February 2014 | Vol. 7, No. 1 Look for the MATA logo · February 2014 | Vol. 7, No. 1 A Supplement...

February 2014 | Vol. 7, No. 1

A Supplement to Massachusetts Lawyers Weekly

Law only gets you so far

Look for the MATA logo

By Jonathan A. Karon

My first MATA semi-nar was in 1989 andfeatured the late AbnerSisson on closing argu-ments.

He was 82 at thetime, still practicing — alegend of the trial bar

since before I was born. I still refer to hishandout before every trial, but one pieceof wisdom stands out. According to Mr.Sisson (I’m just not comfortable callinghim Abner), an effective advocate needsto know “something of the difference be-tween pain and ease, riches and poverty,the lonely and the beaten, the haughty

and the proud” and of human frailty andvice. That lawyer can talk to 12 jurors andbe understood.

So much of what we do in this crazyprofession has nothing to do with thelaw. If we’re lucky, over the years, by ourown trial and error, by the kindness ofcolleagues and mentors, we get a handleon how to do this job. I remember oneseminar I attended a few years later atwhich a present-day legend spoke (Iwon’t embarrass him by mentioning hisname). This lawyer is famous for securingnumerous large plaintiffs’ verdicts. Themost useful thing I got from hearing himspeak was that he also loses cases. And Ihad thought it was just me.

There are very few law books in my of-

fice. The top shelf of my bookcase hasmedical books. The second shelf has trialpractice books by people named Ball andKeenan and Friedman. The rest are ahaphazard mix of MCLE materials, in-dustry standards, building codes, regula-tions, engineering papers— somewhere in there Ithink there’s even a tran-script of Clarence Dar-row’s cross-examinationof William Jennings Bryan.But not a lot of law.

Sometimes law gets in the way. Myfirst plaintiff’s products liability trial was amotorcycle crashworthiness case, and Ithought I had a great one. Under breachof warranty of merchantability, the de-

fendant was liable if it could have manu-factured the motorcycle without the un-necessarily sharp piece that puncturedmy client’s foot. Nonetheless, the jury didnot take long to reach a defense verdict.Trying to think like a normal person (i.e.,

not a lawyer) I’m quite con-vinced the jury’s reasoningwas along the lines of “Hey,your client was in a crash on amotorcycle — what did hethink would happen?”

Since then, I’ve learned that the easiestway to increase winning percentage attrial is to decline bad cases. Like all of us,my screening is not perfect, but I’ve de-veloped a test. I call it the “What the [ex-

By J. Michael Conley

I often marvel at thegreat leap of faith aclient makes in hiring anattorney for a major per-sonal injury case. Hav-ing someone I scarcelyknow entrust their fami-ly’s future well-being to

me and my firm is an affecting and hum-bling experience.

It is hard for us to fully understandclients’ challenge in identifying the rightattorney. How do they know? How dothey decide? How can they be confident?How can they feel safe?

Some arefortunate tohave a trustedfriend or fam-ily lawyer toguide them tocompetent counsel. For the rest, there iscertainly no shortage of marketing infor-mation available in such a highly compet-itive practice. In fact, the huge volume ofinformation available may hinder asmuch as a help consumers search for theright lawyer. Where does one begin?

In Massachusetts, I suggest that a help-ful and important threshold criterion is a

lawyer’s membership in the Massachu-setts Academy of Trial Attorneys.

In other words, LOOK FOR THEMATA LOGO.

Why is MATA membership rele-vant? After all, it’s open to alllawyers. While membership doesnot depend upon or signify alawyer’s qualifications, it speaksvolumes about the lawyer’scommitment and values, suchthat an injury victim orhis/her familymight fairly consid-er the absence ofMATA membershipto be disqualifying.

MATA members,with their dues andcountless volunteer hours, advocate inthe legislature to preserve and advancepersonal injury victims’ rights in the civiljustice system. Similarly, members underthe auspices of the Amicus Committeevolunteer their time and resources to filefriend-of-the-court briefs on issues thatimpact victims’ rights, including in casesin which the plaintiff’s attorney has notjoined MATA. That is because such advo-cacy is at the core of MATA’s mission andnot just a benefit of membership.

In other words, an injured victim can

know that MATA members have beenworking on his behalf long before the ac-cident made him anyone’s potential client.Would it be unduly harsh, especially inview of MATA’s modest dues structure, fora consumer to question a non-MATA per-sonal injury attorney as a “free rider?”

MATA members have educational op-portunities — basic and advanced — thatpromote quality legal work. In additionthe MATA’s Listserve provides members

with ready access to assistance and advicefrom hundreds of fellow Massachusetts

plaintiffs’ lawyers. Is there any equivalentresource available to non-members?

MATA and its members havedemonstrated interest divergentfrom the cartoon lawyer stereo-type that some expect by activelysupporting public safety efforts,such as the End Distracted Driv-

ing program, in the hopes oferadicating the kind of dangers

that give rise to per-sonal injury lawsuits.

Amid the chafe ofthe legal marketplace,MATA membership isa distinguishing cre-

dential. A consumer can sen-sibly narrow her search for an attorneyto the 900 or so who have demonstrablycared about her rights and safety beforeshe needed a lawyer, and who have se-cured access to first-rate educationaland informational resources.

A potential client interviewing a non-member attorney can fairly ask directlythe question I will pose rhetorically: Whyshould anyone retain for a Massachusettspersonal injury case, large or small, anylawyer who is not a member of the Mas-sachusetts Academy of Trial Attorneys?

PRESIDENT’SMESSAGE

EDITOR’S NOTE

Continued on page 2

pletive deleted] test.” If a regular personwould hear the story of what happenedand think, “what the [expletive deleted]was the defendant thinking?” then youhave a good liability case. If not, you’reprobably going to lose, no matter whatthe law says.

What’s this got to do with the MATAJournal? Simply this: So much of whatwe do requires that we know a littleabout a lot of things. Most of what wedo is based on judgment calls, intuition,educated guesses and past experience.Knowing the law is easy. Knowing whatto do is hard. So, I’d like the MATA Jour-nal to be a place where we can sharewhat we know about how to be a triallawyer. We will, of course, have plenty oflaw, but we’ll also have a broader per-spective on what we do.

In keeping with that broad perspective,we’re starting a new feature, “Tips Fromthe Masters.” In each issue, a differentrecognized master of the Massachusettsplaintiffs’ bar will provide one of theirmost useful trial or litigation tips. We areprivileged that Neil Sugarman, a present-

day legend of our bar, has kindly agreedto contribute our initial installment.

I am honored to take over editorshipof the MATA Journal from President J.Michael Conley and I hope that you willfeel free to call or email if there’s a fea-ture you’d like to see or if you’d like tocontribute. In the meantime, I’m goingto resume my ongoing search for thatbig book I know someone is keepingsomewhere that tells you exactly whatyour client’s case is worth. Also, if youhave any suggestions about how to pre-serve your sanity while waiting for thejury to come back …

2 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS February 2014

By Neil Sugarman

Successfully tryingjury cases is not a skillwith which you areborn; rather, it is a life-long avocation thatneeds to be continuallyhoned and developed.

At first, in an effort tobecome a trial lawyer, the classic ap-proach is to watch and listen to otherswho do it and adopt portions of theirskills to fit your own needs and personal-ity. After a break-in time, once you havelearned the basics, you start to developyour own unique style and qualities. It isat this point that the “true you” begins.

I have been asked to give a single pieceof advice to assist the lawyer at trial —and also for use in depositions — to assistthe ongoing process of honing your skills.

It assumes, of course, that you know yourcase fully and have a clear game plan. Thepurpose is not to teach you how to do it,but rather draw your attention to it basedupon my experience.

The advice may sound simple, but it isone of the most difficult qualities toachieve during trial: control. Control ofthe adverse witness, expert or fact, dur-ing cross-examination. That does notmean being overbearing with the wit-ness, but to make certain you’re in con-

trol of the answers given based uponyour questions.

You have to be certain that the witnessis restricted in response by the use ofclear and tight questions. If a witnesswanders too far in answering, you mayneed the assistance of the judge. Havingsaid that, usually you’re on your own, andhave to exert your own personality, tacticsand skill to bring the witness under con-trol. Done properly, it can often make thedifference in convincing the jury of yourposition.

Editor’s comment: After reading hispiece, I asked Neil if he thought it would behelpful to add some examples of his tech-niques for controlling witnesses. He told mehe considered including them but conclud-ed it would be counter-productive. As ayounger attorney he learned the hard waythat many techniques that worked for oth-ers would not work for him. In his view,each lawyer must develop their own wit-ness-control techniques based on their per-sonality, the facts of the case, and the na-ture of the parties. JAK

The importance of control

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TIPS FROM THE MASTERS

MATA’s voice of experience

Neil Sugarman, co-founder and principal of Sugarman in Boston, is a recognized master ofthe trial bar. Over the course of his nearly 50-year career, he has successfully handled some ofthe most catastrophic explosion and fire accident cases in Massachusetts and obtained numer-ous substantial settlements and verdicts in product liability, medical malpractice and complexpersonal injury cases. He is well known for aggressively representing his clients and for hisobsessive attention to details. He is a past MATA president and continues to generously givehis time to our organization.

Law only getsyou so far

Continued from page 1

Jonathan A. Karon, editor-in-chief of theMATA Journal, is a partner at the Bostonfirm of Karon & Dalimonte, LLP. He has anational practice representing the cata-strophically injured, including cases in-volving amusement ride accidents, trau-matic brain injuries and defectiveproducts. He is on MATA’s ExecutiveCommittee and Board of Governors. Hecan be reached at (617) 367-3311 or [email protected].

MASSACADEMY.COMTo join MATA, please visit

February 2014 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 3

By Timothy C. Kelleher

MATA is on the fore-front of several pieces oflegislation that wouldprotect the rights of in-jured individuals inMassachusetts. Recently,our members have testi-fied in favor of a trial

court bill which would, among otherthings, introduce expanded jury voir dire,allow plaintiffs to request damageamounts and increase a judge’s ability todeal with liens.

Our members also testified in supportof a bill that would allow audiovisualdepositions without filing a motion. Inaddition, we have testified in favor ofconsumer-friendly improvements inMassachusetts auto insurance.

We continue to monitor the implemen-tation of the 2012 healthcare law, follow-

ing the practical effects of the changes.Also in the patients’ rights area, MATAhas continued to advocate for passage ofa bill to do away with secret medical peerreview in Massachusetts. This will im-prove transparency in healthcare and in-crease patients’ access to informationabout their own care. We give manythanks to people like Michael Najjar,Mike Conley, Charlotte Glinka, StevenSchafer, Annette Gonthier-Kiely, KimWinter, Saba Hashem, Jon Karon, NeilSugarman, Leo Boyle and Jeffrey Cata-lano for lending their insight and expert-ise to these issues.

In the area of workers’ compensation,MATA has been fortunate to have greatpartners like the Massachusetts Coalitionfor Occupational Safety and Health andthe Massachusetts Bar Association. MATAis part of a coalition with MassCOSH andthe MBA pushing for an increase in burialbenefits for the families of workers killed

on the job. Similarly,MATA is fighting to im-prove compensation forthose who are seriouslyscarred while perform-ing their job duties.MATA Workers Com-pensation Section Co-chairs Sean Flaherty andJudson Pierce, alongwith Brendan Carney,have led the way forMATA in this legisla-tive area.

As always, MATA is on the lookout forlegislation that could limit injured plain-tiffs’ rights. Sometimes these bills arefiled in good faith to address a differentissue without knowledge that thechange will have a damaging effect onpeople. Unfortunately, many other billsare supported by well-funded (oftenout-of-state) interests and represent adirect attack on plaintiffs’ rights. In eithercase, MATA will continue to work dili-gently to address problem legislationand promote laws that protect publicsafety and individual rights.

Keeping up with the State House is amajor job. MATA is fortunate to have theguidance of our government relations

professionals from Quinn &Morris as wetackle these challenges. We are saddenedby the passing of Robert H. Quinn, agreat person and leader in the legislativearena. He will be sorely missed by all ofus at MATA. I consider it a privilege andan honor to have had the opportunity towork with him.

We thank our lawmakers for theirthoughtfulness in our dealings with themand their willingness to address so manyimportant issues. Finally, I would like tothank Mayor Martin Walsh and EugeneO’Flaherty for their outstanding service inthe Legislature and offer them our verybest wishes as they bring their talents toserve the City of Boston.

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Timothy C. Kelleher III is a partner at Jones Kelleher LLP. He is the immediate past-presi-dent of the Massachusetts Academy of Trial Attorneys and serves as chair of the LegislativeCommittee. His practice focuses on civil litigation including serious personal injury cases,general liability, product liability, construction site litigation, medical malpractice and civilrights litigation. His experience has included the successful trial, arbitration and mediation ofa wide variety of cases over the last 20 years.


By Thomas R. Murphy

The MATA AmicusCommittee has beenworking on a number ofprojects over the lastcouple years and intothe current term. Thefollowing is a quicksketch of where we have

been and where we are going in the NewYear. Anyone interested in writing for thecommittee should contact the chair. A la-bor of love, contributing to a worthy or-ganization such as MATA is very reward-ing, to say nothing of the value ofweighing in on the evolution of the com-mon law.

Last year, MATA briefed Klairmont v.Gainsboro, a fall-down/93A case in whichan intoxicated patron fell to his death in atavern with a portfolio full of building-code violations. After two weeks of evi-dence in the negligence case the jury re-turned a “yes-no” verdict, but the courtlater found for the estate on a 93A claimand rendered a substantial award.

MATA’s Jeff Beeler and Tom Murphyran up against four defense amici, con-testing their claim that the jury’s answeron causation precluded Judge Fahey’s

93A findings. The SJC agreed that thecourt could make a separate 93A finding,the jury verdict notwithstanding, but va-cated the judgment and remanded thecase for further findings on damages.

In January 2013, Mike Conley wrote forthe committee in Dos Santos v. Coleta. Mr.Dos Santos got hurt when he tried to flipfrom a trampoline into a pool on propertyhe rented from the defendant. Heclaimed that the landowner was negli-gent in putting the trampoline next to thepool and in failing to warn him of thedanger of jumping from one into the oth-er. The jury found for the defendant, theAppeals Court affirmed, but in line withMATA’s position, the SJC reversed. It heldthat a landowner had a duty to remedyan open and obvious danger where hehad created and maintained that dangermindful that others would, as here,choose to encounter the condition de-spite the obvious risk of doing so. Takeaway: Open and obvious is DOA.

With edits from Tom Murphy and AlexPhilipson, MATA signed on to AAJ’s briefin Aleo v. Toys R Us, a products case inwhich a jury awarded $2 million in com-pensatory and $18 million in punitivedamages. The cardinal issue was whetherunder Supreme Court precedent, punitive

damages based on gross negligenceshould be evaluated differently thanthose based on willful, wanton and reck-less conduct. Acknowledging that thecompensatory/punitive ratio was close tothe limits of due process, the SJC upheldthe award in light of the severity of thegross negligence and concluded by sayingthat it is a “jury’s function to make the dif-ficult and uniquely human judgmentsthat defy codification” and lend “discre-tion, equity, and flexibility” to the legalsystem.

In July 2013, MATA stalwarts Tom Bondand Sara Tresize briefed Sanchez v. U.S. inthe 1st U.S. Circuit Court of Appeals.Sanchez’s wife had died in child birth af-ter receiving substandard care from acommunity health clinic, which, little didhe know, employed doctors who hadbeen deemed federal employees. Think-ing that he would be held to the three-year statute of limitation and not the Fed-eral Tort Claims Act’s shorter period,Sanchez sued the doctors in state court.The U.S. attorney swooped in, removedthe case, and got it dismissed based onthe FTCA. Judge Gordon acknowledgedthat Sanchez was ensnared in a “statuteof limitations trap” but allowed the mo-tion in accordance with 1st Cicruit law.The appeal seeks to apply the notion ofequitable tolling to vacate the dismissaland remand the case for trial. Paul Ken-ney argued the case in October and it isstill under advisement. Circuits are spit onequitable tolling so the case could go onto Washington.

In January 2013, the committee wroteto the SJC in support of plaintiff’s requestfor further appellate review of Gavin v.Tewksbury State Hospital. The AppealsCourt had held that a presentment of awrongful death claim to a State hospitalunder G.L.c. 258, otherwise proper, wasfatally defective because it had not beenmade by the duly appointed representa-tive of the estate. The SJC agreed to takethe case, solicited input from the bar, andin September 2013, Liz Mulvey filed atop-shelf brief with edits from Tom Mur-phy and Mike Conley.

The essence of the argument was thatthe Appeals Court put form over substanceand that the appointment should “relateback” and to the presentment. The SJCheard arguments in January of this year.

Also in September 2014, Mike Conleyand Jeff Petrucelly filed in support of theplaintiff in Sheehan v. Weaver, anothercase in which the SJC had sought input.At issue was whether dictum in a foot-note from a 1999 case should be recon-sidered in light of changes to G.L. c. 143,§51. The case turns on whether §51’s pro-

tection is limited to one fleeing from firein a building, on the very meaning of theword “building” in the statute, and onwhether §51 applies to a mixed-use resi-dential-commercial building. The partiesargued the case in December 2013 andthe decision will have enormous conse-quences for future premises-liabilityclaims.

In Wilkins v. Haverhill, Judge Cornettaentered summary judgment for the Cctyin a claim under G.L.c. 21, §17C, therecreational-use statue. The plaintiff,while on her way to her son’sparent/teacher conference in a publicschool, had fallen on a defective walkwayas she entered the building. The questionis whether her attending the conferencewas for an “educational purpose” as thatterm is used in the statute. Committeemembers Alex Philipson and Ben Zim-merman wrote a cogent and compellingbrief for MATA. John Finbury argued thecase in late January.

Currently, the Amicus Committee is

Amicus report

Continued on page 10

PRESIDENT J. Michael Conley

PRESIDENT- ELECTCharlotte E. Glinka

TREASURERAnnette Gonthier Kiely

SECRETARYMichael R. Rezendes

IMMEDIATE PAST PRESIDENT Timothy C. Kelleher III

EDITOR-IN-CHIEFJonathan A. Karon

PUBLISHERS/EDITORSPaul D. Dullea

Sheila Sweeney

PRINTING AND PRODUCTIONMassachusetts Lawyers Weekly

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Thomas Murphy of the Law Offices of Thomas R. Murphy, LLC, has tried scores of cases toverdict throughout the country. He was trial counsel in Conte v. Dayton Power & LightCo., in which the jury returned a $3.5 million verdict, said to be the largest at the time inMontgomery County, Ohio, and successfully argued before the 6th Circuit, which affirmedthe judgment. He has been inducted into the American Board of Trial Advocates and is thechair of MATA’s Amicus Committee.


By George Cuchural

Given the technicaland complex nature ofmodern litigation, expertwitness testimony is be-coming increasingly im-portant. Experts applytheir experience andsubject matter expertise

to help the trier-of-fact understand in-dustry-specific terms and processes. Anexpert can be an extremely valuable assetto either a plaintiff or defense attorney. Toshowcase the value of expert witness tes-timony, The Expert Institute has compileda list of recent headline-grabbing cases inwhich an expert witness made a signifi-cant impact on the case outcome.

1) Mark Cuban defeats insidertrading allegations

When the SEC accused Dallas Maver-icks owner Mark Cuban of insider trad-ing, the entrepreneurial businessman wasdetermined to prove his innocence. Ittook five years, but with the help of a se-curities expert, Cuban was exonerated ofall charges. The expert witness and for-mer SEC executive convinced the jurythat Cuban did not break any laws be-cause he traded on information that wasimmaterial and publicly available at thetime of the sale in question.

2) Apple scores win in high-profile patent litigation

One highly talented and persuasiveCPA convinced a federal jury in a high-profile patent litigation suit that Sam-sung Electronics Co. infringed on AppleInc. patents. Testimony provided by Ap-ple’s economic damages witness helpedresolve a dispute among jurors as towhether $178 million of the more than$230 million of profits that Samsungearned was attributable to Samsung’soperating costs as the South Korean-based company claimed. The jury,swayed by expert witness testimony, ulti-mately awarded a $290 million judgmentin Apple’s favor.

3) Chicago man exonerated,awarded $25 million

16 years after he was wrongly impris-oned for murder, Thaddeus Jimenez was

finally exonerated. Hardworking lawyersspent years attempting to prove maliciousprosecution and violation of due process.Their case was greatly strengthened bythe testimony of a former FBI agent andexpert on police investigations.

Jimenez’s police-activities expert testi-fied on reasonable practices for police in-vestigations. He exposed the coercive tac-tics employed by a former Chicago policedetective investigating the murder thatthen 13-year-old Jimenez was jailed forand explained how radically his actionsdeviated from industry standards. The 7thU.S. Circuit Court of Appeals ruled in fa-vor of Jimenez and awarded him $25 mil-lion, one of the most substantial verdictsin Chicago’s history.

4) Johnson & Johnson pays $8 million for defective hip implant device

Johnson & Johnson was forced to recall93,000 defective devices used in total hiparthroplasty surgeries following evidencethat their DePuy Orthopedics artificialhip implants caused significant healthcomplications. The first trial against the

healthcare giant on the issue demonstrat-ed that the DePuy device had multipledesign defects. A biomedical engineering

expert witness testified on behalf of theplaintiff, explaining that J&J ignored redflags in their internal data that their prod-uct deformed 10 times more than indus-try standards had allowed. Another ex-pert witness explained aspects of theproduct’s design that rendered it inade-quate. The jury agreed with the plaintiff’sexperts and held that J&J must pay $8million in damages.

5) Ethan Couch and the Affluenza Defense

A 16-year-old boy made national head-lines when he avoided jail time for adrunk-driving episode that left four peo-ple dead. Ethan Couch’s defense psychol-ogy expert witness described the youngboy as suffering from a mental healthcondition called “affluenza.”

The term, coined by mental health ther-apist Jessie O’Neill in her 1997 book, “TheGolden Ghetto: The Psychology of Afflu-ence,” describes an inability to appreciatethe consequences of one’s actions. Thejudge, swayed by the expert witness’s testi-mony, chose to sentence Couch to 10 yearsof probation rather than the 20-year sen-tence sought by prosecutors.

The benefit of expert witness testimony

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George Cuchural is vice president ofclient relations for The Expert Institute.

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Q: What is the best wayfor a law student to getto know attorneys in aparticular field ofinterest?

— Christopher Barnett 3L

A: I was successful networking withother attorneys when I found a com-fortable way to do it. The most suc-cessful encounters happened when afriend knew an attorney and I couldintroduce myself as a friend of so andso. Once the attorney knows that youhave a mutual acquaintance she is of-ten more agreeable to speaking withyou and meeting for an informationalinterview. This often leads to learningnames of her colleagues who practicein areas of law that are closer to yourinterests. I met with those colleaguesand they were happy to meet with mebecause I had an introduction. Eachattorney I met with gave me valuabledetails leading me down paths to-wards my goal of working in the areaof law in which I now practice, estateplanning and some family law mat-ters. A few of these informational ses-sions led to me joining MATA andfinding out about volunteer programs,such as the Lawyer for the Day Pro-gram — both useful resources for at-torneys and law students. For a lawstudent (who can join for free), MATAmembership gives an opportunity tosee how lawyers in your field of inter-est are answering questions, whichcan be helpful to understanding thefield and whether you truly will enjoyworking in that area of law. Throughthese connections I found valuablementors and met other volunteerlawyers who became important col-leagues, resources and friends. Insum, the best way to get to know at-torneys in a particular field is to find acomfortable way to network throughfamiliar acquaintances, friends andfamily and then branch out one per-son at a time.

Kelly P. DoucetteKPDLAW, Amesbury

Q: What are the thingsthat you enjoy mostand the least aboutbeing a trial lawyer?

— Kathleen Berney 2L

A: I enjoy being part of a group ofattorneys who are dedicated to pro-tecting the rights of victims and mak-ing a difference in their lives. It is re-warding to know that people’s livesare made easier by the work we doafter they suffer a tragic setback. Onthe other hand, I hate losing (evenmore than I enjoy winning). Whenmy clients are denied justice, it stayswith them and me, forever. There isno such thing as a short-term memo-ry when you lose a trial, nor shouldthere be.

Jeffrey N. CatalanoTodd & Weld, Boston

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The HonorableRobert H. Quinn

Robert H. Quinn, apartner at Quinn & Mor-ris in Boston, was aunique and fascinatingindividual. He served asspeaker of the Houseand later as attorneygeneral.

He was a public citizenin the truest sense of theword. MATA has beenprivileged to work withQuinn & Morris on leg-islative matters. RobertQuinn remembered andknew more about Massachusetts politics and legislative issues than most,and he used that knowledge to work for the people of the commonwealthlong after his tenure as speaker.

His wit and rapier humor was legend, as was his kindness and generosity ofspirit. Quinn has left a legacy of dignity, honor, loyalty and trust. He was a manof his word — always. We offer our deepest sympathies to Quinn’s family,friends, as well as Jim and the rest of the dedicated team at Quinn & Morris.

J. Michael Conley, PresidentMassachusetts Academy of Trial Attorneys

IN MEMORIAM

KELLY P. DOUCETTE

JEFFREY N. CATALANO

To join MATA please visit

MASSACADEMY.COM


By J. Michael Conley

Imagine how com-forting it would be (orwould have been) as anew trial lawyer to havea sage companion byyour side throughoutthe trial process to ex-plain each of the trial

components, its purposes, what needs tobe accomplished and how to approach it.Such a resource is now available in therecently published “The Elements of Trial”by Rick Friedman and Bill Cummings(Trial Guides 2013).

Friedman, a renowned trial lawyer andlecturer (in the mode of Mauet’steacher/leader/helper/guide) has previ-ously written important and well receivedtrial-related books — “Rules of the Road”(with Pat Malone), “Polarizing the Case,”“On Becoming a Trial Lawyer” — focus-ing on specific trial techniques and themorality and philosophy of trying cases.Cummings is an accomplished lawyerand Friedman’s law partner.

In “The Elements of Trial,” Friedmanand Cummings have presented a valu-able overview of the trial process andeach of its components: pre-trial investi-gation and preparation, jury selection,openings, interaction with the judge, di-

rect and cross examination, introducingexhibits and closings. They present inclear and relatable terms a definition ofeach trial component and its purpose, thebasic law, what needs to be accomplishedand some suggestions as to how to get itdonethroughoutthe process.

A typicalchapter ad-dresses oneelement (e.g. opening statement) and in-cludes subheadings of purpose, advocacygoals, applicable law, implementation,questions to ask and suggested reading.The authors include information on prac-tical topics — where to sit, limiting waterconsumption to avoid the need for bath-room breaks — as well as on trial me-chanics: how to frame questions, makeobjections, lay foundations for exhibitsand what is impermissible or inadvisableto say in openings and closings.

While the target audience of the bookhas been described as newer and mid-career lawyers preparing for trial, it willprovide more experienced practitionerswith a quick and useful refresher and anopportunity for re-evaluation. For Mas-sachusetts lawyers encountering differ-ing and evolving voir dire opportuni-ties, the chapter on jury selection could

be very useful. Moreover, there arevaluable organizational suggestionsthat may appeal to all.

When I was about two-thirds of theway through the book and reflecting onthe authors’ achievement in so conciselyand accessibly conveying in a small pa-perback book a basic template of whatwe need to know and do at trial, I belat-edly recognized the title, “The Elementsof Trial,” as a reference to another succinctand invaluable tract, Strunk & White’s“Elements of Style.” Friedman and Cum-ming’s book (although thankfully lessdogmatic) deserves a place in the librariesof trial lawyers, as well as teachers andstudents of trial, akin to that whichStrunk & White holds among writers andstudents of writing.

Dorothy Parker wrote, “If you haveany young friends who aspire to becomewriters, the second greatest favor youcan do them is to present them withcopies of ‘The Elements of Style.’ Thefirst greatest, of course, is to shoot them

now while they’re happy.” Significantly, the authors recognize, as

Friedman has emphasized in other work,that we do not have to be unhappy; alawyer’s personal well-being, fulfillmentand emotional balance make up an im-portant component of sustained successat trial. The book’s final chapter is entitled“You,” and concludes, “In the end, beingan emotionally healthy and effective triallawyer requires embracing the paradox ofcaring, believing and detachment.”

I am not aware of any comparable trialmanual. I wish it had been available 30years ago.

BOOK REVIEW

The Massachusetts Academy of Trial Attorneys will present Film and LawProductions with its 2014 Media Award at the MATA Annual Dinner onMay 13.

Film and Law Productions “is dedicated to stories as vibrant structuresthat may change the way victims of violence are seen in society and treatedby law.”

The group, led by Suffolk Law School Professors Kate Nace Day and Rus-sell G. Murphy, produced the documentary “A Civil Remedy,” which chroni-cles efforts to pursue civil actions against perpetrators of human trafficking.

MATA to honor Film and Law Productionswith 2014 Media Award

VISIT MASSACADEMY.COM

working on a few cases. Auto Flat v.Hanover is a G.L.c. 93A, § 1 case. Re-sponding to the SJC’S solicitation on thecommittee’s behalf, Hans Hailey andDanielle Spang are briefing whether aninsured is entitled to recover damageswhere, after it litigates a claim forwrongful denial of coverage but beforetrial, its insurer fully reimburses the in-sured for its losses, with interest andfees, such that (or so it claims) there areno “actual damages.”

The answer, one would think, is yes,because of the breach; if so, the nextquestion is the measure of those dam-ages. Argument is expected to be inMarch or later.

Other matters in the hopper includeRose v. HECO. The plaintiff lost his arm inan unguarded grinding machine. Afterweeks of evidence the trial judge chargedthe jury that was to decide the negligenceand breach of warranty claims that the“unreasonable use” or Correia defense isthe “implied warranty version of the con-tributory negligence defense.”

Additionally, the Committee is work-ing on a fascinating duty case: Does v.Children’s Hospital. In that case theplaintiffs are a group of victims of a pe-dophile who, before he abused them,had worked for the defendant. Despitethe defendant allegedly knowing of hisevil ways it neglected to inform his newemployer — where he went to work andultimately abuse the plaintiffs — of hissordid past. Briefing in these cases willbe filed in March or April.

Again, anyone interested in helpingwith a committee project should contactthe chair. We provide an extremely valu-able service to MATA and, in a largersense, to the bar. The commitment iswell worth the time and will give you achance to develop your writing which inturn will improve your practice. Doctorshave scalpels; accountants have pencils;we have words. They are our only toolsand we must use them well. But becausewriting combines a number of skills itgets complicated; that’s why writing isso difficult. Besides, we could use all thehelp we can get.

Continued from page 4

Amicus report

MATA President J. Michael Conley of is one of the founders of Kenney & Conley in Brain-tree, where he concentrates his practice on representing injured victims of negligence and othermisconduct. Conley has dedicated his professional career to advancing the rights of injured in-dividuals and their families. He is a frequent writer and lecturer for a number of organiza-tions, including the Massachusetts Bar Association, Massachusetts Continuing Legal Educa-tion Inc. and MATA. Conley was the longtime chair of the MATA Amicus Curiae Committeeand the MATA Journal.

‘The Elements of Trial’ by Rick Friedman and Bill Cummings


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February 2014 | Vol. 7, No. 1 Look for the MATA logo · February 2014 | Vol. 7, No. 1 A Supplement...

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