John, Thank you for sharing your account. It’s distressing. I can’t imagine how you feel. I hope you’ll be doing something about your case and the judge’s interference. From: JOHN PINEAU [mailto:johnpineau@yahoo.com]
Sent: Wednesday, March 02, 2011 3:36 PM
To: Alumni; John K. Pineau <johnpineau@yahoo.com>Todd Richardson; Pajman Jassim
Subject: Good, Bad, and TLC Dear Friends,
We just finished a federal civil jury trial and I lost, in part, and in a small, odd, perverse, and undeserved way, due to TLC techniques.
The trial was before the honorable Richard Matsch, the same judge hand-picked to try the Oklahoma bombers, McVeigh and Nichols. The judge is very regimented, tough, and was one of my favorites until this trial. In the past, we have met with his approval (but not much success) using a stripped, fact-only, disciplined delivery.
In this case (1983 claim based on mentally ill public school staff who tased a random 8th grader), we added TLC techniques. The net effect was overwhelmingly positive with the jury, and wildly negative with the judge. In his court, counsel submit written suggestions for voir dire, but the attorneys are silent throughout selection. We submitted voir dire questions asking for the jurors' "feelings" and opinions on danger points, etc. The Court's response was to ignore them all, stating "We don't do feelings here!" That ruling was prophetic.
Opening statement. Milkbarn colleagues Sergio Cabrera and Jason Epstein made two trips to Colorado from the West Coast to help me prepare this case with a psycho-drama with Katlin Larimer and numerous focus groups all under the expert guidance of Tom Metier. Through this process and with special help from Tom, we did our best to insert a TLC voir dire and other magic into the opening. [And before I go further, there is absolutely nothing you can do better to give yourself a chance to win than to involve these any of these people in your case. Every minute with them improved our performance. And I also had the steady support of the entire 9/2009 Milkbarn Crew.] Our opening was good, but as if the Judge had sniffed it out, every time I used TLC techniques, the Judge started shooting and shutting me down on his own objections. By the end, I had delivered maybe 15-20% of the intended TLC payload, but worse, I got the sense that the Judge, who has presided over me before, decided I had gone native and needed to be stopped. For the remainder of the trial he was all over my shit. Despite this, day one went well. Opposing counsel varied from being lawyerly and mediocre, to arrogant; the perfect adversary.
Day two, the judge was increasingly irritated by the emotional content and impact of the trial (the plaintiff and his mother's testimony, then a police interview of my kid right after the assault). This was aggravated by my lapses into leading questions on direct (a habit from criminal defense), and disturbing signs that the emerging truth of our case and our professionalism under his punishment was creating an alliance between us and the jury. When I would sit down the jury was openly sympathetic, some visually offering to sponge the blood between rounds. Watching like a tower guard, the Judge caught this and at the end of the day countered by giving the jury a weird explanation/excuse as to why he had been beating up counsel and how it was all part of the normal process.
The Court's objections had become more frequent and distant from the law, so I spent everything but two hours of sleep, rewriting the next days exams. Day three was huge. Without rancor or raising my voice, the first witness revealed her and defense counsel's subornation of perjury. When I sat down, all twelve jurors turned in unison and looked right at me as if to say, "Nice job. And we see what's going on here." Later, after hearing that one of the other victims had hung himself, the jurors looked at my client, some teary eyed, shaking their heads in condolence. We were now solidly on top.
But on day four, the Judge increased his attack, harder than any other day. With the constant flack from the bench, some of the jurors would actually wait till he was not looking before giving us a sign of support. Catching this, the Judge went off in wild directions, he ordered me to stop using a witness' deposition to impeach, he ruled that we could not admit pictures or video's of the scene of the crime because they were "not relevant", he moved to exclude a photograph of the other victim and only failed when opposing counsel was too inept to support the Court's motion. Last, he refused to let me impeach a school witness with her own report (the principal smoking gun of the trial). In the presence of the jury, he stripped me of every piece of evidence and weapon I could use to make the witness admit the crucial fact. It was like being left up there naked when I had to ask her "did you do [ the incriminating act]?" All she had to do was deny it, but, thank God, after all the build up and drama, she volunteered the admission. It would have been the climax, but things went badly fast. In less than 20 minutes the Judge invited a Rule 50 motion (JMOL). He then ruled that although the school supervisor knew that in 4 months her mentally ill employee had been found "hiding in a boiler room", "stalking a girl inside the school", and had taken an 11 yr old boy out of class to an abandoned/restricted floor, no reasonable juror could find that the supervisor was aware that the employee posed a risk to students. Case dismissed.
This was clearly the most asymmetric, shifting, and punishing case I have tried. I am convinced TLC techniques helped us take the jury, and would have taken the trial. There was, of course, much more going on factually and legally, most of it favorable, but I have tried to limit this account to TLC aspects. Like any loss, I hope you find it more instructive than a win.
On the upside, It's been only a week since the loss and the number of people I want to kill with a claw-hammer is already down to two, three at the most.
The loss was mine, but the opportunity to win was delivered to us by working with the best professionals we could find. If you are interested in winning, put them on your team:
Sergio Cabrera 909 297 3516 (milkbarn warrior)
Ingrid DeFranco 303 641 6812 (motions and appellate counsel)
Jason Epstein 888 852 0068 (milkbarn warrior)
Katlin Larimer kplarimer@aol.com (milkbarn mother and psycho-dramatist)
Tom Metier 970 377 3800 (mentor and Yoda)
Peter Weinberg 720 239 3023 (ZMET, consultant)
Good Luck.
Your Friend,
John
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