Appealing Jury Verdicts -- the standards and the risks

It is worth noting the standard of review for jury trial verdicts in most appeals courts. The following is from the DC Court of Appeals, but most states follow a similar position: when the jury decides an issue of fact, the appeals court cannot change it unless there is absolutely no evidence to support the jury finding.

(a) In considering an order or judgment of a lower court (or any of its divisions or branches) brought before it for review, the District of Columbia Court of Appeals shall review the record on appeal. When the issues of fact were tried by jury, the court shall review the case only as to matters of law. When the case was tried without a jury, the court may review both as to the facts and the law, but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it. D.C. Code §17–305 (2016).

"As an appellate court we have no power to retry factual issues; our authority is restricted to a review for errors of law." District of Columbia v. Harris, 770 A.2d 82, 89 (D.C. 2001) citing to Sachs v. Eller, 89 A.2d 644, 645 (D.C. 1952).

Notwithstanding 17-305, the Court of Appeals will not disturb a jury's verdict if there is "any substantial evidence which will support the conclusion reached." Boynton v. Lopez, 473 A.2d 375, 376 (D.C. 1984). "Substantial evidence repeatedly has been defined as more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Reese v. Newman, 2016 D.C. App. LEXIS 36 (D.C. Feb. 11, 2016) citing to Wheeler v. District of Columbia Bd. of Zoning Adjustment, 395 A.2d 85, 89 (D.C. 1978).

When no jury is present, the Appeals Court can entertain an argument that the facts were improperly considered by the trial court, however, the review is generally at the "abuse of discretion" level, and is often hard to overturn. Note, though, that as a strategy matter, bench trials can have the facts reviewed, where jury trials rarely, if ever, do.

Also, be careful of filing an appeal at all -- on the defensive, as the appellee, you have no choice but to respond; however, as the appellant, if you file foolishly, you will have to pay the court fees, appendix costs, and other attorney fees if you lose. This should always be a salient consideration when attacking facts in an appeal.

Do you need help with an appeal in Virginia, Maryland, DC or Federal Court? Call us! We can help. 1-800-579-9864 or email us at admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Bankruptcy -- Supporting a Motion to Remand to State Court (Relief from Stay).

Hanover Law recently won a hard-fought battle in DC Bankruptcy Court. The defedant/debtor sandbagged our client two weeks before a jury trail in Superior Court by filing bankruptcy. This is known as a tactical filing, and is not uncommon. However, fortunately for our clients, we also practice in bankruptcy court. Nice try -- but defendants actions were not successful. The Superior Court case will now go. Nevertheless, it is educational to see how the case proceeded in Bankruptcy.

I am including our response to the filing to prevent removal of the case back to State Court. I believe it is worth reviewing our strategy. When considering adversarial bankruptcy defense -- specifically remand or relief from stay, the key is to remember three critical points:

• The litigation in state court must be well advanced (usually, through mid-discovery or later). Also known as the "amount of time" the state case has been ongoing.
• The matter must be substantially regarding state law and NOT a federal or bankruptcy question (the resulting decision is always a bankruptcy question, obviously. Rather, the matter itself, about which the state litigation is concerning, cannot be a federal or bankruptcy issue.)
• It should involve a jury matter. Though not strictly required, the fact there can be no jury trial on state matters in bankruptcy court is a strong motivator for the Bankruptcy Court to send the matter back to state.

The controlling cases are: Barge v. Western Southern Life Ins. Co., 307 B.R. 541, 547 (N.D. W. Va. 2004), and Linkway Inv. Co. v. Olsen (In Re Casamont Investors), 196 B.R. 517 (B.A.P. 9th Cir. Cal. 1996).

If you are the defendant attempting to prevent removal/remand, remember -- never argue that due process was violated in the state court (say, for example, due to pre-trial irregularities in preparing the case, discovery, etc.) when the parties have had ample time to prepare and litigate. There is nothing wrong with the approach per se, rather, the Bankruptcy Court is just going to point out that deficiencies in state court trial procedures are best handled at the state court level, not at Bankruptcy. A filing in Bankruptcy Court is not a second bite at the litigation apple.




Click here to download the PDF file.

Do you have questions about bankruptcy or an adversarial process involving a debtor? Come talk to us! For the defense or the plaintiff, we are an experienced litigation firm, and we are accomplished at interweaving bankruptcy procedures with state court action.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com		Lili O'connell, Esq. Abby Archer, Esq.
888 16th St., NW Ste 800 Washington, DC 20006	2751 Prosperity Ave, Ste 580 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq. Leigh Wells, Esq.

Voire Dire -- and the jury trial

Ever wonder how a jury trial really works? There are quite a few steps. In the next several articles, I will discuss a few really important aspects of jury trials. While we've been handling complex jury matters for years, we just finished (successfully!) a jury trial where the key elements really made a difference:

• voire dire
• jury instructions
• the jury verdict form

. "Voire Dire" is French, and means to see and to speak. A slightly more easily digestible translation would be "to observe and discuss." Although "question" would be more appropriate, the French word for that is "demander" -- and certainly nothing close to "dire". So we're stuck with observe and discuss. C'est bon! You may have heard the terms translated as: "speak the truth" -- that is pure fiction.

Now, it is important to understand that you must get a good lawyer for a jury trial. Not only must your attorney be an excellent cross-examiner, he or she must be a good tactician. Jury operations are all about tactics. Subtle tactics. Understanding the nuances can make the difference between a sympathetic jury and one the clobbers you. So, be careful and choose wisely.

Voire Dire -- the art of selecting the jury

Calling the jury

Most courts work the same way, but in this example, we will discuss Federal court. Voire dire is initially conducted by the judge. Once all preliminary matters are resolved (before the trial starts), the judge will instruct the clerk to "bring in the jury." The jurors are ushered into the court and seated in the gallery (that's the area with the rows of seats -- in the back), generally in order starting with number one, with five per row (obviously, there are more if the rows are larger). The clerk will also hand each counsel a "jury sheet" which shows each the name of each juror, their juror number, profession, and perhaps a few remarks on demographics. There will also be a line by each juror name for entry of comments.

Initial Questioning by the Judge

Generally, several weeks before the trial a "pre-trial" hearing is held. During this time, jury questions are discussed between the parties and the judge. These are the initial questions the judge will ask the jury directly, and must be agreed to by the parties. During the day of trial, once the jury group is seated in the gallery, the judge have the clerk pass out index cards. As the judge asks the jurors the questions agreed to by the parties at pre-trial, each individual juror will enter the question number and a "yes" if any are true for that juror. The jurors will enter nothing if the question is false or not true. A typical question may be: "1. Do you know any member of the defense team?" or "2. Have you ever owned a business?". A juror would write: "1. yes" if he/she did know a member of the defense team, for example.

Questioning by Counsel

Once the judge has asked all the questions, the clerk will collect the index cards. The judge will call defense and plaintiff's counsels to the bench. Each attorney will stand on one side of the bench. The terms "bench" refers to where the judge sits. The judge will then call each juror by juror number, and ask them to explain his/her answer if a "yes" was given. The attorneys then have the ability to follow-up with their own questions based on the response the juror gives (in explanation) to the judge. The question is one of bias. The attorney wants to learn if there is any bias in the actions of the juror. Also, the attorney needs to get as much information as to motive and interest of the juror as possible. Make notes! Occasionally, a juror will say something that precludes him/her from serving. This is usually obvious. For example, in a DUI trial, a juror that states, "My mother was killed by a drunk driver." would be "struck" for cause. The term "for cause" is legal jargon for removing a juror because they are not appropriate or qualified to sit on the jury. There is a much better chance of a strike "for cause" being accepted if both attorneys agree, however, that is not a requirement. The judge will make the final determination. Once the jurors have been called forth, and questioned at the bench, and those ineligible to serve removed from consideration (for cause), the judge will send the attorneys back to their respective tables in order for them to formulate their peremptory strikes.

Peremptory Strikes

A peremptory strike is the removal of a juror from the list "just because." That is -- for no other reason than the defense or plaintiff's counsel seeks to do so. It is the legal method of stacking the jury. Removing those not favorable to your case. In a civil case, each side receives three peremptory strikes. In a criminal trial, usually the defendant receives 10 strikes and the state receives 6. These numbers are completely at the discretion of the each jurisdictions court rules, so be sure to verify them! A peremptory strike form is provided to each attorney. Thereon, the attorney enters the juror information, as well as demographics information of the jurors who are struck. This ensures that there is an no racial or gender bias in the selection of peremptory strikes.

How to conduct effective Voire Dire

The key to success is knowing the best profile for your jury. What type of case do you have? Is this is a sympathy case for your side? Then seek simple jurors who are family oriented, or females who are more empathetic. Is this a legal, business case where calculations are more valuable? Then seek the professional who is all business. Once you know the profile of the juror you seek, then ask questions at the bench that elicit the bias you seek. While you are respectful and honest in your questioning, this process is not about being fair. It is about stacking the jury with those most sympathetic to your case. Is this a land case? Strike jurors that are clearly large land holders (unless you want them to side with the land-owner!). You get the idea. The key is a thorough and clear understanding of your case, coupled with piercing "bias" questions at the bench.

Jury selection is critical to the theory of your case. Your opening statement and your closing statement will be given directly to the jury. You need to make eye-contact, and the jury must believe you, the attorney. Select jurors that bother represent the closest interest to your client's case, and also who relate to you as an advocate. When the jurors comes to the bench, smile at them. Be gracious and make eye contact. This is the first time you will have a chance to make them yours -- do not squander the opportunity.

Do you need help with an upcoming jury trial? Give us a ring! We've been doing this for a while and would be glad to handle your case, or consult on the jury selection process. Remember -- ~30% of the outcome of your case is decided in the proper selection of your jury. Another ~15% is decided by the proper instructions and verdict form. Do the math, folks. That is ~45% of your case decided before the trial starts. Be sure you have an attorney you can trust.

Sean R. Hanover, Esq
www.HanoverLawPc.com
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