Spillane Trial Group was delighted to be selected to defend Cross Creek, a top independent film producer whose first effort was Academy Award winner “Black Swan,” in a case eminently heading toward trial filed by French entertainment giant Studiocanal. A Cross Creek entity had contracted with Studiocanal to pay $5 million for rights to distribute “Legend,” a British Tom Hardy gangster film, in the U.S. and Canada. Concerned that Universal’s limited release plans for “Legend” frustrated the expectations of the film’s U.S. investors, Cross Creek returned the investment funds rather than pay Studiocanal. Studiocanal obtained a judgment for breach of contract, then initiated action against numerous Cross Creek entities and insiders with omnibus theories including fraud, successor liability and intentional interference with contract. read more
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Cross-Examination Revisited
Some years ago, I blogged about “Effective Cross-Examination at Trial.” I stand by those comments, but my technique has evolved.
Some of my colleagues cross from a word-for-word script, including full printouts of the impeaching testimony or exhibit, but I prefer a simple outline, to make the cross more organic. I have a summary of the point I want to establish in the left column and citation to the impeaching deposition testimony or trial exhibit in the right. Absent a budget concern I always take videotaped deposition, which should result in an impeaching video clip ready in the trial display system as needed. read more
Direct Examination – Fact Witnesses
Your client’s case is presented primarily through “direct” examinations, those where your witnesses tell your side of the story in their words.
Advance Planning
Before meeting with your witnesses to prepare, you should have developed your case “theme,” possibly through a mock jury. This is a plainspoken statement of why your client’s position is just, made in terms the Starbuck barista can understand.
I pull together the most important exhibits, assemble them in chronological order and invite all my witnesses to assemble for a “walk-through talk-through.” The witnesses may have touched upon different aspects of the dispute, but likely never met together to obtain a global picture. read more
Jury De-Selection
The trial phase that takes place before opening statements and presentation of evidence is popularly referred to as jury “selection.” This is a misnomer. The parties do not “select” jurors who will hear their case. Rather, after several rounds of vetting by courthouse staff and the judge, potential jurors are seated in the jury box and become jurors by default—except to the extent they are “excused,” or “de-selected,” before trial begins. Jury “selection” is therefore about removing bad jurors, not selecting good ones.
Potential jurors are first contacted by courthouse jury commissioners through mail solicitations based upon a “master list.” read more
SPILLANE TRIAL GROUP OBTAINS DEFENSE VERDICT IN MEDICAL FIDUCIARY DUTY TRIAL
Spillane Trial Group has obtained a defense jury verdict for Dr. Li Sheng Kong and his medical corporation, LSK Enterprises, Inc., against cross-complaints for breach of fiduciary duty in connection with West Coast Vascular, a vascular surgery practice in the Ventura-Santa Barbara community.
Two of the WCV partners accused the senior partner of performing surgeries not indicated by the patient’s condition, a violation of the False Claims Act. Dr. Kong initially voted to expel the accused partner from the practice. Then, feeling he had been unduly pressured, and suspicious of partisan motivations for, and the medical methodology underlying, the accusation, he rescinded his vote to expel the partner. read more
Spillane Trial Group Wins $12 Million Jury Verdict
Spillane Trial Group was asked to substitute into a case in Ventura County Superior Court for Plan B Management, Inc. against Diversified Panel Systems (“DPS”), six weeks before trial. Plan B claimed breach of contract and fiduciary duties arising from an oral joint venture to sell cold storage panels to customers for use in indoor grow rooms. DPS was represented by Quinn Emanuel.
We defeated two motions for issue and evidence sanctions and every motion in limine but one. On Friday July 28, 2023 the jury rendered a verdict in favor of Plan B for $12 million.
The jury found that Plan B and DPS had entered into an oral agreement to become 50/50 partners in Canna Panels, LLC. read more
Spillane Trial Group Wins and Collects Seven Figure Judgment
In addition to appearing for clients at the outset of a case, we appear at the eleventh hour, when summary judgment is denied, the settlement conference blows up, and the case hurtles toward trial.
This was the case for American Computers & Engineers (“ACE”), a company that rents high end custom computer equipment for vendors of major multi-media productions. ACE rented numerous computer units to Martin Brinkerhoff Associates, Inc. (“MBA”), which produces multi-media extravaganzas for the likes of Disney and Hyundai.
MBA’s former IT Manager stole, and sold, numerous units rented by ACE. MBA ceased making rental payments, eventually concluded their IT Manager had indeed stolen the equipment, informed ACE of the loss and applied for insurance coverage. read more
Evidence Outside the Box
A trial is conducted in a box.
Literally and figuratively.
The literal box is the windowless room in a government building in which the trial is conducted.
The figurative box is drawn by the judge, who admonishes jurors that they are only to consider the evidence admitted inside the courtroom and shall not conduct research or consider information beyond the evidence admitted in the trial.
Yeah, right.
Okay, when these rules were framed, to research a party in the case, a juror would need to travel to a good library, search through index cards, talk to a research librarian and wander the shelves to pull information not received in the trial. read more
ELECTRONICALLY STORED INFORMATION REVISITED
Six years ago, I wrote about how facility with electronic discovery allows small litigation firms to have David v. Goliath results against large firms. https://spillaneplc.com/advances-in-e-discovery-allow-smaller-firms-to-successfully-litigate-cases-once-only-handled-by-their-larger-counterparts/ In 2021, if you or your team have not mastered discovery of electronically stored information (“ESI”), you are not in the game.
Here are some tips for bringing your electronic discovery skills up to date.
- Consult with your technologist on production demands. Parties may specify the way they want ESI produced. Cal. Civ. Proc. Code § 2031.030(a)(2); FRCP Rule 34(b)(1)(C). Share your draft production requests with your technologist, or better yet, have a stock paragraph in your form file.
DEPOSITIONS REVISITED
Most business cases settle prior to trial. For this reason, the near exclusive opportunity to examine witnesses occurs during pretrial depositions. This is a procedure whereby witnesses who may testify at trial can be required beforehand to answer questions under oath. Previously these were held in a law firm conference room; often now they occur as a videoconference. No judge or jury is present
I think when a pretrial deposition is the only available opportunity to examine witnesses for most lawyers, the process is overused. Too many depositions are taken. Too many questions are asked. Too many documents introduced.
There are just a few key objectives in pretrial depositions: 1) find out the witnesses’ answers to the toughest questions, where those answers cannot be known in advance; 2) elicit admissions that can be used in a pretrial motion or as a soundbite at trial; and 3) authenticate how the witness communicated, including emails, text, electronic messages, and social media. read more