Wednesday, August 18, 2010

Boles II Fosamax® Attorney Conduct Pleading: "Good For Goose? Good For Gander."

One of Shirley Boles' best trial lawyers -- the one the very-able federal District Court Judge Keenan recently ordered to explain why a hearing for sanctions (or other greivance proceedings), ought not be convened -- filed 68 pages(!) of responsive pleadings, in anticipation of the September 9, 2010 argument on related rules to show cause, before Judge Keenan. [Mrs. Boles won an $8 million Fosamax® ONJ verdict from Merck, earlier this summer.]

Inside the 68-pager, this lawyer points to several very interesting factual matters. Not least of which is that Merck's lawyers also used some rather "colorful" visual aids, in summation (click at right). The image at right is an enlargement of a ficticious "check" Merck's trial counsel showed to the jury. [At bottom, centered, I have set the entire image from the Merck PowerPoint® slide, for accurate context (it includes a little additional commentary -- overlaid in color, by this blog author). Click both to enlarge.] Here's the plaintiff-lawyer's corresponding argument passage:

. . . .I must point out that I have always understood that a lawyer cannot argue his or her own personal views of the evidence; but, at the same time, I have never understood there to be a blanket prohibition to arguing before a jury that certain evidence was the truth. In fact, I am confident defense counsel would have to agree that there is no prohibition in this regard. After all, one PowerPoint slide used by the defense in summation (attached hereto as “Exhibit D”) contained a picture of Check 2400, which read: “‘Pay to the Order of’ The Truth” (and the term “The Truth” was in very large typeface). Moreover, the check made payable to “The Truth” was signed by “John Keenan” (and the words “John Keenan” were in very large typeface). . . .

Thus, not only did defense counsel use the term “truth,” they implied that the trial judge was subscribing to the defense’s version of the truth. I did not object because I believed that this was a transparent, presumptuous and “cheesy” attempt –- in obvious poor taste –- to influence the jury, but not done in a way that was necessarily unethical. I respectfully submit that it would be inappropriate and unfair to punish me for a less flagrant use of the term “the truth” when my use of that term was intended as a tool of advocacy, not an improper claim of personal belief. . . .

It would seem strange, indeed, to let this pass -- and pursue the plaintiff's lawyer, for sanctions -- where neither side objected to the other's summation, in real time. In any event, I'll keep you apprised all developments -- and I'll have more from this pleading, in the coming days.

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