Rainier: May it please the court.
I'm Andrew Rainer.
I'm the litigation director
of the Public Health Advocacy Institute in Boston,
which is a nonprofit organization
committed to litigation affecting public health.
I'm here today on behalf of the family of Thomas Babalatos
to ask you to reverse a judgment that was infected
by unnecessary and unfair time limits.
The time limits were unfair in at least three respects.
First of all, that they were set
without consideration of either party's submission
as to how much time they needed to try their case.
Secondly, the limits did not,
as required by the Chandler case,
allow the plaintiff to present her entire case.
And third, the division of time between the plaintiff
and the defendants did not take account
of the burdens of proof faced by those parties.
Taking these one at a time-
Wendlandt: Counsel, how many days of trial did you get?
-: We had a combination of half days
and whole days.
It was measured only ever in minutes, Your Honor.
Wendlandt: Was it three and a half weeks?
-: It was three and a half weeks
only if one counts days that the court did not sit.
It was not three and a half weeks.
Wendlandt: How many days was the trial held?
Was it 27, 28? What was it?
Rainer: Your Honor-
-: You're saying you didn't have enough time, right?
You're complaining about the time limits.
I'm surprised you don't know how much time you actually had.
-: Well, we had 28 hours, Your Honor,
and it was meted out in days and counted by the minute.
Wendlandt: Okay.
And how much time, if any, did you have left over
of the 28 hours that you were allotted?
-: 20 minutes, and it was only because we needed to call...
The trial judge told us we could only call
a particular witness as a rebuttal witness.
So we had to save time for
a medical causation rebuttal witness who was called last.
And the fact that we didn't use those 20 minutes,
bares no relationship to the testimony
that we asked the judge to be able to present,
which would've required
at least three additional trial days.
-: What did you wanna present
that you didn't get a chance to present?
-: So I've outlined on-- excuse me, Your Honor--
on pages 33 to 35 of our opening brief,
we detailed the witnesses that we did not get to present.
I'll give you two examples.
The first was a videotaped deposition
of a representative of defendant
R.J. Reynolds Tobacco Company,
who testifies in that deposition, among other things,
that the company expected people to rely on the statements
that they made that were misrepresentations
concerning the dangers of cigarettes.
-: And so dealing with that one piece of evidence
that you were not able to put in, did you ask
the trial judge for time to put that specific evidence in?
Rainer: Yes.
-: Okay, and that request was denied?
-: Let me address, if I may,
let me address the timing of all this.
-: Before you do the timing, can you answer my question?
Where in the record did you request to play
that particular piece of evidence
and where in the record was it denied?
-: You will find, Your Honor,
in the transcript of October 1st on page
in the third record, in the third volume
of our trial record at pages 37 to 43.
And again, in the hearing on October 8th,
you will find it in that same volume at pages 237 to 248
where we laid out exactly
what we were not going to have time for.
It was also laid out in our pretrial memorandum,
which Your Honors will find in volume one of the record.
Lowy: It seems like-
Wendlandt: Sorry, go ahead please.
-: It seems like your reply brief and apply brief
have significant differences as to what happened,
and in particular, whether or not, and how many times
you actually asked for additional time.
-: So, I've had the pleasure of opposing Mr. Chesin
many times and I have the highest regard for him,
but he did not accurately represent,
Your Honor, the situation.
The trial judge was not flexible.
We asked at the first three hearings,
there was a hearing on October 1st, which I've mentioned,
where the judge announced,
before he had heard anything from either of us,
about how much time we needed.
He decided that day that we were gonna have 1,575 minutes
and that the trial was gonna end on November 9th.
-: That was in response to a motion filed by the defendant.
Rainer: It was in response to a motion filed
by the defendant, which did not suggest any particular time.
-: This wasn't sua sponte by the judge.
He was responding to a motion, right?
-: Well, what was sua sponte, Your Honor,
was how Your Honor is correct.
-: Okay.
-: But what was sua sponte, Your Honor,
was the conversation that he had had with another judge
who had tried another case
and his understanding of how much time
that other case had taken was mistaken.
He says on the record,
the other case, the parties, each had 1,000 minutes.
I'm giving you more time.
That's not what happened.
The parties had the same amount of time in that case
that we had in our case,
and we had three defendants and five causes of action,
whereas the prior case, the Laramie case, had one defendant
and two causes of action.
So this is not...
Tobacco cases are not one-size-fits-all.
The defendant's site, for example, a bench trial case
where they're comparing a trial of a 93A count
before a judge and says that's an analogy
for what we should be doing in a jury trial
with three defendants and five causes of action.
I actually went through and tried to count
how many elements we'd have to prove-
-: You agree this is a matter the judge's discretion,
we have to find abuse of discretion, correct?
Rainer: Yes, Your Honor.
-: And is it your position that
had the judge complied with something that's similar
to the ABA civil trial practice rules
and gone through the analysis, he would've been fine?
-: Yes, Your Honor. He did not.
The one other important part-
-: Because that would take out the arbitrariness of his,
as you say, his ruling.
-: It was arbitrary.
And Your Honor, the Chandler case talks about a party
being able to present their entire case.
If we go to a judge and say, as we did,
in order to present this case-
-: Well, you've been a party to cases
where the judges said from the bench, "Move on," right?
Rainer: Yes, Your Honor.
-: And that's perfectly fine. -: Agreed.
I mean, if we are to talk about,
I mean, on a strictly theoretical level,
I respectfully submit, justice is never delivered
by minutes on a chess clock.
Justice is delivered by judges who allow the parties
who take input onto how much time they need.
Doesn't necessarily...
We've had since this trial, two cases,
which, again, I cited in my reply brief--
where the judges asked us, "How much time do you need?"
I told them how much time I needed.
They gave me not that much,
but gave me enough time to make the case.
And we had no trouble complying
with time limits in either of those cases.
-: The cases you cite where we find abuse of discretion
are extreme cases. Rainer: I agree.
-: The Hawaii case, you know, the appeals court case
where judges are cramming, you know,
multi-week trials into, you know, two or three days.
This would be the first time
we've done something like this, right?
Where you have a pretty long trial,
almost a month long trial.
-: Your Honor, may I just point out,
the 28 hours is five trial days.
I have never-- I've tried many of these cases--
I've never-
-: All right. Could remind me, was it 28 hours each or 28?
-: Yes. So my trial time was five trial days.
Kafker: So a two week trial.
-: Yes, Your Honor.
-: But again, the cases you've got are extreme cases.
We would be really changing the case law if we find this
to be an abuse of discretion, wouldn't we?
-: Well, Your Honor, I think that the case could turn
on the point I began with,
that the judge made a decision before he had heard from me,
a word from me, about how long I needed.
-: Is that really the problem?
Because what if the judge had,
without hearing a word from you, said you have a month.
Would you still be complaining
about time limits being arbitrary?
-: Well, while I certainly understand the point,
the point is that we didn't have enough time.
We didn't get close to what we said we needed.
-: There's some combination of your lack of input
and the actual time allotted.
So it's not just the lack of input.
-: Yes. And the two elements.
I'm respectfully asking the court to give guidance
to the trial courts no matter what else you do here
that says you've gotta take input,
you've gotta take account of the burdens of proof.
And again, I want to note
that all of the other tobacco cases
where time limits have been imposed,
plaintiffs have been given more time because we literally,
and I specifically asked the court to read
The Trouble with Time Limits law review article,
which includes empirical studies about
other trials throughout the country.
And it says unequivocally
is the plaintiffs simply need more time.
A defendant can win the case.
They give the analogy of a builder.
They say a builder can build the house
and if the party that wants to wreck the house,
which is not a complete analogy,
but if you assume that, all the defendant has to do
is disprove one element in order to win.
There's no way the builder can keep up with the wrecker.
The time cannot be evenly divided
and none of the other cases have done that.
-: Attorney Rainer, can we get to what the responsibility
of the attorney who is objecting to the time limits?
What's that responsibility?
And what I'm going to ask you about is,
is there a requirement for an offer of proof?
Does the Mass Guide to Evidence 611 A
that allows the judge to control the mode
and order or presentation of witness infuse
enough discretion here,
and if it doesn't, why not?
Why not an offer of proof if the problem is
that there's evidence that's being excluded
that you want in?
-: So, the most important part of this,
and I wanted to say this earlier.
The most important part of your question,
Your Honor, is timing.
And I'll tell you why.
Because if you wait until the jury is impaneled
and the jury has been told, "You can expect you are going
to be done by such and such a date,"
no one, none of the litigants,
no judge wants to vary from that.
So the time for input on this has to be before you start,
before you tell the jury that magic number.
So, all of the points that were made about,
we didn't ask, we didn't ask close to the end of the trial,
we didn't ask, a responsible lawyer is not going
to be placed in a position of going through,
you know, two weeks of trial.
In fact, we said that at the hearing on October 8th,
we said to the judge, "Judge, we can't be in the position
where we're in the middle of a witness.
And you say, 'Okay, that's it. We're done now.' "
The time- -: He didn't do that.
He didn't do that. He never did that.
-: Of course not.
And my point is, the time that this judgment
needs to be made is exactly at those pretrial hearings.
The parties under all of the trial court rules
are required to give estimates of how much time they need
and who their witnesses are going to be.
And that's the moment when this decision should be made.
And so, the offer of proof, you never even get to that,
because once the judge has impaneled the jury and said,
"This is when you're going to be done."
Nobody wants to be in the position then of saying-
-: Mr. Rainer, at that point, it's appropriate for the judge,
correct me if I'm wrong, to take into account
his or her experience with similar cases
and perhaps colleagues' experience with similar cases,
to say whether or not the time limits proposed
by the parties are reasonable or unreasonable.
-: Yes.
but the point I had tried to make, Your Honor, earlier
to Your Honor earlier about that
is this isn't one-size-fits-all for tobacco cases.
-: So, if I have a case and it's a hand-to-hand drug sale,
I kind of have in my mind
how long a hand-to-hand drug sale should take place.
I have in my mind how long a slip and fall
in a supermarket should take place, correct?
-: Absolutely, Your Honor.
-: I get your point about one-size-fit-all,
and have an input from the lawyers
to say why this should deviate, perhaps,
from what the judge's heartland is.
-: Well, and I mean, perhaps the easiest distinction
in this case is this was a case where
there was an actual dispute about medical causation
and many of the tobacco cases,
medical causation isn't even disputed.
In this case, there were three witnesses
that were called on that subject alone.
And that's often...
Was certainly not true in the Laramie case,
nor frankly, in almost any of the other cases
that have been discussed.
-: So you had 28 hours and you didn't use 20 minutes.
How much time would've been reasonable?
-: Three more trial days, another 15 hours, Your Honor.
-: 15 hours.
So the difference between 28 plus 15 and 28
is what you're saying is an abuse of discretion?
-: Absolutely.
And I'm saying it precisely because
there was specific evidence,
which again I've tried to outline,
that we couldn't present.
There was evidence that we have presented in other trials
that, from my perspective, has made a difference.
-: There were the two videos and what was the last thing?
-: There was a very important expert witness, Dr. Prochaska,
-: The addiction expert didn't overlap at all?
-: No, there is an overlap.
What we had to do, Your Honor, is we had to use
one of our other experts to cover topics
that that expert would've covered.
And we couldn't cover them all with the other expert.
-: 'Cause he's gonna stand up
and say there's a lot of duplication, right?
You've got two videos in your addiction expert
where what you weren't allowed to do,
but you get that testimony in through others, right?
May not be as effective or comprehensive,
but you do cover those topics with other witnesses, right?
-: In part, Your Honor, yes. In part.
But I mean, to win a case like this,
we need to persuade the jury, for example,
that they were negligently marketing cigarettes to children.
To have an expert who speaks precisely to
how children are impacted by advertising is very important.
-: And I get that 'cause we'd just written on that.
But so, the other witness who was allowed to testify,
I take it they did talk about marketing to children.
I have not read this entire transcript.
Rainer: That's true, Your Honor.
-: Did they talk about marketing to children?
Rainer: They did, Your Honor.
-: How susceptible they are and how Joe Camel
and that kind of stuff is...
Are we gonna find that when we read through this?
-: Yes, Your Honor. But my point is-
-: Is that what trial judges have to do, right?
They have to decide how much duplication
is going to be allowed, right?
-: Your Honor, had we had that conversation
before the judge decided how much time
he was going to give us,
I don't actually think we would've brought the appeal.
-: I think I need to ask you sort of
an uncomfortable question, which is your suggestion
that the judge is making these determinations
based on his own personal schedule
and whether or not that's really fair.
And I want you to have a chance to answer the question,
but he has a conference coming up,
a superior court conference coming up.
That is the November 11th holiday.
He's clearly working at night, in the morning,
to try and move things along.
And then he provides some extra time
when he recognizes November 11th.
And one of the reasons you say
this is an abuse of discretion,
that's why I think I need to ask you the question,
is because you contend that it was, it, the schedule,
was driven by his personal schedule.
Do you really think that's true?
-: Your Honor, he said so at the hearing on October 1st,
and I asked him about it again
at the hearing on October 8th.
I specifically said, "I understand Your Honor needs
to be gone to Memphis on November 17th."
I mean, it was specifically discussed
as part of the decision about...
I mean, and he says, Your Honor, he says,
"I'm flexible about not my deadline date."
He said explicitly that
that was one thing that he would not vary from.
And I mean, Judge Sarrouf worked extremely hard
during the trial.
I would not stand here and suggest for a minute
that there was any shirking.
I'm not. I am absolutely not saying that.
He worked really hard to get the trial done
as we talked about.
But I mean, is it good justice to be getting rulings
on evidence in the middle of the night?
Is that good for anyone? Is that a good quality of justice?
I mean, to me, it's in the league
with should justice be delivered by the minute?
It shouldn't be. It shouldn't be crammed in.
And so I wanna be completely clear.
I'm not suggesting there was anything,
that Judge Sarrouf didn't work hard to make this done,
but I am suggesting that the whole date
was driven by what he told us on the first day
and the fact that he wouldn't vary from it.
The only variance, as Your Honor correctly points out,
is he realized we weren't gonna have Veteran's Day,
so he moved the closings to November 15th.
That was the entire change he made
from day one until the end of the trial.
Wendlandt: Okay, thank you very much.
-: Thank you very much, Your Honors.
-: Attorney Chesin.
Chesin: Good morning. And may it please the court.
Scott Chesin from Shook Hardy for the appellees.
-: How can you tell the plaintiff how much time
they need to put on their case?
I don't understand how you can argue
that there was plenty of time.
-: Because we weren't making this decision in a vacuum.
With all due respect to my friend on the other side,
the judge did not walk in fresh and sua sponte say,
"Here's how many minutes
I'm going to give you," out of the blue.
This was briefed where the, you know,
the defendants filed a motion said,
"We want time limits on this case because
otherwise they tend to run long."
Here's a body of evidence of other cases very similar
to this one, involving the same claims,
the same parties, many of the same witnesses.
Here's how long they took.
The plaintiff filed a 10 page response.
It's on page 66 of volume one of the record on appeal,
in which they said, "We don't think there should be
any time limits at all.
Here are the witnesses we plan to call."
The judge, after reading that, spoke with Judge Davis,
who had just had a similar trial,
which, contrary to what Mr. Rainer said,
did not last the same amount of time as this one.
It lasted 43 hours as opposed to 56 hours.
And Judge Sarrouf walked in and he said,
"Here's my inclination.
After reading your papers,
after examining what you say you are going to do,
after talking with two colleagues, Judge Davis
and Judge Wall who have tried similar cases,
my inclination is this doesn't need
to be a month long trial.
I think about 1500 minutes should cover what you need.
Now let's talk about it."
And then we talked about it.
We had a hearing on the 1st, we had a hearing on the 8th.
Mr. Rainer made all of these points to Judge Sarrouf.
We made points in opposition.
The judge made various adjustments
to his initial inclination.
And then, and I think this is key, and I apologize
because I don't think this comes out clearly in the briefs,
but, you know, when you prepare for argument,
you reread things.
Page 37 of volume three on the record of appeal,
which is what Mr. Rainer just referenced,
the judge said, "I can't be flexible on the end date,
but I'm building in a lot of half days to this.
You want to turn a half day into a
full day, just let me know, I'll be flexible."
On page 42, he said, "If there's ever a day
where we're ending at 4 and you need to go till 4:30,
let me know."
And the point that we tried to make in the brief is
that at no point during this trial,
this three and a half week trial,
did the plaintiff ever stand up and say,
"Judge, there's a video we really need to play
and we haven't had an opportunity to play it.
Tomorrow's supposed to be a half day,
can you clear your afternoon calendar
and we'll play that video that day?"
-: Is it your position that judge complied
with the ABA standards?
-: I think the judge-
-: The second ABA standards is voluntary self-imposed limits.
Suppose we don't adopt that,
but the first standard is made informed analysis,
plan for trial, and second, an opportunity to be heard.
-: I think if the rule in this commonwealth were the same
as the ABA standard, I think Judge Sarrouf followed it.
If the rule in this commonwealth were the same rule
that applies in the federal district courts
in Massachusetts, that's local rule 43.1.
Like what Judge Sarrouf was doing,
and what Judge Davis and Judge Breeker
and all of the other judges,
there have been seven different superior court judges
who have imposed similar time limits on these cases
in the last five years.
What they've effectively done is they are following
the procedure that is laid out in local rule 43.1,
which has been part of the practice
of the federal district courts in Massachusetts
for 30 years, which says in the absence
of a voluntary agreement among the parties about
the length of time the trial will take,
the judicial officer will set the time
and that time will be meted out in hours
so that the parties have the opportunity
to decide how they're going to use their time.
The presumptive split is 50/50,
but for good cause as shown by the parties,
the court can vary any of that.
-: But the party with the burden of proof, both sides,
but the party with the burden of proof has to present a case
of narrative richness to meet a burden of proof.
And they're saying that they couldn't call
their addiction expert or put in depositions where there's
statements of tobacco executives that are going to ignore
to the detriment to the defendant.
So they're saying they couldn't put in that trial
of narrative richness.
-: Right, and with all due respect
to my friend on the other side, I challenged the premise.
So Dr. Prochaska, the addiction expert,
if you read her report, she was disclosed to testify
about addiction, advertising, and product design.
Dr. Cummings was disclosed to talk about addiction
and company conduct.
Dr. Proctor, company conduct,
advertising, and product design.
They were too deep at every position.
And what they said, they did not,
they never said to Judge Sarrouf,
"We are not calling Dr. Prochaska because of time limits."
What they said to Judge Sarrouf, this is on page 305 to 306
of the third volume of the record on appeal.
They said, "Judge, there's a Daubert motion,
that Daubert Lanigan motion
about this Dr. Prochaska, so long as you're going
to deny the similar Daubert motions
about the other two witnesses,
we don't need Dr. Prochaska, so you don't have
to hear argument about that witness.
They told the judge that she was duplicative.
She was cumulative.
And here's the waiver point
that we were attempting to make in our brief.
'Cause I understand, sometimes waiver is like,
it's the refuge of last resort.
Like there's some magic word that you didn't say.
That's not the point we're making here.
The point we're making here is that if the task
of this court is to evaluate whether Judge Sarrouf
abused his discretion, the question you have to ask is,
was he fully informed about what the plaintiffs now say
is the consequence of his actions?
The only conversations that took place about this topic
happened at the pretrial hearing where the plaintiffs said,
as a general matter,
"We can't possibly get this done in 28 trial hours."
And the judge said, "I think this is not supposed to be"--
I mean, I invite the court to read the whole--
I'm characterizing, but please, it's a short transcript.
Read the whole thing yourselves.
The judge says, "I looked at what was done in Laramie.
I'm giving you a lot more time."
And again, contrary to what Mr. Rainer said,
it is a lot more time that we were given.
That was a 43 hour limit. This is a 56 hour limit.
He said, "I'm giving you more time precisely because
there are two defendants in this case and not one.
There are more claims in this case than in the other case,
so I'm granting more."
-: There was no causation issue in the other case.
That's a big deal though, right?
-: I am not disputing that.
I mean, as much as I think we both agree,
tobacco cases are not cookie cutter.
Every story is different, every plaintiff is different.
But 80% of these cases is a roster of five or six,
some combination of five or six repeat expert witnesses
who've testified dozens, sometimes hundreds of times.
We know what they're going to say.
The judges know what they're going to say,
which makes cases like this the perfect...
These are the kinds of cases-
-: Can I ask on that point?
So you said they were too deep in every position?
Chesin: Yes.
-: So were those other cases,
did they get to do too deep or had to play
with their starters the whole time?
-: I will admit to Your Honor that I don't know
the witness lineups off the top of my head
in all of those cases.
I will say, just as an officer of the court
who has done something like, 37 of these trials,
it is very rare.
It's not unheard of.
It is very rare for Dr. Proctor, Dr. Cummings,
and Dr. Prochaska all to testify in the same case.
Have there been such cases? Yes.
But the reason they don't usually all testify
is that Cummings is also an addiction expert.
I mean Dr. Prochaska is an addiction expert.
-: How about the other, the sort of incriminating depositions
'cause in Justice Lowy's words,
that's the sort of rich narrative.
Did they get to do a lot of the self-inflicted wounds?
-: So I have two answers to that.
The answer is number one, they played
three different corporate representative videos
at this trial, which I mean,
everybody's allowed to choose their own strategy.
Taking Mr. Rainer at his word that they edited
which videos they were going to play based on the fact
that they had no time,
which is something they never said to Judge Sarrouf
and they never asked for, "Can we have an extra afternoon
for these videos, which are not long?"
But taking him at his word,
they chose to play an hour's worth of video
of corporate accountants reading slowly into the record,
the various metrics to, you know,
the two defendants financial condition
rather than accepting,
we offered time and again, a stipulation on net worth,
which would've taken two minutes to read,
but they wanted the net revenues
and the income per day and all of these.
So that took-- one of them was 34 minutes,
the other one was 27 minutes.
They played a 40-some-odd minute video
of a Philip Morris corporate executive
giving very, very intricate details about
the company's consumer marketing database.
Those are the choices that they made.
So they didn't play Dr. Figler
and they didn't play one or two other.
Oh, and they played four videos.
They played a fellow named James Morgan,
who was the CEO of Philip Morris 30 years ago,
talking about Marlboro Light cigarettes.
Here's the danger.
I'll bring it back to what we called a waiver point,
but it's more of a notice to the judge point.
Yes, there were witnesses, there were videos
that were listed in the joint pretrial memorandum
that were not used at trial.
That is not uncommon.
Any of us who have been in a trial know
that that is not uncommon.
Time limits were not.
A smart trial, a cautious trial lawyer-
-: Right. So I understand your point.
I mean, trial is all about making strategic decisions.
And it does seem to me that you and your opposing counsel
have what I call "a tale of two trials."
So we'll have to go to the transcript
and figure out which is which.
My question to you is, do we have a need?
Is there a need to issue some guidance
to trial judges on time limits?
-: Yes.
I mean, I won't speculate as to why I'm standing here today
and not in the intermediate court in Boston right now,
but I suspect part of it might just be
that we tried this case next door,
so it's thematic for the day.
Kafker: I don't think that's why we're here.
-: Perhaps, that's what I'm saying.
Perhaps we are here this morning because
the only case law in this commonwealth on this topic,
and it is sparse case law, comes from the court of appeal.
I think there are a lot of judges who are trying to...
There's a judge shortage here in the commonwealth.
There are crowded dockets here.
I mean, the tobacco cases alone
are clogging up the dockets of every county in the state.
And there are judges who are trying-
Wendlandt: Okay, so there's a need for guidance.
What would you suggest it be?
-: So I would suggest, I don't mind the ABA standard
that Mr. Rainer cited in his brief.
I would also suggest that the court look at rule 43.1
from the District of Massachusetts and look at,
and again, this is another mea culpa apology,
I didn't discover this until two days ago.
There's a report that was written in 1991,
Your Honor's father was on the commission that studied
ways to eliminate delay in the federal trial court
that recommended...
It goes into some detail.
The reporter was Arthur Miller.
And it goes into some detail about why
trial time limits are good
and how they should be implemented.
And what the federal rule says is,
first, the presumption is, ask the parties to agree.
If the parties can agree, the judge,
after consultation with the parties,
which I suggest, respectfully, in this case,
is what happened.
It was consultation both in writing
and in two separate hearings.
And in between the two hearings
was when the joint pretrial motion was filed.
So the judge had all of that before he made a final ruling
in consultation with the parties, set an amount of time.
Set it in minutes, not by witness, but by trial,
which the authorities say gives the parties
the opportunity to make those kinds of strategic choices
and use their time wisely.
And then the sort of second half of that rule says,
here's what you do if a party comes to you
and asks to enlarge the allotment.
And the rule presupposes that
that ask is gonna come mid trial.
And Judge Sarrouf, page 37, page 42,
he said, "I'd entertain it," pretrial.
It never happened in this trial.
And what the rule says is
a judge can enlarge those time limits
for good cause shown taking into account, number one,
whether the party who's making the ask has actually used
his or her time efficiently so far,
which is an inquiry that Judge Sarrouf
was never given the opportunity to make
because the ask was never made during trial.
-: Well that dovetails into what my concern is,
and this is a really big concern of mine.
Chesin: That I'm happy that you're asking then.
-: So, if we say these, whether it's 43.1,
we say the ABA guidelines, it seems that
that may not be licensed to say
we're gonna impose time limits everywhere,
not just in particular kinds of cases.
And I know you might say that it's not gonna
be 10 to midnight and this is the sky is going to fall.
But the concern that I have is
you have situations where you mentioned
with you and Attorney Rainer,
you've had lots of these cases.
Why do good lawyers need time restraints?
I mean, you know these cases, you know the experts,
you know the type of people that are gonna testify.
You just said, you know what they're going to say.
So why should judges do this at all
except in an exceptional case?
And I'm gonna preface that with one other thing.
If Attorney Rainer stands up here in response to
Justice Wendlandt's question and said,
"I needed three more days."
He's a good lawyer. He knows he needs three more days.
And if there were none of these shot clock things,
he would've put the three days.
He knows how to try a case. You know how to try a case.
You know when you're losing your witnesses,
you know when you're losing your jury.
That's part of what we do at trial.
-: I hear all of that. So I have a few answers.
Number one, he could have had them if he asked.
This trial took eight full days and five half days.
The only two times that the plaintiffs asked
for a specific piece of extra time
for a specific purpose, the judge said yes.
They asked ex ante, they said,
"Can the half day on October 29th be a full day
because we wanna make sure we finish Dr. Proctor?"
And the judge said yes, that added two hours of trial time.
The next time they made such a request was
on the very last day of trial when Mr. Rosenblum was told
you have an hour for closing argument.
And he said, "I really need an hour and 10,"
and the judge said yes.
So if he really needed those three days
to do something identifiable, he could have asked
and my suspicion is he would've gotten at least some of it.
And it wouldn't have extended the deadline.
Kafker: Again- -: But I have a lot-
-: There's some atmospherics that the judge is insistent.
He set a drop dead date
and he's keeping meticulous track of time.
You've used 53.5 minutes, meaning
he's not that susceptible to giving out additions, right?
I mean, I haven't read the whole transcript.
When we do, are we gonna find a lot of that
where you've used up, you know, you've used up 33 minutes,
you've got two seconds left.
-: Continuing the theme of praising one another.
It was very effective.
Brief writing in the plaintiff's opening brief
when they had that long block quote
and they said it looks like...
That's, it's like, thousands of pages worth of transcript
where they found the only instances of that happening.
This was not a preoccupation of the trial.
But here's my larger answer to your question, Your Honor,
in addition to the fact that I think they could have gotten
what they needed if they'd asked.
There have been, to my knowledge, and this is approximate,
I think I'm getting it right.
There have been 16 of these trials,
these tobacco personal injury and wrongful death trials
that have been tried in this commonwealth
in the last five years.
Seven of them have had imposed time limits like this one,
nine of them have not.
I don't know about hours, but just in terms of trial days,
the average for the ones with time limits,
they went 12 trial days.
You know, with varying mixes of full and half.
The average for the ones with not, they went 14.
It's not like these cases, organically,
would be three months long,
but the judge cut it down to three weeks.
It's for shaving a little bit.
And every two days you save, that's a slip and fall case
that can be tried that otherwise wouldn't have been tried
in that session.
-: I don't know that that necessarily helps you
when you give me those numbers
because it would seem to militate in favor.
Why do we need this?
-: Because in the aggregate.
So here's my point. It's not like it has no effect.
And I think the most telling part of the briefing
in this case is where in the reply brief,
the plaintiff says we can't possibly articulate
what the prejudice is, because what's really going on is
that we're nipping and tucking.
We're editing here, we're editing there,
we're not asking a question here,
we're not asking a question there.
And my contention is, if the only consequence
to a time limit is that counsel is forced to edit,
then that is, per se, a reasonable time limit.
That is not an abusive stretch.
-: But don't you get a time limit when you have
a pretrial conference, the final final?
And the judge gets an idea from the lawyers
and tells the jury we're gonna finish
on such and such a date.
And then during the trial,
the judge sees the jury completely asleep and says,
"Move on."
That happens all the time.
-: It happens all the time.
I wanna make sure,
and I don't think there's any confusion here,
this side of the-
-: And to the peril of the lawyer
who's making the jury go to sleep.
-: There's a lot of ways to skin the cat.
This side of the V is not advocating
for mandatory time limits.
We are not saying that it is an abuse of discretion
to use other means to move a trial along.
I think there are a lot of ways to do it.
There are benefits.
I know I'm over my--
talking about time limits, I'm over my time--
but if I can just read briefly.
We cited a case called Laro from the Federal District Court.
This is Judge Young who has been a proponent of time limits
for, I mean, as long as I've been aware of the existence
of Judge Young, where he says the following, he says,
"Time limits are an extraordinarily valuable
focusing mechanism, which promote cleaner trials directed
to the matters genuinely in dispute,
tend to eliminate those perennial redundancies,
which so frustrate and madden juries,
and constitute perhaps the single most valuable technique
of available to a trial judge
for scheduling a busy trial session."
You can cut witnesses off,
but if you have a set of cases like this
where there's some predictability,
we have a basic sense of what it's gonna be,
having a date certain, being able to tell jurors,
being able to tell prospective jurors
there's a date certain.
So somebody who's got a vacation scheduled in week five,
we can say, "No, you can serve,"
as opposed to, "Maybe you can serve."
So you don't have to summon double the jurors.
We summon like, 150 jurors to get eight people
in this trial here during COVID
because everybody's got hardships
and some people hate tobacco companies
and some people hate smokers.
It's hard to get a jury.
If this were open-ended, if we didn't know
if it was gonna go six weeks long,
we'd have had to call 300 jurors
during COVID to try to get this done.
Thank you.