August 22, 2013

SmithKline Beecham v. Abbott Labs: Should Batson apply to gay jurors?

All eyes are on California’s Ninth Circuit Court of Appeals, which is tasked with deciding whether sexual orientation can be used peremptorily to exclude potential jurors in federal court. The Recorder, a California legal publication, reports that the appellate court has appointed a panel to decide the issue, which will likely have broad implications in courts around the country.

As explained in a New York Times article last month, at the center of this debate is SmithKline Beecham v. Abbott Laboratories, which involves two large pharmaceutical companies locked in an antitrust battle over a commonly used HIV medication. When a lawyer representing Abbott used a peremptory strike to remove a potential juror from the jury pool, the SmithKline lawyer objected that the Abbott lawyer was doing so because the potential juror was gay. Though none of the questions in SmithKline’s voir dire focused on sexual orientation, the prospective juror voluntarily referenced his male partner in answering some of the questions.

Since peremptory strikes are those that can be used without cause, Abbott’s lawyer could have explained his strike in a multitude of inoffensive ways, so long as his strike did not involve race or gender. The race and gender distinction is known as the Batson challenge, in reference to the 1986 U.S. Supreme Court decision in Batson v. Kentucky that peremptory challenges during voir dire cannot be made on the basis of race. The Batson challenge was later expanded to include gender as well.

The question of whether Batson should address sexual orientation in addition to race and gender as exclusions to the peremptory-strike rule is more complicated than either of the other two exclusions. For one, it is not always obvious whether someone is gay, and second, questions designed to pull out this information would likely be unacceptable to all. Still, many, including myself, would agree that Batson should be expanded to include sexual orientation.

Typically, trial lawyers can get around a Batson challenge by simply finding a more innocuous reason to excuse a potential juror, even if the real reason for wanting a juror excluded does involve race or gender – or sexual orientation. Since peremptory strikes are otherwise discretionary, a trial lawyer can simply claim as an excuse the potential juror’s body language, wardrobe choice or a job-related bias, as in, “Your Honor, I believe Mr. Smith’s job might render him biased against the defendant in this case.”

That in SmithKline, the attorney confronted the issue of sexual orientation head-on – whether intentional or not -- now forces the courts to confront the issue as well. Stay tuned.

Bookmark and Share

February 12, 2012

Thurgood Marshall and the value of moot court

Recently I was reminiscing about a day long ago when I met briefly with one of our country’s most admired and iconic men – Supreme Court Justice Thurgood Marshall – and what I learned from him about the value of moot court in preparation for trial. I had shared my recollections in a speech I presented at a ceremony of the American College of Trial Lawyers but I think the values of the lesson are worth sharing here as well.

I was an 18-year-old college student when I had the opportunity to meet with Justice Marshall, who was then Solicitor General of the United States. I had been writing a thesis about him for a college class and thought it might be interesting to meet him in person. I called and explained myself to his secretary who laughed at my apparent naiveté but remarkably arranged the meeting. Once I was at his office, Justice Marshall made me feel comfortable and at ease almost instantly. He had a great buoyant laugh and a wonderful, slightly baudy sense of humor. Once we got down to business, I questioned him about Brown v. Board of Education.

This is what he told me: In preparing for oral argument in the Brown case, he had conducted a moot court session at Howard University Law School. Shortly thereafter he was scheduled to begin oral arguments before the United States Supreme Court. As a young college student, I wasn’t familiar with the expression “moot court,” so he explained to me that moot court was the term used to describe a simulated argument for practice. With moot court, he elucidated, “You can iron out the wrinkles of your argument and observe the reaction of your listeners for purposes of strengthening your case.”

Justice Marshall went on to explain that the moot court session for the Brown case seemed to go on forever, with law students – in their roles as mock judges -- peppering him with an endless stream of questions. At around midnight, one particular student asked him a question he simply could not answer: “By this time I was shocked and also weary,” he said. “It was after midnight, but, young fella, the duty of a lawyer is to push forward. And so we did, and we worked out an answer.”

At this point in the story, Justice Marshall paused briefly, but then continued: “Then the day of the hearing, damned if one of the Justices didn’t ask the same question. I just looked at the Justice; put my hand on my chin, looked down and gathered my thoughts, and pow – right in the kisser -- nailed the question.”

This remarkable meeting confirmed my desire to become a trial lawyer. More than forty years later, I often think about my brief time spent with Justice Marshall and the stories he took the time to share with a young college boy who simply had the audacity to call him up and ask for an interview. I also think often about the value of moot court and what our country might be like today had not this great man also seen its value.

Bookmark and Share

July 27, 2011

"Classical Rhetoric and the Modern Trial Lawyer"

While trial and appellate lawyers today strive for that one technique that wins the case, it is often helpful to review historical approaches to client advocacy in mining for strategies. As far back as ancient times, advocates used many techniques of rhetoric that are still of value in today's courtrooms, as I have found in my practice as a Baltimore trial attorney.

In "Classical Rhetoric and the Modern Trial Lawyer," an article I wrote for the Winter 2010 issue of the American Bar Association's Litigation magazine, I covered this subject in great detail. I was joined by two colleagues, Ronald Waicukauski and and JoAnne Epps.

The article is embedded below. Click on the "+" button at the bottom of the embedded screen to enlarge the type. If the article interests you, consider reading The 12 Secrets of Persuasive Argument, published by the ABA in 2009.

Classical Rhetoric

Bookmark and Share

July 14, 2008

Sacco and Vanzetti

July 14 is a sad date in the annals of American legal history. On that day in 1921, after only five hours of deliberations, a Dedham, Massachusetts jury rendered guilty verdicts against two Italian immigrants, Nicola Sacco and Bartolomeo Vanzetti, for robbery and murder.

The crimes occurred on April 15, 1920 in South Braintree, Massachusetts, a small town south of Boston. Those responsible shot and killed a guard and a shoe factory paymaster carrying over $15,000 in payroll cash, then made off with the money in a getaway car. Less than a month later, police arrested Sacco and Vanzetti as they were traveling at night on a trolley from Bridgewater to Brockton. Both men were carrying guns when apprehended.

One hundred witnesses testified during the trial. For every eyewitness who identified the defendants as the culprits, another witness swore to the contrary. Many eyewitnesses for the prosecution were exposed as simply mistaken or not testifying truthfully. The defense presented a straightforward alibi. Vanzetti was in Plymouth selling fish. Sacco was in Boston at the Italian consulate obtaining a passport.

Continue reading "Sacco and Vanzetti" »

Bookmark and Share

March 19, 2008

Boston Massacre Trial and "John Adams"

Are you watching HBO’s production of McCullough's biography “John Adams”? If not, you might want to rent it later. The segment devoted to the 1770 Boston Massacre is fun to watch from a trial attorney's point of view, as the hero demonstrates several valuable advocacy techniques.

Adams, then only 34, defended the indicted soldiers and won the case. In HBO's telling, he lines up his witnesses very much as the doctrines of primacy and recency would advise him to: opening and concluding with his most valuable witnesses, wedging witnesses of lesser importance in the middle.

Also, in final argument, Adams connects the facts of the case with a universal appeal to the rule of law. Here, even though he was representing the soldiers, he was clearly speaking to jurors who were all too aware of English encroachment on their rights.

For those interested in reading up on the Boston Massacre trial, Hiller B. Zobel has written a classic account of the trial, which recounts from actual notes the arguments of counsel as well as engaging summaries of the testimony and historical background.

You might also enjoy browsing this excellent website about the case, created by law professor Douglas O. Linder.

Bookmark and Share