‘Amateur Life Coach’ Offers Advice on Being ‘Screw Drivered’ by a Judge

Paganelli Law Group attorney James Bell’s “Amateur Life Coach” is back with what to do when you feel like you’ve been “screw drivered” by a judge. With help from his second cousin, “Steve,” who also is an attorney, the two explain (using the comic book structure) why it’s best to keep your personal thoughts about the judge to yourself.

“Remember, life is a comic book, and God gave us a thought bubble and a voice bubble. In your thought bubble, you can say whatever you want. But in your voice bubble (or your blog bubble) you have to be a little bit more careful.” 

Paganelli Law Group welcomes attorneys Caroline Richardson, Jonathan Bont

Paganelli Law Group is pleased to announce that attorneys Caroline Richardson and Jonathan Bont have joined the firm. Caroline is an experienced civil litigator whose practice has included commercial litigation, business formation, and commercial and residential foreclosure proceedings. She has also provided restructuring, loan workout and bankruptcy advice to a variety of companies and individuals facing insolvency. Caroline has represented both debtors and creditors in diverse bankruptcy and adversary proceedings. 

Caroline is a 2009 graduate of Indiana University Robert H. McKinney School of Law and served as a law clerk for the Indiana Supreme Court Disciplinary Commission. 

Caroline sits on the board of directors for the American Civil Liberties Union of Indiana and recently concluded her term as president of the board of directors for Partners in Housing Development Corp., where she remains a board member. She also served as the president of the board of directors for Fair Housing Center of Central Indiana for six years. 

Jon practices in the areas of criminal defense, business litigation and government compliance. Prior to joining Paganelli Law Group, Jon served as an Assistant United States Attorney for the Southern District of Indiana for five years. Jon also previously practiced at Bose McKinney & Evans, focusing on litigation and employment law, and was a law clerk in the United States District Court for the Southern District of Indiana. 

He is a 2009 graduate of Indiana University Robert H. McKinney School of Law. 

Alternative Dispute Resolution

By Chris McGrath, Attorney

Over coffee Client Clem asked about reducing his company’s exposure to the uncertainty, expense and delay of litigation. I asked if he had considered alternative dispute resolution (“ADR”). Here is a quick overview.

Litigation is classic dispute resolution but as Clem pointed out it is time consuming, costly, and outcomes can be difficult to predict with the certainty business owners seek. Still, its effective. Most cases settle prior to trial.

Arbitration is the out-of-court resolution of a dispute between parties to a contract, decided by an impartial third party (or parties). It is generally faster and more cost effective than litigation. Cases are tried to an arbitrator or panel of arbitrators. The process is generally governed by a set of rules promulgated by various associations, the most popular of which is the American Arbitration Association (the other “AAA”). Parties may also enter into agreements pertaining to the arbitration, such as the selection of an arbitrator or panel of arbitrators. A roadmap and cost overview can be found here.

Mediation is an informal negotiation assisted by an impartial third party (the mediator) that encourages parties to work towards their own crafted solution. A skilled mediator creates the space necessary for that to occur. Mediation is often attractive because it enhances the likelihood of continuing a business relationship. Mediation can take place prior to, during, or sometimes even a lawsuit or arbitral proceeding has been filed. And parties don’t necessarily need to be adverse; those simply trying to get a deal done can benefit as well.

Negotiation is a discussion aimed at reaching an agreement. It is different from a discussion aimed at winning. Those directly involved with the underlying facts can enter into a negotiation, but it’s often effective to involve people at other levels of the organization.

Is your situation ripe for mediation or another form of ADR? Feel free to reach out.

'Amateur Life Coach' on Being 'Screw Drivered' by Opposing Counsel

Paganelli Law Group attorney James Bell’s “Amateur Life Coach” offers advice to an attorney who was “screw drivered” (also known as using deception or misrepresentation in order to gain an advantage in a case) by opposing counsel on a matter.

“Opposing counsel can complicate your case, hurt your relationship with the judge or cause your client to become dissatisfied – all with the turn of a screw,” the Amateur Life Coach explains in Episode 16.

Check out the video to see what you can do when opposing counsel tries to “screw driver” you. 

Paganelli Law Group Supports Indianapolis Bar Foundation’s Evening Under the Stars Event

James Bell IBF Dinner.jpg

Paganelli Law Group was pleased to be a sponsor of the Indiana Bar Foundation’s annual fundraising event, the Evening Under the Stars dinner and auction, on Sept. 8 at The Crane Bay event center in Indianapolis. The law firm served as the host of the first-ever afterparty, a which featured the band, Big Rosco & the Hammers, and dancing!

Paganelli Law Group attorney James Bell, an Ex Officio Officer of the Foundation and current President-elect of the Indianapolis Bar Association, kicked off the evening (see photo). Nearly 400 people attended the event, which raised more than $133,000 to benefit Indianapolis residents in need.

The Indianapolis Bar Foundation is the charitable arm of the Indianapolis Bar Association. Its mission is to advance justice and lead positive change in Indianapolis through philanthropy, education and service.

PLG attorney and current Foundation board member Raegan M. Gibson will serve as Secretary of the Indianapolis Bar Foundation’s Board of Directors for 2018. PLG founder Tony Paganelli will also serve on the Board of Directors next year.

Inside the Criminal Case: Race, talking to jurors and impeachment

In a typical courtroom in Colorado, a jury found a defendant guilty of unlawful sexual contact with two teenaged girls. Pena-Rodriguez v. Colorado, 15-606, 2017 WL 855760 *5 (U.S. Mar. 6, 2017). As is custom in some areas, the lawyers for the case were permitted to speak with the jury after it returned its verdict. The group chatted, and as most of the jurors exited after the post-trial huddle, two hung back to inform the attorneys about one of the juror’s “anti-Hispanic bias toward” the defendant.

Specifically, this juror (who will be forever known in the history of jurisprudence as H.C.) stated that he “believed the defendant was guilty because, in [H.C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.” Id. H.C. also expressed during deliberations that “I think he did it because he’s Mexican and Mexican men take whatever they want.” Id. 

With the judge’s supervision, these jurors prepared affidavits and submitted them to the trial court. While acknowledging H.C.’s bias, the trial court denied a motion for a new trial based on the fact that Rule 606(b) of Colorado’s Rules of Evidence (which is similar to Indiana’s Rule 606(b)) prohibited a juror from testifying “as to any matter or statement occurring during the course of the jury’s deliberations.” Id. at *6. As is typical in these articles, nine years of hard work by attorneys is summarized in three paragraphs and some writer like me says, “eventually this case landed before the United States Supreme Court.”

The Supreme Court noted that a “[g]eneral rule” called the “no-impeachment rule” had “evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict is entered, it will not later be called into question.” Id. at *4. The specific issue raised in this case was “whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.” Id. at *4.

Noting that “[i]t must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons,” the Supreme Court eventually held that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Id. at * 11, 14.

Here are a few takeaways from this holding:

1. The post-conviction flood gates are likely not open. It is hard to imagine many cases that are unaffected somehow by the issue of race. When I first read this case, I began to wonder if this ruling would affect every jury verdict in Indiana history. I worried that our friends at the Post Office would not be able to carry the mail that goes to our colleagues who handle post-conviction work. But in delivering the majority opinion, Justice Anthony Kennedy noted that “[n]ot every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar.” Id. The bar is set much higher and “[t]o qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.” Id. 

2. Always talk to jurors if you get the chance. In the Pena-Rodriguez case, the information that led to this ruling fell into the lawyers’ laps. They spoke to the jurors after the case, probably to learn how they can do better in the future (and probably in hopes of hearing how great they were). If not for this discussion, they probably would not have learned what H.C. said behind closed doors. Information like this is difficult to compel. Justice Kennedy stated that the “practical mechanics of acquiring and presenting such evidence will no doubt be shaped and guided by state rules of professional ethics and local court rules, both of which often limit counsel’s post-trial contact with jurors.” Id. So check your local rules and review Rule 3.5 of the Indiana Rules of Professional Conduct before you go knocking on jurors’ doors. Please note “A lawyer shall not … communicate with a juror … after discharge of the jury if … the juror has made known to the lawyer a desire not to communicate.” Ind. R. Prof. Conduct Rule 3.5(c)(2).

3. Courts need to know prospective jurors’ views on race. How many times has a juror made comments in deliberations like the ones made by H.C. and no court ever learned about it? How many times has race affected a verdict but the H.C.-like juror never made statements that could be used to impeach the verdict? In the Pena-Rodriguez case, “[n]one of the empaneled jurors expressed any reservations based on racial or any other bias.” Pena-Rodriguez, 2017 WL 855760 at * 4. Justice Kennedy noted in his opinion that the “stigma that attends racial bias may make it difficult for a juror to report inappropriate statements during the course of juror deliberations.” Id. at * 13. If it is difficult to tell on a fellow juror, it will be really difficult for a juror to tell on her or himself in crowded jury selection room full of strangers. If lawyers and courts can create more settings or utilize mechanisms (like questionnaires) where jurors can be honest about their opinions, the more likely the justice system will “rise above [the] racial classifications” that Justice Kennedy wrote about in Pena-Rodriguez. Id. at * 13•

Note: This article first appeared in the March 22, 2017 edition of The Indiana Lawyer.

How Do You Win a Lawsuit?

Q: How do you get to Carnegie Hall?

A: Practice, Practice, Practice.

In its excellent Jury Expert blog, the American Society of Trial Consultants offers good advice for trial lawyers:

Rehearse. A lot.

As the authors explain:

Experienced trial attorneys make it look easy. Rest assured, those attorneys are the ones who rehearse the most, privately and publicly. “Off the cuff,” is a romantic ideal, but is not a method for experienced trial attorneys. Attorneys who do not rehearse use the stress related adrenaline rush as a means of creating energy for last minute preparation. Feverishly finalizing content and supporting visuals throughout the night does not produce a persuasive performance.

The article is long for a blog post, but it's definitely worth reading.

How to Strike a Biased Juror for Cause

If you represent a defendant and you want to strike a juror for cause because he or she is predisposed against your client, here's a quick and easy way to do it:

Q: Mr. Smith, you indicated on your questionnaire that you're familiar with this trial from the media coverage?

A: Yes.

Q: Have you formed any opinions about my client's guilt or innocence?

A: Yes. I think he's probably guilty.

Q: But you told the judge that you could set aside your opinion and decide the case based only on the evidence, right?

A: Yes.

Q: Does that mean that I would have to show you some evidence of innocence to change your mind?

A: Yes.

By asking if the defense would have to show this potential juror evidence of innocence to change his mind, you are making a record that he does not presume the defendant to be innocent, but rather that the defendant starts from a position of guilt and the defense would have to prove otherwise to justify an acquittal.

Through this very simple exchange, and without embarrassing or angering the juror, you've just made your record to justify a challenge for cause.