X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
ATTORNEY: Lisa A. Blue FIRM: Baron & Budd, Dallas CASE: Hernandez v. Kelly-Moore Paint Co. Inc., No. 2000-3559 (El Paso, Texas, Co. Ct.) Before Lisa A. Blue was an attorney, she had been a therapist and, in fact, still continues some work in that profession while carrying a thriving trial practice. This other training, she believes, has helped her immeasurably in dealing with clients, witnesses, opponents and prospective jurors. In graduate school, she says, “I was taught what they’re missing in law schools.” When she began doing therapy, the sessions would be recorded. Afterward, she recalls, “I would sit down with the professor who would stop the tape and tell me, ‘Lisa, you were not listening.’ ‘Lisa, there was pain in your patient’s voice, but you weren’t listening.’” This training and her subsequent years as a therapist taught her how to listen and “how to get people to talk to you,” skills she has used to great effect as a litigator. Blue is a much sought-after jury consultant, hired by defense and plaintiffs’ attorneys alike to determine how jurors might look at a particular claim. But she has also established a stellar record as a plaintiffs’ attorney specializing in asbestos and toxic torts litigation. Blue has won numerous multimillion-dollar verdicts over the past few years, including a $55.5 million verdict in an asbestos case last summer. Overall, Blue has won about 90 percent of her civil trials. Earlier in her career, she was an assistant district attorney in Dallas, where she brought more than 125 criminal cases to verdict, winning more than 90 percent. In her most recent big win, Blue represented Alfredo Hernandez and his family in an asbestos claim against Kelly-Moore Paint Co. Hernandez began working as a cleanup worker at construction sites in 1973 when he was a teen-ager in California. During this time, Blue says, he was exposed to an asbestos-containing Kelly-Moore joint compound product called PACO, used at the construction sites where he worked. “It was all over,” she says. “He cleaned it up, he breathed it, it got on his clothes, got in his hair.” In 2000, Hernandez sought medical attention after he began having pains in his rib cage and side. At that time, X-rays revealed that Hernandez had mesothelioma, a cancer of the lining of the lung that is caused by exposure to asbestos. Following the diagnosis, Hernandez, along with his wife and children, sued Kelly-Moore and numerous other asbestos manufacturers, distributors or users. All the other defendants settled, for a total of more than $2 million, leaving Kelly-Moore as the sole defendant at trial. The plaintiffs contended, Blue says, that Kelly-Moore knew or should have known of the dangers of asbestos at the time that Hernandez was exposed and beyond, yet continued to market the product. The plaintiffs also charged that Kelly-Moore acted recklessly, disregarding the health of its workers and others. Kelly-Moore denied any negligence and disputed Hernandez’s identification of Kelly-Moore’s product. Psychological principles guide Blue throughout as she prepares and conducts a trial. Nowhere is that more apparent than in her actions during voir dire. Her approach to jury selection has evolved over time, she says. “Until three years ago I always picked the jury by myself.” Her co-counsel in this trial, Richard Nemeroff, had a bigger role in voir dire. “Now I split jury selection between a male/female team.” There are several reasons for this, she says. “The jury has to be able to trust both. Each lawyer can get the feel of the jurors. Different elements will appeal to different jurors.” She begins voir dire by taking two minutes to explain what the case is about, she says. “I stand up and say something that gets the panel’s attention.” In Hernandez, she told the prospective jurors, “This case is big and important but it’s as simple as ABC — A for asbestos, B for breathing, C for causes cancer, which leads, in this case, to D, death.” It is essential to tell the jurors briefly what the case is about, Blue believes, in order to gauge their possible underlying prejudices. After she does this statement, she says, she begins the voir dire as she would begin a therapy session. “Everyone wants the panel to say what’s in their heart of hearts.” But jurors might be reluctant to admit they are biased. Blue tells the jurors, “there is no right or wrong here. Nobody is here to be judgmental of you, but we need to know how you feel about certain issues.” Then she gives them a motive to speak by asking, “Would you like to know who ends up on juries? It’s the people who don’t talk, because the lawyers don’t know what their feelings or opinions are.” Certain jurors would be inappropriate for certain trials, she tells them, then uses self-disclosure to explain. “I was prosecutor for organized crime cases,” she reveals to the jury. If she was called as a juror on a case involving a defendant accused of involvement in organized crime, she tells them she would have to withdraw. She then turns to specific questions to determine bias. While some lawyers believe that they can tell a juror’s biases based on income level, occupation, ethnic background, etc., Blue says this method doesn’t work. Instead she tries to determine “belief systems. This would include attitudes, values and life experiences,” she says. In asbestos cases, she notes, “If I had only one question that would tell me immediately if a juror was bad for my case, I’d ask, ‘Do you feel that the hazards of asbestos are overblown?’” When representing any plaintiff in a personal injury matter, she says, “a great question for voir dire is, ‘If you were injured because somebody else was negligent, would you file a lawsuit?’ If they say no,” she suggests getting that person off if at all possible. “They’re never forgiving if someone else did.” In general, she says, “The people I exclude are the ones who don’t believe in the jury system.” In her opening statement, she begins using another of her skills. “Being a trial lawyer is much like a teacher,” she says. She tells the jurors the questions they are going to have to answer, much as a teacher might outline what will be needed for a final exam. “You tell them, ‘Here are the questions. Here are the facts I think will help you answer the questions.’” Alfredo Hernandez and his wife, Elizabeth, who had a loss-of-consortium claim, were brought in as witnesses toward the end of her presentation, after experts testified about the dangers of asbestos, what Kelly-Moore did wrong, and how Hernandez’s illness was connected to asbestos exposure. Before the plaintiffs appeared on the stand, Blue prepared them. But the preparation was not a standard question and answer session. “I have the client role-play. I have him act like the jury.” She notes it was hard for Elizabeth Hernandez to show feelings. But Blue had to get her to explain the loss to her and their 8-year-old son. In role-playing, “I’d tell her, Elizabeth, ‘You’re the jury and I am you. What is it that you want me to tell you to decide the case?’ “Hernandez answered, ‘If I were a juror, I’d want to know the effects on my child. I’d want to know how I act around my husband, how I cheer him up. If we ever talk about the cancer.’” In trial, the witness answered those questions. She still was somewhat stoic, but to counter this, Blue says, “you ask the jury, ‘Should we punish people because they were brought up to be strong, because they don’t whine and cry and say, feel sorry for me?’” The plaintiffs had sought $10 million to $15 million, but on Aug. 29, 2001, an El Paso, Texas, jury awarded $55.5 million. There was no appeal; the case settled in November on confidential terms. TRIAL TIPS � Learn to listen to clients and jurors. � Conduct voir dire like a therapy session. � Eliminate jurors by “belief systems,” such as life experiences and attitudes, not demographics.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.