The Rule of 471
October 18, 2004 12:49 am by Gene BorioA Distinguished Visitor
A great thing about the US court system is that just about anybody can drop by for a visit. And they do. We at Courtroom #19 get our fair share of high school civics classes, etc. When they come in bulk, they can make a quiet commotion, but that’s the price of an open democracy, and we 30 or so regulars in the visitors’ gallery try to maintain our concentration on the business at hand.
So while I noticed the visitors filing into the pews Thursday morning, I didn’t think much of it. That’s why I was shocked–as I’m sure the lawyers and witness were–to hear Judge Kessler interrupt the proceedings to announce,
“You know, we get a lot of visitors in this courtroom. But I would like to especially welcome our visitors from China. Among whom, I understand, is the Chief Justice of China!”
The Chief Justice of a billion people?? Wow. Judge Kessler asked him to make himself known, and after a moment, a man emerged from a group at the back and accepted our spontaneous applause(!) He seemed to have a sort of humorless, seen-it-all grin, as if to say, “OK, I get this every time I come into a courtroom in this country, and it’s getting a little tired.”
So the Chief Justice of China took in the most massive tobacco trial in world history. This was an issue he himself may one day have before him. Pretty exciting.
The testimony in this case can be tedious even for a seasoned, knowledgeable and interested onlooker; I can’t imagine what it is like for someone dropped into the middle of it. What to make of a whispered translation concerning RJR scientist Jeffrey Gentry’s meeting with Dietrich Hoffmann, and whether Hoffmann and other experts felt the “EW” cigarette test marketed in Oklahoma reduced or increased the risks of smoking? Our visitors stayed the usual 10 minutes or so, and began leaving.
The Order of the Days
Once outside, I imagine the Chief Justice’s first question was, “What the hell is Order 471??”
Any visitor to Courtroom #19 must ask this question. Order 471 seems to come up daily (though not, as my conceit above would have it, during the Chief Justice of China’s visity). It’s often spoken of in a whiny tone, as in, “Judge, I tried to follow Rule 471, and now we’re being done a disservice,” or, “Judge, this was filed in accordance with Order 471, so we acted properly — the opposing side’s objection should be dismissed.”
After 5 years of preparation for this event, and untold hours of refereeing between the parties, Judge Kessler on January 16, 2004, issued Order 471, “Trial Procedures.” Order 471 is a kind of distillation of thousands of court filings, objections and orders–a phenomenally concise roadmap of how to handle one of the most massive and complex cases in US history.
Order 471 starts out innocuously enough: the trial is to occur Mon-Thursday, 9:30-4:30, with an hour for lunch. Cool.
Order 471 delimits the amount of hours each side may take with witnesses, cross-examinations, redirects, etc.
Order 471 mandates that direct testimony of all witnesses shall be presented in writing in “question and answer format just as if the witness was testifying in open court.” This is the time-saving method used in the Microsoft case (Dan Webb was lead counsel in that case also).
Order 471 sets out the procedural timetable by which written testimonies will be delivered, filed and served, and the timetable by which the court and the opposing side will be alerted to each week’s roster of witnesses. It mandates the written testimonies, as well as accompanying exhibits, be presented a full week before the week of the witness’ appearance (by 5 PM the preceding Monday).
How Order 471 works out in practice
For fact or expert witnesses:
The DOJ (Defense gets its turn in a month or two) has its case all set up, knows exactly what it wants from a witness, and therefore structures its line of questioning for its witnesses, and assembles attendant exhibits.
All that needs to be done is to sit down with the witness, and for hours or days work out the answers to the witness and DOJ’s satisfaction. When this is accomplished, the witness signs off on his or her “Direct Testimony.” But even though the DT is posted on the DOJ website, there is still one more step before the document is accepted just as if the witness went through the Q&A on the stand–it must be officially adopted in open court. As 471 states,
When a witness is called for direct testimony, that witness, after being introduced and sworn, shall adopt all or part of his or her written testimony under oath in open Court.
The witness does this the day he or she appears on the stand. First, the witness is asked if he/she needs to make any changes to the document; often the witness does, sometimes it’s a typo, sometimes a date, once in awhile something more substantial. Then the witness formally adopts the document.
Today, this January plan seems to be running along as envisioned, for the most part–but things got a lot trickier fast when we started having Adverse Witnesses.
Order 471 states,
A party offering an adverse witness is expected to provide a written direct examination where possible by use of prior trial or deposition testimony
Adverse witness Direcxt Testimonies are made up entirely by the DOJ, presumably in good faith, out of public statements or previous trial testimonies (of which there seem an abundance amongst the tobacco industry witnesses–what a way to spend one’s retirement).
The adverse witness’ proposed testimony is sent to the witness, who, ideally, answers the questions and then goes to his/her lawyers to go over it. The witness then reads over the final version, and signs off on it. If there are changes from the DOJ version–and there always are–the final document must have the original DOJ answers shaded.
From First Draft to Direct Testimony
Here are some problems:
1. With this method, the drama of the case really lies in the cross-examination. While the written DT procedure may speed the trial, it must be a bitter disappointment for courtroom buffs. All parties depend on the idea that the Judge has read the testimony as assiduously as she would have heard it. With this judge, that’s a given. Judge Kessler seems almost superhumanly attentive and dedicated. Has she read all the exhibits? Impossible. The case has been going on for 5 years, and I’m not sure how many Surgeon General’s Reports, Monographs, detailed scientific studies, et. al. she has pored over. There are a huge number of these presented as exhibits — often hundreds of documents per DOJ witness.
3. I don’t know what they did in Microsoft, but the written DT method seems not to have been planned with adverse witnesses in mind. For one thing, it gives adverse witnesses a great advantage. There is little opportunity to trip up a witness on the stand. In addition, as DOJ lawyer Steven Brody complained to Judge Kessler, in a fierce attempt to obtain Lorillard CEO Martin Orlowsky’s fisrt draft of his DT corrections,
“If this were a live direct, I would ask the question and the witness would say, ‘I’ll answer you, in a moment–affter I’ve consulted with my lawyers.’”
Judge Kessler, in answering Brody’s complaint Wednesday, ruled that the witness has a right to meet with his/her lawyers and to clean up and approve any changes to what can be considered his or her “first draft”–up until the time the witness signs off on the final document. At that point, there should be no communication between the lawyers and the witness about the testimony.
In the Government’s Forever Machine
Two unforeseen problems arose with the first two witnesses, Arthur J. Stevens and Robert Northrip.
4. Mr. Northrip had his own lawyer, Michael Sundermeyer, with whom the joint defense team had no contact. Defense said it was hard to plan their own case according to the timetables of Order 471 when the outside lawyer was not in communication with them.
5. Worse, the DOJ had placed its own, uncorrected, DTs for Stevens and Northrip on its website, presenting them as the witnesses’ testimonies — when of course the witnesses had never written, approved or even seen the documents.
The online posting led to accusations that “Australian newspapers” and an unnamed webblog had based stories on these documents. (I have been unable to verify either occurrence.)
However, the point was valid–these documents, untouched by the witness’ hands, were definitely not their testimonies.
The problem revealed an interesting glimpse into the inner workings of the Federal bureaucracy. Apparently, getting a document off a government website is a lot more difficult than seems reasonable. Mr. Sundermeyer asked that DOJ intercede with the appropriate internet department to get the spurious DTs removed. Sharon Eubanks immediately responded, telling Judge Kessler that she had a massive court case to manage here as it is, and had no time to go around dealing with well-nigh intractable inter-departmental issues.
In the ensuing discussion, mention was made of the rigorous training involved for placing documents on the government’s website; someone referred to the dreaded “Point of No Return” that personnel are sternly warned about. Apparently, once that “Point of No Return” is reached and passed, the document is ON site, PERIOD–possibly forever(!)
Judge Kessler seemed sympathetic to Eubanks’ position, having had some experience, apparently, with trying to go between government departments. She suggested Mr. Sundermeyer see “Joe Burgess,” and said she hoped she wouldn’t have to file an order about the matter.
The incident has given rise to two more orders–
Order 471a, filed October 1, specifies exactly when the adverse witness’ corrected testimony shall be filed and served. It calls for the DOJ’s original answers to be shaded, and the witness’ corrected answers to be italicized.
Order 680, filed October 7, directs the removal of the uncorrected testimonies of Stevens and Northrip.
When this issue arose, Tobacco-on-Trial removed its links to the testimonies, with an explanatory note.