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A defense attorney is having a good day when he decides not to call one of his own expert witnesses because he was able to get the plaintiff’s expert to give the same testimony on cross-examination. Such was the case for Los Angeles attorney Mark B. Helm, who recently won an invasion of privacy case against his client, MGM. Helm pulled out the victory though the plaintiffs’ claims had a high potential for appealing to the sympathy of a jury. In 1996, Robert and Marietta Marich were notified of their son’s overdose death in a telephone call from a Los Angeles police officer. At the time of the call, the officer was wearing a lapel microphone and his actions were being filmed by a crew producing an episode of “LAPD: Life on the Beat,” a “reality” television show that ran four seasons. The parents’ anguished cries after receiving the news were picked up by the officer’s lapel mike and included in the 1997 broadcast. The program also showed the body of the couple’s son, 27-year-old Michael Marich, although his face and other identifying factors in his apartment were blurred. The suit alleged that the unauthorized recording of their voices during the call and the depiction of their son’s body invaded their privacy. A Superior Court judge dismissed the claims, but a California appellate court panel held, 2-1, that the question concerning the telephone call should go to a jury. Even though the trial addressed only the telephone call, the trial judge allowed the jury to see the entire show. Seeing the program could make the jury “sympathetic to the Mariches not because the sounds from the other side of the call were recorded but because the pictures of their son were shown,” said Helm, a partner at Los Angeles’ Munger, Tolles & Olson. What might have mitigated those strong emotions was a limiting instruction the judge gave the jury every time they saw the video, Helm said. The judge explained to the panel that the case was only about whether the telephone call invaded the plaintiffs’ privacy. Despite seeing the tape four times at trial, the jury decided, 8-4, in favor of MGM, the distributor of the show. The show’s producer, QRZ Media Inc., filed for bankruptcy, which has stayed the plaintiffs’ claims. Marich v. MGM/UA Telecommunications Inc., No. BC176082 (Los Angeles Super. Ct.). The two most important things at trial were the jury instructions and evidence that the plaintiffs’ distress was not caused by the recorded call, Helm said. These factors allowed the jury to focus on key testimony from the crew member responsible for recording sound, who said that the taping of the parents’ cries was inadvertent, Helm said. A THUNDERBOLT ENDING Although it dealt with the question of damages, the defense spent a lot of time during the trial on the plaintiffs’ psychological distress, Helm noted. The defense showed, through the plaintiffs’ own expert psychiatrist that their distress was not caused by the telephone call. “I asked their expert, ‘Could you say they would have suffered any fewer symptoms if the sound had been turned down on that broadcast?’ ” Helm said. “ He said he couldn’t say that they would. “We had our own expert who was prepared to testify to this, but I got so many good admissions from their expert on cross, we decided not to call our own expert.” The highly emotional case had a thunderbolt conclusion, Helm said. California law requires nine-vote majorities in civil cases, or it is a hung jury. After deliberating five days, the panel told the judge they were locked, 8-4, but didn’t say whether the majority was for the plaintiffs or the defense, Helm said. The parties agreed to accept the verdict with eight votes and that it would take nine for the plaintiff to receive damages, Helm said. Fifteen minutes later, when the jury buzzed that they had reached a verdict, “we knew we had won,” he said. Lead plaintiffs’ lawyer, Laurence W. Watts of Watts & Associates in Missouri City, Texas, said he was surprised by the verdict. “The eight people were less concerned about the value of the right of privacy than I thought they would be,” he said. Helm gave the jurors who were disinclined to support the plaintiffs a way “to rationalize their decision,” Watts said. “The key was intent.”

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