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How To Try A Case: University of Iowa College Of Law Trial Advocacy Intercession, Day 4

Exhibits And Demonstrative Evidence

Each of our fictional case files include a compact disc with all of the exhibits referenced in the NITA (National Institute of Trial Advocacy) cases.  While real life isn't so organized, the CD allows us to focus on learning how to try a case, and in today's class, how to introduce exhibits.

With most cases, juries want to see the figurative gun.  Touch it, hold it and see that the prosecutor has the instrument that killed the victim.  It's not that the gun itself tells us anything, other than that's the gun the criminal investigator found at the scene with the defendant's fingerprints on it and the ballistics tests confirm the bullet pulled out of the victim came from the gun now in front of us.  Jurors can't decipher the fingerprint or the ballistics, but the criminologist on the stand tells us all so, and the jurors nod in knowing agreement, despite not actually knowing. 

In our cases, we don't actually have the gun, we have photographs of the gun (at least in Dixon).  In Jackson, we have a photograph of the chalk outline of the victim, George Avery.  Mr. Avery, a.k.a. the "torch," allegedly used hydrochloric acid to start a fire, which unfortunately backfired, killing him. 

So while we have two deaths, the case materials aren't so dramatic.  Given the shooting at Virginia Tech, I wasn't going to have a University of Iowa student bring in Dixon-like long rifle to use as an exhibit.  While it would have been especially instructive, common sense prevailed.  We also didn't want to bring in a 55-gallon barrel of hydrochloric acid.  I can't imagine the manifest needed under USEPA regulations to get it in a classroom.

So, we used photographs to introduce evidence. 

Introducing evidence is a mystical experience for law students, but for trial lawyers it's relatively easy.  Let me demonstrate:

Prosecutor:  How did the victim die?

Criminologist:  From a bullet shot at close range to the victim's heart.

P:  Did you recover the gun from the scene?

C:  Yes. 

P:  [First showing the gun to the defense counsel]  Your honor, may I approach the witness?

Judge:  Yes.

P:  Thank you your honor.  I am handing Criminologist Gil Grissom what has been previously marked by the clerk of court as State's Exhibit Number 1 for identification.  [Handing the gun to the criminologist].  Please describe to the jury what I've just handed to you.

C:  It's a Smith & Wesson 44 magnum pistol that I retrieved from the scene of the crime.

P:  How do you recognize it?

C:  When I recovered it, I etched my initials in it and wrote down the gun's serial number. 

P:  Are your initials on this gun?

C:  Yes.

P:  Does the serial number on match your report from the crime scene?

C:  Yes.

P:  Your honor, I move to introduce into evidence State's Exhibit Number 1, which has been identified by Mr. Grissom as the gun retrieved from the scene of the crime.

J:  Does the defense have any objections?

Defense counsel:  No objections, your honor.

J:  The court will admit State's Exhibit Number 1 into evidence.

That's it.  Plain and simple.*  In its most basic form, you give the exhibit to the witness, ask the witness what it is, establish it as relevant to the issue in dispute and authentic (it is what you say it is) and then ask the court to admit it. into evidence.  Sometimes you have to lay more foundation (legalese for telling the judge and jury more about your exhibit), but the process is not that hard.

Frequently, you'll draw objections from defense counsel, but you can generally overcome them by laying more foundation and showing how the exhibit is relevant to the dispute between the parties. 

Once you get an exhibit admitted into evidence, the jury can consider it in their deliberations and ask to see it in the jury room.  It also becomes part of the record if an appeal is filed.  If the judge does not admit your exhibit into evidence, then you lose the opportunity to discuss it in closing arguments, and the jury can't consider it when they make their decision.

Evidence forms the foundation for the final verdict.  Jurors want to see the gun.  They want to read your documents and look at your pictures.  As a trial lawyer, if you don't get this most basic step down, the jury will have nothing, and you'll lose your case. 

Exhibits can be any number of things, and just about anything can be an exhibit.  I once was involved in a railroad crossing case where a s car had been hit by a train engine in the middle of the night out in a rural desert area on crossing without arms, and the driver ultimately died from his injuries.  The plaintiff's heirs brought a wrongful death case against the railroad. 

When the time came for us to put on our case, we put the engineer on the stand, hooked up the horn and engine light to a battery, closed the drapes, flipped off the switch for the overhead lights and had the engineer turn on the engine headlight.  It flooded the dark courtroom and made it as bright as daylight.  The engineer then blew the horn, and after everyone uncovered their ears, it immediately became clear we had won the case.  

We showed it would have been impossible for the victim not to have seen or heard the train coming, and demonstrated to the jury the victim had committed suicide by train.  Exhibits make or break cases, and good demonstrations win cases. 

When you're next in a courtroom, sit for a moment and watch a trial lawyer introduce an exhibit.  It's a simple, yet elegant, process absolutely necessary to get an exhibit in front of the jury. 

_______

*  Like everything else associated with the law, there may be exceptions to this general process, and the example I've chosen has just such an exception.  You may also be required to establish the chain of custody before introducing the exhibit.  In this example, let's add this step right before the prosecutor asks the judge to admit it into evidence.

P:  After you collected the gun from the crime scene, what did you do?

C:  I recorded my name as the first entry on the chain of custody and took it to the police evidence locker.

P:  What happened next?

C:  The evidence locker custodian signed the chain of custody and took possession of the gun.

P:  Then what?

C:  Just before I came here today, I went to the evidence locker, signed the chain of custody to bring the gun here and give it to you.

Having established where the gun has been before it came to court, you can then ask the judge to admit it into evidence. 



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, January 09, 2008 at 18:30. Comments Closed (0) |

How To Try A Case: University of Iowa College Of Law Trial Advocacy Intercession, Day 3

Voir dire, Direct and Cross-examination

Some 32 law students, graduate teaching assistants and two adjunct professors invaded Sixth District Court Judge Russell's wonderfully large and properly ostentatious courtroom to watch voir dire.  It was the first time in some 20 years I had been in an Iowa courtroom, and it was nice to be able to make an official appearance in front of the bar rather than behind it.

We spent the better part of the morning watching two lawyers battling it out over a car accident.  While the case itself was not necessarily an intellectually stimulating issue to dissect, we weren't there for the accident. 

The analysis instead looked into the crystal ball of how the jurors might decide the case based on their prejudices and biases.  It was the attorneys' job to discover those hidden emotions and then determine who to strike for cause and who to "kick" off the jury via peremptory strikes.  In Iowa, only eight jurors sit for civil cases, and out of a pool of sixteen possible jurors on the panel, each side must use their peremptories to reduce the venire panel to the requisite number of ideal jurors.

Luckily prior to the start of the voir dire, Judge Russell was able to spare our students a few moments of his time in an adjoining courtroom to explain the examination process from his perspective and answer a few questions.  The judge explained that only lawyers were permitted to pass the bar that divided the gallery from the counsel tables and bench once they 'passed  the bar (exam).'

Our actual car accident trial lawyers did a fine job questioning the jury panel, first introducing themselves and giving up their requisite personal details to entice the nervous jurors to likewise exchange their personal details.  The lawyers started slow, drawing out typical background from the jurors about their jobs, family members, relationships to the parties and lawyers and the like. 

Then it came time to identify the jurors' prior car accidents, run-ins with the law and victims of various criminal activities.  The lawyers unfortunately got the juror questionnaires just a few minutes before the trial - not enough time to fully review them.  They had to spend more time drawing out the answers already on the forms.  Each lawyer took about an hour to conduct the voir dire.  Neither asserted objections to the others' examination, but a couple of times each came close to 'trying their case' to the jury before the trial actually started.

Interestingly each lawyer used the jurors favorable to their side to point out prejudices to the other members of the panel.  For example, the defense lawyer identified one juror likely to be struck by the plaintiff's lawyer, and used that juror to argue against evidence from chiropractors because her father, a doctor, didn't believe in chiropractors.  The plaintiff had sought extensive treatment from chiropractors, and it made up a large portion of his damages. 

The defense lawyer likewise found a sympathetic juror who was in the midst of a nasty divorce, didn't like lawyers and argued for tort reform.  Ultimately struck by the plaintiff's lawyer, the juror likewise served her purpose, drawn out by the defense lawyer to complain about too many lawsuits.  The plaintiff, too, used the same tactic after identifying jurors who had been in car accidents and showed the other jurors why just compensation was necessary to make the injured victim whole.  Overall, an interesting study in human dynamics, which is a large portion of the trial after the facts and witnesses.  There's no better teacher than experience, and the students got a full dose, with Monday-morning quarterbacking galore after we got back in class.  20/20 hindsight makes for a great jury panel.

An afternoon of Direct and Cross

From our two fictional case files, State v. Jackson and Dixon v. Providential Life, we started direct and cross-examination of Mary Dixon and Robert Wilson.  In the latter case, we put Marie Williams on the stand followed by the Defendant himself, Arthur Jackson.  Mr. Jackson, of course, gave a knowing and intelligent waiver of his Fifth Amendment right not to testify.

As any good criminal lawyer knows, however, criminal defendants are guilty until proven innocent and despite Constitutional protections to the contrary, they must actually prove their innocence first.  If you have any doubts, then just corner your favorite criminal attorney at your next afternoon or evening cocktail party and ask.  Let me know if she disagrees. 

Before I get too far, however, let me give you some basic background on the two cases.  If you're looking for more details, may I suggest a NITA class or perhaps Trial Advocacy at the good ol' U of I?  These are fictional cases, where both the names and the facts have been changed to protect the innocent.  Or something like that.

In the civil breach-of-contract case of Dixon v. Providential Life, the question is whether pillar of the community Judge John Dixon committed suicide.  He had a 24-year marriage to his lovely wife Mary, and had recently taken in Mary's younger sister, Anna Martin, after her nasty divorce.  Background questions abound whether Judge Dixon and his sister-in-law were, shall we say, engaged in something other than a family relationship. 

Judge Dixon was well-respected and liked in the community, an avid hunter and a justice of the peace who collected fines he levied as part of his job.  Unfortunately, he was under investigation by the State Attorney General's office for failing to remit some $90K of these fines, and had recently seen a high-risk (read:  desperate) $100K investment go bad.  The evidence developed on both of these issues is somewhat (necessarily) sketchy.

His favorite - long - shotgun had accidentally discharged several times while hunting, and unfortunately was found dead by his wife with the shotgun by his side, a nearby screwdriver laying on the floor and a gun-cleaning kit positioned on the chair.  The office had been locked from the inside and the Judge's eye and left side of his head had been blown away, blood spatter all over the door. 

The good judge had purchased a double-indemnity, $250,000 policy just before his untimely death, which increased to $500,000 in the event of an accident.  It also included a suicide provision that invalidated coverage if suicide was the cause of his death within two years after purchase.  The defense argues Judge Dixon led a double life, plaintiffs claim the Sheriff's determination and Coroner's inquest, which both concluded his death was accidental, control.  Just to make things interesting, both the Sheriff and the Coroner were life-long friends of the Judge. 

Mary, his wife, had made a claim for the full $500K, but big bad insurance company Providential Life denied the claim, arguing suicide was the cause of death.  Thus, our lawsuit for breach of contract.  As Sherlock Holmes would say, "Watson, the case is afoot."

To keep things interesting, the other case explores the criminal side of law.  State v. Jackson involves allegations of arson against Defendant Arthur Jackson.  In short, Jackson's business burns down under suspicious circumstances.  Another game is afoot.

Jackson, too, is married, but here to an independently wealthy woman, and they have two lovely children.  For the last 15 years, Jackson has owned the highly successful manufacturing business known as Flinders Aluminum.  The company manufactures aluminum siding.

Apparently, the market for aluminum siding has fallen through the floor and Jackson has a big loan due and other than his nip-tuck wife's checkbook, no means of paying the loan when it comes due.  Since we need some sexual intrigue in this case too, Jackson has a long affair with his bookkeeper, Marie Williams, but breaks it off when he hires a new assistant, Sonia Peterson.

Since we perhaps obviously need more sexual intrigue, Peterson and Jackson take their relationship to the next level, too, much to the chagrin of Williams - and Jackson's wife.  In other words, both have motive to betray him when they're questioned by the police about Jackson's involvement in the arson.  Predictably, Jackson's wife stands by her man.  On the other hand, completely jilted Marie Williams sells him down the river. 

Peterson, the new assistant, becomes involved with Flinders at a time when Jackson is most desperate.  She suggests hiring George Avery, who she had worked with in the past.  Suspicious circumstances, however, seem to follow Avery at his two prior places of employment.  They both burned down, too, also with the use of hydrochloric acid, allegedly the favorite accelerant of those known as a "torch."

In the Flinders Aluminum business, HCL also shows up, but this time George Avery, who is working late on new "automobile designs" gets killed in the fire.  Jackson had previously told his bank that he hired Avery to design a new line and move the company into the black.  The bank was excited and wanted to see financials and the designs, even contemplating a joint venture. 

Instead, Jackson finds himself charged with arson.  Not apparent in the case file, but certainly a possibility, Jackson could also get charged with felony murder.  Oh, I forgot to mention one little thing.  Right before the fire, Jackson increased the amount of insurance coverage on his building.  You know, the one that burned down?  Coincidentally more than enough to cover both the building and the loan.  How convenient. 

Since you've been paying attention this long, you now have seen most, if not all of the issues we've identified.  There's more than enough issues to keep a full class going for an entire semester - and that's saying a lot for a law school professor, who's never at a loss to develop an issue. 

Now that you've got the lay of the land, I imagine you can probably imagine the range of direct and cross-examination questions to ask.  My students certainly have done a stellar job.  Your questions are welcome in the comment section below.

The Techniques

Not to leave you hanging about the how and why of direct and cross-examination, let me breifly explain.  Direct examination requires open-ended questions, and does not allow leading questions, which summarize the answer and allow the lawyer to testify.  Chronological sequence is generally considered best, because we all absorb information in that fashion.

Cross-examination, on the other hand, is an art form.  Lawyers do the testifying through leading questions.  "Isn't it true that the light was red?" and the like.  But there's no one better than Irving Younger, lawyer and law professor extraordinairre, to give us his 10 Commandments of Cross-examination:

  1. Be brief.
  2. Short questions, plain words.
  3. Always ask leading questions.
  4. Don't ask a question, the answer to which you do not know in advance.
  5. Listen to the witness' answers.
  6. Don't quarrel with the witness.
  7. Don't allow the witness to repeat his direct testimony.
  8. Don't permit the witness to explain his answers.
  9. Don't ask the "one question too many."
  10. Save the ultimate point of your cross for summation.


Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, January 08, 2008 at 22:53. Comments Closed (1) |

How To Try A Case: University of Iowa College Of Law Trial Advocacy Intercession, Day 2

The Art of An Opening Statement

How do you introduce your case?  Conventional wisdom suggests only one or two themes, or threads, to weave a consistent picture for the jurors.  Let's take, for example, our two fictional cases, one criminal and one civil.

In State v. Jackson, the defendant was charged with arson for conspiracy to burn down his business for the insurance money.  In Dixon v. Providential Life, the widow Dixon seeks payment of $500,000 in life insurance benefits from her deceased husband's life insurance company, which denied coverage based on its conclusion that Judge Dixon committed suicide.  See tomorrow's post for a fuller explanation of the facts.

Here are four sample opening sentences.  You'll immediately be able to figure out who's making the statement (the prosecutor/plaintiff and defense), and in which case.

"Members of the jury, this case involves arson, fueled by greed and deception to obtain insurance money desperately needed to keep a business afloat."    

"Members of the jury, we have a case of disconnected facts and innuendo that cannot be strung together to prove arson or any other crime."

"Members of the jury, this case involves a contractual agreement to pay life insurance benefits that was broken at the worst possible time."

"Members of the jury, this case involves a man whose world was crashing in around him, who lied on his application and committed suicide."

Just like the opening sentence of a good legal brief , letter or just about any other communication, the first thing said answers as many of the "newspaper questions" as possible.  You know - the "lead" of a journalistic article.  It typically starts out with who, what, when, where, why and how. 

With those facts, the speaker has immediately provided context to the listener - a framework the listener will use to categorize and file the information that will follow.  Here, we've got week-long trials in each case, with two separate juries who've never heard about these cases before. 

The statements take advantage of the concept of primacy, which generally dictates that you are more receptive to the first things you see and hear, as long as it makes logical sense and has a coherent framework that provides a consistent explanation for a series of what would perhaps appear to be disconnected facts.  How's that for a complicated definition? 

In an opening statement to a jury, you not only introduce your theme, you introduce yourself, the parties, the facts, the legal construct of the case and ask for the remedy you want.  It's that simple, and perhaps sets up the trial in the same way as a minister, priest, rabbi or imam's sermon. 

You know, the old "(1) tell them what you're going to tell them; (2) tell them; and, (3) tell them what you've told them."  At least that's the structure my Dad used in his sermons. 

When you stand up in front of a jury, you're there to persuade them to decide in your favor.  In an opening statement, you must do so without argument.  But carefully chosen theme words and factual storytelling frequently make up for the lack of adjectives and adverbs you will use in your closing argument.  For now, you're laying the groundwork for what's to come.



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Monday, January 07, 2008 at 17:19. Comments Closed (0) |

How To Try A Case: University of Iowa College Of Law Trial Advocacy Intercession, Day 1

I'm Blogging This Class

This post chronicles my teaching as an Adjunct Professor a one-week, eight-hour-a-day intercession class in Trial Advocacy at the University of Iowa College of Law in Iowa City, Iowa.  Where?  Reminds me of a t-shirt I saw here when I went to school some 20 years ago:  "University of Iowa, Idaho City, Ohio."   You know, the place with the early primary caucuses.

Now that we have that straight, let's get on with the class.  We are using Mauet's Trial Techniques as our main textbook, two NITA casebooks, State v. Jackson and Dixon v. Providential Life, along with NITA's Problems in Trial Advocacy.  The Syllabus sets out readings in all the books for today, so starting the class at one o'clock this afternoon, we discussed an overview of trial, from voir dire, opening statements, direct and cross-examinations, exhibits and demonstrative evidence, impeachment and rehabilitation, expert witness testimony to closing arguments. 

We discussed burdens of proof for various types of trials and went over the entire scope of litigating a case from intake through appeal.  As we wrapped up the day at five, we developed four case themes:  for the prosecutors and defense attorneys  in Jackson and for the plaintiff and defendant attorneys in Dixon, finding the "pictures" and "threads" of the cases to show to and talk with the jury.

The class has sixteen third years, along with a Teaching Assistant.  Early tomorrow morning, we're visiting the Johnson County Courthouse to watch two lawyers pick a jury, then it's back to the classroom for opening statements. 



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, January 06, 2008 at 22:39. Comments Closed (2) |

Lawyer 2 Lawyer Internet Radio Predicts the Future

2007- What a year it was! Now, what's in store for 2008? Please join me and my fellow Law.com blogger and co-host Robert Ambrogi, as we welcome returning guest, Stephen L. Kaplan, part-time seer and full-time partner in the Orange County California office of Hicks, Mims, Kaplan and Burns.

In this podcast, we present "The 3rd Annual Predictions Show."  Bob & I take a look back on the year that was and make our predictions for the year ahead, highlighting such topics as the decline of housing prices, the fate of Tom Delay, the big legal story of 2008 and our choice for the next President of the USA!



Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, January 04, 2008 at 17:41. Comments Closed (0) |

Lawyer 2 Lawyer Internet Radio Hosts Veterans For The Holidays

On this special holiday edition of Lawyer2Lawyer, please join me and my fellow Law.com blogger and co-host Robert Ambrogi as we profile the work of those who help others not only during the holiday season, but year-round.

Bob and I welcome Nicholas Henry, two-time Operation Iraqi Freedom veteran and co -founder and administrative director from the John Marshall Law School Veterans Legal Support Center and Clinic and Veterans' advocate, Attorney Gordon P. Erspamer, from the law firm of Morrison & Foerster, to talk about their efforts to legally help wounded war veterans returning from Iraq and Afghanistan. Please go to the Veterans Legal Support Center or Swords to Plowshares to donate your time or funds to our Veterans. Happy Holidays!



Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, January 03, 2008 at 00:04. Comments Closed (0) |

Kaplan The Prognosticator Posts His Grades; Makes 2008 Predictions

My good friend and Laguna Beach attorney Steve Kaplan is well known for his annual predictions, and equally so for willingly posting his own grades.  Steve's at it again this year, first reviewing his prior prognostications, followed by his predictions for this new year.  

•1. Crude oil will never get below $50 a barrel in 2007.

FOLLOW UP GRADE: B. When I made this prediction crude oil was $60.85 a barrel. For a couple of days in 2007 crude oil was just under $50. Today, a barrel is almost $100.

•2.      Any disruption will send oil prices above $70 a barrel.

FOLLOW UP GRADE: A.

•3.      California housing prices will decline by more than 7% in 2007.

FOLLOW UP GRADE: A.

•4.      The Dow Jones industrial average will end the year below 12,000.

FOLLOW UP GRADE: F. The Dow Jones industrial average was 13,264 on 12/31/07.

•5.      Altria will return over 15% in 2007. (i.e., dividends plus appreciation will exceed 15%).

FOLLOW UP GRADE: A. Altria returned about 19% in 2007.

•6.      Microsoft, Intel and Pfizer will return over 10% in 2007.

FOLLOW UP GRADE: A. Microsoft and Pfizer each returned about 17%. Intel returned about 24%.

•7.      Apple will release a cell phone in 2007.

FOLLOW UP GRADE: A.

•8.      Steve Jobs will be indicted in 2007.

FOLLOW UP GRADE: F.

•9.      Sony will do something stupid in 2007.

FOLLOW UP GRADE: B. Nintendo and X-Box both outsold Playstation in 2007. Blue Ray is not catching on.

•10. Fidel Castro will die in 2007.

FOLLOW UP GRADE: F. Old tyrants never die.

•11. Tom DeLay will be found not guilty.

FOLLOW UP GRADE: C. We are still waiting for the trial.

•12. The UN Security Council will impose further sanctions against Iran.

FOLLOW UP GRADE: C. More sanctions were imposed, but they are toothless.

•13. Violence in Palestine between the PLO and Hamas will increase in 2007.

FOLLOW UP GRADE: A.

•14. Violence in Iraq between Shiite and Sunni Muslims will increase in 2007.

FOLLOW UP GRADE: F. Violence decreased post-surge.

•15. Hezbollah will start a civil war in Lebanon in 2007.

FOLLOW UP GRADE: C. If Lebanon is not already in civil war, its close.

•16. There will be another terrorist attack in Europe.

FOLLOW UP GRADE: A.  On June 29, 2007, British police defused a massive car bomb in London's theatre district. On July 1, 2007 the same terrorist cell (which included doctors) crashed a SUV with explosives into a terminal building at the Glasgow airport. There was also rioting in France after Sarkozy's election.

•17. The EU will continue to reject Turkey.

FOLLOW UP GRADE: A.

•18. Toyota will become the world's biggest automaker.

FOLLOW UP GRADE: A.

•19. Al Gore will win an Oscar for An Inconvenient Truth.

FOLLOW UP GRADE: A.

•20. Martin Scorsese will win an Oscar for directing The Departed.

FOLLOW UP GRADE: A.

2008 PREDICTIONS

•1.      At the end of 2008, crude oil will be below $80 a barrel.

•2.      California housing prices will decline by more than 7% in 2008.

•3.      The Dow Jones industrial average will end 2008 below 13,000.

•4.      Citigroup (C) and Bank of America (BAC) will return over 15% in 2008. (i.e., dividends plus appreciation will exceed 15%).

•5.      At least one of the following major home builders will be bankrupt in 2008: Beazer Homes (BZH), Hovnanian (HOV) or Standard Pacific (SPF).

•6.      The Federal Reserve will cut interest rates because the U.S. is in a recession.

•7.      In 2008, Apple will release a new tablet PC that looks like an overgrown iPod Touch.

•8.      Google will be a losing bidder for the 700 megahertz spectrum that the FCC is auctioning in 2008.

•9.      In 2008, Congress will pass legislation banning steroids in professional sports.

•10. Because of Oprah, the Democratic presidential nominee will be Barack Obama.

•11. The Republican presidential nominee will not be Mike Huckabee.

•12. Tom DeLay will either be found not guilty, or the charges will be dismissed or President Bush will pardon him.

•13. President Bush will pardon Lewis "Scooter" Libby.

•14. Violence in Iraq will decrease in 2008.

•15. Violence in Palestine between the PLO and Hamas will increase in 2008.

•16. Forbes will list Vladimir Putin as the richest person in Europe.

•17. There will be another terrorist attack in Europe.

•18. A major politician in the U.S., Western Europe, the former Soviet Union or Australia will be assassinated.

•19. Daniel Day-Lewis will win the best actor Oscar for There Will Be Blood.

•20. Ellen Page will win the best actress Oscar for Juno.

Best Wishes in 2008.

Stephen L. Kaplan

Tel: (949) 715-9399

E-Mail: slkaplan@yahoo.com



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, January 02, 2008 at 11:41. Comments Closed (0) |

The Chocolate Wars Erupt: Allegations Of A Chocolate Cartel Fixing Prices

Say it ain't so.  Now that Christmas and the rest of the holiday season is over, we learn that Big Chocolate is under siege.  Mars, Nestle, Hershey and Cadbury are all on the Defendants' side of the "v.", named in a class action suit for price-fixing chocolate.

Prices are one thing, but the worst allegation lays out an anathema for chocolate lovers:  "Chocolate is a commodity product that is uniform.  It does not vary materially depending on manufacturer.  The Chocolate produced by any Defendant is fungible with any other Defendant's Chocolate."

Blasphemy.  If the Plaintiffs expect to prove that claim, they'll lose.  It just can't be. 

To make matters worse, the Complaint gives away The Recipe:  "Chocolate is a confectionary product created by processing cocoa beans and other beans with milk, sugar and other ingredients," right there in paragraph 2. 

Haven't they ever seen Charlie and the Chocolate Factory?  Don't they know there are as many different kinds of chocolate as there are days in the year? 

Come on.  Even where the Complaint was filed in New Jersey there are See's Candies, which proves my point.  That store even makes special chocolates in the summer.  Chocolate, as anybody knows, is far from fungible. 

Judges can take judicial notice of that fact.

Now that we've won the case for differences in chocolate, let's talk about the price-fixing allegations.  The Plaintiffs may have a point there, as anyone who's tried to buy the stuff lately knows.  According to the Complaint, the alleged conspirators control more than 80 percent of the $16 billion U.S. chocolate market, and half of the world market.  Supposedly, they also raised prices in concert with one another this year.

$16 billion?  That's a lot of chocolate

But don't get your Snickers in a twist just yet.  The case was just filed December 21, 2007, and there's a long way to go before class certification.  We haven't heard the last of  the chocolate wars. 



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, January 01, 2008 at 16:04. Comments Closed (0) |



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