Winning: Successful Strategies from 10 of the Nation's Leading Litigators

For Michael D. Jones, the first step in any defense is to put together a compelling brief for the plaintiff. He writes out an opening statement "very much as if I'm the plaintiffs' lawyer," he says. "I try to put together the strongest pro-plaintiffs case. I don't hold any punches back."

Then, he says, he lets his wife read it. "If she says, 'How can you represent this person?' I know I've got it down." He doesn't show the opening to other lawyers, he says, but to secretaries and legal assistants, as well as his wife, "because the jury will be like them," not like other attorneys. "After mixing the plaintiffs' poison, I decide what my antidote is." He develops an opening for his client, hones it and tests it with the same audience. "I keep fixing it until they think it works."

This approach to defending corporate clients works well for Jones, who has won about 90 percent of the cases that have gone to trial, including a victory last year for Houston-based NL Industries Inc., in the first lead-paint case against the paint industry to go to trial.

BACK TO 1953

In the NL Industries case, the plaintiff, Tyrone Parker, charged that ingestion of paint chips from lead-based paint made by NL Industries and PPG Industries Inc. during the early 1950s had caused cognitive deficits and permanent damage to his central nervous system.

In 1953, Parker, then 2, had been brought to the University of Maryland Hospital after suffering a seizure. He was diagnosed with lead encephalopathy, a condition in which large doses of lead cause seizures. At the time of this diagnosis, the level of lead in his blood was tested at 52 micrograms per deciliter of blood. The current standard used by the Centers for Disease Control and Prevention as the level of concern is 10 micrograms.

In 1992, Parker had a seizure while driving and ran his car into a tree. The auto accident left Parker with severe epilepsy. He and his wife sued PPG and NL, charging that their products poisoned him as a child and caused the 1953 seizure and the subsequent seizure and resulting epilepsy.

The defense did not deny that Parker had been exposed to lead as a child, but it contested the diagnosis that it set off the seizures. "We had the science," he says. "The initial diagnosis was that he had a febrile seizure, but his blood-lead level wasn't high enough." But science was not enough, he adds. In developing the antidote to the plaintiffs' case, Jones began looking for an emotional hook.

At the time of the original diagnosis, he found, "[t]he mother and the grandmother had denied that he ate lead paint. We marshaled all our evidence around what the mothers had said."

The plaintiffs had experts and medical records to bolster their claims of the effects of lead on Parker. "But they had nothing to say about the mothers." In his opening, Jones immediately exploited this omission, noting that the plaintiffs had mentioned nothing about any testimony from Parker's mother. "Over 50 years, the plaintiff's mother told the doctors that her son ate nothing but normal food," he said.

The grandmother took Parker to the hospital in 1953: "She, like her daughter, told the doctors that he did not eat paint. Was his grandmother telling the truth?"

This put them on the defensive, Jones says. "Here we are in the position of defending the integrity of the deceased grandmother and sick mother. It put them in a box."

EXPERT ATTACK

The plaintiffs called a leading epilepsy expert, Dr. Peter Kaplan of John Hopkins Bayview Medical Center. In his cross-examination of Kaplan, Jones used the witness's own publication against him. "In his book, he described the causes of febrile seizures," he notes. On cross, he had the witness acknowledge "that nowhere in the book did he mention lead."

Turning to "Epilepsy: Frequency, Causes and Consequences," Jones asked the witness to confirm that lead was not mentioned in the index as a cause.

Kaplan agreed that it was not in the index. Jones brought out the grandmother's listing of symptoms when Parker was hospitalized and diagnosed with lead poisoning. The witness agreed that the boy did not have the classic symptoms of lead poisoning, such as constipation, vomiting, personality changes and tremors. Then Jones asked, "Are you able to provide us any book that has described a child as having a seizure caused by lead where, one, his blood level was under 80; two, he had no increased intracranial pressure; three, he had no anemia; four, he had no swelling of the eyes, no constipation, no vomiting, no personality changes and no tremors?"

Kaplan couldn't.

But the true key to the trial would be Parker's sister, Sharon Gunn, who testified that she remembered the types of paint her grandfather used. In her testimony, Gunn said that the paints her grandfather used were NL and PPG products. "She had a good memory on a lot of things," Jones says. This seemed to bolster her testimony that she remembered the brands of paint.

"With lay witnesses, you have to be nice, sympathetic," he says. "People expect a lawyer to twist people up, to be a bully."

But, during the cross-examinations of lay witnesses, "is when my Southern upbringing comes out. I want to be as subtle with them as I can." His demeanor was relaxed as he examined Gunn. "I was leaning on the jury rail the entire time. There was not much space between me and her and the jury." He had her inconsistencies projected on a screen in the courtroom. "I pointed them out, and every time I did, the more steamed she got."

As a result, she began slipping up, he recalls. She said her brother had been at the hospital for two days. He had been there for two weeks. He asked her, "You're telling me there were no documents at the hospital?"

He says, "I suggested her recollection was wrong. She wouldn't concede it." He moved on.

'JAB AND MOVE'

"I jab and move. I get under her skin." Then, when the witness is reeling, "you go in for the kill."

Through cross, he developed that the first time Gunn had discussed the identification of the paint her grandfather used came in 1998, in response to a member of the plaintiffs' team showing her a can of paint.

Jones asked, "Did he show you any other cans or just this one?"

"Just that one," she answered.

"A one-can lineup?"

"What do you mean, a lineup?" she shot back.

Jones asked for recess, then didn't return to the thought after lunch. The question was a setup for use in the closing argument.

In closing, Jones said that the plaintiffs' team never offered her several cans to choose from. Then he asked the jury, "Imagine the number of innocent people who would be wrongly convicted if that's how we did lineups?" Parker and his wife were seeking up to $35 million in actual and punitive damages.

But on June 12, 2000, a Baltimore jury rejected the 1953 diagnosis linking lead exposure to seizures and found as well that ingestion of lead did not cause Parker to have cognitive deficits as a child. There was no appeal.

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This article is reprinted with permission from the July 16, 2001 edition of The National Law Journal. c 2001 NLP IP Company