You Can't Keep
• Keep Your Burden of Proof in Your Back Pocket
• Count Your Plaintiffs Before Certification Hatches:Class Size Matters in Some Unexpected Ways

Photo Credit: Phil Denton, Flickr Creative Commons