20 Trial Lawyer • Winter 2024 phone to warn them about extreme fire danger. But PacifiCorp produced no documents relating to this phone call and despite us having taken many depositions, not a single deponent testified about the call. In an order just before trial granting, in part, our motion to sanction PacifiCorp for this and other discovery misconduct, the court prevented PacifiCorp from offering evidence relating to the cause and origin of the fires during trial that it had refused to produce during discovery. The court also permitted us to take depositions during trial relating to the call organized by the Governor’s office. Pretrial evidentiary rulings Before trial, each party filed motions in limine. Our motions included references to the fires being an “act of god” and to exclude evidence of comparative fault of a nonparty. PacifiCorp moved to exclude references to “public safety power shutoff” and evidence that PacifiCorp started more fires, beyond the four that made up the class in our case. The court denied many of these motions. Of note, the court explained that PacifiCorp’s attempt to exclude evidence of a public safety power shutoff was an untimely motion for summary judgment. The parties also filed fact stipulations before trial. These established that the named plaintiffs owned the real property that was burned during the fires. Shortly before trial, Judge Alexander told the parties that going forward, they would have to seek leave before filing more motions. Around this time, the court heard arguments and ruled pretrial on the admissibility of hundreds of proposed exhibits. Judge Alexander did not permit speaking objections and instead required the parties to argue objections at sidebar. In part to minimize the disruption to the jury, the parties hired a court reporter who had portable equipment and could join us in the hallway during sidebar. This allowed the sidebar to be on the record, avoiding the need to add sidebars to the record at the end of each trial day. Trial motions It's a good idea, in a case like this, to plan for the defendant to attempt to delay trial. On the eve of trial, PacifiCorp filed a motion to join necessary parties, arguing that insurance carriers with subrogation claims were necessary parties, despite never raising this issue during nearly three years of litigation. This motion ultimately went nowhere, as we agreed to join the insurers, if trial could proceed as planned. Months after trial, we learned that PacifiCorp had settled with the subrogation plaintiffs. You should also expect overlength briefs from the defendant. Some defendants think they need to argue everything to preserve issues for appeal. Other defendants think they only need to get lucky on one argument, so they might as well make them all. Still others think they can bury you and the trial court. In the PacifiCorp case, at the close of the plaintiffs’ case in chief, the defense motions really started coming in. First, there was the 54-page directed verdict. Next, came a motion to decertify the class, and within a day of that motion, came a memorandum on jury instructions. PacifiCorp said it wanted a clear record for appeal and used this to justify filing six different briefs in a twelve-day span. One of these six briefs related to noneconomic damages. PacifiCorp contended it would be improper to award noneconomic damages in this case due to the impact rule. PacifiCorp had not brought this issue up at summary judgment, and instead, waited until the jury was deliberating. Set up for success To manage all the work that goes on outside the courtroom during trial — briefing, motions, oral argument — it is critical to prepare your team well in advance of trial. Preparing as a team First off, make sure you have staffed the case appropriately before trial. If you are a small firm and need to stay focused on what goes in the courtroom, bring on another lawyer to lead motions practice during trial. It is hard to give up control, but when there are dozens of different issues and opposing counsel has an unlimited litigation budget, having additional brainpower frees you up to focus on trial. In our trial, we had a dozen attorneys from five different firms and top-notch paralegals and staff. Identifying who is responsible for what work is important. Throughout our case, there were many different categories of factual issues that we needed to be Motions in Large Trials Continued from p 19 A ruined child’s tricycle can be seen among the debris where the Hollands’ home once stood.
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