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A recent $28 million verdict involving a fatal Ford rollover crash in a tiny Texas town has highlighted an ongoing battle for many lawyers: getting a fair trial in a small town. In addition to the obvious — everyone in a small town knows everyone else — small town jurors are more likely to want to stick it to big corporations, particularly when the victim is local. “This is not a phenomenon. It’s real. And it’s for this reason you’ll see litigants fighting for years over the proper venues of a case,” said attorney David Sugden of Call, Jensen & Ferrell in Newport Beach, Calif., who does mostly defense work for companies. “I think, for whatever reason, small towns have proven to be fertile ground for plaintiffs lawyers and they are giving huge punitive damage awards,” Sugden said. Small towns also tend to put big-city defense attorneys on the defensive themselves, careful not to appear as an outsider invading a quaint little town, he noted. Sugden has seen it firsthand. Last year, while handling a breach-of-contract case for a Florida company being sued in a small county in Northern California, Sugden lost a significant hearing on a motion to transfer the venue to Florida. Sugden felt that he didn’t stand a chance against the local attorneys, whom the judge spoke to on a first-name basis in court. “By the time I got up there, I knew I was doomed,” Sugden said. This “doomed” experience is what defense attorneys have come to refer to as being “hometowned” — that is, losing clout in a courtroom because they’re not from there. “Certainly big-city counsel carry a stigma in a small town where the local jury, and even the judges, will often say, ‘You’re a big-city slicker. What are you doing down in our town?’ ” said attorney Arthur Cook, managing partner at the Los Angeles firm Hill Farrer & Burrill, which represents corporate and managerial interests. Cook, who said that he lost his first jury trial some 25 years ago because the local attorney was more influential, urges attorneys to hire local counsel when working in small towns. And at all times, he said, avoid appearing overconfident. “You’ll be watched by everybody and they’re going to be looking for you to be cocky,” Cook said. “And if you are, they’re going to slap you hard for it.” But plaintiffs attorney Andrew Stern of Philadelphia’s Kline & Specter argues that the outsider stigma can go both ways. For example, he said, defense lawyers are quick to cast plaintiffs attorneys in a negative light before small-town juries. “They make you out to be the big-city guy who came into their little town to take all the money, which is inaccurate,” said Stern. THE FORD CASE In the recent Ford Motor Co. case — in which a Zavala County (Crystal City), Texas, jury hit Ford with a $28 million verdict in March over the deaths of two popular teenagers killed in an Explorer rollover crash — Ford attorneys argue that the odds were stacked against them from the beginning. The deceased victims were two former local high school celebrities in a town of 8,000 people — both former Miss Crystal City — who died while attending graduation festivities. One of the victims was the granddaughter of a former district judge who attended the trial wearing a button with his deceased granddaughter’s picture on it. Also, that same judge was a former colleague of the judge who oversaw the trial. Last, but not least, one of the jurors was the girlfriend of one of the plaintiffs attorneys, which Ford did not learn about until halfway through the trial, when they had her dismissed. “The appearance of impropriety is certainly out there,” said Ford attorney David Prichard of Prichard Hawkins McFarland & Young in San Antonio, who is handling the appeal for Ford, claiming that Ford did not get a fair shake in Crystal City. “A lot of people knew about the incident, and that in and of itself opens up a lot of potential for mischief,” Prichard said. When asked if it’s harder to run a fair trial in a small town than a big city, Prichard said, “The smaller and more parochial the county, the more opportunities for mischief exists.” That’s just sour grapes, asserted Mikal Watts, the lead plaintiffs attorney in the rollover suit. “When Ford wins a jury trial, they call it justice,” said Watts of the Watts Law Firm in Corpus Christi, Texas. “When they lose, they say something must have gone wrong. [Ford] is just trying to smear the names of the jurors with no factual basis whatsoever.” Ford is currently appealing a May 17 ruling in which a judge denied its bid for a retrial, finding that automaker’s right to a fair trial was not compromised by alleged jury misconduct. Ford argues that the trial was tainted by a juror who allegedly failed to disclose that she was, and still is, a jury consultant who is romantically involved with one of the plaintiffs attorneys. Also, the same juror allegedly helped sign on two of the victims as clients in the lawsuit against Ford. Garcia v. Ford, No. 030710755 ZCVA (Zavala Co., Texas, Dist. Ct.). FAVORING THE ‘LITTLE GUY’ David Bernstein, a professor at George Mason University School of Law, said the Ford case is a classic example of the pitfalls out-of-town lawyers face when they charter into foreign territory, particularly small towns, where people are likely to protect local interests. “I think if you are in a jurisdiction with a close-knit bar and where the people know each other, you better be wary,” Bernstein said. “It’s certainly a populist tradition in certain parts of Texas and elsewhere in the country that as a juror you favor the local little guy over the big guy with the out-of-state interest.” This “little guy” favoritism has many defense attorneys thinking twice about trying cases in small rural areas. As attorney Roger Ellyson puts it, “In the big picture, you probably want to defend a case in a big city. In a small town, typically, potential jurors are pro-law enforcement and might generally lean toward the prosecutors.” However, Ellyson, a solo practitioner in Watertown, S.D., added that that doesn’t mean you can’t get a fair shake in a small town. And he speaks from experience. Ellyson prosecuted the high-profile manslaughter case against U.S. Representative Bill Janklow, a former South Dakota governor and attorney general who was convicted in December 2003 of second-degree manslaughter for a crash that killed a Minnesota motorcyclist. South Dakota v. Janklow, No. 03-147 (3d Cir. Ct., S.D. (Moody Co.) 2003). Janklow was tried in his hometown, Flandreau, S.D., a town of 2,300 where to many he was considered a local hero. “Right away, I voiced my concern on [whether] the state could get a fair trial,” Ellyson recalled. “But even though everybody knew him, we were able to get a fair and impartial jury … and the jury convicted him on all counts.” Janklow’s lawyer, Ed Evans of Sioux Falls, S.D., did not return calls seeking comment. On the defense side, Ellyson, who now does a lot of criminal defense work, said small-town juries have returned verdicts in his favor more often than not. In recent years, he has had about 10 victories, with two losses. He recalled winning a defense verdict in an aggravated assault case in a town of 500 people where both the victim and suspect lived. “I’ve had cases where sister-in-laws are on the same jury. You just kind of deal with it,” he said. Attorney Marty Rose of Dallas’ Rose Walker, who has tried cases in small towns across the country for the last 30 years, discredits claims that it’s hard to get a fair trial in a small town. He said it just takes some good lawyering skills to break the ice with small-town jurors. “I’ve been in some really small towns, but I make sure that I have a local lawyer so that I’ve got the lay of the land … It’s a question of being prepared and doing your homework and talking to the jury,” Rose said. Most recently, Rose wrapped up a wrongful death case that he described as a “defendant’s nightmare” in a small town. The trial was held in Magnolia, Miss., a town of 2,000, and Rose defended a trucking company accused of running over and killing a pedestrian on the side of a highway. Rose said he was going up against a hot-shot local attorney, but he won a defense verdict after proving that the victim had already committed suicide earlier that night. The case was appealed, but the Mississippi Supreme Court in February upheld the trial court’s decision. White v. Yellow Freight, No. 2000-CA-00995-SCT (Miss.). On the plaintiffs side, Rose has also had some good luck with small-town jurors. Most recently, in Anderson, Texas, a town of 320 people, he secured a $96 million verdict against the Lycoming aircraft engines unit of Textron Inc. Rose’s client, an aircraft engine parts manufacturer, sued Textron Lycoming for falsely blaming fatal airplane crashes on engine parts manufactured by his client. Interstate Southwest Ltd. v. Textron Lycoming, No. 29385 (Grimes Co., Texas, Dist. Ct.). The defense counsel for Textron Lycoming, attorney Rick Werder, a partner in Jones Day’s New York office, declined comment, saying an appeal is planned.

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