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  • Jim Ferraro

Jockeying for Position During a Trial

During my questioning of the DuPont expert Dr. Judith C. Sadler, which I began to recount in my previous post, I saw that my line of interrogation was having an effect on the DuPont legal team.

My tactics may have flustered Dr. Stadler, but they really got to opposing counsel. Throughout the trial, every time they suspected I might begin to circle a witness like a hungry shark, Clem Glynn, Greg Gaebe, or one of the other attorneys from the opposing teams objected, whether there was a legitimate basis for an objection or not.

This was their way of interrupting the testimony and confusing the jury. To be fair, I may have and probably did do the same thing. The constant objecting from the attorneys on both sides eventually irritated the judge, which usually resulted in a flurry of sidebar conversations between her and counsel at her bench.

During sidebars, the jury is not supposed to hear any of the dialogue between the lawyers and the judge. Anything the jury hears can affect credibility and plant seeds of doubt.

Initially, however, the DuPont team, led by Clem Glynn, would jockey for position at Judge Donner’s bench and speak loudly enough for the jury to hear. Glynn would then proceed to make self-serving statements, such as, “Your Honor, that’s a fraud,” while facing in the direction of the jury.

Since you can’t directly address the jury at any time during the trial except during jury selection, opening statements, and closing arguments, DuPont thought these loud and improper sidebars might help its cause. This immature and completely manipulative behavior really got me angry. It had to stop.

Initially trying to play the part of the good guy, I pleaded with Glynn, asking him to keep it down. “The jury can hear you,” I’d say, but to no avail. When it didn’t stop, I realized that if I wanted to be in the game, I had to meet my enemy eye-to-eye, and so decided I would race to the pole position and do the same thing to him.

Glynn was 12 years older than me and had a bit of a problem with his hip at the time, so he wasn’t nearly as fast getting to the bench as I was. He also had to cover a slightly greater distance from his table than I had to from mine, so I could beat him to the mark almost every time. After finally realizing that his nonsense had backfired on him, Glynn began pleading with me to stop doing it to them. The antics eventually ended.

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It appeared that everything we were doing, even something as mundane as meeting at the bench, was a duel to the bitter end. Strategy and gamesmanship in the courtroom—even stupid stuff like this—can sometimes make or break a case. It isn’t unusual for legal teams to hire investigators to hang around within earshot of the jury and strike up a conversation centering around the trial, saying such things as “This case is bullshit,” or “The family should really be ashamed of themselves for bringing a case like this.”

While lawyers can’t talk to the jurors, some will try to get other people to talk around them. It’s awful, disgraceful and, frankly, the worst part of going up against a conglomerate like DuPont.

While not all lawyers are ruthless and without moral judgment, many will practice such guerrilla warfare when it comes to a case like this.

In my next post, I will continue to recount the testimony and my questioning of Dr. Judith C. Stadler, the expert for DuPont.

Meanwhile, I’d love to hear from you. Have you ever been in a negotiation where every word you said was challenged by the other side just as a way of keeping you off balance? How did you respond? Thank you for sharing.


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