WEBVTT
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May it please the court.
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I'm Andrew Rainer.
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I'm the litigation director
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of the Public Health Advocacy Institute in Boston,
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which is a nonprofit organization
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committed to litigation affecting public health.
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I'm here today on behalf of the family of Thomas Babalatos
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to ask you to reverse a judgment that was infected
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by unnecessary and unfair time limits.
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The time limits were unfair in at least three respects.
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First of all, that they were set
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without consideration of either party's submission
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as to how much time they needed to try their case.
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Secondly, the limits did not,
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as required by the Chandler case,
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allow the plaintiff to present her entire case.
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And third, the division of time between the plaintiff
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and the defendants did not take account
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of the burdens of proof faced by those parties.
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Taking these one at a time-
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Counsel, how many days of trial did you get?
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We had a combination of half days
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and whole days.
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It was measured only ever in minutes, Your Honor.
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Was it three and a half weeks?
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It was three and a half weeks
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only if one counts days that the court did not sit.
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It was not three and a half weeks.
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How many days was the trial held?
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Was it 27, 28? What was it?
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Your Honor-
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You're saying you didn't have enough time, right?
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You're complaining about the time limits.
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I'm surprised you don't know how much time you actually had.
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Well, we had 28 hours, Your Honor,
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and it was meted out in days and counted by the minute.
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Okay.
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And how much time, if any, did you have left over
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of the 28 hours that you were allotted?
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20 minutes, and it was only because we needed to call...
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The trial judge told us we could only call
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a particular witness as a rebuttal witness.
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So we had to save time for
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a medical causation rebuttal witness who was called last.
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And the fact that we didn't use those 20 minutes,
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bares no relationship to the testimony
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that we asked the judge to be able to present,
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which would've required
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at least three additional trial days.
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What did you wanna present
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that you didn't get a chance to present?
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So I've outlined on-- excuse me, Your Honor--
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on pages 33 to 35 of our opening brief,
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we detailed the witnesses that we did not get to present.
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I'll give you two examples.
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The first was a videotaped deposition
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of a representative of defendant
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R.J. Reynolds Tobacco Company,
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who testifies in that deposition, among other things,
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that the company expected people to rely on the statements
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that they made that were misrepresentations
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concerning the dangers of cigarettes.
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And so dealing with that one piece of evidence
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that you were not able to put in, did you ask
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the trial judge for time to put that specific evidence in?
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Yes.
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Okay, and that request was denied?
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Let me address, if I may,
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let me address the timing of all this.
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Before you do the timing, can you answer my question?
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Where in the record did you request to play
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that particular piece of evidence
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and where in the record was it denied?
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You will find, Your Honor,
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in the transcript of October 1st on page
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in the third record, in the third volume
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of our trial record at pages 37 to 43.
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And again, in the hearing on October 8th,
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you will find it in that same volume at pages 237 to 248
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where we laid out exactly
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what we were not going to have time for.
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It was also laid out in our pretrial memorandum,
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which Your Honors will find in volume one of the record.
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It seems like-
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Sorry, go ahead please.
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It seems like your reply brief and apply brief
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have significant differences as to what happened,
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and in particular, whether or not, and how many times
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you actually asked for additional time.
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So, I've had the pleasure of opposing Mr. Chesin
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many times and I have the highest regard for him,
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but he did not accurately represent,
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Your Honor, the situation.
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The trial judge was not flexible.
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We asked at the first three hearings,
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there was a hearing on October 1st, which I've mentioned,
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where the judge announced,
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before he had heard anything from either of us,
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about how much time we needed.
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He decided that day that we were gonna have 1,575 minutes
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and that the trial was gonna end on November 9th.
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That was in response to a motion filed by the defendant.
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It was in response to a motion filed
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by the defendant, which did not suggest any particular time.
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This wasn't sua sponte by the judge.
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He was responding to a motion, right?
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Well, what was sua sponte, Your Honor,
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was how Your Honor is correct.
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Okay.
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But what was sua sponte, Your Honor,
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was the conversation that he had had with another judge
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who had tried another case
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and his understanding of how much time
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that other case had taken was mistaken.
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He says on the record,
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the other case, the parties, each had 1,000 minutes.
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I'm giving you more time.
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That's not what happened.
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The parties had the same amount of time in that case
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that we had in our case,
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and we had three defendants and five causes of action,
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whereas the prior case, the Laramie case, had one defendant
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and two causes of action.
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So this is not...
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Tobacco cases are not one-size-fits-all.
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The defendant's site, for example, a bench trial case
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where they're comparing a trial of a 93A count
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before a judge and says that's an analogy
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for what we should be doing in a jury trial
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with three defendants and five causes of action.
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I actually went through and tried to count
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how many elements we'd have to prove-
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You agree this is a matter the judge's discretion,
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we have to find abuse of discretion, correct?
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Yes, Your Honor.
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And is it your position that
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had the judge complied with something that's similar
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to the ABA civil trial practice rules
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and gone through the analysis, he would've been fine?
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Yes, Your Honor. He did not.
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The one other important part-
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Because that would take out the arbitrariness of his,
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as you say, his ruling.
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It was arbitrary.
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And Your Honor, the Chandler case talks about a party
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being able to present their entire case.
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If we go to a judge and say, as we did,
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in order to present this case-
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Well, you've been a party to cases
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where the judges said from the bench, "Move on," right?
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Yes, Your Honor.
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And that's perfectly fine.
Agreed.
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I mean, if we are to talk about,
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I mean, on a strictly theoretical level,
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I respectfully submit, justice is never delivered
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by minutes on a chess clock.
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Justice is delivered by judges who allow the parties
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who take input onto how much time they need.
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Doesn't necessarily...
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We've had since this trial, two cases,
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which, again, I cited in my reply brief--
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where the judges asked us, "How much time do you need?"
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I told them how much time I needed.
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They gave me not that much,
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but gave me enough time to make the case.
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And we had no trouble complying
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with time limits in either of those cases.
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The cases you cite where we find abuse of discretion
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are extreme cases.
I agree.
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The Hawaii case, you know, the appeals court case
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where judges are cramming, you know,
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multi-week trials into, you know, two or three days.
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This would be the first time
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we've done something like this, right?
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Where you have a pretty long trial,
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almost a month long trial.
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Your Honor, may I just point out,
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the 28 hours is five trial days.
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I have never-- I've tried many of these cases--
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I've never-
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All right. Could remind me, was it 28 hours each or 28?
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Yes. So my trial time was five trial days.
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So a two week trial.
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Yes, Your Honor.
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But again, the cases you've got are extreme cases.
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We would be really changing the case law if we find this
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to be an abuse of discretion, wouldn't we?
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Well, Your Honor, I think that the case could turn
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on the point I began with,
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that the judge made a decision before he had heard from me,
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a word from me, about how long I needed.
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Is that really the problem?
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Because what if the judge had,
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without hearing a word from you, said you have a month.
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Would you still be complaining
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about time limits being arbitrary?
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Well, while I certainly understand the point,
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the point is that we didn't have enough time.
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We didn't get close to what we said we needed.
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There's some combination of your lack of input
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and the actual time allotted.
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So it's not just the lack of input.
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Yes. And the two elements.
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I'm respectfully asking the court to give guidance
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to the trial courts no matter what else you do here
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that says you've gotta take input,
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you've gotta take account of the burdens of proof.
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And again, I want to note
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that all of the other tobacco cases
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where time limits have been imposed,
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plaintiffs have been given more time because we literally,
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and I specifically asked the court to read
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The Trouble with Time Limits law review article,
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which includes empirical studies about
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other trials throughout the country.
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And it says unequivocally
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is the plaintiffs simply need more time.
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A defendant can win the case.
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They give the analogy of a builder.
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They say a builder can build the house
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and if the party that wants to wreck the house,
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which is not a complete analogy,
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but if you assume that, all the defendant has to do
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is disprove one element in order to win.
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There's no way the builder can keep up with the wrecker.
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The time cannot be evenly divided
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and none of the other cases have done that.
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Attorney Rainer, can we get to what the responsibility
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of the attorney who is objecting to the time limits?
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What's that responsibility?
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And what I'm going to ask you about is,
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is there a requirement for an offer of proof?
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Does the Mass Guide to Evidence 611 A
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that allows the judge to control the mode
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and order or presentation of witness infuse
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enough discretion here,
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and if it doesn't, why not?
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Why not an offer of proof if the problem is
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that there's evidence that's being excluded
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that you want in?
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So, the most important part of this,
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and I wanted to say this earlier.
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The most important part of your question,
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Your Honor, is timing.
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And I'll tell you why.
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Because if you wait until the jury is impaneled
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and the jury has been told, "You can expect you are going
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to be done by such and such a date,"
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no one, none of the litigants,
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no judge wants to vary from that.
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So the time for input on this has to be before you start,
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before you tell the jury that magic number.
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So, all of the points that were made about,
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we didn't ask, we didn't ask close to the end of the trial,
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we didn't ask, a responsible lawyer is not going
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to be placed in a position of going through,
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you know, two weeks of trial.
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In fact, we said that at the hearing on October 8th,
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we said to the judge, "Judge, we can't be in the position
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where we're in the middle of a witness.
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And you say, 'Okay, that's it. We're done now.' "
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The time-
He didn't do that.
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He didn't do that. He never did that.
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00:12:46.980 --> 00:12:47.813
Of course not.
265
00:12:47.813 --> 00:12:50.730
And my point is, the time that this judgment
266
00:12:50.730 --> 00:12:54.660
needs to be made is exactly at those pretrial hearings.
267
00:12:54.660 --> 00:12:57.420
The parties under all of the trial court rules
268
00:12:57.420 --> 00:13:00.300
are required to give estimates of how much time they need
269
00:13:00.300 --> 00:13:02.435
and who their witnesses are going to be.
270
00:13:02.435 --> 00:13:06.420
And that's the moment when this decision should be made.
271
00:13:06.420 --> 00:13:09.600
And so, the offer of proof, you never even get to that,
272
00:13:09.600 --> 00:13:13.447
because once the judge has impaneled the jury and said,
273
00:13:13.447 --> 00:13:15.600
"This is when you're going to be done."
274
00:13:15.600 --> 00:13:18.621
Nobody wants to be in the position then of saying-
275
00:13:18.621 --> 00:13:22.080
Mr. Rainer, at that point, it's appropriate for the judge,
276
00:13:22.080 --> 00:13:24.850
correct me if I'm wrong, to take into account
277
00:13:24.850 --> 00:13:28.500
his or her experience with similar cases
278
00:13:28.500 --> 00:13:31.830
and perhaps colleagues' experience with similar cases,
279
00:13:31.830 --> 00:13:33.990
to say whether or not the time limits proposed
280
00:13:33.990 --> 00:13:36.930
by the parties are reasonable or unreasonable.
281
00:13:36.930 --> 00:13:38.490
Yes.
282
00:13:38.490 --> 00:13:41.220
but the point I had tried to make, Your Honor, earlier
283
00:13:41.220 --> 00:13:43.403
to Your Honor earlier about that
284
00:13:43.403 --> 00:13:46.518
is this isn't one-size-fits-all for tobacco cases.
285
00:13:46.518 --> 00:13:50.640
So, if I have a case and it's a hand-to-hand drug sale,
286
00:13:50.640 --> 00:13:52.350
I kind of have in my mind
287
00:13:52.350 --> 00:13:54.743
how long a hand-to-hand drug sale should take place.
288
00:13:54.743 --> 00:13:57.600
I have in my mind how long a slip and fall
289
00:13:57.600 --> 00:14:00.360
in a supermarket should take place, correct?
290
00:14:00.360 --> 00:14:01.903
Absolutely, Your Honor.
291
00:14:01.903 --> 00:14:04.200
I get your point about one-size-fit-all,
292
00:14:04.200 --> 00:14:06.630
and have an input from the lawyers
293
00:14:06.630 --> 00:14:09.240
to say why this should deviate, perhaps,
294
00:14:09.240 --> 00:14:11.190
from what the judge's heartland is.
295
00:14:11.190 --> 00:14:13.740
Well, and I mean, perhaps the easiest distinction
296
00:14:13.740 --> 00:14:16.200
in this case is this was a case where
297
00:14:16.200 --> 00:14:19.920
there was an actual dispute about medical causation
298
00:14:19.920 --> 00:14:21.150
and many of the tobacco cases,
299
00:14:21.150 --> 00:14:23.310
medical causation isn't even disputed.
300
00:14:23.310 --> 00:14:25.860
In this case, there were three witnesses
301
00:14:25.860 --> 00:14:28.680
that were called on that subject alone.
302
00:14:28.680 --> 00:14:29.820
And that's often...
303
00:14:29.820 --> 00:14:32.040
Was certainly not true in the Laramie case,
304
00:14:32.040 --> 00:14:34.470
nor frankly, in almost any of the other cases
305
00:14:34.470 --> 00:14:35.670
that have been discussed.
306
00:14:35.670 --> 00:14:40.020
So you had 28 hours and you didn't use 20 minutes.
307
00:14:40.020 --> 00:14:44.070
How much time would've been reasonable?
308
00:14:44.070 --> 00:14:47.328
Three more trial days, another 15 hours, Your Honor.
309
00:14:47.328 --> 00:14:48.161
15 hours.
310
00:14:48.161 --> 00:14:50.744
So the difference between 28 plus 15 and 28
311
00:14:50.744 --> 00:14:54.720
is what you're saying is an abuse of discretion?
312
00:14:54.720 --> 00:14:55.620
Absolutely.
313
00:14:55.620 --> 00:14:57.420
And I'm saying it precisely because
314
00:14:57.420 --> 00:14:58.620
there was specific evidence,
315
00:14:58.620 --> 00:15:00.300
which again I've tried to outline,
316
00:15:00.300 --> 00:15:01.650
that we couldn't present.
317
00:15:01.650 --> 00:15:05.176
There was evidence that we have presented in other trials
318
00:15:05.176 --> 00:15:08.310
that, from my perspective, has made a difference.
319
00:15:08.310 --> 00:15:10.650
There were the two videos and what was the last thing?
320
00:15:10.650 --> 00:15:14.502
There was a very important expert witness, Dr. Prochaska,
321
00:15:14.502 --> 00:15:18.930
The addiction expert didn't overlap at all?
322
00:15:18.930 --> 00:15:20.340
No, there is an overlap.
323
00:15:20.340 --> 00:15:23.130
What we had to do, Your Honor, is we had to use
324
00:15:23.130 --> 00:15:25.890
one of our other experts to cover topics
325
00:15:25.890 --> 00:15:27.570
that that expert would've covered.
326
00:15:27.570 --> 00:15:30.469
And we couldn't cover them all with the other expert.
327
00:15:30.469 --> 00:15:32.940
'Cause he's gonna stand up
328
00:15:32.940 --> 00:15:35.640
and say there's a lot of duplication, right?
329
00:15:35.640 --> 00:15:38.730
You've got two videos in your addiction expert
330
00:15:38.730 --> 00:15:41.010
where what you weren't allowed to do,
331
00:15:41.010 --> 00:15:45.480
but you get that testimony in through others, right?
332
00:15:45.480 --> 00:15:48.990
May not be as effective or comprehensive,
333
00:15:48.990 --> 00:15:52.620
but you do cover those topics with other witnesses, right?
334
00:15:52.620 --> 00:15:55.193
In part, Your Honor, yes. In part.
335
00:15:55.193 --> 00:16:00.193
But I mean, to win a case like this,
336
00:16:00.270 --> 00:16:03.060
we need to persuade the jury, for example,
337
00:16:03.060 --> 00:16:07.470
that they were negligently marketing cigarettes to children.
338
00:16:07.470 --> 00:16:10.140
To have an expert who speaks precisely to
339
00:16:10.140 --> 00:16:14.760
how children are impacted by advertising is very important.
340
00:16:14.760 --> 00:16:17.340
And I get that 'cause we'd just written on that.
341
00:16:17.340 --> 00:16:21.930
But so, the other witness who was allowed to testify,
342
00:16:21.930 --> 00:16:24.420
I take it they did talk about marketing to children.
343
00:16:24.420 --> 00:16:25.980
I have not read this entire transcript.
344
00:16:25.980 --> 00:16:27.523
That's true, Your Honor.
345
00:16:27.523 --> 00:16:28.813
Did they talk about marketing to children?
346
00:16:28.813 --> 00:16:29.646
They did, Your Honor.
347
00:16:29.646 --> 00:16:31.926
How susceptible they are and how Joe Camel
348
00:16:31.926 --> 00:16:34.582
and that kind of stuff is...
349
00:16:34.582 --> 00:16:36.780
Are we gonna find that when we read through this?
350
00:16:36.780 --> 00:16:39.390
Yes, Your Honor. But my point is-
351
00:16:39.390 --> 00:16:42.090
Is that what trial judges have to do, right?
352
00:16:42.090 --> 00:16:45.210
They have to decide how much duplication
353
00:16:45.210 --> 00:16:48.397
is going to be allowed, right?
354
00:16:48.397 --> 00:16:52.710
Your Honor, had we had that conversation
355
00:16:52.710 --> 00:16:54.930
before the judge decided how much time
356
00:16:54.930 --> 00:16:57.993
he was going to give us,
357
00:16:58.981 --> 00:17:01.953
I don't actually think we would've brought the appeal.
358
00:17:03.600 --> 00:17:05.340
I think I need to ask you sort of
359
00:17:05.340 --> 00:17:09.527
an uncomfortable question, which is your suggestion
360
00:17:09.527 --> 00:17:13.500
that the judge is making these determinations
361
00:17:13.500 --> 00:17:16.710
based on his own personal schedule
362
00:17:16.710 --> 00:17:21.030
and whether or not that's really fair.
363
00:17:21.030 --> 00:17:23.280
And I want you to have a chance to answer the question,
364
00:17:23.280 --> 00:17:28.280
but he has a conference coming up,
365
00:17:28.770 --> 00:17:30.873
a superior court conference coming up.
366
00:17:31.980 --> 00:17:36.450
That is the November 11th holiday.
367
00:17:36.450 --> 00:17:39.986
He's clearly working at night, in the morning,
368
00:17:39.986 --> 00:17:42.540
to try and move things along.
369
00:17:42.540 --> 00:17:45.660
And then he provides some extra time
370
00:17:45.660 --> 00:17:49.050
when he recognizes November 11th.
371
00:17:49.050 --> 00:17:51.930
And one of the reasons you say
372
00:17:51.930 --> 00:17:53.580
this is an abuse of discretion,
373
00:17:53.580 --> 00:17:55.860
that's why I think I need to ask you the question,
374
00:17:55.860 --> 00:17:59.670
is because you contend that it was, it, the schedule,
375
00:17:59.670 --> 00:18:04.023
was driven by his personal schedule.
376
00:18:05.522 --> 00:18:08.703
Do you really think that's true?
377
00:18:09.600 --> 00:18:13.110
Your Honor, he said so at the hearing on October 1st,
378
00:18:13.110 --> 00:18:14.640
and I asked him about it again
379
00:18:14.640 --> 00:18:15.990
at the hearing on October 8th.
380
00:18:15.990 --> 00:18:18.870
I specifically said, "I understand Your Honor needs
381
00:18:18.870 --> 00:18:23.870
to be gone to Memphis on November 17th."
382
00:18:24.000 --> 00:18:26.220
I mean, it was specifically discussed
383
00:18:26.220 --> 00:18:28.320
as part of the decision about...
384
00:18:28.320 --> 00:18:31.327
I mean, and he says, Your Honor, he says,
385
00:18:31.327 --> 00:18:36.327
"I'm flexible about not my deadline date."
386
00:18:36.720 --> 00:18:38.820
He said explicitly that
387
00:18:38.820 --> 00:18:42.180
that was one thing that he would not vary from.
388
00:18:42.180 --> 00:18:46.140
And I mean, Judge Sarrouf worked extremely hard
389
00:18:46.140 --> 00:18:46.973
during the trial.
390
00:18:46.973 --> 00:18:49.519
I would not stand here and suggest for a minute
391
00:18:49.519 --> 00:18:51.570
that there was any shirking.
392
00:18:51.570 --> 00:18:54.210
I'm not. I am absolutely not saying that.
393
00:18:54.210 --> 00:18:57.300
He worked really hard to get the trial done
394
00:18:57.300 --> 00:18:58.350
as we talked about.
395
00:18:58.350 --> 00:19:03.350
But I mean, is it good justice to be getting rulings
396
00:19:03.930 --> 00:19:05.790
on evidence in the middle of the night?
397
00:19:05.790 --> 00:19:09.330
Is that good for anyone? Is that a good quality of justice?
398
00:19:09.330 --> 00:19:11.460
I mean, to me, it's in the league
399
00:19:11.460 --> 00:19:14.550
with should justice be delivered by the minute?
400
00:19:14.550 --> 00:19:18.183
It shouldn't be. It shouldn't be crammed in.
401
00:19:19.530 --> 00:19:23.940
And so I wanna be completely clear.
402
00:19:23.940 --> 00:19:26.310
I'm not suggesting there was anything,
403
00:19:26.310 --> 00:19:28.710
that Judge Sarrouf didn't work hard to make this done,
404
00:19:28.710 --> 00:19:32.010
but I am suggesting that the whole date
405
00:19:32.010 --> 00:19:35.580
was driven by what he told us on the first day
406
00:19:35.580 --> 00:19:38.010
and the fact that he wouldn't vary from it.
407
00:19:38.010 --> 00:19:40.380
The only variance, as Your Honor correctly points out,
408
00:19:40.380 --> 00:19:43.680
is he realized we weren't gonna have Veteran's Day,
409
00:19:43.680 --> 00:19:47.160
so he moved the closings to November 15th.
410
00:19:47.160 --> 00:19:50.160
That was the entire change he made
411
00:19:50.160 --> 00:19:52.770
from day one until the end of the trial.
412
00:19:52.770 --> 00:19:54.330
Okay, thank you very much.
413
00:19:54.330 --> 00:19:56.080
Thank you very much, Your Honors.
414
00:19:57.780 --> 00:20:00.723
Attorney Chesin.
415
00:20:02.010 --> 00:20:03.600
Good morning. And may it please the court.
416
00:20:03.600 --> 00:20:06.780
Scott Chesin from Shook Hardy for the appellees.
417
00:20:06.780 --> 00:20:09.790
How can you tell the plaintiff how much time
418
00:20:10.890 --> 00:20:12.900
they need to put on their case?
419
00:20:12.900 --> 00:20:14.790
I don't understand how you can argue
420
00:20:14.790 --> 00:20:16.443
that there was plenty of time.
421
00:20:17.550 --> 00:20:20.280
Because we weren't making this decision in a vacuum.
422
00:20:20.280 --> 00:20:22.200
With all due respect to my friend on the other side,
423
00:20:22.200 --> 00:20:25.987
the judge did not walk in fresh and sua sponte say,
424
00:20:25.987 --> 00:20:27.330
"Here's how many minutes
425
00:20:27.330 --> 00:20:29.670
I'm going to give you," out of the blue.
426
00:20:29.670 --> 00:20:32.637
This was briefed where the, you know,
427
00:20:32.637 --> 00:20:35.017
the defendants filed a motion said,
428
00:20:35.017 --> 00:20:36.656
"We want time limits on this case because
429
00:20:36.656 --> 00:20:39.900
otherwise they tend to run long."
430
00:20:39.900 --> 00:20:43.530
Here's a body of evidence of other cases very similar
431
00:20:43.530 --> 00:20:46.710
to this one, involving the same claims,
432
00:20:46.710 --> 00:20:49.230
the same parties, many of the same witnesses.
433
00:20:49.230 --> 00:20:50.850
Here's how long they took.
434
00:20:50.850 --> 00:20:52.830
The plaintiff filed a 10 page response.
435
00:20:52.830 --> 00:20:57.450
It's on page 66 of volume one of the record on appeal,
436
00:20:57.450 --> 00:20:59.550
in which they said, "We don't think there should be
437
00:20:59.550 --> 00:21:00.690
any time limits at all.
438
00:21:00.690 --> 00:21:04.290
Here are the witnesses we plan to call."
439
00:21:04.290 --> 00:21:07.890
The judge, after reading that, spoke with Judge Davis,
440
00:21:07.890 --> 00:21:09.300
who had just had a similar trial,
441
00:21:09.300 --> 00:21:10.860
which, contrary to what Mr. Rainer said,
442
00:21:10.860 --> 00:21:13.110
did not last the same amount of time as this one.
443
00:21:13.110 --> 00:21:17.070
It lasted 43 hours as opposed to 56 hours.
444
00:21:17.070 --> 00:21:18.577
And Judge Sarrouf walked in and he said,
445
00:21:18.577 --> 00:21:20.400
"Here's my inclination.
446
00:21:20.400 --> 00:21:22.350
After reading your papers,
447
00:21:22.350 --> 00:21:25.290
after examining what you say you are going to do,
448
00:21:25.290 --> 00:21:27.360
after talking with two colleagues, Judge Davis
449
00:21:27.360 --> 00:21:29.940
and Judge Wall who have tried similar cases,
450
00:21:29.940 --> 00:21:31.830
my inclination is this doesn't need
451
00:21:31.830 --> 00:21:33.630
to be a month long trial.
452
00:21:33.630 --> 00:21:36.390
I think about 1500 minutes should cover what you need.
453
00:21:36.390 --> 00:21:38.010
Now let's talk about it."
454
00:21:38.010 --> 00:21:39.270
And then we talked about it.
455
00:21:39.270 --> 00:21:41.610
We had a hearing on the 1st, we had a hearing on the 8th.
456
00:21:41.610 --> 00:21:44.460
Mr. Rainer made all of these points to Judge Sarrouf.
457
00:21:44.460 --> 00:21:46.380
We made points in opposition.
458
00:21:46.380 --> 00:21:48.090
The judge made various adjustments
459
00:21:48.090 --> 00:21:49.440
to his initial inclination.
460
00:21:49.440 --> 00:21:51.870
And then, and I think this is key, and I apologize
461
00:21:51.870 --> 00:21:54.300
because I don't think this comes out clearly in the briefs,
462
00:21:54.300 --> 00:21:56.520
but, you know, when you prepare for argument,
463
00:21:56.520 --> 00:21:57.930
you reread things.
464
00:21:57.930 --> 00:22:01.890
Page 37 of volume three on the record of appeal,
465
00:22:01.890 --> 00:22:05.520
which is what Mr. Rainer just referenced,
466
00:22:05.520 --> 00:22:09.300
the judge said, "I can't be flexible on the end date,
467
00:22:09.300 --> 00:22:11.790
but I'm building in a lot of half days to this.
468
00:22:11.790 --> 00:22:13.380
You want to turn a half day into a
469
00:22:13.380 --> 00:22:15.900
full day, just let me know, I'll be flexible."
470
00:22:15.900 --> 00:22:18.060
On page 42, he said, "If there's ever a day
471
00:22:18.060 --> 00:22:20.520
where we're ending at 4 and you need to go till 4:30,
472
00:22:20.520 --> 00:22:21.780
let me know."
473
00:22:21.780 --> 00:22:23.970
And the point that we tried to make in the brief is
474
00:22:23.970 --> 00:22:26.910
that at no point during this trial,
475
00:22:26.910 --> 00:22:29.610
this three and a half week trial,
476
00:22:29.610 --> 00:22:31.957
did the plaintiff ever stand up and say,
477
00:22:31.957 --> 00:22:35.280
"Judge, there's a video we really need to play
478
00:22:35.280 --> 00:22:37.350
and we haven't had an opportunity to play it.
479
00:22:37.350 --> 00:22:38.760
Tomorrow's supposed to be a half day,
480
00:22:38.760 --> 00:22:40.410
can you clear your afternoon calendar
481
00:22:40.410 --> 00:22:41.880
and we'll play that video that day?"
482
00:22:41.880 --> 00:22:43.560
Is it your position that judge complied
483
00:22:43.560 --> 00:22:45.510
with the ABA standards?
484
00:22:45.510 --> 00:22:46.349
I think the judge-
485
00:22:46.349 --> 00:22:50.370
The second ABA standards is voluntary self-imposed limits.
486
00:22:50.370 --> 00:22:51.870
Suppose we don't adopt that,
487
00:22:51.870 --> 00:22:54.480
but the first standard is made informed analysis,
488
00:22:54.480 --> 00:22:57.390
plan for trial, and second, an opportunity to be heard.
489
00:22:57.390 --> 00:23:00.420
I think if the rule in this commonwealth were the same
490
00:23:00.420 --> 00:23:02.670
as the ABA standard, I think Judge Sarrouf followed it.
491
00:23:02.670 --> 00:23:04.890
If the rule in this commonwealth were the same rule
492
00:23:04.890 --> 00:23:07.080
that applies in the federal district courts
493
00:23:07.080 --> 00:23:10.470
in Massachusetts, that's local rule 43.1.
494
00:23:10.470 --> 00:23:13.110
Like what Judge Sarrouf was doing,
495
00:23:13.110 --> 00:23:14.457
and what Judge Davis and Judge Breeker
496
00:23:14.457 --> 00:23:15.720
and all of the other judges,
497
00:23:15.720 --> 00:23:18.240
there have been seven different superior court judges
498
00:23:18.240 --> 00:23:21.060
who have imposed similar time limits on these cases
499
00:23:21.060 --> 00:23:22.500
in the last five years.
500
00:23:22.500 --> 00:23:24.540
What they've effectively done is they are following
501
00:23:24.540 --> 00:23:27.900
the procedure that is laid out in local rule 43.1,
502
00:23:27.900 --> 00:23:30.300
which has been part of the practice
503
00:23:30.300 --> 00:23:32.280
of the federal district courts in Massachusetts
504
00:23:32.280 --> 00:23:33.966
for 30 years, which says in the absence
505
00:23:33.966 --> 00:23:38.085
of a voluntary agreement among the parties about
506
00:23:38.085 --> 00:23:40.320
the length of time the trial will take,
507
00:23:40.320 --> 00:23:42.990
the judicial officer will set the time
508
00:23:42.990 --> 00:23:45.390
and that time will be meted out in hours
509
00:23:45.390 --> 00:23:47.010
so that the parties have the opportunity
510
00:23:47.010 --> 00:23:49.770
to decide how they're going to use their time.
511
00:23:49.770 --> 00:23:52.830
The presumptive split is 50/50,
512
00:23:52.830 --> 00:23:55.590
but for good cause as shown by the parties,
513
00:23:55.590 --> 00:23:57.480
the court can vary any of that.
514
00:23:57.480 --> 00:24:01.980
But the party with the burden of proof, both sides,
515
00:24:01.980 --> 00:24:05.545
but the party with the burden of proof has to present a case
516
00:24:05.545 --> 00:24:09.680
of narrative richness to meet a burden of proof.
517
00:24:09.680 --> 00:24:12.660
And they're saying that they couldn't call
518
00:24:12.660 --> 00:24:17.610
their addiction expert or put in depositions where there's
519
00:24:17.610 --> 00:24:22.230
statements of tobacco executives that are going to ignore
520
00:24:22.230 --> 00:24:25.350
to the detriment to the defendant.
521
00:24:25.350 --> 00:24:28.320
So they're saying they couldn't put in that trial
522
00:24:28.320 --> 00:24:29.880
of narrative richness.
523
00:24:29.880 --> 00:24:31.530
Right, and with all due respect
524
00:24:31.530 --> 00:24:34.272
to my friend on the other side, I challenged the premise.
525
00:24:34.272 --> 00:24:38.154
So Dr. Prochaska, the addiction expert,
526
00:24:38.154 --> 00:24:42.922
if you read her report, she was disclosed to testify
527
00:24:42.922 --> 00:24:46.140
about addiction, advertising, and product design.
528
00:24:46.140 --> 00:24:48.930
Dr. Cummings was disclosed to talk about addiction
529
00:24:48.930 --> 00:24:50.100
and company conduct.
530
00:24:50.100 --> 00:24:52.191
Dr. Proctor, company conduct,
531
00:24:52.191 --> 00:24:54.240
advertising, and product design.
532
00:24:54.240 --> 00:24:56.610
They were too deep at every position.
533
00:24:56.610 --> 00:24:58.290
And what they said, they did not,
534
00:24:58.290 --> 00:25:00.487
they never said to Judge Sarrouf,
535
00:25:00.487 --> 00:25:03.990
"We are not calling Dr. Prochaska because of time limits."
536
00:25:03.990 --> 00:25:08.990
What they said to Judge Sarrouf, this is on page 305 to 306
537
00:25:09.210 --> 00:25:11.610
of the third volume of the record on appeal.
538
00:25:11.610 --> 00:25:15.780
They said, "Judge, there's a Daubert motion,
539
00:25:15.780 --> 00:25:17.250
that Daubert Lanigan motion
540
00:25:17.250 --> 00:25:19.950
about this Dr. Prochaska, so long as you're going
541
00:25:19.950 --> 00:25:22.440
to deny the similar Daubert motions
542
00:25:22.440 --> 00:25:23.850
about the other two witnesses,
543
00:25:23.850 --> 00:25:26.370
we don't need Dr. Prochaska, so you don't have
544
00:25:26.370 --> 00:25:29.730
to hear argument about that witness.
545
00:25:29.730 --> 00:25:32.940
They told the judge that she was duplicative.
546
00:25:32.940 --> 00:25:34.379
She was cumulative.
547
00:25:34.379 --> 00:25:36.930
And here's the waiver point
548
00:25:36.930 --> 00:25:39.000
that we were attempting to make in our brief.
549
00:25:39.000 --> 00:25:41.280
'Cause I understand, sometimes waiver is like,
550
00:25:41.280 --> 00:25:43.290
it's the refuge of last resort.
551
00:25:43.290 --> 00:25:45.300
Like there's some magic word that you didn't say.
552
00:25:45.300 --> 00:25:47.400
That's not the point we're making here.
553
00:25:47.400 --> 00:25:51.150
The point we're making here is that if the task
554
00:25:51.150 --> 00:25:53.580
of this court is to evaluate whether Judge Sarrouf
555
00:25:53.580 --> 00:25:57.810
abused his discretion, the question you have to ask is,
556
00:25:57.810 --> 00:26:02.130
was he fully informed about what the plaintiffs now say
557
00:26:02.130 --> 00:26:05.340
is the consequence of his actions?
558
00:26:05.340 --> 00:26:09.840
The only conversations that took place about this topic
559
00:26:09.840 --> 00:26:13.440
happened at the pretrial hearing where the plaintiffs said,
560
00:26:13.440 --> 00:26:14.557
as a general matter,
561
00:26:14.557 --> 00:26:18.120
"We can't possibly get this done in 28 trial hours."
562
00:26:18.120 --> 00:26:21.143
And the judge said, "I think this is not supposed to be"--
563
00:26:21.143 --> 00:26:23.400
I mean, I invite the court to read the whole--
564
00:26:23.400 --> 00:26:26.716
I'm characterizing, but please, it's a short transcript.
565
00:26:26.716 --> 00:26:28.515
Read the whole thing yourselves.
566
00:26:28.515 --> 00:26:30.390
The judge says, "I looked at what was done in Laramie.
567
00:26:30.390 --> 00:26:32.490
I'm giving you a lot more time."
568
00:26:32.490 --> 00:26:33.990
And again, contrary to what Mr. Rainer said,
569
00:26:33.990 --> 00:26:35.640
it is a lot more time that we were given.
570
00:26:35.640 --> 00:26:39.060
That was a 43 hour limit. This is a 56 hour limit.
571
00:26:39.060 --> 00:26:42.630
He said, "I'm giving you more time precisely because
572
00:26:42.630 --> 00:26:46.080
there are two defendants in this case and not one.
573
00:26:46.080 --> 00:26:48.860
There are more claims in this case than in the other case,
574
00:26:48.860 --> 00:26:50.417
so I'm granting more."
575
00:26:50.417 --> 00:26:53.091
There was no causation issue in the other case.
576
00:26:53.091 --> 00:26:54.990
That's a big deal though, right?
577
00:26:54.990 --> 00:26:57.090
I am not disputing that.
578
00:26:57.090 --> 00:27:01.290
I mean, as much as I think we both agree,
579
00:27:01.290 --> 00:27:03.248
tobacco cases are not cookie cutter.
580
00:27:03.248 --> 00:27:06.196
Every story is different, every plaintiff is different.
581
00:27:06.196 --> 00:27:11.196
But 80% of these cases is a roster of five or six,
582
00:27:11.970 --> 00:27:15.450
some combination of five or six repeat expert witnesses
583
00:27:15.450 --> 00:27:18.450
who've testified dozens, sometimes hundreds of times.
584
00:27:18.450 --> 00:27:19.710
We know what they're going to say.
585
00:27:19.710 --> 00:27:21.725
The judges know what they're going to say,
586
00:27:21.725 --> 00:27:26.725
which makes cases like this the perfect...
587
00:27:30.060 --> 00:27:31.530
These are the kinds of cases-
588
00:27:31.530 --> 00:27:33.319
Can I ask on that point?
589
00:27:33.319 --> 00:27:36.162
So you said they were too deep in every position?
590
00:27:36.162 --> 00:27:37.739
Yes.
591
00:27:37.739 --> 00:27:39.083
So were those other cases,
592
00:27:41.765 --> 00:27:44.790
did they get to do too deep or had to play
593
00:27:44.790 --> 00:27:47.278
with their starters the whole time?
594
00:27:47.278 --> 00:27:50.234
I will admit to Your Honor that I don't know
595
00:27:50.234 --> 00:27:52.380
the witness lineups off the top of my head
596
00:27:52.380 --> 00:27:53.213
in all of those cases.
597
00:27:53.213 --> 00:27:54.840
I will say, just as an officer of the court
598
00:27:54.840 --> 00:27:57.925
who has done something like, 37 of these trials,
599
00:27:57.925 --> 00:27:59.670
it is very rare.
600
00:27:59.670 --> 00:28:00.510
It's not unheard of.
601
00:28:00.510 --> 00:28:03.120
It is very rare for Dr. Proctor, Dr. Cummings,
602
00:28:03.120 --> 00:28:05.370
and Dr. Prochaska all to testify in the same case.
603
00:28:05.370 --> 00:28:07.320
Have there been such cases? Yes.
604
00:28:07.320 --> 00:28:10.170
But the reason they don't usually all testify
605
00:28:10.170 --> 00:28:12.600
is that Cummings is also an addiction expert.
606
00:28:12.600 --> 00:28:14.400
I mean Dr. Prochaska is an addiction expert.
607
00:28:14.400 --> 00:28:18.760
How about the other, the sort of incriminating depositions
608
00:28:19.800 --> 00:28:22.440
'cause in Justice Lowy's words,
609
00:28:22.440 --> 00:28:24.480
that's the sort of rich narrative.
610
00:28:24.480 --> 00:28:28.110
Did they get to do a lot of the self-inflicted wounds?
611
00:28:28.110 --> 00:28:29.640
So I have two answers to that.
612
00:28:29.640 --> 00:28:31.830
The answer is number one, they played
613
00:28:31.830 --> 00:28:35.580
three different corporate representative videos
614
00:28:35.580 --> 00:28:37.953
at this trial, which I mean,
615
00:28:39.169 --> 00:28:41.474
everybody's allowed to choose their own strategy.
616
00:28:41.474 --> 00:28:45.810
Taking Mr. Rainer at his word that they edited
617
00:28:45.810 --> 00:28:48.150
which videos they were going to play based on the fact
618
00:28:48.150 --> 00:28:49.140
that they had no time,
619
00:28:49.140 --> 00:28:50.637
which is something they never said to Judge Sarrouf
620
00:28:50.637 --> 00:28:52.770
and they never asked for, "Can we have an extra afternoon
621
00:28:52.770 --> 00:28:54.270
for these videos, which are not long?"
622
00:28:54.270 --> 00:28:56.160
But taking him at his word,
623
00:28:56.160 --> 00:29:00.090
they chose to play an hour's worth of video
624
00:29:00.090 --> 00:29:03.594
of corporate accountants reading slowly into the record,
625
00:29:03.594 --> 00:29:05.972
the various metrics to, you know,
626
00:29:05.972 --> 00:29:10.230
the two defendants financial condition
627
00:29:10.230 --> 00:29:11.790
rather than accepting,
628
00:29:11.790 --> 00:29:14.490
we offered time and again, a stipulation on net worth,
629
00:29:14.490 --> 00:29:16.290
which would've taken two minutes to read,
630
00:29:16.290 --> 00:29:18.570
but they wanted the net revenues
631
00:29:18.570 --> 00:29:20.340
and the income per day and all of these.
632
00:29:20.340 --> 00:29:23.340
So that took-- one of them was 34 minutes,
633
00:29:23.340 --> 00:29:25.080
the other one was 27 minutes.
634
00:29:25.080 --> 00:29:28.110
They played a 40-some-odd minute video
635
00:29:28.110 --> 00:29:30.426
of a Philip Morris corporate executive
636
00:29:30.426 --> 00:29:35.426
giving very, very intricate details about
637
00:29:35.613 --> 00:29:39.180
the company's consumer marketing database.
638
00:29:39.180 --> 00:29:41.190
Those are the choices that they made.
639
00:29:41.190 --> 00:29:42.387
So they didn't play Dr. Figler
640
00:29:42.387 --> 00:29:44.070
and they didn't play one or two other.
641
00:29:44.070 --> 00:29:46.950
Oh, and they played four videos.
642
00:29:46.950 --> 00:29:48.870
They played a fellow named James Morgan,
643
00:29:48.870 --> 00:29:53.040
who was the CEO of Philip Morris 30 years ago,
644
00:29:53.040 --> 00:29:55.040
talking about Marlboro Light cigarettes.
645
00:29:56.100 --> 00:29:57.150
Here's the danger.
646
00:29:57.150 --> 00:30:00.480
I'll bring it back to what we called a waiver point,
647
00:30:00.480 --> 00:30:03.093
but it's more of a notice to the judge point.
648
00:30:04.440 --> 00:30:09.060
Yes, there were witnesses, there were videos
649
00:30:09.060 --> 00:30:11.490
that were listed in the joint pretrial memorandum
650
00:30:11.490 --> 00:30:13.470
that were not used at trial.
651
00:30:13.470 --> 00:30:14.730
That is not uncommon.
652
00:30:14.730 --> 00:30:17.100
Any of us who have been in a trial know
653
00:30:17.100 --> 00:30:18.754
that that is not uncommon.
654
00:30:18.754 --> 00:30:20.823
Time limits were not.
655
00:30:22.170 --> 00:30:25.110
A smart trial, a cautious trial lawyer-
656
00:30:25.110 --> 00:30:26.610
Right. So I understand your point.
657
00:30:26.610 --> 00:30:29.058
I mean, trial is all about making strategic decisions.
658
00:30:29.058 --> 00:30:33.450
And it does seem to me that you and your opposing counsel
659
00:30:33.450 --> 00:30:36.510
have what I call "a tale of two trials."
660
00:30:36.510 --> 00:30:38.550
So we'll have to go to the transcript
661
00:30:38.550 --> 00:30:40.410
and figure out which is which.
662
00:30:40.410 --> 00:30:44.160
My question to you is, do we have a need?
663
00:30:44.160 --> 00:30:46.980
Is there a need to issue some guidance
664
00:30:46.980 --> 00:30:49.233
to trial judges on time limits?
665
00:30:50.220 --> 00:30:51.152
Yes.
666
00:30:51.152 --> 00:30:56.152
I mean, I won't speculate as to why I'm standing here today
667
00:30:56.430 --> 00:31:00.240
and not in the intermediate court in Boston right now,
668
00:31:00.240 --> 00:31:02.250
but I suspect part of it might just be
669
00:31:02.250 --> 00:31:03.690
that we tried this case next door,
670
00:31:03.690 --> 00:31:05.788
so it's thematic for the day.
671
00:31:05.788 --> 00:31:08.153
I don't think that's why we're here.
672
00:31:08.153 --> 00:31:10.003
Perhaps, that's what I'm saying.
673
00:31:10.003 --> 00:31:13.140
Perhaps we are here this morning because
674
00:31:13.140 --> 00:31:16.290
the only case law in this commonwealth on this topic,
675
00:31:16.290 --> 00:31:19.770
and it is sparse case law, comes from the court of appeal.
676
00:31:19.770 --> 00:31:23.390
I think there are a lot of judges who are trying to...
677
00:31:24.450 --> 00:31:27.060
There's a judge shortage here in the commonwealth.
678
00:31:27.060 --> 00:31:29.220
There are crowded dockets here.
679
00:31:29.220 --> 00:31:31.560
I mean, the tobacco cases alone
680
00:31:31.560 --> 00:31:35.400
are clogging up the dockets of every county in the state.
681
00:31:35.400 --> 00:31:36.987
And there are judges who are trying-
682
00:31:36.987 --> 00:31:37.830
Okay, so there's a need for guidance.
683
00:31:37.830 --> 00:31:39.120
What would you suggest it be?
684
00:31:39.120 --> 00:31:42.510
So I would suggest, I don't mind the ABA standard
685
00:31:42.510 --> 00:31:44.730
that Mr. Rainer cited in his brief.
686
00:31:44.730 --> 00:31:49.140
I would also suggest that the court look at rule 43.1
687
00:31:49.140 --> 00:31:51.660
from the District of Massachusetts and look at,
688
00:31:51.660 --> 00:31:53.760
and again, this is another mea culpa apology,
689
00:31:53.760 --> 00:31:56.610
I didn't discover this until two days ago.
690
00:31:56.610 --> 00:32:00.300
There's a report that was written in 1991,
691
00:32:00.300 --> 00:32:04.735
Your Honor's father was on the commission that studied
692
00:32:04.735 --> 00:32:09.060
ways to eliminate delay in the federal trial court
693
00:32:09.060 --> 00:32:10.830
that recommended...
694
00:32:10.830 --> 00:32:12.480
It goes into some detail.
695
00:32:12.480 --> 00:32:14.430
The reporter was Arthur Miller.
696
00:32:14.430 --> 00:32:17.290
And it goes into some detail about why
697
00:32:18.475 --> 00:32:22.050
trial time limits are good
698
00:32:22.050 --> 00:32:24.510
and how they should be implemented.
699
00:32:24.510 --> 00:32:26.637
And what the federal rule says is,
700
00:32:26.637 --> 00:32:30.510
first, the presumption is, ask the parties to agree.
701
00:32:30.510 --> 00:32:32.520
If the parties can agree, the judge,
702
00:32:32.520 --> 00:32:33.960
after consultation with the parties,
703
00:32:33.960 --> 00:32:36.540
which I suggest, respectfully, in this case,
704
00:32:36.540 --> 00:32:37.530
is what happened.
705
00:32:37.530 --> 00:32:39.000
It was consultation both in writing
706
00:32:39.000 --> 00:32:40.380
and in two separate hearings.
707
00:32:40.380 --> 00:32:42.150
And in between the two hearings
708
00:32:42.150 --> 00:32:44.010
was when the joint pretrial motion was filed.
709
00:32:44.010 --> 00:32:46.830
So the judge had all of that before he made a final ruling
710
00:32:46.830 --> 00:32:50.070
in consultation with the parties, set an amount of time.
711
00:32:50.070 --> 00:32:53.250
Set it in minutes, not by witness, but by trial,
712
00:32:53.250 --> 00:32:57.180
which the authorities say gives the parties
713
00:32:57.180 --> 00:32:59.640
the opportunity to make those kinds of strategic choices
714
00:32:59.640 --> 00:33:01.410
and use their time wisely.
715
00:33:01.410 --> 00:33:04.800
And then the sort of second half of that rule says,
716
00:33:04.800 --> 00:33:06.690
here's what you do if a party comes to you
717
00:33:06.690 --> 00:33:09.540
and asks to enlarge the allotment.
718
00:33:09.540 --> 00:33:11.820
And the rule presupposes that
719
00:33:11.820 --> 00:33:14.850
that ask is gonna come mid trial.
720
00:33:14.850 --> 00:33:18.150
And Judge Sarrouf, page 37, page 42,
721
00:33:18.150 --> 00:33:20.040
he said, "I'd entertain it," pretrial.
722
00:33:20.040 --> 00:33:21.510
It never happened in this trial.
723
00:33:21.510 --> 00:33:23.520
And what the rule says is
724
00:33:23.520 --> 00:33:26.220
a judge can enlarge those time limits
725
00:33:26.220 --> 00:33:30.600
for good cause shown taking into account, number one,
726
00:33:30.600 --> 00:33:34.170
whether the party who's making the ask has actually used
727
00:33:34.170 --> 00:33:36.570
his or her time efficiently so far,
728
00:33:36.570 --> 00:33:39.930
which is an inquiry that Judge Sarrouf
729
00:33:39.930 --> 00:33:41.460
was never given the opportunity to make
730
00:33:41.460 --> 00:33:43.260
because the ask was never made during trial.
731
00:33:43.260 --> 00:33:45.770
Well that dovetails into what my concern is,
732
00:33:45.770 --> 00:33:48.840
and this is a really big concern of mine.
733
00:33:48.840 --> 00:33:50.387
That I'm happy that you're asking then.
734
00:33:50.387 --> 00:33:54.180
So, if we say these, whether it's 43.1,
735
00:33:54.180 --> 00:33:57.510
we say the ABA guidelines, it seems that
736
00:33:57.510 --> 00:33:59.207
that may not be licensed to say
737
00:33:59.207 --> 00:34:02.160
we're gonna impose time limits everywhere,
738
00:34:02.160 --> 00:34:04.140
not just in particular kinds of cases.
739
00:34:04.140 --> 00:34:06.420
And I know you might say that it's not gonna
740
00:34:06.420 --> 00:34:09.750
be 10 to midnight and this is the sky is going to fall.
741
00:34:09.750 --> 00:34:11.858
But the concern that I have is
742
00:34:11.858 --> 00:34:14.130
you have situations where you mentioned
743
00:34:14.130 --> 00:34:15.330
with you and Attorney Rainer,
744
00:34:15.330 --> 00:34:17.250
you've had lots of these cases.
745
00:34:17.250 --> 00:34:19.680
Why do good lawyers need time restraints?
746
00:34:19.680 --> 00:34:21.840
I mean, you know these cases, you know the experts,
747
00:34:21.840 --> 00:34:23.970
you know the type of people that are gonna testify.
748
00:34:23.970 --> 00:34:25.920
You just said, you know what they're going to say.
749
00:34:25.920 --> 00:34:28.470
So why should judges do this at all
750
00:34:28.470 --> 00:34:30.690
except in an exceptional case?
751
00:34:30.690 --> 00:34:33.360
And I'm gonna preface that with one other thing.
752
00:34:33.360 --> 00:34:36.663
If Attorney Rainer stands up here in response to
753
00:34:36.663 --> 00:34:39.457
Justice Wendlandt's question and said,
754
00:34:39.457 --> 00:34:41.490
"I needed three more days."
755
00:34:41.490 --> 00:34:43.470
He's a good lawyer. He knows he needs three more days.
756
00:34:43.470 --> 00:34:45.180
And if there were none of these shot clock things,
757
00:34:45.180 --> 00:34:47.376
he would've put the three days.
758
00:34:47.376 --> 00:34:48.660
He knows how to try a case. You know how to try a case.
759
00:34:48.660 --> 00:34:50.310
You know when you're losing your witnesses,
760
00:34:50.310 --> 00:34:52.020
you know when you're losing your jury.
761
00:34:52.020 --> 00:34:54.570
That's part of what we do at trial.
762
00:34:54.570 --> 00:34:57.450
I hear all of that. So I have a few answers.
763
00:34:57.450 --> 00:34:59.970
Number one, he could have had them if he asked.
764
00:34:59.970 --> 00:35:03.511
This trial took eight full days and five half days.
765
00:35:03.511 --> 00:35:07.020
The only two times that the plaintiffs asked
766
00:35:07.020 --> 00:35:09.060
for a specific piece of extra time
767
00:35:09.060 --> 00:35:11.520
for a specific purpose, the judge said yes.
768
00:35:11.520 --> 00:35:13.207
They asked ex ante, they said,
769
00:35:13.207 --> 00:35:17.040
"Can the half day on October 29th be a full day
770
00:35:17.040 --> 00:35:19.200
because we wanna make sure we finish Dr. Proctor?"
771
00:35:19.200 --> 00:35:22.320
And the judge said yes, that added two hours of trial time.
772
00:35:22.320 --> 00:35:24.240
The next time they made such a request was
773
00:35:24.240 --> 00:35:26.820
on the very last day of trial when Mr. Rosenblum was told
774
00:35:26.820 --> 00:35:28.350
you have an hour for closing argument.
775
00:35:28.350 --> 00:35:29.997
And he said, "I really need an hour and 10,"
776
00:35:29.997 --> 00:35:31.170
and the judge said yes.
777
00:35:31.170 --> 00:35:32.940
So if he really needed those three days
778
00:35:32.940 --> 00:35:35.460
to do something identifiable, he could have asked
779
00:35:35.460 --> 00:35:37.883
and my suspicion is he would've gotten at least some of it.
780
00:35:37.883 --> 00:35:40.050
And it wouldn't have extended the deadline.
781
00:35:40.050 --> 00:35:41.760
Again-
But I have a lot-
782
00:35:41.760 --> 00:35:45.540
There's some atmospherics that the judge is insistent.
783
00:35:45.540 --> 00:35:47.490
He set a drop dead date
784
00:35:47.490 --> 00:35:50.820
and he's keeping meticulous track of time.
785
00:35:50.820 --> 00:35:55.820
You've used 53.5 minutes, meaning
786
00:35:56.520 --> 00:36:00.948
he's not that susceptible to giving out additions, right?
787
00:36:00.948 --> 00:36:02.730
I mean, I haven't read the whole transcript.
788
00:36:02.730 --> 00:36:06.720
When we do, are we gonna find a lot of that
789
00:36:06.720 --> 00:36:11.100
where you've used up, you know, you've used up 33 minutes,
790
00:36:11.100 --> 00:36:12.360
you've got two seconds left.
791
00:36:12.360 --> 00:36:15.445
Continuing the theme of praising one another.
792
00:36:15.445 --> 00:36:17.220
It was very effective.
793
00:36:17.220 --> 00:36:19.284
Brief writing in the plaintiff's opening brief
794
00:36:19.284 --> 00:36:21.150
when they had that long block quote
795
00:36:21.150 --> 00:36:22.620
and they said it looks like...
796
00:36:22.620 --> 00:36:25.866
That's, it's like, thousands of pages worth of transcript
797
00:36:25.866 --> 00:36:28.530
where they found the only instances of that happening.
798
00:36:28.530 --> 00:36:31.590
This was not a preoccupation of the trial.
799
00:36:31.590 --> 00:36:34.456
But here's my larger answer to your question, Your Honor,
800
00:36:34.456 --> 00:36:36.630
in addition to the fact that I think they could have gotten
801
00:36:36.630 --> 00:36:38.790
what they needed if they'd asked.
802
00:36:38.790 --> 00:36:41.835
There have been, to my knowledge, and this is approximate,
803
00:36:41.835 --> 00:36:43.917
I think I'm getting it right.
804
00:36:43.917 --> 00:36:47.010
There have been 16 of these trials,
805
00:36:47.010 --> 00:36:49.770
these tobacco personal injury and wrongful death trials
806
00:36:49.770 --> 00:36:50.970
that have been tried in this commonwealth
807
00:36:50.970 --> 00:36:52.590
in the last five years.
808
00:36:52.590 --> 00:36:55.891
Seven of them have had imposed time limits like this one,
809
00:36:55.891 --> 00:36:58.387
nine of them have not.
810
00:36:58.387 --> 00:37:03.387
I don't know about hours, but just in terms of trial days,
811
00:37:03.690 --> 00:37:06.270
the average for the ones with time limits,
812
00:37:06.270 --> 00:37:07.590
they went 12 trial days.
813
00:37:07.590 --> 00:37:10.380
You know, with varying mixes of full and half.
814
00:37:10.380 --> 00:37:13.680
The average for the ones with not, they went 14.
815
00:37:13.680 --> 00:37:16.080
It's not like these cases, organically,
816
00:37:16.080 --> 00:37:19.230
would be three months long,
817
00:37:19.230 --> 00:37:21.510
but the judge cut it down to three weeks.
818
00:37:21.510 --> 00:37:23.550
It's for shaving a little bit.
819
00:37:23.550 --> 00:37:26.070
And every two days you save, that's a slip and fall case
820
00:37:26.070 --> 00:37:28.440
that can be tried that otherwise wouldn't have been tried
821
00:37:28.440 --> 00:37:29.760
in that session.
822
00:37:29.760 --> 00:37:32.010
I don't know that that necessarily helps you
823
00:37:32.010 --> 00:37:33.540
when you give me those numbers
824
00:37:33.540 --> 00:37:35.430
because it would seem to militate in favor.
825
00:37:35.430 --> 00:37:36.570
Why do we need this?
826
00:37:36.570 --> 00:37:38.640
Because in the aggregate.
827
00:37:38.640 --> 00:37:41.760
So here's my point. It's not like it has no effect.
828
00:37:41.760 --> 00:37:43.530
And I think the most telling part of the briefing
829
00:37:43.530 --> 00:37:45.450
in this case is where in the reply brief,
830
00:37:45.450 --> 00:37:48.120
the plaintiff says we can't possibly articulate
831
00:37:48.120 --> 00:37:51.360
what the prejudice is, because what's really going on is
832
00:37:51.360 --> 00:37:52.680
that we're nipping and tucking.
833
00:37:52.680 --> 00:37:54.240
We're editing here, we're editing there,
834
00:37:54.240 --> 00:37:55.320
we're not asking a question here,
835
00:37:55.320 --> 00:37:56.820
we're not asking a question there.
836
00:37:56.820 --> 00:38:00.840
And my contention is, if the only consequence
837
00:38:00.840 --> 00:38:05.460
to a time limit is that counsel is forced to edit,
838
00:38:05.460 --> 00:38:08.040
then that is, per se, a reasonable time limit.
839
00:38:08.040 --> 00:38:09.330
That is not an abusive stretch.
840
00:38:09.330 --> 00:38:11.250
But don't you get a time limit when you have
841
00:38:11.250 --> 00:38:13.710
a pretrial conference, the final final?
842
00:38:13.710 --> 00:38:16.770
And the judge gets an idea from the lawyers
843
00:38:16.770 --> 00:38:18.660
and tells the jury we're gonna finish
844
00:38:18.660 --> 00:38:20.190
on such and such a date.
845
00:38:20.190 --> 00:38:21.730
And then during the trial,
846
00:38:21.730 --> 00:38:25.537
the judge sees the jury completely asleep and says,
847
00:38:25.537 --> 00:38:26.940
"Move on."
848
00:38:26.940 --> 00:38:28.805
That happens all the time.
849
00:38:28.805 --> 00:38:30.079
It happens all the time.
850
00:38:30.079 --> 00:38:30.912
I wanna make sure,
851
00:38:30.912 --> 00:38:33.210
and I don't think there's any confusion here,
852
00:38:33.210 --> 00:38:34.043
this side of the-
853
00:38:34.043 --> 00:38:36.000
And to the peril of the lawyer
854
00:38:36.000 --> 00:38:38.820
who's making the jury go to sleep.
855
00:38:38.820 --> 00:38:40.650
There's a lot of ways to skin the cat.
856
00:38:40.650 --> 00:38:44.220
This side of the V is not advocating
857
00:38:44.220 --> 00:38:45.720
for mandatory time limits.
858
00:38:45.720 --> 00:38:48.150
We are not saying that it is an abuse of discretion
859
00:38:48.150 --> 00:38:51.570
to use other means to move a trial along.
860
00:38:51.570 --> 00:38:53.250
I think there are a lot of ways to do it.
861
00:38:53.250 --> 00:38:54.450
There are benefits.
862
00:38:54.450 --> 00:38:55.950
I know I'm over my--
863
00:38:55.950 --> 00:38:57.780
talking about time limits, I'm over my time--
864
00:38:57.780 --> 00:39:00.378
but if I can just read briefly.
865
00:39:00.378 --> 00:39:03.780
We cited a case called Laro from the Federal District Court.
866
00:39:03.780 --> 00:39:06.210
This is Judge Young who has been a proponent of time limits
867
00:39:06.210 --> 00:39:08.670
for, I mean, as long as I've been aware of the existence
868
00:39:08.670 --> 00:39:12.067
of Judge Young, where he says the following, he says,
869
00:39:12.067 --> 00:39:14.850
"Time limits are an extraordinarily valuable
870
00:39:14.850 --> 00:39:18.780
focusing mechanism, which promote cleaner trials directed
871
00:39:18.780 --> 00:39:21.060
to the matters genuinely in dispute,
872
00:39:21.060 --> 00:39:23.760
tend to eliminate those perennial redundancies,
873
00:39:23.760 --> 00:39:25.980
which so frustrate and madden juries,
874
00:39:25.980 --> 00:39:29.136
and constitute perhaps the single most valuable technique
875
00:39:29.136 --> 00:39:31.380
of available to a trial judge
876
00:39:31.380 --> 00:39:34.110
for scheduling a busy trial session."
877
00:39:34.110 --> 00:39:36.840
You can cut witnesses off,
878
00:39:36.840 --> 00:39:39.630
but if you have a set of cases like this
879
00:39:39.630 --> 00:39:40.740
where there's some predictability,
880
00:39:40.740 --> 00:39:43.590
we have a basic sense of what it's gonna be,
881
00:39:43.590 --> 00:39:46.455
having a date certain, being able to tell jurors,
882
00:39:46.455 --> 00:39:48.870
being able to tell prospective jurors
883
00:39:48.870 --> 00:39:49.980
there's a date certain.
884
00:39:49.980 --> 00:39:52.590
So somebody who's got a vacation scheduled in week five,
885
00:39:52.590 --> 00:39:54.450
we can say, "No, you can serve,"
886
00:39:54.450 --> 00:39:56.250
as opposed to, "Maybe you can serve."
887
00:39:56.250 --> 00:39:58.731
So you don't have to summon double the jurors.
888
00:39:58.731 --> 00:40:02.430
We summon like, 150 jurors to get eight people
889
00:40:02.430 --> 00:40:06.090
in this trial here during COVID
890
00:40:06.090 --> 00:40:07.500
because everybody's got hardships
891
00:40:07.500 --> 00:40:09.480
and some people hate tobacco companies
892
00:40:09.480 --> 00:40:10.470
and some people hate smokers.
893
00:40:10.470 --> 00:40:12.750
It's hard to get a jury.
894
00:40:12.750 --> 00:40:14.470
If this were open-ended, if we didn't know
895
00:40:14.470 --> 00:40:16.860
if it was gonna go six weeks long,
896
00:40:16.860 --> 00:40:19.290
we'd have had to call 300 jurors
897
00:40:19.290 --> 00:40:20.470
during COVID to try to get this done.
898
00:40:20.470 --> 00:40:21.303
Thank you.