Justice Tongue — April 2013

Dear Justice Tongue:

I am a fledgling “trial lawyer” with only a half dozen jury trials.  I think I’m getting the hang of things, but one aspect of litigation and trial practice is vexing me.  The subject is experts.  In my cases we can rarely afford them and I worry that I’m being out-gunned when the better funded side brings on some high-priced professional.  With my budget I’ve had to always look for the smoking gun, not the hired gun.  Any advice?

Signed,

H. Smoke

Dear Mr. Smoke:

Did you really refer to the vast and increasing throng of academicians, clinicians, and leading lights we call “experts” as “hired guns”?  Are you implying that they lack independence and compromise their intellectual integrity and honesty in pursuit of the advocacy of their patrons’ claims?  Is it your contention that their testimony is for sale and they understate the principles that, in other cases, they highlight; and highlight principles that in other cases they relegate, all to enhance the trial themes and theories of their handlers?   Are you really suggesting that this vaunted role in the trial process is contaminated with the influence of money and that expert testimony is literally “for sale”?  Well, let me just say I am aghast.  Let me also say that you have a brilliant future in the trial practice because at a tender age, you are very perceptive.

In the ancient days, litigants would bring “compurgators” to the trial process to vouch for them.  It was thought that the party bringing the requisite number of “compurgators” would have the day.  Progress was made when the practice turned to the actual merits of the claim, you know, what actually happened.  The rules were refined and improved such that they generally followed the principles of logic and focused on the reliability of the evidence.  In some instances it was recognized that certain individuals, by dint of experience or academic prowess, could aid the judge and/or jury in understanding things beyond the laymen’s ken.  On came the paid expert. 

Once you pay someone, they are not independent.  They are paid.  They may try to look independent, they may try to act independent, they may even try to give away little points here and there to seem independent.  They are not so.  I and my sage colleagues prohibit any reference to these paid witnesses as “independent” for these very reasons.  And the more effective these “hired professionals” are perceived to be as witness/advocates, the more coveted is their performance and the greater the financial tribute they demand.  Greater financial tribute equals less and less independence.  In a sense the use of experts often now devolves into a new kind of “compurgation”, namely that of paid witnesses who, under the guise of presenting “expert” analysis, provide advocacy for their clients. 

You are rightly vexed, but all is not lost.  It is true that in certain instances you must retain an expert to meet legal requirements.  For example, in a medical malpractice case you must have an “expert” to establish the standard of care, the breach of standard of care, and causation.  Those instances are relatively rare.  Do not be intimidated by the paid witness.  In my experience, juries understand that they are anything but independent.  To make sure that no one misses the point, spend time both in the deposition and in the trial laying out calmly and systematically, the number of times they have testified for litigants on one side or the other, the amount of money they earn each year being professional witnesses, and the amount they have charged in the instant case to “prepare” their testimony, including the typically enhanced rate for their testimony.

When you cross-examine such professional witnesses, do not play in their ballpark.  There are general principles that they must embrace that will be part of your central liability themes.  Stay with those basic principles and present those aspects of your case through their mouths.  The master trial lawyers appearing in my court have invariably turned the other side’s expert into advocates for critical portions of their case.  When they do so they are careful, they are selective, and they are prepared.  It is not a game for amateurs nor is it something that you can do if you don’t fully understand the subject matter of the expert’s presentation.

Here is another hint.  You may have a talented witness in or affiliated with your client that can be presented as a non-retained expert.  Very often, treating physicians or experienced artisans in small businesses have specialized knowledge that qualifies them as non-retained expert witnesses and even though they may not be polished, the jurors are often very receptive to their common touch.  Yes, I understand they are not independent.  You will be the one to deal with that revelation.

Finally, you should know that some of the most famous, effective advocates err on the side of not hiring paid witnesses after all, many “experts” have to be told what their expertise is, what they know and what they should say.  They typically write like challenged third –graders, very often cannot keep straight which side they’re advocating for, and always contradict themselves in some critical phase.  At such times they present what the learned men and women of the trial bar refer to as “targets of opportunity”.  Be prepared.

 Well, my best to you Mr., I’m sorry what was it?  Oh yes, Smoke.

 Warm regards,

 Tongue

Judicial Profile — Justice Thomas R. Lee

The newest member of the Utah Supreme Court—Justice Thomas R. Lee—has been very active during the nearly two years since he was appointed by Gov. Gary Herbert.  He has been an active questioner during oral arguments, has authored twenty-nine opinions (according to Westlaw), has continued to teach at Brigham Young University’s law school, and still manages to find time to coach in his sons’ basketball leagues.  This high level of activity, however, has not transformed Justice Lee into a judicial activist.  To the contrary, he remains committed to his longstanding belief that the “role of the judge is to say what the law is and not what it should be.”

Justice Lee arrived at the Supreme Court with a wealth of appellate experience.  After graduating with high honors from the University of Chicago Law School in 1991, he clerked for Judge J. Harvie Wilkinson, III, of the United States Court of Appeals for the Fourth Circuit, as well as for Justice Clarence Thomas of the United States Supreme Court.  During the course of a career split between private practice and Brigham Young University, Justice Lee argued cases before numerous Federal Courts of Appeals and the United States Supreme Court. 

Although much of his private practice and teaching centered on intellectual property, the case Justice Lee argued before the United States Supreme Court, Utah v. Evans, 536 U.S. 452 (2002), involved a constitutional challenge—based on the rarely litigated Census Clause—to the methodology used by the Census Bureau in conducting the 2000 Census (which, as you may recall, resulted in Utah’s loss of one congressional Representative to North Carolina). Justice Lee described his oral argument before the Supreme Court as both the most thrilling and the most intimidating experience of his professional career.  During argument, all of the Justices—with the exception of his former boss Justice Thomas—peppered Justice Lee with questions about the statistical methods used by the Census Bureau, and under what circumstances those methods of data extrapolation were permissible.  One line of questioning even revolved around what the Census Bureau could properly infer when pizza delivered to a particular house subsequently disappeared.        

Reviewing the Evans argument online highlighted two things for me about Justice Lee.  See Evans Oral Argument Transcript, available at http://www.oyez.org/cases/2000-2009/2001/2001_01_714. First, regardless of the area of law at issue, it is critical to appreciate the starting point of a particular right (for instance, whether it derives from the Census Clause, a statutory enactment, or the common law).  Second, active oral arguments—even those involving unanticipated hypotheticals about pizza delivery—are ultimately much more helpful to the judges (and invigorating to the advocates) than those limited to a bland regurgitation of the briefing.   

As to his experience on the Utah Supreme Court, Justice Lee praised the fabulous work environment and credited the other Justices for helping him acclimatize to the view from behind the bench.  He described the current court as a group who take their jobs seriously, but thankfully themselves “not so much.”  The resulting camaraderie has made it possible for the Justices to engage in meaningful debate about matters of great importance to Utah and to respond to the competing interpretations of the law presented in every case with agility.  In a nutshell, it is this “give and take” with both the other Justices and the attorneys appearing before the court (as well as the high level of activity that necessarily results from taking this approach) that Justice Lee has come to enjoy so much over the past few years since his appointment.

Judicial Profile — Judge Todd M. Shaughnessy

To newly appointed Third Judicial District Court Judge Todd M. Shaughnessy, the breadth of the legal profession is both its greatest reward and possibly, its saving grace.  Judge Shaughnessy has always aspired to the true generalist in his own career, embracing the full scope of intellectual challenges that the profession offers.  Now, as a trial court judge, Shaughnessy has the opportunity to fulfill those personal aspirations while simultaneously contributing to the enhancement of the legal profession’s general ability to meet those diverse societal needs.

During his seventeen years of private practice, at both Van Cott, Bagley, Cornwall & McCarthy and Snell & Wilmer, Shaughnessy made every effort to build as broad a practice as civil litigation could offer, immersing himself in the details of any business, industry, or individual that would hire him, even at the cost of billable hours.  It wasn’t until he began his judicial career, in July 2011, however, that Judge Shaughnessy learned just how diverse the practice of law really was.  The panoply of challenges he faced, from criminal to domestic to probate to civil, were as rewarding as they were foreign and difficult.  Judge Shaughnessy has addressed his inexperience in those areas by leaning heavily on his colleagues on the bench, crediting his achievements thus far to their unlimited patience and willingness to help.

Judge Shaughnessy’s private career and early experiences as a judge have made him quite aware of the limitations of litigation and the obstacles that have prevented the legal profession from reaching the full scope of society’s needs for dispute resolution.  He is hopeful that the new “proportional discovery rules” will open the doors of the judiciary to a wider variety of trials, litigants, and jurors, by reducing the cost barriers to litigation and by protecting attorneys who try cases upon limited and imperfect information.  The increased level of participation, he believes, will vest a larger segment of society in the success of the system, and thereby elevate the profession, while creating new opportunities for lawyers willing to take cases to trial within the confines of the new discovery limitations, more like the trial attorneys of yesterday.

Judge Shaughnessy is similarly a man of many passions in his personal life, and he believes that the diverse personal interests of Utah attorneys play an important role in maintaining the close-knit, cordial bar that we are so lucky to have in Utah.  He advises his colleagues in the bar to cultivate those interests, enjoy their short time with their children, and experience the world class landscape in which we live, as he does on his frequent motorcycle trips around Utah and weekends at his family cabin in Torrey.  If the daily pressures of law practice start to take their toll, Judge Shaughnessy would advise the civil litigant to check their perspective at the criminal law and motion calendar, where lives are permanently changed on a daily basis.  It is those proceedings, and the decisions they require, that now keep the veteran civil litigator, and aspiring generalist, awake at night.

Judicial Profile — Judge Charlene Barlow

Judge Charlene Barlow was appointed in October 2010 by Governor Gary Herbert.  Her 30 plus years as a prosecutor prepared her well for the challenges of her West Jordan caseload.  Judge Barlow prosecuted for Orem City, Provo City and Utah County before joining the Utah Attorney Generals’ office in 1988.  While at the AG’s office she worked in Criminal Appeals,  prosecuted  Financial Crimes and was the Division Chief of the Consumer Enforcement Unit.

Judge Barlow grew up on a farm in Idaho with two siblings.  She attended Ricks College and Brigham Young University where she graduated with a degree in English. She taught school for five years before returning to school to pursue her law degree at the J. Reuben Clark Law School.

She was always drawn to criminal law and has worked in that area of law for most of her career.

Her attraction to a career in the judiciary arose from a belief that her litigation and life experiences would allow her to assist people with their problems.  Consequently, her greatest satisfaction with this job has been the ability to help the parties who appear before her to resolve their legal matters or at least engage in a fair process.  The most challenging part of the job has been making decisions in homicide cases, where the stakes are so high, and dealing with the emotions in her domestic relations calendar.

Tips for the practitioners who appear before her: She appreciates attorneys who are well-prepared, have narrowed the issues and have resolved those that can be resolved, prior to the court hearing.  Her biggest pet peeve is lawyers who continue to talk well after they have made their point.  Judge Barlow values efficiency in her court room, as a result she dislikes anything that wastes the valuable time of those appearing before her. She recognizes the importance of the transition to e-filing and has become comfortable with viewing court documents on the computer on her bench.

Away from the courthouse, she enjoys reading and watching her grand-nephews play sports.  Judge Barlow is an avid fan of the BYU Cougars and has a reputation as a fabulous baker, often sharing her baked goods with court employees.

Judicial Profile — Judge Katherine Bernards-Goodman

Judge Katherine Bernards-Goodman, who spent her childhood in Southern California, moved to Orem as a teenager.  It was a bit of a culture shock.  She attended BYU and received an associate degree in childhood education.  She quickly realized, however, that teaching was not her calling.  She returned to school, this time at the University of Utah, and obtained a degree in psychology.  She then attended law school at the S.J. Quinney College of Law.

After graduating, she briefly worked at Christensen & Jensen and then joined the Salt Lake County District Attorney’s Office.  After experiencing first hand her intelligence, easy manner and great sense of humor, I was not surprised to learn that Judge Robert K. Hilder, with whom she worked at C&J, was a friend, mentor, and later, judicial role model.  

During her 21 years as a prosecutor, she prosecuted child abuse and neglect cases in the juvenile court system and child sex abuse cases and major offender cases in the adult court system.  She prosecuted several high profile cases, including the Cathy Cobb “cold” case and the Brook Shumway case, which involved a 15-year old boy who stabbed his friend 38 times during a sleep-over. She helped the first drug courts in Utah continue and grow, which support evidence based practices in recovery, personal accountability, alternatives to incarceration, and public safety.  She spent seven years working with the State Drug Court Working Group.

In June 2010, Governor Herbert appointed her to the Third Judicial District Court.  While she has been presiding over a criminal calendar, she recently assumed Judge Faust’s calendar, which is comprised of approximately 20% civil cases. 

Judge Bernards-Goodman was one of the first judges assigned to handle cases in the new Early Case Resolution Program, which identifies cases that can be easily resolved such as property, drug and public nuisance cases. She is confident that the Program will save scarce judicial resources for cases involving more serious crimes.

While she clearly loves being a judge, there are certain things she misses about being a prosecutor.  What does she miss the most?  Believe it or not, the phone calls in the middle of the night summoning her to a crime scene to work with police officers.  She also misses controlling the case, including the presentation of the evidence.   

Having recently made the transition from prosecutor to judge, I asked her what advice she had for lawyers, especially new lawyers?  Be prepared and be civil.  She will not hesitate to take a lawyer aside if he/she is being uncivil or using inappropriate language in briefs or at oral argument.   In the courtroom, she tries to emulate Judge Atherton and Judge Trease. For civil matters and because pleadings are filed electronically, she appreciates courtesy copies with determinative cases attached. 

She has three children:  two sons and one daughter.  In her very limited free time, she enjoys working out, shopping, and spending time with her 5-year old granddaughter.

Judicial Profile — Judge Andrew Stone

Judge Andrew Stone was born in Pennsylvania, lived in California, and then moved to Utah when he was a teenager.  He graduated from the University of Utah with a degree in biology.  Having no interest in medicine and not wanting to leave Utah to pursue an academic career, he decided to take a year off and then go to law school.  He loved it and knew almost immediately that he wanted to be a trial lawyer. 

After graduation, he clerked for the Honorable Bruce S. Jenkins and then moved to Washington D.C. to join the prestigious Department of Justice Attorney General’s Honors Program, where he gained invaluable experience litigating cases involving important public policy issues or large amounts of money.  The topics ranged from rural electrification cooperatives to wheat storage to body bags.  He relished the opportunity of delving deeply into the cases and issues without the extraordinary caseload of an Assistant U.S. Attorney. 

After fulfilling his two-year commitment to the Honors Program, he accepted an offer from Jones Waldo and returned to Salt Lake City, where his practice focused on antitrust and business litigation for over 20 years.  He was repeatedly recognized for his expertise and advocacy skills, being named to Best Lawyers of America.  He also served on the firm’s board of directors and executive committee. 

With the encouragement of Judge Deno Himonas and others, he decided to apply for a judgeship.  Having recently gone through the judicial nomination process, I asked Judge Stone what advice he would give lawyers who are considering applying?  He emphasized that you need to be patient and recognize that you will receive little feedback during the process; that the process may be very disruptive to your practice; and that it will take a lot of time.  Is it worth it?  Absolutely Judge Stone says.

Indeed, although Judge Stone sometimes misses the social aspect of private practice and being the designated hitter instead of the umpire, he has found the work of a trial judge incredibly rewarding.  He is surprised by how much of his job involves pro se litigants and parties from all walks of life, most of whom who are interacting with the judicial system for the very first time.  Unrepresented parties are often intimidated, and Judge Stone believes it is very important to make them feel like they are getting a fair shake. 

What makes his job as a trial judge easier?  Lawyers who are well prepared. Lawyers who approach oral argument as an opportunity to have a dialogue with the court about the problematic issues in the case.  Lawyers who understand relevance and the importance of focusing on their most persuasive arguments.  Also, although it should go without saying, Judge Stone says to be prepared and be civil.  During oral argument, Judge Stone likes to ask questions.  If he feels one party has a strong position, he may start out by asking the other party why he shouldn’t rule against it.  He keeps an open mind and says that his initial leaning on an issue is often changed by oral argument.

Some practical advice?  He reminds lawyers that the Third District Court has gone electronic and that he reads the pleadings on his iPad.  Consequently, there is no need to provide him with courtesy copies prior to a hearing.  In his “dream” world, lawyers would provide him with a PDF of all briefs on the motion, with a hyperlink to embedded cases. 

The new rules of discovery?  Judge Stone encourages lawyers to become familiar with the Third Judicial District Court rules and suggests that they call his clerk and request a discovery conference if there are issues that arise during the case.  When appropriate, a telephonic conference will allow him to make a tentative ruling on the issue without imposing the burden and expense of motion briefing on the parties.  He believes that other judges may be open to such conferences and lawyers should explore this with their clerks prior to filing a motion.    

His judicial role models?  Judge Jenkins, Judge Iwasaki and Judge Hilder.

Judge Stone is married and has two daughters.  His wife is a human resources consultant and owner of Evolutionary HR.  His oldest daughter is in the IB program at West High School and is an avid climber and telemark skier.  His youngest is at Bryant Middle School and is a tremendous baker.  To keep up with them, he spends his free time cycling and skiing.

Judicial Profile: Honorable Keith Kelly

In November 2009, Governor Gary R. Herbert appointed Judge Keith Kelly to the Third District Court to serve Salt Lake, Summit and Tooele counties. He currently sits in Summit County. He graduated summa cum laude with a bachelor’s degree in 1981 and with a master’s degree in 1982, both in economics from Brigham Young University. Judge Kelly then received a juris doctorate degree from Stanford Law School in 1985, where he was an editor of the Stanford Law Review. After law school, he served as a clerk to Judge Monroe G. McKay of the Tenth Circuit Court of Appeals for one year. Following his clerkship, Judge Kelly began his career as a civil litigator with the Salt Lake City law firm, Ray Quinney and Nebeker P.C., where he practiced for twenty-three years.

Judge Kelly’s law practice included litigation matters involving corporate, commercial, intellectual property and real estate issues. He also provided representation to various hospitals, doctors and other health care providers. During his legal career, Judge Kelly was elected president of the Young Lawyers Division of the Utah State Bar in 1992, has served since 1998 as a member of the Utah Supreme Court’s Advisory Committee on the Rules of Evidence, and been chairman of the Utah Judicial Council’s Oversight Committee for the Office of the Guardian Ad Litem. Judge Kelly has also served as chair of the boards of trustees of the Disability Law Center, the Utah Parent Center and for “And Justice for All.” He has served as president of the Aldon J. Anderson American Inn of Court. Judge Kelly currently serves as a member of the Utah State Advisory Board on Children’s Justice.

The past two years on the bench have been interesting and challenging for Judge Kelly. He has thoroughly enjoyed dealing with a wide variety of legal issues, hearing from both sides and resolving the issues. He has also enjoyed working with juries. He believes juries take their role in the judicial system seriously and seek to diligently fulfill their role as the finder of fact. The most challenging aspect of his experience on the bench, thus far, has been the very difficult criminal cases, involving victims where the facts are often chilling and difficult.

In preparing to take the bench, Judge Kelly studied the rules of criminal procedure since his legal experience was limited to civil litigation matters. The court also provided an excellent training program for newly appointed judges to get up to speed on procedural and substantive criminal issues.

Judge Kelly has been very impressed by the high level of legal practice in the Summit County bar. He emphasized the importance of personal credibility and encouraged attorneys to always accurately cite to controlling law and the record and to be upfront about weaknesses in their case or argument. Judge Kelly does not always know how he will rule prior to oral argument, but he reads all of the written materials beforehand and tries not to commit to any tentative rulings. He will have specific questions for the attorneys to address and finds their arguments more effective if the attorneys focus on the questions asked, rather than reciting a prepared speech. Judge Kelly has changed his initial leaning or position after oral argument. He prefers that counsel provide copies of the briefs and key legal decisions two weeks prior to oral argument. Judge Kelly also cautions litigators to follow Rule 7 of the Utah Rules of Civil Procedure when responding to statements of fact. Judge Kelly emphasizes that attorneys should not exaggerate their positions or be overly-biased advocates, which tends to undermine their credibility. He appreciates candor, preparedness and brevity in written and oral arguments. With respect to stipulations and orders, Judge Kelly encourages attorneys to have all parties sign both the stipulation and order so he does not have to pull out the stipulation and make sure it accurately reflects the parties’ agreement before signing the order.

Before our interview concluded and he had to sign an important search warrant, Judge Kelly commented again on the excellent advocacy he sees in the Summit County bar. He has the utmost respect for the attorneys who appear before him notwithstanding that some of them have very difficult clients and facts.

Governor Herbert summed up Judge Kelly well when he told the media of his appointment: “Keith has an impressive breadth and depth of experience that will serve the state of Utah well. Keith’s knowledge, thoughtfulness and familiarity with the law will make him a fine jurist.” I had the privilege of working with Judge Kelly for many years prior to his appointment to the bench and I could not agree more. His intellect, fairness and exceptional ability to analyze and communicate complicated legal issues will surely make Judge Kelly an exceptional jurist and a favorite among litigators. The Third District is fortunate to have someone of Judge Kelly’s caliber serving on the bench.